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PROXIMIE ENTERPRISE STANDARD TERMS AND CONDITIONS

Last Updated: 1 August 2022  

These Proximie Enterprise Standard Terms and Conditions are by and between:

(i)              the Customer identified on an Order Form or, if not in the Order Form, the organisation using the Proximie Platform and Services (Customer); and

(ii)             the appropriate Proximie entity as set out in the Order Form or, if not in the Order Form, as set out below (Proximie):

(a) If Customer is located outside the Americas, the following Proximie entity shall be a Party to the Agreement: Proximie Limited, a company incorporated and registered in England and Wales under number 10509541, with a registered office at 3rd Floor 1 Ashley Road, Altrincham, Cheshire, United Kingdom, WA14 2DT; or

(b) If Customer is located inside the Americas, the following Proximie entity shall be a party to the Agreement: Proximie Inc. with a registered office at 101 Federal Street, Suite 1900, Boston, Massachusetts, 02110, USA,

each a Party,and together the Parties.

1.     Definitions.

1.1.    Documentation means technical documentation provided or made available from time to time to Customer by Proximie regarding the Proximie Platform, Services and/or Third-Party Equipment, as applicable and required by law;

1.2.    Healthcare Establishment means, where applicable (and if different to Customer), the hospital, clinic or other healthcare establishment or provider to which Customer may make the Products and Services available as agreed under an Order Form and in accordance with this Agreement.

1.3.    Intellectual Property Rights means patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world;

1.4.    Order Form means an ordering document or quote specifying the Products and/or Services to be provided and the associated price(s) that is entered into with Proximie, which shall incorporate this Agreement;

1.5.    Products means the Proximie Platform and the Documentation pertaining to it;

1.6.    Proximie Platform means the Proximie proprietary software in a managed cloud-hosted environment, any related software, applicable programming interfaces (APIs), and Proximie models or algorithms provided or made available to the Customer as a service in connection with this Agreement, and any improvements, modifications, derivative works, patches and Updates thereto.

1.7.    Services means Support Services and/or additional implementation, enablement, training, or other professional services provided by or on behalf of Proximie, as set out in an Order Form.

1.8.    Support Services means providing support for the Products in accordance with Proximie’s current terms and conditions governing Support Services.

1.9.  Third Party Entity means a third party organisation or entity, including but not limited to, a medical device company, research institution, association or pharmaceutical company, who has entered into arrangements with Proximie and/or the Customer for the purposes of providing its products and/or services to the Customer using or in relation to the use of the Proximie software and related services; 

1.10.    Updates means general updates to the Products that Proximie may implement without requiring the payment of additional fees, subject always to ensuring that the Update does not reduce the level of functionality of the Products below that are made available at the date of this Agreement. Updates do not include new offerings that Proximie makes available for an additional charge.Terms capitalised but not defined in these Terms shall have the meaning given to them in the relevant Order Form.

2.     Application. Unless otherwise agreed in writing between the Parties, these terms and conditions and any exhibits and/or appendices thereto (the Terms) apply to use of the Proximie Platform and Services, and are deemed incorporated in, any/ all Order Forms (the Terms and any/ all such Order Forms together being, this Agreement). By executing an Order Form, the Customer agrees to be bound by this Agreement.  Commencement Date shall mean the earlier of: (i) the date specified on the Order Form; or (ii) the date on which Customer first uses the Proximie Platform or Service.  Where no Order Form has been entered the Customer agrees to be bound by the Terms through use of, and accessing of, the Proximie Platform and/or Services.

3.     Commencement and DurationThis Agreement is:

(a) effective on and from the Commencement Date and shall continue for the Initial Term. At the end of the Initial Term, this Agreement shall automatically renew for successive one-year terms (each, a Renewal Term and the Initial Term and all Renewal Terms together being, the Term), unless terminated in accordance with these Terms; or

(b)only where no Order Form has been entered, effective on and from the Commencement Date and shall remain in effect for as long as Customer continues to access the Proximie Platform or Services (including for as long as Customer Generated Content is held), the (Term), unless terminated.

4.     Services. In consideration for the payment of the fees referred to in the Price section of the Order Form, or invoice should no Order Form exist, (the Fees) to Proximie, in accordance with this Agreement, Proximie will provide the Customer (and any Healthcare Establishments agreed by the Parties from time to time) with – each as may be specified in the Order Form:

(a)   the Services;

(b)   access to and a licence to use the Products, in accordance with Clause 5; and

(c)   the Third-Party Equipment, on a loan basis and in accordance with Clause 7.

5.     Licence. Subject to the terms of this Agreement, Proximie hereby grants to the Customer (and, in accordance with Clause 6, its Authorised Users), a non-exclusive, non-transferable licence, without the right to grant sublicences (except to applicable Healthcare Establishments, in accordance with this Agreement), to access and use the Proximie Platform in accordance with the Documentation, during the Term and solely for the purpose of, and to the extent necessary for, receiving the Services in accordance with this Agreement.

6.     Authorised Users. Proximie shall provide a designated individual nominated by the Customer with access to an administrator system on the Proximie Platform, which will allow the Customer to provision individual login accounts through which its (and/or applicable Healthcare Establishment(s)’) personnel that it has authorised to receive the Services (Authorised Users) may access the Products and Services. The Customer shall provision a separate account with unique login information and password (an Account) for each Authorised User and shall be solely responsible for administration of Accounts in accordance with the terms of this Agreement.  Where the Customer instructs Proximie personnel to take action(s) on Customer’s behalf, these Proximie personnel shall, for the purposes of this Agreement, be considered Authorised Users in the carrying out of those Customer’s instruction(s).

In relation to Authorised Users, the Customer undertakes that:

(a)   it will ensure that the Authorised Users use the Products, Third-Party Equipment and Services in accordance with this Agreement and shall be responsible for any Authorised User’s breach of this Agreement;

(b)   the maximum number of Authorised Users that it authorises to use the Products, Third-Party Equipment and Services shall not exceed the number, if any, set out in the Authorised Users Limit in the Order Form and/or Documentation;

(c)   it will not allow any Account to be used by more than one Authorised User unless the Account is transferred entirely to another Authorised User, in which case the prior Authorised User shall no longer have any right to use the Products, Third-Party Equipment or Services;

(d)   each Authorised User shall keep a secure password for their use of the Platform, Third-Party Equipment and/or Services, and that each Authorised User shall keep their password confidential;

(e)   in the event that the Customer or any Authorised User becomes aware that the security of any Account login information or password has been compromised, the Customer shall notify Proximie immediately and Proximie may deactivate such Account and/or instruct the Customer to change the Account’s login information and/or password (and Customer shall promptly comply);

(f)     it shall maintain a written, up to date list of all Authorised Users from time to time and shall provide such list to Proximie promptly, and in any event within two (2) business days, of any request; and

(g)   each Authorised User shall use the Products, Third-Party Equipment and Services as a professional (enterprise) user and not as a consumer.

7.     Third-Party Equipment. This Clause shall apply where Proximie loans to the Customer various computing hardware (including as set out in the Order Form) to enable the Customer, its Authorised Users and applicable Healthcare Establishment(s) to benefit from the Products and Services, including laptops, cameras, cables and other ancillaries (Third-Party Equipment) during the whole Term.

7.1.    Loan of Third-Party Equipment. Unless otherwise set out in the applicable Order Form, the loan of Third-Party Equipment shall be included in the Fees. The Customer shall, and shall procure that Healthcare Establishments and/or Authorised Users shall, as applicable, install, maintain, store, transport and use Third-Party Equipment (a) with the care that would be reasonably expected for equipment of this sort as used in the context of the delivery of the Products and Services hereunder, and only for the purposes of using the Services; (b) strictly in accordance with the Hardware and Third-Party Equipment Terms Teladoc Equipment Rental Terms (as applicable), the intended purpose, warnings and conditions specified in the Documentation, any additional terms referred to in the Order Form, third-party manufacturers’ documentation, this Agreement and/or any reasonable instructions of Proximie from time to time; and (c) in accordance with applicable laws and regulations. Proximie shall not be liable for any damage caused by the Customer’s non-observance of (a), (b) or (c).

The Third-Party Equipment is made available by Proximie on a loan basis in connection with the supply of its Product and Services to the Customer. Prior to making it available to Customer, Proximie shall verify that applicable formal requirements regarding the Third-Party Equipment are met and shall use reasonable endeavours to ensure that such Third-Party Equipment is, by the relevant third-party manufacturers’ specifications, compatible with the Services and Proximie Platform; however, Customer covenants and agrees that Proximie does not act, and cannot be held liable, as a producer of Third-Party Equipment under product liability laws, including the Directive 85/374/EEC concerning liability for defective products. Should the Customer believe or have reasons to believe that there is any doubt, suspicion or feedback of a non-conformity involving the Third-Party Equipment, the same shall be promptly reported to Proximie at the following address: [email protected] and Proximie shall be entitled to seek and obtain additional information from the Customer without any delay.

The Customer agrees not to make any alterations, additions or replacements to the Third-Party Equipment without Proximie’s prior written consent. The Customer is responsible for any loss, theft, destruction of, or damage to the Third-Party Equipment, except to the extent it is caused by Proximie acting in breach of this Agreement. If the Customer suspects the Third-Party Equipment has a manufacturer’s fault or defect, it shall promptly inform Proximie and Proximie shall take the necessary steps to have it repaired or replaced, as appropriate. The Parties acknowledge and agree that unless stated otherwise, Proximie is not the producer or manufacturer of any Third-Party Equipment or hardware provided hereunder. In case of expiration or early termination of this Agreement or a relevant Order Form, the Customer shall return the Third-Party Equipment to Proximie. Proximie shall organize the pick-up of the Third-Party Equipment. For the sake of clarity, Proximie shall not have to pay any damages for any return of the Third-Party Equipment.

7.2.    Ownership of Third-Party Equipment. Notwithstanding the above, as between the Parties, the ownership of the Third-Party Equipment shall always remain with Proximie. The Customer shall not pledge the Third-Party Equipment or in any other way vest a security, lien or encumbrance on the Third-Party Equipment. The risks in the Third-Party Equipment shall pass to the Customer upon delivery by Proximie in the Customer’s premises or at another place agreed by the Parties. The Customer shall immediately notify Proximie of any damage caused to the Third-Party Equipment. In case of return of the Third-Party Equipment for any reason, the Customer shall have to return it to Proximie in the same condition as when the Third-Party Equipment was delivered to the Customer, except for any normal wear and tear.

8.     Customer Obligations. The Customer shall, and shall ensure that each Authorised User shall, and/or shall procure that the Healthcare Establishments, as applicable shall:

(a)   provide Proximie with all co-operation, access and information as may be reasonably required by Proximie in order to provide the Products, Third-Party Equipment and Services;

(b)   obtain and maintain all necessary licences, consents (including any applicable medical consent or patient consent in relation to and in advance of each procedure involving the use of the Products, Third-Party Equipment and Services), permissions, authorisations, registrations and certifications required to enable the Customer (and/or applicable Healthcare Establishment(s)) and its Authorised Users to use the Products, Third-Party Equipment and/or Services in accordance with this Agreement;

(c)   at all times and at its own expense comply with all laws, rules and regulations that are applicable to its activities under this Agreement;

(d)   ensure that the Customer’s (and/or Healthcare Establishments’) receipt, and use, of the Products, Third-Party Equipment and Services under this Agreement does not cause Proximie to become a medical device, an accessory to or a part or component of a medical device (or equivalent under applicable laws);

(e)   use in a professional (enterprise) capacity and not as an individual consumer; and

(f)    grant access to its premises to Proximie to allow Proximie (or a third party on its behalf) to deliver and recover the Third-Party Equipment upon expiry or early termination of this Agreement and/or relevant Order Form, in accordance with Clause 7 and this Agreement.

9.     Restrictions. The Customer shall not, and shall procure that Authorised Users (and/or applicable Healthcare Establishment(s)) shall not:

(a)   access, store, distribute or transmit any viruses, worms, trojan horses, or any other software, code, files, scripts, agents, programs or materials during their use of the Services or the Proximie Platform that: (i) are unlawful, harmful, threatening, inflammatory, defamatory, obscene, infringing, harassing, offensive or ethnically offensive; or (ii) are otherwise illegal or causes damage or injury to any person or property, and Proximie reserves the right, without liability or prejudice to its other rights, to disable the Customer’s access to the Products and Services for any breach of the provisions of this paragraph;

(b)   interfere with or disrupt the integrity or performance of the Products, Third-Party Equipment or the Services;

(c)   decompile, disassemble, scan, reverse engineer, or attempt to discover any source code or underlying ideas or algorithms of any Services or the Proximie Platform ;

(d)   list or otherwise display or copy any code of any Services or the Proximie Platform, except to the extent necessary for Customer’s use of the Services;

(e)   gain or attempt to gain unauthorised access to the Services, Proximie Platform or infrastructure, or any element thereof, or circumvent or otherwise interfere with any authentication or security measures of the Services and/or Proximie Platform;

(f)    include any portion of any Services and/or Proximie Products in any other service, equipment, or except as permitted by any specific integration terms agreed in writing between the Parties if specified in the Order Form;

(g)   perform penetration tests on the Services; or

(h)   use, evaluate, or view the Services and/or Products for the purpose of designing, modifying, or otherwise creating any environment, software, models, algorithms, products, program, or infrastructure or any portion thereof, which performs functions similar or comparable to the functions performed by the Services and/or Products except to the extent otherwise agreed by the Parties in writing.

10.  Payment. Proximie shall invoice the Fees in accordance with the Invoicing Arrangements set out in the Order Form, if any. Payment of all invoices issued by Proximie shall be within thirty (30) days of the invoice date (the Due Date), unless otherwise agreed in writing. All Fees set out are exclusive of tax.

If Proximie has not received any invoiced Fees by the Due Date, then without prejudice to any other rights and remedies of Proximie:

(a)    Proximie may, without liability to the Customer, disable the Customer’s passwords, Accounts and access to all or part of the Products, Third-Party Equipment or the Services, and Proximie shall be under no obligation to provide any or all of the Products, Third-Party Equipment or Services for any period during which such amounts remain unpaid; and

(b)   late payment interest shall accrue on a daily basis on such amounts at a rate equal to the lesser of: (i) 1.5% per month; and (ii) the maximum amount of interest for late payment allowed by applicable law.

11.  Taxes. The entity responsible for the payment of Fees, as may be detailed in the Order Form, is responsible for all taxes arising under this Agreement, including sales, use, gross receipts, excise, value added, and goods and services taxes (but not including Proximie’s income taxes), in addition to any duties, costs of compliance with export and import controls and regulations and other governmental assessments, and, if applicable, withholding taxes so that after payment of such taxes the amount Proximie receives is not less than the Fees set forth in the Order Form. In the event that a double taxation treaty applies, which provides a zero or reduced withholding tax rate, Customer agrees not to withhold or withhold at the reduced tax rate in accordance with the double taxation treaty.

12.  Intellectual Property. As between the Parties, Proximie retains all right, title and interest, including all Intellectual Property Rights, in and to the Products, Third-Party Equipment and the Services and Customer does not obtain any Intellectual Property Rights in or to the Products, Third-Party Equipment or the Services. Except for the express rights granted herein, Proximie does not grant any other licences or access, whether express or implied, to any Products, Services, Proximie software, additional Proximie services, or additional Proximie products, Third-Party Equipment, or Intellectual Property Rights. No ownership rights are conveyed to Customer under this Agreement. The Customer will maintain and not remove, obscure, or alter any copyright notice, trade marks, logos, and trade names and any other notices or identifications that appear on or in any Products, Third-Party Equipment or Services and any associated media and materials.

Proximie agrees to indemnify the Customer in full against all liabilities, costs, expenses, damages and losses suffered or incurred by the Customer arising out of or in connection with any claim brought against the Customer for actual or alleged infringement of a third party’s Intellectual Property Rights arising out of, or in connection with, the receipt, use or supply of the Products or Services in accordance with this Agreement. If the Customer’s use, or receipt, of the Products or Services is, in Proximie’s reasonable opinion, likely to infringe the Intellectual Property Rights of any third parties, Proximie may, at its discretion: (i) substitute the Products and/or Services for substantially functionally similar Products and/or Services, (ii) procure for the Customer the right to continue using the Products and/or Services, or (iii) if Proximie reasonably determines that (i) or (ii) are commercially impracticable, terminate this Agreement on written notice to the Customer.

13.  Confidentiality.

(a)   Subject to Clause 13(b) below, each of the Parties shall treat as strictly confidential and not disclose or use any information received or obtained as a result of entering into this Agreement (including the provisions of this Agreement and any agreement entered into pursuant to this Agreement), and any information which is identified as confidential by either Party or the nature of which is clearly confidential (Confidential Information).

(b)   Clause 13(a) shall not prohibit disclosure or use of Confidential Information if and to the extent:

                         i.         the disclosure or use is required by law, any regulatory body or any stock exchange;

                        ii.         the disclosure or use is required to vest the full benefit of this Agreement in either Party or for the provision or receipt of the Services;

                       iii.         the disclosure or use is required for the purpose of any judicial proceedings arising out of this Agreement or any other agreement entered into under or pursuant to this Agreement;

                      iv.         the disclosure is made to a tax authority in connection with the tax affairs of the disclosing Party;

                       v.         the disclosure is made to professional advisers or actual or potential financiers of either Party on terms that such professional advisers or financiers undertake to comply with confidentiality obligations broadly equivalent to those set out in this Clause 13;

                      vi.         the information is or becomes publicly available (other than by breach of this Agreement);

                     vii.         the other Party has given prior written approval to the disclosure or use; or

                    viii.         the information is independently developed after the Commencement Date,

provided that prior to disclosure or use of any information pursuant to this Clause 13(b), the Party concerned shall promptly notify the other Party of such requirement with a view to providing the other Party with the opportunity to contest such disclosure or use or otherwise to agree the timing and content of such disclosure or use.

(c)   The confidentiality obligations set out in this Clause 13 shall remain in force for five (5) years following expiry or termination of this Agreement.

14.  Customer Generated Content.

(a)   This Clause 14 shall apply to all audio-visual recordings, chat content, annotations, images and information (including video, still images and sound) made by or on behalf of the Customer (and/or applicable Healthcare Establishment(s)) using the Proximie Platform or uploaded onto the Proximie Platform (Customer Generated Content), subject to any additional or alternative terms set out in an Order Form.

(b)   The Customer acknowledges and agrees that Customer Generated Content shall be hosted by Proximie as part of the Services. The Customer further acknowledges and agrees (as applicable) that notwithstanding the Parties’ obligations under the Business Associate Agreement available at: https://www.proximie.com/business-associate-agreement/, as between the Parties, the Customer is responsible and liable for any Customer Generated Content it produces in receipt of or in connection with use of the Products and the Services.

(c)   The Customer shall not, and shall not permit Authorised Users to, upload or submit to the Proximie Platform any Customer Generated Content that: (i) does not comply with this Agreement; (ii) does not comply with applicable law; or (iii) infringes or misuses any third-party Intellectual Property Rights or confidential information.

(d) As between the Parties, Customer Generated Content remains the property of the Customer. However, the Parties acknowledge that the Customer may make separate arrangements regarding ownership of Customer Generated Content with Healthcare Establishments. The Customer or, its applicable Healthcare Establishment(s) retains all ownership, right, title and interest, including all Intellectual Property Rights, in and to the Customer Generated Content.

The Customer hereby grants, and shall procure the grant by its applicable Healthcare Establishment(s), to Proximie of a worldwide, non-exclusive, royalty-free, transferable, sublicensable licence to use its Customer Generated Content (including to reproduce, distribute, analyse, modify, transmit, display or create derivative works of it) for the purpose of operating, demonstrating, promoting and improving the Services and/or as anticipated by this Agreement (including any data protection agreements between Proximie, the Customer and/or the applicable Healthcare Establishment) (Content Licence Purposes). This licence will continue for the duration required to fulfil the applicable Content Licence Purpose(s), save to the extent that Proximie’s use of the Customer Generated Content prior to such date or obligations at law require otherwise (for the avoidance of doubt, Proximie shall not be under any obligation to recall any Customer Generated Content from existing use, nor to delete copies that are required for legal or regulatory purposes).

15.  Data.

(a)   Each Party shall comply with all laws relating to privacy, data protection and data security which apply to such Party or the Products or Services (Data Protection Laws).

(b)   If the Customer and/or Healthcare Establishment is located inside the USA, To the extent Customer is a Covered Entity or Business Associate as defined at 45 C.F.R. § 160.103, each Party shall comply with their respective obligations under the Business Associate Agreement available at: https://www.proximie.com/business-associate-agreement/ (as applicable). For the avoidance of doubt, to the extent Customer is not a Covered Entity or Business Associate, the terms of the Business Associate Agreement shall not apply to the Parties.

(c)   If the Customer and/or Healthcare Establishment is located outside the USA, each Party shall comply with their respective obligations under the Data Protection Agreement available at: https://www.proximie.com/data-protection-agreement/ (as applicable).

16.  Liability.

(a)   Except as expressly provided in this Agreement: (i) the Customer assumes sole responsibility for its and its Authorised Users’ use of the Products, Third-Party Equipment or the Services and for results, conclusions, diagnoses or other decisions derived from such use; (ii) Proximie shall have no liability for any errors, outages or omissions in any information, video, audio or other media, nor any instructions or scripts provided through the Products, Third-Party Equipment or the Services, nor for any actions taken by Proximie at the Customer’s direction or on Customer’s instruction; (iii) all warranties, representations, conditions and all other terms of any kind whatsoever implied by statue or common law are, to the fullest extent permitted by applicable law, excluded from this Agreement.

(b)   Notwithstanding Clause 17(a), Proximie warrants that the Products and Services provided to the Customer under this Agreement will perform substantially in accordance with the Documentation and will be provided in a professional and workmanlike manner.

(c)   Nothing in this Agreement limits or excludes either Party’s liability to the other for: (i) death or personal injury caused by a Party’s negligence; (ii) fraud or fraudulent misrepresentation; or (iii) any liability that cannot lawfully be limited or excluded.

(d)   Subject to Clause 16(a) and 16(c):

a.     neither Party shall be liable, whether in contract (including under any indemnity), in tort (including negligence), under statute or otherwise, under or in connection with this Agreement, for any loss of profit, loss of sales or business, loss of anticipated savings, loss of use, unavailability or corruption of software, loss of or damage to goodwill, pure economic loss or for any special, indirect, liquidated, punitive or consequential loss howsoever arising; and

b.    Where Customer is provided access to the Proximie Platform directly by Proximie, Proximie’s total aggregate liability in contract, (including under any indemnity), in tort (including negligence), under statute or otherwise, under or in connection with this Agreement shall be limited to the higher of: (i) fifty thousand US dollars (US $50,000); and (ii) the sum equal to the total value of the Fees paid or payable to Proximie by or on behalf of the Customer in the twelve (12) months prior to the first event that gave rise to the relevant cause of action.  Where Customer is provided access to the Proximie Platform via a Third Party Entity (i.e. if Customer or its personnel act as an Authorised User through a Third Party Entity’s organisation), Proximie shall not, to the fullest extent permitted by law, be liable to Customer. 

(e)   The Customer shall indemnify and hold Proximie harmless for itself and all Authorised Users for any losses, damages, costs and expenses incurred by Proximie in relation to any third party claim brought or threatened (or purported to be brought or threatened) against Proximie as a result of the Customer’s (i) use of the Products, Third-Party Equipment or the Services, other than in accordance with this Agreement; (ii) generation, use or distribution of Customer Generated Content as anticipated by this Agreement (including any data protection terms and/or the Documentation); and (iii) infringement of the Intellectual Property Rights of Proximie or a third party.

(f)    Proximie shall not be liable for any failure or delay in providing the Products, Third-Party Equipment or the Services to the extent caused, or contributed to, by any act or omission of the Customer (including any failure to comply with the Customer Obligations set out in Clause 8 or the Restrictions in Clause 9), or by any breach of this Agreement by the Customer.

(g)   Proximie does not provide clinical or medical advice or diagnosis, including through its Products, Services and/or Third-Party Equipment. The Parties covenant and agree that the Proximie Platform is not intended to pursue the diagnosis, prevention, monitoring, prediction, prognosis, treatment and/or alleviation of diseases, medical conditions, injuries or disabilities. Proximie shall not be held responsible for the functioning, settings, outcomes (including their accuracy or level of detail) and any other effects or results of standalone or connected instruments, kits, equipment or devices which could be used by Customer, Authorised Users and/or third parties with the Proximie Platform for a medical or therapeutic purpose.

17.  Compliance.

(a)   The Parties agree that the arrangements set out in this Agreement do not take effect and are not intended to take effect as an incentive or reward for a Party’s past, present or future willingness to prescribe, administer, recommend, purchase, pay for, reimburse, authorize, sell, approve or supply any product or service sold or provided by Proximie or as an incentive to grant an interview for any sales or marketing purposes. The Customer acknowledges that any payments provided by Proximie and all affiliates of Proximie under the Agreement will remain independent of all decisions relating to medical or clinical choice made by any healthcare professionals which Customer and/or Healthcare Establishment(s) engage(s).

(b)   The Parties agree that they and, where relevant, their directors, officers, employees, agents or subcontractors have not and shall not, directly or indirectly pay or promise to pay, or authorise the payment of any money, or give, promise to give or authorise the giving of anything of value to any government official, healthcare professional or person affiliated with a healthcare organisation to obtain or retain business or secure improper advantage to Proximie and all affiliates of Proximie.

18.  Insurance.Both Parties shall, at their own expense, obtain and maintain comprehensive insurance cover with a reputable provider that is appropriate and adequate to cover their potential liability in connection with this Agreement. The Customer is responsible for any effect that its use of the Products and Services may have on its existing and future insurance policies (including insurance for Authorised Users, medical professionals and any insurance that is mandatory under applicable law). The Customer shall also obtain and maintain appropriate insurance to cover the Third-Party Equipment.

19.  Termination.

Termination of an Order Form

(a)   Either Party may terminate an Order Form in accordance with its terms. Termination of an Order Form does not affect the validity of this Agreement.

Termination of Entire Agreement

(b)   For convenience. Either Party may terminate this Agreement, together with any associated Order Forms, for convenience, by giving the other Party not less than six (6) months’ prior written notice, to expire at the end of the Initial Term or, if applicable, the then current Renewal Term, unless otherwise agreed in writing.

(c)   For cause. Either Party may terminate this Agreement (the Terminating Party) with immediate effect by giving written notice to the other Party (the Terminated Party) if: (i) the Terminated Party commits a material breach of this Agreement (which includes non-payment of any amount by the due date for payment), which has not been remedied within ten (10) days of being notified in writing of the material breach; (ii) the Terminated Party repeatedly breaches any of the terms of this Agreement; (iii) the Terminated Party is unable to pay its debts, or becomes insolvent, or goes into administration, or is subject to any analogous event or proceeding in any applicable jurisdiction, or (iv) the Terminated Party is subject to a change of control which would, in the reasonable opinion of the Terminating Party, result in the Terminated Party being controlled by a competitor of the Terminating Party.

(d)   Consequences of termination. In the event of termination of this Agreement: (i) the Customer shall immediately pay to Proximie any outstanding amount due in respect of any Products or Services supplied to date; (ii) the Customer’s right to receive the Products and Services shall cease (including any licence granted by Proximie pursuant to this Agreement, other than to the extent set out in this Clause 20(d)); and (iii) each Party shall, upon request of the other Party, return to the other all property and materials containing Confidential Information belonging to that other Party (including Proximie granting limited access for the Customer to the Proximie Platform for the sole purpose of extracting copies of Customer Generated Content), other than to the extent expressly stated in this Agreement or as required by laws applicable to the relevant Party. No termination or expiration of this Agreement shall limit or affect rights or obligations that accrued prior to the effective date of termination or expiration (including without limitation payment obligations).

(e)   Survival. The following terms of this Agreement shall continue to apply, notwithstanding termination or expiry of this Agreement: Clauses 12, 13, 14, 15, 16, 18, 20 and 29.

20.  Subcontracting. Proximie shall be entitled to engage subcontractors to deliver the Services on its behalf, without the Customer’s prior consent and shall be responsible for the acts and omissions of any sub-contractors as if they were their own hereunder.

21.  Assignment. The Customer shall not assign, any of its rights and obligations under this Agreement without Proximie’s prior written consent. Proximie may at any time assign, any or all of its rights under this Agreement.

22.  Variation. No variation of this Agreement shall be effective unless it is done in writing and signed by each of the Parties (or their authorised representatives).

23.  Severance. If any court or administrative body finds that any provision of this Agreement (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of this agreement shall not be affected. The Parties shall negotiate in good faith to amend such provision such that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the Parties’ original commercial intention.

24.  Force Majeure. Except for the obligation to pay amounts due under this Agreement, neither Party will be liable for any failure or delay in the performance of its obligations under this Agreement due to any cause outside its reasonable control, including (but not limited to) acts of God, war, labour shortage or dispute, governmental act, failure of the internet, hosting provider, manufacturer or equipment failures, computer or malicious attacks, provided that the affected party notifies the other party in writing and uses its reasonable efforts to correct the failure or delay in performance.

25.  Entire Agreement. This Agreement (including any Order Form(s), Data Protection Agreement and/or Business Associate Agreement) constitutes the entire agreement between the Parties and supersedes all previous discussions, correspondence, negotiations, arrangements, understandings, representations and agreements between them relating to its subject matter. Each Party acknowledges that in entering into this Agreement it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement. Each Party agrees that it shall have no claim for innocent or negligent misrepresentation (or negligent misstatement) based on any statement in this Agreement. Nothing in this clause shall limit or exclude any liability for fraud.

26.  No Partnership or Agency. Nothing contained in this Agreement shall be deemed to constitute the relationship of principal and agent nor partnership as between Proximie and the Customer or any of its agents or representatives. The Customer (including its employees, agents, representatives and contractors) shall not hold themselves out as agents of Proximie or do anything which might cause the Customer, its agents, representatives and contractors to be taken by third parties as acting as an agent or agents of Proximie.

27.  Third-Party Rights. This Agreement is made for the benefit of the Parties and (where applicable) their successors and permitted assigns and is not enforceable by any person who is not a party to it, including Authorised Users.

28.  Notices. Any notice or other communication given to a Party under or in connection with this Agreement shall be in writing and shall be: (i) delivered by hand or by pre-paid first-class post or other next business day delivery service at its registered office or its principal place of business; or (ii) sent by email to the address specified by each Party to the other from time to time.

29.  Dispute Resolution, Governing Law and Jurisdiction.

(a)    If a dispute arises out of or in connection with this Agreement or the performance, validity or enforceability of it (Dispute) then the Parties shall follow the following procedure: (i) either Party shall give to the other written notice of the Dispute, setting out its nature and full particulars, together with relevant supporting documents (Dispute Notice). On service of the Dispute Notice, the Parties’ Relationship Managers shall attempt in good faith to resolve the Dispute; (ii) if the Relationship Managers have not resolved the Dispute within thirty (30) days of service of the Dispute Notice, the Dispute shall be referred to a director (or equivalent) of each Party who shall attempt to resolve it in good faith; and (iii) if the directors (or equivalent) have not resolved the Dispute within thirty (30) days of it being referred to them, either of the Parties may refer the Dispute to   arbitration in accordance with (b) and (c) below..

(b)   If the Customer is located in the USA, this Agreement shall be deemed to have been made in, and shall be governed in accordance with, the laws of the State of New York and arbitration will be administered in New York, United States, in accordance with the Comprehensive Arbitration Rules and Procedures of the Judicial Arbitration and Mediation Services Inc. (JAMS) and the Federal Rules of Evidence (notwithstanding any JAMS rules to the contrary).

(c)    If the Customer is located outside the USA, then the governing law of this Agreement, including the arbitration agreement in this Clause 29(c), shall be the laws of England and Wales, and without regard to the UN Convention on Contracts for the International Sale of Goods. Any dispute arising out of or in connection with this Agreement, including any question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration under the rules of the London International Court of Arbitration then in force, which are deemed to be incorporated by reference into this Agreement. The number of arbitrators shall be one. The seat, or legal place, of arbitration shall be London, England. The language to be used in the arbitral proceedings shall be English.

(d)   Notwithstanding, the foregoing, each Party shall have the right to bring an action at any time in a court of proper jurisdiction for preliminary injunctive relief pending a decision by the arbitrators.

30.  Updates to Terms.  This Agreement may be updated from time to time by Proximie.  Proximie will provide notice on its website of such updates. Where updates or modifications to this Agreement materially reduce Customer’s rights or the security of the Proximie Platform, Proximie will provide 14 days’ notice to Customer of these changes and permit Customer to object to such updates.

Hardware and Third-Party Equipment Terms Teladoc Equipment Rental Terms

When we use the words CustomerYou and Your in this Agreement, we mean the Customer. When we use the words Owner, We, Us, and Our in this Agreement, (a) as between Proximie and Teladoc, We mean Teladoc Health, Inc., its affiliated companies (including InTouch Technologies, Inc.) or our Assignee, and (b) as between the Customer and Proximie under the Proximie Enterprise Standard Terms and Conditions, We mean the Proximie entity(/ies) defined in the Proximie Enterprise Standard Terms and Conditions.

1.           AGREEMENT; DELIVERY AND ACCEPTANCE. Notwithstanding anything to the contrary in the Proximie Enterprise Standard Terms and Conditions, You agree to rent the Teladoc equipment and other property described in this agreement (collectively “Equipment“) on the terms and conditions shown in this section of this Agreement (“Rental Agreement“). We will arrange for the delivery of the Equipment to You. The Equipment will be deemed accepted by You on the date all or a portion of the Equipment has arrived at Your relevant facility, as confirmed by Our shipment certificate (the “Commencement Date”), and the rental term will start on the date the Equipment  arrives at Your relevant facility, as confirmed by Our shipment certificate and will continue until the relevant Customer subscription term has ended (“Rental Term” or “Term”). You will be responsible for all Equipment shipping costs under the Rental Agreement.

2.      WARRANTIES. Teladoc warrants that the Equipment will be free from defects in materials and workmanship, under normal use and service from the date the Equipment is shipped by Teladoc to Customer (the “Standard Equipment Warranty”) through the expiration of the Rental Term. Teladoc’s sole obligation under this express warranty shall be, at Teladoc’s option and expense: (i) to repair the defective Equipment or part; (ii) to deliver to Customer an equivalent unit of Equipment or part to replace the defective item.

3.     EQUIPMENT LOCATION; USE AND REPAIR; RETURN. You will keep and use the Equipment only at the Equipment location indicated in the Agreement and/or as otherwise agreed by the Parties (“Location”). You may not move the Equipment to another location without Our prior written consent, not to be unreasonably withheld. At Your expense, You will keep the Equipment eligible for any manufacturer’s certification, in compliance with all applicable laws and in good condition, except for ordinary wear and tear. You will not make any alterations, additions or replacements to the Equipment without Our prior written consent. All alterations, additions and replacements will become part of the Equipment and Our property at no expense to Us. Following expiration or earlier termination of this Agreement, You will cooperate with Teladoc’s efforts to coordinate delivery of the Equipment back to Teladoc in good condition and repair, except for ordinary wear and tear, to any place in the United States that Teladoc designates and upon Teladoc’s request. It is solely Your duty to remove all sensitive or confidential data stored within the Equipment prior to returning it. You will pay all expenses of uninstalling, crating and shipping and insure the Equipment for its full replacement value during shipping. You agree that You will not take the Equipment out of service and have a third party pay or provide funds to pay the amounts due hereunder.

4.       TAXES AND FEES. You will pay all excise taxes, sales and use taxes, and all other taxes and charges which may be imposed during the term of this Rental Agreement, arising from the use, acquisition, ownership or leasing of the Equipment, whether due before or after termination of this Rental Agreement. With the exception of property tax, You will reimburse Us for Our administrative costs and fees associated with the preparation, filing, payment, and other costs of administering taxes associated with the Equipment.

5.        LOSS OR DAMAGE. As between You and Us, You are responsible for any loss, theft or destruction of, or damage to, the Equipment (collectively “Loss“) from any cause at all except to the extent caused by Teladoc or due to Our breach of any term of any applicable agreement between You and Us, whether or not insured, until it is removed from Your premises in accordance with and at the end of this Rental Agreement. You are required to make all payments relevant to Equipment hereunder even if there is a Loss. You must notify Us in writing immediately of any Loss. Then, at Our option, You will either (a) repair the Equipment so that it is in good condition and working order, eligible for any manufacturer’s certification, or (b) pay Us the amounts specified in Section 9(b) below.

6.       INSURANCE. You will provide and maintain at Your expense (a) property insurance against the loss, theft or destruction of, or damage to, the Equipment for its full replacement value, and (b) public liability and third party property insurance covering the Equipment. You will give Us certificates or other evidence of such insurance when reasonably requested. Such insurance will be in a form, amount and with companies of reputable and reasonable standards in the industry. IF YOU DO NOT GIVE US EVIDENCE OF INSURANCE ACCEPTABLE TO US UPON REQUEST HEREUNDER, WE HAVE THE RIGHT, BUT NOT THE OBLIGATION, TO OBTAIN INSURANCE COVERING OUR INTERESTS FOR THE TERM OF THIS AGREEMENT, INCLUDING ANY RENEWAL OREXTENSIONS. WE MAY ADD THE COSTS OF ACQUIRING AND MAINTAINING SUCH INSURANCE, AND OUR FEES FOR OUR SERVICES IN PLACING AND MAINTAINING SUCH INSURANCE (COLLECTIVELY, “INSURANCE CHARGE”), ON WHICH WE MAY EARN A PROFIT, TO THE AMOUNTS DUE FROM YOU UNDER THIS AGREEMENT. Such insurance may duplicate coverage provided under Your existing policy. If applicable, You will pay the Insurance Charge in equal instalments allocated to the remaining Payments. Nothing in this Rental Agreement will create an insurance relationship of any type between Us and any other person.

7.      TITLE; RECORDING. As between the Parties, We are the owner of and will hold title to the Equipment. You will keep the Equipment free of all liens and encumbrances.

8.     DEFAULT. Each of the following is a “Default” under this Rental Agreement: (a) You materially do not perform any of Your obligations under this Rental Agreement and this failure continues for 30 days from Our notice to You; or (c) You become insolvent, You dissolve or are dissolved, or You assign Your assets for the benefit of Your creditors, or enter any bankruptcy proceeding.

9.      REMEDIES. If a Default occurs, We may do one or more of the following: (a) We may cancel or terminate all or part of this Agreement; (b) We may require You to immediately pay Us, as compensation for loss of Our bargain and not as a penalty, a sum equal to (i) the present value of all unpaid Payments for the remainder of the Term plus the Equipment’s anticipated residual value discounted at 3% per annum, if applicable, plus (ii) all other amounts due or that become due under this Rental Agreement; (c) We may require You to deliver the Equipment to Us as per Our reasonable instructions and terminate use of any software component of the Equipment; (d) We or Our agent may peacefully repossess the Equipment without court order and You will not make any claims against Us for damages or trespass or any other reason; and (e) We may exercise any other right or remedy available at law or in equity. You agree to pay all of Our reasonable costs and attorneys’ fees associated with enforcing Our rights and pursuing Our remedies against You under this Rental Agreement. If We take possession of the Equipment, We may sell or otherwise dispose of it with or without notice, at a public or private sale, and apply the net proceeds (after We have deducted all costs related to the repossession, sale or disposition of the Equipment) to the amounts that You owe Us. You will remain responsible for any amounts that are due after We have applied such net proceeds.

10.       End of Life. We have the unilateral right to determine if the Equipment has reached its reasonable end of life (“EOL”). We will provide reasonable advanced written notice if it has determined that any Equipment will reach its EOL, including the EOL date and will replace such Equipment upon reasonable notice. We shall cooperate and facilitate the replacement of such Equipment. Notwithstanding anything else in this Agreement, We will not be required to continue supporting any Equipment that has reached EOL to the extent the Customer has refused or prevented the replacement of such Equipment in accordance with this provision.

11.      ASSIGNMENT. YOU MAY NOT ASSIGN, SELL, TRANSFER OR SUBRENT THE EQUIPMENT OR YOUR INTEREST IN THIS AGREEMENT, EXCEPT TO END CUSTOMERS UNDER THE TERMS OF THE AGREEMENT.

12.      MISCELLANEOUS. It is the express intent of the parties not to violate any applicable usury laws or to exceed the maximum amount of interest permitted to be charged or collected by applicable law, and any such excess payment will be applied to Payments in inverse order of maturity, and any remaining excess will be refunded to You.