Last modified: October 1, 2023

These GENERAL TERMS & CONDITIONS FOR TELESCAN SOFTWARE AS A SERVICE (SAAS) (“Terms,” and together with the TeleScan Services Order Form(s) and, if applicable, the applicable Statement of Work (“Order(s)”) associated herewith, the "Agreement") set forth the terms and conditions pursuant to which TeleScan, Inc., a Delaware corporation ("Company"), shall provide the Services contemplated by the Order to the customer listed thereon (“Customer”). Company and Customer are individually referred to as a “Party” and collectively as the “Parties”. Each Order is subject to these Terms. Capitalized terms used herein but not defined herein have the meanings ascribed to them in the Order. In consideration of the mutual promises contained herein, the Parties agree as follows:  

1. DEFINITIONS

1. “Administrator” means a Representative of Customer (or the applicable Medical Facility) who has been designated by Customer to be the single point of contact to manage the relationship with Company and TeleScan and the Services.  

2. “Authorized Users” means the Healthcare Workers and other users who have been authorized by Customer (or the applicable Medical Facility) to access and use TeleScan and the TeleScan Services. 

3. “Business Day” means a day other than a Saturday, Sunday or any federal, state or holiday of Company.

4. “Documentation” means text and/or graphical documentation related to TeleScan and the TeleScan Services, in printed format, or otherwise that describes the features, functions and restrictions of TeleScan and the TeleScan Services, which documentation is designed to facilitate the use of TeleScan and the TeleScan Services, and which are made available by Company to the Customer.

5. “Healthcare Workers” means healthcare workers, including but not limited to physicians, radiologists, sonographers, technologists and clinicians.

6. “Implementation Services” means the implementation services to be provided by Company as provided in the applicable Order.

7. “Intellectual Property Rights”  means  all (i) patents, patent disclosures and inventions (whether patentable or not), (ii) trademarks, service marks, trade dress, trade names, logos, corporate names and domain names, together with all of the goodwill associated therewith, (iii) copyrights and copyrightable works (including computer programs), and rights in data and databases, (iv) trade secrets, know-how and other confidential information, and (v) all other intellectual property rights, in each case whether registered or unregistered and including all applications for, and renewals or extensions of, such rights, and all similar or equivalent rights or forms of protection in any part of the world. 

8. “Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree or other requirement or rule of any federal, state, local or foreign government or political subdivision thereof, or any arbitrator, court or tribunal of competent jurisdiction.

9. “Losses” means all claims, demands, losses, injuries (including personal injury, sickness, or death), damages (including property damage), liabilities, deficiencies, actions, judgements, interest, awards, penalties, fines, costs or expenses of whatever kind, and other liabilities of any kind or nature, whether sounding in contract, tort, strict liability or otherwise, including reasonable attorneys’ fees and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.

10. 1.10.“Medical Facility” means a medical facility where any of the Services are used or accessed hereunder.

11. 1.11.“Representatives” means, with respect to a Party, that Party’s and its Affiliates’ employees, officers, directors, consultants, agents, independent contractors, service providers, sublicensees, subcontractors and legal advisors

12. 1.12.“Service(s)” means any of Implementation Services, TeleScan Services or Staffing Augmentation Services.

13. 1.13.“Staffing Augmentation Services” means the staffing augmentation services to be provided by Company as provided in the applicable Order.

14. 1.14.“TeleScan” means Company’s software as a service application referred to as “TeleScan”.

15. 1.15.“TeleScan Services” means Customer’s access and use of TeleScan and related services, including the generation of ultrasound reports, that enable (i) Medical Facilities to receive, process, manipulate, display, print, and archive ultrasound medical images and data and (ii) Healthcare Workers to provide or receive information to be used for screening and diagnostic procedures remotely.

16. 1.16.“Third-Party Materials” means materials and information, in any form or medium, including any open source software, documents, data, content, specifications, or components of or relating to TeleScan and the TeleScan Services that are not proprietary to Company.

2. SERVICES AND SUPPORT

1. Right to Use. Company grants to Customer and its Authorized Users a non-exclusive right to access and use TeleScan and the TeleScan Services during the Term, solely in accordance with the terms of this Agreement, the applicable Order and the Documentation (collectively, the “Right to Use”). 

2. Provision of TeleScan and TeleScan Services. Subject to and conditioned on Customer’s and its Authorized Users’ compliance with the terms and conditions of this Agreement, Company shall use commercially reasonable efforts to provide to Customer and the Authorized Users access and use of TeleScan and the TeleScan Services during the Term.

3. Company Responsibilities. Company shall (i) ensure that the employees and contractors that provide the TeleScan Services, including the sonographers and technicians (collectively, the “TeleScan Services Providers”), have the necessary training and qualifications to provide the TeleScan Services; (ii) provide training for the access and use of TeleScan to the Healthcare Workers that will be operating the transducer in connection with TeleScan through video and other educational materials, as mutually agreed by the Parties; (iii) use commercially reasonable efforts to ensure that TeleScan is available from 7:00 am and 7:00 pm Central Time during Business Days; (iv) generate the ultrasound reports using TeleScan generated specifically for Customer’s (or its Healthcare Workers’) use (collectively, the “Reports”) by Company or its Representatives in the performance of the TeleScan Services; (v) ensure that all Reports (a) comply with good industry practices and all applicable Laws and regulations (b) are provided in accordance with good industry standards; and (vi) ensure that all TeleScan Services Providers comply with all applicable Privacy and Security Laws.

4. Administrator. Customer (or the applicable Medical Facility) shall designate a Representative who will serve as the single point of contact to manage the relationship with Company.  Customer may change the Administrator by sending prior written notice at least five (5) Business Days in advance of the change.

5. Service Level Agreement. Company shall use commercially reasonable efforts to respond to any technical issues based on the Severity Level in accordance with the Service Level Agreement as set forth on Exhibit A.

6. Implementation Services. If Customer has engaged Company to provide any Implementation Services (e.g., Company’s Fast-Start setup), such Implementation Services shall be provided subject to, and in accordance with, the terms of the applicable Order, this Agreement and the terms and conditions set forth in Exhibit B. If there is any conflict between the terms of the Agreement and the terms and conditions set forth in Exhibit B regarding the Implementation Services, then the terms and conditions of Exhibit B shall prevail. 

7. Staffing Augmentation Services. If Customer has engaged Company to provide any Staffing Augmentation Services, such Staffing Augmentation Services shall be provided subject to, and in accordance with, the terms of the applicable Order, this Agreement and the terms and conditions set forth in Exhibit C. If there is any conflict between the terms of the Agreement and the terms and conditions set forth in Exhibit C regarding the Staffing Augmentation Services, then the terms and conditions of Exhibit C shall prevail.

8. Technical Support. Company shall provide technical support via email at support@telescan.ai. Support hours are 7:00 am to 7:00 pm CST during Business Days.

9. Not Medical Advice or Diagnosis. NOTHING IN TELESCAN OR THE SERVICES, INCLUDING THE REPORTS, SHOULD BE INTERPRETED AS MEDICAL ADVICE OR DIAGNOSIS OR SHOULD BE USED AS A SUBSTITUTE FOR MEDICAL ADVICE OR DIAGNOSIS. CUSTOMER ACKNOWLEDGES AND AGREES THAT COMPANY DOES NOT RENDER MEDICAL ADVICE OR DIAGNOSIS.  THE HEALTHCARE WORKERS ARE SOLELY RESPONSIBLE FOR PROVIDING ANY MEDICAL ADVICE OR DIAGNOSIS BASED ON TELESCAN AND THE SERVICES, INCLUDING THE REPORTS.

3. CUSTOMER ACKNOWLEDGEMENTS AND RESPONSIBILITIES 

1. Customer Responsibilities.  Customer shall: (i) ensure that the Healthcare Workers that access and use TeleScan and the TeleScan Services, including the physicians and technicians, have the necessary training and qualifications to access and use TeleScan and the TeleScan Services; (ii) ensure that the Reports are reviewed and interpreted by qualified physicians; (iii) ensure that all Healthcare Workers comply with all applicable Privacy and Security Laws; (iv) provide clinical space to perform ultrasound procedures, storage of ultrasound equipment, and adequate and ergonomic clinical supplies, such as adjustable exam beds, adjustable stools with back support, and mountable TV monitors for patient viewing unless other arrangements have been agreed with Company; (v) schedule patients on agreed upon TeleScan operation days; (vi) provide ultrasound machine(s) that are in good working order and meet the other minimum requirements established by Company for use in connection with Telescan; (vii) provide IT and other support necessary to facilitate the implementation and use of TeleScan; and (viii) bill insurance companies and receive payments from patients.

2. Compliance with Applicable Law. Customer shall, and shall ensure that all Authorized Users, comply with all applicable Federal, state and local Laws related to TeleScan and the Services and the Patient Data, including all Privacy and Security Laws. Company may also impose limits on the use or access to the TeleScan and the TeleScan Services as required by Law.

3. Use Restrictions. None of Customer or any Authorized User shall (i) translate, reverse engineer, de-compile or disassemble TeleScan or the Services, except to the extent that applicable Law explicitly prohibits this contractual restriction; (ii) use or permit the use of TeleScan or the Services in violation of any Federal, state or local Law; (iii) defeat, circumvent or disable any copy protection mechanism or mechanism in TeleScan or the Services used to limit use duration or access to excluded functionality or capacity; (iv) interfere with or disrupt the integrity or performance of TeleScan or the Services, or any data contained therein; (v) use, access, display and run TeleScan or the Services except in accordance with the terms of this Agreement and the applicable Order; (vi) except as specifically permitted under the terms of this Agreement, rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available TeleScan or the Services to any third party, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud or other technology or service other than Authorized Users as permitted under this Agreement; (vii) except as specifically provided under the terms of this Agreement, delete or in any manner alter the copyright, trademark, and other proprietary rights notices of Company appearing on TeleScan or any of the Services or any other Company services or products, (viii) access or use TeleScan or the Services in any manner or for any purpose that infringes, misappropriates or otherwise violates any Intellectual Property Rights or other rights of any third party, or that violates any applicable Law; (ix) use TeleScan or the Services for purposes of: (a) benchmarking or competitive analysis of TeleScan or the Services, (b) developing, using or providing a competing application or service, or (c) any other purpose that is to Company’s detriment or commercial disadvantage; or (x) use TeleScan or the Services in any manner or for any purpose or application not expressly permitted by this Agreement.

4. INTELLECTUAL PROPERTY.

1. Ownership. TeleScan, the Services, the Documentation and the associated copyrights and other Intellectual Property Rights are protected by Law and international treaties. All right, title and interest in and to TeleScan, the Services and the Documentation, including all Intellectual Property Rights therein, are and will be owned by Company and the respective rights holders in the and Third-Party Materials. Customer has no right, license or authorization with respect to TeleScan, the Services or the Documentation (including Third-Party Materials) except as expressly set forth in Section 2.1, in each case subject to the restrictions in Section 3.3. All other rights in and to TeleScan, the Services and the Documentation (including Third-Party Materials) are expressly reserved by Company and the respective third-party licensors.

2. Feedback. Customer hereby grants to Company a non-exclusive, worldwide, fully paid-up, royalty-fee, non-terminable, perpetual, irrevocable right and license to use, disclose, modify, reproduce, license, distribute, commercialize and otherwise freely exploit any feedback, comments, or suggestions with respect to TeleScan or the Services and all related Intellectual Property Rights, that Customer or any Authorized User provides, without restriction of any kind and without any right of accounting.

5. FEES AND PAYMENT TERMS

1. Fees and Scan Volumes.  Applicable fees and pricing for the right to access and use the TeleScan Services (“Subscription Fees”), any additional fees for Implementation Services (“Implementation Fees”) and/or Staffing Augmentation Services (“Staffing Augmentation Fees”) ordered by Customer from time to time are set forth on the Order. Subscription Fees, Implementation Fees and Staffing Augmentation Fees are collectively referred to as “Fees.”  Subject to Section 5.2 below, Subscription Fees shall be invoiced and paid monthly unless otherwise agreed in writing by the Parties.  The Subscription Fees for any Renewal Term shall be Company’s then current standard subscription fees at the time of renewal unless otherwise agreed in writing by the Parties. No later than thirty (30) days after the end of each six (6) month period of the Term, Company shall determine Customer’s average monthly scan volume for that six (6) month period. If Customer has exceeded the average monthly scan volume set forth in the applicable Order, then Customer shall pay to Company the prorata difference between the Subscription Fees paid for the average monthly scan volume set forth in the Order and the Subscription Fees that would have been paid for the actual average monthly scan volume.  A discount of 3% will be offered for annual Subscription Fees paid in full in advance. The Subscription Fee includes the cost of technical support for TeleScan and the TeleScan Services.  Customer may increase the average scan volume at any time by notifying Company at support@telescan.ai Upon the effective day of such increase, the monthly Subscription Fee shall be increased to reflect the then current Subscription Fee for such increased monthly scan volume. The average monthly scan volume may only be decreased for the next subsequent renewal Term by notifying Company at least thirty (30) days prior to the end of the then current Term. 

2. Payment Terms.  Unless otherwise specified on an Order or herein, all invoices for Fees or Expenses shall be due Net 30 days.  The initial monthly Subscription Fee shall be paid no later than ten (10) days after the date of the of the applicable Order, and access to TeleScan and the TeleScan Services will not commence until receipt of this initial payment.  Thereafter, monthly Subscription Fees shall be due and payable on or prior to the monthly anniversary of the Subscription Commencement Date.  Implementation Fees shall be due and payable prior to the commencement of Implementation Services.  Staffing Augmentation Fees will be invoiced as delivered.  All Fees shall be paid by ACH as detailed on the invoice and/or order form. Company’s staff members do not accept any form of payment directly. Except to the extent otherwise provided in the Order, required by Law, or agreed to in writing by Company in its sole discretion, all Fees are non-refundable, non-cancelable and non-creditable and are payable in U.S. dollars. Any Fees remaining unpaid past their due date shall accrue interest at a rate of the lesser of one and one-half (1.5%) percent per month or the highest rate allowed by Law, and Customer shall also be responsible for any of Company’s costs of collection of past due Fees, including reasonable legal fees and collection agency fees. Company may also (at its discretion, without notice and in addition to other remedies it may have) suspend any Services and Customer’s and its Authorized Users’ access to the TeleScan Services if any invoice remains unpaid for more than fifteen (15) days past its due date.

3. Expenses. Customer shall reimburse Company for all out-of-pocket expenses and costs actually incurred by Company (“Expenses”) as mutually agreed by the Parties.

4. Taxes. The Fees set forth on the Order do not include local, state or federal sales, use, value-added, transactional excise or personal property or other similar taxes or duties, and any such taxes shall be assumed and paid by the Customer except those taxes based on the net income of Company. Company shall have no liability for any taxes owed by Customer or its Authorized Users as a result of their use of the Services.

5. No Deductions or Setoffs. All amounts payable to Company under this Agreement and the applicable Order shall be paid by Customer to Company in full without any setoff, recoupment, counterclaim, deduction, debit or withholding for any reason (other than any deduction or withholding of tax as may be required by applicable Law).

6. WARRANTIES AND DISCLAIMER 

1. Mutual Warranties. Each Party represents and warrants to the other Party that: (i) it is duly organized, validly existing and in good standing as a corporation or other entity under the Laws of the jurisdiction of its incorporation or other organization; (ii) it has the full right, power and authority to enter into and perform its obligations and grant the rights, licenses, consents and authorizations it grants or is required to grant under this Agreement; (iii) the execution of this Agreement by its representative whose signature is set forth on the applicable Order has been duly authorized by all necessary corporate or organizational action of such Party; and (iv) when executed and delivered by both Parties, this Agreement will constitute the legal, valid and binding obligation of such Party, enforceable against such Party in accordance with its terms.

2. Additional Company Representation and Warranty. Company represents and warrants to Customer that to its knowledge, TeleScan and the TeleScan Services do not infringe the U.S. Intellectual Property Rights of any third party.

3. Customer Warranty. Customer warrants that it has all necessary rights to provide Patient Data to Company.

4. Disclaimer. EXCEPT AS SET FORTH IN THIS AGREEMENT, TELESCAN, THE SERVICES, THE DOCUMENTATION AND ANY OTHER PRODUCTS, INFORMATION, MATERIALS AND SERVICES PROVIDED BY COMPANY ARE PROVIDED “AS IS” “WITH ALL FAULTS” AND COMPANY HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHER (INCLUDING ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE), AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, AND EXCEPT AS SET FORTH IN THIS AGREEMENT, COMPANY MAKES NO WARRANTY OF ANY KIND THAT TELESCAN, THE SERVICES, OR ANY OTHER PRODUCTS, INFORMATION, MATERIALS AND SERVICES OR THE RESULTS OF THE USE OF ANY OF THEM, WILL MEET CUSTOMER’S, AN AUTHORIZED USER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, OR BE COMPATIBLE OR WORK WITH ANY OTHER SYSTEM, GOODS, MATERIALS OR SERVICES.

7. CONFIDENTIALITY; PATIENT DATA; PRIVACY AND BAA 

1. Definition.  “Confidential Information” means any proprietary information, customer information, product plans, inventions, technical data, trade secrets, know-how, or other business information, in each case disclosed by a disclosing Party hereunder.  Except as otherwise provided for herein, Company’s Confidential Information includes, without limitation, TeleScan and the TeleScan Services, and any Company software comprising the same (if applicable). 

2. Exclusions.  Notwithstanding Subsection 7.1, nothing received by a receiving Party shall be construed as Confidential Information which: (i) is now available or becomes available to the public without breach of this Agreement; (ii) is lawfully obtained from a third party without a duty of confidentiality; (iii) is known to the receiving Party prior to such disclosure; or (iv) is, at any time, developed by the receiving Party independent of any such disclosure(s).

3. Non-Use and Non-Disclosure.  The receiving Party shall not disclose the disclosing Party’s Confidential Information to any third party (other than as set forth herein) and may only use the disclosing Party’s Confidential Information for the intended business purpose related to this Agreement and for the benefit of the disclosing Party, or as otherwise expressly set forth herein. Both Parties shall protect Confidential Information from disclosure or misuse by using the same degree of care as for their own confidential information of like importance, but shall at least use reasonable care. It is understood that said Confidential Information shall remain the sole property of the disclosing Party unless otherwise expressly set forth herein.  A receiving Party shall not disclose the disclosing Party’s Confidential Information to its Representatives unless such Representatives: (i) need to know such Confidential Information for purposes of the receiving Party’s exercise of its rights or performance of its obligations under and in accordance with this Agreement; (ii) have been informed of the confidential nature of the Confidential Information and the receiving Party’s obligations under this Section 7; and (iii) are bound by written confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this Section 7.

4. Disclosure Required by Law.  Notwithstanding Subsection 7.3 above, a receiving Party may disclose the other Party’s Confidential Information if the information is required by Law to be disclosed in response to a valid order of a court of competent jurisdiction or authorized government agency, provided that the receiving Party must give the disclosing Party prompt written notice and obtain and allow for a reasonable effort by the disclosing Party to obtain a protective order prior to disclosure.

5. Patient Data. Each Party will employ security measures to protect any information and data, including all any PHI that is collected, downloaded or otherwise received, directly or indirectly from a patient in connection with the use of TeleScan or the Services (collectively, the “Patient Data”) in accordance with commercially reasonable standards and all applicable Laws.  Company shall have the right (i) to use the Patient Data (a) to provide TeleScan and the Services to Customer and (b) to develop, train (including the building of algorithms or for the purposes of machine learning or otherwise) and improve Company’s products and services and its business, and (ii) to use aggregated and anonymized Patient Data (“Aggregated Data”): (X) to create new services and technologies, (Y) to generate and disclose statistics and other data regarding the Services, and (Z) build or train algorithms for the purposes of machine learning or otherwise; provided, that no Patient Data that is identifiable to Customer or any individual user, including any patient, will be disclosed to third parties without Customer’s consent or in violation of any applicable Law or regulation. Aggregated Data may be aggregated with data from Company’s other customers and will be anonymized so that such data will not be identifiable to Customer or any individual user. If Company generates Aggregated Data, Customer agrees that Company may use such Aggregated Data, during and after the Term, for any lawful business purpose without restriction. In no event will the Aggregated Data disclose any substantive specific individual information of Customer or a patient, including the performance of any institution, or any individual user.

6. Privacy and BAA.  Each Party shall comply with all applicable state and federal Laws and regulations regarding the privacy and confidentiality of patient records including but not limited to (i) The Health Insurance Portability and Accountability Act of 1996 (“HIPAA”); (ii) the Privacy and Security Standards (45 C.F.R. Parts 160 and 164) and the Standards for Electronic Transactions (45 C.F.R Parts 160 and 162) (collectively, the “Standards”) promulgated or as to be promulgated by the Secretary of Health and Human Services on and after the applicable effective dates specified in the Standards; and (iii) The Health Information Technology Economic and Clinical Health Act of 2009 (the “HITECH Act” and together with HIPAA and the Standards, collectively, the “Privacy and Security Laws”). Company shall comply with all bylaws, rules, regulations, and policies of Customer (or the applicable Medical Facility) that have been provided to Company in writing regarding the confidentiality and privacy of Protected Health Information, as defined in 45 C.F.R. 164.501, and Individually Identifiable Health Information (as defined in 42 U.S.C.§130d(6)) (collectively, “PHI”).  Company and Customer (or the applicable Medical Facility) shall (a) at the time of the first Order enter into a Business Associate Agreement (a “BAA”), in form and substance reasonably acceptable to the Parties and (b) comply with (X) the terms of the BAA and (Y) all applicable healthcare related Laws, including the Privacy and Security Laws.  Company agrees that it shall not disclose to any third party any PHI, medical record or other Patient Data regarding any patient and any other medical information and data concerning specific patients derived from the provision of TeleScan and the TeleScan Services or the access and use of TeleScan and the TeleScan Services, except where required or permitted by Law, this Agreement and the applicable BAA, and in such case, disclosures shall be made in accordance with the applicable policies of the Parties, the applicable BAA and the applicable Privacy and Security Laws.

8. LIMITATION OF LIABILITY 

1. DISCLAIMER OF DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, COMPANY WILL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO CUSTOMER FOR LOST PROFITS OR LOSS OF BUSINESS NOR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THE SUBJECT MATTER OF THIS AGREEMENT, EVEN IF COMPANY IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING. WITHOUT LIMITING THE FOREGOING, UNDER NO CIRCUMSTANCES WILL COMPANY BE LIABLE FOR ANY LOSS OR CORRUPTION OF DATA OR OTHER INFORMATION OR CONTENT STORED IN, OR IN CONNECTION WITH, THE SERVICES NOR FOR ANY DAMAGES ARISING FROM ANY ERROR IN ANY DATA OR OTHER INFORMATION OR CONTENT PROVIDED BY OR THROUGH THE OPERATION OF ANY SERVICE.  

2. MAXIMUM LIABILITY. UNDER NO CIRCUMSTANCES WILL COMPANY’S TOTAL LIABILITY OF ALL KINDS FOR ANY AND ALL CLAIMS ARISING OUT OF OR RELATED TO THE SUBJECT MATTER OF THIS AGREEMENT, REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER UNDER THE ORDER WITH RESPECT TO WHICH THE LIABILITY AROSE DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE APPLICABLE CLAIM (DETERMINED AS OF THE DATE OF ANY FINAL JUDGMENT IN AN ACTION AND SUCH AMOUNT BEING INTENDED AS A CUMULATIVE AGGREGATE CAP AND NOT PER INCIDENT).

3. FAILURE OF ESSENTIAL PURPOSE. THE LIMITATIONS IN THIS SECTION 8 WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THIS AGREEMENT.

9. INDEMNIFICATION

1. By Company.  Company shall hold harmless, defend and indemnify Customer and its affiliates and their respective officers, directors, employees and agents from and against any and all Losses, brought by or resulting from claims by third parties which are based on or arising out of any actual or alleged infringement of any third party’s US Intellectual Property Rights (an “Infringement Claim”) as a result of using TeleScan and/or the TeleScan Services in accordance with this Agreement; provided that Company shall not be obligated to indemnify Customer to the extent that any Infringement Claim arises out of or results from: (i) any combination of TeleScan or the TeleScan Services with any hardware, system or other software not provided or authorized in writing by Company, if such infringement would not have occurred but for such combination; (ii) any modification of TeleScan or the TeleScan Services not provided or authorized in writing by Company, or Customer’s negligence, abuse, misapplication, or misuse of TeleScan or the TeleScan Services, if such infringement would not have occurred but for such modification; (iii) use of TeleScan or the TeleScan Services after Company’s notice to Customer of such activity’s alleged or actual infringement, misappropriation or other violation of a third party’s rights; (iv) negligence, abuse, misapplication or misuse of use of TeleScan, the TeleScan Services or Documentation by or on behalf of Customer or a third party; (v) use of TeleScan or the TeleScan Services by or on behalf of Customer that is outside the purpose, scope or manner of use authorized by this Agreement or in any manner contrary to Company’s instructions; or (vi) any breach by Customer or its Authorized Users of the terms and conditions of this Agreement.

2. Rights Upon Infringement.  If an Infringement Claim is made by a third party against Customer or if Company believes that a likelihood of such an Infringement Claim exists, then Company, in a reasonable exercise of its discretion, shall use commercially reasonable efforts to either procure for Customer the right to continue using the affected part of TeleScan or the TeleScan Services, modify the affected part of TeleScan or the TeleScan Services to make it non-infringing while still able to meet TeleScan’s and the TeleScan Services’ functionality, or replace it with a non-infringing software application or services of like functionality. If none of the foregoing is reasonably available to Company, as determined by Company in its sole discretion, Company may terminate this Agreement and/or the Right to Use granted herein, in which case Customer shall immediately cease use of TeleScan and the TeleScan Services in accordance with Section 10.3 and Company shall refund to Customer a pro-rata portion of any pre-paid Subscription Fees for the remainder of the then current Term.

3. By Customer.  Customer shall hold harmless, defend and indemnify Company and its affiliates and their respective officers, directors, employees and agents from and against any and all Losses brought by or resulting from claims by third parties which are based on or arising out of any actual or alleged: (i) negligence or willful misconduct of, or breach of this Agreement by, Customer or any of its Representatives or Authorized Users, (ii) violation of any applicable Law by Customer or any of its Representatives or Authorized Users, (iii) any breach of any Patient Data to the extent not caused by Company’s negligence or willful misconduct or (iv) the use of TeleScan or the Services in violation of this Agreement.

4. Indemnification Procedures.  Each Party shall promptly notify the other Party in writing of any claim for which such Party believes it is entitled to be indemnified pursuant to Section 9.1 or Section 9.3. The Party seeking indemnification (the “Indemnified Party”) shall cooperate with the other Party (the “Indemnifying Party”) at the Indemnifying Party’s sole cost and expense. The Indemnifying Party shall immediately take control of the defense and investigation of such claim and shall employ counsel reasonably acceptable to the Indemnified Party to handle and defend the same, at the Indemnifying Party’s sole cost and expense. The Indemnified Party’s failure to perform any obligations under this Section 9.4 will not relieve the Indemnifying Party of its obligations under this Section 9 except to the extent that the Indemnifying Party can demonstrate that it has been materially prejudiced as a result of such failure. The Indemnified Party may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing.

5. Sole Remedy.  The provisions of this Section sets forth Company’s sole and exclusive obligations, and Customer's sole and exclusive remedies, with respect to infringement of any proprietary or Intellectual Property Rights of any kind.

10. TERM AND TERMINATION

1. 10.1.Term.  This Agreement shall become effective on the date the first Order hereunder has been executed by both Parties and shall continue for the Initial Subscription Term, unless terminated earlier pursuant to this Section 10. Upon expiration of the Initial Subscription Term or any Renewal Term, this Agreement shall automatically renew for an additional annual term (each a “Renewal Term”) unless a Party notifies the other Party at least sixty (60) days prior to the end of the then current term of termination (such Renewal Terms together with the Initial Subscription Term, the “Term”). 

2. 10.2.Termination.  This Agreement and the Right to Use may be terminated upon the occurrence of any of the following: (i) by Company, upon thirty (30) days written notice to Customer; or (ii) by a Party, effective on written notice to the other Party, if such other Party breaches any obligation or term under this Agreement and such breach: (a) is incapable of cure; or (b) being capable of cure, remains uncured thirty (30) days after the non-breaching Party provides the breaching Party with written notice of such breach; or (iii) by a Party, effective immediately, if the other Party: (a) is dissolved or liquidated or takes any corporate action for such purpose; (b) becomes insolvent or is generally unable to pay its debts as they become due; (c) becomes the subject of any voluntary or involuntary bankruptcy proceeding under any domestic or foreign bankruptcy or insolvency Law; (d) makes or seeks to make a general assignment for the benefit of its creditors; or (e) applies for, or consents to, the appointment of a trustee, receiver or custodian for a substantial part of its property

3. 10.3.Effect of Expiration or Termination. On the expiration or termination of this Agreement for any reason: (i) all rights and authorizations granted to Customer and its Authorized Users hereunder, including the Right to Use will immediately terminate and Customer shall: (a) immediately cease all use of and other activities with respect to TeleScan, the Services and Documentation; (b) within fifteen (15) days, deliver to Company, or at Company’s written request destroy, and permanently erase from all devices and systems Customer directly or indirectly controls, the Documentation and Company’s Confidential Information, including all documents, files and tangible materials (and any partial and complete copies) containing, reflecting, incorporating or based on any of the foregoing, whether or not modified or merged into other materials; and (c) certify to Company in a written instrument signed by an executive officer that it has complied with the requirements of this Section 10.3(i); (ii) Customer shall pay all amounts of any kind due to Company under this Agreement and the applicable Order no later than ten (10) days after the effective date of the expiration or termination of this Agreement; and (iii) Company shall within fifteen (15) days, deliver to Customer, or at Customer’s written request destroy, and permanently erase from all devices and systems Company directly or indirectly controls, Customer’s Confidential Information, including all documents, files and tangible materials (and any partial and complete copies) containing, reflecting, incorporating or based on Customer’s Confidential Information, whether or not modified or merged into other materials.

4. 10.4.Survival. In addition to those Sections of this Agreement which by their nature are intended to survive any expiration or termination of this Agreement, Sections 1, 3, 5 (with respect to amounts accrued or payable prior to termination), 6.3, 7-9, 10.3, 10.4 and 11 shall survive any expiration or termination of this Agreement. All other rights and obligations shall cease and be of no further force or effect. 

11. General

1. 11.1.Entire Agreement.  This Agreement, including the Order(s) and any schedules and/or attachments referenced herein or issued hereunder constitute the entire agreement of the Parties with respect to the subject matter contemplated herein, and supersede any prior representations, agreements, negotiations, or understandings between them, whether written or oral, with respect to the subject matter hereof, provided that with respect to Confidential Information disclosed thereunder this Agreement shall not affect any surviving provision of any NDA or other agreement by and between the Parties.  

2. 11.2.Amendment.  From time to time, Company may modify the Terms or any portion thereof.  Customer shall review the Terms regularly.  Company shall post modifications to the Terms to this website.  Modifications will not apply retroactively and will become effective no sooner than thirty (30) days after they are posted.  However, changes made for legal reasons will be effective immediately.  If Customer does not agree to the modified Terms, Customer should discontinue use of the Services.  Customer’s continued use of the Services constitutes Customer’s acceptance of the modified Terms.  

3. 11.3.Governing Law and Jurisdiction.  The Agreement will be governed by and construed in accordance with the Laws of the State of Texas applicable to agreements entered into, and to be performed entirely, within Texas between Texas residents. The Parties expressly agree to exclude the application of the U.N. Convention on Contracts for the International Sale of Goods (1980) to this Agreement and the performance of the Parties contemplated herein, to the extent that such convention might otherwise be applicable. 

4. 11.4.Arbitration.  Any dispute, controversy or claim arising out of this Agreement will be settled by binding arbitration pursuant to the Commercial Rules (or Consumer Rules, to the extent applicable) of the American Arbitration Association (“Rules”) then in effect.  Notwithstanding those Rules, the following provisions will apply to such arbitration: (i) Texas Law shall apply, (ii) the arbitration will be conducted by a single arbitrator; however, at the request of either Party, a panel of three arbitrators will conduct the arbitration, with one arbitrator chosen by each of the Parties and the third appointed by the other two arbitrators, (iii) the fees of the arbitrator(s) shall be equally borne (50/50) by the Parties, and (iv) the proceedings shall be in the English language and shall take place in Austin, Texas or another location reasonably convenient to both Parties.  The arbitrator(s) shall reach a binding decision regarding the issues presented as it deems fair, reasonable and appropriate, and such decision shall have the full force and effect of a binding judgment, which may be entered in any court having proper jurisdiction. Notwithstanding this provision, each Party may seek injunctive relief in any court of competent jurisdiction. The Parties agree to resolve any dispute in arbitration on an individual basis only, and not on a class or collective basis. The arbitrator shall have no authority to consider or resolve any claim or issue any relief on any basis other than an individual basis.  If at any point this provision is determined to be unenforceable, the Parties agree that this provision shall not be severable, unless it is determined that the arbitration may still proceed on an individual basis only.  

5. 11.5.Relationship of Parties.  The Parties are independent contractors and the Agreement will not establish any relationship of partnership, joint venture, employment, franchise, or agency between the Parties.  Neither Party will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent. Company reserves the right to utilize subcontractors.

6. 11.6.Attorneys’ Fees.  In any court action at law or equity which is brought by one of the Parties to enforce or interpret the provisions of this Agreement, the prevailing Party will be entitled to reasonable attorneys’ fees, in addition to any other relief to which that Party may be entitled.

7. 11.7.Equitable Relief.  The Parties agree that a material breach of the confidentiality provisions of this Agreement or restrictions set forth herein would cause irreparable injury to Company for which monetary damages alone would not be an adequate remedy, and therefore Company shall be entitled to equitable relief in addition to any other remedies it may have hereunder or at law, without the requirement of posting bond or proving actual damages.

8. 11.8.Force Majeure. Company shall not be deemed to have breached any provision of the Agreement or be liable in any way for any delay, failure in performance, loss, damage or interruption of service resulting directly or indirectly from acts of God, network failures, acts of civil or military authorities, civil disturbances, wars, terrorism, energy crises, fires, transportation contingencies, interruption or failures of communication systems or Internet equipment or service, other catastrophes, equipment failure, acts or omissions of third-party application or service providers or any other occurrences which are beyond Company’s control.

9. 11.9.Government Use. The use, duplication, reproduction, release, modification, disclosure, or transfer (“Use”) of the Services, no matter how received by the United States Government, is restricted in accordance with the terms and conditions contained herein. All other Use is prohibited. Further, the Services were developed at Company’s private expense and are commercial in nature. By using or receiving the Services, any Government user agrees to the terms and conditions contained in this Agreement including the terms and conditions contained in this paragraph.

10. 11.10.Assignment.  Neither Party may assign this Agreement, in whole or in part, without the other Party’s prior written consent, provided that no consent is required in connection with any Company merger, reorganization, consolidation, amalgamation, sale of assets or similar transaction. Any purported assignment in violation of this Section shall be null and void.  The Agreement shall be binding on all permitted successors and assigns. 

11. Severability.  The invalidity or unenforceability of any provision hereof, or any terms thereof, shall not affect the validity of the Agreement as a whole, which will at all times remain in full force and effect.

12. 11.12.Waiver.  The failure of either Party to enforce at any time the provisions of the Agreement, or the failure to require at any time performance by the other Party of any of the provisions of the Agreement, shall in no way be construed to be a present or future waiver of such provisions, nor in any way affect the ability of either Party to enforce each and every such provision thereafter.  The express waiver by either Party of any provision, condition or requirement of the Agreement shall not constitute a waiver of any future obligation to comply with such provision, condition or requirement.

13. 11.13.Notices.  All notices required or permitted under the Agreement will be in writing and delivered by hand (with written confirmation of receipt), by courier or overnight delivery service, or by certified mail, and in each instance will be deemed given upon receipt.  All communications will be sent to the addresses set forth in this Section or in the Order or to such other address as may be specified by either Party to the other in accordance with this Section.  Notices to Company should be sent to TeleScan, Inc., 9701 Brodie Lane, Suite 200, Austin, TX 78748, Attn: Director of Operations.

14. 11.14.Further Assurances.  Upon a Party’s reasonable request, the other Party shall, at the requesting Party’s sole cost and expense, execute and deliver all such documents and instruments, and take all such further actions, necessary to give full effect to this Agreement.

15. 11.15.Public Announcements.  Customer agrees that Company may include Customer’s name and logo in its lists of current or former customers, without restriction in promotional and marketing materials. Upon request, Customer will consider in good faith providing testimonials, participating in case studies and/or participating in video interviews as mutually agreed by the Parties.

16. 11.16.Solicitation. During the Term and for one (1) year following thereafter, neither Party shall, directly or indirectly, offer, or assist any other person to offer, employment to any then current employee or contractor of the other Party or attempt, directly or indirectly, to persuade any such employee or contractor to terminate his or her employment with the other Party.

17. 11.17.No Third-party Beneficiaries. This Agreement is for the sole benefit of the Parties hereto and their respective permitted successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other Party any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.

18. 11.18.Counterparts. An Order may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. A signed copy of an Order delivered by e-mail or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of an Order.

EXHIBIT A

Service Level Agreement

Severity Level 1

Action: Critical Business Impact/Risk: TeleScan is not operational, or performance is severely hindered; prompt action is needed to restore TeleScan functionality. Initially a temporary work around may be instituted with a permanent solution in the future.

Response Time: One (1) Business Hour

Severity Level 2

Action: Medium Business Impact/Risk: Action must be taken to restore full functionality of TeleScan and the TeleScan Services; however, support resolution will occur during Company’s normal business hours (i.e., Business Days, 9am to 5pm CST).  Initially a temporary work around may be instituted with a permanent solution in the future.

Response Time: Two (2) Business Hours

Severity Level 3

Action: Low Business Impact/Risk: Includes technical or procedural questions associated with use of TeleScan. A fix to any low-risk technical defect will be provided; however, support resolution shall take place during Company’s normal business hours (i.e., Business Days, 9am to 5pm CST) and the fix may not be included until a later release of TeleScan. Initially, a temporary work around may be instituted with a permanent solution in the future.

Response Time: Two (2) Business Days

Severity Level 4/Feature Requests

Action: No Risk: TeleScan is functioning per specification or documentation; however, Customer has a feature or enhancement request to improve the end user experience or needs consulting/professional services.

Response Time: Acknowledge in due course 

EXHIBIT B

Terms and Conditions for Implementation Services

The Fast-Start setup is Company’s proprietary efficient approach to the technical set-up of the software within Customer’s facilities. It includes project management, on-site visit(s), consultation on facility set up and technical requirements, and end-to-end configuration testing between the facilities’ equipment and the technology. Fast-Start onboarding also includes collaboration to align TeleScan standard operating procedures with the location’s existing procedures and workflows and training the Healthcare Workers who will be utilizing TeleScan to complete patient intake and conduct ultrasound sweeps.  Fast-Start setup is an Implementation Service of Company.

Any Implementation Services shall be provided subject to, and in accordance with, the terms of the Agreement and the following additional terms and conditions:

(a) The Implementation Services will be detailed on an Order.

(b) Company shall use commercially reasonable efforts to provide the Implementation Services in accordance with the schedule as mutually agreed by the Parties.

(c) Except as agreed in writing by the Parties, Customer acknowledges that all ideas and creative and other work product of whatever type or nature conceived, produced, or developed by Company and materials of any nature furnished by Company to Customer in connection with the Implementation Services under this Agreement and the applicable Order (collectively “Work Product”) shall be and remain the property of Company. Notwithstanding the foregoing, to the extent that the Work Product is incorporated or embodied in TeleScan or any Services, Customer shall have the right to access and use such Work Product in accordance with the Right to Use.  

(d) Company hereby represents and warrants to Customer that the Implementation Services shall be performed in a professional and workmanlike manner and in accordance with the Agreement.

(e) The Implementation Services are subject to (i) the warranty disclaimers set forth in Section 6 of the Agreement and (ii) the limitation of liability of provisions of Section 8.

EXHIBIT C

Terms and Conditions for Staffing Augmentation Services

If requested by Customer to support@telescan.app, and upon at least the minimum days’ notice set forth on the Order, Company can provide Healthcare Workers to conduct ultrasound sweeps at Customer’s designated facility in connection with TeleScan in accordance with an Order and the Agreement. The Staffing Augmentation Services are available Monday through Friday during normal business hours (typically 8 a.m. - 5 p.m.) for up to 40 hours per week excluding holidays observed by Company.

Any Staffing Augmentation Services shall be provided subject to, and in accordance with, the terms of the Agreement and the following additional terms and conditions:

(a) Customer shall pay the Staffing Augmentation Fees in accordance with the applicable Order, and shall pay for any overtime accumulated by a Healthcare Worker providing Staffing Augmentation Services at a rate of time and a half.

(b) While any Healthcare Worker is at a Customer facility to provide Staffing Augmentation Services, Customer shall (i) be responsible for overseeing the Healthcare Worker; (ii) ensure that the Healthcare Worker gets all legally required breaks to which a Customer employee at that facility is entitled; and (iii) treat the Healthcare Worker professionally and with proper respect.

(c) Company shall use commercially reasonable efforts to provide the Staffing Augmentation Services in accordance with the schedule as mutually agreed by the Parties.

(d) Except as agreed in writing by the Parties, Customer acknowledges that all ideas and creative and other work product of whatever type or nature conceived, produced, or developed by Company and materials of any nature furnished by Company to Customer in connection with the Staffing Augmentation Services under this Agreement and the applicable Order (collectively “Work Product”) shall be and remain the property of Company. Notwithstanding the foregoing, to the extent that the Work Product is incorporated or embodied in TeleScan or any Services, Customer shall have the right to access and use such Work Product in accordance with the Right to Use.  

(e) Company hereby represents and warrants to Customer that Staffing Augmentation Services shall be performed in accordance with industry standards.

(f) The Staffing Augmentation Services are subject to (i) the warranty disclaimers set forth in Section 6 of the Agreement and (ii) the limitation of liability of provisions of Section 8.