STANDARD TERMS AND CONDITIONS
These Standard Lease Terms and Conditions are incorporated into and constitute a material part of the Agreement (the “Agreement”) between Medamonitor, LLC, d/b/a LEVL (“LEVL”) and the Customer identified on the signature page of the Agreement. LEVL and Customer agree as follows:
Section 1. Definitions
Capitalized terms used in this Agreement and not otherwise defined in the Agreement will have the meanings set forth on Exhibit A.
Section 2. Term and Termination
2.1 Lease Period.The term of the lease with respect to each individual Device will begin on the date of Purchase and will continue thereafter for a minimum period of three (3) months (the “InitialTerm”). After the expiration of the Initial Term, the Agreement will automatically renew for ongoing one-month periods until the Customer requests cancellation from LEVL as described in Section 2.2.
2.2 Termination.Customer may terminate the Lease Period with respect to a Device at any time after the 3 month minimum (90 days) by returning the device to LEVL or to the clinician from which it was obtained. Customer must follow proper RMA (Return Merchandise Authorization) procedures. To cancel the lease, the LEVL devicemust be returned to our warehouse within 7 days of renewal date to stop payment.The cancellation request should go through our support team (firstname.lastname@example.org) who will provide proper RMA documentation.Do not send your LEVL device back without requesting a RMA. Failure to follow this policy may delay payment cancellation.In the event of a material breach or default under this Agreement by a Party, the other Party may terminate the Lease Period by giving the defaulting party written notice of the breach or default and the non-breaching Party's intention to terminate the Lease Period. The Lease Period will automatically terminate thirty (30) days after delivery of such notice unless, prior to the expiration of such thirty (30) day period, the breaching Party cures the breach or default.
2.3 Effect of Termination. Immediately upon termination of any applicable Lease Period, all licenses granted by LEVL herein will automatically terminate and Customer will immediately return the Device to LEVL or the clinician from which it was obtained. LEVL will invoice Customer for any unpaid fees and Customer will pay the invoice upon receipt. The rights of LEVL and obligations of Customer under this Agreement will survive any termination of any Lease Period.
Section 3. Rights
3.1 Grant. Subject to the restrictions and limitations set forth in Sections 3.2 and 3.3, and other provisions of this Agreement, LEVL hereby grants to Customer a nontransferable, nonexclusive right to use the Device and operate the Licensed Software on and with the Device, solely to receive services provided by an authorized clinician.
3.2 General Restrictions and Limitations. The license in Section 3.1 sets forth the entirety of Customer's rights to use the Device and Licensed Software. Without limiting the generality of the foregoing, such license does not include the right to, and Customer will not directly or indirectly: (a) install, use or authorize the installation or use of any Licensed Software on any system, computer or other device other than the Device; (b) merge or embed the Licensed Software into another computer program; (c) alter, modify, or create any derivative work based upon any Licensed Software; (d) grant any sublicense or other rights to any Device or Licensed Software; (e)authorize any other person to grant any sublicense with respect to any Device or Licensed Software; (f)reverse engineer, disassemble or decompile any of the Device or Licensed Software or attempt to discover or recreate the source code to any Device or Licensed Software (including, without limitation, by reverse engineering, disassembling or decompiling the Device to access the Licensed Software); (g) attempt to bypass any LEVL security; (h) remove, obscure, or alter any notice of Proprietary Rights related to the Device or Licensed Software; (i)engage in or permit any Unauthorized Use; or (j) embed, push or otherwise display any third party advertising or other content on or through the Device.
3.3 Embedded Third Party Software Restrictions and Limitations. The license in Section 3.1 as it relates to any Embedded Third Party Software is further subject to any restrictions and limitations specified in the terms and conditions displayed with or referenced in any such Embedded Third Party Software.
3.4 LEVL's Access to the Devices. Customer acknowledges that LEVL may electronically access the Device and Licensed Software to push Enhancements to the Device and Licensed Software, to diagnose problems with the Device or Licensed Software, to provide or enable any Services or to enforce any of its rights under, and in accordance with, this Agreement.
Section 4. Services.
LEVL will provide certain Services to Customer in connection it Customer’s device, in accordance with the relevant standard LEVL terms and conditions for services, entered into among LEVL and the Customer or LEVL and the clinician from which the Device was obtained, as applicable.
Section 5. Payment
LEVL will invoice Customer for all fees due hereunder. Invoices are due on receipt.
Section 6. Proprietary Rights
6.1 Ownership. The Device, Licensed Software and Services involve valuable Proprietary Rights of LEVL and no title or ownership interest in any such Proprietary Rights is transferred to Customer or any other Person under this Agreement. Without limiting the generality of the foregoing, LEVL reserves all of its Proprietary Rights in the Device, Licensed Software and Services.
6.2 Trademarks. As between LEVL and Customer, LEVL owns all right, title and interest in and to the LEVL Marks and any goodwill arising out of the use of the LEVL Marks will remain with and belong to LEVL and its licensors. The LEVL Marks may not be copied, imitated or used, in whole or in part, without the prior written consent of LEVL or the applicable trademark holder.
Section 7. Consent to Data Practices.
7.1 The LEVL Platform and Products will identify, document, collect, analyze, transmit and record Wellness Data. LEVL will maintain a repository of Wellness Data to provide and improve the LEVL Platform, the Products and to develop new product and service offerings. Customer will disclose to its Household Users that the LEVL Platform will identify, document, collect analyze and record Wellness Data and will obtain the requisite permission from each Household User (including parental agreement and supervision of minors under the age of majority in their jurisdiction of residence) using or accessing the Products to grant the license granted in Section 7.5(b) to such Wellness Data.
7.2 Customer is solely responsible for the content of any data or materials that Customer or Household Users use, process, submit, provide to, or make available through the LEVL Platform, including, without limitation, Wellness Data. Customer has provided legally required notice of its use of the LEVL Platform and Products to all relevant data subjects including, but not limited to, all Household Users, and obtained consent for Customer to transfer personal information and other Wellness Data to LEVL for processing in the United States.
7.3 Customer represents and warrants to LEVL that: (i) Customer has all rights in the Wellness Data necessary to grant the rights contemplated by this Agreement; and (ii) none of the Wellness Data or use of the LEVL Platform or any Product by Customer or any Household Users will violate the Policies or applicable law.
Section 8. Limitations of Liability
8.1 Force Majeure. Neither Party will be liable for, or be considered to be in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement (except with respect to monetary obligations) as a result of any cause or condition beyond such Party's reasonable control (including, without limitation, any act or failure to act by the other Party). This Section 8.1 will not apply to any payment obligation of either Party.
8.2 No Consequential Damages. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, PRODUCT LIABILITY OR STRICT LIABILITY) OR OTHERWISE, ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF REVENUE OR ANTICIPATED PROFITS, LOST BUSINESS OR INJURY TO BUSINESS REPUTATION).
8.3 Limitation of Liability. EXCEPT FOR INFRINGEMENT OR VIOLATION OR MISAPPROPRIATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, NEITHER PARTY’S TOTAL LIABILITY (WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, PRODUCT LIABILITY OR STRICT LIABILITY)), OR OTHERWISE, ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY PRODUCTS, SERVICES OR OTHER ITEMS OR SERVICES FURNISHED BY OR ON BEHALF OF LEVL UNDER THIS AGREEMENT WILL EXCEED THE TOTAL COMPENSATION PAID BY CUSTOMER TO LEVL UNDER THIS AGREEMENT FOR ALL DEVICES ORDERED BY CUSTOMER UNDER THIS AGREEMENT UP TO THE DATE OF THE EVENT GIVING RISE TO THE CLAIM.
Section 9. Miscellaneous
9.1 Notices. Any notice or other communication under this Agreement given by either Party to the other Party will be deemed to be properly given if given in writing and delivered in person, sent via overnight courier or mailed via registered mail, properly addressed and stamped with the required postage, to the intended recipient at its address specified on the signature page of the Agreement. Either Party may from time to time change its address for purposes of this paragraph by giving the other Party notice of the change in accordance with this paragraph.
9.2 Assignment. Customer may not assign this Agreement without the prior written consent of LEVL. LEVL may freely assign this Agreement to any subsidiary or parent company of LEVL or to any successor by way of any merger, consolidation or other corporate reorganization of LEVL or sale of all or substantially all of the assets of LEVL. No assignment, with or without such consent, will relieve any Party from its obligations under this Agreement. Subject to the foregoing, this Agreement will be fully binding upon, inure to the benefit of and be enforceable by the Parties and their respective successors and assigns.
9.3 Nonwaiver. The failure of either Party to insist upon or enforce performance by the other Party of any provision of this Agreement, or to exercise any right or remedy under this Agreement or otherwise by law, will not be construed as a waiver or relinquishment of such Party's right to assert or rely upon the provision, right, or remedy in that or any other instance; rather the provision, right or remedy will be and remain in full force and effect.
9.5 Severability. This Agreement will be enforced to the fullest extent permitted by applicable law. If any provision of this Agreement is held to be invalid or unenforceable to any extent, then (a)such provision will be interpreted, construed and reformed to the extent reasonably required to render the same valid, enforceable and consistent with the original intent underlying such provision and (b)such invalidity or unenforceability will not affect any other provision of this Agreement.
9.6 Applicable Law and Venue. This Agreement will be interpreted, construed and enforced in all respects in accordance with the laws of the State of Washington, U.S.A., without reference to its choice of law principles to the contrary. Each Party hereby consents to the jurisdiction of the state and federal courts located in Seattle, Washington, U.S.A. with respect to any claim arising under or by reason of this Agreement. Customer will not prosecute any action, suit, proceeding or claim arising under or by reason of this Agreement except in such courts.
9.7 Remedies. In the event of any breach of or default under this Agreement by Customer, LEVL may suffer irreparable harm and have no adequate remedy at law. In the event of any such breach or default, or any threat of such breach or default, LEVL will be entitled to injunctive relief, specific performance and other equitable relief, without the necessity of showing actual damages or posting a bond or other security.
9.8 Attorney’s Fees. In any legal action or other proceeding in connection with this Agreement (e.g., to recover damages or other relief), the prevailing Party will be entitled to recover, in addition to any other relief to which it may be entitled, its reasonable attorneys' fees and other costs incurred in that action or proceeding.
9.9 Entire Agreement. This Agreement constitutes the entire agreement, and supersedes any and all prior agreements, between LEVL and Customer with respect to the Devices and Licensed Software.
Section 10. Product Information
This is a Refurbished LEVL device. It has been reviewed and tested to the same standards as a new LEVL device. All accessories are new and unused; breath pods, disposable mouthpieces, extra sensor, calibration canisters.
Capitalized terms used in this Agreement and not otherwise defined in the Agreement will have the meanings set forth below:
“Device” means the LEVL device for monitoring ketone production and the Licensed Software embedded thereon.
“Embedded Third Party Software” means Licensed Software acquired or licensed by LEVL from a Third Party.
“Enhancement” means any bug fix, correction, modification, enhancement, improvement, update, upgrade or new release of any Licensed Software, but not New Versions.
“LEVL Marks” means any names, trademarks, service marks, service or trade names, brand name, logos, and other designations of LEVL and its affiliates.
“Licensed Software” means the software computer program and other software embedded in the Device, together with any and all Enhancements of such computer programs that are furnished to Customer under this Agreement. The Licensed Software does not include source code in any form.
“Party” means LEVL or Customer or any Person that acquires all of the right, title and interest of LEVL or Customer in this Agreement in accordance with Section 13.6 of these Lease Standard Terms and Conditions.
“Proprietary Rights” means any patent, copyright, trademark, service mark, trade name, trade secret, know-how, moral right or other intellectual property right under the laws of any jurisdiction, whether registered, unregistered, statutory, common law or otherwise (including any rights to sue, recover damages or obtain relief for any past infringement, and any rights under any application, assignment, license, legal opinion or search).
“Services” means the services available for use with the Device, as identified in the applicable standard terms and conditions for such services.
“Term” means the period described in Section 2.1.
“Third Party” means any Person other than LEVL or Customer.
“Unauthorized Use” means any use, reproduction, modification (including, without limitation, removal of parts or components of the Device) distribution, disposition, possession, disclosure or other activity involving the Device, Licensed Software or Services that is not expressly authorized under this Agreement or otherwise in writing by LEVL.
“User Data” means all data collected by a Device and the Licensed Software related to or as a result of a user's interaction with a Device.