SiPhox Enterprise Terms of Service
SIPHOX INC.
Terms of Service This Terms of Service (this “Terms of Service”) is entered into and effective as of the date of Onboarding Form signature (https://form.typeform.com/to/vlKHFz72) “Effective Date”, by and between Siphox Inc., a Delaware corporation with offices 111 Terrace Hall Ave, Burlington MA 01803 (“Siphox Health”), and the customer listed on the Onboarding Form(“Customer”, and together with Siphox Health, each, a “Party,” and collectively, the “Parties”). This Statement of Work includes and incorporates the attached Master Services Agreement (the “MSA” and together with this Terms of Service, the “Agreement”). Capitalized terms used but not defined in this Terms of Service have the meanings given to them in the MSA.
Term: 1 year from the Effective Date(the “Initial Term”), automatic renewal for successive one-year periods (each, a “Renewal Term,” and together with the Initial Term, the “Term”), unless earlier terminated pursuant to the Master Services Agreement. Customer is under no obligation to purchase additional test kits during this time.
Fee Schedule: Test kits and At-home kit testing services are provided by Siphox Health at a rate per testing kit specified in the Onboarding Form (unless noted otherwise), subject to adjustment as described below:
Kit
Components:
• White Roll End Front Tuck (REFT) style box with white insert to hold lancets
• Branded sleeve
• Branded instructions (vertical trifold)
• Alcohol pad
• Sterile gauze
• 3x Lancets
• Bandage
• Specimen collection system (collection card and biospecimen bag)
• Return mailer with USPS Priority Mail prepaid return label for sending sample to the lab
Price: $120 per test kit
Analytes:
• % Hemoglobin A1C
• Triglycerides
• Apolipoprotein A1 (APOA1)
• Apolipoprotein B (APOB)
• High-Sensitivity CRP
• Cortisol
• Vitamin D
• Insulin
• Estradiol (Sensitive)
• Ferritin
• DHEA-S
• Testosterone
• Folate
• HDL
• LDL
• Total Cholesterol
• Homocysteine
Turn-around time: <5 business days
Specimen: ADx100 Two Strip Card
Pricing from Siphox Health’s vendors changes from time to time, which may impact the fee amounts listed above. Accordingly, Siphox Health may revise this fee schedule by providing Customer with reasonable notice (but in no event less than 15 days’ notice prior to the effective date of any such change).
Payment: The Initial order of test kits shall be paid up front via the Siphox Enterprise Onboarding Form. Additional orders can be paid upfront via the Siphox Health B2B Portal. Customer can request to be invoiced monthly. In such cases payment will become due Net 10 days.
Siphox Health will first apply any available deposit amount against the total dollar amount of fees payable for Kits ordered.
The Parties have executed this Terms of Service to be effective as of the Effective Date.
MASTER SERVICES AGREEMENT
This Master Services Agreement (this “MSA”) is entered into and effective as of the date of form signature “Effective Date” by and between Siphox Inc., a Delaware corporation (“Siphox Health”), and the Customer listed on the attached Terms of Service (“Customer”). This MSA forms a part of and is deemed incorporated into each Terms of Service entered into between Siphox Health and Customer.
1. Definitions.
1.1 “Confidential Information” shall include any oral or written information of either Party, including any Users and/or affiliates, that is marked or otherwise identified, orally or in writing, as confidential or proprietary information. Such information shall include, without limitation, information relating to a Party’s employees, compensation structure, business operations, strategies, financial matters, current and prospective Customers, marketing and/or advertising, pricing, products, and any other item or data which a Party should recognize from the circumstances surrounding the disclosure to be confidential or proprietary in nature. Confidential Information of Customer shall include Customer Data; Confidential Information of Siphox Health shall include the Service; Confidential Information of each party shall include
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the terms and conditions of this Agreement as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party.
1.2 “Customer Data” means all data or information collected by the Services or submitted by Customer or its Users to the Platform or derived from Customer’s use of the Platform (including without limitation data related to Test Subjects), except for any Feedback (as defined below).
1.3 “Intellectual Property” means any and all patents, inventions, copyrights, works of authorship, trademarks, trade secrets, know-how, designs, and all other intellectual property rights (whether registered or unregistered and including the right to register, renew or extend such foregoing intellectual property) that are, in each case, protected under the laws of any governmental authority having jurisdiction.
1.4 “Platform” means Siphox Health’s website providing Customer and its Users with access to tracking and support for ordered Services.
1.5 “Test Subjects” means any of Customer’s clients for whom a Kit is ordered.
1.6 “Users” means individuals who are authorized by Customer, including employees and contractors of Customer, to use the Platform and who have accepted the Website Terms.
1.7 “Website Terms” means Siphox Health’s Terms of Use governing use of the Platform, as may be revised from time to time by Siphox Health.
2. Services.
2.1 Ordering. Customer shall submit Kit orders using the Platform (each, an “Order”). Prior to acceptance by Siphox Health, an Order must include at least the following: (a) identification of the Kits being ordered, (b) shipping information, and (c) any other information required for the Order as specified on the Platform. Following receipt of a validly submitted Order, and subject to automatic modification pursuant to Section 2.2, Siphox Health will provide the Services to the Test Subject for whom an Order is attributable at the rates described in the applicable Terms of Service. In accordance with Customer’s reasonable objectives, Siphox Health shall independently determine the method, details, and means of performing the Services (including through use of its lab partners and subcontractors). Customer shall have no right to determine or control the manner or method of performance of the Services.
2.2 Automatic Order Modification. In some circumstances Siphox Health may not be able to fulfill an Order as originally submitted by Customer. Such circumstances include: (a) the Test Subject being located in a location where Siphox Health’s lab partners are not authorized to receive or analyze samples; (b) the Test Subject not meeting inclusion criteria or meeting exclusion criteria (e.g. under 18 years old); (c) a Kit being lost or stolen on the way to the Test Subject or the Kit being lost or stolen on the way to one of Siphox Health’s lab partners; (d) the Kit is rejected for testing by Siphox Health’s lab partners; and (e) other situations out of Siphox Health’s control, such as evolving regulatory requirements or restrictions. In the event an Order is rejected at the outset (e.g. (a) and (b) above), Customer will not be charged and Customer may direct the Test Subject to a walk-in lab or alternative service. In the event an Order is accepted and the Kit is lost, stolen, or the lab partner rejects the sample, Siphox Health will automatically resend one replacement Kit to the Test Subject at no additional charge. Any additional replacement Kits requested by Customer will be invoiced at the rates described in the applicable Terms of Service.
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2.3 Forecasts. For orders above 500 test kits per month, customer will provide Siphox on a quarterly basis with a nonbinding 6 month rolling forecast of its estimated Kit requirements, which shall constitute good faith estimates of Customer’s anticipated requirements for Orders for the applicable time period.
2.4 Platform Access; Results Reporting. In addition to submitting Orders, Customer has the ability to track Orders, view instructional videos, and submit support requests through the Platform. Customer’s and its Users’ access and use of the Platform is governed by the Website Terms. Order results made available on the Platform will be reported in a format and using language approved by Siphox Health’s partner’s lab network and ordering physician network. Customer is solely responsible for using any other format or language used in reporting Order results to Test Subjects. Under no circumstance will Siphox Health be, nor will Customer make any statement directly or indirectly asserting that Siphox Health is, responsible for making diagnoses, prescribing treatments, or otherwise providing medical care or advice, whether to Test Subjects or otherwise.
3. Contractual Responsibilities.
3.1 Customer Responsibilities.
(i) Customer shall (a) be solely responsible for its and its Users’ compliance with the Website Terms and the terms of this Agreement, (b) be solely responsible for the accuracy, quality, integrity and legality of Customer Data and of the means by which it acquired Customer Data, (c) be solely responsible for any required notices, consents, and/or authorizations related to Customer’s or any User’s provision of, and Siphox Health’s processing of, Customer Data as part of the Services, (d) use commercially reasonable efforts to prevent unauthorized access to or use of the Platform, and notify Siphox Health promptly of any such unauthorized access or use, and (e) use the Services and the Platform only in accordance with any specifications or instructions provided to Customer by Siphox Health and applicable laws and government regulations. To the extent that Customer or any User discloses Customer Data to a third party that is not subject to any restriction on the disclosure of the Customer Data, Siphox Health is no longer responsible for the security, integrity, or confidentiality of such Customer data.
(ii) Customer shall not (a) use the Platform to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (b) use the Platform to store or transmit viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs, (c) interfere with or disrupt the integrity or performance of the Platform or third-party data contained therein, (d) attempt to gain unauthorized access to the Platform or its related systems or networks, (e) permit any third party, including affiliates, to access the Platform except as permitted herein or in the Terms of Service or as approved by Siphox Health in writing, (f) create derivative works based on the Platform, (g) reverse engineer the Platform, (h) access the Platform in order to (1) build a competitive product or service, or (2) copy any
3.2 Services Warranty. The Services shall be performed in accordance with commercially reasonable professional standards, practice, methods and techniques for similar services in effect at the time of such performance. Siphox Health warrants that the Services will be performed in a professional and workmanlike manner consistent with applicable industry standards. Customer must notify Siphox Health in writing (email acceptable) of any alleged failure by Siphox Health to perform Services in features, functions or graphics of the Platform.
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accordance with the foregoing warranty within thirty (30) days of the delivery of the affected Services. Siphox Health’s entire liability and Customer’s sole remedy for Siphox Health’s failure to perform in accordance with the above warranty shall be for Siphox Health to: (i) use commercially reasonable efforts to cure or correct such failure; or (ii) if Siphox Health is unable to cure or correct such failure, terminate the affected Services and refund that portion of fees paid by Customer to Siphox Health that corresponds to such failure to perform. Siphox Health complies with, and ensures that its lab partners comply with, the licensing and certification requirements under the Clinical Laboratory Improvement Amendments of 1988, as amended, the requirements pertaining to the maintenance and transmission of personal health information under the Health Insurance Portability and Accountability Act of 1996, as amended, and the applicable rules and regulations promulgated thereunder, requirements under state and federal Medicare and Medicaid programs, and other applicable state and federal statutes and regulations.
3.3 Insurance. Each Party shall maintain general liability, cyber liability, and errors and omissions insurance with a minimum $1,000,000 primary limit for each policy. In addition, Siphox Health shall obtain workers’ compensation insurance covering the performance of the Services by any of its employees as required by applicable law. Upon request from the other Party, each Party will provide a certificate of insurance evidencing such coverage and shall name the other Party as additional insureds.
3.4 Data Privacy; Access Security. Each Party maintains and has maintained reasonable physical, technical, and administrative security measures and policies designed to protect information that constitutes “personal information,” “personal data,” or “personally identifiable information” as defined in applicable laws and “protected health information” as defined under 45 C.F.R. § 160.103. Each Party shall ensure that the Services and access to the Platform shall only be as permitted and in accordance with the terms of this Agreement and shall implement security measures and procedures consistent with industry practice to ensure access to such information is so limited. As may be required, Siphox Health will enter into a Business Associate Agreement with Customer.
4. Compensation and Payment.
4.1 Fees. Customer shall pay Siphox Health fees for the Services at the rates and on the payment terms specified in the Terms of Service, including, if applicable, any deposit amounts or minimum commitments. All payments are due in U.S. Dollars within ten (10) days of Customer’s receipt of an invoice, unless otherwise specified in the Terms of Service.
4.2 Expenses. Except as otherwise provided in the Terms of Service, Siphox Health shall assume all expenses associated with rendering the Services. Any reimbursable expenses should be itemized and submitted on a monthly basis.
4.3 Late Payments. All invoiced amounts not paid by Customer when due will accrue interest at the rate of one percent (1%) per month or the maximum amount permitted by law, whichever is lower. Siphox Health may, in its sole discretion and upon ten (10) days prior written notice to Customer, suspend the provision of Services, as applicable, if any invoice is more than thirty (30) days past due. This right of suspension will not limit any other of Siphox Health’s rights or remedies related to Customer’s failure to pay.
4.4 Taxes. Customer shall be responsible for any taxes payable in connection with the Customer’s use of the Services (other than taxes based on Siphox Health’s income) and Customer hereby agrees to indemnify Siphox Health for any such taxes and related costs, interest and penalties paid or payable by Siphox Health. Fees reflected on any Terms of Service are exclusive of sales tax. Siphox Health
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shall add the amount of any sales taxes as separate line item(s) to the amounts invoiced to Customer under any Terms of Service and Customer shall remit such amounts to Siphox Health.
5. Proprietary Rights.
5.1 Siphox Health’s Rights. Siphox Health retains and reserves all rights, title and interest in and to its Intellectual Property (including without limitation the Platform, packaging design, and instructional material) and any derivative works created based on it. No rights are granted to Customer hereunder other than as expressly set forth herein.
5.2 Customer Data. Customer shall own and retain all right, title, and interest in and to Customer Data; provided, however, that Customer hereby grants to Siphox Health a worldwide, royalty-free, non-exclusive license to use Customer Data (i) for providing, maintaining and improving the Services and/or the Platform, (ii) for providing Customer with access to and information about customized features, new functionality, and partner integrations, and (iii) in aggregated and anonymized form, whether for Siphox Health’s internal business purposes or otherwise, including providing and optimizing its services and products and performing analytics. Siphox must have the explicit consent of the Test Subject to share Customer Data with third parties for any purpose other than (i) or (ii). The use of Customer Data in this case must be limited to the scope authorized by the Test Subject in the consent.
5.3 Feedback. Customer and its Users may provide to Siphox Health bug reports, suggestions, enhancement requests, recommendations or other feedback or content relating to the Services or the Platform (“Feedback”). By providing any Feedback, Customer hereby assigns to Siphox Health all right, title, and interest in and to the Feedback, if any. Nothing in this Agreement will restrict Siphox Health’s right to use, profit from, disclose, publish, keep secret, or otherwise exploit any Feedback for improving or otherwise modifying any of Siphox Health products or services, without compensating or crediting Customer or a User.
5.4 Residual Rights. The parties acknowledge and agree that Siphox Health is in the business of providing Services to third parties that are or may be substantially similar to the Services being provided to Customer. Customer agrees that Siphox Health, its employees, and agents will be free to use and employ their general skills, know-how, and expertise, and to use, disclose, and employ any generalized ideas, concepts, know- how, methods, techniques, or skills gained or learned during the course of any Services performed under this Agreement and retained in the unaided memory of Siphox Health’s employees or agents, subject to its obligations with respect to Customer’s Confidential Information pursuant to Section 6.
6. Confidential Information.
6.1 Limitations on Use. Each Party shall hold all Confidential Information in strict confidence and shall use such information solely for the purposes of fulfilling its respective obligations hereunder and for no other purpose, and shall not directly or indirectly disclose, provide, disseminate or otherwise make available any Confidential Information to any third party, in either case without the express prior written permission of the disclosing party. In addition to any other remedies that may be available in law, in equity or otherwise, the disclosing party shall be entitled to seek injunctive relief to prevent such unauthorized use or disclosure.
6.2 Reasonable Efforts. Each Party agrees to employ reasonable and customary business practices to protect and secure Confidential Information from unauthorized release or distribution
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and to limit access to Confidential Information of the other Party to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement and who are subject to confidentiality obligations no less stringent than those herein.
6.3 Exclusions. The nondisclosure and use obligations regarding Confidential Information (other than Customer Data) described herein shall have no effect: (i) to the extent that any item or data forming part of the Confidential Information is now in, or later enters, the public domain other than as a consequence of the unauthorized and/or unlawful disclosure by the receiving party or by any other person; (ii) to the extent that any item or data forming part of the Confidential Information is lawfully known by the receiving party prior to the provision of such information by the disclosing party; or (iii) to the extent that the receiving party is entitled to release Confidential Information as required to prosecute or defend any claim under this Agreement. In addition, if the receiving party is compelled by law to disclose Confidential Information of the disclosing party, it shall provide the disclosing party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at disclosing party’s cost, if the disclosing party wishes to contest the disclosure. If the receiving party is compelled by law to disclose the disclosing party’s Confidential Information as part of a civil proceeding to which the disclosing party is a party, and the disclosing party is not contesting the disclosure, the disclosing party will reimburse the receiving party for its reasonable cost of compiling and providing secure access to such Confidential Information.
6.4 Ownership and Return of Confidential Information. Except as otherwise provided herein, any Confidential Information disclosed under this Agreement is and remains the disclosing party’s absolute and exclusive property and is its unique and variable asset. Upon termination of this Agreement, or earlier upon the disclosing party’s request, the receiving party shall promptly return all Confidential Information, including all copies, that was received in a non-electronic form and shall destroy all information received electronically. Thereafter, the receiving party shall provide the disclosing party with written confirmation that all such information has been returned or destroyed.
6.5 Equitable Relief. If a receiving party discloses or uses (or threatens to disclose or use) any Confidential Information of the disclosing party in breach of confidentiality protections hereunder, such party agrees that such breach would cause disclosing party irreparable injury, for which monetary compensation would not provide adequate compensation, and disclosing party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, without proving actual damage or posting bond or other security, it being specifically acknowledged by the Parties that any other available remedies are inadequate.
7. Representations; Disclaimers.
7.1 Mutual Representations. Each party represents and warrants that it has the legal power to enter into this Agreement.
7.2 Additional Representations by Customer. Customer represents that (a) Customer is duly authorized to provide Customer Data to Siphox Health and Customer does so in compliance with applicable laws and legislation, (b) Siphox Health and its subcontractors can process such data, and (c) Siphox Health may disclose and transfer such data to any of its subcontractors for the purpose of satisfying its obligations to Customer.
7.3 Disclaimers. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 3.2, THE PLATFORM AND THE SERVICES ARE PROVIDED TO CUSTOMER “AS-IS” AND “AS AVAILABLE” AND CUSTOMER EXPRESSLY
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UNDERSTANDS AND AGREES THAT ALL USE OF THE PLATFORM AND THE SERVICES ARE AT CUSTOMER’S SOLE RISK. NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. SIPHOX HEALTH WILL NOT BE RESPONSIBLE FOR ANY DIRECT OR INDIRECT LOSSES INCURRED IN CONNECTION WITH CUSTOMER’S USE OR INABILITY TO USE THE PLATFORM OR THE SERVICES OR CUSTOMER’S RELIANCE ON OR USE OF THE PLATFORM OR THE SERVICES AND INFORMATION PROVIDED, OR THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETIONS OR ANY FAILURE OF PERFORMANCE. CUSTOMER’S USE OF THE PLATFORM AND SERVICES ARE AT CUSTOMER’S OWN RISK.
8. Indemnification; Limitation of Liability.
8.1 By Siphox Health. Siphox Health shall defend Customer against any claim, demand, suit, or proceeding (“Claim”) made or brought against Customer by a third party (a) resulting from or relating to Siphox Health’s gross negligence, willful misconduct or breach or violation of this Agreement, (b) resulting from Siphox Health’s violation of any applicable law or the rights of any User or Test Subject, or (c) alleging that the use of the Services or the Platform as permitted hereunder infringes or misappropriates the Intellectual Property rights of a third party, and shall indemnify Customer for any damages finally awarded against, and for reasonable attorneys’ fees incurred by, Customer in connection with any such Claim; provided that Customer (i) promptly gives Siphox Health written notice of the Claim, (ii) gives Siphox Health sole control of the defense and settlement of the Claim (provided that Siphox Health may not settle or defend any Claim unless it unconditionally releases Customer of all liability), and (iii) provides to Siphox Health all reasonable assistance, at Siphox Health’s expense.
8.2 By Customer. Customer shall defend Siphox Health and its officers, directors, employees, agents, contractors and subcontractors, lab partners, ordering physicians, suppliers, vendors, attorneys, insurers, successors and assigns (the “Siphox Indemnified Parties”) against any Claim made or brought against any Siphox Indemnified Party by a third party (a) resulting from or relating to Customer’s gross negligence, willful misconduct or breach or violation of this Agreement, (b) resulting from Customer’s violation of any applicable law or the rights of any User or Test Subject, or (c) alleging that the Customer Data, or Customer’s use of the Services or the Platform in violation of this Agreement infringes or misappropriates the Intellectual Property rights of a third party, and shall indemnify the Siphox Indemnified Parties for any damages finally awarded against, and for reasonable attorneys’ fees incurred by, any of them in connection with any such Claim; provided that Siphox Health (a) promptly gives Customer written notice of the Claim, (b) gives Customer sole control of the defense and settlement of the Claim (provided that Customer may not settle or defend any Claim unless it unconditionally releases the Siphox Indemnified Parties of all liability), and (c) provides to Customer all reasonable assistance, at Customer’s cost.
8.3 Sole and Exclusive Remedy. This Section 8 states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of Claim described in this section.
8.4 Limitation of Liability. EXCEPT FOR CUSTOMER’S OBLIGATIONS TO PAY FEES PURSUANT TO SECTION 4 ABOVE AND INDEMNIFICATION OBLIGATIONS OF EITHER PARTY PURSUANT TO THIS SECTION 8, IN NO EVENT SHALL EITHER PARTY’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER DUE TO NEGLIGENCE OR OTHERWISE, OR IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, (I) IN THE AGGREGATE, EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER
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HEREUNDER OR, (II) WITH RESPECT TO ANY SINGLE INCIDENT GIVING RISE TO LIABILITY, EXCEED THE AMOUNT PAID OR PAYABLE BY CUSTOMER HEREUNDER IN THE TWELVE MONTHS PRECEDING THE INCIDENT GIVING RISE TO LIABILITY. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
9. Non-interference with Business. During the Term, and for a period of one (1) year immediately following this Agreement’s termination or expiration, each Party agrees not to interfere with the business of the other Party in any manner. By way of example and not limitation, each Party agrees not to: (i) solicit or induce any employee or independent contractor to terminate or breach an employment, contractual, or other relationship with the other Party; or (ii) interfere with, impair, disrupt, or damage the other Party’s relationship with any of its current or prospective partners or customers.
10. Term and Termination; Suspension.
10.1 Term. This Agreement shall be effective as of the Effective Date and shall remain in effect for the Term set forth in the applicable Terms of Service.
10.2 Termination Without Cause. Either Party may terminate this Agreement and/or any Terms of Service issued hereunder upon thirty (30) days prior written notice to the other Party. If either Party terminates this Agreement without cause, then Customer shall pay, in full, any remaining unpaid amounts (including, if applicable, any minimum commitments) within thirty (30) days after delivery of written termination notice in accordance with the notice provisions set forth below. Further, if this Agreement is terminated by Customer without cause, any available Kit deposit shall be forfeited upon such termination.
10.3 Termination for Cause. Either Party may terminate this Agreement and/or any Terms of Service for cause (i) upon thirty (30) days prior written notice to the other Party of a material breach if such breach remains uncured at the expiration of such period, or (ii) immediately upon written notice if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors; provided, however, that Siphox Health may terminate this Agreement immediately for Customer’s non-payment of fees (including deposit amounts) when due, if such non-payment remains uncured for ten (10) days after notice thereof. If either Party terminates this Agreement for cause, then Customer shall pay, in full, any remaining unpaid amounts (including, if applicable, any minimum commitments) within thirty (30) days after delivery of written termination notice in accordance with the notice provisions set forth below. Further, if this Agreement is terminated by Siphox Health for cause, any available Kit deposit shall be forfeited upon such termination.
10.4 Suspension. Siphox Health may, at any time, stop (permanently or temporarily) providing the Services to Customer and/or disable Customer’s and its Users’ access to the Platform in Siphox Health’s sole discretion, and/or terminate all or some of Customer’s rights under this Agreement if:
(i) Customer or its Users has breached any provision of the Website Terms, and Siphox Health shall have no obligation to refund to Customer any fees already paid;
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(ii) there is an attack on the Platform, the Platform is accessed or manipulated by a third party without Siphox Health’s consent, or there is another event for which Siphox Health reasonably believes that the suspension of Customer’s access to the Platform is necessary to protect Siphox Health’s network or its other customers;
(iii) Siphox Health is required to do so by law (for example, where providing access to Customer or an User may be, or become, unlawful);
(iv) Siphox Health is, or anticipates, no longer providing the Services in the jurisdiction containing Customer’s principal place of business or from which access to the Services or the Platform may be made on Customer’s behalf; or
(v) the provision of the Services to Customer or its Users is, in Siphox Health’s opinion, no longer commercially viable.
10.5 Duties upon Termination. Upon termination of this Agreement for any reason, Siphox Health agrees to cease all work on behalf of Customer and promptly deliver all Confidential Information to Customer. Customer shall promptly pay Siphox Health all fees, including any remaining unpaid amount (including, if applicable, any minimum commitments) and reimbursable expenses incurred by Siphox Health to the date of termination. Customer’s payment obligation for any fees and reimbursable expenses owed to Siphox Health shall survive the termination of this Agreement.
10.6 Survival. Sections 1, 4 through 9, 10.5, 10.6, and 11 shall survive any termination or expiration of this Agreement.
11. General Provisions.
11.1 Notices. Any notice made pursuant to this Agreement will be in writing and will be deemed delivered on (i) the date of delivery if delivered personally, (ii) three calendar days after mailing if duly deposited in registered or certified mail or express commercial carrier, or (iii) upon confirmed receipt by email, addressed to the Party to be notified at the address or email address shown in the Terms of Service or on the signature page, or to such other address or email address as may be hereafter designated by a Party.
11.2 Entire Agreement; Amendments; Waiver. This Agreement, including the Terms of Service and the Website Terms (as applicable to access of the Product by Customer), constitutes the entire agreement between the Parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. In the event of a conflict or inconsistency between any term of this MSA and the Terms of Service, the terms of the Terms of Service shall control. This Agreement may be amended or modified only by the mutual written agreement of authorized representatives of the Parties. No term or provision hereof shall be considered waived by a Party, and no breach excused by a Party, unless such waiver or consent is in writing signed by such Party. The waiver by a Party of, or consent by a Party to, a breach of any provision of this Agreement by the other Party shall not operate or be construed as a waiver or excuse of any other or subsequent breach.
11.3 Assignment. Neither Party shall assign this Agreement without the written consent of the other Party, which consent shall not be unreasonably withheld. Notwithstanding the foregoing, either Party may assign this Agreement, without the other Party’s consent, to any affiliate, or in the event of a merger, acquisition, or sale of all or substantially all of its assets, provided that such assignee agrees in
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writing to perform the obligations of the assigning Party hereunder, whether incurred prior to or after such assignment.
11.4 Dispute Resolution. The Parties agree that prior to filing any lawsuit regarding any dispute arising out of or related to this Agreement, they shall meet and confer in good faith regarding possible alternative dispute resolution methods such as mediation or binding arbitration before a neutral mediator/arbitrator agreed upon by the parties. The venue for any mediation, arbitration, or lawsuit shall be conducted in a mutually agreed upon venue where the costs are equal to both parties.
11.5 Governing Law; Exclusive Venue; Waiver of Jury Trial. This Agreement shall be construed and enforced in accordance with the laws of the State of California. Each of the parties to this Agreement hereby irrevocably and unconditionally submits, for itself and its assets and properties, to the exclusive jurisdiction of any state or federal court sitting within the State of Delaware or the County of San Francisco, California, and any appellate court or court of appeals from any thereof, in any action or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby, or for recognition or enforcement of any judgment relating thereto. The Parties agree, waive all defenses relating to, and irrevocably consent to the jurisdiction and venue of all courts situated in Delaware or California for the resolution of all disputes related to this Agreement. To the extent permitted by applicable law, each Party also hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.
11.6 Independent Contractor. It is the express intent of the parties that Siphox Health is an independent contractor and not an employee, agent, joint venturer, or partner of Customer. Siphox Health shall be solely responsible for paying all necessary employment taxes for its personnel and to report employees’ income and withhold all required taxes from such income, as may be required by law.
11.7 Force Majeure. If either Party cannot perform any of its obligations because of any act of God, court order, fire, riot, war, or any and other causes beyond a Party’s reasonable control and which it could not have prevented through the exercise of reasonable care and precautions (a “Force Majeure Event”), then the non-performing Party shall: (i) immediately notify the other Party; (ii) take reasonable steps to resume performance as soon as possible; and (iii) not be considered in breach during the duration of the Force Majeure Event.
11.8 Severability. The invalidity or unenforceability of any one or more of this Agreement’s terms or provisions shall not impair or affect the validity or enforceability of the remaining terms or provisions, and this Agreement shall be construed and enforced as if the invalid or unenforceable term or provision had not been contained in this Agreement. If any term or provision contained in this Agreement shall be found to be excessively broad as to duration, scope, or subject, the term or provision shall be limited and reduced so as to be enforceable under applicable law.
11.9 Titles and Construction. The titles and captions in this Agreement are for convenience of reference only and shall not control or affect the interpretation or construction of any of its terms or conditions. This Agreement shall not be construed against or in favor of any Party based on the identity of the drafter of this Agreement, or any term or provision in it.
11.10 Third Party Beneficiaries. Except as specifically provided in this Agreement, a person who is not a party to this Agreement has no right to enforce any term of this Agreement but this does not affect any right or remedy of a third party which exists or is available apart from this Agreement.
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11.11 Other Remedies. The duties, obligations, rights and remedies under this Agreement are in addition to, and not in limitation of, those otherwise imposed by, or available under, applicable law.
11.12 Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original and all of which shall together constitute one and the same Agreement. This Agreement, to the extent signed and delivered by means of e-mail, a facsimile machine or other means of electronic transmission, shall be treated in all manner and respects and for all purposes as an original signature, agreement or instrument and shall be considered to have the same binding legal effect as if it were the original signed version thereof delivered in person.
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Terms of Service This Terms of Service (this “Terms of Service”) is entered into and effective as of the date of Onboarding Form signature (https://form.typeform.com/to/vlKHFz72) “Effective Date”, by and between Siphox Inc., a Delaware corporation with offices 111 Terrace Hall Ave, Burlington MA 01803 (“Siphox Health”), and the customer listed on the Onboarding Form(“Customer”, and together with Siphox Health, each, a “Party,” and collectively, the “Parties”). This Statement of Work includes and incorporates the attached Master Services Agreement (the “MSA” and together with this Terms of Service, the “Agreement”). Capitalized terms used but not defined in this Terms of Service have the meanings given to them in the MSA.
Term: 1 year from the Effective Date(the “Initial Term”), automatic renewal for successive one-year periods (each, a “Renewal Term,” and together with the Initial Term, the “Term”), unless earlier terminated pursuant to the Master Services Agreement. Customer is under no obligation to purchase additional test kits during this time.
Fee Schedule: Test kits and At-home kit testing services are provided by Siphox Health at a rate per testing kit specified in the Onboarding Form (unless noted otherwise), subject to adjustment as described below:
Kit
Components:
• White Roll End Front Tuck (REFT) style box with white insert to hold lancets
• Branded sleeve
• Branded instructions (vertical trifold)
• Alcohol pad
• Sterile gauze
• 3x Lancets
• Bandage
• Specimen collection system (collection card and biospecimen bag)
• Return mailer with USPS Priority Mail prepaid return label for sending sample to the lab
Price: $120 per test kit
Analytes:
• % Hemoglobin A1C
• Triglycerides
• Apolipoprotein A1 (APOA1)
• Apolipoprotein B (APOB)
• High-Sensitivity CRP
• Cortisol
• Vitamin D
• Insulin
• Estradiol (Sensitive)
• Ferritin
• DHEA-S
• Testosterone
• Folate
• HDL
• LDL
• Total Cholesterol
• Homocysteine
Turn-around time: <5 business days
Specimen: ADx100 Two Strip Card
Pricing from Siphox Health’s vendors changes from time to time, which may impact the fee amounts listed above. Accordingly, Siphox Health may revise this fee schedule by providing Customer with reasonable notice (but in no event less than 15 days’ notice prior to the effective date of any such change).
Payment: The Initial order of test kits shall be paid up front via the Siphox Enterprise Onboarding Form. Additional orders can be paid upfront via the Siphox Health B2B Portal. Customer can request to be invoiced monthly. In such cases payment will become due Net 10 days.
Siphox Health will first apply any available deposit amount against the total dollar amount of fees payable for Kits ordered.
The Parties have executed this Terms of Service to be effective as of the Effective Date.
MASTER SERVICES AGREEMENT
This Master Services Agreement (this “MSA”) is entered into and effective as of the date of form signature “Effective Date” by and between Siphox Inc., a Delaware corporation (“Siphox Health”), and the Customer listed on the attached Terms of Service (“Customer”). This MSA forms a part of and is deemed incorporated into each Terms of Service entered into between Siphox Health and Customer.
1. Definitions.
1.1 “Confidential Information” shall include any oral or written information of either Party, including any Users and/or affiliates, that is marked or otherwise identified, orally or in writing, as confidential or proprietary information. Such information shall include, without limitation, information relating to a Party’s employees, compensation structure, business operations, strategies, financial matters, current and prospective Customers, marketing and/or advertising, pricing, products, and any other item or data which a Party should recognize from the circumstances surrounding the disclosure to be confidential or proprietary in nature. Confidential Information of Customer shall include Customer Data; Confidential Information of Siphox Health shall include the Service; Confidential Information of each party shall include
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the terms and conditions of this Agreement as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party.
1.2 “Customer Data” means all data or information collected by the Services or submitted by Customer or its Users to the Platform or derived from Customer’s use of the Platform (including without limitation data related to Test Subjects), except for any Feedback (as defined below).
1.3 “Intellectual Property” means any and all patents, inventions, copyrights, works of authorship, trademarks, trade secrets, know-how, designs, and all other intellectual property rights (whether registered or unregistered and including the right to register, renew or extend such foregoing intellectual property) that are, in each case, protected under the laws of any governmental authority having jurisdiction.
1.4 “Platform” means Siphox Health’s website providing Customer and its Users with access to tracking and support for ordered Services.
1.5 “Test Subjects” means any of Customer’s clients for whom a Kit is ordered.
1.6 “Users” means individuals who are authorized by Customer, including employees and contractors of Customer, to use the Platform and who have accepted the Website Terms.
1.7 “Website Terms” means Siphox Health’s Terms of Use governing use of the Platform, as may be revised from time to time by Siphox Health.
2. Services.
2.1 Ordering. Customer shall submit Kit orders using the Platform (each, an “Order”). Prior to acceptance by Siphox Health, an Order must include at least the following: (a) identification of the Kits being ordered, (b) shipping information, and (c) any other information required for the Order as specified on the Platform. Following receipt of a validly submitted Order, and subject to automatic modification pursuant to Section 2.2, Siphox Health will provide the Services to the Test Subject for whom an Order is attributable at the rates described in the applicable Terms of Service. In accordance with Customer’s reasonable objectives, Siphox Health shall independently determine the method, details, and means of performing the Services (including through use of its lab partners and subcontractors). Customer shall have no right to determine or control the manner or method of performance of the Services.
2.2 Automatic Order Modification. In some circumstances Siphox Health may not be able to fulfill an Order as originally submitted by Customer. Such circumstances include: (a) the Test Subject being located in a location where Siphox Health’s lab partners are not authorized to receive or analyze samples; (b) the Test Subject not meeting inclusion criteria or meeting exclusion criteria (e.g. under 18 years old); (c) a Kit being lost or stolen on the way to the Test Subject or the Kit being lost or stolen on the way to one of Siphox Health’s lab partners; (d) the Kit is rejected for testing by Siphox Health’s lab partners; and (e) other situations out of Siphox Health’s control, such as evolving regulatory requirements or restrictions. In the event an Order is rejected at the outset (e.g. (a) and (b) above), Customer will not be charged and Customer may direct the Test Subject to a walk-in lab or alternative service. In the event an Order is accepted and the Kit is lost, stolen, or the lab partner rejects the sample, Siphox Health will automatically resend one replacement Kit to the Test Subject at no additional charge. Any additional replacement Kits requested by Customer will be invoiced at the rates described in the applicable Terms of Service.
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2.3 Forecasts. For orders above 500 test kits per month, customer will provide Siphox on a quarterly basis with a nonbinding 6 month rolling forecast of its estimated Kit requirements, which shall constitute good faith estimates of Customer’s anticipated requirements for Orders for the applicable time period.
2.4 Platform Access; Results Reporting. In addition to submitting Orders, Customer has the ability to track Orders, view instructional videos, and submit support requests through the Platform. Customer’s and its Users’ access and use of the Platform is governed by the Website Terms. Order results made available on the Platform will be reported in a format and using language approved by Siphox Health’s partner’s lab network and ordering physician network. Customer is solely responsible for using any other format or language used in reporting Order results to Test Subjects. Under no circumstance will Siphox Health be, nor will Customer make any statement directly or indirectly asserting that Siphox Health is, responsible for making diagnoses, prescribing treatments, or otherwise providing medical care or advice, whether to Test Subjects or otherwise.
3. Contractual Responsibilities.
3.1 Customer Responsibilities.
(i) Customer shall (a) be solely responsible for its and its Users’ compliance with the Website Terms and the terms of this Agreement, (b) be solely responsible for the accuracy, quality, integrity and legality of Customer Data and of the means by which it acquired Customer Data, (c) be solely responsible for any required notices, consents, and/or authorizations related to Customer’s or any User’s provision of, and Siphox Health’s processing of, Customer Data as part of the Services, (d) use commercially reasonable efforts to prevent unauthorized access to or use of the Platform, and notify Siphox Health promptly of any such unauthorized access or use, and (e) use the Services and the Platform only in accordance with any specifications or instructions provided to Customer by Siphox Health and applicable laws and government regulations. To the extent that Customer or any User discloses Customer Data to a third party that is not subject to any restriction on the disclosure of the Customer Data, Siphox Health is no longer responsible for the security, integrity, or confidentiality of such Customer data.
(ii) Customer shall not (a) use the Platform to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (b) use the Platform to store or transmit viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs, (c) interfere with or disrupt the integrity or performance of the Platform or third-party data contained therein, (d) attempt to gain unauthorized access to the Platform or its related systems or networks, (e) permit any third party, including affiliates, to access the Platform except as permitted herein or in the Terms of Service or as approved by Siphox Health in writing, (f) create derivative works based on the Platform, (g) reverse engineer the Platform, (h) access the Platform in order to (1) build a competitive product or service, or (2) copy any
3.2 Services Warranty. The Services shall be performed in accordance with commercially reasonable professional standards, practice, methods and techniques for similar services in effect at the time of such performance. Siphox Health warrants that the Services will be performed in a professional and workmanlike manner consistent with applicable industry standards. Customer must notify Siphox Health in writing (email acceptable) of any alleged failure by Siphox Health to perform Services in features, functions or graphics of the Platform.
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accordance with the foregoing warranty within thirty (30) days of the delivery of the affected Services. Siphox Health’s entire liability and Customer’s sole remedy for Siphox Health’s failure to perform in accordance with the above warranty shall be for Siphox Health to: (i) use commercially reasonable efforts to cure or correct such failure; or (ii) if Siphox Health is unable to cure or correct such failure, terminate the affected Services and refund that portion of fees paid by Customer to Siphox Health that corresponds to such failure to perform. Siphox Health complies with, and ensures that its lab partners comply with, the licensing and certification requirements under the Clinical Laboratory Improvement Amendments of 1988, as amended, the requirements pertaining to the maintenance and transmission of personal health information under the Health Insurance Portability and Accountability Act of 1996, as amended, and the applicable rules and regulations promulgated thereunder, requirements under state and federal Medicare and Medicaid programs, and other applicable state and federal statutes and regulations.
3.3 Insurance. Each Party shall maintain general liability, cyber liability, and errors and omissions insurance with a minimum $1,000,000 primary limit for each policy. In addition, Siphox Health shall obtain workers’ compensation insurance covering the performance of the Services by any of its employees as required by applicable law. Upon request from the other Party, each Party will provide a certificate of insurance evidencing such coverage and shall name the other Party as additional insureds.
3.4 Data Privacy; Access Security. Each Party maintains and has maintained reasonable physical, technical, and administrative security measures and policies designed to protect information that constitutes “personal information,” “personal data,” or “personally identifiable information” as defined in applicable laws and “protected health information” as defined under 45 C.F.R. § 160.103. Each Party shall ensure that the Services and access to the Platform shall only be as permitted and in accordance with the terms of this Agreement and shall implement security measures and procedures consistent with industry practice to ensure access to such information is so limited. As may be required, Siphox Health will enter into a Business Associate Agreement with Customer.
4. Compensation and Payment.
4.1 Fees. Customer shall pay Siphox Health fees for the Services at the rates and on the payment terms specified in the Terms of Service, including, if applicable, any deposit amounts or minimum commitments. All payments are due in U.S. Dollars within ten (10) days of Customer’s receipt of an invoice, unless otherwise specified in the Terms of Service.
4.2 Expenses. Except as otherwise provided in the Terms of Service, Siphox Health shall assume all expenses associated with rendering the Services. Any reimbursable expenses should be itemized and submitted on a monthly basis.
4.3 Late Payments. All invoiced amounts not paid by Customer when due will accrue interest at the rate of one percent (1%) per month or the maximum amount permitted by law, whichever is lower. Siphox Health may, in its sole discretion and upon ten (10) days prior written notice to Customer, suspend the provision of Services, as applicable, if any invoice is more than thirty (30) days past due. This right of suspension will not limit any other of Siphox Health’s rights or remedies related to Customer’s failure to pay.
4.4 Taxes. Customer shall be responsible for any taxes payable in connection with the Customer’s use of the Services (other than taxes based on Siphox Health’s income) and Customer hereby agrees to indemnify Siphox Health for any such taxes and related costs, interest and penalties paid or payable by Siphox Health. Fees reflected on any Terms of Service are exclusive of sales tax. Siphox Health
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shall add the amount of any sales taxes as separate line item(s) to the amounts invoiced to Customer under any Terms of Service and Customer shall remit such amounts to Siphox Health.
5. Proprietary Rights.
5.1 Siphox Health’s Rights. Siphox Health retains and reserves all rights, title and interest in and to its Intellectual Property (including without limitation the Platform, packaging design, and instructional material) and any derivative works created based on it. No rights are granted to Customer hereunder other than as expressly set forth herein.
5.2 Customer Data. Customer shall own and retain all right, title, and interest in and to Customer Data; provided, however, that Customer hereby grants to Siphox Health a worldwide, royalty-free, non-exclusive license to use Customer Data (i) for providing, maintaining and improving the Services and/or the Platform, (ii) for providing Customer with access to and information about customized features, new functionality, and partner integrations, and (iii) in aggregated and anonymized form, whether for Siphox Health’s internal business purposes or otherwise, including providing and optimizing its services and products and performing analytics. Siphox must have the explicit consent of the Test Subject to share Customer Data with third parties for any purpose other than (i) or (ii). The use of Customer Data in this case must be limited to the scope authorized by the Test Subject in the consent.
5.3 Feedback. Customer and its Users may provide to Siphox Health bug reports, suggestions, enhancement requests, recommendations or other feedback or content relating to the Services or the Platform (“Feedback”). By providing any Feedback, Customer hereby assigns to Siphox Health all right, title, and interest in and to the Feedback, if any. Nothing in this Agreement will restrict Siphox Health’s right to use, profit from, disclose, publish, keep secret, or otherwise exploit any Feedback for improving or otherwise modifying any of Siphox Health products or services, without compensating or crediting Customer or a User.
5.4 Residual Rights. The parties acknowledge and agree that Siphox Health is in the business of providing Services to third parties that are or may be substantially similar to the Services being provided to Customer. Customer agrees that Siphox Health, its employees, and agents will be free to use and employ their general skills, know-how, and expertise, and to use, disclose, and employ any generalized ideas, concepts, know- how, methods, techniques, or skills gained or learned during the course of any Services performed under this Agreement and retained in the unaided memory of Siphox Health’s employees or agents, subject to its obligations with respect to Customer’s Confidential Information pursuant to Section 6.
6. Confidential Information.
6.1 Limitations on Use. Each Party shall hold all Confidential Information in strict confidence and shall use such information solely for the purposes of fulfilling its respective obligations hereunder and for no other purpose, and shall not directly or indirectly disclose, provide, disseminate or otherwise make available any Confidential Information to any third party, in either case without the express prior written permission of the disclosing party. In addition to any other remedies that may be available in law, in equity or otherwise, the disclosing party shall be entitled to seek injunctive relief to prevent such unauthorized use or disclosure.
6.2 Reasonable Efforts. Each Party agrees to employ reasonable and customary business practices to protect and secure Confidential Information from unauthorized release or distribution
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and to limit access to Confidential Information of the other Party to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement and who are subject to confidentiality obligations no less stringent than those herein.
6.3 Exclusions. The nondisclosure and use obligations regarding Confidential Information (other than Customer Data) described herein shall have no effect: (i) to the extent that any item or data forming part of the Confidential Information is now in, or later enters, the public domain other than as a consequence of the unauthorized and/or unlawful disclosure by the receiving party or by any other person; (ii) to the extent that any item or data forming part of the Confidential Information is lawfully known by the receiving party prior to the provision of such information by the disclosing party; or (iii) to the extent that the receiving party is entitled to release Confidential Information as required to prosecute or defend any claim under this Agreement. In addition, if the receiving party is compelled by law to disclose Confidential Information of the disclosing party, it shall provide the disclosing party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at disclosing party’s cost, if the disclosing party wishes to contest the disclosure. If the receiving party is compelled by law to disclose the disclosing party’s Confidential Information as part of a civil proceeding to which the disclosing party is a party, and the disclosing party is not contesting the disclosure, the disclosing party will reimburse the receiving party for its reasonable cost of compiling and providing secure access to such Confidential Information.
6.4 Ownership and Return of Confidential Information. Except as otherwise provided herein, any Confidential Information disclosed under this Agreement is and remains the disclosing party’s absolute and exclusive property and is its unique and variable asset. Upon termination of this Agreement, or earlier upon the disclosing party’s request, the receiving party shall promptly return all Confidential Information, including all copies, that was received in a non-electronic form and shall destroy all information received electronically. Thereafter, the receiving party shall provide the disclosing party with written confirmation that all such information has been returned or destroyed.
6.5 Equitable Relief. If a receiving party discloses or uses (or threatens to disclose or use) any Confidential Information of the disclosing party in breach of confidentiality protections hereunder, such party agrees that such breach would cause disclosing party irreparable injury, for which monetary compensation would not provide adequate compensation, and disclosing party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, without proving actual damage or posting bond or other security, it being specifically acknowledged by the Parties that any other available remedies are inadequate.
7. Representations; Disclaimers.
7.1 Mutual Representations. Each party represents and warrants that it has the legal power to enter into this Agreement.
7.2 Additional Representations by Customer. Customer represents that (a) Customer is duly authorized to provide Customer Data to Siphox Health and Customer does so in compliance with applicable laws and legislation, (b) Siphox Health and its subcontractors can process such data, and (c) Siphox Health may disclose and transfer such data to any of its subcontractors for the purpose of satisfying its obligations to Customer.
7.3 Disclaimers. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 3.2, THE PLATFORM AND THE SERVICES ARE PROVIDED TO CUSTOMER “AS-IS” AND “AS AVAILABLE” AND CUSTOMER EXPRESSLY
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UNDERSTANDS AND AGREES THAT ALL USE OF THE PLATFORM AND THE SERVICES ARE AT CUSTOMER’S SOLE RISK. NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. SIPHOX HEALTH WILL NOT BE RESPONSIBLE FOR ANY DIRECT OR INDIRECT LOSSES INCURRED IN CONNECTION WITH CUSTOMER’S USE OR INABILITY TO USE THE PLATFORM OR THE SERVICES OR CUSTOMER’S RELIANCE ON OR USE OF THE PLATFORM OR THE SERVICES AND INFORMATION PROVIDED, OR THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETIONS OR ANY FAILURE OF PERFORMANCE. CUSTOMER’S USE OF THE PLATFORM AND SERVICES ARE AT CUSTOMER’S OWN RISK.
8. Indemnification; Limitation of Liability.
8.1 By Siphox Health. Siphox Health shall defend Customer against any claim, demand, suit, or proceeding (“Claim”) made or brought against Customer by a third party (a) resulting from or relating to Siphox Health’s gross negligence, willful misconduct or breach or violation of this Agreement, (b) resulting from Siphox Health’s violation of any applicable law or the rights of any User or Test Subject, or (c) alleging that the use of the Services or the Platform as permitted hereunder infringes or misappropriates the Intellectual Property rights of a third party, and shall indemnify Customer for any damages finally awarded against, and for reasonable attorneys’ fees incurred by, Customer in connection with any such Claim; provided that Customer (i) promptly gives Siphox Health written notice of the Claim, (ii) gives Siphox Health sole control of the defense and settlement of the Claim (provided that Siphox Health may not settle or defend any Claim unless it unconditionally releases Customer of all liability), and (iii) provides to Siphox Health all reasonable assistance, at Siphox Health’s expense.
8.2 By Customer. Customer shall defend Siphox Health and its officers, directors, employees, agents, contractors and subcontractors, lab partners, ordering physicians, suppliers, vendors, attorneys, insurers, successors and assigns (the “Siphox Indemnified Parties”) against any Claim made or brought against any Siphox Indemnified Party by a third party (a) resulting from or relating to Customer’s gross negligence, willful misconduct or breach or violation of this Agreement, (b) resulting from Customer’s violation of any applicable law or the rights of any User or Test Subject, or (c) alleging that the Customer Data, or Customer’s use of the Services or the Platform in violation of this Agreement infringes or misappropriates the Intellectual Property rights of a third party, and shall indemnify the Siphox Indemnified Parties for any damages finally awarded against, and for reasonable attorneys’ fees incurred by, any of them in connection with any such Claim; provided that Siphox Health (a) promptly gives Customer written notice of the Claim, (b) gives Customer sole control of the defense and settlement of the Claim (provided that Customer may not settle or defend any Claim unless it unconditionally releases the Siphox Indemnified Parties of all liability), and (c) provides to Customer all reasonable assistance, at Customer’s cost.
8.3 Sole and Exclusive Remedy. This Section 8 states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of Claim described in this section.
8.4 Limitation of Liability. EXCEPT FOR CUSTOMER’S OBLIGATIONS TO PAY FEES PURSUANT TO SECTION 4 ABOVE AND INDEMNIFICATION OBLIGATIONS OF EITHER PARTY PURSUANT TO THIS SECTION 8, IN NO EVENT SHALL EITHER PARTY’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER DUE TO NEGLIGENCE OR OTHERWISE, OR IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, (I) IN THE AGGREGATE, EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER
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HEREUNDER OR, (II) WITH RESPECT TO ANY SINGLE INCIDENT GIVING RISE TO LIABILITY, EXCEED THE AMOUNT PAID OR PAYABLE BY CUSTOMER HEREUNDER IN THE TWELVE MONTHS PRECEDING THE INCIDENT GIVING RISE TO LIABILITY. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
9. Non-interference with Business. During the Term, and for a period of one (1) year immediately following this Agreement’s termination or expiration, each Party agrees not to interfere with the business of the other Party in any manner. By way of example and not limitation, each Party agrees not to: (i) solicit or induce any employee or independent contractor to terminate or breach an employment, contractual, or other relationship with the other Party; or (ii) interfere with, impair, disrupt, or damage the other Party’s relationship with any of its current or prospective partners or customers.
10. Term and Termination; Suspension.
10.1 Term. This Agreement shall be effective as of the Effective Date and shall remain in effect for the Term set forth in the applicable Terms of Service.
10.2 Termination Without Cause. Either Party may terminate this Agreement and/or any Terms of Service issued hereunder upon thirty (30) days prior written notice to the other Party. If either Party terminates this Agreement without cause, then Customer shall pay, in full, any remaining unpaid amounts (including, if applicable, any minimum commitments) within thirty (30) days after delivery of written termination notice in accordance with the notice provisions set forth below. Further, if this Agreement is terminated by Customer without cause, any available Kit deposit shall be forfeited upon such termination.
10.3 Termination for Cause. Either Party may terminate this Agreement and/or any Terms of Service for cause (i) upon thirty (30) days prior written notice to the other Party of a material breach if such breach remains uncured at the expiration of such period, or (ii) immediately upon written notice if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors; provided, however, that Siphox Health may terminate this Agreement immediately for Customer’s non-payment of fees (including deposit amounts) when due, if such non-payment remains uncured for ten (10) days after notice thereof. If either Party terminates this Agreement for cause, then Customer shall pay, in full, any remaining unpaid amounts (including, if applicable, any minimum commitments) within thirty (30) days after delivery of written termination notice in accordance with the notice provisions set forth below. Further, if this Agreement is terminated by Siphox Health for cause, any available Kit deposit shall be forfeited upon such termination.
10.4 Suspension. Siphox Health may, at any time, stop (permanently or temporarily) providing the Services to Customer and/or disable Customer’s and its Users’ access to the Platform in Siphox Health’s sole discretion, and/or terminate all or some of Customer’s rights under this Agreement if:
(i) Customer or its Users has breached any provision of the Website Terms, and Siphox Health shall have no obligation to refund to Customer any fees already paid;
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(ii) there is an attack on the Platform, the Platform is accessed or manipulated by a third party without Siphox Health’s consent, or there is another event for which Siphox Health reasonably believes that the suspension of Customer’s access to the Platform is necessary to protect Siphox Health’s network or its other customers;
(iii) Siphox Health is required to do so by law (for example, where providing access to Customer or an User may be, or become, unlawful);
(iv) Siphox Health is, or anticipates, no longer providing the Services in the jurisdiction containing Customer’s principal place of business or from which access to the Services or the Platform may be made on Customer’s behalf; or
(v) the provision of the Services to Customer or its Users is, in Siphox Health’s opinion, no longer commercially viable.
10.5 Duties upon Termination. Upon termination of this Agreement for any reason, Siphox Health agrees to cease all work on behalf of Customer and promptly deliver all Confidential Information to Customer. Customer shall promptly pay Siphox Health all fees, including any remaining unpaid amount (including, if applicable, any minimum commitments) and reimbursable expenses incurred by Siphox Health to the date of termination. Customer’s payment obligation for any fees and reimbursable expenses owed to Siphox Health shall survive the termination of this Agreement.
10.6 Survival. Sections 1, 4 through 9, 10.5, 10.6, and 11 shall survive any termination or expiration of this Agreement.
11. General Provisions.
11.1 Notices. Any notice made pursuant to this Agreement will be in writing and will be deemed delivered on (i) the date of delivery if delivered personally, (ii) three calendar days after mailing if duly deposited in registered or certified mail or express commercial carrier, or (iii) upon confirmed receipt by email, addressed to the Party to be notified at the address or email address shown in the Terms of Service or on the signature page, or to such other address or email address as may be hereafter designated by a Party.
11.2 Entire Agreement; Amendments; Waiver. This Agreement, including the Terms of Service and the Website Terms (as applicable to access of the Product by Customer), constitutes the entire agreement between the Parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. In the event of a conflict or inconsistency between any term of this MSA and the Terms of Service, the terms of the Terms of Service shall control. This Agreement may be amended or modified only by the mutual written agreement of authorized representatives of the Parties. No term or provision hereof shall be considered waived by a Party, and no breach excused by a Party, unless such waiver or consent is in writing signed by such Party. The waiver by a Party of, or consent by a Party to, a breach of any provision of this Agreement by the other Party shall not operate or be construed as a waiver or excuse of any other or subsequent breach.
11.3 Assignment. Neither Party shall assign this Agreement without the written consent of the other Party, which consent shall not be unreasonably withheld. Notwithstanding the foregoing, either Party may assign this Agreement, without the other Party’s consent, to any affiliate, or in the event of a merger, acquisition, or sale of all or substantially all of its assets, provided that such assignee agrees in
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writing to perform the obligations of the assigning Party hereunder, whether incurred prior to or after such assignment.
11.4 Dispute Resolution. The Parties agree that prior to filing any lawsuit regarding any dispute arising out of or related to this Agreement, they shall meet and confer in good faith regarding possible alternative dispute resolution methods such as mediation or binding arbitration before a neutral mediator/arbitrator agreed upon by the parties. The venue for any mediation, arbitration, or lawsuit shall be conducted in a mutually agreed upon venue where the costs are equal to both parties.
11.5 Governing Law; Exclusive Venue; Waiver of Jury Trial. This Agreement shall be construed and enforced in accordance with the laws of the State of California. Each of the parties to this Agreement hereby irrevocably and unconditionally submits, for itself and its assets and properties, to the exclusive jurisdiction of any state or federal court sitting within the State of Delaware or the County of San Francisco, California, and any appellate court or court of appeals from any thereof, in any action or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby, or for recognition or enforcement of any judgment relating thereto. The Parties agree, waive all defenses relating to, and irrevocably consent to the jurisdiction and venue of all courts situated in Delaware or California for the resolution of all disputes related to this Agreement. To the extent permitted by applicable law, each Party also hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.
11.6 Independent Contractor. It is the express intent of the parties that Siphox Health is an independent contractor and not an employee, agent, joint venturer, or partner of Customer. Siphox Health shall be solely responsible for paying all necessary employment taxes for its personnel and to report employees’ income and withhold all required taxes from such income, as may be required by law.
11.7 Force Majeure. If either Party cannot perform any of its obligations because of any act of God, court order, fire, riot, war, or any and other causes beyond a Party’s reasonable control and which it could not have prevented through the exercise of reasonable care and precautions (a “Force Majeure Event”), then the non-performing Party shall: (i) immediately notify the other Party; (ii) take reasonable steps to resume performance as soon as possible; and (iii) not be considered in breach during the duration of the Force Majeure Event.
11.8 Severability. The invalidity or unenforceability of any one or more of this Agreement’s terms or provisions shall not impair or affect the validity or enforceability of the remaining terms or provisions, and this Agreement shall be construed and enforced as if the invalid or unenforceable term or provision had not been contained in this Agreement. If any term or provision contained in this Agreement shall be found to be excessively broad as to duration, scope, or subject, the term or provision shall be limited and reduced so as to be enforceable under applicable law.
11.9 Titles and Construction. The titles and captions in this Agreement are for convenience of reference only and shall not control or affect the interpretation or construction of any of its terms or conditions. This Agreement shall not be construed against or in favor of any Party based on the identity of the drafter of this Agreement, or any term or provision in it.
11.10 Third Party Beneficiaries. Except as specifically provided in this Agreement, a person who is not a party to this Agreement has no right to enforce any term of this Agreement but this does not affect any right or remedy of a third party which exists or is available apart from this Agreement.
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11.11 Other Remedies. The duties, obligations, rights and remedies under this Agreement are in addition to, and not in limitation of, those otherwise imposed by, or available under, applicable law.
11.12 Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original and all of which shall together constitute one and the same Agreement. This Agreement, to the extent signed and delivered by means of e-mail, a facsimile machine or other means of electronic transmission, shall be treated in all manner and respects and for all purposes as an original signature, agreement or instrument and shall be considered to have the same binding legal effect as if it were the original signed version thereof delivered in person.
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