Last revised: March 2022
Our official legal language:
Important – please read carefully the terms of this Security SaaS License Agreement (the “Agreement”). By clicking “I agree”, “accept” or other similar button or by installing, accessing, and/or using the Program or the App, you expressly acknowledge and agree that you or the company you represent, (“you” or “Customer”) are entering into a legal agreement with Eleos Health, Inc., a company incorporated under the laws of the state of Delaware with offices located at 1 Broadway Cambridge, MA 02142, together with its affiliates (hereinafter “Eleos”) (you and Eleos each, a “Party” and collectively, the “Parties”) and have understood and agree to comply with, and be legally bound by, the terms and conditions of this Agreement as of the date of its acceptance by you (the “Effective Date”). Do not select “I agree” or install or use the Program or the App until you have carefully read, understood, and agreed to these terms. Furthermore, you hereby waive any rights or requirements under any laws or regulations in any jurisdiction which require an original (non-electronic) signature or delivery or retention of non-electronic records, to the extent permitted under applicable law.
- License. Subject to the terms and conditions of this Agreement, Eleos hereby grants Customer a limited, non-exclusive, non-sublicensable, non-transferable, subscription-based and revocable license to: (a) remotely access (i.e. on a SaaS basis) the Eleos software (the “Program”) and use it for internal purposes; and (b) download, install and use Eleos’ mobile software application (“App”) for internal installation purposes. Unless otherwise indicated, the term “Program” also includes the App and any relevant documentation (including inter alia the Eleos Business Associate Agreement attached hereto as Exhibit A (the “BAA”)) provided to Customer in connection with their operation (“Documentation”). Customers may only use the Program in accordance with the Documentation, subject to the use limitations indicated in Customer’s proposal or order attached hereto as Exhibit B (“Proposal”), the BAA and applicable laws.
- Payment. The provision of the Services is conditioned on Customer’s payment in full of the applicable fees set forth in the Proposal. All fees and other amounts paid hereunder are non-refundable. Any amount not paid when required to be paid hereunder shall accrue interest on the rate of one and a half percent (1.5%) per month. All amounts payable under this Agreement are exclusive of all sales, use, value-added, withholding, and other direct or indirect taxes, charges, levies and duties.
- Customer Account. The Program may only be used through a Customer account (the “Account”). Such Account may be accessed solely by Customer’s employees or service providers who are explicitly authorized by Customer to use the Program in accordance with the Proposal (each, a “Permitted User”). The customer will ensure that the Permitted Users keep the Account login details secure at all times and comply with the terms of this Agreement; and will be fully liable and responsible for any breach of this Agreement by a Permitted User. Unauthorized access or use of the Account or the Program must be immediately reported to the Eleos.
- Prohibited Uses. Except as specifically permitted herein, without the prior written consent of Eleos, Customer must not, and shall not allow any Permitted User or any third party to, directly or indirectly: (i) copy, modify, create derivative works of or distribute any part of the Program (including by incorporation into its products); (ii) sell, license (or sub-license), lease, assign, transfer, pledge, or share Customer’s rights under this Agreement with any third party; (iii) use any “open source” or “copyleft software” in a manner that would require Eleos to disclose the source code of the Program to any third party; (iv) disclose the results of any testing, use or benchmarking of the Program to any third party (including but not limited to any recordings made via the Program); (v) disassemble, decompile, reverse engineer or attempt to discover the Program’s source code or underlying algorithms; (vi) use the Program in a manner that violates or infringes any rights of any third party, including but not limited to, privacy rights, publicity rights or intellectual property rights; (vii) remove or alter any trademarks or other proprietary notices related to the Program; (viii) circumvent, disable or otherwise interfere with security-related features of the Program or features that enforce use limitations; (ix) export, make available or use the Program in any manner prohibited by applicable laws (including without limitation export control laws); (x) use the Program in a manner that violate any applicable law, including the Health Insurance Portability and Accountability Act (“HIPAA”), and/or (xi) transmit any malicious code (i.e., software viruses, Trojan horses, worms, malware or other computer instructions, devices, or techniques that erase data or programming, infect, disrupt, damage, disable, or shut down a computer system or any component of such computer system) or other unlawful material in connection with Eleos’ Product.
- Customer Data and Analytics Information. As Eleos operates the Services, Eleos may monitor and process data (either automatically and/or manually) that Customer will upload to the Program and/or that may be collected as a result of Customer’s use of the program, regarding the Customer and/or its patients (the “Customer Data”). As the exclusive owner of the Customer Data, Customer represents that to the extent the Customer Data includes any personally identifiable information or protected health information, as defined in the HIPPA (“PHI”), Customer has received the required consents or permits and has acted in compliance with applicable privacy laws (including but not limited to HIPAA), as to allow Eleos to use the Customer Data solely in order to perform Eleos’ Services. Customer shall defend, hold harmless and indemnify Eleos and (including, without limitation, its employees, officers, directors, subcontractors and agents) from and against any and all losses, penalties, fines, damages, liabilities, settlements, costs and expenses, including reasonable attorneys’ fees, as a result of Customer’s breach or failure to meet its above representation. Eleos may, however, be required to disclose the Customer Data: (a) to satisfy any applicable law, regulation, legal process, subpoena or governmental request; or (b) to collect, hold and/or manage the Customer Data through Eleos’ authorized third-party service providers as reasonable for business purposes, which may be located in a country that does not have the same data protection laws as the data subject’s jurisdiction. Notwithstanding the foregoing, any anonymous information, which is derived from the use of the Program (i.e., metadata, aggregated and/or analytics information which is not personally identifiable information (“Analytics Information”) may be used by Eleos for any purpose, including for providing the Service, for development, and/or for statistical purposes. For the removal of doubt, Eleos will be the exclusive owners of the Analytics Information. Eleos may store Customer Data for the term Eleos views such data as required.
- Warranties. Each Party represents and warrants that it is duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation or organization; and that the execution and performance of this Agreement will not conflict with other agreements to which it is bound or violate applicable law.
- Intellectual Property Rights. Eleos is and shall remain the sole owner of (i) all right, title, and interest, including any intellectual property rights related to the Program and any and all improvements and derivative works, and (ii) any know-how, including methods, logic, techniques, processes, or technologies embodied or relating to the Program, including such that was created and/or developed during or prior to the provision of the Services (including in case of a trial or evaluation of the Product by Customer), as well as any developments, improvements, continuations or derivations thereof. This Agreement does not convey to Customer any interest in or to the Program other than a limited right to use the Program in accordance with Section 1. Nothing herein constitutes a waiver of the Eleos’ intellectual property rights under any law.
If prior or during the Term, Eleos receives any feedback (e.g., questions, comments, suggestions or the like) regarding any of the Services (collectively, “Feedback”), all rights, including intellectual property rights in such Feedback, shall belong exclusively to Eleos and that such shall be considered Eleos’ Confidential Information; and Customer hereby irrevocably and unconditionally transfers and assigns to Eleos without all intellectual property rights it has in such Feedback and waives any and all moral rights that Customer may have in respect thereto.
- Third-Party Components. The Program may use or include third party software, files, libraries or components that are subject to third party open source license terms. A list of such components will be provided on demand and may be updated from time to time. Requests of open source code of applicable third-party components may be forwarded to: [email protected]
- Confidentiality. Each Party may have access to certain non-public and/or proprietary information of the other Party, in any form or media, including without limitation trade secrets and other information related to the products, software, technology, data, know-how, or business of the other Party, and any other information that a reasonable person should have reason to believe is proprietary, confidential, or competitively sensitive (the “Confidential Information”). Each Party shall take reasonable measures, at least as protective as those taken to protect its own confidential information, but in no event less than reasonable care, to protect the other Party’s Confidential Information from disclosure to a third party. Neither Party shall use or disclose the Confidential Information of the other Party except as expressly permitted under this Agreement or by applicable law. All right, title and interest in and to Confidential Information are and shall remain the sole and exclusive property of the disclosing Party.
- LIMITED WARRANTIES. OTHER THAN AS EXPLICITLY STATED IN THIS AGREEMENT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE PROGRAM, DOCUMENTATION, SERVICES AND ANY REPORTS GENERATED AS A RESULT OF THE SERVICES (“REPORTS”) ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. ELEOS DOES NOT WARRANT THAT THE PROGRAM, THE SERVICES AND/OR THE REPORTS WILL MEET CUSTOMER’S REQUIREMENTS AND DOES NOT WARRANT THAT THE PROGRAM, SERVICES AND/OR THE REPORTS WILL BE UNINTERRUPTED, ERROR-FREE, OR THAT DEFECTS WILL BE CORRECTED. ELEOS EXPRESSLY DISCLAIMS ALL EXPRESS WARRANTIES AND ALL IMPLIED WARRANTIES, INCLUDING MERCHANTABILITY, NON-INTERFERENCE, FITNESS FOR A PARTICULAR PURPOSE.
- LIMITATION OF LIABILITY. ELEOS SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO ANY LOSS OF REVENUE, REPUTATION, OR PROFITS, DATA LOSS, OR DATA USE.
ELEOS’ MAXIMUM LIABILITY FOR ANY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT OR TORT, OR OTHERWISE, SHALL IN NO EVENT EXCEED, IN THE AGGREGATE, THE TOTAL AMOUNTS ACTUALLY PAID TO ELLOS IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. FOR CLARITY.
- Indemnification. Eleos acknowledges and agrees to defend, at its expense, any third party action or suit brought against the Customer alleging that the Program, when used as permitted under this Agreement, infringes intellectual property rights of a third party (“IP Infringement Claim”); and Eleos will pay any damages awarded in a final judgment against the Customer that are attributable to any such claim, provided that (i) the Customer promptly notifies Eleos in writing of such claim; and (ii) the Customer grants Eleos the authority to solely handle the defense or settlement of any such claim and provides Eleos with all reasonable information and assistance, at Eleos’ expense. Eleos will not be bound by any settlement that the Customer enters into without Eleos’ prior written consent.
If the Program becomes, or in Eleos’ opinion is likely to become, the subject of an IP Infringement Claim, then Eleos may, at its sole discretion: (a) procure for the Customer the right to continue using the Program; (b) replace or modify the Program to avoid the IP Infringement Claim; or (c) if options (a) and (b) cannot be accomplished despite Ellos’ reasonable efforts, then the Eleos may terminate this Agreement and in such event accept return of the affected Program and provide a pro-rata refund for any amount pre-paid by Customer for such returned Program for the remaining unused period of the license. Notwithstanding the foregoing, Eleos shall have no responsibility for IP Infringement Claims resulting from or based on: (i) modifications to the Program made by a party other than Eleos or its designee; (ii) the Customer’s failure to implement software updates provided by Eleos specifically to avoid infringement; or (iii) combination or use of the Program with equipment, devices or software not supplied or authorized by Eleos or not in accordance with the Documentation. This Section states Eleos’ entire liability, and Customer’s exclusive remedy, for claims or alleged or actual infringement
- Term and Termination. This Agreement shall enter into force and effect on the Effective Date and shall remain in full force and effect for the period specified in the Proposal (the “Term”). Either Party may terminate this Agreement with immediate effect if the other Party materially breaches this Agreement and such breach remains uncured fifteen (15) days after having received written notice thereof. Upon termination or expiration of this Agreement: (i) Program (including the Local Software) license granted to Customer under this Agreement shall expire, and Customer shall discontinue any further use and access thereof; (ii) Customer shall immediately delete the App and delete and dispose of all copies of the Documentation; (iii) within 30 days from the termination date, Eleos shall permanently delete all Customer Data, without affecting any of the Eleos’ rights to the Analytics Information; and (iv) any sums paid by Customer until the date of termination are non-refundable, and Customer shall not be relieved of its duty to discharge in full all due sums owed by Customer to Eleos under this Agreement until the date of termination or expiration hereof. The provisions of this Agreement that, by their nature and content, must survive the termination of this Agreement in order to achieve the fundamental purposes of this Agreement shall so survive. The termination of this Agreement shall not limit Eleos from pursuing any other remedies available to it under applicable law.
- Miscellaneous. This Agreement – including any BAA, Proposals, and any exhibits attached or referred hereto – represents the complete agreement concerning the subject matter hereof and may be amended only by a written agreement executed by both Parties. The failure of either Party to enforce any rights granted hereunder or to take action against the other Party in the event of any breach hereunder shall not be deemed a waiver by that Party as to subsequent enforcement of rights or subsequent actions in the event of future breaches. If any provision of this Agreement is held to be unenforceable, such provision shall be reformed only to the extent necessary to make it enforceable. Any use of the Program by an agency, department, or other entity of the United States government shall be governed solely by the terms of this Agreement. Neither Party may assign its rights or obligations under this Agreement without the prior written consent of the other Party, provided that Eleos may assign this Agreement to the successor of all or substantially all of such Party’s assets or business (including a merger or acquisition). This Agreement shall be governed by and construed under the laws of the State of Delaware, without reference to principles and laws relating to the conflict of laws. The competent courts of Delaware shall have the exclusive jurisdiction with respect to any dispute and action arising under or in relation to this Agreement. This Agreement does not, and shall not be construed to create any relationship, partnership, joint venture, employer-employee, agency, or franchisor-franchisee relationship between the Parties. Eleos will not be liable for any delay or failure to provide the Services resulting from circumstances or causes beyond the reasonable control of Eleos. This Agreement may be executed in electronic counterparts, each of which counterpart, when so executed and delivered, shall be deemed to be an original and all of which counterparts, taken together, shall constitute but one and the same agreement.
Project Parachute: Eleos does not (a) recommend or endorse any of the Services of the introduced therapist (the “Introduced Therapist”) under Project Parachute, or (b) make any representations or warranties about the training or skill of any Introduced Therapist or to the nature and quality of the Services provided following the introduction made by Eleos. You will be introduced based solely on the information you submit to through the foregoing email address. Eleos does not receive any additional fees from the therapist for introducing them through the Services.
EXCEPT AS PROVIDED BY LAW, AND WITHOUT LIMITATION AND WITHOUT DEROGATING FROM THE GENERALITY OF THE FOREGOING: ELEOS SHALL NOT BE LIABLE FOR THE ACTS OR OMISSIONS OF THERAPIST. ELEOS AND ANY THIRD PARTIES MENTIONED ON THIS SITE ARE NEITHER RESPONSIBLE NOR LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE, OR OTHER DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, THOSE RESULTING FROM LOST PROFITS, LOST DATA, OR BUSINESS INTERRUPTION) ARISING OUT OF OR RELATING IN ANY WAY TO THE SERVICES PROVIDED BY TH E INTRODUCED THERAPIST, CONTENT OR INFORMATION PROVIDED BY THEM OR WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY AND WHETHER OR NOT ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU HEREBY AGREE TO WAIVE, TO THE FULLEST EXTENT PERMITTED BY LAW, ALL LAWS THAT LIMIT THE EFFICACY OF SUCH INDEMNIFICATIONS OR RELEASES.