These General Terms and Conditions (the “Agreement”) are made and entered into between Komodo Health, Inc., a Delaware corporation and its affiliates (“Komodo”) and the counterparty set forth in the applicable Order Form referencing this Agreement (“Customer” and together with Komodo, each a “Party” and collectively, the “Parties”). This Agreement is entered into as of the date of first execution of an Order Form between Komodo and Customer. In the event of a separate executed agreement between Komodo and Customer, the terms and conditions of the separate agreement shall prevail, Section 15 of this Agreement notwithstanding.
1.1. For the purposes of this Agreement, the following definitions shall apply: “Komodo Data” shall mean certain third-party de-identified patient information data and healthcare provider data collected by Komodo from various sources and maintained in the Komodo database in an aggregated fashion, including but not limited to clinical data, publications, clinical trials, open payments (Sunshine Act) and healthcare provider demographic data (including healthcare provider specialty and provider organization affiliations) and made available to Users through the Platform and/or Reports. “Platform” shall mean one or more of the Komodo proprietary data aggregation and analytics platforms identified in an Order Form that integrates Komodo Data and enables advanced analytics, it being agreed between the parties that the term “Platform” as used herein shall apply to all such platforms. “Reports” shall mean reports generated based on Komodo Data and/or through access to the Platform.
1.2. Komodo will provide to Customer the services (collectively, the “Service”) described in various statement of works agreed to by the Parties under this Agreement (collectively, the “Order Forms"), according to the terms of this Agreement. Service may include access to Komodo’s Platform and Reports, and professional services, as detailed in the applicable Order Form. Each Order Form shall be subject to the terms and conditions of this Agreement.
1.3. Subject to the terms, conditions and limitations set forth in Agreement, Komodo grants to Customer a limited, non exclusive, personal, non-transferable, non-sublicensable, revocable license for authorized employees of Customer (collectively, the “Users”) located in the country or countries identified in the applicable Order Form (the “Territory”) to access and use the Service (including any Reports) during the Term (as defined below) for Customer’s own internal business purposes as permitted by this Agreement, and provided that such Users are subject to restrictions on their use and disclosure of Komodo Data that are at least as restrictive as those contained in this Agreement. For the avoidance of doubt, Customer shall not provide or allow access, whether knowingly or unknowingly, to the Komodo Data, the Platform, the Reports or any other aspect of the Service to (i) any User that is not physically located in the Territory at the time the User accesses any aspect of the Service, or (ii) any third party that is not a User (including, but limited to, independent contractors, agents, affiliates, etc. of the Customer) unless Komodo has approved of such third party’s access in writing and such third party shall have executed Komodo’s standard third party license agreement, and further provided that Customer shall be responsible for the acts or omissions of any such third party as if they were the acts or omissions of Customer.
1.4. The Platform, Komodo Data and all other intellectual property related thereto shall remain the sole property of Komodo and Customer shall obtain no rights therein other than as expressly set forth herein. Komodo shall have sole and exclusive ownership of any Reports generated through the Platform. Komodo reserves all rights not expressly granted to Customer in this Agreement.
1.5. Subject to Customer’s compliance with the terms of this Agreement, Customer is permitted to use physician email addresses made available in the Platform or Reports (each, an “HCP Email”, and collectively, the “HCP Emails”) to send direct marketing email communications to individual physicians, provided that (i) Customer only send email communications to one physician at a time, and (ii) Customer’s use of the HCP Emails is in accordance with all applicable law, rules and regulations, including but not limited to The Controlling the Assault of Non-Solicited Pornography And Marketing Act of 2003 and the Federal Food, Drug, and Cosmetic Act. The HCP Emails are provided in the Platform and Reports “as-is”, and Komodo and its suppliers hereby disclaim any and all warranties and conditions with respect to any HCP Email.
1.6. When using the Service, the Platform, or the Reports, Customer shall not, and will ensure that its Users do not, except as permitted by Komodo: (a) use the Service, the Platform, or the Reports in any manner that is not described in any Service descriptions or documentation provided by Komodo to Customer as part of the Service (the “Documentation”); (b) decompile, decipher, disassemble, translate, modify, prepare derivative works of, reverse engineer or otherwise attempt to access the source code of the Service, (c) upload any Customer Data (as defined below) that is unlawful, harmful, abusive, tortious, defamatory, vulgar, libelous, invasive of another’s privacy or right of publicity, or objectionable; (d) infringe the intellectual property rights of any third party ; (e) interfere with the Komodo systems used to host or provide the Service, or disobey any requirements or regulations of networks connected to the Service made known to Customer; (f) license, sell, rent, lease, lend, transfer, outsource, act as a service bureau for, or otherwise provide access to the Services or utilize the Services for the benefit of any third party other than as explicitly permitted under this Agreement or in the applicable Order Form, or fail to exercise commercially reasonable efforts to prevent the same (g) provide, or make available, any links, hypertext or otherwise (other than a "bookmark" from a Web browser) to the Service, or any part thereof; (h) circumvent the user authentication or security of the Service or any host, network, or account related thereto; (i) use any application programming interface to access Service; (j) mirror any server used in connection with the Service; (k) make any use of the Service that violates any applicable local, state, national, international or foreign law; (l) allow any third party to use any user identification(s), code(s), password(s), procedure(s) or user keys issued to, or selected by, Customer for access to the Service; or (m) use the Service in any manner that Komodo reasonably believes is abusive including without limitation attempting to replicate significant portions of the Services in order to circumvent this Agreement or any Order Form. For purposes of this Agreement, “Customer Data” means any materials, data and information provided by Customer or its Users to Komodo in connection with the Service, including without limitation data derived by Komodo relating to Customer or its Users’ usage of the Service. Customer is responsible for the acts and omissions of its Users as if they were the acts and omissions of Customer. Rights of any User to utilize the Service may not be shared or used by more than one individual. In addition, a User’s access information and privileges shall not be transferred from one individual to another unless the original User no longer requires and is no longer permitted access to the Services, as a result of which that individual is no longer a User.
1.7. The re-identification or attempted re-identification of any de-identified patient information contained in the Komodo Data is prohibited by certain Data Protection Legislation (defined below), including but not limited to Section 1798.148 of the California Consumer Privacy Act of 2018. Customer must not link any de-identified Komodo Data to any other identifiable source of information and must not in any other way attempt to identify any individual whose de-identified data is included in the Komodo Data. Customer must notify Komodo of any breaches or violations of this Agreement and will fully cooperate with Komodo's efforts to mitigate any harm that may result from such violations.
1.8. The Service may contain links to external Web sites and information provided on external websites by Komodo suppliers and third-parties. Komodo is not responsible for the data, content, or functionality of any linked Web site, or any changes or updates to those sites. Any article, information, data, code, text, software, documentation, graphics, image, marketing material, video, photograph, message, or posting to any forum, wiki, or blog included in, linked to from, or on the Service, whether publicly posted or privately transmitted, is the sole responsibility of the person or entity providing the data, content, or functionality.
1.9. During the Term and a period of six months following termination, Komodo will have the right to audit Customer’s compliance with this Agreement and with any applicable Order Forms. Any such audit shall be at a mutually agreed time, during Customer’s business hours and subject to Customer's applicable confidentiality obligations to third parties.
- CUSTOMER RESPONSIBILITIES AND OBLIGATIONS.
2.1. Customer hereby grants to Komodo the nonexclusive license to use Customer Data to provide the Service during the Term of this Agreement, to improve Komodo products and services and to provide Customer with reports on its use of the Service. Customer also grants to Komodo a nonexclusive, perpetual, irrevocable license to use any Customer Data in aggregated and/or anonymized form for any purpose. By making available Customer Data for use in connection with the Service, Customer warrants that it has all rights, licenses and consents necessary to provide the Customer Data to Komodo for use in connection with, and for the purposes contemplated by the Service (including without limitation any consents required under any applicable data protection legislation, including the General Data Protection Regulation 2016/679 (and any implementing national legislation), the Privacy and Electronic Communications (EC Directive) Regulations 2003, the Regulation of Investigatory Powers Act 2000, and the Data Protection (Processing of Sensitive Personal Data) Order 2000 (collectively the "Data Protection Legislation").
2.2. Customer is solely responsible for (a) providing its Customer Data to Komodo; (b) maintenance of the Customer Data supplied by it to Komodo; (c) any third-party claims based upon the Customer Data; and (d) Customer's use of the Platform and the Reports. Customer hereby represents and warrants to Komodo that (i) the Customer Data is free of all viruses, Trojan horses, and other elements which could interrupt or harm the systems or software used to provide the Service; and (ii) Customer, its Users, and all Customer Data will comply with all applicable laws, rules, and regulations.
2.3. Customer is responsible for the connection to the Service, including the internet connection.
- CONFIDENTIALITY. In connection with this Agreement each party (as the "Disclosing Party") may disclose or make available Confidential Information to the other party (as the "Receiving Party"). Subject to Section 3.1 below, "Confidential Information" means information in any form or medium (whether oral, written, electronic or other) that the Disclosing Party considers confidential or proprietary, including Komodo Data, information consisting of or relating to the Disclosing Party’s technology, trade secrets, know-how, business operations, plans, strategies, customers, and pricing, and information with respect to which the Disclosing Party has contractual or other confidentiality obligations, in each case whether or not marked, designated or otherwise identified as "confidential". Without limiting the foregoing: all Komodo Materials are the Confidential Information of Komodo and the terms and existence of this Agreement are the Confidential Information of Komodo.
3.1. Exclusions. Confidential Information does not include information that the Receiving Party can demonstrate by written or other documentary records: (i) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information's being disclosed or made available to the Receiving Party in connection with this Agreement; (ii) was or becomes generally known by the public other than by the Receiving Party's or any of its Representatives' noncompliance with this Agreement; (iii) was or is received by the Receiving Party on a non-confidential basis from a third party that was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; or (iv) the Receiving Party can demonstrate by written or other documentary records was or is independently developed by the Receiving Party without reference to or use of any Confidential Information.
3.2. Protection of Confidential Information. The Receiving Party shall for the duration of the Term and a period of five (5) years thereafter: not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with this Agreement; except as may be permitted by and subject to its compliance with Section 3.3, not disclose or permit access to Confidential Information other than to its affiliates, or to any of such Receiving Party’s or its affiliate’s employees, officers, directors, partners or shareholders (its “Representatives”) who: (i) need to know such Confidential Information for purposes of the Receiving Party's exercise of its rights or performance of its obligations under and in accordance with this Agreement; and (ii) are bound by written confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this Agreement; safeguard the Confidential Information from unauthorized use, access or disclosure using at least the degree of care it uses to protect its most sensitive information and in no event less than a reasonable degree of care; and ensure its Representatives' compliance with, and be responsible and liable for any of its Representatives' non-compliance with, the terms of this Section 3.
3.3. Compelled Disclosures. If the Receiving Party or any of its Representatives is compelled by applicable Law to disclose any Confidential Information then, to the extent permitted by applicable Law, the Receiving Party shall: (a) promptly, and prior to such disclosure, notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy or waive its rights under Section 3.2; and (b) provide reasonable assistance to the Disclosing Party, at the Disclosing Party's sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure. If the Disclosing Party waives compliance or, after providing the notice and assistance required under this Section 3.2, the Receiving Party remains required by Law to disclose any Confidential Information, the Receiving Party shall disclose only that portion of the Confidential Information that the Receiving Party is legally required to disclose and, on the Disclosing Party's request, shall use commercially reasonable efforts to obtain assurances from the applicable court or other presiding authority that such Confidential Information will be afforded confidential treatment.
- PAYMENT TERMS.
4.1. Any fees payable in connection with Customer’s use of the Service shall be paid by Customer on the terms set forth in the applicable Order Form.
4.2. Customer shall pay all invoices within 30 days of the date of the invoice. A finance charge of 1.5% per month or the highest amount allowed by law, whichever is less, shall be assessed on all payments that are past due.
4.3. Customer shall not have any right to withhold or reduce fees due under this Agreement or set off any amount against fees owed.
4.4. Customer shall be responsible for any taxes payable in connection with the Customer’s use of the Service (other than taxes based on Komodo’s income) and Customer hereby agrees to indemnify Komodo for any such taxes and related costs, interest and penalties paid or payable by Komodo. Fees reflected on Order Forms are exclusive of sales tax. Komodo shall add the amount of any sales taxes as separate line item(s) to the amounts invoiced to Customer hereunder and Customer shall remit such amounts to Komodo. The parties agree that all Order Forms entered into pursuant to this Agreement will be entered into by a US entity of Customer. To the extent Customer wishes to enter into Order Forms from a non-US entity, the parties will mutually agree on tax treatment for such Order Forms and Komodo shall not be responsible for any sales, use, VAT or similar taxes associated with such Order Form to accept the withholding of tax from the amounts reflected in such Order Forms unless mutually agreed.
- TERM, TERMINATION AND TERMINATION SUPPORT.
5.1. The term of this Agreement shall commence on the Effective Date and continue for five (5) years ("Term"), and shall automatically renew for additional twelve (12) month periods unless either party provides written notice of nonrenewal within 90 days of the end of the then current term; provided, however, that should any Order Forms be in effect as of the date of expiration, this Agreement shall remain in effect until the expiration of such Order Forms.
5.2. Either Party may terminate this Agreement or any Order Form upon not less than 30 days prior written notice to the other Party of any material breach of this Agreement by the other Party, provided that the breaching Party has not cured the material breach within the 30-day notice period (an “Uncured Breach”).
5.3. Notwithstanding Komodo's right to terminate as set forth in Section 5.2 above, Komodo in the event of (a) an Uncured Breach or (b) a determination by Komodo that continued use of the Service may result in harm to the Service, or other Komodo customers, or result in a violation of applicable law, regulation, legal obligation or legal rights of another, in addition to any other remedies available at law or in equity, Komodo shall have the right immediately, in Komodo's sole discretion, to remove any potentially offending Customer Data from the Service, deactivate Customer's user name(s) and password(s) and/or suspend access to the Service.
5.4. Sections 1.5., 1.6, 2.1, 2.2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, and 15 will survive the expiration or termination of this Agreement.
- WARRANTIES AND DISCLAIMERS.
6.1. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICE, THE PLATFORM, THE REPORTS, THE KOMODO DATA, DOCUMENTATION, AND SUPPORT SERVICES ARE PROVIDED AS-IS AND WITH ALL FAULTS, AND KOMODO AND ITS SUPPLIERS HEREBY DISCLAIM ALL OTHER WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY IMPLIED WARRANTIES, DUTIES OR CONDITIONS RELATING TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, LACK OF VIRUSES OR BUGS, PERFORMANCE OR QUALITY OF THE SERVICE, DOCUMENTATION OR MAINTENANCE AND SUPPORT SERVICES, ACCURACY OR COMPLETENESS OF RESULTS, INCLUDING DATA VISUALIZATIONS AND OTHER REPRESENTATIONS GENERATED IN CONNECTION WITH THE SERVICE. IN PARTICULAR, KOMODO DOES NOT WARRANT THAT THE OPERATION OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE.
- INDEMNIFICATION BY KOMODO.
7.1. Komodo will defend Customer against claims brought against Customer by any third party alleging that Customer's use of the Service (excluding Customer Data and Customer’s content), in accordance with this Agreement, constitutes a direct infringement or misappropriation of any issued patent, registered copyright or trade secret rights in the Territory, and Komodo will pay damages finally awarded against Customer (or the amount of any settlement Komodo enters into) with respect to those claims. This obligation of Komodo shall not apply if (a) the alleged infringement or misappropriation results from the Komodo Data or use of the Service, the Platform, or the Reports in conjunction with any other software or service, or unlicensed activities or use of the Service in violation of this Agreement, including without limitation any claims arising from infringing Customer Data or (b) Customer fails to immediately notify Komodo in writing of any such claim. Komodo will be permitted to control fully the defense and any settlement of any claim under this provision as long as the settlement does not include a financial obligation on Customer. If Customer declines Komodo’s proffered defense, or otherwise fails to cede full control of the defense to Komodo’s designated counsel, then Customer waives Komodo's obligations under this provision. Customer shall cooperate fully in the defense of claims and may appear, at its own expense, through counsel reasonably acceptable to Komodo. Komodo expressly reserves the right to cease defense of any claim(s) if the Service is no longer alleged to infringe or misappropriate, or are held not to infringe or misappropriate, the third party's rights. Komodo may settle any claim on a basis requiring Komodo to substitute for the Service alternative substantially equivalent non-infringing services. Customer will not undertake any action in response to any infringement or misappropriation, or alleged infringement or misappropriation of the Service that is prejudicial to Komodo’s rights.
7.2. THE PROVISIONS OF THIS SECTION 7 STATE THE SOLE, EXCLUSIVE, AND ENTIRE LIABILITY OF KOMODO AND ITS LICENSORS TO CUSTOMER, AND CUSTOMER'S SOLE REMEDY, WITH RESPECT TO THE INFRINGEMENT OR MISAPPROPRIATION OF THIRD-PARTY RIGHTS.
- INDEMNIFICATION BY CUSTOMER. Customer shall indemnify and hold Komodo and its directors, officers, and agents harmless from third party claims arising from or related to (a) any use of the Service by Customer or its Users (i) in breach of this Agreement, (ii) in contravention of any requirements, procedures, policies or regulations of Komodo or its third-party providers applicable to the Service and made known to Customer or (iii) in violation of any applicable law or regulation or in violation of the legal rights of others, (b) Customer's non-compliance with Data Protection Legislation, (c) the Customer Data, or (d) any content gathered by Komodo pursuant to a request from Customer. The foregoing obligation shall apply regardless of whether the damage is caused by the conduct of Customer or its Users or by the conduct of a third-party using Customer’s access credentials. The foregoing is, however, conditional upon Komodo (x) notifying Customer thereof in writing and in detail without undue delay, (y) authorizing Customer to conduct any proceedings with the third party on its own, and (z) providing Customer, at the expense of Customer, with any reasonable assistance so that Customer may defend against the claim.
- EXCLUSIONS OF CERTAIN DAMAGES; LIMITATIONS OF LIABILITY.
9.1. SUBJECT TO SECTION 9.3, IN NO EVENT WILL KOMODO OR ITS SUPPLIERS BE LIABLE (REGARDLESS OF THE CAUSE OF ACTION OR THE ALLEGED BASIS OF THE CLAIM, INCLUDING WITHOUT LIMITATION BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE OR BREACH OF STATUTORY DUTY) MISREPRESENTATION, RESTITUTION, OR OTHERWISE (AT LAW OR IN EQUITY) FOR ANY (I) LOSS OF PROFITS OR LOSS OF BUSINESS, (II) DEPLETION OF GOODWILL OR SIMILAR LOSSES, (III) LOSS OF ANTICIPATED SAVINGS, (IV) LOSS OF USE, (V) LOSS OR CORRUPTION OF DATA OF INFORMATION (WHETHER ANY OF THE LOSSES SET OUT IN (I) TO (V) ARE DIRECT OR INDIRECT), OR FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF OR INABILITY TO USE THE SERVICE, THE PLATFORM, THE REPORTS, OR DOCUMENTATION, THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT, DOCUMENTATION, THE PLATFORM, THE REPORTS, OR OTHER SERVICES, OR OTHERWISE UNDER OR IN CONNECTION WITH THIS AGREEMENT, AND EVEN IF KOMODO OR ITS SUPPLIER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND/OR THE REMEDIES OTHERWISE PROVIDED UNDER THIS AGREEMENT, AT LAW, OR EQUITY FAIL OF THEIR ESSENTIAL PURPOSE.
9.2. SUBJECT TO SECTION 9.3, NOTWITHSTANDING ANY DAMAGES THAT CUSTOMER MIGHT INCUR FOR ANY REASON WHATSOEVER, THE ENTIRE LIABILITY OF KOMODO AND ANY OF ITS SUPPLIERS IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR BREACH OF STATUTORY DUTY), MISREPRESENTATION, RESTITUTION OR OTHERWISE (WHETHER AT LAW OR IN EQUITY) ARISING IN CONNECTION WITH THE PERFORMANCE OR CONTEMPLATED PERFORMANCE OF THIS AGREEMENT SHALL BE LIMITED TO THE ACTUAL DAMAGES CUSTOMER INCURS IN REASONABLE RELIANCE ON THE SERVICE UP TO THE AMOUNT PAID TO KOMODO FOR THAT PORTION OF THE SERVICE DURING THE 3 MONTH PERIOD PRECEDING THE DATE ON WHICH THE CLAIM AROSE.
9.3. NOTHING IN THIS AGREEMENT EXCLUDES KOMODO'S LIABILITY FOR DEATH OR PERSONAL INJURY CAUSED BY KOMODO'S GROSS NEGLIGENCE OR FOR FRAUD OR FRAUDULENT MISREPRESENTATION, OR FOR ANY OTHER LIABILITY THAT CAN NOT BE EXCLUDED UNDER APPLICABLE LAW.
- PUBLICITY. Customer acknowledges and agrees that Komodo may publicly disclose that Customer is a client of Komodo. Customer further agrees that Komodo may display Customer’s logos, promotional graphics, and related marketing designs (the “Client Art”) on Komodo’s websites and on sales and marketing materials, and hereby grants to Komodo a worldwide, royalty-free, non-exclusive license to use the Client Art, as well as Customer’s corporate and/or trade name, for such purposes.
- NO ASSIGNMENT. Customer may not assign this Agreement, or any rights or duties hereunder, by contract, operation of law, or otherwise, without first obtaining Komodo's express written consent, and if Customer attempts to engage in a Change of Control without Komodo's consent Komodo may immediately terminate this Agreement, without notice or opportunity to cure. A "Change of Control" includes: (a) a change in beneficial ownership of greater than 50% (by one or more transaction); (b) a merger of Customer with a third party, whether or not Customer survives; (c) the acquisition of more than 50% of any class of Customer's voting stock (or any class of non-voting security convertible Into voting stock) by another party (by one or more transaction); and (d) the sale or other transfer of more than 50% of Customer's assets (by one or more transaction).
- GOVERNING LAW. The interpretation and enforcement of this Agreement shall be governed by the laws of the State of New York, without regard to conflict of laws or choice of laws principles.
- NOTICES. Except as otherwise expressly set forth in this Agreement, all notices given to the Parties under this Agreement will be in writing and will be personally delivered, mailed by certified mail (return receipt requested and postage prepaid), or sent via overnight delivery, addressed to the respective Parties at the addresses specified herein or at the address that a Party designates in a written notice to the other Party.
- CONSTRUCTION. If a court of competent jurisdiction finds any part of this Agreement unenforceable, that part will be enforced to the fullest extent permissible to affect the Parties' Intent, and the remainder will continue in full force.
- ENTIRE AGREEMENT. This Agreement (including all Order Forms agreed to hereunder) constitutes the entire agreement between Customer and Komodo with respect to the Service and merges all prior and contemporaneous communications and proposals, whether electronic oral or written, between Customer and Komodo with respect to the Service. An applicable Order Form will prevail over any additional, conflicting, or inconsistent terms and conditions which may appear on any purchase order or other document furnished by Customer to Komodo or this Agreement.