Supply Terms of Sales

These Supply Terms of Sale (“Terms”) govern the purchase, supply, and use of Empatica Health Monitoring Platform for Parkinson’s (“EHMP for Parkinson’s”), an advanced clinical monitoring system comprising a wearable device (“EmbraceMini” or “Hardware”), a smartphone application (“PKG Monitor by Empatica App”) and a remote patient monitoring platform for the storage, computation of data and patient management. The system enables the remote collection, transmission, and analysis of patient accelerometry data and generates PKG Reports that provide objective and quantitative assessments of Parkinson’s disease–related movement disorder characteristics. Collectively, these components are referred to as the “Product” or “EHMP for Parkinson’s”.

The Product forms an integral part of the Empatica Health Monitoring Platform (“EHMP”). By placing an order for, purchasing, distributing, or otherwise using the Product, the customer (“Customer”) agrees to be bound by and comply with these Terms.

If Empatica and the Customer have entered into a separate written agreement, duly executed by both parties, governing the Customer’s use of the EHMP for Parkinson’s, that agreement shall prevail in the event of any material conflict with these Terms.

The Customer is solely responsible for the distribution, management, and use of the Product with End Users under its control or supervision. This includes ensuring that End Users (such as patients or study participants) receive adequate instructions for use and consent to any required data processing activities. The Customer shall ensure that all End Users use the Product in accordance with Empatica’s documentation, guidelines, and applicable laws and regulations. Empatica shall not be liable for any misuse, negligence, or non-compliance by End Users or by the Customer in connection with the use or deployment of the Product.

Empatica may update or modify these Terms from time to time. Any revised version shall supersede all prior versions and shall become effective upon publication on Empatica’s website or upon communication to the Customer. Continued ordering, use, or distribution of the Product or any related EHMP components after such revisions take effect constitutes the Customer’s acceptance of the updated Terms.

1. Definitions and interpretation

1. Affiliate means any entity that directly or indirectly Controls, is Controlled by, or is under common Control with the subject entity and for the purposes of this definition Control means possessing a 50% or greater of the voting securities or equivalent ownership interest in an entity or the right to direct the management of that entity.
2. Agreement means a separate written agreement between Empatica and Customer, duly signed by both parties, other than these Terms, that sets out the terms of Customer’s use of the Empatica Health Monitoring Platform.
3. Applicable Data Protection Law means any applicable data protection, privacy, cybersecurity, or other related law that protects any Customer Personal Data and/or relates to Empatica’s processing of such data hereunder. Such laws may include, but are not limited to, the EU General Data Protection Regulation; applicable national laws or laws of any political subdivision thereof; and any amendments, regulations, or binding sub-regulatory guidance related thereto.
4. Charges refer to the amounts invoiced to Reseller under each Order.
5. Confidential Information means any information, documentation, or software, of any kind or in any medium whatsoever, that is disclosed under these Terms by one party to the other party and where the receiving party knows or reasonably should know from the nature of the information disclosed or the circumstances of its disclosure that the information is subject to an expectation of confidential handling, regardless of whether it is labeled as “Confidential”.
   1. Confidential Information expressly includes any intellectual property of Empatica that comprises the Empatica Health Monitoring Platform or any portion thereof, including any source code, technical design documentation, specifications, or other documentation of a similar nature.
   2. Confidential Information does not include any information that (i) was lawfully known by the receiving party prior to its disclosure by the disclosing party; (ii) is or becomes publicly available other than by a breach of these Terms or any other confidentiality obligation; or (iii) is independently developed by the receiving party without the use or knowledge of any other Confidential Information of the disclosing party.
   3. Customer means the legal entity that has placed an Order with Empatica for the access to and use of the Product.
   4. Customer Personal Data means the Personal Data processed by Empatica on behalf of Customer in accordance with these Terms and as further defined in the Privacy Policy and the Data Processing Agreement (“DPA”) (each as defined below). Customer Personal Data includes the Data Services.
6. Data Services means (a) the raw data collected by Empatica from data subjects through the Empatica Health Monitoring Platform, and (b) the derivative data about data subjects generated through Empatica’s subsequent processing of the raw data for Customer. Data Services shall include, without limitation the PKG Reports.
7. Digital Biomarker means an algorithm or collection of algorithms whose output is the detection of various physiological states through the processing of Data Services.
8. Empatica is defined as follows:
   1. (a) if Customer is a legal entity based in the United States of America: Empatica, Inc., with offices located at 1 Broadway, 14th Floor, Boston, MA 02142 USA. Governing law will be Delaware law; venue will be Boston, Massachusetts.
   2. (b) if Customer is a legal entity based outside of the United States of America or the United Kingdom: Empatica S.r.l., with offices located at Via Stendhal 36, 20144 Milano Italy. Governing law will be Italian law; venue will be in Milan, Italy courts.
   3. (c) if Customer is a legal entity based in the United Kingdom: Global Kinetics UK Corporation Limited, Office 7, Floor 2, Export House Henry Plaza, Victoria Way, Woking, Surrey, GU21 6QX, England. Governing law will be Italian law, venue will be in Milan, Italy courts.
9. Empatica Health Monitoring Platform means the technological solution used to provide the Data Services for the Customer, comprised of wearable devices, mobile device applications, Empatica’s cloud infrastructure, any user interfaces for interacting with Data Services, and any other software, Hardware, or services provided by Empatica in conjunction with that solution.
10. End User End User means a natural person who participates in the remote health monitoring or research study conducted by Customer and is thereby using the Product.
11. Force Majure means a circumstance beyond the reasonable control of a party, which results in the party being unable to perform on time an obligation under this Terms. These circumstances could include acts of God, lightning strikes, earthquakes, floods, storms, fires and any natural disaster, acts of war, terrorism, riots, civil commotion, malicious damage, strikes, shortages of electricity or other utilities, shortages of labour or materials, and acts or omissions of government or other authority.
12. Intellectual Property Rights means all intellectual property rights under statute or otherwise including:
    1. copyright (including future copyright and rights in software), patents, trademarks, service marks, logos, trade names, internet domain names, and trade dress;
    2. trade secrets, know-how, programmes and manuals, concepts, design, techniques and methods; and
    3. any application or right to apply for any of the rights referred to above;
       in each case whether registered or unregistered and including applications for registration, and all rights or forms of protection having equivalent or similar effect anywhere in the world.
13. Personal Information means any information relating to an identified or identifiable natural person that is processed under in connection with this Terms.
14. EHMP for Parkinson’s means Empatica’s proprietary kinematics monitoring system, intended to monitor and quantify kinematics of movement disorder symptoms, including but not limited to, tremor, bradykinesia, and dyskinesia.
15. PKG Report means patient reports consisting of the data collected through the use of the EmbraceMini, analyzed by Empatica and represented in a PDF format.
16. Representatives means a party’s employees, accountants, attorneys, and subcontractors.
17. Taxes means all taxes, duties or charges levied or imposed by any government body (other than taxes imposed on either party’s income) and includes sales tax, value-added tax or similar broad based consumption taxes or a tax on services.

2. EHMP for Parkinson’s

1. Description of the Services. These Terms govern Customer’s access to and use of the EHMP for Parkinson’s. The EHMP for Parkinson’s is a technological solution used by Customer to collect Data Services, and may be comprised of some or all of the following:
   1. the devices that collect raw Data Services while worn by End Users (“Hardware”);
   2. the mobile applications that run on End User’s mobile devices, which transmit the Data Services to Empatica’s cloud infrastructure;
   3. Empatica’s cloud infrastructure used for providing Data Services;
   4. any user interfaces that allow for viewing and interacting with Data Services; and
   5. any other software, Hardware, data access, or services incorporated into the EHMP for Parkinson’s.
2. Orders. The specific quantities of Customer’s use of the EHMP for Parkinson’s, and any other software, hardware, or services provided by Empatica in conjunction with the EHMP for Parkinson’s will be established through an Order, and together these constitute the “Services” to be provided under these Terms. All such Services are conditioned upon Empatica’s acceptance of the Order and are subject to these Terms. Empatica reserves the right to accept or reject any Order, at its sole discretion.
3. Customer Standard Terms Prohibited. Customer acknowledges and agrees that its general terms and conditions, terms and conditions attached to purchase orders or payment details, or any other form of communicated, click-through, or click-wrap terms and conditions are not binding upon Empatica and are unenforceable under these Terms, and are expressly rejected except where expressly agreed by Empatica in writing.
4. Platform Modifications. Empatica reserves the right to freely modify, or discontinue, any aspect of the Empatica Health Monitoring Platform, including the EHMP for Parkinson’s, at Empatica’s sole discretion. The Customer may not continue to operate any component of the EHMP for Parkinson’s in contravention of such changes and may not take steps to interfere with any technical measures implemented by Empatica to restrict unintended use. In such a situation, Empatica will use commercially reasonable efforts to provide Customer with sufficient notice to complete any ongoing data collection processes.
5. Digital Biomarker Modifications. Customer acknowledges that the Digital Biomarkers used by Empatica in performing the Services may be modified from time to time. Empatica will inform Customer of such modifications at the time the modifications occurs.
6. Change Requests. Any change to the scope or quantity of the Services must be in form of writing signed by Empatica that specifies the nature and scope of the change. Change requests may not be imposed upon Empatica without Empatica’s express and prior written consent.

3. Empatica Obligations

1. Delivery of the Services. For the period during which the Customer uses the EHMP for Parkinson’s, Empatica shall provide the Services in accordance with the scope, quantity, and duration specified in the applicable Order.
2. Qualified Resources. Empatica will perform the Services (a) using personnel and/or subcontractors of appropriate skill, experience, and qualifications, and (b) in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services.
3. Use of Subcontractors. From time to time, Empatica may use subcontractors to deliver the Services, including portions of the Empatica Health Management Platform, such as the EHMP for Parkinson’s. Empatica will use reasonable diligence to require that its subcontractors agree to terms and conditions no less restrictive than those set forth in these Terms and will remain liable for the performance of any such subcontractors as if such performance were by Empatica itself. Upon request, Empatica will provide to Customer a list of its subcontractors who have access to Customer Personal Data.

4. Customer Obligations

1. Conforming Use. Customer will in all cases only use the EHMP for Parkinson’s in accordance with these Terms.
2. Assistance and Collaboration. Customer agrees to promptly provide Empatica with all reasonably necessary information as may be necessary for Empatica’s performance of the Services. Customer acknowledges that any failure to adequately inform Empatica or resource its use of the Services may impact Empatica’s ability to furnish the Services hereunder.
3. Authorization of Users and User Logins. Customer will determine which members of its workforce may access and use EHMP for Parkinson’s to enroll, monitor patients and read PKG Reports (“Users”). Customer will inform Users of any obligations under these Terms that apply to their use of EHMP for Parkinson’s. Notwithstanding the foregoing, under no circumstances may Customer authorize an individual to be a User who (a) will use the Product for or on behalf of any entity other than Customer, or (b) is employed by or represents any entity reasonably determined by Empatica to be its Competitor, as defined below (together, “Prohibited Individuals”), without Empatica’s express prior written consent. For the purpose of this Terms, a “Competitor” of Empatica means any individual entity or organization, whether operating independently or as part of a corporate group, that develops, manufactures, licenses, markets, distributes, or provides systems, devices, platforms, or software designed for the continuous or periodic monitoring, measurement, or assessment of Parkinson’s disease symptoms. This includes but is not limited to tools or technologies intended to capture, quantify, or analyze motor or non-motor manifestations associated with Parkinson’s disease, such as tremor, bradykinesia, rigidity, dyskinesia, gait disturbances, sleep patterns, or autonomic functions, whether through wearable sensors, digital biomarkers, data analytics, or remote monitoring systems. A “Competitor” shall further include any entity engaged in research or clinical validation of comparable methods or technologies that serve a substantially similar therapeutic, diagnostic, or clinical management purpose in the field of Parkinson’s disease symptom monitoring or treatment evaluation. Empatica reserves the right to refuse access to EHMP for Parkinson’s by any Prohibited Individuals, or to require that any access to the Product by a Prohibited Individual be subject to entering into a confidentiality Terms pertaining to such use that is reasonably acceptable to Empatica. Customer will remain responsible for the failure of any Users to abide by the requirements of these Terms.
4. Protection of Logins, Product Access, and Personal Data. Customer agrees to reasonably safeguard the login details of its Users, and to ensure that the use of such login details is solely within the limits of the rights granted to Customer under these Terms. Customer agrees to enforce these requirements with its Users and will promptly notify Empatica in writing upon becoming aware of any actual or suspected breach of security or unauthorized access or use of the Product, including but not limited to any unauthorized use, loss theft, or compromise of login credentials or compromise of Personal Data.

5. Proper Use of the Empatica Health Monitoring Platform

1. Proper Use. Customer agrees that it will solely use the Product for Customer’s own internal research purposes and for approved clinical purposes, unless another use is expressly agreed to by Empatica in writing. Customer will ensure that its use of the EHMP for Parkinson’s is in full compliance with these Terms and with any Documentation and other instructions from Empatica regarding proper use. Customer will not permit any third party to access or use the Product or any part thereof, except as expressly authorized by Empatica in writing. Customer will make its Users aware of the proper use of the EHMP for Parkinson’s and will promptly notify Empatica of any unauthorized or improper use by Users or otherwise.
2. Restrictions on Use. Customer is expressly prohibited from:
   1. (a) using the Product for any unlawful purpose;
   2. (b) commercially exploiting the Product in any way, including but not limited to selling, reselling, renting, transferring, distributing, ceding on a time-sharing basis, or making available to a service bureau access to the Product;
   3. (c) except as expressly authorized herein, creating any derivative works from the Product;
   4. (d) disassembling, decompiling, or reverse engineering the Product, in whole or in part, including any Hardware devices, software and/or source code, user interfaces, or algorithmic outputs;
   5. (e) accessing the Product, or any portion thereof, in order to develop a competitive product or service; and
   6. (f) developing or using any software, devices, or any other means or processes (including crawlers, browser plugins and add-ons, or any other technology) to scrape data from the Product.
   7. (g) validating commercial applicability, general performance and/or obtaining Medical, Governmental or Federal Authority approvals or clearances for the development, production, distribution, sale or use of competing technology, including but not limited to medical and/or wearable devices and data, digital biomarkers, or research platforms.
3. Unreasonably Excessive Use. Customer acknowledges and agrees that its use of the Product will be subject to the usage and payment terms set forth in the applicable Order. Customer acknowledges that Empatica may impose restrictions on any use that exceeds the parameters set forth in such Order, including through the imposition of technical blocking/throttling measures or by temporarily suspending User access privileges.
4. Malware. Customer agrees to not willfully disrupt the operation of the Product, particularly through the introduction of viruses or any other types of malicious code. Customer will take reasonable steps to ensure that its use of the Product does not inadvertently introduce any viruses or malicious code.
5. Prohibition on Government Use. Customer agrees that it may not access or use the Product in the performance of a governmental contract or subcontract except where expressly agreed by Empatica in writing. Customer will ensure that, in the course of its access to and use of the Product:
   1. (a) none of the components of Product constitute a deliverable under any governmental contracts or subcontracts, and
   2. (b) no governmental body, agency, or other entity may acquire any rights (including but not limited to “unlimited rights” or “government purpose rights”) or licenses to the Product or any other intellectual property of Empatica; and
   3. (c) Empatica will not be subject to any government contracting or reporting obligations as a result of Customer’s use of the Products or Services.

6. Fees and Payment

1. Fees. As consideration for Empatica’s performance of the Services, Customer will pay all fees set forth in the applicable Order in accordance with its terms. Unless otherwise specified in the Order, 100% of the fees are due upon execution of the Order. All fees paid or payable are non-cancellable and non-refundable except as expressly provided in these Terms. Customer shall not withhold payment for any reason or offset any amounts allegedly due from Empatica against amounts owed thereto.
2. Taxes. Fees are exclusive of all taxes, including but not limited to all state/national and local taxation, corporate tax, business tax, goods and services tax, value added tax, ad valorem tax, capital gains tax, withholding tax, stamp duty, customs and other import and export duties and all penalties, charges, costs and additions to tax as imposed by any government, government agency, statutory body or any revenue authorities. Customer is solely responsible for its own tax obligations and any taxes applicable to its purchase of the Services.
3. Currency Conversion. The price listed in the Order or on Empatica’s website may be in a currency that is not the Customer’s local currency. Payment must be made in such currency and using such payment methods as may be required by Empatica from time to time. Customer is solely responsible for all bank fees, currency conversion costs, and transfer charges.
4. Non-Payment. If Customer fails to make any payment when due, in addition to all other remedies that may be available, the non-paid amounts will automatically be subject to accrual of interest at a rate of 3% per month, compounded, or, if lower, the highest rate permitted under applicable law; and Customer will reimburse Empatica for its reasonable costs incurred in collecting any such amounts owed, including attorneys' fees, court costs, and collection agency fees. Empatica may suspend Services, access to the Product, or delivery of any deliverables until full payment is made of all overdue amounts.

7. Term and Termination

1. While the Customer is using the EHMP for Parkinson’s, Empatica will deliver the Services as specified in the applicable Order, including the agreed scope, quantity, and duration. The cost of any PKG Reports generated outside the scope of the Order will be invoiced to Customer and paid by Customer in accordance with the payment terms herein at Empatica’s then-current fees beyond the fees set forth in such Order. Customer hereby explicitly agrees to pay any fees outstanding for Services used by the Customer outside the scope of the Order.
2. Termination for Cause. Notwithstanding anything else in these Terms, either Empatica or Customer may immediately terminate the Services if the other party materially breaches these Terms, and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured thirty (30) days after the non-breaching party provides the breaching party with written notice of such breach, unless the cure cannot reasonably be cured within the cure period and the breaching party can demonstrate that it is diligently working towards a cure.
3. In addition to the foregoing, Empatica may terminate the Services immediately upon written notice if:
   1. (a) Customer fails to make a payment within thirty (30) days of the payment due date; provided Empatica has provided ten (10) days prior written notice to Customer of such nonpayment and intent to terminate the Services;
   2. (b) Customer becomes insolvent, files for bankruptcy, admits in writing its inability to pay debts as they become due, or commences dissolution or liquidation proceedings;
   3. (c) Empatica reasonably determines that Customer’s continued access to and/or use of the Services poses a security, compliance, or operational risk; or
   4. (d) Empatica reasonably believes that Customer’s continued access to and/or use of the Services violates applicable law.
4. Termination for Convenience. Customer is not required to use the Product and may cease its use at any time. Either party may terminate the Services at any time upon ninety (90) days’ prior written notice.
5. Effect of Termination. Upon the date of termination of the Services, all Customer rights to access and use the Product will expire. Accordingly, Customer will immediately cease its use of the EHMP for Parkinson’s and Empatica may take steps to discontinue Customer’s access. Each party will promptly (and in no event later than ten (10) business days after termination) dispose of any Confidential Information of the other party in its possession. Customer will, at Empatica’s option, return or certify destruction of any Product hardware, software, materials, or documentation in its possession. All outstanding amounts owed by Customer to Empatica will become due.
6. Empatica will make available the data collected through the EHMP for Parkinson’s until the date of termination to Customer for a period of sixty (60) days following any termination of the Services, provided that Empatica may condition such availability upon the payment in full of any outstanding balances owed to Empatica. Any further retention or use of such data by Customer remains subject to the confidentiality and data protection obligations set forth herein.
7. Suspension of Services. Empatica may take appropriate steps to disable or suspend any Customer and/or User access to the Product, without incurring any resulting obligation or liability, if:
   1. (a) Empatica receives an order of a judicial, law enforcement, or other governmental order that expressly or by reasonable implication requires Empatica to do so; or
   2. (b) Empatica reasonably believes that:
   3. (i) Customer or the User has failed to comply with any material provision of these Terms, including any use of the Product beyond the scope authorized hereunder; or
   4. (ii) Customer or the User is, has been, or is likely to be involved in any fraudulent, misleading, or unlawful activities.
8. This Article does not limit any of Empatica’s other rights or remedies under these Terms.

8. Confidential Information

1. Duty of Confidentiality. Each of Customer and Empatica agrees to hold the other party’s Confidential Information in the strictest confidence and to not use such Confidential Information except as necessary to perform its obligations under these Terms. Customer and Empatica shall preserve the confidentiality of the Confidential Information with at least the same degree of care that it protects its own confidential business information, and in no case less than a reasonable degree of care. Customer and Empatica will each have and maintain reasonable administrative, physical, and technical controls protecting the Confidential Information in its possession, and such controls will be no less protective than those controls that it applies to its own confidential business information or as may be required by applicable law.
2. No Third-Party Disclosures. Neither Customer nor Empatica may sell, transfer, publish, disclose, display, or otherwise make available to any third party the other party’s Confidential Information without that party’s prior written consent.
3. Disclosures to Workforce and Subcontractors. Customer and Empatica may only disclose the other party’s Confidential Information to its workforce and subcontractors where such recipients: (a) need to know such Confidential Information to perform the disclosing party’s obligations under these Terms, and (b) are bound by obligations of confidentiality and non-use at least as protective as those set forth in these Terms. Each of Customer and Empatica are responsible for breaches of these obligations by its respective workforces and subcontractors.
4. Disclosures Required by Law. In the event that Customer or Empatica is required by law, regulation, supervisory authority, or other applicable judicial or governmental order to disclose any Confidential Information, then they will, to the extent permitted by applicable law, promptly provide the other party with written notice of such requirement and will only disclose the minimum Confidential Information necessary to comply with such request. Customer and Empatica agree to provide reasonable assistance to one another in any efforts to seek an appropriate protective order with respect to such disclosures of Confidential Information.
5. Survival of Confidentiality Obligations. The confidentiality and non-use obligations under these Terms will remain in effect for a period of ten (10) years following the expiration of a Subscription Term, provided that these obligations will remain in effect indefinitely with respect to any Confidential Information that constitutes a trade secret under applicable law or contains any source code, proprietary algorithms, or core technology of Empatica under applicable law.

9. Protection of Personal Data

1. Compliance with Applicable Data Protection Law. Customer and Empatica will each comply with all of their respective obligations under Applicable Data Protection Law with respect to the Empatica Health Monitoring Platform and the Services. Without limiting the generality of the foregoing, Customer represents and warrants that it has obtained all necessary consents and authorizations from End Users to permit Empatica’s processing, collection, transmission, storage, and use of Personal Data, including any cross-border transfers, in connection with the Services.
2. Data Processing Agreement. Empatica’s processing of Customer Personal Data under these Terms is subject to the terms of the Empatica Health Monitoring Platform Data Processing Agreement (“DPA”) located here and its Privacy Policy (“Privacy Policy) located here, (in each case as updated from time to time by Empatica, provided that no such update materially reduces Customer’s rights) each of which are hereby incorporated into these Terms by reference. In the event of a conflict between these Terms and the DPA with respect to the processing of Customer Personal Data, the DPA will control.
3. Information Security. Empatica will have and maintain a written information security program applicable to its processing of Personal Data. Such program will be based upon and substantially consistent with industry-accepted cybersecurity principles and practices and Applicable Data Protection Law. Empatica will periodically review and update its information security program to reflect evolving information security trends and identified risks. Empatica’s detailed commitments with respect to information security will be as specified in the DPA.

10. Intellectual Property and Publicity

1. Ownership and Non-Infringement of Intellectual Party. Customer and Empatica each acknowledge the other party’s exclusive ownership of its respective trademarks, trade names, service marks, copyrights, trade secrets, and other intellectual property. Neither Customer nor Empatica will claim, directly or indirectly, any right, title, or interest in or to the other party’s intellectual property or take any other action adverse to the other party’s rights or interests in its intellectual property. Neither Customer nor Empatica will infringe the copyright, trademark, or other rights of the other party or of any third party. Customer and Empatica each agree that it will not use the other party’s intellectual property without the prior written consent of the other party, except where such use is provided by these Terms.
2. Ownership of the Empatica Health Monitoring Platform and all its components, including EHMP for Parkinson’s. The Empatica Health Monitoring Platform, including EHMP for Parkinson’s, its Hardware, software, algorithms, and other technological components, and including any modifications thereto, are in all cases the exclusive property of Empatica. Customer acknowledges that Empatica may freely operate, modify, discontinue, market access to, and dispose of the Empatica Health Monitoring Platform as it sees fit.
3. Data Services. The operation of the Empatica Health Monitoring Platform and Empatica’s performance of the Services generates Data Services for Customer. The Data Services is and will remain Customer’s intellectual property, and Empatica will only process the Data Services in accordance with these Terms and as set forth in the Privacy Policy. Notwithstanding the foregoing, Customer shall not sell, transfer, commercialize, or otherwise make available any Data Services without Empatica’s prior written consent.
4. Digital Biomarkers and Data Sets. In the course of processing the Data Services for Customer, Empatica may use the Data Services to create Digital Biomarkers and anonymized data sets for Empatica’s own business purposes, including but not limited to research, development, benchmarking, and commercialization. Customer expressly consents to Empatica’s development of Digital Biomarkers and its creation of anonymized Digital Biomarker data sets, provided that such data sets must be fully anonymized in accordance with prevailing practices and techniques for anonymization and with any requirements of Applicable Data Protection Law. Empatica agrees that it will not attempt to reverse any anonymization used to create the Digital Biomarker data sets or to otherwise reidentify the data sets. For avoidance of doubt, Digital Biomarkers and Digital Biomarker data sets may not contain any Customer Personal Data.
5. Nothing in these Terms shall permit Customer to create derivative intellectual property in respect of Empatica's Services.
6. Derivative Intellectual Property and Assignment of Rights. In addition to the development of Digital Biomarkers, during the course of operating the Empatica Health Monitoring Platform and providing the Services to Customer, Empatica may develop modifications to the Empatica Health Monitoring Platform and other derivative intellectual property. All derivative intellectual property generated by Empatica under these Terms, including the Digital Biomarkers and anonymized data sets, are solely owned by Empatica and constitute Empatica’s intellectual property. Customer hereby unconditionally and irrevocably grants to Empatica an assignment of all right, title, and interest in: (a) any Digital Biomarkers; (b) any Digital Biomarker data sets; (c) any derivative intellectual property generated by Customer in the circumstances set out in Article 10.5; and (d) any other derivative intellectual property generated by Empatica in the course of providing the Services without any additional compensation. Customer shall execute such documents and take such further reasonable actions as may be requested by Empatica to confirm, perfect, or record such assignment.
7. Publication Rights. Without providing notice or otherwise seeking prior permission from Empatica, Customer shall have the right, consistent with academic standards, to publish or present the results of its use of the Product, provided that any such publication or presentation, even if not required by the journal or conference sponsor, will include a statement regarding role of the Empatica’s Services in that study provided that any such publication or presentation, at least thirty (30) days in advance, will be provided to Empatica for prior review solely to ensure that no Empatica Confidential Information or proprietary technology will be improperly disclosed or compromised. Empatica may require redaction or exclusion of any Confidential Information or potentially patentable subject matter. Without limiting the generality of the foregoing, under no circumstances shall Customer publish any information that may infringe upon terms defined in Articles 8 through 10 defined in these Terms.
8. Press Releases. Except for the publication rights provided within these Terms, Customer may only issue press releases or other media announcements upon Empatica’s prior written approval with respect to descriptions of the Product or Services. Customer authorizes Empatica to issue press releases or other media announcements regarding Customer’s use of the Empatica Health Monitoring Platform.

11. Warranties and Disclaimers

1. Mutual Representations and Warranties. Customer and Empatica each represent and warrant to the other that:
   1. (a) it is duly organized, validly existing, and in good standing as a corporation or other entity under the laws of the jurisdiction of its incorporation; and
   2. (b) it has the full right, power, and authority to enter into and perform its obligations and grant the rights, licenses, consents, and authorizations it grants or is required to grant under these Terms.
2. Hardware Warranty.
   1. Empatica warrants that, under normal use and service, the EmbraceMini, when used with the EHMP for Parkinson’s will perform substantially as described in these Terms and in the Documentation for one (1) year. Empatica’s sole obligation, and Customer’s exclusive remedy, with respect to any breach of the foregoing warranty during the term thereof will be, at Empatica’s sole discretion, to repair or replace the affected hardware. Customer will be responsible for all shipping and handling costs associated with returning defective equipment.
   2. For the avoidance of doubt, the Customer acknowledges that battery performance may naturally depreciate over the lifetime of the Device. The degree of such depreciation depends on factors including, but not limited to, the proper storage and use of the Device. Accordingly, any Device that, within its applicable warranty period, exhibits a battery performance of less than six (6) days shall be subject to evaluation by Empatica to determine whether replacement is warranted.
   3. Any defects or damages arising from improper use, mishandling, negligence, accident, failure to comply with Documentation, normal wear and tear, or other causes not attributable to a manufacturing defect, as well as any Products or accessories that are out of warranty, shall not be eligible for return or replacement. The Customer shall be solely responsible, at its own cost, for the proper disposal of such Products and accessories in accordance with applicable laws and regulations and will be responsible to compensate Empatica for any such damage or loss that occurs during the lifetime of the Product, which is currently determined to be three (3) years.
   4. Accessories are not covered under any warranty.
3. Intellectual Property Warranty. Empatica represents and warrants that it has and will maintain all intellectual property rights necessary for Customer’s use of the Empatica Health Monitoring Platform and for Empatica’s performance of the Services in accordance with an Order and these Terms.
4. Disclaimer for Internet Hazards. Customer acknowledges the technical hazards inherent to communications over the public Internet that are beyond Empatica’s control, and the disruption that may result from such hazards. Empatica disclaims responsibility, and shall not be held accountable, for any possible downtime or slowdown of the Product that is attributable to these hazards.
5. Disclaimer of Warranty of Fitness for Particular Purpose. Customer acknowledges that the Product is provided on an as-is basis. Except as otherwise expressly provided under these Terms, Empatica does not offer any guarantees with respect to clinical, diagnostic, therapeutic, or medica accuracy, performance, effectiveness, or fitness for any intended purpose of the EHMP for Parkinson’s or any Data Services generated by or through the Empatica Health Monitoring Platform.
6. Disclaimer of Additional Warranties. TO THE EXTENT PERMITTED BY LAW, EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THESE TERMS, EMPATICA HEREBY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. NO ORAL STATEMENTS BY EMPATICA, ITS PERSONNEL, OR ANY THIRD PARTY SHALL CREATE A WARRANTY OR IN ANY WAY MODIFY THESE TERMS.

12. Liability

1. No Indirect Damages. Subject to Article 12.3, under no circumstances will Empatica be held liable by Customer for any indirect, special, consequential, or punitive damages (including without limitation, loss of profits, loss of turnover, loss of customers, loss of opportunity, or replacement costs for using an application or service other than the Product) based on any cause of action, regardless of whether Empatica was aware of the possibility of such damages. For avoidance of doubt, Empatica’s only liability for damages under these Terms will be for direct damages in accordance with and subject to Article 12.2 below.
2. Limitation of Liability. Subject to Article 12.3, in no event will Empatica’s aggregate liability to Customer or to any third party claiming through Customer, under these Terms or in connection with the Services exceed one hundred percent (100%) of the portion of the fees paid or payable by Customer during the 12-month period preceding the breach, act, or omission of Empatica entitling Customer to obtain damages hereunder, regardless of the theory of liability, of whether Empatica has been advised of the possibility of damages, and of whether multiple claims arise.
3. Unlimited Liability. Nothing in these Terms shall limit or exclude either party's liability for death or personal injury caused by its negligence, gross negligence or willful misconduct, fraud or fraudulent misrepresentation, or any other liability which cannot be excluded or limited by applicable law.
4. Hardware Risk of Loss. The risk of loss or damage to any wearable EmbraceMini devices will pass from Empatica to Customer upon delivery to Customer’s “ship to” address or, if special shipping arrangements are agreed to, upon delivery to Customer’s carrier or designee. Empatica will not be responsible for any losses or damages arising out of the misuse of the wearable Hardware devices by Customer or by Participants. All risk of loss, including for hardware shipped for repair or replacement, shall pass to Customer upon shipment from Empatica’s facility. In accordance to Article 11.2.3; in the event of loss or damages to the Hardware, Customer shall promptly and fully notify Empatica and Customer shall in case of damage to the Hardware, pay the cost thereof specified by Empatica at Empatica’s then-current prices.
5. Breach of Warranty and Non-Conforming Services. In the event of a breach of a warranty granted under these Terms, Customer’s sole right and Empatica’s sole obligation is, at Empatica’s sole discretion, to repair or replace the non-conforming portion(s) of the Services. Customer is advised that repair or replacement of the wearable Hardware devices may result in the deletion or alteration of the Data Services and other data stored in the device. It is the Customer’s responsibility to retrieve and back up any data stored in the wearable Hardware device prior to sending it in for repair or replacement. Empatica will not be liable for any damage to or loss of unsaved data.
6. Indemnification. Each of Customer and Empatica will indemnify, defend, and hold harmless the other party from and against any claims brought by an unaffiliated third party arising out of or relating to: its grossly negligent, willful, or intentional wrongful acts or omissions. In addition, Empatica will indemnify and defend the Customer from and against any claims brought by an unaffiliated third party that the EHMP for Parkinson’s infringes such third party’s intellectual property rights; provided, however, that this obligation will not apply to such claims to the extent that they arise from Customer’s misuse, modification, or interference with the orderly operation of the Product or gross negligence or willful misconduct. Customer will additionally indemnify, defend, and hold harmless Empatica from any third party claims arising from (i) Customer’s or its Users’ violation of law or regulation (including data protection laws), (ii) Customer’s misuse, modification or combination of the Product with third party products not provided or authorized by Empatica, (iii) Customer’s failure to obtain informed consent from End Users as required by law or by Empatica, and (iv) patient injury resulting from Customer’s failure to train patients or Customer’s improper maintenance of the Products; provided, however that this obligation will not apply to such claims to the extent that they arise from Empatica’s gross negligence or willful misconduct. Each party entitled to indemnification under these Terms (“Indemnified Party”) shall notify the other party (“Indemnifying Party”) within 5 working days in writing of any claim for which indemnification may be sought. The Indemnifying Party may assume the defense and settlement of such claim at its own expense, using competent counsel with the Indemnified Party permitted to participate in the defense at its own cost using competent counsel of its choice and agreeing to reasonably cooperate in the process. The Indemnifying Party shall not settle any claim in a manner that admits liability on behalf of the Indemnified Party, imposes any injunction or restriction on the Indemnified Party, or fails to secure an unconditional release of the Indemnified Party from all liability, without the Indemnified Party’s prior written consent, which shall not be unreasonably withheld, conditioned, or delayed.
7. Notwithstanding the foregoing indemnification provisions, if Customer is a state university, governmental entity, or other public institution that is prohibited by applicable law from providing indemnification or assuming the liability described herein, the indemnification obligations set forth above shall be deemed waived solely to the extent required by such law. In such case, each party shall remain responsible for its own negligent acts, errors, or omissions, and for those of its officers, employees, and agents acting within the scope of their duties. This exception shall not be construed as a general waiver of the indemnification clauses or any other provision of this Terms, nor shall it relieve Customer of any obligations or liabilities otherwise imposed by law or arising under this Terms, except as specifically limited herein.
8. Insurance. Empatica agrees to maintain in effect for the duration of the Subscription Term, with manifestly solvent insurance companies, insurance coverages and amounts designed to cover liabilities arising from all reasonably foreseeable risks that may arise within the scope of Empatica’s performance of the Services hereunder. Nothing in this Article shall create any right of Customer to review, approve, or be named on such insurance policies.

13. General Provisions

1. Applicable Law and Jurisdiction. Any dispute under these Terms that cannot be resolved amicably may be resolved through legal action, provided that such action is conducted as set forth in this Article.
   1. (a) For Empatica S.r.l.:
      1. (i) “Governing Law” means Italian law.
      2. (ii) “Venue” means the courts of Milan, Italy.
   2. (b) For Empatica, Inc.:
      1. (i) “Governing Law” means Delaware law.
      2. (ii) “Venue” means the state and federal courts located in Suffolk County, Massachusetts.
   3. (c) For Global Kinetics UK Corporation Limited:
      1. (i) “Governing Law” means Italian law.
   4. (ii) “Venue” means the courts of Milan, Italy.
      These Terms are governed by and interpreted in accordance with Governing Law, and the exclusive jurisdiction and venue of any action arising out of or relating to these Terms will be in the Venue.
2. Equitable Relief. Customer acknowledges and agrees that Empatica would suffer immediate and irreparable harm if Customer breaches or threatens breach of these Terms and, accordingly, Empatica will be entitled to seek injunctive relief in any court of competent jurisdiction to enforce these Terms, without any preceding requirement of posting bond or showing proof of loss, in addition to any other rights or remedies available to Empatica in equity or at law.
3. Entire Agreement; Amendments. These Terms may only be modified by way of a written amendment signed by Empatica. Notwithstanding the foregoing, Empatica may update or amend these Terms, and any other terms incorporated herein by reference, including without limitation the DPA and Privacy Policy, upon written notice to Customer (including via publication on Empatica’s website) where necessary to comply with applicable laws and regulations, and such amendments will become effective as specified in the notice or as required by law. Except to the extent supplemented by an Agreement and as otherwise set forth in this Article 13.3, these Terms constitute the entire agreement between Customer and Empatica with respect to the subject matter herein. All prior agreements, whether written or oral, are hereby superseded.
4. Notices. Any notice required under these Terms must be made in writing. Notices to Empatica will be delivered to (a) legal@empatica.com, or (b) the address of the applicable Empatica entity described under the definition of “Empatica” and will be deemed effective upon transmission. Notices to Customer will be delivered via physical mail or email to the contact information on file with Empatica.
5. Assignment. Customer may not assign its rights or obligations under these Terms to any other entity, including an entity that affiliates or merges with or acquires that party, unless such assignment is approved in advance by Empatica in writing, which approval may be granted in Empatica’s sole discretion. Empatica may assign, transfer, delegate, or otherwise dispose of any or all of its rights or obligations under these Terms, in whole or in part, to any Affiliate or to any successor-in-interest by way of merger, consolidation, reorganization, or sale of all or substantially all its assets or equity (whether by sale, merger, operation of law, or otherwise) without Customer’s prior consent. Empatica may also assign the right to receive payments under these Terms to any third party, including any lender or financing party, without notice to Customer.
6. Relationship of the Parties. Customer and Empatica will solely be considered independent contractors under these Terms. Under no circumstances will Customer or Empatica be deemed an agent, joint-venturer, partner, or employee of the other party for any purpose. Customer and Empatica agree that they have no power or right to bind or obligate the other party and may not hold itself out as having any such authority.
7. No Third-Party Beneficiaries. These Terms are solely for the benefit of Customer and Empatica and does not confer any right, benefit, or privilege upon any person or entity not a party hereunder.
8. Force Majeure. Empatica will not be liable for any delay or failure in performing its obligations if the delay or failure resulted from circumstances beyond its reasonable control, including but not limited to acts of god, governmental acts, war, flood, fire, explosion, accident, civil commotion, terrorism, public health crisis, industrial dispute, impossibility of obtaining materials, or for any other reason provided under applicable law or court decisions.
9. Severability. If any provision of these Terms is determined to be unenforceable or invalid under applicable law, the remaining provisions shall continue in full force and effect and will be construed to be consistent with the unmodified Terms to the fullest extent practicable.
10. Non-Waiver. Any waiver by Empatica of its rights under these Terms will not prejudice any subsequent exercise of its rights under this Terms. Empatica’s failure or decision not to enforce any provision of these Terms will not be construed as a waiver of rights under these Terms or at law.
11. Survival. The clauses set out under these Terms will survive any termination of the Services: (a) to the extent that such clause must, by its very nature, survive to be given full effect, or (b) as expressly provided by the clause itself. For the avoidance of doubt and without limiting the generality of the foregoing, all clauses regarding confidentiality, personal data protection, intellectual property rights, liability, indemnification, and this Article 13 will survive the termination of these Terms.