This Empatica Purchase Agreement (the "Agreement") is by and between Empatica, Srl., an Italian Società a Responsabilità Limitata ("Empatica") and the entity which has been identified as the Customer (the "Customer") in an Empatica order form ("Order"), which has been physically or electronically signed by an authorized representative of Customer and which has been accepted by Empatica. Acceptance by Empatica may be evidenced by written notice of acceptance by Empatica and/or delivery of the products and provision of the services specified in the Order. The effective date of this Agreement and each Order ("Effective Date") shall be the date the Order is accepted by Empatica.
Customer agrees to purchase each of the Empatica products listed in the Order ("Products") for the amounts specified in the Order. Products may consist of either: (a) Hardware, including E4 wristband, which will be delivered to Customer by Empatica, (b) Software, which will be licensed to Customer in accordance with the software license in Section 5(a), or (c) Services, including cloud-based applications hosted by Empatica and accessed by Customer through the Internet ("Cloud Services"), warranty, maintenance or support services ("Support Services"), or design, development or configuration services ("Professional Services").
Customer shall pay to Empatica the total fees specified in the Order, and all related taxes or levies (exclusive of taxes based on the net income of Empatica). Unless specified otherwise in the Order, Hardware can be purchased for a one-time fee, subject to any additional fees for associated Support Services. Cloud Services and Support Services are purchased on a subscription basis for a specified term. The subscription for Cloud Services and Support Services will automatically renew for successive terms of equal length, unless Customer or Empatica sends written notice of termination to the other at least 30 days prior to the expiration of the then-current term. Professional Services will be specified in a Statement of Work signed by both parties. Fees shall be due Net 10 days from the Effective Date of the Order unless specified otherwise in the Order. Prices are subject to change immediately and without notice; provided, however, that price changes will not be effective on Hardware, Software and Professional Services on any accepted Orders and will be effective on subscription services (Cloud Services and Support Services) on the first renewal date after the price change is announced.
Customer shall only use the Products in connection with the uses set forth in this Section 3 (the "Permitted Uses") and agrees that it shall not use the Products for any other uses without prior consent from Empatica. Customer acknowledges and agrees that the Products (i) are sold subject to the limited warranty in Section 6, (ii) are to be used in compliance with all applicable laws and in accordance with any written instructions provided by Empatica, (iii) are to be used solely in connection with Customer’s internal research activities and/or by Customer’s employees, agents and consultants only in conjunction with Customer’s business and activities, and (iv) shall not be resold, sub-licensed, transferred or otherwise distributed by Customer or its employees, consultants or agents to any third party.
Each party may terminate this Agreement and/or any Order in the event the other party breaches the Agreement and fails to cure such breach within thirty (30) days of written notice thereof. Upon termination, Customer will return all Empatica Hardware, Software and documentation to Empatica in its possession or control.
(a) Upon receipt of all fees due here under, Empatica grants to Customer a limited, non-exclusive, non-transferable
right and license to use the Software solely in conformance with the Permitted Uses for the period specified in the
(b) Upon receipt of all fees due here under, Empatica grants to Customer a limited, non-exclusive, non-transferable
right and license to use the Cloud Services solely in conformance with the Permitted Uses for the period that the
subscription for those Cloud Services remains in effect.
(c) All right, title and interest in and to the intellectual property embodied in the Products, together with any
derivative works, improvements, enhancements or other modifications thereto (collectively, the "Intellectual
Property"), is owned by, and shall remain the property of Empatica, including, without limitation, any patents,
copyrights, trademarks, tradenames and logos of Empatica. Customer shall not, and shall not permit others to, (i)
modify, copy, reverse engineer, decompile, disassemble, reproduce, or attempt to derive any source code, algorithms,
architecture or user interface techniques associated with, the Intellectual Property, either in whole or in part, or
(ii) create any derivative works from the Intellectual Property or the Products. With respect to any suggestions or
recommendations by Customer to Empatica, regarding proposed additional features, functionality, performance options
or other modifications to Empatica Products, Customer grants to Empatica a worldwide, non-exclusive, royalty-free,
perpetual right and license to develop, distribute, sublicense, sell, use or exploit such suggestions or
recommendations, including without limitation the integration of such features and functionality, in whole or in
part, into Empatica’s products or services without the need to account for the same to Customer. Customer acknowledges
that any and all products or services incorporating such new features, functionality, or performance shall be the
sole and exclusive property of Empatica.
(d) Empatica will defend, indemnify and hold harmless Customer in connection with any third party claims asserted against Customer alleging that the Intellectual Property, in the form originally supplied by Empatica to Customer in the Products, infringes such third party’s intellectual property rights ("IP Claims"). Such indemnification shall not apply to any claims of infringement or alleged infringement of a third party’s intellectual property rights to the extent that such claims are based on Customer’s breach of this Agreement, combination of the Products with another product or to the extent the Products were modified in any way by Customer if such infringement could have been avoided without such breach, combination or modification. In the event of any IP Claim being made or action brought against Customer with respect to which Empatica is liable to indemnify Customer hereunder, Customer shall promptly notify Empatica thereof but in no event more than one week after first receiving notice of such IP Claim and Empatica shall be entitled to assume, control and conduct the defense of such IP Claim, including the settlement or compromise thereof; provided, however, that Empatica shall not settle or compromise such IP Claim without the prior written consent of Customer, which consent shall not be unreasonably withheld or delayed; and provided further that such consent shall not be required if Customer receives a full release from liability in connection with such compromise or settlement.
EMPATICA WARRANTS FOR ONE (1) YEAR FROM DELIVERY THAT HARDWARE AND SOFTWARE PRODUCTS WILL PERFORM SUBSTANTIALLY AS DESCRIBED IN THE ACCOMPANYING DOCUMENTATION. IN THE EVENT OF A BREACH OF THIS WARRANTY, Customer’S SOLE RIGHT AND EMPATICA’S SOLE OBLIGATION IS, AT EMPATICA’S SOLE DISCRETION, TO REPAIR OR REPLACE THE NON-CONFORMING PRODUCT OR ACCEPT RETURN OF THE PRODUCT AND PROVIDE A REFUND. EMPATICA WARRANTS THAT CLOUD SERVICES WILL PERFORM SUBSTANTIALLY AS DESCRIBED IN THE ACCOMPANYING ON-LINE DOCUMENTATION. IN THE EVENT OF A BREACH OF THIS WARRANTY, Customer’S SOLE RIGHT AND EMPATICA’S SOLE OBLIGATION IS, AT EMPATICA’S SOLE DISCRETION, TO REPAIR OR REPLACE THE NON-CONFORMING CLOUD SERVICES OR TO PERMIT CUSTOMER TO TERMINATE CUSTOMER’S SUBSCRIPTION TO THE NON-CONFORMING CLOUD SERVICES. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 6, CUSTOMER’S USE OF THE PRODUCTS IS AT THE Customer’S SOLE RISK AND Customer ACCEPTS THE PRODUCTS "AS IS" AND "AS AVAILABLE". EMPATICA HEREBY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
EXCEPT AS SET FORTH BELOW, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUE OR ANTICIPATED PROFITS), WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, WHETHER OR NOT SUCH DAMAGES ARE FORESEEABLE OR THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. The limitations of liability set forth herein shall not be applicable to damages resulting from the willful misconduct or gross negligence of a party or use of the Products in violation of this Agreement. The parties further agree that Empatica’s maximum liability pursuant to this Agreement shall be limited to the total fees paid by Customer to Empatica in the previous twelve (12) months.
Export Control; Restricted Rights. Customer agrees to indemnify, defend and hold harmless Empatica, its subsidiaries, affiliates, officers, directors, employees, contractors and agents (the “Indemnified Parties”) from and against any losses, damages, liabilities, judgments, settlements, fines, penalties, claims, suits, costs and expenses, including reasonable legal fees (“Claims”), to the extent that they arise out of or are related to; (i) Customer’s use of the Products in a manner not permitted under this Agreement, (ii) Customer’s use of the Products in conjunction with products, software, or services not provided by Empatica, if a claim would not have arisen but for such combination, or (iii) Empatica’s compliance with Customer’s designs, specifications, requests, or instructions. Notwithstanding the foregoing, Customer shall have no obligation or liability to the extent a Claim arises solely from Empatica’s gross negligence or willful misconduct. Customer acknowledges that the Products are subject to Italian export control laws and regulations. Customer represents that it is not a citizen of an embargoed country or prohibited end user under applicable Italian. export and anti-terrorism laws, regulations and lists.
Customer agrees it shall not, directly or indirectly, use or disclose to others any Confidential Information belonging to Empatica without Empatica’s prior written consent. As used herein, “Confidential Information” shall mean any information, whether written or oral, regarding this Agreement, Empatica’s products or business, and any Intellectual Property or any other information obtained by Customer from Empatica that is not generally known to the public. Confidential Information shall not include any information that (i) was publicly available at the time of disclosure by Empatica, (ii) became publicly available after disclosure by Empatica through no fault of Customer, (iii) was acquired by Customer after disclosure by Empatica from a third party who was under no legal duty to maintain the confidentiality of the information or (iv) is required to be disclosed pursuant to court order or other governmental process; provided that Customer shall give notice to Empatica prior to such disclosure and cooperate with Empatica, at Empatica’s expense, in any of Empatica’s efforts to limit such disclosure.
This Agreement will be governed by and construed in accordance with Italian law, without reference to its conflict of laws rules. Any dispute, claim, or controversy arising out of or relating to this Agreement (including, the validity, interpretation, application, termination, alleged breach, or enforcement of the Agreement) shall be determined by arbitration in Milan, Italy, by a single neutral arbitrator mutually agreed upon by the parties, or in the event the parties are unable to agree within ten (10) days following notice of arbitration, by an arbitrator appointed by the Court of Milan, Italy. The arbitrator shall, in the Award, award the prevailing party reasonable costs incurred in connection with the arbitration, including the fees of the arbitrator, and the prevailing party’s reasonable attorneys’ fees, experts’ fees, and expenses. Judgment on the Award shall be entered only in the Court of Milan. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration, although such relief may be sought only from the Court of Milan, Italy. The parties hereby consent and submit to, and waive any and all objections to, the jurisdiction and venue of the Court of Milan, Italy.
All provisions except Section 5(a) and (b) of this Agreement, shall survive the termination or expiration of this Agreement.
The parties to this Agreement are independent contractors, and this Agreement shall not be construed to create a partnership, joint venture, employment or agency relationship between the parties. This Agreement is the complete and exclusive agreement between the parties with respect to the subject matter hereof, superseding any prior agreements and communications (both written and oral) regarding such subject matter. This Agreement may only be modified, or any rights under it waived, by a written document executed by both parties. Customer may not assign this Agreement, or any of its rights or obligations hereunder, to any third party without Empatica’s prior written consent, which consent shall not be unreasonably withheld. In the event that any of the provisions of this Agreement are held by to be unenforceable by a court or arbitrator, the remaining portions of this Agreement will remain in full force and effect. Customer shall be responsible for any breach of this Agreement by any of its employees, consultants and agents. The rights and remedies provided herein and all other rights and remedies at law or in equity shall be, to the extent permitted by law, cumulative and not exclusive of any other right or remedy now or hereafter available at law or in equity. Neither asserting a right nor employing a remedy shall be deemed to waive any other right or employment of any other remedy available herein.