Terms of service
Empatica Health Monitoring Platform
version 1.0, effective [1 September 2022]
These Terms of Service (the “Terms”) govern the access to and use of the Empatica Health Monitoring Platform. By accessing and/or using the Empatica Health Monitoring Platform, Customer agrees to be bound by and comply with these Terms. In the event that Empatica and Customer have entered into a separate Agreement, duly signed by both parties (as defined in these Terms) with respect to Customer’s use of the Empatica Health Monitoring Platform, these Terms will apply to such use; provided, however, that in the event of a material conflict between these Terms and such Agreement, the Agreement will control.
The present Terms may be modified from time to time. Any new version of the Terms of Service will replace any and all previous versions, effective from the date of publishing. By continuing to use any components of the Empatica Health Monitoring Platform or related services after any revisions become effective, Customer agrees to be bound by the revised terms.
As used in these Terms, the following words have the indicated meanings:
1.1 Affiliate means a party’s branches offices, subsidiaries, related companies, or any entity that directly or indirectly controls, is controlled by, or is under common control with, that party. For this definition, the term “control” means possession, directly or indirectly, of at least 50% of the voting interests of an entity or the authority to exercise management direction on behalf of the entity.
1.2 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.
1.3 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 subregulatory guidance related thereto.
1.4 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) that the disclosure is subject to an expectation of confidential handling, regardless of whether it is labelled as “Confidential”.
(a) 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.
(b) 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.
1.5 Customer means the legal entity that has placed an Order with Empatica for the access to and use of the Empatica Health Monitoring Platform.
1.6 Customer Personal Data means the Personal Data processed by Empatica on behalf of Customer in accordance with these Terms. Customer Personal Data includes the Data Services.
1.7 Digital Biomarker means an algorithm or collection of algorithms whose output is the detection of various physiological states through the processing of Data Services.
1.8 Documentation means any written instructional information or materials developed by Empatica regarding the proper use, technical capabilities, or design of the Empatica Health Monitoring Platform or any portion thereof.
1.9 Empatica is defined as follows:
(a) if Customer is a legal entity based in the United States of America: Empatica, Inc., a corporation established under the laws of Delaware, with offices located at 1 Broadway, 14th Floor, Boston, MA 02142 USA.
(b) if Customer is a legal entity based outside of the United States of America: Empatica S.r.l., a società a responsabilità limitata established under the laws of Italy, with offices located at Via Stendhal 36, 20144 Milano Italy. Governing law will be Italian law; venue will be in Milan, Italy courts.
1.10 Empatica Health Monitoring Platform means the technological solution used to provide the Data Services for 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.
1.11 Order means the form of writing (or writings) that together comprise the understanding of Empatica and Customer with respect to the scope, quantity, duration, and price of the purchase of a subscription to the Empatica Health Monitoring Platform and any Services related thereto. Each of the following constitutes an Order: an issued proforma invoice or invoice; an order placed through an authorized website; an Agreement between Empatica and Customer; or another legally effective writing initiated by Empatica.
1.12 Participant means a natural person who participates in the research study conducted by Customer and is thereby using Empatica devices and applications in the conduct of that research study.
1.13 Participant Personal Data means any information relating to an identified or identifiable natural person. An identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier, or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural, or social identity of that natural person. Personal Data also includes information relating to a particular household or a particular electronic device that is associated with a natural person.
1.14 Services means the Empatica Health Monitoring Platform and any supplementary services provided by Empatica in conjunction with the Empatica Health Monitoring Platform, each subject to the scope, quantity, duration, and price specified in an Order.
1.15 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.
1.16 Platform means the cloud platform and mobile applications made available by Empatica to Customer via the applicable customer logins.
1.17 Subscription Term means the duration of the subscription for the Services as set out in an Order, which shall commence on the start date defined in the applicable Order. If the Order does not specify a start date, the Subscription Term shall commence on the first date the Order is made available to the Customer.
1.18 User means a representative of Customer who is designated by Customer to be able to access and use the Empatica Health Monitoring Platform on Customer’s behalf.
1.19 Other terms used in these Terms are defined in the context in which they are used and have the meanings there stated.
Empatica Health Monitoring Platform
2.1. Description of the Services. These Terms govern Customer’s access to and use of the Empatica Health Monitoring Platform. The Empatica Health Monitoring Platform is a technological solution used by Customer to collect Data Services, and may be comprised of some or all of the following:
(a) the devices that collect raw Data Services while worn by Participants (“Hardware”);
(b) the mobile applications that run on Participants’ mobile devices, which transmit the Data Services to Empatica’s cloud infrastructure;
(c) Empatica’s cloud infrastructure used for providing Data Services;
(d) any user interfaces that allow for viewing and interacting with Data Services; and
(e) any other software, Hardware, data access, or services incorporated into the Empatica Health Monitoring Platform.
2.2. Orders. The specific quantities and Subscription Term of Customer’s use of the Empatica Health Monitoring Platform, and any other software, Hardware, or services provided by Empatica in conjunction with the Empatica Health Monitoring Platform 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.
2.3. 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, except where expressly agreed by Empatica in writing.
2.4. Platform Modifications. Empatica reserves the right to freely modify, or discontinue, any aspect of the Empatica Health Monitoring Platform, including the Documentation, at Empatica’s sole discretion. The Customer may not continue to operate any component of the Empatica Health Monitoring Platform in contravention of such changes and may not take steps to interfere with any technical measures implemented by Empatica to restrict unintended use.
2.5. 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 occur.
2.6. Change Requests. Any change to the scope, quantity, or Subscription Term of the Services must be in the form of a 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.
3.1. Delivery of the Services. Empatica will, for the duration of the Subscription Term, perform the Services in accordance with the scope, quantity, and duration of the Services set out in the applicable Order.
3.2. 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.
3.3. Use of Subcontractors. From time to time, Empatica may use subcontractors to deliver the Services, including portions of the Empatica Health Management Platform. 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.
4.1. Conforming Use. Customer will in all cases only use the Empatica Health Monitoring Platform in accordance with these Terms.
4.2. 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.
4.3. Participant Anonymity. Customer will, at its sole discretion, determine the Participants who will use the Hardware devices and whose data will be collected in the Empatica Health Monitoring Platform. Under no circumstances will Customer divulge the identity of the Participants to Empatica or otherwise introduce any identifying data about Participants (other than the pseudonymous Participant identifier associated with the device) into the Empatica Health Monitoring Platform.
4.4. Authorization of User Logins. Customer will determine which members of its workforce may access and use the Empatica Health Monitoring Platform as Users. Customer will inform Users of any obligations under these Terms that apply to their use of the Empatica Health Monitoring Platform. Notwithstanding the foregoing, under no circumstances may Customer authorize an individual to be a User who (a) will use the Empatica Health Monitoring Platform 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 (together, “Prohibited Individuals”), without Empatica’s express prior written consent. Empatica reserves the rights to refuse access to the Empatica Health Monitoring Platform by any Prohibited Individuals, or to require that any access to the Empatica Health Monitoring Platform by a Prohibited Individual be subject to entering into a confidentiality agreement 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.
4.5. Protection of Logins. 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 notify Empatica in the event that Customer becomes aware of any loss, theft, or compromise of the login details.
Proper Use of the Empatica Health Monitoring Platform
5.1. Proper Use. Customer agrees that it will solely use the Empatica Health Monitoring Platform for Customer’s own internal research purposes, unless another use is expressly agreed to by Empatica in writing. Customer will ensure that its use of the Empatica Health Monitoring Platform is in full compliance with these Terms and with any Documentation and other instructions from Empatica regarding proper use. Customer will make its Users aware of the proper use of the Empatica Health Monitoring Platform and will promptly notify Empatica of any unauthorized or improper use by Users or otherwise.
5.2. Restrictions on Use. Customer is expressly prohibited from:
(a) using the Empatica Health Monitoring Platform for any unlawful purpose;
(b) commercially exploiting the Empatica Health Monitoring Platform 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 Empatica Health Monitoring Platform;
(c) except as expressly authorized herein, creating any derivative works from the Empatica Health Monitoring Platform;
(d) disassembling, decompiling, or reverse engineering the Empatica Health Monitoring Platform, in whole or in part, including any Hardware devices, software and/or source code, user interfaces, or algorithmic outputs;
(e) accessing the Empatica Health Monitoring Platform, or any portion thereof, in order to develop a competitive product or service; and
(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 Empatica Health Monitoring Platform.
(g) validating commercial applicability, general performance and/or obtain Medical, Governmental or Federal Authority approvals or clearances for the development, production, distribution, sale and use of competing technology, including but not limited to medical and/or wearable devices and data, digital biomarkers, or research platforms.
5.3. Unreasonably Excessive Use. Customer acknowledges and agrees that its use of the Empatica Health Monitoring Platform will be subject to reasonable limits on usage, such as restrictions on the number or size of data transfers. Customer agrees that it will not make unreasonably excessive use of the Empatica Health Monitoring Platform, and in the case of any such unreasonable excessive use, acknowledges that Empatica may impose restrictions on such use, including through the imposition of technical blocking/throttling measures or by temporarily suspending User access privileges.
5.4. Malware. Customer agrees to not willfully disrupt the operation of the Empatica Health Monitoring Platform, 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 Empatica Health Monitoring Platform does not inadvertently introduce any viruses or malicious code.
5.5. Prohibition on Government Use. Customer agrees that it may not access or use the Empatica Health Monitoring Platform 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 Empatica Health Monitoring Platform:
(a) none of the components of Empatica Health Monitoring Platform constitute a deliverable under any governmental contracts or subcontracts, and
(b) no government entity may acquire any rights or licenses to the Empatica Health Monitoring Platform or any other intellectual property of Empatica.
5.6. Academic Subscriptions. In some cases, Empatica may make available subscriptions to the Empatica Health Monitoring Platform with discounted pricing for certain qualified institutions, such as educational institutions or qualified non-profit organizations that are organized and operated exclusively for the purpose of education or research (“Academic Institutions”). These subscriptions are “Academic Subscriptions”. Use of the Empatica Health Monitoring Platform pursuant to an Academic Subscription is limited as follows: (i) Users must be employed by, or enrolled in a course of academic study at, the Academic Institution, (ii) at the location of such Academic Institution, and (iii) solely for purposes directly related to teaching, training, degree-granting programs, and research and development that are part of the instructional functions of the Academic Institution. Without limiting the foregoing, Academic Subscriptions may not be used for commercial, professional, or productive purposes, for commercial training, or for any other for-profit purposes.
Fees and Payment
6.1. 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.
6.2. 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.
6.3. 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 a currency accepted by Empatica, and payment of any charges related to currency exchange will be the sole responsibility of Customer.
6.4. 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.
Term and Termination
7.1. Subscription Term. The Services under an Order will be provided for the duration of the Subscription Term unless the Order is terminated sooner pursuant to these Terms. Customer will promptly cease its use of the Empatica Health Monitoring Platform, and return any leased devices, upon expiration of the Subscription Term.
7.2. Access and Use Beyond the Subscription Term. Any continued access to and use of the Empatica Health Monitoring Platform beyond the Subscription Term may be subject to additional charges at Empatica’s then-current standard price for such access and use.
7.3. 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 be reasonably cured within the cure period and the breaching party can demonstrate that it is diligently working towards a cure.
In addition to the foregoing, Empatica may terminate the Services for cause as follows:
(a) Where Customer fails to make a payment within thirty (30) days of the payment due date, Empatica may terminate the Services upon thirty (30) days’ prior written notice to Customer of such nonpayment and intent to terminate the Services.
(b) Where Empatica reasonably believes that Customer’s continued access to and/or use of the Services violates applicable law, Empatica may terminate the Services immediately upon written notice to Customer.
7.4. Termination for Convenience. Customer is not required to use the Empatica Health Monitoring Platform and may cease its use at any time. Either party may terminate the Services at any time upon ninety (90) days’ prior written notice, provided that such termination may be subject to payment of Subscription Fees (in the case of Customer) or a refund of prepaid Subscription Fees (in the case of Empatica) as described further herein.
7.5. Effect of Termination. Upon the date of termination of the Services, all Customer rights to access and use the Empatica Health Monitoring Platform will expire. Accordingly, Customer will immediately cease its use of the Empatica Health Monitoring Platform and Empatica may take steps to discontinue Customer’s access. Each party will promptly dispose of any Confidential Information of the other party in its possession.
Empatica will make available the data collected through the Empatica Health Monitoring System 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.
(a) Where termination is by Empatica for cause, or by Customer for convenience, all fees described in the Order will become immediately due and payable.
(b) Where termination is by Customer for cause, or by Empatica for convenience, Customer may be eligible for a partial refund of any prepaid fees. For purposes of this calculation, Hardware fees defined in the Order are non-refundable as it also incorporates a Platform Activation fee, designed to offset Empatica’s upfront costs associated with establishing the Services and furnishing and restocking the Hardware. Instead, pre-paid Subscriptions fees are subject to a pro-rata calculation for potential refund. To the extent that Customer’s prepaid fees exceed this pro-rata amount, the excess prepaid fees will be promptly refunded to Customer.
7.6. Suspension of Services. Empatica may take appropriate steps to disable or suspend any Customer and/or User access to the Empatica Health Monitoring Platform, without incurring any resulting obligation or liability, if:
(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
(b) Empatica reasonably believes that:
(i) Customer or the User has failed to comply with any material provision of these Terms, including any use of the Empatica Health Monitoring Platform beyond the scope authorized hereunder; or
(ii) Customer or the User is, has been, or is likely to be involved in any fraudulent, misleading, or unlawful activities.
This section does not limit any of Empatica’s other rights or remedies under these Terms.
8.1. 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.
8.2. 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.
8.3. 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.
8.4. 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.
8.5. 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.
Protection of Personal Data
9.1. 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.
9.2. 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 at
https://lp.empatica.com/data-processing-agreement which are attached to and 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.
9.3. 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.
Intellectual Property and Publicity
10.1. 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.
10.2. Ownership of the Empatica Health Monitoring Platform. The Empatica Health Monitoring Platform, including 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; provided that nothing in this section modifies Empatica’s obligation to furnish the Services as set forth in an Order.
10.3. 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.
10.4. 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. 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.
10.5. 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; and (c) any other derivative intellectual property generated by Empatica in the course of providing the Services. Where legally necessary, Customer agrees to take appropriate steps to perfect any such assignments to Empatica.
10.6. 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 Empatica Health Monitoring Platform, 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. Under no circumstances shall Customer publish any information that may infringe upon terms defined in Articles 8 through 10 defined in these Terms.
10.7. 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. Customer authorizes Empatica to issue press releases or other media announcements regarding Customer’s use of the Empatica Health Monitoring Platform.
Warranties and Disclaimers
11.1. Mutual Representations and Warranties. Customer and Empatica each represent and warrant to the other that:
(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
(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.
11.2. Hardware Warranty. Empatica warrants that, under normal use and service, the wearable Hardware devices of the Empatica Health Monitoring Platform will perform substantially as described in these Terms and in the Documentation for a period of one (1) year.
11.3. 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.
11.4. 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 Empatica Health Monitoring Platform that is attributable to these hazards.
11.5. Disclaimer of Warranty of Fitness for Particular Purpose. Customer acknowledges that the Empatica Health Monitoring Platform is provided on an as-is basis. Except as otherwise expressly provided under these Terms, Empatica does not offer any guarantees with respect to the level of accuracy, validity, reliability, or effectiveness of the Empatica Health Monitoring Platform or any Data Services generated by or through the Empatica Health Monitoring Platform.
11.6. Disclaimers for Customer Compliance and Good Clinical Practice. Empatica agrees that the Empatica Health Monitoring Platform and its performance of the Services will be in compliance with all law applicable to Empatica, and Empatica will be reasonably diligent in maintaining its certifications, clearances, and other approval marks under applicable law and industry standards. However, Empatica makes no representations or warranties with respect to the suitability of the Services to satisfy (a) any compliance obligations applicable to Customer or Customer’s particular use of the Empatica Health Monitoring Platform, or (b) any requirements applicable to Customer under good clinical practice standards, including but not limited to those set out in 21 CFR Part 50, 21 CFR Part 56, ISO 14155, or the ICH Good Clinical Practices E6 guideline.
11.7. Disclaimer of Additional Warranties. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THESE TERMS, EMPATICA HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE UNDER OR IN CONNECTION WITH THESE TERMS OR ANY SUBJECT MATTER HEREOF.
12.1. No Indirect Damages. 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, and replacement costs for using an application or service other than the Empatica Health Monitoring Platform) 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.
12.2. Limitation of Liability. Except for its gross negligence or willful misconduct, in no event will Empatica’s aggregate liability under these Terms exceed one hundred percent (100%) of the portion of the fees attributable to the 12-month period preceding the breach, act, or omission of Empatica entitling Customer to obtain damages hereunder.
12.3. Hardware Risk of Loss. The risk of loss or damage to any wearable Hardware 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. In the event of loss or damages to the Hardware, Customer shall promptly and fully notify Empatica and Customer shall (i) in case of damage to the Hardware, pay the amount defined by Empatica or (ii) in case of loss of the Hardware, customer expressly agrees that Subscription fees associated to the lost Hardware are non-refundable and non-transferrable.
12.4. 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.
12.5. 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: (a) its material breach of these Terms; or (b) its grossly negligent, willful, or intentional wrongful acts or omissions.
In addition, Empatica will indemnify, defend, and hold harmless the other party from and against any claims brought by an unaffiliated third party that the Empatica Health Monitoring Platform 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 Empatica Health Monitoring Platform.
12.6. 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.
13.1. 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 section.
(a) For Empatica S.r.l.:
(i) “Governing Law” means Italian law.
(ii) “Venue” means the courts of Milan, Italy.
(b) For Empatica, Inc.:
(i) “Governing Law” means Delaware law.
(ii) “Venue” means the state and federal courts located in Suffolk County, Massachusetts.
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. Each of Customer and Empatica irrevocably and unconditionally waives any right it may have under Governing Law to seek a trial by jury under any legal action arising out of or relating to these Terms.
13..2. Equitable Relief. Customer acknowledges and agrees that it would be difficult to fully compensate Empatica for damages resulting from the breach or threatened breach of these Terms and, accordingly, Empatica will be entitled to seek injunctive relief 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.
13..3. Entire Agreement; Amendments. These Terms may only be modified by way of a written amendment signed by Empatica. Except to the extent supplemented by an Agreement, 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.
13..4. Notices. Any notice required under these Terms must be made in writing. Notices to Empatica will be delivered to (a) email@example.com, or (b) the address of the applicable Empatica entity described under the definition of “Empatica”. Notices to Customer will be delivered via physical mail or email to the contact information on file with Empatica.
13..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.
13..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.
13..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.
13..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.
13..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.
13..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.
13..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, all clauses regarding confidentiality, personal data protection, intellectual property, and liability will survive the termination of these Terms.