GaitKeeper® Terms and Conditions
These are the terms and conditions (these “Terms”) under which GaitKeeper® agrees to grant Customer access to and use of GaitKeeper® online software service offerings. Customer accepts and agrees to be bound by these Terms indicating their electronic assent by clicking “I Agree” or its equivalent, or by using GaitKeeper® software or services. Any individual who indicates their electronic assent or uses GaitKeeper® services on behalf of an entity, represents and warrants to GaitKeeper® that such individual has the legal authority to bind the Customer to these Terms.
Please see Section 13 for definitions of certain capitalized terms used in these Terms.
1. Use of the Services
1.1. Customer’s Account. On or immediately following the Contract Effective Date, GaitKeeper® will enable an account that is personal to Customer for provision of the Services (“Account”). Customer will designate a single point of contact with GaitKeeper® who has been authorized by Customer to manage and support the Services, and establish and manage the Account, including the creation of usernames and passwords to the Account. Customer is solely responsible for maintaining the status of its User base, and Customer will ensure the safeguarding of all usernames and passwords in its possession or under its or its Affiliate’s control. Customer will require its employees and Affiliates to use sufficiently strong passwords and will not allow employees or Affiliates to use the same passwords used to access any other account. Should Customer’s employees or Affiliates choose a password also used for any other account, GaitKeeper® will not be responsible for any unauthorized access or harm to such other accounts. Customer is responsible for all activities that occur under the Account and, except to the extent caused by GaitKeeper® breach of these Terms, GaitKeeper® is not responsible for unauthorized access to the Account. Customer will contact GaitKeeper® immediately if Customer believes an unauthorized third party may be using the Account or if Account information is lost or stolen. Customer’s failure to commence or complete configuration or set up of the Services does not release Customer from any of Customer’s obligations under these Terms.
1.2. GaitKeeper® Responsibilities. During the Subscription Term, GaitKeeper® will: (i) use commercially reasonable efforts to make the Services available 24 hours a day, 7 days a week, except for: (a) planned downtime (of which GaitKeeper® will give prior notice and which GaitKeeper® will schedule to the extent practicable during the weekend hours from 6:00 p.m. Friday to 3:00 a.m. Monday, Pacific Time), (b) any unavailability caused by circumstances beyond GaitKeeper® reasonable control, including internet service provider failures or delays or denial of service attacks.
1.3. Customer’s Responsibilities. Except to the extent of any GaitKeeper® Professional Services for which Customer has expressly subscribed, Customer is responsible for (a) the accuracy and completeness of Customer’s configuration and set up of the Services, (b) ensuring that the Services are compatible with Customer’s business systems requirements; (c) the accuracy, quality and integrity of the Data that Customer inputs into the GaitKeeper® Technology, and (d) the maintenance and use of Customer’s hardware, network, internet connectivity and software. Customer will comply with the Acceptable Use Policy referenced in Section 9 below and with applicable laws. Customer will ensure that its Users, Affiliates, employees, agents and representatives comply with all of Customer’s obligations under these Terms, and Customer is responsible for their acts and omissions relating to these Terms as though they were those of Customer.
1.4. Subscription Plans. Customer’s subscription plan for the Services is selected by a Customer at the outset of the Initial Term. Customer may not reduce Customer’s commitment under the Service subscription plan selected during the Service Subscription Term. Customer is not entitled to any refund of fees paid or relief from fees due if the volume of Services Customer actually uses is less than the volume Customer ordered, and Customer may not carry over any of the unused volume to Customer’s next Subscription Term. If Customer wishes to downgrade the Service subscription plan, then Customer must notify GaitKeeper® at least 30 days before the start of the Renewal Term for the applicable Service; the reduction will be effective at the start of the Renewal Term.
2. Proprietary Rights
2.1. Use of the Services. GaitKeeper® grants Customer a nonexclusive, nontransferable right, for the Subscription Term, to access and use the Services, solely for Customer’s internal business operations. GaitKeeper® reserves all other rights.
2.3. GaitKeeper® Intellectual Property and Ownership Rights. As between Customer and GaitKeeper®, GaitKeeper® and GaitKeeper® licensors retain and own all right, title, and interest in all Intellectual Property rights in and to the GaitKeeper® Technology, the Data, the Documentation, GaitKeeper® Confidential Information, and the Services, and all enhancements or improvements to, or derivative works of the foregoing (collectively, “GaitKeeper® Intellectual Property”). Nothing in these Terms transfers or conveys to Customer any ownership interest in or to the GaitKeeper® Intellectual Property.
2.4. Restrictions. Customer will not, except to the extent as may be permitted by applicable law or required by GaitKeeper® licensors, (I) reverse assemble, reverse engineer, decompile or otherwise attempt to derive source code from any of the GaitKeeper® Technology; (ii) reproduce, modify, or prepare derivative works of any of the GaitKeeper® Technology or Documentation; (iii) distribute or display any of the GaitKeeper® Technology or Documentation other than to Customer’s Users; (iv) share, sell, rent or lease or otherwise distribute access to the Services, or use the Services to operate any timesharing, service bureau or similar business; (v) create any security interest in the Services; (vi) alter, destroy or otherwise remove any proprietary notices or labels on or embedded within the GaitKeeper® Technology or Documentation; or (vii) disclose the results of any Service or program benchmark tests without GaitKeeper® prior written consent. Customer may use GaitKeeper® Services only as defined in these Terms and the Documentation and not for the benefit of any third party.
2.5. Suggestions. If Customer provides GaitKeeper® with any suggested improvements to the Services (“Suggestions”), then Customer also grants GaitKeeper® a nonexclusive, perpetual, irrevocable, paid up, royalty free, worldwide, transferable license, with right to sublicense, to make, have made, sell, offer for sale, use, import, reproduce, distribute, display, perform, and make derivative works of the Suggestions, regardless of whether Customer has designated the Suggestions as confidential.
2.6. Federal Government End Use Provisions. GaitKeeper® provides the Services, including related software and technology, for ultimate federal government end use solely in accordance with the following: Government technical data and software rights related to the Services include only those rights customarily provided to the public as defined in these Terms. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency requires rights not conveyed under these Terms, then such rights must be separately negotiated and will be reflected in a mutually agreed upon written addendum to these Terms.
3. Temporary Service Suspension
3.1. Generally, GaitKeeper® may suspend Customer’s right to access or use any portion of the Services immediately upon notice to Customer if GaitKeeper® determines (i) Customer’s use of or registration for the Services: (a) poses a security risk to the Services or any third party, (b) may adversely impact the Services or the networks or Data of any other GaitKeeper® customer or business partner, (c) may subject GaitKeeper® or any third party to liability, or (d) may be fraudulent; (ii) Customer is using any GaitKeeper® trademarks, service marks, trade names, or logos other than as expressly permitted by GaitKeeper® in writing; (iii) that Customer, Customer’s Affiliates or any of Customer’s Users is in breach of these Terms, including if Customer is delinquent in its payment obligations for more than 15 days; or (iv) Customer has ceased to operate in the ordinary course, made an assignment for the benefit of creditors or similar disposition of Customer’s assets, or becomes the subject of any bankruptcy, reorganization, liquidation, dissolution or similar proceeding.
3.2. Effect of Suspension. If GaitKeeper® suspends Customer’s right to access or use some or all of the Services, then (i) GaitKeeper® will not immediately erase any Customer Data as a result of Customer’s suspension. Customer Data will be retained for a reasonable period of at least thirty days following the date of GaitKeeper® notice of suspension to Customer or until termination, whichever is first, after which time GaitKeeper® will have the right to destroy or overwrite Customer Data, in GaitKeeper® sole discretion; (ii) Customer remains responsible for all fees and charges, including for Services to which Customer continues to have access, if any; and (iii) Customer will not be entitled to any compensation or credits for any period of suspension.
3.3. Termination Rights. GaitKeeper® right to suspend Customer’s ability to access or use the Services is in addition to GaitKeeper® right to terminate these Terms pursuant to Section 4 below.
4. Term and Termination
4.1. Initial Term. The initial period of these Terms (the “Initial Term”) begins on the Contract Effective Date and ends after 12 calendar months.
4.2. Automatic Renewal. Upon expiration of the Initial Term, Customer’s subscription to the Services will automatically renew for successive 12 calendar month periods (each a “Renewal Term”), unless sooner terminated in accordance with this Section 4. The Initial Term and each Renewal Term are individually referred to in these Terms as the “Subscription Term.”
4.3. Subscription to Upgraded or Additional Services. If Customer upgrades any of Customer’s Service subscriptions during a Subscription Term, then the Subscription Term for the upgraded Service will be coterminous with the current Subscription Term and GaitKeeper® will invoice Customer an amount equal to the difference between the original Service fee and the upgraded Service fee. If Customer subscribes to an additional Service, the Subscription Term for that Service will begin on the Contract Effective Date for that Service and Customer will be separately invoiced for the applicable activation and annual Service subscription fee for the additional Service.
4.4. Termination for Convenience.
4.4.1. During the Initial Term only, Customer may immediately terminate these Terms or Customer’s subscription to any Service by sending an email to email@example.com within 60 days of the Contract Effective Date. If Customer exercises Customer’s termination rights under this Section 4.4.1, then GaitKeeper® will refund Customer the fees Customer paid to GaitKeeper® for the terminated Services.
4.4.2. Either party may terminate these Terms or Customer’s subscription to any Service effective upon expiration of the then current Subscription Term by providing the other party prior written notice of termination of at least the following length: if Customer is the terminating party, at least 30 days; and if GaitKeeper® is the terminating party, at least 90 days.
4.5. Termination for Breach. Either party may immediately terminate these Terms or any affected Services by notice to the other: (i) if the other party materially breaches any of its obligations under these Terms and, if the breach is capable of cure and except for a breach of Customer’s payment obligation, fails to cure the breach within 30 days of receipt of notice of breach; (ii) upon the party ceasing to operate in the ordinary course, making an assignment for benefit of creditors or similar disposition of its assets, or becoming the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding. Without limiting the foregoing, Customer materially breaches the Agreement by failing to pay any fees and expenses within 15 days of their due date.
4.6. Immediate Termination by GaitKeeper® for Cause. GaitKeeper® may immediately terminate these Terms by notice to Customer if: (i) Customer is unable to resolve any issue leading to suspension of Customer’s Services to GaitKeeper® reasonable satisfaction within 30 days after notice of suspension; (ii) GaitKeeper® determines that Customer, any User or any person using Customer’s Account has violated these Terms or the Acceptable Use Policy and the violation represents: (a) a threat to the security, integrity, or availability of the Services, any Data, any GaitKeeper® Intellectual Property or any data or technology owned by third parties, (b) a violation of applicable law; or (iii) GaitKeeper® must do so in order to comply with the law or requests of governmental entities.
4.8. General Effects of Termination. Upon any termination of these Terms: (i) all of Customer’s rights under these Terms immediately terminate (with the exception of those expressly surviving termination); (ii) Customer remains liable for all fees, charges, expenses and any other obligations Customer has incurred through the actual date of termination; (iii) Customer will immediately return or, if instructed by GaitKeeper®, destroy all of GaitKeeper® Confidential Information in the possession of Customer or Customer’s Affiliates or under Customer’s or their control; and (iv) GaitKeeper® will destroy or overwrite Customer’s Confidential Information within a reasonable period of time, subject to conformance with GaitKeeper® backup and data retention policies. Portions of this Agreement that by their nature should survive termination of this Agreement shall do so.
4.9. Consequences of Termination by Customer for Breach. If Customer terminates these Terms or any Service in accordance with the termination for breach provisions in Section 4.6 above, then GaitKeeper® will refund Customer a pro rata amount of any prepaid Service subscription fees (excluding, for clarification, any set up, activation, implementation time and materials or other fees) applicable to the unutilized portion of the Subscription Term of the terminated Services.
4.10. Consequences of Termination by GaitKeeper® for Breach or Cause. If GaitKeeper® terminates the Terms or any Service in accordance with the termination for breach or cause provisions of Sections 4.6 or 4.7 above, then GaitKeeper® will not refund Customer or relieve Customer from, and Customer remains obligated to pay, all fees attributable to the terminated Services, including those attributable to the unutilized portion of the terminated Subscription Term.
5. Fees and Taxes
5.1. Fees. Customer will pay all fees corresponding to their selected Services, as adjusted for any price increases pursuant to Section 5.4. Customer acknowledges (i) fees are quoted and payable in United States dollars; (ii) fees are based on the quantity of Services purchased and not actual usage; and (iii) payment obligations are non-cancelable and fees paid are nonrefundable. GaitKeeper® will invoice Customer and Customer will pay for any overage fees related to transactions in excess of Customer’s particular Service subscription plan at the rate specified, and if no overage rate is specified, GaitKeeper® then current rates apply.
5.2. Taxes. Customer is responsible for any applicable sales, use, or any value added or similar taxes (collectively, “Sales Taxes”) payable with respect to provision of the Services or GaitKeeper® Professional Services to Customer, arising out of or in connection with these Terms, other than taxes based upon GaitKeeper® net income. All fees, rates and estimates exclude Sales Taxes.
5.3. Annual Increases. Following the Initial Term, Service fees are subject to annual increases, which will be effective beginning upon the first day of the Renewal Term. GaitKeeper® will notify Customer of any increase prior to its becoming effective; notice may be in the form of an invoice. If Customer objects to the increase, then Customer may terminate its subscription to the affected Services for convenience by providing notice to GaitKeeper® at any time within 30 days of receipt of the increase notice; any such termination will be effective on the later to occur of the expiration of the 30 day period or the then current Subscription Term. Customer acknowledges that the following do not constitute fee increases: (i) additional fees for any upgrade or additional Service or Professional Service that Customer orders; and (ii) expiration of any discount or incentive programs to which Customer was previously entitled. Once Customer’s fees are equal to GaitKeeper® standard Service pricing, the fees for the Services will not increase over the immediately preceding Service Subscription Term’s fees by more than 5%. For clarification, if Customer upgrades or adds a new Service at any time during the Subscription Term, the additional amounts due to GaitKeeper® for such upgrade or additional Service will not be deemed a fee increase.
6. Confidential Information
6.1. Confidential Information. “Confidential Information” shall mean all information designated by a party as confidential and that is disclosed by either party to the other party, regardless of the form of disclosure, and shall be deemed to include, without limitation, the GaitKeeper® Technology and the Documentation, and all information relating to prerelease offerings, business plans, pricing, products, patents, security policies and processes, inventions, procedures, methods, designs, source and object code, data, programs, improvements and other works of authorship of the disclosing party.
6.2 Restrictions on Use and Disclosure. Neither party will disclose the other party’s Confidential Information to any third party without express authorization and shall take reasonable measures to prevent any unauthorized disclosure by its employees, agents, contractors or consultants.
6.3. Exclusions. Confidential Information does not include information that the receiving party can establish: (i) has entered the public domain without the receiving party’s breach of any obligation owed to the disclosing party; (ii) has been rightfully received by the receiving party from a third party without confidentiality restrictions; (iii) is known to the receiving party without any restriction as to use or disclosure prior to first receipt by the receiving party from the disclosing party; (iv) has been independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information; or (v) is Data. Restrictions on use or disclosure of Confidential Information do not apply to use or disclosure authorized in writing by the disclosing party.
6.4. Disclosures Required By Law. If any applicable law, regulation or judicial or administrative order requires the receiving party to disclose any of the disclosing party’s Confidential Information (a “Disclosure Order”) then, unless otherwise required by the Disclosure Order, the receiving party will promptly notify the disclosing party in writing prior to making any such disclosure, in order to facilitate the disclosing party’s efforts to protect its Confidential Information. Following such notification, the receiving party will cooperate with the disclosing party, at the disclosing party’s reasonable expense, in seeking and obtaining protection for the disclosing party’s Confidential Information.
6.5. Independent Development. The terms of confidentiality under these Terms will not limit either party’s right to independently develop or acquire products, software or services without use of or reference to the other party’s Confidential Information.
6.6. Protection and Use of Personal Information.
6.6.3. GaitKeeper® will notify Customer of unauthorized access, use, or disclosure of Personal Information within GaitKeeper® custody and control upon confirmation of the same; each party will reasonably cooperate with the other with respect to such unauthorized access, use, or disclosure, including its containment and investigation. Upon confirmation of any vulnerability or breach of GaitKeeper® security affecting Personal Information in GaitKeeper® custody and control, GaitKeeper® will modify its processes and security program as necessary to remediate the vulnerability or breach.
6.6.4. Customer will maintain the confidentiality of, and safeguard its passwords and secret keys used in connection with GaitKeeper® Services. Customer agrees to immediately notify GaitKeeper® if its passwords or secret keys are lost, stolen, disclosed to an unauthorized third party, or otherwise may have been compromised and if it gains knowledge of any unauthorized access, use, or disclosure of Customer’s Account or any other breach of security in relation to its passwords, secret keys or GaitKeeper® Services.
6.6.5. If applicable, Customer will provide notice to its customers that systems that use the GaitKeeper® Technology and Services will collect data about
7.1. GaitKeeper®’ Warranties. 7.1.1. GaitKeeper® warrants to Customer that: (a) the GaitKeeper® Technology, as provided by GaitKeeper® to Customer, will perform in all material respects in accordance with its applicable, then current Documentation; and (b) GaitKeeper® will use commercially reasonable efforts, to ensure that the GaitKeeper® Technology as provided by GaitKeeper® to Customer under these Terms contains no computer virus, Trojan horse, worm, or other similar malicious code. GaitKeeper® does not warrant that the GaitKeeper® Technology is free from all bugs, errors, or omissions.
7.1.2. If GaitKeeper® fails to conform to any of the foregoing warranties and if GaitKeeper® does not render the GaitKeeper® Technology or GaitKeeper® Services conforming within 30 days of Customer’s notifying GaitKeeper® of the nonconformance then, as Customer’s sole and exclusive remedy for any nonconformance, Customer may terminate these Terms upon immediate notice to GaitKeeper®, and GaitKeeper® will refund Customer a pro rata amount of any prepaid Service subscription fees (excluding, for clarification, any set up, activation, implementation, time and materials or other fees) applicable to the unutilized portion of the Subscription Term of the terminated Services.
7.1.3. The warranties in this Section 7.1 will automatically abate to the extent that the GaitKeeper® Technology or GaitKeeper® Services have been modified by persons other than GaitKeeper® employees or authorized representatives, or other than at GaitKeeper® express written direction. The warranties in these Terms are for Customer’s sole benefit, and may not be extended to any other person or entity.
7.2. Customer’s Warranties. Customer represents and warrants to GaitKeeper® that: (i) the information Customer provides in connection with registration for the Services and any Renewal Term, including billing information, is current, accurate and complete; (ii) Customer has not provided any false information to gain access to or use of any GaitKeeper® Intellectual Property; (iii) Customer is not on the United States Department of Treasury, Office of Foreign Asset Control’s list of Specially Designated National and Blocked Persons and Customer is not otherwise a person to whom GaitKeeper® is legally prohibited to provide the Services; (iv) Customer does not conduct business for any unlawful purpose; and (v) Customer has the legal authority to enter into and perform under these Terms.
7.3. Disclaimer of Implied Warranties. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 7, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW: (i) THE GaitKeeper® TECHNOLOGY, SERVICES, GaitKeeper® PROFESSIONAL SERVICES AND ALL INTELLECTUAL PROPERTY AND OTHER INFORMATION PROVIDED BY GaitKeeper® OR GaitKeeper® LICENSORS UNDER OR IN CONNECTION WITH THESE TERMS ARE PROVIDED “AS IS”; AND (ii) THERE ARE NO WARRANTIES, EXPRESS OR IMPLIED, RELATING TO ANY SOFTWARE, PRODUCTS OR SERVICES PROVIDED UNDER OR IN CONNECTION WITH THESE TERMS, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON INFRINGEMENT, OR IMPLIED WARRANTY ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE, OR OF TITLE
8. Claims for Infringement; Indemnification
8.1. Claims of Infringement. If GaitKeeper® believes that the GaitKeeper® Technology may be subject to any claim of Infringement, then GaitKeeper® may, and if Customer’s use of the GaitKeeper® Technology is held to infringe and its use is enjoined, then GaitKeeper® will, at GaitKeeper® own expense, procure for Customer the right to continue using the GaitKeeper® Technology, or replace same with non-infringing technology, or modify the GaitKeeper® Technology so that it becomes non-infringing. If none of the foregoing is available on terms that are commercially reasonable for GaitKeeper®, then GaitKeeper® may terminate Customer’s rights to access and use the Services that require the infringing GaitKeeper® Technology, in which case GaitKeeper® will refund Customer a pro rata amount of any prepaid Service subscription fees (excluding, for clarification, any activation and implementation fees) applicable to the unutilized portion of the
Subscription Term of the terminated Services. GaitKeeper® has no obligation with respect to any actual or claimed Infringement if the Infringement is caused by Customer provided Data, use of the GaitKeeper® Technology other than as specified in the Documentation or these Terms, or combination of the GaitKeeper® Technology with any products, software, services, data or other materials not provided by GaitKeeper®.
8.2.1. Indemnification by Customer. Customer will defend and indemnify GaitKeeper® from and against any claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys’ fees) arising out of or in connection with any third party claim or investigation to the extent based on Customer’s failure to comply with applicable law. Customer will indemnify and hold GaitKeeper® harmless from any claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys’ fees) arising out of or in connection with any noncompliance with the Acceptable Use Policy for which Customer or Customer’s Users are responsible.
8.2.2. Process. Customer obligations to defend or indemnify GaitKeeper® are subject to the following: (a) GaitKeeper® promptly informs the Customer in writing of any claim within the scope of Customer’s defense or indemnity obligations set forth in these Terms; (b) if required to defend, Customer is given exclusive control of the defense of such claim and all negotiations relating to the settlement thereof (except that Customer or may not settle any such claim unless the settlement unconditionally releases GaitKeeper® of all liability and GaitKeeper® may participate in the defense of the claim at its sole cost and expense); and (c) the GaitKeeper® reasonably assists Customer in all necessary respects in connection with the defense of the claim at the GaitKeeper®’ expense.
9. Acceptable Use Policy.
The Acceptable Use Policy applies to Customer’s use of the Services – located at http://www.anatomicalegineering.com/policy
GaitKeeper® will provide Customer notice of any modifications to these Terms or to the Acceptable Use Policy (a “Modification Notice”). If the modifications materially and adversely affect Customer and Customer does not wish to accept such modifications, then Customer may terminate Customer’s subscription to the affected Service by notice to GaitKeeper® to that effect, subject to the following:
10.1. If the Modification Notice states that the modifications will become effective upon commencement of a Renewal Term, then Customer may terminate Customer’s subscription for convenience prior to commencement of the Renewal Term, in accordance with Section 4.5.2 (Termination for Convenience).
10.2. If the Modification Notice states that the modifications will become effective during the then current Subscription Term, then Customer may terminate
Customer’s subscription to the affected Service at any time within the 30 day period following the date of the Modification Notice. Customer’s termination will become effective on the later to occur of (a) the date on which Customer delivers the termination notice, or (b) the date on which the applicable modifications become effective. If Customer terminates a Service subscription pursuant to this Section 10.2, then Customer will be entitled to a pro rata refund of any prepaid Service subscription fees for the terminated Service for the unutilized portion of the Subscription Term (for clarification, Service subscription fees do not include any set up, activation, implementation, time and materials fees, or other expenses incurred in connection with the Services).
10.3. If Customer does not terminate the affected Service subscription as specified in this Section 10, then Customer will be bound by the modified terms beginning upon the date on which the Modification Notice states they become effective
11. Limitations of Liability
11.1. Exclusion of Certain Claims. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY OTHER PARTY FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL, EXEMPLARY OR LOST PROFITS DAMAGES OF ANY KIND, WHETHER FORESEEABLE OR UNFORESEEABLE (INCLUDING DAMAGES FOR LOSS OF DATA, GOODWILL, INVESTMENTS, USE OF MONEY OR USE OF FACILITIES, INTERRUPTION IN USE OR AVAILABILITY OF DATA, STOPPAGE OF OTHER WORK OR IMPAIRMENT OF OTHER ASSETS), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF (i) THE PERFORMANCE OR NONPERFORMANCE OF THESE TERMS OR OF PRODUCTS, SOFTWARE OR SERVICES PROVIDED UNDER THESE TERMS, OR (ii) ANY CLAIM, CAUSE OF ACTION, BREACH OF CONTRACT, INDEMNITY, OR ANY EXPRESS OR IMPLIED WARRANTY, UNDER THESE TERMS OR OTHERWISE, MISREPRESENTATION, NEGLIGENCE, STRICT LIABILITY, OR OTHER TORT.
11.2. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND EXCEPT FOR INSTANCES OF GROSS NEGLIGENCE OR WILLFUL MISCONDUCT BY EITHER PARTY, IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EITHER PARTY EXCEED THE FEES ACTUALLY PAID BY CUSTOMER TO GAITKEEPER® UNDER THESE TERMS IN THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH A CLAIM, REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED IN CONTRACT, MISREPRESENTATION, WARRANTY, NEGLIGENCE, STRICT LIABILITY OR OTHER TORT OR OTHERWISE. THE FOREGOING DOES NOT APPLY TO CUSTOMER’S DEFENSE AND INDEMNIFICATION OBLIGATIONS, TO CUSTOMER’S OBLIGATIONS TO PAY FEES AND EXPENSES WHEN DUE AND PAYABLE, NOR TO ANY INFRINGEMENT OR MISAPPROPRIATION BY CUSTOMER OF ANY OF GAITKEEPER® INTELLECTUAL PROPERTY RIGHTS.
11.3. General. Customer agrees that these exclusions and limitations apply even if the remedies are insufficient to cover all of the losses or damages of Customer, its Affiliates or Users or if the remedies fail of their essential purpose. Customer agrees that without these limitations the fee for the Services would be significantly higher. Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages. Accordingly, some or all of the above exclusions or limitations may not apply and the parties may have additional rights.
12.1. Relationship of the Parties. The parties are independent contractors. These Terms do not create a partnership, franchise, joint venture, agency, or fiduciary or employment relationship. The parties are each responsible for paying their own employees, including employment related taxes and insurance.
12.2. Export Compliance. Each party will comply with the export laws and regulations of the United States and other applicable jurisdictions in providing and using the Services. Without limiting the foregoing, Customer represents that none of Customer or Customer’s Users are prohibited by any government from receiving any exports.
12.3. Third Parties. GaitKeeper® is not responsible for nor does GaitKeeper® in any way endorse any Third Party Applications or websites to which the GaitKeeper® Website or Services provides links.
12.4. Promotional Rights. Neither party may issue any press release regarding these Terms without the other party’s prior written consent. GaitKeeper® may include Customer’s name and logo in lists of customers or vendors.
12.5. Other Technology or Services; Changes. Customer acknowledges and agrees that Customer has not relied on any future availability of any service offerings, technology, or enhanced or updated features or functionality.
12.6. Dispute Resolution. 12.6.1. Governing Law and Venue. These Terms will be governed by and interpreted in accordance with the internal laws of the State of Delaware and, where such laws are preempted by the laws of the United States, by the internal laws of the United States, in each case without regard to (a) conflicts of laws principles, and (b) the applicability, if any, of the United Nations Convention on Contracts for the International Sale of Goods. Any disputes, actions, claims or causes of action arising out of or in connection with these Terms or the Services will be subject to the exclusive jurisdiction and venue of the state and federal courts located in Delaware, and each party waives any claim that a more convenient forum can be found.
12.6.2. Equitable Relief. Without prejudice to Customer’s rights to obtain equitable relief, Customer acknowledges that damages will be an inadequate remedy if Customer, Customer’s Affiliates or Users violate Customer’s obligations under these Terms pertaining to the protection, security or integrity of the GaitKeeper® Technology or GaitKeeper® Intellectual Property; GaitKeeper® has the right, in addition to any other rights GaitKeeper® may have, to obtain in any court of competent jurisdiction, temporary, preliminary and permanent injunctive relief to restrain any breach, threatened breach, or otherwise to specifically enforce such obligations, without any obligation to post any bond or similar security.
12.6.3. Legal Actions and Expenses. Except with respect to any infringement or misappropriation of any Intellectual Property rights or Customer’s failure to pay fees and expenses when due and payable, neither party may bring any action arising out of or relating to these Terms more than 2 years after the cause of action accrued.
12.7. Force Majeure. Neither party will be responsible for failure or delay of performance if caused by reason of any circumstances beyond its reasonable control, including any act of God, labor disputes or other industrial disturbances, systemic electrical, telecommunications, or other utility failures, earthquake, storms or other elements of nature, blockages, embargoes, riots, acts or orders of government, or acts of terrorism or war, provided, however, that the affected party will use all commercially reasonable efforts to avoid or remove such causes of nonperformance and will proceed whenever such causes are removed or cease.
12.8. Notices. GaitKeeper® will provide Customer with notices that affect GaitKeeper® customers generally (e.g., notice of an update made to the Services) by email or by posting it on the GaitKeeper® Website or console. GaitKeeper® will provide Customer with any legal notices by first class mail or email to the mailing or email address Customer provided GaitKeeper® during Customer’s registration for the Services, or to a substitute, updated mailing or email address that Customer has provided to GaitKeeper® for these purposes. Customer is responsible for keeping its mailing and email address current with GaitKeeper®. Notices that GaitKeeper® sends electronically will be deemed received upon dispatch, and notices that GaitKeeper® sends by first class mail will be deemed received within 3 days of dispatch, regardless of whether Customer actually receives the notice. Except as otherwise specified in these Terms, all notices to be given to GaitKeeper® under these Terms must be in writing and sent to GaitKeeper® headquarters at the address then specified on the anatomicalengineering.com Website.
12.9. Successors and Assigns. Neither party may assign any of its rights or obligations under these Terms without the other party’s prior written consent, which consent may not be unreasonably withheld; provided, however, that either party may assign all (but not some) of its rights and obligations to any entity into or with which it is merged, or which acquires all or substantially all of its assets, or which is an Affiliate of such party unless, in the case of an assignment by Customer, the assignee is a competitor of GaitKeeper®. It is not unreasonable for GaitKeeper® to withhold consent to an assignment to a competitor. Any attempt to assign these Terms other than in accordance with this Section 12.9 will be null and void. Subject to the foregoing, these Terms will bind and inure to the benefit of each party’s permitted successors and assigns.
12.10. Severability. If any provision of these Terms is determined to be invalid or unenforceable in any relevant jurisdiction, then to the fullest extent permitted by law: (i) it will be deemed modified to the extent necessary to make it enforceable in that jurisdiction and consistent with the original intent of the parties; (ii) the affected provision will remain in full force and effect; and (iii) all other provisions of these Terms will remain in full force and effect.
12.11. Waiver. No waiver of or with respect to any provision of these Terms, nor consent by a party to the breach of or departure from any provision of these Terms, will in any event be binding on or effective against such party unless it is in writing and signed by such party, and then the waiver will be effective only in the specific instance and for the purpose for which given.
12.12. Captions and Headings. The captions and headings are inserted in these Terms for convenience only, and will not be deemed to limit or describe the scope or intent of any provision of these Terms.
12.13. Entire Agreement. These Terms constitute and embody the entire agreement and understanding between the parties with respect to the subject matter hereof and supersede all prior or contemporaneous written, electronic or oral communications, representations, agreements or understandings between the parties with respect thereto. Except as specified in Section 10, these Terms may not be modified or amended except by a written instrument executed by both parties. The Acceptable Use Policy is incorporated into and made a part of these Terms. Customer’s standard terms of purchase (including purchase order terms), if any, are inapplicable.
Capitalized terms used in these Terms have the following meanings: “GaitKeeper®,” means Anatomical Engineering, Inc., a Delaware corporation, its Affiliates and their respective successors and assigns “GaitKeeper®” means products and services offered by GaitKeeper® for purchase by Customer, together with other computer software programs, networks and equipment that GaitKeeper® uses to make them available to its customers as an online software as a service offering. GaitKeeper® Technology does not include Third Party Applications.”GaitKeeper® Website” means www.anatomicalengineering.com, or any other website that GaitKeeper® may own or manage.
”Affiliate” means an entity that controls, is controlled by or is under common control with a party to these Terms at any time during the Subscription Term; for these purposes, “control” means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Contract Effective Date” means the earliest of: (i) the date Customer accepts these Terms; or (ii) as mutually agreed by the parties in writing is the effective date of these Terms.
“Customer” means the legal entity that indicates it’s assent to or uses GaitKeeper®, thereby accepting these Terms.
“Data” means any information uploaded to the GaitKeeper® by Customers, excluding any Personal Information.
“Documentation” means the GaitKeeper® Technology user guides, training manuals and other similar software documentation, as updated or revised by GaitKeeper® from time to time, which GaitKeeper® provides to Customer.
“Intellectual Property” means all trade secrets, patents and patent applications, trademarks (whether registered or unregistered and including any goodwill acquired in such trademarks), service marks, trade names, copyrights, moral rights, database rights, design rights, rights in know-how, rights in Confidential Information, rights in Inventions (whether patentable or not) and all other intellectual property and proprietary rights (whether registered or unregistered, any application for the foregoing, and all rights to enforce the foregoing), and all other equivalent or similar rights which may subsist anywhere in the world.
“Invention” means any work of authorship, invention, know-how, device, design, algorithm, method, process, improvement, concept, idea, expression, discovery or invention, whether or not copyrightable or patentable and whether or not reduced to practice.
“Personal Information” means personally identifiable information of an individual person that is required to be protected by applicable U.S. law.
“Services” mean the GaitKeeper® service offerings to which Customer subscribes.
“Third Party Applications” means computer software programs and other technology that are provided or made available to Customer by third parties. Third Party Applications may interoperate with the Services.
“User” means Customer’s employees and, to the extent they are providing services for Customer’s benefit, the employees of Customer’s service providers to whom Customer grants access to the Services. The following words are to be interpreted as designated: (i) “or” connotes any combination of all or any of the items listed; (ii) where “including” is used to refer to an example or begins a list of items, such example or list is not exclusive; (iii) “specified” requires that an express statement is contained in the relevant document; and (iv) “will” is, unless the context requires otherwise, an expression of command, not merely an expression of future intent or expectation.