PMcardio for Organizations Pilot Terms and Conditions

Applicable to Non-U.S. Customers

Definitions and Interpretation
1. For purposes of this Agreement the following terms shall have the following meanings:
  - “Administrator Permissions” mean permissions given by the Customer to certain User allowing such User to set up and administrate access and permission management, security settings and perform similar administrative actions in relation to the Services provided to the Customer;
  - “Affiliates” mean an entity that owns or controls, is owned or controlled by or is under common control or ownership with a party, where control is defined as the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of an entity, whether through ownership of voting securities, by contract or otherwise;
  - “Agreement” means the Pilot Agreement together with these Terms of Use with all and any schedules and exhibits attached hereto and thereto;
  - “Term” means the term of the Agreement as stipulated in the Pilot Agreement.
  - “Application” means the PM’s mobile application connected to the Modules that may be used by Users, among other things, for upload of ECG images, view of interpretation results as well as other functionality that may become available;
  - “Data Protection Addendum” or “DPA” means an agreement that Customer and PM may elect to enter into in relation to processing of protected health information;
  - “Claim” has the meaning given in Section 15.1;
  - “Content” has the meaning given in Section 5.4 hereof;
  - “Documentation”means user guides, Instructions for Use, technical documentation, and FAQs designed for some or all of the Services as provided to the Customer or published by PM on its website;
  - “ECG” means electrocardiogram – the result of a cardiovascular test that measures electrical activity of the heart;
  - “Effective Date” means, unless stipulated otherwise in the Pilot Agreement, the date on which the last Party signed the Pilot Agreement;
  - “EULA” means end user license agreement between PM and Users concluded for the purposes of provision of the Services;
  - “Feedback” has the meaning given in Section 9.5 hereof;
  - “Fees” mean fees Customer shall pay to PM for the provided Services in accordance with this Agreement;
  - “Force Majeure Event” has the meaning given in Section 14.3 hereof;
  - ”HP User” means a User that is a healthcare professional with basic knowledge of ECG interpretation;
  - “Instructions for Use” has the meaning given in the Pilot Agreement;
  - “Investigational Use” means a use of the Services for purposes other than clinical diagnosis, patient management, or an investigation that is not exempt under the Regulation (EU) 2017/745 of the European Parliament and of the Council of 5 April 2017 on medical devices or any other purpose limited to a medical device;
  - “License” has the meaning given in the Pilot Agreement;
  - “Medical Device Module” means a Module that is a registered medical device that has been cleared by the European Medicines Agency or another applicable authority to be marketed (for commercial purposes) within the Territory and may be used only by HP Users;
  - “Module” means the underlying technology package that may, among other things, provide ECG processing, analysis and detection of certain indications, as well as other functionality that may become available;
  - “Privacy Policy” means the privacy policy informing the Customer and its Users as the relevant data subjects about the processing of data and personal data in relation to the Services and their respective rights and available at https://www.powerfulmedical.com/legal/pmcardio-org-privacy/;
  - “Research Module” means a Module that is for Investigational Use only and may be used only by HP Users;
  - “Services” mean provision of the Modules to the Customer under the Pilot Agreement via Web Platform, Application and/or through the Service Account to the Customer for the purposes of time-limited testing and further research and development of the Modules and associated technology;
  - “Service Account” means Customer’s account that may be used for managing API (Application Programming Interface) access and integrations by utilization of which Customer can access the Modules;
  - “Site” means a specific hospital or similar site set forth in the Pilot Agreement where the Services may be used;
  - “Terms of Use” means these terms and conditions of use governing the use of respective Modules under the Pilot Agreement;
  - “Territory” means the geographical territory set forth in the Pilot Agreement on which the Services are being provided to the Customer;
  - “Usage Allowances” means any limitations that Services are or may be subject to as stipulated in these Terms or in the Pilot Agreement;
  - “User” means any individual who has access to the Services based on the License granted to the Customer as part of the Pilot Agreement;
  - “Web Platform” means the web application interface connected to the Modules which the Customer and Users may use for viewing of interpretation results, User administration, Service Account administration, and general account administration.
2. A statutory provision includes a reference to the statutory provision as modified or re-enacted from time to time, and any subordinate legislation made pursuant to the statutory provision, in each case whether before or after the Effective Date.
3. Any reference to persons or entities includes a reference to natural persons, any corporate body, unincorporated association, trust, partnership, or other entity or organization, and includes a reference to that person’s or entity’s successors or assigns.
4. Unless the context requires otherwise, the singular includes the plural and vice versa. The headings in these Terms of Use and the Pilot Agreement shall not affect their interpretation. Any reference to the term “including” shall be deemed to mean “including without limitation”. Any reference to the term “execution” shall include execution by electronic signature.
Order of preference
1. To the extent there are any terms in the Pilot Agreement that are contradictory to the terms hereof, the terms of the Pilot Agreement shall prevail and govern.
Obligations of the Customer
1. The Customer acknowledges and agrees that:
  1. Customer shall use the Services exclusively in accordance with the Agreement, Documentation and any applicable laws and regulations.
  2. Customer is fully and exclusively responsible for using the Services and for any consequences resulting from such use. The Customer must ensure that each User acts in full compliance with this Agreement.
  3. The Customer shall provide the necessary cooperation that PM may require to carry out its obligations. Such cooperation may include provision of timely and accurate information and documentation and making available to PM all equipment, material, information, data, network access, or facilities that PM may reasonably require to carry out its obligations. The Customer acknowledges that any delay on its part in the performance of its obligations may have an impact on PM’s performance of its activities under the Agreement, and PM shall not be liable for any delay caused by Customer’s failure to fulfil any of its requirements under the Agreement.
Fees
1. If it is stipulated in the Pilot Agreement that the pilot is a paid pilot, Customer undertakes to duly and timely pay PM the Fees for the provision of the Services based on the price list included in the Pilot Agreement. All pre-paid Fees are non-refundable.
2. PM shall issue electronic invoice to the Customer for payment of Fees within 14 calendar days from the execution of the Pilot Agreement. Unless otherwise stipulated in the applicable Order Form, the invoices shall be due within fourteen (14) calendar days from the delivery of the invoice to the Customer. The invoice shall meet all the requirements of legal regulations applicable to PM on its issuance, in particular it must contain all the requirements of an accounting tax document. Electronic invoices will be sent to the Customer billing e-mail address set forth in the Pilot Agreement.If any undisputed Fee under this Agreement is not paid when due, then PM is entitled to payment of interest from the due date until payment is made in full, at 12% (twelve per cent) per annum.
3. Fees are exclusive of all taxes or duties that PM may be required to collect or pay in relation to delivery of the Services (other than taxes levied on PM’s income). Customer agrees to pay such taxes or duties unless Customer is exempt from such taxes or duties. Where applicable, Customer will provide PM with an exemption resale certificate.
Users and Use of the Services
1. The Customer acknowledges, shall secure and is responsible for the following:
  1. To use the Services, each User must have an account. To create such account, certain details must be provided. In setting up the accounts, Customer shall truthfully provide all required information. Each HP User must be a healthcare professional authorized to provide healthcare in the country and state where the HP User uses the Services. The HP User must follow all regulatory requirements imposed on healthcare professionals by that country and state (including continuing medical education as applicable) and meet any other criteria set forth by the Instructions for Use, where applicable. Users who are not healthcare professionals are not authorized to use the Medical Device Modules and Research Modules regardless of the fact if such Modules are for the Investigational Use only.
  2. Users must be either invited or approved by the Customer in order to access the Services.
  3. Users shall at all times protect their login credentials. Users are not allowed to log in using login credentials of other Users, nor are they allowed to obtain or collect login credentials of other Users.
  4. Users must not use the Services in life supporting or sustaining systems, nor in ECG-monitoring and/or alarm devices.
  5. Users must use the Services in compliance with the Instructions for Use.
  6. Wherever any part of the Services or its interface is labelled “investigational use only” or similar on the user interface, User may use such part of the Subscription Services strictly only for Investigational Use.
  7. Users will at all times adhere to the EULA. No User may use the Services before accepting the EULA.
2. The Customer must provide at least one User with Administrator Permissions. Such User shall be responsible for access and permission management, security settings and performance of similar administrative actions in relation to the Services.
3. The Customer is solely responsible for configuring any security settings and similar settings in relation to the Services correctly.
4. Content. During use of the Services the Users will enter into the Services various information including upload of files (the “Content”). PM does not control, verify, monitor or endorse the Content that Users put on the Services. The Customer and/or Users, as applicable under EULA, shall be responsible for: (a) all Content Users place in or share through the Services and (b) making sure that the Customer and Users have all the rights needed to the Content. In addition, Customer shall secure that by storing, using or transmitting Content Users will not violate any law or the EULA or any rights of a third party.
5. The Customer acknowledges that Users may receive notifications from the PM about new features or improvements to the Services directly via the Services.
6. The Customer is responsible and liable for actions or omissions of its Users in connections of their use of the Services.
Restrictions
1. The Customer will not disrupt or damage the operation of the Services (or attempt to do so), violate rights of third parties, or conduct any activities that may be considered unethical, illegal or contrary to good faith.
2. The Customer shall not (and shall not authorize any third party to): (a) modify, translate, reverse engineer, decompile, disassemble, or create any derivative works based on the Services, except to the extent that enforcement of the foregoing restrictions is prohibited by applicable legislation; (b) circumvent any user limits, Usage Allowances, or other timing, use, or functionality restrictions built into the Services; (c) remove any proprietary notices, labels, or marks from the Services; (d) frame or mirror any content forming part of the Services; (e) access the Services in order to (i) build a competitive product or service, or (ii) copy any ideas, modules, functions, or graphics of the Services; (f) use PM’s intellectual property rights (or any related or similar logos or trademarks of PM) for its benefit or (g) use the Services in a way that is prohibited by the Instructions for Use. Moreover, specifically in relation to the Service Account, if used by the Customer, the Customer will not (i) “frame,” distribute, resell, or permit access to the APIs by any third party other than as allowed by the features and functionality of the Services; (ii) interfere with, disrupt, or gain unauthorized access to the Service Account or API keys; (iii) transfer to the Service Account or API or otherwise use on the API any code, exploit, or undisclosed feature that is designed to delete, disable, deactivate, interfere with or otherwise harm or provide unauthorized access to the Service Account or API.
3. The Customer will not make any fully automated decisions on the basis of information provided by the PM during or based on the use of the Services and must always ensure appropriate human intervention by User review and verification before using such information for any purpose.
4. Usage Allowances. The Customer shall use the Services within the Usage Allowances set forth in the applicable Pilot Agreement. Any warranties, including any warranties related to performance of the Services provided by PM in the Agreement shall be subject to the Customer’s compliance with the Usage Allowances and Instructions for Use.
Rights of PM
1. PM is under no circumstances responsible for the use of the Services by the Customer including the use of the Services by its Users, or consequences of such use, other than for liability set out in applicable mandatory law.
2. PM is entitled to change the scope of the Services unless such change would result in a substantial decrease in the quality of the Services. In such case, the Customer is not entitled to demand any compensation for damage or other compensation, unless stated otherwise herein.
3. If PM determines that the use of the Services by the Customer, i.e. by any Users is in violation of this Agreement or applicable law, PM may, at its discretion, without affecting any its rights relating to the termination hereof, cancel the account of the Customer, temporarily or permanently block the access to the Services of the Customer and/or its respective Users.
4. The Customer acknowledges that PM may review each User´s registration to determine such User´s compliance with conditions set out in Section 5, in particular Section 5.1.2.
Confidentiality
1. The following information is considered as confidential (the “Confidential Information”):
  1. either Party’s trade secrets, know-how, procedures, ideas, proposals, proprietary technologies and techniques, details of the internal structure and personnel, information about prices and their calculation and all related information made available or disclosed, whether orally, in writing, in the form of an electronic document, visual or audio recording or by any other means;
  2. information of a technical, economic and commercial character, information about products and/or related documentation and manuals, including their content, any information about research and development, including research and development plans, business and development plans, business and product marketing plans, past and present economic results, forecasts and estimates of economic results, budgets and other economic data, as well as any future strategies of PM made available or disclosed, whether orally, in writing, in the form of an electronic document, visual or audio recording or by any other means;
  3. the existence and content of any discussions relating to the subject matter of hereof, unless agreed otherwise;
  4. any information designated by PM as confidential regardless of the form of such designation;
  5. and any notes, records or copies relating to information referred to in 8.1.1 to 8.1.4 above made by one of the Parties or one of their personnel.
2. Parties may provide each other with the Confidential Information. The Confidential Information made available shall be used solely for the purpose for which it was provided.
3. Notwithstanding Section 8.1 the information shall not be considered to be Confidential Information if it (a) is or becomes generally available to the public through no breach of this Agreement, (b) was in receiving Party’s possession or known by it prior to receipt from the disclosing Party, (c) was rightfully disclosed to either Party without restriction by a third party, (d) was independently developed without the use of any Confidential Information of other Party or (e) is required by law to be disclosed, provided that the receiving Party first provides the disclosing Party with reasonable prior notice and obtains, or provides disclosing Party with an opportunity to obtain, a protective order or confidential treatment of the Confidential Information. Notwithstanding anything to the contrary in this Agreement, the receiving Party may disclose the Confidential Information of the disclosing Party to the extent required by an information disclosure request made under applicable law, provided that the receiving Party promptly notifies the disclosing Party of the information disclosure request before disclosing the Confidential Information and comply with disclosing Party’s reasonable requests regarding its efforts to oppose the disclosure. Notwithstanding the foregoing, the receiving Party is not obliged to notify the disclosing Party of the information disclosure request if it would result in a violation of applicable law by the receiving Party.
4. Confidential Information that are being disclosed must be kept confidential by the receiving Party and must not be disclosed to any third parties and persons, unless agreed otherwise by the Parties or as provided in this Agreement. The receiving Party undertakes to ensure the confidentiality and protection of Confidential Information against access by unauthorized persons, and to notify the disclosing Party without undue delay of a suspicion of breach of this Section 8.
5. Either Party shall return and/or destroy the Confidential Information of the other Party upon termination or expiration of this Agreement. If the Confidential Information are on material documents, the receiving Party is obliged to return them physically. In the event that the Confidential Information is stored in electronic form, the receiving Party is obliged to securely delete all Confidential Information stored in electronic form and destroy any media to the extent it contains such Confidential Information subject to the restrictions imposed by mandatory applicable law. The Parties are obliged to provide each other, upon request, a written certification of deletion and destruction. The Customer further undertakes to return all Confidential Information provided, at any time upon disclosing Party’s request. However, if such request for return is not accompanied by a termination of the Agreement or is made after this Agreement has already expired, the Customer is obliged to return the requested Confidential Information only to the extent such return will not affect the provision of the Services.
6. It is understood and agreed that in the event of a breach of this Section 8, damages may not be an adequate remedy and the disclosing Party shall be entitled to specific performance, injunctive relief as well as all other rights and remedies that the disclosing Party may have to restrain any such threatened or actual breach.
7. All Confidential Information belonging to each Party will remain the sole property of and available to that party and the recipient does not acquire any rights related to the Confidential Information upon their provision, unless otherwise provided in this Agreement.
Data
1. The Parties understand that all processing of personal data in relation to this Agreement shall be in compliance with all applicable data protection legislation and the Privacy Policy.
2. Patient Data. The Parties acknowledge that no personal identifiable information or protected health information data of the Customer’s patients shall be processed as part of the Services unless the Parties agree otherwise and conclude a DPA before such processing takes place. It is the Customer’s responsibility to initiate entering a DPA. Conclusion of the DPA may be subject to an additional Fee.
3. Customer Representation. Customer represents and warrants that it owns or has obtained all rights, consents, permissions, waivers, or licenses necessary to allow PM’s access to, possession of, manipulation of, and use of the Customer’s data as contemplated or permitted hereunder.
4. Continuous Improvement of Services. Notwithstanding anything to the contrary in the Agreement, PM shall have the right to collect and analyze any de-identified, aggregate or anonymized data (including personal data which does no longer allow an identification of the individual, including a patient) derived from the Customer’s data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies, and PM will be free to (i) use such information and data to improve and enhance the Services and other PM’s offerings (or offering of its Affiliates) and all their capabilities, performance and effectiveness, (ii) use such information and data for its general research and development as well as scientific research purposes, and (iii) make such data available in the aggregated and anonymized form via anonymized industry standard trends.
5. Customer Feedback. If the Customer (or its Users) provides PM with any reports of defects and/or suggests modifications (the “Feedback”), PM shall have the right to use such Feedback, including incorporating the Feedback into its Services or other services or products, without any obligation to the Customer.
6. Usage Data. The Customer acknowledges and agrees that provision of the Services involves, and the Customer authorizes PM to: (a) collect usage data in connection with Customer’s (and its Users’) use of the Services; (b) conduct Customer (and User) satisfaction surveys; and (c) use usage data, Customer satisfaction data and Feedback in connection with providing, analyzing, and improving the Services.
7. Return of data. Upon the request of the Customer that is made (i) any time during the Term, or (ii) within thirty (30) calendar days after the effective date of termination or the expiration of the Agreement, PM will make Customer’s data available to the Customer in a file for download in industry acceptable format. After such thirty (30) day period, PM shall have no obligation to maintain or provide any such Customer’s data and may thereafter, unless and to the extent legally prohibited from doing so, delete all Customer’s data in PM’s systems, under PM’s control or otherwise in PM’s possession. Upon instruction of the Customer, PM shall, within commercially reasonable time, unless and to the extent legally prohibited from doing so and subject to its internal data retention practices, delete all Customer’s data in PM’s system, which were requested by the Customer, in accordance with applicable law. For the avoidance of doubt, the Customer acknowledges that this clause shall not apply to the following: (a) data in audit logs; (b) de-identified or anonymized data under Section 9.4 hereof; (c) usage data, Customer satisfaction data and Feedback under Section 9.5 hereof; (d) other aggregated data; and (e) other data stored for statistical purposes.
8. Data Backups. The Services are not intended to, and will not, operate as a data storage or archiving service and the Customer agrees not to rely on the Services for the storage of any of its data. The Customer is solely responsible for the maintenance and backup of its data with the sole exception of backup features set forth by internal backup policies and processes of PM solely for disaster recovery purposes.
Warranty and Representations
1. Customer represents, covenants, and warrants that the Customer will use (and will cause its Users to use) the Services in compliance with the applicable law and this Agreement. PM warrants that any Services shall be provided (i) in accordance with the laws applicable to PM, and (ii) in accordance with the terms of the Agreement.
2. Except as provided herein, PM MAKES NO EXPRESS REPRESENTATIONS OR WARRANTIES WITH REGARDS TO THE SERVICES, DOCUMENTATION, CONSULTATION, OR ANY CONTENT. PM does not warrant that the Services will be uninterrupted or error free; nor does it make any warranty as to the results that may be obtained from use of the Services. THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND PM DISCLAIMS ALL STATUTORY OR OTHERWISE CONDITIONS, REPRESENTATIONS, AND WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. PM IS NOT ENGAGED IN THE PROVISION OF HEALTHCARE NOR PRACTICE OF LAW. ANY STATEMENTS OR ASSISTANCE PM PROVIDES SHOULD BE INTERPRETED AS OPINIONS OR ADVICE CONCERNING ISSUES TO BE CONSIDERED IN CONNECTION WITH THE SERVICES. CUSTOMER ACKNOWLEDGES THAT NEITHER PM NOR ITS THIRD-PARTY PROVIDERS CONTROLS THE TRANSFER OF DATA OVER THE INTERNET, AND THAT THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET. PM IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. PM makes no warranty regarding the quality, accuracy, timeliness, truthfulness, completeness, or reliability of the products and services provided under the Services, Documentation, or any content of PM.
3. Third-Party Services. The Services may be integrated with third-party applications and services (“Third Party Services”). Customer’s access to and use of any Third Party Services, if any, including any goods, software, services or information made available from those Third Party Services, is governed by the terms and conditions applicable to those Third Party Services. Third Party Services are not owned or operated by PM in any way. THE CUSTOMER SHALL USE THIRD PARTY SERVICES AT ITS OWN RISK. PM MAKES NO WARRANTIES, CONDITIONS, INDEMNITIES, REPRESENTATIONS OR TERMS, EXPRESS OR IMPLIED, WHETHER BY STATUTE, COMMON LAW, EQUITY, CUSTOM, USAGE OR OTHERWISE AS TO ANY OTHER MATTERS, INCLUDING BUT NOT LIMITED TO NON-INFRINGEMENT OF THIRD PARTY RIGHTS, TITLE, INTEGRATION, ACCURACY, SECURITY, AVAILABILITY, SATISFACTORY QUALITY, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE WITH RESPECT TO THE THIRD PARTY SERVICES. PM may share some information, in some instances including personal data, with the Third Party Services providers and such Third Party Services providers may share similar information with PM in extent necessary to provide the Services.
4. The Customer specifically acknowledges and agrees that the functionality of the Services, including its medical device components, may be subject to errors. . The Customer or the User as a healthcare professional, as applicable in the specific case, are solely responsible for their patient’s treatment. When providing treatment to a patient, the User must not solely rely on the Services, but must act with due care and evaluate the overall clinical condition of their patient, including taking into account factors which may not be incorporated within the Services (including but not limited to the patient’s condition on visual examination or the results of other examinations).
5. PM may pause access to the Services for a limited period of time to make necessary updates, maintenance and changes to the Services without Customer’s consent.
6. Each Party represents and warrants to the other Party that: (a) such Party is duly incorporated and validly existing under the laws of the jurisdiction of its incorporation; (b) the execution, delivery and performance of the Agreement constitutes the legal, valid and binding obligation of such Party; and (c) such Party has all requisite corporate power and financial capacity, and authority to execute, deliver, and perform its obligations under the Agreement.
System Requirements
1. To use the Application, the Customer and each User must have appropriate internet access and a compatible mobile phone or handheld mobile device.
2. The version of the Services software may be upgraded from time to time to add support for new functionality and services, to improve user experience, or to remove bugs or certain features.
3. To use the Web Platform, the Customer must have a device with appropriate internet access and a compatible web browser.
4. To use the Service Account, the Customer must have a system allowing for utilization of API and have it correctly set up to allow the necessary flow of relevant data.
Regulatory
1. PM will be solely responsible for the preparation, submission and maintenance of all regulatory filings and obtaining all regulatory clearances or approvals with respect to the Medical Device Module. PM will own all right, title and interest in and to any and all regulatory filings and regulatory clearances or approvals directed to the Medical Device Module and all related documentation. Customer will cooperate with PM, at its reasonable request, with respect to any safety or regulatory matters related to the Medical Device Module or the Services.
Termination
1. PM may terminate the Agreement with immediate effect at any time without specifying a reason. In such case, provided it is stipulated in the Pilot Agreement that the pilot is a paid pilot, PM shall refund pro-rata Fees paid for the pilot.
2. The Customer may terminate the Agreement at any time without specifying a reason with a one-month prior written notice. PM may request that such termination have immediate effect.
3. Effect of Termination. Upon termination Customer will cease using the Services and if applicable shall promptly return all copies of the Documentation to PM or otherwise destroy those copies and provide written confirmation that it has done so if requested.
Limitation Of Liability
1. Neither Party shall be liable hereunder for any loss of profits, business, revenues, savings, reputation, production, goodwill, use or data, or for interruption of business, or any other indirect, incidental, special, exemplary, consequential or punitive damages even if advised of the possibility of such damages, regardless of the form of action. Maximum aggregate liability of PM under the Agreement whether in contract, tort (including negligence) or otherwise, shall in no circumstances exceed the amount of EUR 5,000. The Parties agree that this clause represents a reasonable allocation of risks. THE FOREGOING EXCLUSIONS AND LIMITATIONS SHALL BE ENFORCED TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW.
2. PM is not liable to the Customer for any damage or alteration to his/her equipment including but not limited to handheld devices or mobile telephones as a result of the installation or use of the Services.
3. Force Majeure. Neither Party shall be liable for any failure or delay in performing its obligations under this Agreement if such failure or delay is caused by circumstances beyond its reasonable control, including, but not limited to, acts of God, war, terrorism, fire, flood, natural disaster, governmental actions, pandemics, or any other similar event (the “Force Majeure Event”). During the period of any such delay or failure to perform by the affected Party, the obligations of the other Party shall be suspended to the extent necessary to accommodate the effects of the Force Majeure Event. Notwithstanding anything to the contrary herein, neither Party shall be excused from performing its obligations under this Agreement due to financial hardship or inability to meet financial obligations.
Indemnity
1. Customer shall indemnify and defend PM against any any third-party action, claim, or suit (the “Claim”) to the extent such claim is arising from Customer’s or any of its Users’ breach of the Instructions for Use or other misuse of the Services.
2. Customers’ obligations under this Section 15 shall be conditioned on the PM providing the indemnifying the Customer with (i) prompt notice of any Claim, (ii) sole control of the defense and settlement of any such Claim and (iii) reasonable cooperation in such defense and settlement. The Customer will not enter into any settlement or compromise of any such claim without the indemnified PM’s prior written consent provided the settlement would require admission of fault or payment by PM. Subject to the requirements set forth herein, the Customer shall pay reasonable costs incurred by the PM directly related to the Claim.
Notices
1. The Customer consents to any communication sent by PM or any notifications anticipated under the Agreement being sent to the Customer via email to the e-mail address provided in the Customer’s account or set forth in the Pilot Agreement.
2. Any notifications, comments, feedback or any questions shall be sent to PM to the following e-mail address: legal@powerfulmedical.com.
Modification of these Terms
1. PM reserves the right to amend and supplement any part of these Terms of Use at any time. This provision is without prejudice to the rights and obligations that have already arisen during the effective period of the previous version of the Terms of Use.
2. In the event of any modification or update of these Terms, PM will notify the Customer via e-mail reasonably in advance before any such modification becomes effective to the e-mail address indicated in the Customer’s account.
3. In the event of any modification of these Terms, except for any modification merely reflecting changes in applicable legislation, the Customer has the right to reject the planned changes to these Terms until the date on which such changes shall take effect as notified to the Customer.
General
1. Unless the Agreement provides otherwise, neither Party shall assign or transfer any of its rights or obligations under the Agreement without the prior written consent of the other Party except that, subject to the limitations stipulated herein, PM may assign or transfer any of its rights or obligations the Agreement to any of its Affiliates.
2. The failure or delay of either Party to insist upon strict performance of any of the provisions contained in the Agreement will in no way constitute a waiver of its rights as set forth in the Agreement, at law or a waiver of any other provisions or subsequent default by the other Party in the performance or compliance with any of the terms and conditions set forth in the Agreement.
3. If any provision of the Agreement (or any portion thereof) is determined to be invalid or unenforceable the remaining provisions of the Agreement will not be affected thereby and will be binding upon Parties and will be enforceable as though said invalid or unenforceable provision (or portion thereof) were not contained in this Agreement.
4. The provisions of Sections 8, 9, and 14 hereof shall survive the termination or expiration of this Agreement or any portion thereof.

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