Product Terms of Use - REAL System

REAL® Immersive System – Purchase and Fee Agreement

Last modified: February 1, 2021

This Purchase and Fee Agreement (“Agreement”) is by and between the facility agreeing to the terms of this Agreement (“Facility”) and Penumbra, Inc. (“Supplier”), a Delaware corporation with a principal place of business at One Penumbra Place, Alameda, CA 94502.

 

1. REAL Immersive System; Components.

Supplier is the manufacturer of and, under the terms of this Agreement, shall provide to Facility one or more new or reconditioned virtual reality systems called the REAL® Immersive System (the “REAL Immersive System”). The REAL Immersive System includes the REAL Immersive System hardware, REAL Activities and REAL Professional Suite as further described below:

  1. Hardware. The REAL Immersive System is comprised of a tablet (the “REAL Tablet”), a head-mounted display (the “REAL Headset”), a complete set of sensors for use on a patient’s body (the “REAL Sensors”) and a storage case that charges both the headset and tablet (the “REAL Case”). In purchasing the REAL Immersive System, Supplier grants Facility a non-exclusive, non-transferable, revocable license, without the right to grant sublicenses, to the software necessary to operate the connectivity and core functionality of the REAL Immersive System (the “REAL Software”). Sold separately from the REAL Immersive System are the disposable straps bearing or whose packaging bears the official REAL logo and which are intended to be used with the REAL Sensors (the “REAL Sensor Bands”), which, together with the REAL Immersive System shall herein be referred to as the “REAL Products”).
  2. REAL Activities. Supplier grants Facility access to a growing library of REAL System activities, therapeutic applications or other content as identified in the applicable Price Quote (the “REAL Activities”), which includes a non-exclusive, non-transferable, revocable, fee-bearing license, without the right to grant sublicenses, to the software necessary to operate the REAL Activities (the “Activities Software”).
  3. REAL Professional Suite. Supplier shall provide Facility with (i) a non-exclusive, non-transferable, revocable, fee-bearing license, without the right to grant sublicenses, to the software necessary to operate the REAL Tablet (the “TherapyView Software”) (ii) technology set-up and ongoing technical support; (iii) easy access to the experienced REAL Immersive System team of therapists for initial and ongoing Operator (as defined below) training and support; (iv) easy access to the REAL Customer Success team for any account questions; (v) online resources, including therapist and patient education; and, (vi) information regarding the security and privacy policies related to the REAL Immersive System’s compliance with HIPAA (the “REAL Professional Suite”).

 

2. Software License Conditions.

Facility and Supplier agree to the following conditions in relation to the REAL Software, Activities Software and TherapyView Software licenses (collectively, the “REAL Software License”):

  1. Supplier may use technical measures, including software updates, to prevent use of any hardware accessories not distributed by Supplier (“Unauthorized Hardware”), to prevent use of any software or firmware not distributed by Supplier (“Unauthorized Software”), and to protect the technical limitations, security, and anti-piracy systems in the REAL Immersive System.
  2. The use of Unauthorized Software or Unauthorized Hardware or any violation of this Section 2: (i) shall be deemed a material breach of this Agreement; (ii) may cause the REAL Immersive System to malfunction or stop working; and (iii) shall void any warranty provided as part of this Agreement.
  3. Supplier may update the software included in the REAL Software License from time to time without notice to Facility, for example, to include new feature enhancements, add new therapies, or update any technical limitation, security, or anti-piracy feature; provided, however, that such updates shall not be launched on a day or at a time that would disrupt Facility’s use of the REAL Immersive System with its patients.
  4. The REAL Immersive System shall only be used by one (1) or more of Facility’s properly licensed employees, contractors or agents of the age of majority in the state in which Facility is located, acting as an agent of Facility (“Operator(s)”). Facility shall ensure that each Operator is: (i) a licensed healthcare provider, such as a physical therapist, or an authorized assistant, and in all cases legally permitted to use the REAL Immersive System in accordance with the instructions for use provided therewith; and (ii) located in the United States.
  5. Facility shall not: (i) use or install any Unauthorized Software or Unauthorized Hardware with the REAL Immersive System; (ii) modify, reverse engineer, decompile, or otherwise attempt to derive the source code, structure, design, or method of operation of the software included in the REAL Software License; (iii) modify, disassemble, or otherwise tamper with the REAL Immersive System or the software included in the REAL Software License; (iv) modify or disable any hardware or software controls in the REAL Immersive System; (v) attempt to circumvent technological measures or gain unauthorized access through hacking, password mining or any other means; (vi) copy, modify, distribute, sell, or use for the benefit of any third party other than patients of the REAL Immersive System; or (vii) attempt to defeat or circumvent any technical limitation, security, or anti-piracy feature of the software included in the REAL Software License or REAL Immersive System.

 

3. REAL Immersive System Ownership.

After completing the purchase transaction as described herein, Facility shall own the applicable REAL Products. The REAL Software, Activities Software and TherapyView Software and all anonymized or aggregated data resulting from use and operation of the REAL Immersive System, including protected health information as defined by HIPAA (“PHI”) that is de-identified in accordance with 45 C.F.R § 164.514(a)-(b), shall belong solely to Supplier at all times, and no title or other indicia of ownership of any of these are hereby transferred to Facility.
 

4. New and Upgraded REAL Products.

If Supplier develops, introduces or markets any new REAL Products that have not been introduced or marketed at the Effective Date (defined below) of this Agreement, then Supplier agrees that such new REAL Products shall be offered to Facility and, if accepted by Facility, included under the terms of this Agreement. Supplier agrees that such product or technology will be sold to Facility at a newly negotiated fair market value price.
 

5. Purchase and Delivery of the REAL Products; Associated Fees.

  1. Purchase. Supplier will provide Facility with a quote (“Purchase Quote”) which shall set forth the pricing agreed upon between the parties, and any related discounts, for the REAL Products (collectively, a “Price Quote”). Using the pricing from the Price Quote, Facility shall place a purchase order for the quantity of REAL Products it requires using its standard purchase order form, which shall be subject to the terms and conditions herein (“Purchase Order”). Supplier shall issue an invoice in the name of Facility at the address listed on the Purchase Order upon shipment of the ordered REAL Products.
  2. Delivery of REAL Products. Supplier will schedule the delivery of all REAL Products in accordance with its business demands and product availability. The REAL Products shall be (a) suitably packed or otherwise prepared by the Supplier for shipment to prevent damage and to meet the carrier’s requirements, and (b) shipped to the address on the Purchase Order, unless Facility provides an alternative shipping address in writing before the Purchase Order is placed. Facility shall purchase the REAL Products from Supplier, FCA (Incoterms® 2020) Supplier’s designated shipping point. Delivery of the REAL Products to the carrier at Supplier’s designated shipping point shall constitute delivery to Facility, and title to and risk of loss for the REAL Products shall pass to Facility when the REAL Products are delivered to the carrier at Supplier’s designated shipping point.
  3. REAL Immersive System Activities Fee. The fee for the REAL Activities shall be identified as a separate line item from the REAL Products and Professional Suite Fee (as defined below) on the Price Quote (“Activities Fee”). Activities Fees shall be paid either monthly or annually by Facility as agreed between the parties. Payment of a Professional Suite Fee (as defined below) is required with any Activities Fee.
  4. REAL Immersive System Professional Suite Fee. The fee for the REAL Professional Suite shall be identified as a separate line item from the REAL Products and the Activities Fee on the Price Quote (“Professional Suite Fee”). Professional Suite Fees shall be paid monthly or annually as agreed between the parties for all facilities that are part of the same location. Payment of Activities Fee is required with any Professional Suite Fee.
  5. Fee Changes. Supplier may increase or decrease the Activities Fee or Professional Suite Fee (the “Fee(s)”) in its sole discretion on the next Billing Date, as defined below. Supplier will provide written notice of Fee increases of more than 10% with thirty (30) days’ prior written notice.

 

6. Payments.

  1. Facility may pay for the REAL Products, the Activities Fee and the Professional Suite Fee either upon receipt of an invoice from Supplier or by credit card.
  2. Invoiced Payments.

    1. Facility’s payments are due within thirty (30) calendar days from the invoice date.
    2. Each invoice shall give a detailed account of the REAL Products purchased, relevant Fees to be paid and shall reference the appropriate Purchase Order number.
    3. The billing cycle for the Activities Fee and Professional Suite Fee shall begin on the date on which the REAL Products are shipped by Supplier to Facility (the “Billing Date”). The initial invoice for the Fees will be issued on the Billing Date and recurring monthly or annually thereafter.
  3. Payment by Credit Card.

    1. Should Facility desire to pay for the REAL Products and the Fees by credit, charge or debit card, Facility shall provide such relevant payment information to Supplier in such form or format as requested by Supplier.
    2. Upon providing such payment information, Facility authorizes Supplier, its payment processors and any other billing agents to charge Facility for any applicable fees through such specified payment method on each Billing Date. Facility hereby authorizes the issuer of its selected payment method to pay any amounts due as described herein without requiring a signed receipt. Facility authorizes Supplier to continue to attempt to charge and/or place holds with respect to all sums described herein, or any portion thereof, to Facility’s payment method until such amounts are paid in full.
    3. Facility shall provide updated payment information upon request and any time the information previously provided is no longer valid. Facility represents and warrants that it has the legal right to use all payment method(s) provided hereby. Supplier reserves the right to reject any payment method, for any reason, including without limitation any such method for which payment will not process after two (2) attempts by Supplier. Neither Supplier nor any agent of Supplier will have any liability whatsoever for any insufficient funds or other charges incurred by Facility as a result of attempts to charge, and/or place holds on, Facility’s specified payment method as contemplated herein.
    4. Facility hereby authorizes Supplier to obtain a credit report from one or more consumer credit reporting agencies for any lawful purpose, including for authentication purposes or to make credit decisions. Facility authorizes Supplier to verify information in its credit report and agrees that Supplier may contact third parties to verify any such information.
    5. Supplier may use a third-party payment processor (the “Payment Processor”) to bill Facility through the payment method provided by Facility. The processing of payments will be subject to the terms, conditions and privacy policies of the Payment Processor in addition to this Agreement. Supplier is not responsible for errors by the Payment Processor. Facility shall pay Supplier, through the Payment Processor, all charges at the prices then in effect for the REAL Products, the Activities Fee and Professional Suite Fee in accordance with the applicable payment terms presented to Facility at the time of purchase. Supplier reserves the right to correct, or to instruct its Payment Processors to correct, any errors or mistakes, even if payment has already been requested or received.
  4. Payment Inquires. For any question or concerns related to payment, Facility shall notify Supplier within thirty (30) days of any applicable billing date by contacting supplier at askreal@realsystem.com or 1-855-REAL-SYS (1.855.732.5797) (“Contact Info”).
  5. Discounts. Supplier will clearly indicate any discounts on the Fees or the REAL Products on the Price Quote and invoice, as such discounts may apply. Facility is obligated to (a) fully and accurately disclose the cost of the REAL Products purchased and Fees – including all discounts or other price reductions – in cost reports or claims for reimbursement by Facility to Medicare, Medicaid, or other health care programs requiring such disclosure, and (b) provide such documentation to representatives of the Secretary of the Department of Health and Human Services and state agencies upon request. This notice is provided in order to comply with the discount safe harbor to the federal Anti-Kickback Statute, 42 C.F.R. 1001.952(h).

 

7. Suspension, Cancellation and Termination.

  1. REAL Activities and REAL Professional Suite Suspension or Cancellation. Supplier may immediately suspend or cancel Facility’s REAL Activities or the REAL Professional Suite, without notice if: (a) Facility’s payment is overdue (provided that Supplier will use reasonable efforts to notify Facility of the overdue payment before Supplier cancels or suspends the REAL Activities and REAL Professional Suite); (b) Facility provides false or inaccurate information to Supplier; (c) Facility violates this Agreement; or (d) Facility engages in conduct that is a violation of any applicable law or regulations (including, without limitation, copyright and intellectual property laws). Upon suspension or cancellation Supplier will not provide any refunds prorated or otherwise.

    1. Notwithstanding the foregoing, Facility shall have access to all PHI for at least ninety (90) days after the suspension or cancellation of the Activities and Professional Suite Fees for the purpose of continued patient care and therapy. Using the Contact info Facility must notify Supplier that it wishes to export PHI before the end of the ninety (90) day period or PHI will be permanently lost.
  2. Term and Termination of the Agreement.

    1. Term. This Agreement shall commence on the date on which Facility’s lawful representative checks the box on the applicable quote or in the REAL Immersive System storefront to agree to this Agreement (the “Effective Date”) and will continue until terminated in accordance with this section (the “Term”).
    2. Termination for Convenience. This Agreement can be terminated at any time by either party with thirty (30) days’ written notice to the other party.
    3. Termination for Cause. Supplier may terminate the Agreement simultaneously upon providing notice of cancellation of any Activities Fees or Facility Fees herein. Supplier may terminate the Agreement immediately if: (i) Facility fails to pay any fees due and payable under the Agreement; (ii) Facility makes an assignment for the benefit of creditors, suffers the appointment of a receiver, or fails to pay its bills in the ordinary course of business; (iii) Facility attempts to circumvent any security controls of the REAL Immersive System or REAL Software License; or (iv) Facility conducts any of the unauthorized actions related to the REAL Software License.

8. Warranty.

  1. REAL Immersive System Warranty.

    1. Statement. Supplier hereby extends a one (1) year warranty on the REAL Immersive System (the “Covered Products”), warranting that the Covered Products are free from defects in material and workmanship during the one (1) year period following the Effective Date. In the event of breach of this warranty, Supplier’s sole and exclusive liability shall be to repair or replace the Covered Products; provided that: (1) the Covered Products are found by Supplier to have been defective; (2) the Covered Products have been installed and operated in accordance with Supplier’s instructions; (3) no repairs, alterations or replacements have been made to the Covered Products without Supplier’s written approval; and (4) Facility notifies Supplier in writing within thirty (30) days after the defect becomes apparent. In no event shall Supplier’s aggregate liability in connection with breach of any warranty or warranties exceed the amount paid for the REAL Immersive System. Supplier requires the return of the Covered Products to establish any claim of defect.
    2. Exclusions. The foregoing warranty does not cover and shall be void for: (i) defects or damages resulting from casualty, accident, misuse or abuse, neglect, alterations, service or repair by anyone other than Supplier or its independent third party service providers, including without limitation by Facility; (ii) improper installation or de-installation, operation or maintenance, improper connections or other causes not arising out of defects in the Covered Products; (iii) damage due to shipping containers, batteries, software or other accessories; (iv) normal wear and tear; (v) use of unauthorized hardware or unauthorized software; or (vi) damage to or loss of repaired or replaced Covered Products during shipping by Supplier except when such damage or loss is caused by poor or inadequate packaging by Supplier. Facility shall be responsible for, and shall pay, all costs and fees for out-of-warranty Covered Products, including full replacement costs thereof, as determined by Supplier.
    3. Disclaimer. EXCEPT AS EXPRESSLY STATED IN THIS SECTION VI, SUPPLIER MAKES NO WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE. SUPPLIER HEREBY DISCLAIMS ALL SUCH OTHER WARRANTIES, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NONINFRINGEMENT OF THIRD PARTY RIGHTS.

9. Confidentiality.

  1. In the performance of this Agreement, the party receiving Confidential Information (the “Receiving Party”) from the other party (the “Disclosing Party”) is likely to have contact with Disclosing’ Party’s Confidential Information (as defined below), which includes information generated by the Disclosing Party under this Agreement as well as the confidential information of third parties who have shared such information with Receiving Party. The Receiving Party shall: (i) receive, hold and maintain the Disclosing Party’s Confidential Information in strict confidence; (ii) take the same degree of care that it uses to protect its own confidential and/or proprietary information and materials of similar nature and importance (but in no event less than reasonable care) to protect confidentiality and to avoid unauthorized use, disclosure, publication or dissemination of the Disclosing’s Party’s Confidential Information; (iii) use the Disclosing Party’s Confidential Information solely for the purposes of performance under this Agreement; (iv) shall not use or exploit the Disclosing Party’s Confidential Information for its own benefit or the benefit of a third party; and (v) not disclose, distribute, reproduce, reverse engineer, transfer or transmit, directly or indirectly, the Disclosing Party’s Confidential Information without the prior written consent of the Disclosing Party.
  2. Confidential Information” means, without limitation, any information disclosed by the Disclosing Party to the Receiving Party, made by the Receiving Party during performance of this Agreement, or obtained by the Receiving Party during performance of this Agreement or through inspection or observation of Disclosing Party’s property or facilities, including the confidential information of the Disclosing Party’s affiliated entities and third parties who have shared such information with the Receiving Party, where the confidential and/or proprietary nature of the information disclosed is, or reasonably should be, apparent based on the type of information and/or the context in which it is disclosed, such information will be considered the Disclosing Party’s Confidential Information. Disclosing Party’s Confidential Information includes but is not limited to drawings, designs, notes, reports, presentations, data, and know-how that relates to Disclosing Party’s business, including but not limited to, pricing strategy and financial data, plans, models and forecasts; products and/or services; research and development projects and activities; clinical trials; manufacturing techniques, processes and operations; policies; vendors; sales; marketing; software and hardware; technology; and the like. Additionally, Disclosing Party’s Confidential Information includes this Agreement, and any reports or documents created by Facility that include, summarize, refer to or use the Disclosing Party’s Confidential Information.
  3. Disclosing Party’s Confidential Information shall not include information that: (i) was in the lawful possession of the Receiving Party prior to disclosure by the Disclosing Party, as demonstrated by competent evidence; (ii) is, at the time of disclosure, already available in the public domain or becomes publicly available through no act or omission of the Receiving Party in breach of this Agreement; (iii) is disclosed to the Receiving Party by a third party not under an obligation of confidentiality to the Disclosing Party; or (iv) is or has been independently developed by the Receiving Party without breach of this Agreement, as demonstrated by competent evidence. The Receiving Party shall bear the burden of establishing any of the foregoing exclusions.
  4. The Disclosing Party’s Confidential Information, including any modification or enhancement thereto or any information based on or derived therefrom, is and shall remain the property of the Disclosing Party. Nothing in this Agreement shall be construed as creating an express or implied license or right to the Disclosing Party’s Confidential Information or to any patent, trademark, copyright or other intellectual property of the Disclosing Party.
  5. Upon termination or expiration of this Agreement or written request of the Disclosing Party, the Receiving Party shall return or destroy, at the option of the Disclosing Party, all Disclosing Party Confidential Information, including without limitation any written or electronic copies, summaries and other documents containing the Disclosing Party Confidential Information; provided, however, that the Receiving Party may retain one (1) copy of such Disclosing Party’s Confidential Information solely for archival purposes to ensure compliance with this Agreement.

10. Indemnification and Limitation of Liability.

  1. Facility Indemnification. Facility hereby agrees to fully indemnify, defend and hold harmless Supplier, its licensors, suppliers, agents, affiliates and assigns, and our and their directors, officers, employees, consultants and other representatives from and against any and all claims, demands, threats, suits and proceedings, and all associated damages, losses, liabilities, costs (including reasonable attorneys’ fees) and other expenses that arise directly or indirectly out of or from: (a) Facility’s actual or alleged breach of this Agreement; (b) Facility’s activities in connection with the REAL Software License; (c) the negligence or willful misconduct of Facility, any Operator and any other third party that either Facility or Operator permits to access the REAL Immersive System; (d) any death, disease or injury to persons or damage to property arising from the acts or omissions of Facility or Operators; and (e) Facility’s violation of any laws, rules, regulations, codes, statutes, ordinances or orders of any governmental and quasi-governmental authorities, including, without limitation, all regulatory, administrative and legislative authorities. Supplier shall give notice to Facility of any such claims, demands, threats, suits or proceedings, and shall cooperate reasonably with Facility, at Facility’s expense, in Facility’s defense or settlement thereof. In no event shall Facility settle any such claims, demands, threats, suits and proceedings without the prior, written agreement of Supplier.
  2. Supplier Indemnification. Supplier represents that it has full right to sell or license to Facility the REAL Software License, or the use thereof, and that all such software or products are delivered free of liens, encumbrances or rightful claim for infringement of a United States copyright, patent, trade secret or trademark. Supplier agrees to indemnify, defend and hold Facility harmless from lawsuits arising from third party claims of infringement directed to Facility’s use of the products sold hereunder. If the use of an element of the licensed software is enjoined as a result of a claim arising out of a breach of this warranty, Supplier will, at its option and expense: (1) secure for Facility the right to continue to use the allegedly infringing product; (2) replace or modify the product so that it is no longer infringing, provided the product continues to materially perform the same function(s) as originally desired by Facility and otherwise conforms to the warranty hereunder; or (3) terminate the license for the infringing products or software and refund any licensing fees paid by Facility for such products or software. In the event Supplier fails to do the foregoing, Facility may cancel the Activities Fee and Professional Suite Fee and at any time in accordance with this Agreement. The foregoing indemnity obligation shall not extend to any claims of infringement arising out of or related to: (a) a modification of any such product or software by anyone other than Supplier without Supplier’s prior written consent; (b) a modification of any such product or software at Facility’s request or to accommodate Facility’s requirements; (c) a combination of any such product or software with any third party hardware or software or equipment where such combination is the cause of such infringement; or (d) the use of a version of any such product or software other than the then current version if infringement would have been avoided with the use of the then-current version. Supplier’s obligation to indemnify Facility pursuant to the foregoing paragraph is subject to Facility: (i) giving Supplier prompt written notice of any such claim; (ii) giving Supplier sole control over the defense, settlement, and resolution of the judgement of an indemnified claim; (iii) providing full cooperation for the defense of any such claim, at Supplier’s expense; and (iv) not entering into any settlement or compromise of any such claim without Supplier’s prior written approval. The rights granted to Facility under this section shall be Facility’s sole and exclusive remedy for any IP infringement.
  3. Limitation of Liability. IN NO EVENT SHALL SUPPLIER BE LIABLE TO FACILITY OR ANY PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, HOWEVER AND WHEREVER ARISING. IN NO EVENT SHALL THE TOTAL LIABILITY OF SUPPLIER UNDER THESE TERMS OF USE OR REGARDING ANY GOODS OR SERVICES PROVIDED BY SUPPLIER EXCEED THE GREATER OF THE AMOUNT ACTUALLY PAID BY FACILITY IN THE ONE (1) YEAR PERIOD IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO LIABILITY OR TEN THOUSAND DOLLARS ($10,000).

11. Governing Law; No Special Damages.

This Agreement shall be governed, construed and enforced in accordance with the laws of the State of California, without application of conflicts of law. Both parties hereby consent to the jurisdiction of the federal and state courts located in San Francisco, California.

12. Assignment.

This Agreement shall be binding upon and inure to the benefit of the parties and their respective heirs, successors, and assignees. Except for an assignment to a successor-in-interest that acquires a party by merger or acquisition, the Agreement shall not be assigned by either party without the prior written consent of the other party. No person who is not a party shall have any rights hereunder as a third-party beneficiary or otherwise.

13. Waiver; Severability.

Failure of a party to insist upon the performance of the other party of any provision of the Agreement shall not be treated as a modification of the Agreement, nor shall such failure or election be treated as a waiver of the right of such party at any later time to insist upon strict performance of such provision. If any provision of this Agreement is declared void or unenforceable, such provision shall be severed from the Agreement, which shall otherwise remain in full force and effect.

14. Modifications.

Supplier works constantly to improve the Goods and REAL Software License and develop new features for Facilities and patients. As a result, Supplier may need to update this Agreement from time to time. Where updates are material, Supplier will provide Facility with notice of such changes and an opportunity to review them before they take effect, as appropriate. Once any updated terms are in effect, Facility will be bound by them if Facility continues its use of the REAL Immersive System. If Facility does not agree to the updated terms, Facility may suspend or cancel applicable fees in accordance with this Agreement.

15. Communications.

Facility consents to accept and receive communications from Supplier, including e-mails and telephone calls related to the Agreement. Such communications may include, but are not limited to, requests for secondary authentication, receipts, fee increases, reminders, notifications regarding updates or support, and marketing and promotional communications. Facility may opt-out of receiving promotional email communications sent by Supplier by responding to such messages with a request to opt-out or by contacting Supplier using the Contact Info.

16. Ownership.

Supplier reserves all rights not expressly granted to Facility in the Agreement. Supplier owns all rights, title, interest, copyright, patents, and other intellectual property rights in the REAL Products, REAL Professional Suite and REAL Activities. This Agreement do not grant any rights to Facility in Penumbra’s trademarks, service marks or other intellectual property other than pursuant to the licenses expressly granted herein.

17. Personal Data.

Supplier shall collect and use personal data in order to provide the REAL Immersive System in accordance with this Agreement and as allowed under all applicable data privacy laws.

18. Feedback.

Facility may, but is not obliged to, submit comments or ideas about the REAL Products or REAL Software License (“Feedback”) to Supplier. Facility hereby agrees that Supplier may use and disclose Feedback as it sees fit, without notice to or permission from, Facility or any third party, during or after the Agreement and that Facility shall not be under any fiduciary, confidentiality or other obligation with respect to Feedback.

19. Force Majeure.

If either party hereto is prevented from carrying out its obligations under this Agreement by events beyond its reasonable control, acts of God or government, natural disasters, including earthquakes or storms, fire, terrorism, then such party’s performance of its obligations hereunder shall be excused during the period of such events and for a reasonable period of recovery thereafter; provided, however, that the party claiming force majeure shall promptly notify the other party of the existence of such force majeure, shall use commercially reasonable efforts to avoid or remedy such force majeure, and shall continue performance hereunder with the utmost dispatch whenever such force majeure is avoided or remedied. When such circumstances arise, the parties shall discuss what, if any, modification of the terms of this Agreement may be required in order to arrive at an equitable solution.

20. Entire Agreement.

This Agreement, as to its subject matter, exclusively and completely states the rights, duties and obligations of the parties and supersedes all prior and contemporaneous representations, letters, proposals, discussions and understandings by or between the parties.

21. Notice.

Any notice required or permitted under Agreement shall be deemed properly given (i) by Supplier, if e-mailed to the email address associated with the acceptance of this Agreement; and (ii) by Facility, if emailed to askreal@realsystem.com. If Facility wishes to update the email address at which such notices are received, Facility should contact Supplier using the Contact Info.