Last modified: July 21, 2020
- “Authorized Hardware” means the Tablet, Headset and REAL® Sensors, each as defined herein.
- “Billing Cycle” means the period between Billing Dates.
- “Billing Date” means the first day of a Billing Cycle. For the avoidance of doubt, the initial Billing Date shall be the Shipping Date.
- “Change Request” shall have the meaning assigned to it in Section III(C)1.
- “De-identified Data” means all data and information related to Facility’s use of the REAL Immersive System that is de-identified in accordance with 45 C.F.R. § 164.514(a)-(b) and may be used by Penumbra for any lawful purpose, including to compile statistical and performance information related to the provision and operation of the REAL Immersive System.
- “Feedback” shall have the meaning assigned to it in Section VIII(C)(7).
- “Headset” means the head mounted display component of the REAL Immersive System.
- “Operator” means any properly licensed employee, contractor or other individual of the age of majority in the state in which Facility is located, acting as an agent of Facility, in the use of the REAL Immersive System with Patients.
- “Order Form” means the physical or electronic form on which the Subscription Fee, quantities of REAL Immersive Systems and REAL Sensor Bands is entered, along with Facility’s form of payment.
- “Patient” means any patient, client or member of the Facility who will receive or is receiving therapy with the REAL Immersive System.
- “REAL Care” shall have the meaning assigned to it in Section III(B)3.
- “REAL Case” means the suitcase, including the foam, and the underground charging components that are used to store and recharge the Authorized Hardware.
- “REAL Immersive System” means one (1) complete set of new or reconditioned Authorized Hardware, with installed Software, and one (1) REAL Case.
- “REAL Sensor Bands” means the disposable straps bearing or whose packaging bears the official REAL logo and which are intended to be used with the REAL Sensors.
- “REAL Sensors” means one complete set of REAL-branded sensors for use on the Patient’s body as part of the REAL Immersive System.
- “Replacement Fee” shall have the meaning assigned to it in Section III(B)3.
- “Shipping Date” means the date on which Penumbra ships the ordered Real Immersive System(s) to Facility.
- “Software” means the object code version of the REAL software and firmware pre-installed on any Authorized Hardware, including any updates Penumbra may make available from time to time.
- “Swap Out Fee” shall have the meaning assigned to it in Section III(B)3.
- “Subscription” shall have the meaning assigned to it in Section III(A).
- “Subscription Fee” means the total fee set forth on the Order Form for the Subscription.
- “Tablet” means the REAL-branded touchscreen tablet component of the REAL Immersive System.
- “Unauthorized Hardware” means any hardware accessories not distributed directly or indirectly by Penumbra.
- “Unauthorized Software” means any software or firmware not distributed directly or indirectly by Penumbra.
II. Ownership and License.
B. License Grant.
As conditions to the License, Facility understands and agrees that:
- Penumbra may also update the Software from time to time without notice to Facility, for example, to include new feature enhancements, add additional therapies, or update any technical limitation, security, or anti-piracy system.
- 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; (iii) modify, disassemble, or otherwise tamper with the Authorized Hardware or Software; (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) modify, distribute, sell, or use for the benefit of any third party other than Patients any of the Authorized Hardware and Software; or (vii) attempt to defeat or circumvent any technical limitation, security, or anti-piracy system of the Software or Authorized Hardware.
III. Subscription; Pricing.
- Subscription Fee. The Subscription Fee and the quantity of REAL Immersive Systems included in the Subscription are as set forth on the Order Form. The Subscription Fee is inclusive of the cost of REAL Care, as described below.
- Subscription Fee Changes. Penumbra may increase or decrease the Subscription Fee at any time in its sole discretion; provided, that Penumbra shall only increase the Subscription Fee more than ten percent (10%) once per calendar year. Subscription Fee increases of ten percent (10%) or greater will become effective upon thirty (30) days’ written notice from Penumbra. Subscription Fee decreases, and Subscription Fee increases of less than ten percent (10%), will become effective immediately.
- Anti-Kickback Statute. Penumbra will provide Facility with a catalog number to clearly specify any discounted items on the Order Form, if applicable. Facility is obligated to (a) fully and accurately disclose the cost of all Subscriptions and Sensor Bands purchased hereunder – 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).
C. Changes or Modifications to Subscription.
- Facility may make changes to the quantities of REAL Immersive Systems in its Subscription (“Change Request”) by contacting Penumbra in accordance with Exhibit A, which may result in an updated Subscription Fee.
- Change Requests shall be submitted and processed as follows:
- Increases to the Quantity of REAL Immersive Systems in a Subscription. If Facility increases the number of REAL Immersive Systems in a Subscription, Penumbra will schedule the delivery of the additional REAL Immersive System(s) in accordance with its business demands and availability. The updated Subscription Fee on the Order Form will reflect the new total quantity of REAL Immersive Systems and will become effective starting in the first Billing Cycle after Penumbra ships the additional REAL Immersive System(s).
- Decreases in the Quantity of REAL Immersive Systems in a Subscription. If Facility wants to decrease the number of REAL Immersive Systems in a Subscription, Facility must send its request for such decrease to Penumbra at firstname.lastname@example.org. Penumbra will remotely disable the Subscription to the REAL Immersive System(s) that Facility has indicated it would like to discontinue using. Facility shall return the deactivated REAL Immersive System(s) to Penumbra within thirty (30) days of the Change Request in accordance with Section III(E). The updated Subscription Fee will reflect the new total quantity of Subscriptions Facility maintains, and the updated Subscription Fee will become effective starting in the first Billing Cycle after Penumbra disables the Subscription for the REAL Immersive System(s) returned.
D. Cancellation or Suspension of Subscription.
- Facility may cancel its Subscription at any time by sending notice of such cancellation to Penumbra at email@example.com.
- Upon notice to Facility or Penumbra, as applicable, of the cancellation of the Subscription pursuant to this Section III(D):
- the License shall immediately terminate; and
- Subject to Section III(D)4 below, Penumbra may immediately eliminate access to all data, files, and other information stored in or for Facility’s use of the REAL Immersive System(s) without further notice to Facility.
- Notwithstanding the foregoing, Facility shall have access to all Patient data for at least ninety (90) days after the cancellation of the Subscription for the purpose of continued Patient care and therapy. Should Facility wish to resume its Subscription after any suspension, a restoration of service fee may apply as determined by Penumbra, which fee shall be in addition to all past due unpaid charges and other fees.
Should Facility need to return its REAL Immersive System(s) under the terms of this Section III, Facility can appropriately repackage the REAL Immersive System(s) and ship it back to Penumbra at Facility’s own expense. Penumbra must receive the complete REAL Immersive System within thirty (30) days’ notice of the cancellation (the “Return Period”). If any REAL Immersive System is not returned before the end of the Return Period, Penumbra reserves the right to continue charging the Subscription Fee until the REAL Immersive System has been returned.
F. Prorated Refunds.
For annual subscribers only, Facility will receive a prorated refund for that portion of the Subscription Fee paid for the then-current Billing Cycle starting from the first day of the month following the cancellation of its Subscription or a decrease in the quantity of REAL Immersive Systems in accordance with Section III(C), above.
IV. REAL Sensor Bands.
- Sensor Band Quantity.
In order to use REAL Immersive System, Facility will be required to purchase and use corresponding REAL Sensor Bands. Facility shall purchase REAL Sensor Bands in an amount sufficient to provide each Patient with his or her own set of REAL Sensor Bands. REAL Sensor Bands come in direct physical contact with each Patient’s skin in normal use, and therefore may not be shared between Patients or returned after the REAL Sensor Band box has been opened.
- Sensor Band Pricing.
The price for each set of REAL Sensor Bands (“Sensor Band Price”) is set forth on the Order Form. Facility shall order REAL Sensor Bands at any time by updating the Order Form. Such REAL Sensor Bands will be shipped and charged to Facility upon Penumbra’s receipt of Facility’s updated Order Form.
- Pricing Changes.
Penumbra may increase or decrease the Sensor Band Price at any time in its sole discretion; provided, that Penumbra shall only increase the Sensor Band Price more than ten percent (10%) once per calendar year. Sensor Band Price increases of ten percent (10%) or greater will become effective upon thirty (30) days’ written notice from Penumbra. Sensor Band Price decreases, and Sensor Band Price increases of less than ten percent (10%), will become effective immediately.
V. Delivery of REAL Immersive System; Payment.
- Delivery of the REAL Immersive System.
Penumbra will schedule the delivery of the REAL Immersive System(s) ordered by Facility in accordance with its business demands and product availability. Penumbra shall bear the expense of shipping the REAL Immersive System to Facility and shall bear the risk of loss or damage until the REAL Immersive System has been delivered to Facility.
- Billing Cycles; Auto-Renewal.
The Billing Cycle for each Subscription begins on the Shipping Date and recurs on a regular basis thereafter until the Subscription has been cancelled by Facility or Penumbra. The Subscription Fee will be charged in full on or about the Billing Date at the outset of the Billing Cycle.
- Amount to be Charged.
- Billing Authorization.
Facility shall provide a payment method (such as a credit, charge or debit card number or ACH transfer details) and relevant payment information acceptable to Penumbra for payment of Subscription Fees, REAL Sensor Bands, the Swap Out Fee or Replacement Fee, or any other such items included on the Order Form. Facility hereby authorizes Penumbra, its payment processors and any other billing agents to charge Facility for its Subscription and REAL Sensor Bands through such specified payment method on each Billing Date. Facility hereby authorizes the issuer of its selected payment method to pay any amounts described herein without requiring a signed receipt and agrees that the authorizations in this section shall be accepted as authorization to the issuer of the payment method to pay any amounts described herein, without requiring a signed receipt. Facility authorizes Penumbra 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. 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. Penumbra reserves the right to reject any payment method, for any reason, including without limitation any such method for which a payment will not process after two (2) attempts by Penumbra. Facility hereby authorizes Penumbra to obtain a credit report from one or more consumer credit reporting agencies for any lawful purpose, including but not limited to for authentication purposes or to make credit decisions. Facility authorizes Penumbra to verify information in its credit report and agrees that Penumbra may contact third parties to verify any such information.
- Limitation of Liability.
Neither Penumbra nor any agent of Penumbra 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.
- Third-Party Payment Processors.
- Billing Inquiries and Refunds.
For any questions or concerns related to Penumbra billing, Facility shall notify Penumbra within thirty (30) days of the Billing Date by contacting Penumbra in accordance with Exhibit A. Penumbra will not issue refunds or credits after the expiration of this thirty (30) day period, except where required by applicable law or as set forth herein.
VI. Warranty; Disclaimer.
Penumbra hereby extends a lifetime warranty on the Authorized Hardware and the REAL Case (the “Covered Products”), warranting that the Covered Products are free from defects in material and workmanship. In the event of breach of this warranty, Penumbra’s sole and exclusive liability shall be to repair or replace the Covered Products; provided that: (1) the Covered Products are found by Penumbra to have been defective; (2) the Covered Products have been installed and operated in accordance with Penumbra’s instructions; (3) no repairs, alterations or replacements have been made to the Covered Products without Penumbra’s written approval; and (4) Facility notifies Penumbra in writing within thirty (30) days after the defect becomes apparent. In no event shall Penumbra’s aggregate liability in connection with breach of any warranty or warranties exceed the Subscription Fee paid since notice of defect. Penumbra requires the return of the Covered Products to establish any claim of defect.
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 Penumbra 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 Penumbra except when such damage or loss is caused by poor or inadequate packaging by Penumbra. 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 Penumbra.
EXCEPT AS EXPRESSLY STATED IN THIS SECTION VI, PENUMBRA MAKES NO WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE. PENUMBRA 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.
VII. Indemnification and Limitation of Liability.
- Limitation of Liability.
VIII. General Provisions
- Termination for Cause.
- Communications. Facility consents to accept and receive communications from Penumbra, including e-mails and telephone calls related to the Subscription. Such communications may include, but are not limited to, requests for secondary authentication, receipts, reminders, notifications regarding updates or support, and marketing and promotional communications. Facility may opt-out of receiving promotional email communications sent by Penumbra by responding to such messages with a request to opt-out or by contacting Penumbra in accordance with Exhibit A.
For all inquiries related to shipping, returns, increasing or decreasing the number of REAL Immersive Systems, purchasing or returning REAL Sensor Bands, or related to the use of the Authorized Hardware, please contact the REAL Customer Success team at:
Phone: 1-855-REAL-SYS (1.855.732.5797)