REAL y-Series™ – Hardware Purchase and Perpetual License Agreement
This Purchase and Fee Agreement (“Agreement”) is by and between [insert business entity name] located at [insert business address here] (“Facility”) and Penumbra, Inc. (“Supplier”), a Delaware corporation with a principal place of business at One Penumbra Place, Alameda, CA 94502.
- REAL y-Series; 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 y-Series (the “REAL y-Series”).
- Hardware. The REAL y-Series is comprised of a tablet, a head-mounted display, sensors for use on a patient’s body and a storage case that charges the headset, sensors and tablet (together, the “REAL Hardware”). Sold separately from the REAL Hardware are the disposable straps used to attach the sensors to the patient’s body, which, together with the REAL Hardware shall herein be referred to as the “REAL Products”).
- REAL Activities, Applications, Support and Services. Supplier grants Facility access to a growing library of activities and therapeutic applications, along with (i) technology set-up and ongoing technical support; (ii) easy access to an experienced team of therapists for initial and ongoing training and support; (iii) easy access to the REAL Customer Success team for any account-related questions; (iv) online resources, including therapist and patient education materials; and, (v) information regarding the security and privacy features of the REAL y-Series.
- Software License Conditions. With the purchase of the REAL y-Series, Supplier grants Facility a non-exclusive, non-transferable, revocable, perpetual license, without the right to grant sublicenses (the “REAL Software License”) to the software necessary to operate the connectivity and core functionality of the REAL Hardware, and software underlying the REAL activities and therapeutic applications available for display on the headset (the “REAL Software”). Facility and Supplier agree that the following conditions apply to the REAL Software License:
- Supplier uses 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 y-Series.
- 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 y-Series to malfunction or stop working; and (iii) shall void any warranty provided as part of this Agreement.
- Supplier may update the software included in the REAL Software License from time to time without notice to Facility, for example, to add new therapies or update a security feature; provided, however, that Supplier will ensure such updates will not be launched on a day or at a time that would disrupt Facility’s use of the REAL y-Series with its patients.
- The REAL y-Series shall only be used by one (1) or more of Facility’s properly licensed employees or agents of the age of majority in the state in which Facility is located (“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 y-Series in accordance with the instructions for use provided therewith; and (ii) located in the United States.
- Facility shall not: (i) use or install any Unauthorized Software or Unauthorized Hardware with the REAL y-Series; (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 y-Series or the software included in the REAL Software License; (iv) modify or disable any hardware or software controls in the REAL y-Series; (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 y-Series; 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 y-Series.
- Supplier will revoke the REAL Software License if Facility attempts to circumvent any security controls of the REAL y-Series or REAL Software or conducts any unauthorized actions related to the REAL Software License. Upon revocation, no refunds shall be issued by Supplier.
- REAL y-Series Ownership. After completing the purchase transaction described herein, Facility shall own the applicable REAL Products. The REAL Software and all aggregated, anonymized and/or deidentified data resulting from use and operation of the REAL y-Series 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.
- Purchase and Delivery of the REAL y-Series.
- Purchase. Supplier will provide Facility with a quote setting forth the pricing agreed upon between the parties and any related discounts for the REAL y-Series (the “Price Quote”). Using the pricing from the Price Quote, Facility shall place a purchase order for the quantity of REAL y-Series 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 y-Series.
- Delivery of REAL y-Series. Supplier will schedule the delivery of all REAL y-Series in accordance with its business demands and product availability. The REAL y-Series 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. Facility shall purchase the REAL y-Series from Supplier, FCA (Incoterms® 2020) Supplier’s designated shipping point. Delivery of the REAL y-Series to the carrier at Supplier’s designated shipping point shall constitute delivery to Facility, and title to and risk of loss for the REAL y-Series shall pass to Facility when the REAL y-Series are delivered to the carrier at Supplier’s designated shipping point.
- Facility may pay for the REAL y-Series either upon receipt of an invoice from Supplier or by credit card.
- Invoiced Payments. Facility’s payments are due within thirty (30) calendar days from the invoice date. Each invoice shall give a detailed account of the REAL y-Series purchased and shall reference the appropriate Purchase Order number.
- Payment by Credit Card.
- Should Facility desire to pay for the REAL y-Series by credit, charge or debit card, Facility shall provide such relevant payment information to Supplier in such form or format as requested by Supplier.
- Upon providing such payment information, Facility authorizes Supplier, its payment processors and any other billing agents to charge Facility for the items included on each Purchase Order.
- 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.
- 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.
- 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 y-Series 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.
- Credit Reports. 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.
- Discounts. Supplier will clearly indicate any discounts on the REAL y-Series 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 y-Series purchased – 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).
- Suspension and Termination.
- Suspension. Supplier may immediately suspend Facility’s access to the REAL y-Series, 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 suspends access); (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, Supplier will not provide any refunds, prorated or otherwise.
- Term and Termination. This Agreement shall commence on the date on which the last signature is provided on this Agreement (the “Effective Date”) and will continue until terminated by either party with thirty (30) days’ written notice to the other party. Upon termination for cause, Supplier will not provide any refunds, prorated or otherwise, and any amounts previously agreed upon between the parties that have not yet been paid by Facility will become immediately due and payable. Such amounts outstanding shall be paid in full by Facility within thirty (30) days from the date of notice of termination of the Agreement.
- PHI Deletion. Notwithstanding the foregoing, Facility shall have access to all PHI for at least ninety (90) days after any suspension or termination for the purpose of continued patient care and therapy. Facility must notify Supplier in accordance with Section 14 herein that it wishes to export PHI before the end of the ninety (90) day period or PHI will be permanently lost.
- Statement. Supplier hereby extends a one (1) year warranty on the REAL y-Series (the “Covered Products”), warranting that the Covered Products are free from defects in material and workmanship during the one (1) year period following the date on which the REAL y-Series is shipped to Facility. 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 y-Series. Supplier requires the return of the Covered Products to establish any claim of defect.
- 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, including without limitation by Facility; (ii) improper operation, maintenance or connections; (iii) normal wear and tear; or (iv) use of Unauthorized Hardware or Unauthorized Software. 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.
- Disclaimer. EXCEPT AS EXPRESSLY STATED IN THIS SECTION VII, 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.
- 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. Neither party will be liable for any special, incidental, punitive, or consequential damages for any action based on this Agreement, including, without limitation, for lost profits (even if the party has notice of the possibility of such damages).
- 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.
- 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.
- 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 y-Series. This Agreement does not grant any rights to Facility in Supplier’s trademarks, service marks or other intellectual property other than pursuant to the licenses expressly granted herein.
- Personal Data. Supplier shall collect and use personal data in order to provide the REAL y-Series in accordance with this Agreement and as allowed under all applicable data privacy laws.
- Entire Agreement; Amendment. 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. No modification of or amendment to this Agreement will be effective unless in writing and signed by all parties hereto.
- Counterparts. This Agreement may be executed in one or more counterparts (including by facsimile or .pdf), each of which shall constitute an original and all of which, when taken together, shall constitute one agreement.
- 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; (ii) by Facility, if emailed to email@example.com; and (iii) if delivered by overnight carrier to either party at their business address included herein.
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound hereby, have caused this Agreement to be executed and delivered by their proper and duly authorized officers effective as of the date of the last signature below.
ACCEPTED AND AGREED TO:
|By: _______________________________ |
|By: ___________________________ |
Name: Gita Barry
Title: Executive Vice President and GM, Immersive Healthcare