Terms and Policies
Terms of Service - Subscriber Agreement
Last Updated: October 16, 2020
This Subscriber Agreement (the “Agreement”) is entered into by and between Augmedix Operating Corp. f/k/a Augmedix, Inc., a Delaware Corporation (“Augmedix”), and the organization or individual agreeing to the terms of this Agreement (“Customer”). This Agreement shall be effective on the earliest of (a) the date Customer clicks a button indicating its agreement with the terms of this Agreement; (b) Customer entering into a Service Order or similar form referencing or otherwise incorporating this Agreement; or (c) Customer’s use of the Service (the “Effective Date”). If you are entering into this Agreement on behalf of your organization, that organization is deemed to be the Customer and you represent that you have the power and authority to bind that organization to this Agreement.
1.1 “Authorized User” means any individual that Customer designates in writing to Augmedix as being authorized access to the Services on Customer’s behalf pursuant to a Service Order. Each Authorized User must be an individual who is an: (a) employee, student (medical, nursing and other student), volunteer, nurse, physician (including referring physician), medical staff member, or technician, clinician or other personnel or agent on staff or otherwise associated with Customer and/or Customer’s affiliates; (b) authorized representative of Customer’s (or Customer’s affiliate’s) third-party agent, consultant, system integrator, auditor or other independent contractor performing services for Customer and/or its affiliates, provided that such individuals and entities are not competitors of Augmedix and each has entered into an agreement with Customer that requires such individuals and entities to comply with terms no less protective of the Services than those set forth in Section 4 (Confidentiality) of the Agreement; and (c) such other parties as may be as mutually agreed in writing. For the purposes of clarity, unless indicated otherwise in a Service Order, Authorized Users are discrete (i.e. one Authorized User to one individual, and multiple individuals may not be “summed” together to create one Authorized User).
1.2 “Business Associate Agreement” (or “BAA”) means that certain agreement between the Parties which governs the creation, use, maintenance, and disclosure of PHI (as defined below) under HIPAA (as defined below), which such agreement forms part of this Agreement and is herein incorporated by this reference.
1.3 “Customer Data” means any data, records, materials, files, information, content or any associated Intellectual Property Rights (as defined below) of Customer (a) uploaded, transmitted, received, generated or stored by or on behalf of Customer, or (b) provided or made accessible by Customer to Augmedix under this Agreement.
1.4 “Customer Materials” means the equipment, software, programs or other materials provided by Customer to Augmedix in order to permit Augmedix to provide the Services to Customer.
1.5 “Documentation” means all materials and documentation, whether in hard copy, magnetic media or machine-readable form, provided by Augmedix to Customer which pertains to the capabilities of, operation of, and/or Augmedix-supplied software and hardware used with the Services, as may be amended and updated by Augmedix from time to time.
1.6 “Fees” means the fees described in the applicable Service Order.
1.7 “HIPAA” means the Health Insurance Portability and Accountability Act of 1996, Public Law 104-191, and the related regulations, as they may be amended from time to time.
1.8 “Intellectual Property Rights” means patent rights (including, without limitation, patent applications and disclosures), copyrights, trade secrets, moral rights, know-how, and any other intellectual property rights recognized in any country or jurisdiction in the world.
1.9 “Services” means Augmedix’s scribing or other services, as described in the applicable Product Schedule (as defined below) and Service Order.
1.10 “Service Order” means an ordering document or an online order set forth in the Service interface entered into between Customer and Augmedix pursuant to the terms set forth in this Agreement.
1.11 “Software” means the software supplied by Augmedix pursuant to the applicable Service Order.
1.12 “Subscription” means the access to the Services purchased by Customer on a per Authorized User basis.
1.13 “Subscription Term” means the period identified in the Service Order during which Customer’s Authorized Users are permitted to use or access the Service purchased by Customer on a per Authorized User basis.
1.14 In addition to the foregoing, the following terms shall have the meanings ascribed to them under the Business Associate Agreement and/or HIPAA: “Business Associate”, “Covered Entity” and “Protected Health Information” (or “PHI”).
2.1 Scope of Services. Augmedix shall make the Service purchased under a Service Order available to Customer and its Authorized Users pursuant to this Agreement during the applicable Subscription Term. In addition to the terms and conditions of this Agreement and the applicable Service Order(s), the Services shall be subject to the terms and conditions described in the product schedule(s) applicable to each Service (each a “Product Schedule”) described in each Service Order, which such schedule(s) are herein incorporated by this reference.
2.2 Service Order(s). Each Service Order which expressly refers to this Agreement forms a part of this Agreement, is subject to the terms and conditions contained herein, and is herein incorporated by this reference. Except as expressly stated in this Agreement, or except if the Parties expressly state in a Service Order that a particular provision is intended to amend this Agreement (including by reference to a specific section number of this Agreement and the extent to which such terms are to be modified for such project), if there is a conflict between the terms of Service Order and the terms of this Agreement, the terms of this Agreement shall control.
2.3 Access Rights. Subject to the terms of this Agreement and the applicable Service Order, Augmedix hereby grants Customer a non-exclusive, non-transferable, non-sublicensable right for Customer and its Authorized Users to (a) access and use the Services; (b) use the Software; (c) use, copy, publish, and transmit the Documentation, solely for Customer’s internal training purposes; and (d) use, copy, publish, transmit, distribute, publicly display and publicly perform the Education Materials (as defined in the applicable Product Schedule) in connection with using the Services. For the avoidance of doubt, the Software may be used by Customer on a concurrent-user basis to the extent necessary for Customer to receive the Services for the agreed-upon number of Authorized Users.
2.4 Restrictions. Customer shall not attempt to interfere with or disrupt the Services, the Software or attempt to gain access to any systems or networks that connect thereto (except as required to access and use the Services). Customer shall not allow access to or use of the Services by anyone other than Authorized Users. Customer shall not: (a) copy, modify or distribute any portion of the Services, the Software or the Documentation; (b) sell, rent, lease, lend, license, sublicense, distribute, or otherwise transfer the Services, Software or the Documentation to any third party; (c) decompile, disassemble or reverse engineer any portion of the Services or the Software; (d) write or develop any derivative software or service based upon the Services, the Documentation or any Augmedix Confidential Information (as defined below); (e) use the Services to provide processing or other services to third parties, or otherwise use the Services on a “service bureau” basis; or (f) provide, disclose, divulge or make available to, or permit use of the Services, Software or Documentation by any third party without Augmedix’s prior written consent.
2.5 Customer Responsibilities. As a condition to Augmedix’s obligations under this Agreement, Customer shall: (a) provide Augmedix with good faith cooperation and access to such information, facilities, and equipment as may be reasonably required by Augmedix to provide the Services, including, but not limited to, providing Customer Materials, Customer Data and security access, to Customer’s business applications; (b) provide the assistance of Customer’s personnel as may be reasonably requested by Augmedix from time to time, to enable Augmedix to render the Services; and (c) carry out in a timely manner all other Customer responsibilities set forth in this Agreement. In the event of any delay in Customer’s performance of any of the obligations set forth in this Agreement, Augmedix may, without penalty, adjust the launch dates for the applicable Services set forth in the applicable Service Order as reasonably necessary to account for such delays.
2.6 Trial Subscriptions. Customer may access a version of the Service on a trial basis (a “Trial”) subject to the terms of this Agreement; provided, however, the following additional terms shall apply to its Trial notwithstanding anything to the contrary herein: (a) Augmedix shall have the right to terminate a Trial at any time and for any reason; (b) Augmedix is providing the Service “as is” and makes no warranties (express or implied) of any kind with respect to the Service during the Trial; and (c) Augmedix shall have no obligation to indemnify Customer. CUSTOMER ACKNOWLEDGES THAT ITS TRIAL WILL AUTOMATICALLY CONVERT TO A PAID SUBSCRIPTION AT THE END OF THE TRIAL AND THAT AUGMEDIX WILL CHARGE CUSTOMER FOR THE APPLICABLE SUBSCRIPTION FEES AFTER THE TRIAL UNLESS CUSTOMER HAS NOTIFIED AUGMEDIX IN WRITING OF ITS DECISION TO OPT OUT PRIOR TO THE END OF THE TRIAL.
3. PROPRIETARY RIGHTS
3.1 Services. As between Augmedix and Customer, the Services, Software, Documentation, Educational Materials (as defined in the applicable Product Schedule), including all Intellectual Property Rights therein or relating thereto, and any improvements, enhancements or modifications to any of the foregoing, are and shall remain the exclusive property of Augmedix or its licensors.
3.2 Customer Data and Materials. Customer, or its licensors, shall retain all right, title and interest to the Customer Data and Customer Materials, including all Intellectual Property Rights therein and thereto. Augmedix may use the Customer Materials solely for the purpose of performing its obligations under this Agreement. By providing Customer Data or Customer Materials to Augmedix, Customer hereby grants Augmedix a non-exclusive, transferable, sublicensable, worldwide, royalty-free license to (a) use, copy, modify, and create derivative works based upon the Customer Data, and (b) access and use Customer Materials in connection with operating and providing the Services.
3.3 Usage Data. The parties acknowledge and agree that Augmedix and/or its vendors may monitor, collect, use and store anonymous and aggregate data regarding Customer’s use of the Services or components thereof for their respective business purposes, including, but not limited to, enhancing the Services and its respective components and creating new features thereof.
3.4 Feedback. To the extent Customer provides any suggestions, recommendation or other feedback to Augmedix with respect to the Services, Customer hereby grants to Augmedix a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sublicensable, transferable license to use, copy, modify, create derivative works based upon and otherwise use any such feedback and the Intellectual Property Rights therein.
4.1 Definition. By virtue of this Agreement, the Parties may have access to each other’s Confidential Information. “Confidential Information,” as used in this Agreement, means (i) any information that is marked or identified at the time of disclosure as being confidential or proprietary; and (ii) any other information not previously known to the receiving Party or not generally known or readily ascertainable and from which the receiving Party or others may obtain a business benefit or advantage. Augmedix’s Confidential Information includes, without limitation, the Services, and any associated Software, whether in source or executable code, the Documentation, nonpublic financial information, pricing, business plans, techniques, methods, processes, and the results of any performance tests of the Services, including, without limitation, the Software. Customer Data is the Confidential Information of Customer. The terms and conditions of this Agreement shall be deemed the Confidential Information of both Parties and neither Party shall disclose such information except to such Party’s advisors, accountants, attorneys, investors (and prospective investors), and prospective acquirers as have a reasonable need to know such information, provided that any such third parties shall, before they may access such information, either (a) execute a binding agreement to keep such information confidential or (b) be subject to a professional obligation to maintain the confidentiality of such information. If the receiving Party questions whether any information is regarded as confidential by the disclosing Party or others, the receiving Party agrees to treat the information as Confidential Information until and unless the disclosing Party confirms in writing that it is not confidential.
4.2 Exclusions. Confidential Information shall not include information that: (a) is or becomes publicly known through no act or omission of the receiving Party; (b) was in the receiving Party’s lawful possession prior to the disclosure; (c) is rightfully disclosed to the receiving Party by a third party without restriction on disclosure; or (d) is independently developed by the receiving Party, which independent development can be shown by written evidence.
4.3 Use and Nondisclosure. Neither Party shall make the other’s Confidential Information available to any third party or use the other’s Confidential Information for any purposes other than exercising its rights and performing its obligations under this Agreement. Each Party shall take all reasonable steps to ensure that the other’s Confidential Information is not disclosed or distributed by its employees or agents in violation of the terms of this Agreement, but in no event will either Party use less effort to protect the Confidential Information of the other Party than it uses to protect its own Confidential Information of like importance. Each Party will ensure that any agents or subcontractors that are permitted to access any of the other’s Confidential Information are legally bound to comply with obligations of confidentiality no less stringent than those set forth herein. Notwithstanding the foregoing, Confidential Information may be disclosed as required by any governmental agency, provided that before disclosing such information the disclosing Party must provide the non-disclosing Party with sufficient advance notice of the agency’s request for the information to enable the non-disclosing Party to exercise any rights it may have to challenge or limit the agency’s authority to receive such Confidential Information.
5. HIPAA Compliance
5.1 Patient Confidentiality. In addition to the general confidentiality provisions in Section 4, the parties acknowledge their responsibility with respect to Protected Health Information disclosed by Customer to Augmedix, or created by Augmedix on behalf of Customer, pursuant to a Service Order. The Parties agree to comply with the applicable Business Associate Addendum with respect to such Protected Health Information, which forms a part of this Agreement.
5.2 Protected Health Information. Notwithstanding the terms of Section 4, Customer hereby grants to Augmedix an irrevocable, non-exclusive, royalty-free, worldwide, perpetual license to (a) use Customer’s Protected Health Information to create de-identified data; and (b) use Protected Health Information provided by Customer to perform Data Aggregation services relating to the health care operations of Customer. The de-identified data is, and shall remain, the exclusive property of Augmedix, and Augmedix may use such data without restrictions, including for research, analytics and modeling purposes.
6. FEES; EXPENSES; TAXES
6.1 Fees. In consideration for providing the Services, Customer shall pay to Augmedix the Fees for its Subscription, in accordance with the terms set forth in the applicable Service Order.
6.2 Expenses. To the extent expenses are described in a Service Order, Customer shall reimburse Augmedix for all actual and reasonable expenses (including, but not limited to, travel, lodging, and shipping) incurred by Augmedix in connection with such Service Order (collectively, “Expenses”).
6.3 Invoices; Payment; Late Payment. Augmedix shall invoice Customer for Fees, Expenses and applicable Taxes (as defined below) in the manner described in the applicable Service Order. All payments will be made in U.S. dollars. Each undisputed invoice is due and payable by Customer no later than thirty (30) days following the invoice date. If Augmedix has not received payment within five (5) days after the due date, interest shall accrue on past due amounts at the rate of one and one-half percent (1.5%) per month, but in no event greater than the highest rate of interest allowed by law, calculated from the date such amount was due until the date that payment is received by Augmedix. Further, if any charge owing by Customer is thirty (30) days or more overdue, Augmedix may, without limiting its other rights and remedies, suspend Services until such amounts are paid in full, provided that, Augmedix has given Customer at least seven (7) days’ notice that its account is overdue. Customer shall reimburse Augmedix for the reasonable costs of collection, including reasonable fees and expenses of attorneys.
6.4 Automatic Payment. IF CUSTOMER HAS DESIGNATED A CREDIT CARD AS ITS METHOD OF PAYMENT FOR SERVICES, CUSTOMER AGREES TO BE CHARGED AUTOMATICALLY WITHIN A WEEK PRIOR TO THE DUE DATE FOR FEES IN ACCORDANCE WITH ITS SUBSCRIPTION PLAN.
6.5 Auto-renewal. Customer agrees that its Subscription will automatically renew on an annual or monthly basis depending on Customer’s Subscription (the “Renewal Date”). Customer authorizes Augmedix to automatically charge Customer for the applicable Fees for any renewal period, unless the Subscription has been terminated or cancelled in accordance with this Agreement or the applicable Service Order. If Customer wishes to remove the number of Authorized Users in its Subscription or cancel its Subscription, it must do so at least thirty (30) days prior to the Renewal Date. If Customer chooses to cancel its Subscription during the Subscription Term, Customer may use the Service until the end of Customer’s applicable Subscription Term or portion thereof (as applicable), but will not be issued a refund for the applicable Fees for the remaining Subscription Term.
6.6 Taxes. All amounts and Fees stated or referred to in this Agreement are exclusive of taxes, duties, levies, tariffs, and other governmental charges (including, without limitation, VAT) (collectively, “Taxes”). Customer shall be responsible for payment of all Taxes and any related interest and/or penalties resulting from any payments made hereunder, other than any taxes based on Augmedix’s net income.
7. TERM AND TERMINATION
7.1 Term. This Agreement shall commence on the Effective Date and shall continue until the expiration of the last surviving Service Order hereunder.
7.2 Termination for Cause. Either Party may terminate this Agreement upon written notice if the other Party materially breaches this Agreement and fails to correct the breach within thirty (30) days following written notice specifying the breach; provided that the cure period for any default with respect to payment of Augmedix’ invoices shall be five (5) business days.
7.3 Rights and Obligations upon Expiration or Termination. Upon expiration or termination of the Agreement or a Service Order, as applicable, Customer’s and Authorized Users’ (as defined in the applicable Product Schedule) right to access and use the now-terminated Services shall immediately terminate. Customer and its Authorized Users shall immediately cease all use of the now-terminated Services and return all materials supplied by Augmedix thereunder. Upon expiration or termination of the Agreement, each Party shall return and make no further use of any Confidential Information, equipment (including the Patient Content Capture Device(s), as defined in the Product Schedule) materials, or other items (and all copies thereof) belonging to the other Party. Augmedix may destroy or otherwise dispose of any Customer Data in its possession, except as prohibited by any applicable law, unless Augmedix receives, no later than ten (10) days after the effective date of the expiration or termination of this Agreement or Service Order, a written request for the delivery to Customer of the then-most recent back-up of the Customer Data. Augmedix will use all reasonable efforts to deliver the back-up to Customer within thirty (30) days of its receipt of such a written request. Customer shall pay all reasonable expenses incurred by Augmedix in returning Customer Data to Customer.
7.4 Survival. The rights and obligations of Augmedix and Customer contained in Sections 1 (“Definitions”) 2.3 (“Restrictions”), 3 (“Proprietary Rights”), 4 (“Confidentiality”), 5.1 (“Patient Confidentiality”), 6.1 (“Fees”), 7 (“Term and Termination”), 8 (“Warranties and Representations”), 9 (“Indemnification”), 10 (“Limitation of Liability”), 11 (“Acknowledgement”) and 12 (“General”) shall survive any expiration or termination of this Agreement.
8. WARRANTIES AND REPRESENTATIONS
8.1 Mutual Warranty. Each Party represents and warrants to the other that it has the full power, right and authority to enter into this Agreement and to carry out its obligations under this Agreement.
8.2 Augmedix Warranty. Augmedix warrants that the Services will provide the functionality set forth in each Product Schedule applicable to the Services described in the Service Order, and the Services will be performed in a thorough and professional manner by Augmedix. As Customer’s sole and exclusive remedy and Augmedix’s entire liability for any breach of the foregoing warranty, Augmedix will, at its sole option and expense, promptly re-perform any Services that fail to meet this limited warranty.
8.3 Customer Warranty. Customer warrants that it shall ensure that all Authorized Users comply with the terms and conditions of this Agreement and that Customer shall be liable for any violation of the terms and conditions of this Agreement by any Authorized User. Customer agrees that Augmedix may, upon notice to Customer, suspend or terminate any Authorized User’s access to all or part of the Services in the event that Augmedix reasonably determines that such Authorized User has violated the terms and conditions of this Agreement.
8.4 Disclaimer. Customer assumes sole responsibility and liability for any conclusions drawn from the use of the Services. Augmedix shall have no liability for any claims, losses, or damage caused by errors or omissions in Customer’s Confidential Information (which, for the avoidance of doubt, includes Customer Data) or any other information provided to Augmedix by Customer in connection with the Services or any actions taken by Augmedix at Customer’s direction. EXCEPT AS EXPRESSLY PROVIDED IN SECTIONS 8.1 AND 8.2, AUGMEDIX MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES. WITHOUT LIMITING THE FOREGOING, EXCEPT AS EXPRESSLY PROVIDED IN SECTION 8.2, AUGMEDIX DISCLAIMS ANY WARRANTY THAT THE SERVICES WILL BE ERROR FREE OR UNINTERRUPTED. AUGMEDIX FURTHER DISCLAIMS ANY AND ALL WARRANTIES WITH RESPECT TO THE SERVICES AS TO MERCHANTABILITY, ACCURACY OF ANY INFORMATION PROVIDED, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. AUGMEDIX FURTHER DISCLAIMS ANY AND ALL WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM AUGMEDIX OR ELSEWHERE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
8.5 SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES IN CERTAIN CIRCUMSTANCES. ACCORDINGLY, SOME OF THE LIMITATIONS SET FORTH ABOVE IN SECTION 8.4 MAY NOT APPLY.
9.1 Indemnification by Customer. Customer will, at its expense, indemnify, defend and hold Augmedix harmless, from any and all claims, suits, actions, proceedings brought by a third party against Augmedix and any liabilities, losses, damages and expenses resulting therefrom, including court costs and reasonable attorneys’ fees, arising from: (a) the negligent or willful misconduct of Customer or any of its employees, agents, or subcontractors in connection with the Services; (b) Customer’s or any Authorized User’s use of the Services in a manner that violates the terms of this Agreement; or (c) an Indemnity Exclusion (as defined below).
9.2 Indemnification by Augmedix. Augmedix will, at its expense, indemnify, defend and hold Customer harmless, from any and all claims, suits, actions, proceedings brought by a third party against Customer and any damages, liability or judgments resulting therefrom, including court costs and reasonable attorneys’ fees, arising from: (a) negligence or willful misconduct by Augmedix or any of its employees, agents, or subcontractors in providing the Augmedix Services; (b) Augmedix’s material breach of the Business Associate Agreement; or (c) the infringement or misappropriation of any copyright or trade secret of a third party by Augmedix in performing the Services, provided that, Augmedix will have no liability for third party equipment or components, or to the extent such claim: (i) involves infringement that is attributable to any Customer-supplied designs or specifications; (ii) is based on modification or combination of any deliverables provided by Augmedix with any non-Augmedix hardware or software not contemplated by this Agreement, if the claim would have been avoided had such deliverables not been so modified or so combined; or (iii) to the extent it results from failure of Customer to use updated or modified versions of any deliverables provided by Augmedix for avoiding such a claim (the foregoing subsections (i)-(iii) are referred to collectively as an “Indemnity Exclusion”). In the event that Augmedix’s right to provide the Services is enjoined or in Augmedix’s reasonable opinion is likely to be enjoined, Augmedix may obtain the right to continue providing the Services, replace or modify the Services so that they become non-infringing, or, if such remedies are not reasonably available, terminate this Agreement without penalty to Customer. THE FOREGOING STATES THE ENTIRE OBLIGATION OF AUGMEDIX AND ITS LICENSORS WITH RESPECT TO ANY ALLEGED OR ACTUAL INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS BY THE SERVICES.
9.3 Indemnification Procedures. A Party’s obligation to indemnify the other Party will only arise if: the indemnified Party: (a) promptly notifies the indemnifying Party in writing of the claim; (b) grants the indemnifying Party sole control of the defense and settlement of the claim; and (c) provides the indemnifying Party, at the indemnifying Party’s expense, with all assistance, information and authority reasonably required for the defense and settlement of the claim. The indemnifying Party shall not enter into any settlement that would limit the indemnified Party’s rights under this Agreement, that would constitute an admission of liability by indemnified Party or that would impose any obligations on the indemnified Party, without the indemnified Party’s express prior written consent. The indemnified Party reserves the right to retain counsel of its own choosing and at its own expense to participate in the defense and settlement of such claim without affecting any of the indemnifying Party’s indemnification obligations set forth herein.
10. LIMITATION OF LIABILITY. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, LOSS OF INCOME, DATA, PROFITS, REVENUE OR BUSINESS INTERRUPTION, OR COST OF SUBSTITUTE SERVICES, OR OTHER ECONOMIC LOSS, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND WHETHER ANY CLAIM FOR RECOVERY IS BASED ON THEORIES OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR OTHERWISE.
NOTWITHSTANDING ANY OTHER PROVISIONS OF THIS AGREEMENT, IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY TO THE OTHER IN CONNECTION WITH THIS AGREEMENT EXCEED THE TOTAL FEES PAID BY CUSTOMER IN THE TWELVE (12) MONTH PERIOD PRECEDING THE CLAIM OR ACTION, REGARDLESS OF THE FORM OR THEORY OF THE CLAIM OR ACTION.
11. ACKNOWLEDGEMENT. THE PARTIES ACKNOWLEDGE THAT THE LIMITATIONS AND EXCLUSIONS CONTAINED IN SECTION 11 AND ELSEWHERE IN THIS AGREEMENT HAVE BEEN THE SUBJECT OF NEGOTIATION BETWEEN THE PARTIES AND REPRESENT THE PARTIES’ AGREEMENT BASED UPON THE PERCEIVED LEVEL OF RISK ASSOCIATED WITH THEIR RESPECTIVE OBLIGATIONS UNDER THIS AGREEMENT, AND THE PAYMENTS MADE HEREUNDER. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THE PARTIES ACKNOWLEDGE AND AGREE THAT (A) THE PROVISIONS HEREOF THAT LIMIT LIABILITY, DISCLAIM WARRANTIES OR EXCLUDE CONSEQUENTIAL DAMAGES OR OTHER DAMAGES OR REMEDIES SHALL BE SEVERABLE AND INDEPENDENT OF ANY OTHER PROVISIONS AND SHALL BE ENFORCED AS SUCH, REGARDLESS OF ANY BREACH HEREUNDER, AND (B) ALL LIMITATIONS OF LIABILITY, DISCLAIMERS OF WARRANTIES, AND EXCLUSIONS OF CONSEQUENTIAL DAMAGES OR OTHER DAMAGES OR REMEDIES SHALL REMAIN FULLY VALID, EFFECTIVE AND ENFORCEABLE IN ACCORDANCE WITH THEIR RESPECTIVE TERMS, EVEN UNDER CIRCUMSTANCES THAT CAUSE AN EXCLUSIVE REMEDY TO FAIL OF ITS ESSENTIAL PURPOSE.
12.1 Governing Law. This Agreement and all matters arising out of or relating to this Agreement shall be governed by the laws of the State of California, without regard to its conflict of law provisions. Any legal action or proceeding relating to this Agreement shall be brought exclusively in the state or federal courts located in the Northern District of California. Augmedix and Customer hereby agree to submit to the jurisdiction of, and agree that venue is proper in, those courts in any such legal action or proceeding.
12.2 Publicity and Logos. Customer agrees that Augmedix may use the name and logo(s) of Customer and/or quotes and testimonials regarding the Services in connection with and as part of marketing and investor relations. Further, Augmedix may issue a press release or other public statement or disclosure, including on its website, regarding the fact that the parties have entered into an agreement.
12.3 Waiver. The waiver by either Party of any default or breach of this Agreement shall not constitute a waiver of any other or subsequent default or breach.
12.4 Notices. All notices required or permitted under this Agreement will be in writing, will reference this Agreement and will be deemed given: (a) when sent by facsimile or email; (b) five (5) working days after having been sent by registered or certified mail, return receipt requested, postage prepaid; or (c) one (1) working day after deposit with a commercial overnight carrier, with written verification of receipt. All communications will be sent to the addresses set forth above or to such other address as may be designated by a Party by giving written notice to the other Party pursuant to this Section 12.4.
12.5 Severability. In the event any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions of this Agreement shall remain in full force and effect.
12.6 Force Majeure. Neither Party shall be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder (except for the payment of money) on account of events beyond the reasonable control of such Party, which may include without limitation denial-of-service attacks, strikes, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, terrorism, governmental action, labor conditions, earthquakes and material shortages (each a “Force Majeure Event”). Upon the occurrence of a Force Majeure Event, the non-performing Party will be excused from any further performance of its obligations effected by the Force Majeure Event for so long as the event continues, and such Party continues to use commercially reasonable efforts to resume performance.
12.7 Compliance with Laws. Each Party agrees to comply with all applicable laws and regulations with respect to its activities hereunder, including, but not limited to, any export laws and regulations of the United States.
12.8 Relationship between the Parties. Nothing in this Agreement shall be construed to create a partnership, joint venture or agency relationship between the parties. Neither Party will have the power to bind the other or to incur obligations on the other’s behalf without such other Party’s prior written consent.
12.9 Assignment/Successors. Neither Party may assign or transfer this Agreement, in whole or in part, without the other Party’s written consent except in the event of a Change of Control (as defined below) of Augmedix. Any attempted assignment or transfer in violation of this Section 12.9 will be null and void. “Change of Control” means, with respect to a Party: (a) the direct or indirect acquisition of either (i) the majority of voting stock of such Party or (ii) all or substantially all of the assets of such Party, by another entity in a single transaction or a series of transactions; or (b) the merger of such Party with another entity. Subject to the foregoing restrictions, this Agreement shall inure to the benefit of the successors and permitted assigns of the parties.
12.10 Modifications. Augmedix may revise this Agreement from time to time by posting the modified version on its website. If, in Augmedix’s sole discretion, the modifications proposed are material, Augmedix shall provide Customer with notice in accordance with Section 12.4 at least twenty (20) days prior to the effective date of the modifications being made. By continuing to access or use the Service after the posted effective date of modifications to this Agreement, Customer agrees to be bound by the revised version of the Agreement.
12.11 Entire Agreement. This Agreement together with any attachments, applicable Product Schedules and Service Orders constitute the complete and exclusive agreement between the parties concerning its subject matter and supersedes all prior or contemporaneous agreements or understandings, written or oral, concerning the subject matter of this Agreement.
12.12 Non-Exclusive Remedies. Except as set forth in Section 8.2 and Section 9.2, the exercise by either Party of any remedy under this Agreement will be without prejudice to its other remedies under this Agreement or otherwise.
12.13 Equitable Relief. Each Party acknowledges that a breach by the other Party of any confidentiality or proprietary rights provision of this Agreement may cause the non-breaching Party irreparable damage, for which the award of damages would not be adequate compensation. Consequently, the non-breaching Party may institute an action to enjoin the breaching Party from any and all acts in violation of those provisions, which remedy shall be cumulative and not exclusive, and a Party may seek the entry of an injunction enjoining any breach or threatened breach of those provisions, in addition to any other relief to which the non-breaching Party may be entitled at law or in equity.
12.14 No Third-Party Beneficiaries. This Agreement is intended for the sole and exclusive benefit of the signatories and is not intended to benefit any third Party. Only the parties to this Agreement may enforce it.
12.15 Headings. The headings in this Agreement are for the convenience of reference only and have no legal effect.