Terms of Service – Subscriber Agreement
Last Updated: October 10, 2023
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 executing 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 “Affiliate” means, with respect to any entity, any other present or future entity controlling, controlled by, or under common control with such entity. For the purposes of this definition, control (and its derivatives) means, with respect to any entity, the possession, direct or indirect, of the power to solely direct or cause the direction of the management or policies of such entity, whether through the ownership of voting securities (or other ownership interest), by contract or otherwise.
1.2 “Augmedix Application(s)” means Augmedix’s proprietary medical documentation mobile application or suite of mobile applications and/or website, including any software, modules, functions, features related to such applications or otherwise made available by Augmedix to its Customers and their Authorized Users, and all technology resources supporting the Services. The Augmedix Application(s) includes all updates, releases, improvements, corrections, derivative works and modifications to the Augmedix Application.
1.3 “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, medical staff member, technician, clinician or other personnel or agent on staff or otherwise associated with Customer; (b) authorized representative of Customer’s third-party agent, consultant, system integrator, auditor or other independent contractor performing services for Customer, provided that such individuals and entities are not known 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 and Security) of the Agreement; and (c) such other parties as may be 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).
1.4 “Business Associate Agreement” (or “BAA”) means that certain agreement between the Parties which governs the creation, use, maintenance, and disclosure of Protected Health Information (as defined by HIPAA) under HIPAA, which such agreement is herein incorporated by this reference.
1.5 “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.
1.6 “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.
1.7 “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, and/or operation of, the Services, including the Augmedix Application(s), Notebuilder Platform and/or other associated software used with the Services, as may be amended and updated by Augmedix from time to time.
1.8 “Fees” means the fees described in the applicable Service Order.
1.9 “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.
1.10 “Intellectual Property Rights” means all past, present, and future rights of the following types, which may exist or be created under the laws of any jurisdiction in the world: (a) rights associated with works of authorship, including exclusive exploitation rights, copyrights, moral rights, and mask work rights; (b) trademark and trade name rights and similar rights; (c) trade secret rights; (d) patent and industrial property rights; (e) other proprietary rights in intellectual property of every kind and nature; and (f) rights in or relating to registrations, renewals, extensions, combinations, divisions, and reissues of, and applications for, any of the rights referred to in clauses (a) through (e) of this sentence.
1.11 “Notebuilder Platform” means Augmedix’s proprietary, backend medical note creation platform, including any software code, utility, natural language processing models, large language models, structured data models, tools, or services related to the Notebuilder Platform and any updates, upgrades, versions, enhancements, improvements, derivative works, and modifications of the foregoing, including the general know-how and machine learning developed over time.
1.12 “Service(s)” means the services identified in a Product Schedule (as defined below) and associated Service Order, including the associated software, limited access and use rights to the Augmedix Application(s), hosting services, support services, Notebuilder Platform, other generally applicable services Augmedix provides to its customers in accordance with the Documentation and any other associated professional services.
1.13 “Service Order” means an ordering document entered into between Customer and Augmedix pursuant to the terms set forth in this Agreement.
1.14 “Subscription” means the access to the Services purchased by Customer, on a per Authorized User basis, pursuant to a Service Order.
1.15 “Subscription Term” means the period identified in the Service Order during which Authorized Users are permitted to access and use the Services purchased by Customer on a per Authorized User basis.
1.16 “Term” means the term of this Agreement as defined in Section 7.1.
1.17 “Usage Data” means data and information related to Customer’s use of the Services and Augmedix Application(s) in an aggregate and anonymized manner, including to compile statistics and performance information related to the provision and operation of the Services and Augmedix Application(s) and Notebuilder Platform.
2. SERVICES AND RESPONSIBILITIES
2.1 Provision of Services. Subject to the provisions of this Agreement, Augmedix will make available to Customer and its end users on a non-exclusive and non-transferable basis the Services, Augmedix Application(s), and Documentation in accordance with the applicable Service Order, Documentation, and other terms of this Agreement. 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. Augmedix may enhance or modify the Services and Augmedix Applications in its sole discretion, provided it does not materially reduce the core functionality of the Service and Augmedix Application.
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. If Customer desires to access or use additional Services or Augmedix Applications and/or increase any limitation on the number of named Authorized Users, devices, locations, or other elements, as applicable (“Unit of Measure”), in its initial Service Order or any subsequent Service Order, the authorized representatives of the Parties will execute a new Service Order. The pricing for any increase in any Unit of Measure will be subject to annual rights to escalate price as described in the applicable Service Order. 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 a Service Order and the terms of this Agreement, the terms of this Agreement shall control.
2.3 Implementation Services. Augmedix will provide Customer with the implementation services described in each Service Order and/or applicable Product Schedule.
2.4 Access and Use Rights. Customer will be responsible for providing its own internet access to the Augmedix Application. Augmedix may specify reasonable procedures in the Documentation according to which Customer and Authorized Users may establish and obtain such access to, and use of, the features and functions of the Services and Augmedix Application through the Internet, including, without limitation, provision of any access codes, passwords, websites, connectivity standards or protocols, or any other relevant procedures. Subject to the terms of this Agreement, Augmedix hereby grants to Customer a non-transferable (except as otherwise permitted by this Agreement), non-exclusive, non-sublicensable, limited right to use and access the Services and Augmedix Application in accordance with the applicable Service Order(s), Documentation, and other provisions of this Agreement or application Product Schedules.
2.5 Restrictions. Customer shall not use the Services and/or Augmedix Application for any purpose beyond the scope of this Agreement. Customer shall not at any time, directly or indirectly, and shall not permit any Authorized User to, attempt to interfere with or disrupt the Services and/or Augmedix Application, or attempt to gain access to any systems or networks that connect thereto (except as required to access and use the Augmedix Application). Customer shall not: (a) copy, modify, or create derivative works of any portion of the Services, Augmedix Application or Documentation; (b) sell, rent, lease, lend, license, sublicense, distribute, or otherwise transfer the Services, Augmedix Application or the Documentation to any third party; (c) decompile, disassemble or reverse engineer any portion of the Services, Augmedix Application or the associated software; (d) write or develop any derivative software or service based upon the Services, the Augmedix Application, 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, Augmedix Application, Notebuilder Platform, Documentation or any associated software by any third party without Augmedix’s prior written consent.
2.6 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 secure 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.
2.7 Trial Subscriptions. Customer may access a version of the Services 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, Augmedix Applications, Notebuilder Platform, Usage Data, Documentation and any associated software, 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 as applicable.
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 and Customer Data for the sole purpose of providing and improving the Services and the Augmedix Application, including additional features thereof, and to perform its obligations under this Agreement.
3.3 Usage Data. The parties acknowledge and agree that Augmedix and/or its vendors may monitor, collect, use and store Usage Data for their respective business purposes, including, but not limited to, enhancing the Services and their respective components and creating new features thereof. Augmedix will not publicly disclose any Usage Data in a manner that would be reasonably likely to identify Customer as being the source of such Usage Data.
3.4 Feedback. To the extent Customer provides any suggestions, recommendation or other feedback to Augmedix with respect to the Services and/or the Augmedix Application (“Feedback”), 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” means any and all technical, business, client or proprietary information disclosed by one Party (the “Disclosing Party”) to the other Party (the “Receiving Party”), directly or indirectly, including, but not limited to, information regarding the Disclosing Party’s business strategies and practices, nonpublic financial information, pricing, methodologies, trade secrets, know-how, technology, software, product plans, services, relationships with any third party, client lists and information regarding the Disclosing Party’s employees, clients, vendors, consultants and Affiliates regardless of whether such information is marked “confidential” or some other proprietary designation, but which by its nature is information that would reasonably be considered to be confidential information of the Disclosing Party. Augmedix Confidential Information includes, without limitation, the Services, the Augmedix Applications, Notebuilder Platform and any associated software whether in source or executable code, the Documentation, and the results of any performance tests of the Services, including, without limitation, the Augmedix Application, Notebuilder Platform and any associated 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.
4.4 Injunctive Relief. Each Party acknowledges the irreparable harm that improper disclosure of Confidential Information may cause; therefore, the injured Party is entitled to seek equitable relief, including temporary restraining orders, or preliminary or permanent injunctions, in addition to all other remedies, for any violation or threatened violation of this Section 4.
4.5 Security Program. Augmedix shall maintain, and operate in accordance with, a written information security program appropriate for the Services and protection of Customer’s Customer Data. Augmedix will maintain administrative, physical and technical safeguards consistent with applicable industry standards designed to protect the security, confidentiality and integrity of Customer Data.
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 (as defined by HIPAA) disclosed by Customer to Augmedix, or created by Augmedix on behalf of Customer, pursuant to a Service Order. The Parties agree to enter into and comply with the applicable Business Associate Agreement with respect to such Protected Health Information.
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 and any other associated professional services 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. Customer agrees to establish payment through an automated clearing house (ACH) system and authorizes Augmedix to electronically debit entries from an account established by Customer to satisfy the payment obligations hereunder. Customer acknowledges and agrees that Implementation Fees and the first month of Subscription Fees may be debited automatically via ACH within fourteen (14) days of execution of this Service Order and recurring Subscription Fees may be debited automatically via ACH on the applicable due date. If Customer does not pay via ACH, Customer shall pay a processing fee in the amount of one and half percent (1.5%) of the transaction for any payments made by check or credit card.
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 Authorized Users from 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”). Except for taxes based upon Augmedix’s income or for goods or services used or consumed by Augmedix in connection with providing the Services under this Agreement, Customer shall be responsible for payment of all Taxes and any related interest and/or penalties resulting from any payments made hereunder, unless Customer provides Augmedix with a valid tax exemption certificate authorized by the appropriate taxing authority.
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’ 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 Content Capture Device(s), as defined in the applicable 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 backup of the Customer Data. Augmedix will use all reasonable efforts to deliver the backup 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”), 2.5 (“Restrictions”), 2.7 (“Trial Subscriptions”), 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 (i) it has the full power, right and authority to enter into this Agreement and to carry out its obligations herein, and (ii) neither the execution, delivery, nor performance of this Agreement will violate, conflict with, require consent under or result in any breach of any covenants or agreements by which such party is bound.
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 (i) it owns or has a license to use and has obtained all necessary consents and approvals for the provision and use of Customer Data that is placed on, transmitted via, or recorded by the Services; and (ii) 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 access to all or part of the Services in the event that Augmedix reasonably determines that Customer or its Authorized Users have 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 and its officers, directors and employees 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) gross negligence or willful misconduct of Customer or any of its employees, agents, or subcontractors in connection with the Services; (b) Customer or any Authorized User has used 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 and its successors, parents, subsidiaries, Affiliates, officers, directors, and employees 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, caused by: (a) the gross 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 the 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.
9.4 Exclusions. This Section 9 will not apply to the extent the underlying Claim arises from (a) the indemnified Party’s (a) breach of the Agreement, or (b) negligence or a more culpable act or omission, including recklessness or willful misconduct.
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.
FOR THE AVOIDANCE OF DOUBT, THE LIMITATIONS IN THIS SECTION 10 SHALL NOT APPLY TO, OR IN ANY WAY LIMIT, THE LIABILITY OF EITHER PARTY FOR CLAIMS ARISING FROM GROSS NEGLIGENCE, FRAUD, WILLFUL MISCONDUCT, OR CLAIMS FOR WHICH LIABILITY MAY NOT BE LIMITED UNDER APPLICABLE LAW.
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. A Party affected by a Force Majeure Event must notify the other party, and such other party may terminate the Agreement or applicable Service Order if the affected party is unable to recommence performance within thirty (30) days of the start of the Force Majeure Event.
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). 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.