Prevent Biometrics Terms & Conditions

 

These Terms & Conditions (the “Agreement”) are entered into as of the date the purchaser of equipment, software licenses or services (the “Customer”) executes the purchasing document (the “Purchase Agreement”) received from Prevent Biometrics, Inc. (“Prevent”). Customer and Prevent are referred to in this Agreement singularly as a “Party” and collectively as the “Parties”. This Agreement sets forth the terms and conditions that apply to the Equipment, Software and Services received from Prevent.

1.Consent: By purchasing Prevent’s physical products (the “Equipment”), software licenses to use the Prevent mobile app and web portal (the “Software”) and Services (collectively, the “Products”), the Customer represents that Equipment users are at least 18 years of age or in the case of Equipment users under the age of 18, that each Equipment user’s parent or guardian has provided consent to use the Equipment and Software to collect and store biometric data, including head impact data on Equipment users (the “Biometric Data”) and in relation to data privacy as more fully set out in Section 11.3 below. Customer agrees not to use the Equipment or the Software for any illegal or unauthorized purpose, or in violation of any laws in its jurisdiction (including but not limited to copyright laws).

2.Customer Responsibilities

2.1.Internet Access: An Internet connection is required for access to cloud-based Software components. Customer is responsible for procuring and maintaining the network connections necessary for such access. Prevent is not responsible for any compromise of data transmitted across computer networks or telecommunications facilities (including but not limited to the Internet) which are not owned or operated by Prevent.

2.2.Customer and Biometric Data.

2.2.1.Customer will assign specific employees and contractors with access rights to the account and/or data management functions (“the Authorized Administrative Personnel”), who will be solely responsible for all data and content provided by Customer to Prevent for purposes of providing the features and functions of the Products to Authorized Administrative Personnel and Users (“Customer Data”). “Users” shall have the same meaning as in Section 4.1. Customer will be responsible for all changes to and/or deletions of Customer Data and Biometric Data (collectively the “Data”) and the security of all passwords and other access protocols required to access the Software.

2.2.2.Customer hereby grants to Prevent a non-exclusive, perpetual, royalty-free license to use, copy, publish and distribute Data, in aggregate form. When used herein, “aggregate form” means a form in which the source of such Data or the identity of Customer or any individual using Prevent’s Products is absent. Customer warrants that it has the right to grant Prevent the licenses set out in this Section 2.2.2.

2.3.Customer will be responsible for the use, supervision, management, and control of the Equipment; 2.4.Customer will be responsible for preventing unauthorized or inappropriate use of the Equipment and Software, or use of the Equipment and Software outside the scope of this Agreement.

2.5.Modification, Reverse Engineering, and Derivative Works: Customer shall not, and shall not permit, any agent or third party:

2.5.1.To copy any Software, or documentation (collectively, “Materials”) other than as unambiguously permitted in this Agreement;

2.5.2.To decompile, disassemble, or otherwise reverse engineer the Equipment (including without limitation firmware) or Software or determine any source code, algorithms, methods, or techniques (or similar) used or embodied in the Materials;

2.5.3.To access the Materials for the purpose of monitoring its availability, performance, or functionality or for benchmarking, reverse engineering, or other competitive purpose;

 

2.5.4.To embed the Materials in any other application;

2.5.5.To modify, translate, or otherwise create derivative works based upon the Materials or copy ideas, features, functions, or graphics of the Software for use in another product, service, or function;

2.5.6.To remove or alter any copyright, trademark, or other notices, legends, symbols, or labels appearing in connection with the Materials.

 

2.6.Certain Excluded Uses: Customer agrees not to access or use the Software if it is competing or planning to compete in the business of biometric monitoring. In addition, the Customer agrees not to:

 

2.6.1.Send or store materials containing software viruses, worms, trojan horses or other harmful computer code, files scripts, agents or programs;

 

2.6.2.Interfere with or disrupt the integrity or performance of the Software;

 

2.6.3.Alter or modify disabling mechanisms which may be resident in the Software or mechanisms that control access to use of the Software; or

 

2.6.4.Gain or attempt to gain unauthorized access to the Software or its related systems or networks for any reason whatsoever.

 

2.6.5.Customer has responsibility for advising all users on safe and proper use of the Products as described in the Instructions for Use.

 

3. Equipment

3.1.Purchase

3.1.1.Customer purchases all Equipment set out on each Purchase Agreement

3.1.2.Title in, and ownership of, Equipment will remain with Prevent (and will not pass to Customer) until all invoices related to the Purchase Agreement are paid in full.

 

3.1.3.Customer may not assign the Software or Data to any third party.

 

4. Licenses

 

4.1.Access: Customer use of the Software shall be for the number of employees and contractors with access rights to the account and/or data management functions of the Software (“Authorized Administrative Personnel”) and the number of Customer users, athletes and parents/guardians of athletes (“Users”) granted access to the Software by Authorized Administrative Personnel.

 

4.2.License Rights: Subject to the terms and conditions contained in this Agreement, Prevent hereby grants to Customer the following rights during the Term:

 

4.2.1.A non-exclusive, non-transferable license during the Term for the Authorized Administrative Personnel to access the Software furnished by Prevent, and to install and use the Software on supported devices; and

 

4.2.2.a non-exclusive, non-transferable license to use and copy the documentation for the foregoing as made available by Prevent (the “Documentation”).

To the extent that any terms of end user licenses for the Software conflict with the terms of this Agreement, the terms of this Agreement shall control.

5. Fees & Payment

5.1.Due Date: Customer shall pay the fees as specified on the Purchase Agreement per the payment terms set forth on the Purchase Agreement.

5.2.Taxes: “Tax” means any tax or charge levied by any governmental body including but not limited to any value-added, sales, use, or withholding tax assessable by any local, state, provincial, federal, or foreign jurisdiction. Prevent’s fees do not include any Taxes and the Customer is responsible for paying all Taxes associated with the goods and services supplied by Prevent. If Prevent has an obligation to pay or collect Taxes for which Customer is responsible, it will include that amount on the invoice(s) it generates when delivering the items on the Purchase Agreement.

 

5.3.Late Payment: Amounts not received by the due date shall bear interest, without demand, at a rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law (if lower), from the date such payment was due until the date paid. If any payment owing to Prevent is outstanding 30 or more days, Prevent may, in addition to Prevent’s rights under Section 15.2, restrict the Customer’s ability to access or use the Equipment and/or Software, and/or suspend any of Prevent’s other obligations under this Agreement.

 

5.4.Currency: All amounts due under this Agreement are payable in US Dollars unless otherwise specified in the Purchase Agreement.

6. Equipment and Software

 

6.1.Customer Obligations.

 

6.1.1.Customer shall operate the Equipment, including without limitation the Impact Monitoring Mouthguard (the “IMM”), and Software only in accordance with the applicable documentation;

 

6.1.2.During the Term, Customer shall use the Equipment, Software and Data only to monitor and review the impact data of individuals wearing an IMM (an “Athlete”) for internal purposes (“Licensed Purpose”) and without limiting the foregoing, Customer agrees not to use the Equipment, Software or Data to provide information or services to third-parties, whether for a fee or otherwise.

 

6.2.Limitations of the Software and Equipment.

 

6.2.1.Modification of Hosted Software: Customer acknowledges and agrees that Prevent may modify the Software from time to time.

6.2.2.Self-Reliance: Customer acknowledges it has relied on its own skill, knowledge, experience, and judgment to verify that the Software and Equipment meets its requirements and that it is not relying on any implied warranty of fitness for its needs.

6.2.3.Customer Systems: Prevent shall have no liability with regard to the Software if the Customer’s computer network and communications systems (including software) do not conform to Prevent’s minimum specifications or recommended configurations. The minimum specifications are available from Prevent. Prevent has no obligation to provide any computers to the Customer.

 

7. Replacement & Warranty

 

7.1.Equipment Warranty: Prevent warrants, for a period of three hundred sixty five (365) days following delivery, that the Equipment will be free from material defect or error. Prevent will repair or replace (at Prevent’s election), at Prevent’s cost, any Equipment that is defective in materials or workmanship or that malfunctions due to ordinary wear and tear under ordinary use in accordance with Prevent’s instructions. Chewing, crushing and bending of the IMM, beyond that which is required to take the IMM on and off the teeth, and to place in and remove from the charging case, is NOT covered by this warranty.

 

7.2.Disclaimer of Warranties: EXCEPT AS SET FORTH IN THIS SECTION 7, THERE ARE NO OTHER WARRANTIES, REPRESENTATIONS, CONDITIONS, OR GUARANTEES OF ANY KIND WHATSOEVER, EITHER EXPRESS OR IMPLIED BY LAW (IN CONTRACT OR TORT) OR CUSTOM, INCLUDING, BUT NOT LIMITED TO, THOSE REGARDING MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, PREVENT DOES NOT REPRESENT THAT CUSTOMER’S USE OF THE SOFTWARE WILL BE SECURE, TIMELY, UNINTERRUPTED, OR ERROR-FREE, OR THAT THE SOFTWARE WILL MEET CUSTOMER’S REQUIREMENTS, OR THAT ALL ERRORS IN THE SOFTWARE WILL BE CORRECTED.

 

8. Limitation of Liability: EXCEPT FOR BREACHES OF THE CONFIDENTIALITY PROVISIONS IN SECTION 11 OR FOR INTENTIONAL BREACH OF THE LICENSES GRANTED HEREIN, PREVENT WILL NOT BE LIABLE TO THE CUSTOMER OR TO ANY OTHER THIRD PARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES OR LOSSES (IN CONTRACT OR TORT) IN CONNECTION WITH THE EQUIPMENT OR SOFTWARE FURNISHED BY PREVENT TO CUSTOMER, THE SERVICES PROVIDED PURSUANT TO THIS AGREEMENT, OR THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOST PROFITS, LOST SAVINGS, LOST DATA OR SPECIAL DAMAGES, EVEN IF THE REMEDIES PROVIDED IN THIS AGREEMENT FAIL IN THEIR ESSENTIAL PURPOSE AND EVEN IF SUCH PARTY HAS KNOWLEDGE OF THE POSSIBILITY OF SUCH POTENTIAL LOSS OR DAMAGE. PREVENT’S CUMULATIVE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE EQUIPMENT, SOFTWARE OR SERVICES, INCLUDING INDEMNIFICATION OBLIGATIONS, SHALL NOT EXCEED THE FEES PAID BY CUSTOMER UNDER THE APPLICABLE PURCHASE AGREEMENT. Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages so parts of this limitation and exclusion may not apply to Customer.
9. Proprietary Rights.

9.1.Ownership of Data: All title and intellectual property rights in and to the Data is owned exclusively by Customer, subject to the license rights in Section 2.2.2.

9.2.Prevent Intellectual Property: Customer agrees that all rights, title and interest in and to all intellectual property rights in the Products, or any work product or other deliverables and/or training materials to be developed and/or provided to Customer (collectively, the “Deliverables”) are owned exclusively by Prevent or its licensors. Except as provided in this Agreement, the license granted to Customer does not convey any rights in the Products or Deliverables, whether express or implied. Notwithstanding the foregoing, (i) nothing herein shall be construed to assign or transfer any intellectual property rights in the proprietary tools, libraries, know-how, methodologies, processes or techniques, and expertise (“Tools”) used by Prevent to develop the Deliverables, and to the extent such Tools are delivered with or as part of the Deliverables, they are licensed, not assigned, to Customer, on the same terms as the Deliverables; and (ii) the term “Deliverables” shall not include the Tools.

 

10. Support

 

10.1.Prevent will use commercially reasonable efforts to provide Customer with the support services provided to similar customers of Prevent.

 

10.2.Support Hours & Contacts: Support is provided remotely Monday through Saturday, 8:00am through 5:00pm Central Time, excluding U.S. Federal and applicable State holidays. Prevent support may be contacted via email at support@preventbiometrics.com and by phone at (612) 315-0260.

 

11. Confidentiality

 

11.1.Definition: “Confidential Information” means non-public information that the disclosing party discloses to the other party (the “Recipient”), whether orally or in writing, that the disclosing party designates as confidential or that the disclosing party discloses in connection with this Agreement if the information reasonably should be understood to be confidential given the nature of the information and the circumstance of disclosure. For purposes of this Agreement, Confidential Information shall include the terms of this Agreement, each Party’s proprietary technology, business processes and technical product information, designs, issues, all communication between the Parties regarding the Products and any information that is identified as confidential. Notwithstanding the foregoing, Confidential Information shall not include information which: (1) is known publicly; (2) is generally known in the industry before disclosure; (3) has become known publicly, without fault of the receiving Party; (4) the receiving Party becomes aware of from a third party not bound by non-disclosure obligations to the disclosing Party and with the lawful right to disclose such information to the receiving Party; or (5) is data in aggregate form. Customer’s Confidential Information shall include its Data, but exclude De-identified Data, as defined in Section 11.4.4 below.

 

11.2.Responsibilities: Each Party agrees to:

 

11.2.1.Keep confidential all Confidential Information;

11.2.2.Not use or disclose Confidential Information except to the extent necessary to perform its obligations or exercise rights under this Agreement;

 

11.2.3.Collect, process, store and use personal data in accordance with applicable privacy law and consistent with the consent obtained by the Customer from each User, comply with its privacy policy, maintain and enforce appropriate technical and organizational measures to protect its information technology systems for the protection of personal data, and inform the other Party of any request from a User regarding their personal data and the action being taken to comply with such request.

 

11.3.IMM User Consent: Customer represents that it has obtained the consent of all IMM users (or their parent or legal guardians in the case of IMM users under the age of 18 years) to the collection, disclosure and use of their personal information (including such information which comprises Data) in accordance with this Agreement and Prevent’s Privacy Policy which Customer has disclosed to each IMM user or their parent or guardian in the case of IMM users under the age of 18 years (the “IMM User Consent”). Where necessary, Customer agrees to provide evidence of this consent to Prevent, in writing, from all IMM Users (or their parent or legal guardians in the case of IMM Users under the age of 18 years), in any form Prevent reasonably requires.

 

11.4.Data

 

11.4.1.Customer acknowledges and agrees that the Equipment and Software (and other goods and services) are being acquired by Customer for the sole purpose of the Licensed Purpose.

 

11.4.2.Customer agrees that, during and after the Term: (i) the Data may be accessed and used by Prevent at any time for the purpose of performing its obligations under the Agreement and monitoring its rights under the Agreement and the performance of the Equipment and/or Software; (ii) De-identified Data, as defined in Section 11.4.4 below, may be created and used by Prevent or permitted third parties for aggregate reporting purposes, research and development, and for use in respect of the development of new products and services, and enhancements to existing products and services.

 

11.4.3.Customer warrants to Prevent that it has obtained all necessary consents required for the collection, storage, use (including by permitted third parties), sub-license, assignment and transfer of the Data, including any consents required in accordance with any privacy law that applies to any applicable individual and/or the Athlete.

 

11.4.4.Data is “De-identified Data” if Prevent has no reasonable basis to believe the Data can be used to identify a specific Athlete.

 

11.4.5.Without limitation, Customer shall not use, and shall not permit third parties to use, the Data for commercial purposes (including, without limitation, commercialization or monetization of Data).

 

11.4.6.Notwithstanding anything to the contrary in this Agreement, any access to or use of the Data permitted in this Section 11.4 shall not constitute a breach of this Agreement by Prevent.

 

11.5.Required Disclosure: In the event that Recipient (or its affiliates) is requested or required (by oral questions, interrogatories, requests for information or documents, subpoena, governmental or civil investigative demand or similar process) to disclose any of the Confidential Information, it is agreed that Recipient will (to the extent permitted) provide the disclosing party with prompt notice of such request(s) so that the disclosing party may seek an appropriate protective order or other appropriate remedy and/or waive compliance with the confidentiality provisions of this Agreement. In the event that such protective order or other remedy is not obtained, or the disclosing party grants a waiver hereunder, Recipient (or its affiliates) may furnish that portion (and only that portion) of the Confidential Information which Recipient is legally compelled to disclose and will exercise commercially reasonable efforts to obtain reliable assurance that confidential treatment will be accorded any Confidential Information so furnished. The disclosing party shall be responsible for reimbursing Recipient’s reasonable costs associated with compiling and providing secure access to the disclosed information.

 

The obligations in this Section 11 shall survive the termination of this Agreement.

 

12.Risk of Injury: Customer covenants to Prevent that prior to use of the Equipment, each Athlete will be aware of the risks and hazards connected with exercise, sports, and other physical activity and that each Athlete will acknowledge (through the IMM User Consent) that individual head impact data will be preserved and that the IMM does not provide protection from all injuries to head, mouth, teeth or jaw. Customer assumes the risk of any personal injury, death and property damage to any person (including Athletes) that may occur while using the Equipment or Software.

 

13. Indemnification

 

13.1.Infringement: Prevent shall, at its own expense and subject to the limitations set forth in this Agreement, defend Customer from and against any and all allegations, threats, claims, suits, and proceedings brought by third parties (collectively “Claims”) and shall indemnify Customer for any damages finally awarded or payable in settlement of such Claims (including, without limitation, reasonable attorneys’ fees incurred in defense and settlement thereof) (collectively, “Losses”) where the Claims allege that the Products infringe third party intellectual property rights. Excluded from the foregoing indemnification obligations are Claims to the extent arising from (a) use of the Products in violation of this Agreement or applicable law, (b) use of the Products after Prevent notifies Customer to discontinue use because of an infringement claim, or (c) use of the Products in combination with any software, application, data, or service made or provided by a party other than Prevent. If a Claim of infringement is brought or threatened, Prevent shall, at its sole option and expense, use commercially reasonable efforts either (a) to procure a license that will protect Customer against such Claim without cost to Customer; (b) to modify or replace all or portions of the Products as needed to avoid infringement; or (c) if (a) and (b) are not commercially feasible, terminate the Agreement and refund to Customer a pro-rata portion of the amounts paid for Equipment and Software. The rights and remedies granted Customer under this Section state Prevent’s entire liability, and Customer’s exclusive remedy, with respect to any claim of infringement or misappropriation of the intellectual property rights of a third party.

 

13.2.Customer’s Indemnity: Customer shall, at its own expense and subject to the limitations set forth in this Section, defend, indemnify and hold harmless Prevent and its officers, directors, employees, agents, successors and assigns (“Prevent Parties”) from and against any and all Claims and shall indemnify Prevent Parties for any Losses, including personal injury, death and property damage, attributable to such Claims, where the Claims (i) allege that the Data, or any use thereof, violates or infringes the intellectual property rights or other rights, or has caused harm to a third party, or (ii) arise out of Customer’s breach of the licenses and/or access rights granted herein, (iii) arise out of Customer’s failure to provide and/or follow warnings and instructions for proper or safe use, or (iv) arise out of Customer’s negligent acts or omissions or intentional acts. In the event that a claim arises out of the customer’s negligence, Prevent retains the right to select counsel of its choice to defend the claims or lawsuits. Legal fees and costs incurred in defending Prevent will be paid by Customer.

 

13.3.If any claim is made against Prevent Parties, for injury to person or property arising from the sale or use of Product, Customer shall fully cooperate with Prevent in defending the claim or lawsuit.

 

13.4.In the event Customer is made a party to any legal claim or lawsuit instituted by a third party, Customer should provide Prevent Parties with reasonably prompt notice of the legal claim or lawsuit.

 

14. Marketing Release: Customer hereby grants Prevent Biometrics the nonexclusive right and license to use and display the Customer’s name, logo, and other indicia (“Customer Marks”) on its website, social media sites, and other marketing collateral identifying Customer as a customer of Prevent Biometrics. Prevent Biometrics obtains no rights in the Customer Marks except for the limited right described in the preceding sentence, and Customer retains all right, title and interest in the Customer Marks. All use of the Customer Marks by Prevent Biometrics will inure to the benefit of Customer.

 

15. Suspension/Termination

15.1.Suspension: Prevent reserves the right to suspend Customer’s access to and/or use of the Software (i) if amounts are not paid when due, or (ii) if Prevent reasonably concludes that Customer has used the Software in violation of this Agreement. Customer agrees that Prevent shall not be liable for any suspension of the Software pursuant to this Section.

15.2. Termination for Cause: Either Party may terminate this Agreement and all related agreements issued hereunder in the event the other Party commits a material breach of any provision of this Agreement which is not cured within thirty (30) days following written notice from the non-breaching Party.

 

15.3.Insolvency: Either Party may, at its option, terminate this Agreement immediately upon written notice to the other Party, in the event that (a) the other Party becomes insolvent or unable to pay its debts when due; (b) the other Party files a petition in bankruptcy, reorganization or similar proceeding, or, if filed against, such petition is not removed within ninety (90) days after such filing; (c) the other Party discontinues its business; or (d) a receiver is appointed or there is an assignment for the benefit of such other Party’s creditors.

 

15.4.Effect of Termination. All payment obligations and the provisions of Sections 2.2.2, 2.4, 2.5, 2.6, 5, 7.2, 8, 9, 11, 13, 15.4 and 16 shall survive the termination or expiration of this Agreement.

 

15.5.Data Hosting: Customer may purchase data hosting services (“Hosting Services”) from Prevent within 30 days after expiration or termination of this Agreement (“End Date”) if in compliance with all of its obligations under this Agreement. No fee is payable in respect of hosting of Data during the Term. The fee payable for the first year of Hosting Services is $10 per Athlete per year. Thereafter Prevent reserves the right to modify its prices for subsequent years. Fees for Hosting Services are payable annually in advance. The Hosting Services will allow Customer to view its Data as it existed as of the End Date but not to upload any Data. Prevent may offer to extend the Hosting Services, on the same or with different pricing, by delivering an invoice for the period of the extended services. The Hosting Services shall be so extended upon payment of the invoice on or before the date specified in the invoice. If Customer does not purchase or pay for the Hosting Services in accordance with this Section or Prevent’s invoices, Prevent may, without notice, at any time, delete any Data Customer has uploaded to the Software following the termination of this Agreement.

 

16. Miscellaneous

 

16.1.Successors and Assigns: This Agreement shall bind and inure to the benefit of the Parties and their respective successors and assigns to the extent this Agreement permits. All references to a Party in this Agreement shall also refer to each person who becomes a permitted successor or assignee of the Party’s rights under this Agreement. Customer may not assign (directly or indirectly) this Agreement or its rights or obligations under this Agreement, or license, sublicense, sell, resell, transfer, assign, distribute, or otherwise commercially exploit or make available any part of the Software or Data (unless set out herein) to any person or party, without Prevent’s prior written consent.

 

16.2.Force Majeure: Each Party (for the purposes of this Section 16.2 only “first party”) and the first party’s affiliates and licensors shall not be liable for any delay or failure in the performance of obligations (other than an obligation to pay money) that arises out of causes beyond its control, including but not limited to electrical and or energy outages, Internet failures, computer failures, communications failures, acts of God or of the public enemy, fires, floods, epidemics, riots, quarantine restrictions, strikes, freight embargoes, earthquakes, and severe weather, war, governmental action, labor conditions, and acts or omissions of subcontractors or third parties.

 

16.3.Notices: Any notice given under or in connection with this Agreement shall:

 

16.3.1.If given to Customer, be given to any of the contact information (including email address) for Customer set out in the Purchase Agreement;

 

16.3.2.If given to Prevent, be given to any of the contact information (including email address) for Prevent set out in the Purchase Agreement, with a copy to legal@preventbiometrics.com or such other contact information of either Party, provided by that Party to the other.

 

16.4.Modifications: This Agreement may not be amended or otherwise modified except pursuant to a later written document, signed by the Parties to this Agreement, evidencing the intent to amend or modify this Agreement.

 

16.5.Dispute Resolution: The parties shall negotiate in good faith to resolve any dispute between them regarding this Agreement. If the negotiations do not resolve the dispute to the reasonable satisfaction of both parties, then each party shall nominate one senior officer as its representative. The representatives shall, after delivery of a written request by either party for a meeting, meet in person and alone (except for one assistant for each party) and attempt in good faith to resolve the dispute. If the representatives cannot resolve the dispute, the representatives shall, within 30 days after the date of delivery of a written request, meet for one (1) day with an impartial mediator to consider dispute resolution alternatives to litigation. If the parties do not agree to an alternative method of dispute resolution within 30 days after the mediation, either party may begin litigation. This Agreement does not preclude a party from seeking prejudgment remedies and emergency relief from a court of competent jurisdiction.

 

16.6.Equitable Remedies: Any breach of this Agreement by Customer may cause irreparable damage to Prevent. In the event of such breach, and in addition to any remedies at law, Prevent shall have the right to seek an injunction, specific performance, or other equitable relief in any court of competent jurisdiction to enforce this Agreement, without the requirement of posting a bond or undertaking or proving injury as a condition for relief.

 

16.7.Governing Law, Jurisdiction, and Venue: This Agreement shall be governed by and construed in accordance with the laws of the State of Minnesota, without regard to the State’s conflict of laws principles. Each Party agrees and consents to the personal jurisdiction and service and venue in any federal or state court within the State of Minnesota having subject matter jurisdiction, for the purposes of any action, suit or proceeding arising out of or relating to this Agreement.

 

16.8.Entire Agreement: This Agreement (including the Purchase Agreement, Prevent’s Privacy Policy and any other related agreements) comprises the entire agreement between Prevent and the Customer and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the Parties regarding the subject matter hereof. No text or information set forth on any purchase order, preprinted form, or document that does not conform to this Agreement shall add to or vary the terms of this Agreement.

 

16.9.Severability; No Partnership; No Waiver: If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. No joint venture, partnership, employment, or agency relationship exists between Prevent and Customer as a result of this Agreement or Customer’s use of the Software. The failure of Prevent to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by Prevent in writing.

 

16.10.Additional Defined Terms: “Data” includes, without limitation, head impact data. “permitted third parties” means Prevent’s third party partners, licensees, sub-licensees, assignees and transferees permitted to access and use Data and De-identified Data solely in accordance with Section 11.4.

 

16.11.Non-disparagement: During and after the Term, each Party agrees that it will not, will procure that its and its affiliates’ personnel do not, and will not permit any third party to, take any action that may directly or indirectly damage the reputation of the other Party or the other Party’s affiliates or otherwise disparage the other Party or the other Party’s affiliates or their respective goods and services. Any matter or thing permitted under this Agreement shall not constitute a breach of this Section 16.11.

 

16.12.Counterparts: The Parties may execute this Agreement in any number of counterparts, each of which shall be an original, and all of which together shall constitute one instrument. A signature by facsimile machine or the transmission of a scanned signature or electronic signature shall bind the Party so signing with the same effect as the Party’s original signature.