MD.ai Software As a Service Agreement
Last modified: August 10, 2018
IMPORTANT LEGAL NOTICE:
THIS SOFTWARE AS A SERVICE AGREEMENT (THE “AGREEMENT”) IS A LEGAL AGREEMENT BETWEEN YOU
(EITHER AN INDIVIDUAL OR A SINGLE ENTITY) AND MD.ai, Inc (THE “COMPANY”) WHICH SHALL GOVERN
YOUR ACCESS TO AND USE OF THE SOFTWARE AND SERVICES (AS DEFINED BELOW). IN THIS AGREEMENT, YOU
AND YOUR COMPANY SHALL BE COLLECTIVELY REFERRED TO AS THE “SUBSCRIBER”. BY CREATING AN
ACCOUNT, YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THE FOLLOWING TERMS AND AGREE TO BE
BOUND BY THEM, AND, IF YOU ARE AN INDIVIDUAL ENTERING INTO THIS AGREEMENT ON BEHALF OF AN
ENTITY, YOU REPRESENT, WARRANT, AND COVENANT THAT YOU ARE AUTHORIZED TO ENTER INTO THIS
AGREEMENT ON BEHALF OF SUCH ENTITY, AND BIND SUCH ENTITY TO THE TERMS AND CONDITIONS HEREOF.
IF YOU DO NOT AGREE TO THESE TERMS, COMPANY IS UNWILLING TO GRANT YOU THE RIGHT TO ACCESS AND
USE THE SERVICE AND YOU SHOULD CANCEL THE ACCOUNT CREATION PROCESS, IN WHICH CASE YOU MUST
DISCONTINUE ANY FURTHER ATTEMPT TO ACCESS OR USE THE SERVICES, AND IF YOU HAVE PREVIOUSLY PAID
ANY FEE TO ANY THIRD PARTY FOR SUCH ACCESS AND USE, THEN YOU MAY OBTAIN A REFUND FROM SUCH
THIRD PARTY IN ACCORDANCE WITH SUCH THIRD PARTY’S REFUND POLICY.
This Agreement is made and entered into on as of the date that Subscriber creates an account
as set forth above (the “Effective Date”) by and between Company and Subscriber. In
consideration of the mutual promises contained herein, the parties hereby agree to the
BACKGROUND. Company has developed certain Software (defined below), which it provides
as part of its Services (defined below). Subscriber wishes to utilize the Services, and
Company desires to make the Services available to Subscriber, subject to the following terms
DEFINITIONS. Capitalized terms shall have the meanings set forth in this section, or in
the section where they are first used.
“Access Protocols” means the passwords, access codes, technical specifications,
connectivity standards or protocols, or other relevant procedures, as may be necessary
to allow Subscriber or any Authorized Users to access the Services.
- “Application” a specific service offered by Company as part of the Services.
“Authorized Facility” means a specific facility owned or operated by Subscriber
from which Subscriber is authorized by Company to allow Authorized Users to access the
“Authorized User” means any individual who is an employee of Subscriber or such
other person or entity as may be authorized by Company in writing, to access the one or
more Services pursuant to Subscriber’s rights under this Agreement.
“Data Collection Device” means the data collection equipment provided by Company to
collect and transmit Subscriber Content and other data pursuant to this Agreement.
“Documentation” means the technical materials provided by Company to Subscriber in
hard copy or electronic form describing the use and operation of the Software.
“Error” means a reproducible failure of the Software to substantially conform to
“Error Corrections” means bug fixes or workarounds intended to correct Errors in
“Intellectual Property Rights” means any and all now known or hereafter existing
(a) rights associated with works of authorship, including copyrights, mask work rights,
and moral rights; (b) trademark or service mark rights; (c) trade secret rights; (d)
patents, patent rights, and industrial property rights; (e) layout design rights, design
rights, and other proprietary rights of every kind and nature other than trademarks,
service marks, trade dress, and similar rights; and (f) all registrations, applications,
renewals, extensions, or reissues of the foregoing, in each case in any jurisdiction
throughout the world.
“Services” means Company’s proprietary service which allows Subscriber to exchange,
transmit, and store images and other related data such as annotations, labels, and
“Subscriber Content” means any content developed by or on behalf of Subscriber and
used with the Software.
“Software” means the software programs and any associated user interfaces and
related technology that Company makes available in connection with the Services pursuant
to this Agreement.
PROVISION OF SERVICES
Access. Subject to Subscriber’s strict compliance with the terms of this Agreement,
Company will provide the Services via an online user interface and through API's for
certain Subscribers. On or as soon as reasonably practicable after the Effective Date,
Company shall provide to Subscriber the necessary passwords, security protocols and
policies and network links or connections and Access Protocols to allow Subscriber and
its Authorized Users to access the Services in accordance with the Access Protocols.
Responsibility for Software and Content Hosting. Company shall, at its own expense,
provide for the hosting of the Software which is accessible as part of the Services,
provided that nothing herein shall be construed to require Company to provide for, or
bear any responsibility with respect to any telecommunications or computer network
hardware (except for any Data Collection Device(s) which may be supplied by Company),
required by Subscriber or any Authorized User to provide access from the Internet to the
Data Collection Devices. In connection with Company’s provision of the Services to
Subscriber hereunder, Company may provide one or more Data Collection Devices to
Subscriber, and, in such case, Company shall work with Subscriber to schedule the
delivery, installation, and implementation of such Data Collection Devices. If Company
does provide such Data Collection Devices to Subscriber, then, subject to the terms of
this Agreement, Company grants Subscriber the right to use such Data Collection Devices
solely for the purposes of this Agreement and for no other purpose. Subscriber shall
take reasonable steps to ensure that any Data Collection Devices provided to Subscriber
are not damaged by Subscriber or any of Subscriber’s employees, agents, contractors, or
any other third party.
License Grant. Subject to the terms and conditions of this Agreement, Company
grants to Subscriber a non-exclusive, non-transferable license during the term, solely
for Subscriber’s internal business purposes: (a) to access, use, perform, and digitally
display the Software as required for use of the Services and in accordance with the
Documentation; and (b) to use and reproduce a reasonable number of copies of the
Documentation solely to support Subscriber’s use of the Services.
Limitations. The Services, Software, Data Collection Devices, Documentation, and
all other materials provided by Company hereunder, including but not limited to all
manuals, reports, records, programs, data and other materials, and all Intellectual
Property Rights in each of the foregoing, are the exclusive property of Company and its
suppliers. Subscriber agrees that it will not, and will not permit any Authorized User
or other third party to: (a) permit any person to access the Software, Data Collection
Devices, or Documentation or use the Services, other than the Authorized Users
authorized under this Agreement; (b) modify, adapt, alter or translate the Software or
Documentation, except as expressly allowed herein; (c) sublicense, lease, rent, loan,
distribute, or otherwise transfer the Software, Data Collection Devices, or
Documentation to any third party; (d) reverse engineer, decompile, disassemble, or
otherwise derive or determine or attempt to derive or determine the source code (or the
underlying ideas, algorithms, structure or organization) of the Software; (e) use or
copy the Software or Documentation except as expressly allowed under this subsection; or
(f) disclose or transmit any data contained in the Software to any individual other than
a Authorized User, except as expressly allowed herein. Notwithstanding the foregoing,
decompiling the Software is permitted to the extent the laws of Subscriber’s
jurisdiction require Company to give Subscriber the right to do so to obtain information
necessary to render the Software interoperable with other software; provided, however,
that Subscriber must first request such information from Company and Company may, in its
discretion, either provide such information to Subscriber or impose reasonable
conditions, including a reasonable fee, on such use of the source code for the Software
to ensure that Company’s and its suppliers’ proprietary rights in the source code for
the Software are protected. Except as expressly set forth herein, no express or implied
license or right of any kind is granted to Subscriber regarding the Services, Data
Collection Devices, Software, Documentation, or any part thereof, including any right to
obtain possession of any source code, data or other technical material relating to the
Ownership. The Services, Software, Data Collection Devices, Documentation, and all
worldwide Intellectual Property Rights in each of the foregoing, are the exclusive
property of Company and its suppliers. All rights in and to the Services, Software, Data
Collection Devices and Documentation not expressly granted to Subscriber in this
Agreement are reserved by Company and its suppliers. Except as expressly set forth
herein, no express or implied license or right of any kind is granted to Subscriber
regarding the Software, Data Collection Devices, Documentation, and Services or any part
thereof, including any right to obtain possession of any source code, data or other
technical material related to the Software.
Open Source Software. Certain items of software may be provided to Subscriber with
the Software and are subject to “open source” or “free software” licenses (“Open Source
Software”). Some of the Open Source Software is owned by third parties. The Open Source
Software is not subject to the terms and conditions of the section titled
Indemnification or the subsection titled License Grant. Instead, each item of Open
Source Software is licensed under the terms of the end-user license that accompanies
such Open Source Software. Nothing in this Agreement limits Subscriber’s rights under,
or grants Subscriber rights that supersede, the terms and conditions of any applicable
end user license for the Open Source Software. If required by any license for particular
Open Source Software, Company makes such Open Source Software, and Company’s
modifications to that Open Source Software, available by written request at the notice
address specified below.
FEES AND EXPENSES; PAYMENTS
Fees. As of the Effective Date, it is not contemplated that Company will charge
Subscriber any fees for access and use of the Services under this Agreement;
Expenses. All costs and expenses incurred by Subscriber in connection herewith are
the sole responsibility of Subscriber.
SUBSCRIBER CONTENT AND RESPONSIBILITIES
License; Ownership. Subscriber grants Company a non-exclusive, worldwide,
royalty-free and fully paid license (a) to use the Subscriber Content as necessary for
purposes of providing the Services and (b) to use the Subscriber trademarks, service
marks, and logos as required to provide the Services. The Subscriber Content hosted by
Company as part of the Services, and all worldwide Intellectual Property Rights in it,
is the property of Subscriber. All rights in and to the Subscriber Content not expressly
granted to Company in this Agreement are reserved by Subscriber.
Authorized Users Access to Services. Subscriber may permit any Authorized Users to
access and use the features and functions of the Services as contemplated by this
Agreement. User IDs cannot be shared or used by more than one Authorized User at a time.
Subscriber shall use commercially reasonable efforts to prevent unauthorized access to,
or use of, the Services, and notify Company promptly of any such unauthorized use known
Subscriber Warranty. Subscriber represents and warrants that any Subscriber Content
hosted by Company as part of the Services shall not (a) infringe any copyright,
trademark, or patent; (b) misappropriate any trade secret; (c) be deceptive, defamatory,
obscene, pornographic or unlawful; (d) contain any viruses, worms or other malicious
computer programming codes intended to damage Company’s system or data; (e) otherwise
violate the rights of a third party, including, without limitation, any privacy rights;
or (f) violate any applicable law, ordinance, or government regulation applicable to
such Subscriber Content. Subscriber agrees that any use of the Services contrary to or
in violation of the representations and warranties of Subscriber in this section
constitutes unauthorized and improper use of the Services.
Subscriber Responsibility for Data and Security. Subscriber and its Authorized
Users shall have access to the Subscriber Content and shall be responsible for all
changes to and/or deletions of Subscriber Content and the security of all passwords and
other Access Protocols required in order the access the Services. Subscriber shall have
the sole responsibility for the accuracy, quality, integrity, legality, reliability, and
appropriateness of all Subscriber Content.
Copyright Policy. Company reserves the right to terminate its agreement with any
Subscriber who repeatedly infringes third party copyright rights upon prompt
notification to Company by the copyright owner or the copyright owner’s legal agent.
Additional Subscriber Responsibilities. It shall be Subscriber’s sole
responsibility to perform those specific services that are necessary to establish
Subscriber’s or Authorized Users’ use of the Software, Data Collection Devices,
Documentation, and Services.
NO WARRANTY; DISCLAIMERS
No Warranty; Disclaimer. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE
SOFTWARE, DATA COLLECTION DEVICES, DOCUMENTATION, AND SERVICES ARE PROVIDED SOLELY ON AN
“AS IS,” AND “AS AVAILABLE BASIS, WITHOUT WARRANTY OF ANY KIND, AND COMPANY MAKES NO
(AND HEREBY DISCLAIMS ALL) WARRANTIES, REPRESENTATIONS, OR CONDITIONS, WHETHER WRITTEN,
ORAL, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED
WARRANTIES OF SATISFACTORY QUALITY, COURSE OF DEALING, TRADE USAGE OR PRACTICE,
MERCHANTABILITY, TITLE, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE, WITH
RESPECT TO THE USE, MISUSE, OR INABILITY TO USE THE SOFTWARE, DATA COLLECTION DEVICES,
DOCUMENTATION, OR SERVICES (IN WHOLE OR IN PART) OR ANY OTHER PRODUCTS OR SERVICES
PROVIDED TO SUBSCRIBER BY COMPANY. COMPANY DOES NOT WARRANT THAT ANY OR ALL ERRORS CAN
BE CORRECTED, OR THAT OPERATION OF THE SOFTWARE, DATA COLLECTION DEVICES, AND SERVICES
SHALL BE UNINTERRUPTED OR ERROR-FREE. SOME STATES AND JURISDICTIONS DO NOT ALLOW THE
EXCLUSION OF IMPLIED WARRANTIES OR CONDITIONS OR LIMITATIONS ON HOW LONG AN IMPLIED
WARRANTY LASTS, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO SUBSCRIBER IN THEIR
LIMITATION OF LIABILITY
Types of Damages. TO THE EXTENT LEGALLY PERMITTED UNDER APPLICABLE LAW, COMPANY OR
ITS SUPPLIERS SHALL NOT BE LIABLE TO SUBSCRIBER FOR ANY SPECIAL, INDIRECT, EXEMPLARY,
PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY NATURE INCLUDING, BUT NOT LIMITED
TO DAMAGES OR COSTS DUE TO LOSS OF PROFITS, DATA, REVENUE, GOODWILL, PRODUCTION OR USE,
BUSINESS INTERRUPTION, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR PERSONAL OR
PROPERTY DAMAGE ARISING OUT OF OR IN CONNECTION WITH COMPANY’S PERFORMANCE HEREUNDER OR
THE USE, MISUSE, OR INABILITY TO USE THE SOFTWARE, DATA COLLECTION DEVICES,
DOCUMENTATION, SERVICES OR OTHER PRODUCTS OR SERVICES HEREUNDER, REGARDLESS OF THE CAUSE
OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, EVEN IF
COMPANY HAS BEEN NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGES.
Amount of Damages. THE CUMULATIVE LIABILITY OF COMPANY ARISING OUT OF OR IN ANY WAY
CONNECTED TO THIS AGREEMENT SHALL NOT EXCEED FIFTY U.S. DOLLARS ($50). IN NO EVENT SHALL
COMPANY’S SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS
AGREEMENT. SOME STATES AND JURISDICTIONS DO NOT ALLOW FOR THE EXCLUSION OR LIMITATION OF
INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION AND EXCLUSION MAY NOT APPLY TO
SUBSCRIBER IN ITS ENTIRETY. THIS LIMITATION OF LIABILITY SHALL BE ENFORCED TO THE
MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW.
Basis of the Bargain. The parties agree that the limitations of liability set forth
in this section shall survive and continue in full force and effect despite any failure
of consideration or of an exclusive remedy. The parties acknowledge that the prices have
been set and the Agreement entered into in reliance upon these limitations of liability
and that all such limitations form an essential basis of the bargain between the
Confidential Information. The Software, Services, Data Collection Devices and
Documentation are the Confidential Information of Company. Subscriber agrees that it
will not use or disclose to any third party any Confidential Information of the Company,
except as expressly permitted under this Agreement. Subscriber will limit access to the
Confidential Information to Authorized Users who have confidentiality obligations no
less restrictive than those set forth herein, and who have been informed of the
confidential nature of such information. In addition, Subscriber will protect the
Company’s Confidential Information from unauthorized use, access, or disclosure in the
same manner that it protects its own proprietary information of a similar nature, but in
no event with less than reasonable care. At Company’s request or upon termination of
this Agreement, Subscriber will return to Company or destroy (or permanently erase in
the case of electronic files) all copies of the Confidential Information that Subscriber
has in its possession at the time of such request or as of the effective date of
termination, and, if requested by Company, Subscriber shall provide to Company a written
affidavit certifying compliance with this sentence.
By Subscriber.Subscriber will defend, indemnify, and hold harmless Company, and its
officers, directors, employees, agents, and customers (each, a “Company Indemnitee”)
from and against any claim, suit, demand, or other legal action (each, a “Claim”)
brought by a third party against any Company Indemnitee(s), to the extent such Claim
arises from or relates to any breach of this Agreement by Subscriber, and Subscriber
shall pay all liabilities, costs, damages, and expenses (including, without limitation,
attorneys’ fees) suffered or incurred by Company Indemnitees in connection with such
TERM AND TERMINATION
Term. This Agreement commences on the Effective Date and remains in effect on a
month-to-month basis unless terminated as set forth below.
Termination. Either party may terminate this Agreement for convenience, for any or
no reason, upon written notice to the other party, with such termination becoming
effective at 11:59PM Eastern Time of the last day of the then-current month. Either
party may terminate this Agreement immediately upon notice to the other party if the
other party materially breaches this Agreement, and such breach remains uncured more
than thirty (30) days after receipt of written notice of such breach.
Effect of Termination. Upon termination or expiration of this Agreement for any
reason: (a) all rights and obligations of both parties, including all licenses granted
hereunder, shall immediately terminate; (b) within ten (10) days after the effective
date of termination, Subscriber shall comply with the obligations to return all
Confidential Information of Company, as set forth in the section titled Confidentiality;
(c) within ten (10) days after the effective date of termination, Company shall
discontinue all use of Subscriber Content and, (d) within ten (10) days after the
effective date of termination, Subscriber shall allow Company reasonable access to
Subscriber’s premises so that Company may take possession of the Data Control Devices,
or, if requested by Company, Subscriber shall return the Data Collection Devices to
Company. Any payment obligation of Subscriber, and the sections and subsections titled
Definitions, Limitations, No Warranty;Disclaimers, Limitation of Liability,
Confidentiality, Indemnification, Effect of Termination, and Miscellaneous will survive
expiration or termination of this Agreement for any reason.
Governing Law and Venue. This Agreement and any action related thereto will be
governed and interpreted by and under the laws of the State of California , without
giving effect to any conflicts of laws principles that require the application of the
law of a different jurisdiction. Subscriber hereby expressly consents to the personal
jurisdiction and venue in the state and federal courts for the county in which Company’s
principal place of business is located for any lawsuit filed there against Subscriber by
Company arising from or related to this Agreement. The United Nations Convention on
Contracts for the International Sale of Goods does not apply to this Agreement. The laws
of the jurisdiction where Subscriber is located may be different from California law.
Subscriber shall always comply with all international and domestic laws, ordinances,
regulations, and statutes that are applicable to its purchase and use of the Software,
Data Collection Devices, Documentation, or Services hereunder.
Export. Subscriber agrees not to export, reexport, or transfer, directly or
indirectly, any U.S. technical data acquired from Company, or any products utilizing
such data, in violation of the United States export laws or regulations.
Severability. If any provision of this Agreement is, for any reason, held to be
invalid or unenforceable, the other provisions of this Agreement will remain enforceable
and the invalid or unenforceable provision will be deemed modified so that it is valid
and enforceable to the maximum extent permitted by law. Without limiting the generality
of the foregoing, Subscriber agrees that the section titled Limitation of Liability will
remain in effect notwithstanding the unenforceability of any provision in the subsection
titled Limited Warranty.
Waiver. Any waiver or failure to enforce any provision of this Agreement on one
occasion will not be deemed a waiver of any other provision or of such provision on any
Remedies. Company’s rights and remedies under this Agreement are cumulative.
Subscriber acknowledges that the Services, Data Collection Devices, Software, and
Documentation contain valuable trade secrets and proprietary information of Company,
that any actual or threatened breach of the sections titled Intellectual Property or
Confidentiality or any other breach by Subscriber of its obligations with respect to
Intellectual Property Rights of Company will constitute immediate, irreparable harm to
Company for which monetary damages would be an inadequate remedy. In such case, Company
will be entitled to immediate injunctive relief without the requirement of posting bond,
including an order that any Software, Data Collection Devices, Documentation, or any
portions thereof, that Subscriber attempts to import into any country or territory be
seized, impounded and destroyed by customs officials. If any legal action is brought to
enforce this Agreement, the prevailing party will be entitled to receive its attorneys’
fees, court costs, and other collection expenses, in addition to any other relief it may
No Assignment. Subscriber shall not assign, subcontract, delegate, or otherwise
transfer this Agreement, or its rights and obligations herein, without obtaining the
prior written consent of Company, and any attempted assignment, subcontract, delegation,
or transfer in violation of the foregoing will be null and void. Company may freely
assign this Agreement or delegate its obligations hereunder, in whole or in part, to any
third party provided that such third party agrees to be bound by the terms hereof. The
terms of this Agreement shall be binding upon the parties and their respective
successors and permitted assigns.
Force Majeure. Any delay in the performance of any duties or obligations of either
party (except the payment of money owed) will not be considered a breach of this
Agreement if such delay is caused by a labor dispute, shortage of materials, fire,
earthquake, flood, or any other event beyond the control of such party, provided that
such party uses reasonable efforts, under the circumstances, to notify the other party
of the cause of such delay and to resume performance as soon as possible.
Independent Contractors. Subscriber’s relationship to Company is that of an
independent contractor, and neither party is an agent, employee, or partner of the
other. Subscriber will not have, and will not represent to any third party that it has,
any authority to act on behalf of Company.
Notices. Each party must deliver all notices or other communications required or
permitted under this Agreement in writing to the other party at the address listed on
the first page of the Agreement by courier, by certified or registered mail (postage
prepaid and return receipt requested), or by a nationally-recognized express mail
service. Notice will be effective upon receipt or refusal of delivery. If delivered by
certified or registered mail, any such notice will be considered to have been given five
(5) business days after it was mailed, as evidenced by the postmark. If delivered by
courier or express mail service, any such notice shall be considered to have been given
on the delivery date reflected by the courier or express mail service receipt. Each
party may change its address for receipt of notice by giving notice of such change to
the other party.
Counterparts. This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original and all of which shall be taken together and deemed to
be one instrument.
Entire Agreement. This Agreement is the final, complete and exclusive agreement of
the parties with respect to the subject matters hereof and supersedes and merges all
prior discussions between the parties with respect to such subject matters. No
modification of or amendment to this Agreement, or any waiver of any rights under this
Agreement, will be effective unless in writing and signed by an authorized signatory of
Subscriber and the Company. Without limiting the generality of the foregoing, if
Subscriber has previously submitted a purchase order to Company regarding the Services,
then Subscriber expressly agrees that any terms and conditions in such purchase order,
that are additional to or different from the terms and conditions of this Agreement, are
superseded by the terms and conditions of this Agreement, are expressly excluded from
this Agreement, and shall not, in any manner whatsoever, apply to this Agreement,
notwithstanding any language in such purchase order that would purport to supersede any
terms and conditions of this Agreement.
If you have additional questions, please contact us any time:
110 Wall St
New York, NY 10005
© 2021 MD.ai, Inc.