NONAGON CUSTOMER TERMS AND CONDITIONS

(DIRECT CONSUMERS)

 

Last Updated: 24 October 2022

 

These Customer Terms and Conditions (the "Agreement") apply to and govern your ("you", "your", and “User”) purchase and use of (1) the "Nonagon Product", which includes Nonagon's proprietary Device, Platform, Documentation, and Consumables/Parts, all as more specifically described and defined in Exhibit A; and (2) "Telehealth Services" provided by third party clinicians, as more specifically described in Exhibit B.  (The Nonagon Product and Telehealth Services are collectively referred to herein as the "Nonagon Solution".)

 

You must read this Agreement carefully, and by clicking “I Accept” and/or accessing or using the Nonagon Solution, you confirm that you have read, understood, and agree to be bound by the following (the date of such occurrence, the "Effective Date"): 

(A) these terms and conditions in their entirety; and

(B) any supplemental terms or policies in this Agreement which are stated to be incorporated into this Agreement (such as our Privacy Policy and EULA).

 

IF YOU DO NOT AGREE WITH ANY OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MAY NOT PLACE AN ORDER, OR OTHERWISE ACCESS OR USE THE NONAGON SOLUTION.

 

This Agreement is a binding agreement between you and NONAGON CARE, INC., a Delaware corporation located at 716 Beacon St. Newton, MA 02459 (“Nonagon”, "we", "us", and "our"). However, at Nonagon's sole discretion, any Nonagon obligation may be performed (in whole or in part), and any Nonagon right or remedy may be exercised (in whole or in part), by a Nonagon Affiliate (defined below), and Nonagon may subcontract its performance hereunder to Nonagon Affiliates.

 

Nonagon reserves the right to modify this Agreement at any time by posting the modified Agreement at https://shop.nonagon-care.com/pages/terms-and-conditions.  Such modifications will be effective upon posting (unless we specify a later effective date). In such cases, we will also update the “Last Updated” reference set forth at the beginning of this Agreement. 

 

  1. DEFINITIONS AND INTERPRETATION

 

This Agreement contains a range of capitalized terms, some of which are defined in this Section and some of which are defined elsewhere. The Section headings in this Agreement are for convenience of reading only and may not to be used or relied upon for interpretive purposes.

 

"Content" means any text, data, information, images, graphics, sounds, videos, audio clips, links, and/or similar materials and content. 

 

“Dispute” means any claim, dispute or controversy under, or otherwise in connection with, this Agreement.

 

"Intellectual Property Rights" means any and all rights, titles, and interests (under any jurisdiction or treaty, whether protectable or not, whether registered or unregistered, and whether vested, contingent, or future) in and to inventions, discoveries, works of authorship, designs, software, technical information, databases, know-how, mask works, methods, technology, and other intellectual property (collectively, "Intellectual Property"), and includes but is not limited to patents, copyrights and similar authorship rights, moral (and similar personal) rights, mask work rights, data and database rights, trade secret rights and similar rights in confidential information and other non-public information, design rights, trademark, service mark, trade name, trade dress and similar branding rights, as well as: (i) all applications, registrations, renewals, reexaminations, extensions, continuations, continuations-in-part, provisionals, substitutions, divisions or reissues of or for the foregoing; and (ii) all goodwill associated with the foregoing. 

 

"Law" means any applicable federal, state, foreign, regional or local statute, regulation, ordinance, or rule, in any applicable jurisdiction.

 

“Medical Professional” means any medical professional (either the specific clinician  selected by you, or a third party clinician affiliated through the Telehealth Network) who has access to the Nonagon Product Data either through the Platform or through a webpage accessed by your clinician via a time-limited access link sent by you through the Nonagon Product.

 

"Nonagon Affiliate" means, with respect to Nonagon, any organization or entity controlling, controlled by, or under common control with, Nonagon, where "control" means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such person, organization or entity, whether through the ownership of voting securities, by contract, or otherwise.

 

"Privacy Policy" means Nonagon's then-current privacy policy available at https://nonagon-care.com/privacy-policy/, as may be modified from time to time by Nonagon.

 

"Site" means the website https://nonagon-care.com, together with its subdomains.

 

“Telehealth Network” means a third party network of Medical Professionals available to assist a User of the Telehealth Services. 

 

  1. ORDERS

 

You may place an order for the Nonagon Solution (an "Order") via the functionality offered on the Site. 

 

Your Order is hereby incorporated into, and made a part of, this Agreement by reference.

 

Your Order is only an offer, and is subject to our acceptance of it ("Acceptance"). Acceptance only occurs at such time that both of the following have occurred:

(a) we have provided you with an Order confirmation number; and

(b) we have received full payment (as confirmed by us or our payment service provider) of the purchase price of your Order through settlement of funds via your provided credit card or other payment method.

 

We may, without liability, reject your Order at any time and for any reason prior to Acceptance (for example, if we are unable to process or fulfill the Order due to unavailability of the Nonagon Solution), and in such cases we will cancel your payment, or, if your payment has already been received we will issue you a refund or credit for the paid amount. FOLLOWING ACCEPTANCE, AN ORDER IS FINAL, NON-CANCELABLE AND NON-REFUNDABLE.

 

Prior to Acceptance, an automatic e-mail acknowledgement of your Order may be generated (but such acknowledgement does not constitute Acceptance or confirmation of your Order).

 

Notwithstanding the above, if you and Nonagon (or a Nonagon Affiliate) execute an Order Form, Sales Order, or similar ordering document for the purchase of the Nonagon Solution (an "Order Form"), such Order Form shall be treated as an Order for the purposes of this Agreement. Such an Order Form will not be subject to any Acceptance, and will deemed effective upon execution.

 

  1. PRICING AND PAYMENT

 

    1. Pricing. The fees and other charges you pay for the Nonagon Solution (collectively, the "Fees") is the price(s) displayed on the Site checkout page when you place your Order (or, in the case of an Order Form, the price(s) specified in the Order Form), and no other prices are applicable. Notwithstanding the preceding sentence, while we try and ensure that all prices on the Site are accurate, errors may occur (including, but not limited to, mispricing in our catalog). If we discover an error in the price of the Nonagon Solution for which you have placed an Order, we will inform you of this as soon as possible and give you the option of reconfirming your Order at the correct price or cancelling it. If we are unable to contact you, we will treat the Order as cancelled. If we cancel the Order in such cases, and you have already paid for the Nonagon Solution (or portion thereof), you will receive a refund or credit in the amount of the price you paid. Except as expressly stated otherwise in this Agreement, Fees are non-refundable, non-cancellable, and without right of setoff. Nonagon shall be entitled to issue invoices (and any associated reporting) and billing notices via email to you and/or via a functionality of the Nonagon Solution.

 

    1. Currency. The base currency currently used on the Site is U.S. Dollars. Pricing may be offered in other currencies, and in such cases the pricing is calculated according to the rate of exchange between the base currency and the currency that you select when placing your Order. We reserve the right to update such exchange rates regularly, in our sole discretion, and you acknowledge that such updates may affect Nonagon Solution pricing. You will be charged according to the applicable exchange rate at the time you place your Order.

 

    1. Payment Method. You may pay by debit card, credit card, Health Savings Account (HAS), Flexible Spending Account (FSA) or another alternative payment method offered as part of the checkout process. The availability of a certain payment method may depend on your geographical location. (If we change or supplement existing payment method options, this will not affect any existing Order.) Nonagon will charge you through the payment method you have selected for your Order, and you authorize Nonagon to do so immediately following placement of your Order. Accordingly, you must provide valid and current billing information for yourself. If applicable to the payment method: (a) payment of Fees may be processed through a third-party payment processing service (which will receive and process your billing information), and additional terms may apply to such payments; and (b) in processing payment, we may use tools, software and services of payment processors to process transactions, and if your payment is not received by us for any reason from your payment method provider/issuer, you agree to promptly pay all amounts due upon request and use the method that we reasonably prescribe. You hereby represent and warrant that you are the person in whose name the payment method was issued or registered, and you are authorized to place the Order with such payment method and disclose all related billing information. You hereby irrevocably authorize Nonagon (and/or its designee) to: (i) request and collect payment (and to otherwise take other billing actions, such as refunds) from you (and if applicable, on a recurring basis); and (ii) make any inquiries Nonagon deems necessary, from time to time, to validate your designated payment method or financial information, in order to ensure timely payment of Fees (including, but not limited to, for the purpose of receiving updated payment details from your payment, credit card, or banking account provider – such as, updated expiry date or card number).

 

    1. Verification. When deciding whether to accept your Order we may use certain information about you, including information provided to us by our third party identity verification and fraud alert partners. For example, we may pass on your details for them to check against certain public and private databases and to provide an assessment to us. This will help to protect you and us from fraudulent activities.

 

    1. Taxes. Except for taxes based on Nonagon's net income, you are responsible for any and all taxes, duties, and other governmental charges relating to your Order, which may include, but will not be limited to, sales, use, or consumption taxes (collectively, "Taxes"). All Taxes, if applicable, will be calculated and included in the final price when you place the Order.

 

  1. DEVICE SHIPPING AND DELIVERY

 

    1. Delivery. Delivery charges and timeframes vary. In all cases, however, delivery timeframes are just estimates (and should not be relied upon as guaranteed delivery times). Devices will be deemed accepted by you upon delivery. All Devices will be packed for shipment and shipped in accordance with our standard practices. We shall not be liable for any damages or penalties for delivery delay or for failure to give notice of delay. 

 

    1. Returns and Refunds. Your rights in regard to returns and refunds are set out in our Returns and Refunds Policy, available at [insert URL].

 

  1. ADDITIONAL TERMS AND CONDITIONS

 

    1. Mobile App Terms. Your use of and access to the Product's mobile application shall be subject to the terms of the Nonagon Terms of Use , accessible here [insert link to App TOU], which is hereby incorporated into, and made a part of, this Agreement by reference.

 

    1. Data Access Terms and Conditions Terms. If You choose to share Your medical or health information and data collected by the Nonagon Product with Your clinician, Your clinician's web access to and use of such information and data shall be subject to the Nonagon Remote Patient Examination Data Access Terms and Conditions, accessible here [insert link to Platform Terms and Conditions].

 

    1. Telehealth Services Terms.  The provision, and your use of, Telehealth Services shall be subject to the Telehealth Services terms and conditions, if any,  of the applicable Medical Professional. 

 

  1. NONAGON PRODUCT DATA 

 

As between you and Nonagon, you are, and shall be, the sole and exclusive owner of all Nonagon Product Data. "Nonagon Product Data" means all data collected through your and your Medical Professional's use of and access to the Nonagon Product, comprising your and your clinician's demographic data and your individual medical or health information, including, without limitation, texts, audio, videos, images, and graphs.

  1. You hereby authorize Nonagon to use Nonagon Product Data as necessary for Nonagon to perform its responsibilities under this Agreement, and exercise its rights in accordance with Section ‎8 (Intellectual Property). Nonagon will maintain Nonagon Product Data for such period of time as is necessary to provide the Nonagon Solution to you, as provided hereunder, in accordance with Nonagon's then current privacy policy and in accordance with applicable Law.
  2. You represent and warrant that you consent to and possess all approvals and authorizations required under applicable Law (i) for your use of the Nonagon Solution; and (ii) to provide, make available, and otherwise expose Nonagon Product Data to Nonagon, its Affiliates and service providers, including, without limitation, Medical Professionals; 
  3. The Nonagon Solution is not intended to, and will not, operate as a data storage or archiving product or service, and you agree not to rely on the Nonagon Solution for the storage of any Nonagon Product Data. You and your Medical Professional are solely responsible and liable for the maintenance and backup of all Nonagon Product Data.

 

  1. HIPAA COMPLIANCE

 

The parties shall comply with all applicable state and federal regulations concerning the confidentiality of patient medical records, including, without limitation, the Health Insurance Portability and Accountability Act (HIPAA), and the requirements of any regulation thereunder. The parties agree to execute additional mutually agreed upon documents as required under HIPAA rules and regulations to assure the safeguarding of protected health information.  

 

  1. INTELLECTUAL PROPERTY

 

Nonagon (and/or its licensors and suppliers, as applicable) is, and shall be, the sole and exclusive owner of all right, title and interest (including without limitation all Intellectual Property Rights) in and to: (a) the Nonagon Solution, including the platform, the Device, the Documentation (and all related intellectual property); (b) Nonagon's Confidential Information; (c) any non-User-identifying, non-User patient-identifying, and non-User clinician-identifying information, data (including but not limited to clinical and demographic data), reporting, suggestions, analyses, and/or intelligence relating to the operation, support, and/or use, of the Platform and/or Devices (such as metadata, aggregated data, analytics, security findings or discoveries, etc.) ("Usage Statistics"); and (d) any improvements, derivative works, enhancements, and/or modifications of/to any of the foregoing (including, but not limited to, any algorithms, analysis methods, and other techniques developed within the scope of this Agreement), regardless of inventorship or authorship. You shall procure the assignment (and hereby irrevocably assign) to Nonagon (and/or its designee(s)) the ownership rights set forth in this Section (Intellectual Property), and undertake to do all things reasonably requested by Nonagon (including without limitation executing, filing, and delivering instruments of assignment and recordation), at Nonagon's expense, to perfect such ownership rights. For the avoidance of doubt, it is acknowledged and agreed that Nonagon (alone and/or together with its Affiliates and service providers) may de-identify data collected through the Nonagon Solution pursuant to the HIPAA Privacy Rule, 45 CFR § 164.514, for the purpose of generating Usage Statistics, as well as for the purpose of enhancing the Nonagon Solution, and nothing in this Agreement shall be deemed to prohibit or otherwise limit such activities. 

 

 

  1. CONFIDENTIALITY

 

Each Party and/or its Affiliates (the "Recipient") may have access to certain non-public or proprietary information and materials of the other Party and/or its Affiliates (the "Discloser"), regardless of form ("Confidential Information"). Confidential Information includes, without limitation: (a) any information related to Discloser’s business, such as cost data, pricing methodologies, price lists, business plans, marketing plans, financial and accounting information, sales volumes, discounts, budgets, and customer and supplier lists; and (b) technical data, computer programs and software code (including without limitation firmware and source code), ideas, inventions, algorithms, know-how, analyses, lab notebooks, specifications, processes, techniques, formulas, engineering designs and drawings, architectures, circuit schematics and layouts, models, samples, hardware configuration information, and other technology and intellectual property. Confidential Information shall not include information which: (i) at the time of disclosure by Discloser to Recipient hereunder, is in the public domain; (ii) after disclosure by Discloser to Recipient hereunder, becomes part of the public domain through no fault of the Recipient; (iii) was rightfully in the Recipient's possession at the time of disclosure by the Discloser hereunder, and which is not subject to prior continuing obligations of confidentiality; (iv) is rightfully disclosed to the Recipient by a third party having the lawful right to do so; or (v) independently developed by the Recipient without use of, or reliance upon, Confidential Information received from the Discloser. The Recipient shall not disclose or make available the Discloser's Confidential Information to any third party (including without limitation by way of publishing), except to its (and its Affiliates') employees, advisers, agents and investors, subject to substantially similar written confidentiality undertakings. Recipient shall use commercially reasonable measures, at a level at least as protective as those taken to protect its own Confidential Information of like nature (but in no event less than a reasonable level), to protect the Discloser's Confidential Information within its possession or control, from disclosure to a third party. The Recipient shall use the Discloser's Confidential Information solely for the purposes of performing under this Agreement. In the event that Recipient is required to disclose Confidential Information of the Discloser pursuant to any law, regulation, or governmental or judicial order, the Recipient will (a) promptly notify Discloser in writing of such law, regulation or order, (b) reasonably cooperate with Discloser in opposing such disclosure, and (c) only disclose to the extent required by such law, regulation or order (as the case may be). Upon expiration or termination of this Agreement, or otherwise upon reasonable written request by the Discloser, the Recipient shall, as directed, promptly return to Discloser and/or destroy or permanently erase all Confidential Information of the Discloser that is within Recipient's possession or control, and, if requested, certify such destruction and deletion in writing.

 

  1. LIMITED WARRANTY; DISCLAIMER

 

    1. Limited Warranty. Nonagon Devices (defined in Exhibit A) come with the limited product warranty accompanying the Device, as may be updated by Nonagon from time to time (the "Limited Warranty"). You acknowledge and agree that you have received a copy of the Limited Warranty and have had an opportunity to read its terms (which are available here [add link to warranty]); and (b) if you wish to make a warranty claim, you will promptly notify Nonagon via email (at of the details of the claim, including your name, contact information, related Device ID number and the nature of the claim. If requested by Nonagon in writing (including via email), you will have the Device delivered to Nonagon's facilities for processing in accordance with the terms of the Limited Warranty. 

 

    1. DISCLAIMER. EXCEPT AS EXPRESSLY STATED IN THE LIMITED WARRANTY, THE NONAGON SOLUTION AND ALL OTHER GOODS AND SERVICES ARE PROVIDED AND MADE AVAILABLE HEREUNDER ON AN "AS IS" AND "AS AVAILABLE" BASIS, AND ALL EXPRESS, IMPLIED AND STATUTORY CONDITIONS AND WARRANTIES (INCLUDING WITHOUT LIMITATION ANY IMPLIED CONDITIONS OR WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET POSSESSION, OR NON-INFRINGEMENT, OR THAT OTHERWISE ARISE FROM A COURSE OF PERFORMANCE OR USAGE OF TRADE) ARE HEREBY DISCLAIMED. NONAGON DOES NOT MAKE ANY REPRESENTATION, WARRANTY, GUARANTEE OR CONDITION REGARDING THE EFFECTIVENESS, USEFULNESS, RELIABILITY, TIMELINESS, COMPLETENESS, OR QUALITY OF THE FOREGOING, OR AS REGARDS COMPLIANCE WITH ANY LAWS, REGULATIONS, OR INDUSTRY STANDARDS. NONAGON WILL HAVE NO OBLIGATION OR LIABILITY FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR FOR ISSUES RELATED TO PUBLIC NETWORKS OR HOSTING PROVIDERS.

 

WITHOUT DEROGATING FROM THE GENERALITY OF THE FOREGOING, YOU ACKNOWLEDGE AND AGREE: 

(A) THE NONAGON PRODUCT IS NOT INTENDED AS A DIAGNOSIS OR TREATMENT OF ANY MEDICAL CONDITION, AND IS NOT A SUBSTITUTE FOR, OR BE USED IN PLACE OF, THE INDEPENDENT JUDGMENT OF A LICENSED MEDICAL PROFESSIONAL, WHETHER OR NOT PROVIDED AS PART OF TELEHEALTH SERVICES.  

 

(B) THE NONAGON PRODUCT IS DESIGNED ONLY TO SUPPORT, AND NOT REPLACE, THE RELATIONSHIP THAT EXISTS BETWEEN A PATIENT AND YOUR MEDICAL PROFESSIONAL. NONAGON PRODUCT DATA TRANSMITTED OR RECEIVED THROUGH THE PLATFORM IS NOT EXHAUSTIVE OR COMPLETE, AND DOES NOT COVER ALL TREATMENTS, MEDICAL CONDITIONS, DISEASES, AILMENTS, PHYSICAL OR MENTAL CONDITIONS.  

 

(C) NONAGON IS NOT RESPONSIBLE FOR, AND SHALL HAVE NO LIABILITY HEREUNDER (EXCEPT IN THE CASE OF NONAGON'S WILLFUL MISCONDUCT OR FRAUD) IN RESPECT OF THE NONAGON PRODUCT DATA TRANSMITTED OR RECEIVED THROUGH THE NONAGON PRODUCT OR THE INTERPRETATION OF NONAGON PRODUCT DATA BY YOU OR YOUR MEDICAL PROFESSIONAL. 

 

(B) ANY USE OF, OR RELIANCE UPON, THE NONAGON SOLUTION IS AT YOUR SOLE RISK, AND NONAGON SHALL HAVE NO RESPONSIBILITY OR LIABILITY FOR ANY DEATH, PERSONAL INJURY, HEALTH PROBLEM, OR SIMILAR CIRCUMSTANCE CAUSED BY SUCH USE OR RELIANCE.

 

The above disclaimers apply to the maximum extent permitted by applicable Law. You may have legal rights in your jurisdiction which would prohibit the above disclaimers from (fully or partially) applying to you (for example, some jurisdictions' Laws do not allow the disclaimer of certain implied warranties or conditions, and do not allow limitations to be imposed on statutory rights), and, to the extent the above disclaimers are prohibited, then you and Nonagon agree that they will not apply to you.

 

  1. LIMITATION OF LIABILITY

 

EXCEPT IN THE CASE OF WILLFUL MISCONDUCT AND FRAUD:

 

  1. IN NO EVENT WILL NONAGON OR ANY OF ITS RESPECTIVE AFFILIATES, BE LIABLE UNDER, OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT, FOR: (A) ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES; (B) ANY LOSS OF PROFITS, LOSS OF BUSINESS, LOSS OF REVENUE, OR LOSS OF ANTICIPATED SAVINGS; (C) ANY LOSS OF, OR DAMAGE TO, DATA, REPUTATION, OR GOODWILL; AND/OR (D) THE COST OF PROCURING ANY SUBSTITUTE GOODS OR SERVICES. 

 

  1. THE COMBINED AGGREGATE LIABILITY OF NONAGON OR ANY OF ITS RESPECTIVE AFFILIATES UNDER, OR OTHERWISE IN CONNECTION WITH, THIS AGREEMENT SHALL NOT EXCEED THE AMOUNTS PAID AND PAYABLE BY YOU TO NONAGON UNDER THIS AGREEMENT IN THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE GIVING RISE TO LIABILITY. 

 

THE FOREGOING EXCLUSIONS AND LIMITATION SHALL APPLY: (w) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW (x) EVEN IF NONAGON OR ONE OF ITS AFFILIATES HAS BEEN ADVISED, OR SHOULD HAVE BEEN AWARE, OF THE POSSIBILITY OF LOSSES, DAMAGES, OR COSTS; (y) EVEN IF ANY REMEDY IN THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE; AND (z) REGARDLESS OF THE THEORY OR BASIS OF LIABILITY, AND WHETHER IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION FOR NEGLIGENCE OR BREACH OF STATUTORY DUTY), STRICT LIABILITY, MISREPRESENTATION, RESTITUTION, OR OTHERWISE. 

 

  1. INDEMNIFICATION

 

If any third party (including, but not limited to, a regulatory or governmental authority) makes or institutes any demand, claim, suit, action or proceeding against Nonagon, a Nonagon Affiliate, and/or any of our or their respective directors, officers, employees, or representatives (each, an "Indemnitee"), and it is based upon or arises from (i) your and your Medical Professional's use of and/or access to the Nonagon Product; (ii) any breach by you under this Agreement; and/or (iii) the transmission or receipt of Nonagon Product Data by you or your Medical Professionals (in each case, an "Indemnity Claim"), then, upon written request by Nonagon (to be decided in our sole discretion), you agree to assume full control of the defense and settlement of the Indemnity Claim; provided, however, that (a) Nonagon reserves the right, at any time thereafter, to take over full or partial control of the defense and/or settlement of the Indemnity Claim, and in such cases you agree to reasonably cooperate with Nonagon's defense counsel and activities at your own cost and expense; and (b) you shall not settle any Indemnity Claim, or admit to any liability thereunder, without the express prior written consent of the Indemnitee(s). 

 

In addition, and regardless of whether (or the extent to which) you controlled or participated in the defense and/or settlement of an Indemnity Claim, you agree to indemnify and hold harmless the Indemnitee(s) for and against: (A) any costs and expenses (including attorneys' fees) incurred by the Indemnitee(s) in the defense of the Indemnity Claim; and (b) any amounts awarded against, or imposed upon, the Indemnitee(s) under such Indemnity Claim, or otherwise paid in settlement of the Indemnity Claim (including, but not limited to, any fines or penalties).

 

 

 

  1. TERM AND TERMINATION 

 

    1. Term. This Agreement commences on the Effective Date and will continue in full force and effect, unless this Agreement is earlier terminated in accordance with this Agreement (the “Term.”).  

 

    1. Termination for Cause. Either party may terminate this Agreement upon written notice to the other party if the other party materially breaches this Agreement and does not cure such breach within thirty (30) days after receiving written notice of such breach. Either party may terminate this Agreement, without notice, (i) upon the institution by or against the other party of insolvency, receivership or bankruptcy proceedings, (ii) upon the other party's making an assignment for the benefit of creditors, or (iii) upon the other party's dissolution or ceasing to do business.

 

    1. Consequences of Termination. Upon the expiration or any termination of this Agreement, (a) all rights and duties of the parties under this Agreement will terminate except to the extent otherwise expressly provided in this Agreement, (b) Nonagon shall continue to provide limited warranty support, if applicable, for Devices in accordance with Section ‎‎10 (Limited Warranty; Disclaimer); and (c) each party will, at the request of the other party, return to the other party any Confidential Information of the other party or certify that such Confidential Information has been destroyed. Termination or expiration of this Agreement shall not affect any rights or obligations of the parties, with respect to the payment of amounts due, which have accrued up to the date of such termination or expiration.   

 

    1. Survival. Any provision in this Agreement that is stated (or by its nature ought) to survive expiration or termination, shall survive, as will Sections ‎6 (Nonagon Solution Data) through ‎‎15 (Miscellaneous) inclusive.

  

  1. GOVERNING LAW AND JURISDICTION

 

This Agreement shall be governed by, and construed in accordance with, the laws of the State of New York, without regard to any conflicts of laws rules. Any claim or dispute under, or otherwise in connection with, this Agreement shall be subject to the exclusive jurisdiction and venue of the courts located in New York County, New York, USA; except however that each party may seek equitable in any court of competent jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement and is hereby disclaimed. EXCEPT TO PROTECT OR ENFORCE A PARTY'S INTELLECTUAL PROPERTY RIGHTS OR CONFIDENTIALITY OBLIGATIONS, OR TO OTHERWISE SEEK EQUITABLE RELIEF, NO ACTION, REGARDLESS OF FORM, UNDER THIS AGREEMENT MAY BE BROUGHT BY EITHER PARTY MORE THAN ONE (1) YEAR AFTER THE DATE THE CORRESPONDING LIABILITY AROSE. Any claims or damages that you may have against Nonagon shall only be enforceable against Nonagon, and not any other entity or Nonagon's officers, directors, representatives, employees, or agents.

 

  1. MISCELLANEOUS

 

    1. Entire Agreement. This Agreement (together with its Schedules) represents the entire agreement between you and Nonagon with respect to the subject matter hereof, and supersedes and replaces any and all prior and contemporaneous oral and/or written agreements, understandings and statements between you and Nonagon with respect to such subject matter. You acknowledge and agree that in entering into this Agreement you have not relied on any statement or representation (whether negligently or innocently made) not expressly set out in this Agreement, such as statements and explanations in any FAQs, summaries or explanatory guides regarding this Agreement, or other marketing material on the Site. 

 

    1. Language; Electronic Contract and Communications. The language of this Agreement is expressly agreed to be the English language. You hereby irrevocably waive, to the maximum extent legally permitted, any Law applicable to you requiring that the Agreement be localized to meet your language (as well as any other localization requirements), or requiring an original (non-electronic) signature or delivery or retention of non-electronic records. We may be able (but are not obligated) to provide you with copies of this Agreement on written request; however, please be sure to print a copy of this Agreement for your own records. When you visit or submit information on the Website or send an email to us, you are communicating with us electronically. You consent to receive communications from us electronically. Although we may choose to provide you notice under this Agreement by postal mail, we may also choose to provide notice by email (in which case the notice will be deemed given on the day after sending) and/or by posting notices on the Site and/or Nonagon Product (in which case the notice will be deemed given when you access the Site or Nonagon Product). In addition, you acknowledge and agree that when you click on any “SUBMIT”, “I AGREE”, “I ACCEPT”, or similar button, you are submitting a legally binding electronic signature. Pursuant to any applicable Laws, including without limitation the United States Electronic Signatures in Global and National Commerce Act, P.L. 106-229 (the "E-Sign Act") or other similar statutes, YOU HEREBY AGREE TO THE USE OF ELECTRONIC SIGNATURES, CONTRACTS, ORDERS AND OTHER RECORDS AND TO ELECTRONIC DELIVERY OF NOTICES, POLICIES AND RECORDS OF TRANSACTIONS INITIATED OR COMPLETED THROUGH THE SITE OR NONAGON PRODUCT.

 

    1. Assignment. Nonagon may assign this Agreement (or any of its rights and/or obligations hereunder) without your consent, and without notice or obligation to you. This Agreement is personal to you, and, except as permitted by this Agreement, you may not assign (or in any other way transfer) this Agreement (or any of its obligations or rights hereunder) without Nonagon's express prior written consent. Any prohibited assignment shall be null and void.

 

    1. Feedback. If you send us any suggestions, feedback, or similar ideas for or about the Nonagon Solution (collectively, "Feedback"), you agree that: (a) Nonagon exclusively owns all right, title, and interest (including without limitation all Intellectual Property Rights) in and to the Feedback, and you are not owed any compensation in exchange; (b) the Feedback does not contain confidential or proprietary information belonging to you or any third-party; (c) Nonagon may (itself and/or via third parties), in perpetuity, use, copy, distribute, sell, create derivative works of, and otherwise commercially exploit the Feedback for any purpose and in any way, and without any restriction or obligations of any kind whatsoever; (b) there is no obligation for us to review your Feedback; and (d) Nonagon has no obligation to keep the Feedback confidential.

 

    1. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be illegal, invalid or unenforceable, then: (a) the remaining provisions of this Agreement shall remain in full force and effect; and (b) the Parties hereto agree that the court making such determination shall have the power to limit the provision, to delete specific words or phrases, or to replace the provision with a provision that is legal, valid and enforceable and that most closely approximates the original legal intent and economic impact of such provision, and this Agreement shall be enforceable as so modified in respect of such jurisdiction. In the event such court does not exercise the power granted to it as aforesaid, then such provision will be ineffective solely as to such jurisdiction, and will be substituted (in respect of such jurisdiction) with a valid, legal and enforceable provision that most closely approximates the original legal intent and economic impact of such provision.

 

    1. Remedies. Except as may be expressly stated otherwise in this Agreement, no right or remedy conferred upon or reserved by any party under this Agreement is intended to be, or shall be deemed, exclusive of any other right or remedy under this Agreement, at law or in equity, but shall be cumulative of such other rights and remedies.

 

    1. Privacy. We may collect certain data and information about you in connection with your Order, as well as your access and use of the Nonagon Solution, as well as your interaction with Medical Professionals. We will use, store and otherwise process such data and information in accordance with our Privacy Policy, which is hereby incorporated into, and made a part of, this Agreement by reference.

 

    1. Waiver. No failure or delay on the part of any party in exercising any right or remedy under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or remedy preclude any other or further exercise thereof or the exercise of any other right or remedy. Any waiver granted hereunder must be in writing (for waivers by you, emails will be acceptable; for waivers by Nonagon, the writing must be duly signed by an authorized representative of Nonagon), and shall be valid only in the specific instance in which given.

 

    1. Notices to Nonagon. Except as stated otherwise in this Agreement, you agree to send all notices to Nonagon, to: support_us@nonagon.com. 

 

    1. No Third Party Beneficiaries. Except as may be expressly provided otherwise in this Agreement (such as Nonagon Affiliates, Nonagon's licensors and suppliers, and Indemnitees), there shall be no third-party beneficiaries of, or under, this Agreement, and no third party shall be entitled to enforce any of these terms and conditions.

 

    1. Export Compliance. You represent and warrant that: (a) you are not a resident of (and you will not use the Website in) a country that the U.S. government has embargoed for use of the Website, nor are you named on the U.S. Treasury Department’s list of Specially Designated Nationals or any other applicable trade sanctioning regulations of any jurisdiction; and (b) your country of residence and/or incorporation (as applicable) is the same as the country specified in the contact and/or billing address provided to us. In the event you breach this Section (Export Compliance), in whole or in part, or otherwise violate any Export Control Laws (defined below) in connection with the Website, you agree to indemnify and hold harmless Nonagon and all Nonagon Affiliates (including our and their respective directors, officers, and employees) for any fines and/or penalties imposed upon Nonagon, a Nonagon Affiliate, and/or such individuals as a result of such breach or violation. "Export Control Laws" means all applicable export and re-export control Laws applicable to you and/or Nonagon, as well as the United States' Export Administration Regulations (EAR) maintained by the US Department of Commerce, trade and economic sanctions maintained by the US Treasury Department's Office of Foreign Assets Control, and the International Traffic in Arms Regulations (ITAR) maintained by the US Department of State. 

 

    1. Force Majeure. Neither party shall have any liability, or otherwise be deemed in breach, for any performance (excluding payment obligations) under this Agreement that is prevented, hindered, or delayed by reason of an event of Force Majeure (defined below). For purposes of this Agreement, an event of "Force Majeure" shall be defined as: (a) fire, flood, earthquake, explosion, pandemic or epidemic (or similar regional health crisis), or act of God; (b) strikes, lockouts, picketing, concerted labor action, work stoppages, other labor or industrial disturbances, or shortages of materials or equipment, or failure of (or delay in) delivery by Nonagon’s suppliers or carriers; (c) invasion, war (declared or undeclared), terrorism, riot, insurrection, or civil commotion; (d) an act of governmental or quasi-governmental authorities; (e) failure of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, shortage of adequate power or transportation facilities; and/or (f) any matter beyond the reasonable control of the affected Party.

 

    1. California Users. If you are a California resident, we are required to inform you that you may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs via mail at 1625 North Market Blvd., Suite N112, Sacramento, CA 95834 or telephone at (916) 445-1254 or (800) 952-5210. Hearing-impaired users can reach the Complaint Assistance Unit at TDD (800) 326-2297 or TDD (916).

 

    1. Your Resources. Except for any goods and services that this Agreement expressly requires Nonagon to provide, Nonagon is under no obligation to provide any goods or services. You shall be solely responsible: (a) for providing all hardware, software, systems, assets, facilities, and ancillary goods and services needed for you to access and use the Nonagon Solution; (b) for ensuring their compatibility with the Nonagon Solution; and (c) for obtaining (and maintaining) all consents and licenses necessary to exercise your rights under the License. In the event Nonagon is legally or contractually required to modify or replace features or functionalities of the Nonagon Solution in order to ensure they comply with the terms of service or privacy policies of various platforms, networks and/or websites, you shall be responsible for making all necessary changes to your hardware, software, systems, assets, and facilities in order to continue using the Nonagon Solution.

 

 

Exhibit A

Nonagon Product

The Nonagon Solution is comprised of: 

  1. Nonagon's proprietary N9+ device (including all hardware and firmware) used for examination of nine (9) physical health indicators, intended for use by patients and/or clinicians (the "Device");
  2. Nonagon's cloud-based SaaS platform (including a mobile application, web application, administrative tools, API service, and cloud hosting through Nonagon's cloud hosting provider), connecting and communicating with Devices and their users/patients for the collection, processing and transmitting of the Nonagon Product Data (the "Platform"). The Platform enables clinicians to access the Nonagon Product Data and perform synchronous and asynchronous remote medical visits with patients; and 
  3. Any user manuals, operational guides, and/or technical documentation related to the foregoing (the "Documentation")

 

The Nonagon Solution includes the following consumables and parts ("Consumables/Parts"):

 

Consumables/Parts

Quantity

Ear Specula (Adult)

3

Ear Specula (Toddlers)

3

Tongue Depressor

1

Otoscope Cap

1

Nonagon N9+ Wireless Otoscope

1

USB-C cable

1

1.5V AAA batteries

2

Carrying Case

1

 

 

Exhibit B

Telehealth Services

 

The Nonagon Solution offers Users the option of engaging their own clinicians to perform synchronous and asynchronous remote medical visits with the Users, or engaging third party clinicians affiliated through the Telehealth Network.

 

 

 

    

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