Updated November 26, 2024
PLEASE READ THE FOLLOWING AGREEMENT CAREFULLY AS THESE TERMS CONSTITUTE A LEGAL AGREEMENT BETWEEN YOU, AS THE PROVIDER, AND MINDFUL DIGITAL THERAPEUTICS.
AS FURTHER DESCRIBED IN SECTION 13.10, BY CLICKING THE “I AGREE” BOX WHEN CREATING AN ACCOUNT ON THE KANDOO PLATFORM (AS DEFINED BELOW), YOU AGREE TO BE BOUND BY ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT.
IF YOU DO NOT AGREE WITH ANY OF THE TERMS OF THIS AGREEMENT AND DO NOT WISH TO BE BOUND BY THE AGREEMENT, PLEASE DO NOT CLICK THE “I AGREE” BOX, IN WHICH CASE YOU MAY NOT USE OR ACCESS THE SERVICES (AS DEFINED BELOW).
Master Service Agreement
This Master Services Agreement (the “Agreement”), as may be updated from time to time in accordance with Section 13.8 below, is entered into by and between Mindful Digital Therapeutics LLC (“MDT”) and the party that enters into the Agreement by clicking the “I agree” box (“Provider”, on the date on which the Provider enters into the Agreement in this manner, the “Effective Date”).
Definitions
“Affiliate” means any entity controlling, controlled by or under common control with the referenced entity. For purposes of this Agreement, “control” means an economic or voting interest of at least fifty percent (50%) of the referenced entity, or in the absence of such economic or voting interest, the power to direct or cause the direction of the management and policies of such entity.
“End User” means each individual end user who has created an account to access the Kandoo Application as instructed by Provider.
“Intellectual Property Rights” means, collectively, intellectual property rights or other similar proprietary rights, protected, created or arising under the Laws of any jurisdiction, and whether registered or unregistered, including rights in and to any of the following: (i) patents, utility models and any similar or equivalent statutory rights with respect to the protections of inventions and any applications for any of the foregoing; (ii) copyrights, applications for registrations thereof and moral rights; (iii) trade names, trademarks, service marks, domain names and other Internet addresses identifiers, logos, slogans and trade dress, including applications for registrations of any of the foregoing; (iv) trade secrets, know-how, processes, inventions (whether or not patentable), algorithms, methods, formulae, models, methodologies, business plans, technical data, specifications, research and development information, product roadmaps, and any other confidential or proprietary information; (v) databases and data; and (vi) Software.
“Law” means all statutes, laws, rules, regulations, ordinances, codes, administrative rulings, judgments, decrees, orders, constitutions, treaties, ministerial instructions, directives, policies, standards and other requirements or rules of law of any federal, provincial, territorial, municipal, state or foreign governmental authority or other law or regulation-making entity of competent jurisdiction.
“Kandoo Application” means the Kandoo software application accessible to End Users through a Third Party App Store or on the Internet.
“Kandoo Platform” means the Kandoo software application provided to Providers for the purposes of administering brief behavioral activation therapy to End Users, including recording, tracking, and communicating information about End Users.
“Party” means each of Provider and MDT, and “Parties” means Provider and MDT collectively.
“Personal Information” means any information (i) defined as “personal information”, “personal data”, “personally identifiable information”, “protected health information” or any analogous term under any applicable Law or (ii) that identifies, relates to, describes, is reasonably capable of being associated with, or could reasonably be linked, directly or indirectly, with a natural person or household.
“Process”, “Processed” or “Processing” means any operation or set of operations that are performed on Personal Information or on sets of Personal Information, whether or not by automated means.
“Servers” means the servers to which information (including Personal Information) collected by the Kandoo Application is transmitted and stored and on which the Kandoo Platform resides.
“Services” means the provision of the Kandoo Platform to Provider, which shall include (i) the hosting of the Provider dashboard and (ii) the provision of related Services to Provider, in each case, in connection with Provider’s access to and use of the Kandoo Platform.
“Third Party App Store” means a third party application store, such as Google Play Store or Apple App Store, from which an End User acquires the Kandoo Application.
“Usage Policies” means those certain usage policies which may be provided to Provider by MDT from time to time (including in electronic form by posting on MDT’s or the Kandoo website), which may include limitations on data storage space, and equipment and/or software requirements
Services
On the terms and subjects to the conditions set forth in this Agreement, MDT shall provide to Provider, and Provider shall receive, access to the Services during the Term.
Subject to the terms and conditions of this Agreement and the Usage Policies, MDT hereby grants to Provider a non-exclusive, revocable, non-transferable, non-sublicenseable right to access and use the Services, including for the avoidance of doubt the Kandoo Platform and the Third Party Applets (defined below) contained therein, during the Term solely as permitted in this Agreement. Other than as set forth in Section 4, the license granted in this Section 2.2 does not imply any rights to future upgrades or updates to, or versions of, the Kandoo Platform, and Provider does not have any right under this Agreement to obtain or use any source code for the Kandoo Platform or the Kandoo Application. All rights not expressly granted herein by MDT to Provider are reserved by MDT and its licensors.
Provider specifically acknowledges that the Services (including, for the avoidance of doubt the Kandoo Platform nor the Kandoo Application) are not developed or licensed for use in any inherently dangerous, time-sensitive or mission critical applications. Without limiting Section 10, Provider agrees that MDT shall not be liable for any claims or damages arising from such use if Provider uses the Services in connection with such applications.
MDT reserves the right, at any time and its sole discretion, to enhance, correct or otherwise modify, or to suspend or discontinue the Services, including the availability of any feature or content, account access or any promotion offered by MDT, with or without notice to Provider. In the event MDT materially disables the core functionality of, or suspends or discontinues in its entirety, the Services, MDT will use reasonable efforts to provide Provider with prior written notice; provided that Provider acknowledges that such notice may not be feasible in all circumstances and that MDT shall have no liability whatsoever for its failure to provide such notice to Provider.Provider shall be fully responsible for its and its Affiliates use of the Services.
In connection with the Services, Provider shall not:
Interfere with, degrade, or adversely affect any software, system, network or data used by any person including MDT and other users of the Services (including by ensuring that Provider does not upload any viruses or other harmful code in connection with its access to or use of the Services or by placing an undue burden upon the CPUs, servers or other resources used to provide the Services);
Violate any applicable Laws, the rights of others or otherwise use the Services to commit, attempt to commit or facilitate the commission of a crime, other illegal or tortious acts, infringement of any Intellectual Property Rights, fraudulent activities, deceptive impersonation or any activities that may violate any third party’s privacy or publicity rights;
Interfere with or in any manner compromise any of MDT’s operational and security measures or mechanisms;
Alter, modify, delete, or otherwise interfere with or in any manner compromise any content, data and/or features accessible in connection with the provision or receipt of the Services, including the content delivery and display functionality thereof; or
Authorize, permit or otherwise acquiesce in any other party engaging in any of the activities set forth in (a) – (d) above, or attempting to do so.
With respect to the Kandoo Platform, Provider shall not:
copy, reproduce, modify, enhance, improve, alter, reverse engineer, disassemble, deconstruct, translate, decrypt, reverse compile or convert into human readable form the Kandoo Platform or any part thereof; for the avoidance of doubt, “copy or reproduce” as used in this Section 2.7(a) shall not include copying of statements and instructions of the Kandoo Platform during program execution when used in accordance with and for the purposes described in the user documentation, in accordance with industry standard business practices;
remove, deface, cover or otherwise obscure any proprietary rights notice or identification on the Kandoo Platform (including without limitation any copyright notice or other notice of Intellectual Property Rights ownership);
use the Kandoo Platform in any way inconsistent with the Usage Policies or usage parameters provided to Provider;
attempt to hack the Kandoo Platform or any communication initiated by the Kandoo Platform or the Kandoo Application or to defeat or overcome any encryption or other technical protection methods implemented by MDT with respect to the Kandoo Platform or the data or content transmitted, Processed or stored by MDT or other users of the Services;
collect any information or communication relating to MDT’s third party provider institutions that utilize the Services by monitoring, or intercepting any process of, or communication initiated by, Services or by developing or using any software or any other process or method that engages or assists in engaging in any of the foregoing;
use any type of bot, spider, virus, clock, timer, counter, worm, software lock, drop dead device, packet-sniffer, Trojan-horse routing, trap door, time bomb or any other codes or instructions that are designed to be used to provide a means of surreptitious or unauthorized access to the Kandoo Platform or any computer system or that are designed to monitor, distort, delete, damage or disassemble the Kandoo Platform; or
authorize, permit or otherwise acquiesce in any other party engaging in any of the activities set forth in (a) – (f) above, or attempting to do so.
Provider is solely responsible for the selection, implementation, installation, maintenance and performance of any and all equipment, software and services used in conjunction with its access and use of the Services (except for MDT’s computer systems and networks), including Provider’s internal network infrastructure.
Account Registration and Maintenance
In order to use the Services, Provider must create an administrator account via the Kandoo Platform. In connection therewith, Provider must (a) provide up-to-date, complete and accurate registration information as requested by MDT via the Kandoo Platform, which may include Provider’s name, phone number and email address (“Account Information”) and (b) be at all times in compliance with the terms and conditions of this Agreement and applicable Law. Provider specifically agrees that MDT may rely on the accuracy of the Account Information provided by Provider to MDT, and that MDT will have no liability whatsoever, whether to Provider or to any third party, for any claims or damages resulting from inaccurate Account Information provided to MDT.
Provider will be required to register and provide certain information to MDT to use the Services, such as one or more user IDs and passwords (the “Access Information”). MDT will store the Access Information in encrypted form. The Access Information is provided on the understanding that it is personal to Provider; Provider will not permit anyone other than Provider or its authorized representatives to obtain access to the Services (including, for the avoidance of doubt, the Kandoo Platform) using the Access Information. MDT is not responsible or liable in any way for any use of the Services (whether authorized or unauthorized) by any party accessing the Services using Provider’s Access Information, and Provider accepts all responsibility for such use and any consequences resulting therefrom.
Standard Updates and Support Services. MDT will provide to Provider standard updates to the Services that are made generally available to other Providers during the term of this Agreement. MDT will provide commercially reasonable support for the Services during the term of this Agreement by answering Provider’s questions submitted by email or phone.
Monitoring Violations; Remedial Actions
Notwithstanding anything to the contrary herein, Provider acknowledges and agrees MDT has the right to (i) monitor Provider’s use of the Services for the purpose of ensuring compliance with, and enforcing, the terms of this Agreement, including those set forth in Section 6; and (ii) if MDT has reason to believe Provider has violated the terms of this Agreement, including those set forth in Section 6, or applicable Law, take any action that it deems appropriate (in its sole discretion), including issuing warnings to Provider, removing data or information, immediately suspending Provider’s access to the Services (including, for the avoidance of doubt, the Kandoo Platform), reducing certain functionalities or the performance of the Services, terminating Provider accounts or profiles or reporting to law enforcement, regulatory agencies or other third parties any conduct that MDT believes violates this Agreement or applicable Law.
Provider will cooperate with MDT and provide information requested by MDT to assist MDT or relevant authorities in investigating or determining whether there has been a breach of this Agreement or applicable Law. Provider agrees to promptly and accurately report to MDT any actual or apparent errors, problems, nonconformities or other difficulties in the Services, along with any other information reasonably requested by MDT to aid in resolving such errors, problems, nonconformities or other difficulties, and Provider hereby consents to the collection, processing, transmission and disclosure of such information by MDT for the purposes of MDT’s internal use to develop or improve the Services (including, for the avoidance of doubt, the Kandoo Platform and the Kandoo Application) or other MDT products or services.
Intellectual Property Rights
The Kandoo Platform, the Kandoo Application and the content and features contained therein (including all information, software, text, images, video, audio and the design) are owned by MDT, its licensors or other providers of such material (including other third party providers) and are protected by applicable United States and international copyright, trademark, patent, trade secret and other Intellectual Property Rights Laws. No materials from the Kandoo Platform or the Kandoo Application may be copied, reproduced, republished, uploaded, posted, publicly displayed or performed, downloaded, transmitted or distributed in any way without MDT’s express permission, except as permitted under this Agreement, under applicable Law or as otherwise permitted by the owner of such materials, and any other use of the Kandoo Platform or the Kandoo Application, including other materials available therein, is a breach of this Agreement and may violate copyright, trademark and other Laws. MDT and its licensors intend to vigorously enforce their respective rights, including its Intellectual Property Rights.
MDT’s name, the terms “Child Mind Institute”, “MDT”, “Kandoo,” and all other names, logos, product and service names, designs, and slogans used by MDT are trademarks of MDT, its Affiliates or its licensors. Provider agrees not to use such marks without MDT’s prior written permission.
Provider acknowledges and agrees that, as between Provider and MDT, MDT or its licensors exclusively own and shall retain all right, title and interest in and to the Kandoo Platform, the Kandoo Application, and the Services, with any changes, improvements or modifications thereto and derivative works thereof, and all Intellectual Property Rights embodied or incorporated therein. Provider acknowledges and agrees that MDT shall own any suggestions, enhancement requests, feedback and recommendations provided by Provider relating to the Services (including, for the avoidance of doubt, the Kandoo Platform or Kandoo Application) and hereby assigns to MDT all right, title and interest in and to any Intellectual Property Rights embodied in any of the foregoing. Provider acknowledges and agrees that (i) the Services are protected by copyright Laws and other Laws relating to Intellectual Property Rights and (ii) pursuant to Section 2.2, Provider has a license to access and use the Services during the term of this Agreement subject to the terms and conditions set forth herein, but nothing herein shall confer upon Provider any other right, title or interest in or to any of the Services.
Data Collection and Processing via the Kandoo Application
Provider acknowledges and agrees that an integral part of the Services, and the sole purpose of the Kandoo Application, is the collection of information (including Personal Information) from End Users through the Kandoo Application. Such information is then Processed by, and when applicable transmitted to authorized third parties by, MDT. Nothing herein transfers any ownership of such information to MDT; however, Provider hereby grants MDT a license to use such information solely to provide Provider with the Services (as contemplated hereunder) and to comply with any mandatory requirements of Law.
The Parties shall (i) comply with their respective obligations under applicable privacy Laws with respect to the Processing of Personal Information provided or made available pursuant to this Agreement, including by providing notices to and receiving consent from data subjects where applicable, (ii) cooperate with the other Party to notify applicable government bodies or data subjects in the event of a data or other security breach where required by applicable privacy Laws and (iii) implement appropriate technical and organizational measures to maintain the security of and to protect the Personal Information accessed hereunder against any accidental or unlawful Processing, destruction or accidental loss, alteration, unauthorized disclosure or access. Upon reasonable request by either Party, to the extent required by or reasonably advisable to comply with applicable privacy Laws, MDT will prepare and the Parties shall execute a data processing agreement or addendum to this Agreement further delineating the Parties’ responsibilities with respect to the Processing of Personal Information. To the extent any Protected Health Information (“PHI”) (as defined under the Health Insurance Portability and Accountability Act of 1996) will be provided or otherwise handled through the Kandoo Application, the parties will enter into an appropriate Business Associate Agreement, which shall govern the processing of such PHI.
Notwithstanding Section 7.2, to the extent the information described in Section 7.1 contains Personal Information relating to End Users, Provider is solely responsible for obtaining all relevant permissions and consents to enable Provider to grant the license set forth in Section 7.1, and to enable MDT to Process such information through the Kandoo Application and on the Servers. MDT will have no liability whatsoever respecting any claim by Provider, End Users or any other third party whose information (including Personal Information) is collected or Processed in connection with Provider’s receipt of the Services, whether related to privacy or otherwise, in relation to MDT’s use of such information to provide the Services, and Provider agrees to indemnify, defend and hold MDT harmless against any such claims. Provider agrees to obtain from all End Users all authorizations and consents (including, in the case of End Users under the age of thirteen (13), “verifiable parental consent” (as defined under the Children’s Online Privacy Protection Act)) necessary for Provider’s Processing of any such End User Personal Information in conjunction with the Services, including obtaining permission and all necessary rights from End Users to use their feedback to develop Provider’s product plans.
Provider acknowledges that information (including Personal Information) obtained through the Services is not under the control of MDT, and MDT is not responsible or in any way liable for the content of such information, including its accuracy, reliability, effectiveness, standards compliance, copyright compliance, legality, decency or any other aspect of such content. MDT does not assess information (including Personal Information) for its quality, usefulness or otherwise. Under no circumstance will MDT be liable for any loss or damage caused by Provider’s reliance on such content or information (including Personal Information) obtained through the Services, and it is solely Provider’s responsibility to evaluate the accuracy, completeness or usefulness of any such content and information.
Provider acknowledges and agrees that MDT will exercise no control over Provider’s receipt or use of the Services, and that Provider is solely responsible for complying with the provisions of this Agreement and all applicable Laws respecting Provider’s use of the Services, including all privacy Laws applicable to the collection and use of information (including Personal Information) obtained through the Services. Notwithstanding the foregoing, MDT reserves the right to review any material stored in files or programs on the Servers, and has the right to edit or remove any material that, in its sole discretion, believes may be unlawful, obscene, abusive, or otherwise objectionable and/or to report such material to the appropriate authorities. MDT reserves the right to revoke service for any abusive conduct or fraudulent use of the Services and to cease the Services, temporarily or permanently, in the event that Provider’s use of the Services or the provision of the Services constitutes, in MDT’s reasonable judgment, a threat to MDT’s or any third party’s computer systems, networks, files, materials or other data.
Provider acknowledges that, due to the nature of the Services, information (including Personal Information) uploaded to the Kandoo Application may be hosted on Servers residing in jurisdictions other than the United States. By using the Services, Provider acknowledges that its information (including Personal Information) may become, during the period that it is hosted on such Servers, subject to the Laws of the jurisdiction in which those Servers reside and/or to the terms of agreements between MDT and its third party Server providers respecting the hosting of such information on such Servers. Although MDT has made reasonable efforts to verify that its agreements with such third party Server providers are reasonably protective of Provider’s information (including Personal Information), Provider acknowledges that MDT has no liability for any acts or omissions of third parties in relation to such Servers or the information (including Personal Information) stored on them. Provider therefore hereby releases MDT from all liability for any governmental or third party action taken in such jurisdictions with respect to such information (including End User’s Personal Information, data, and any results, such as metrics and analytic reports, based on such data) and/or the Servers on which such data resides, and Provider acknowledges that it retains sole responsibility to back up and retain copies of such information, data and reports.
Confidentiality
For purpose of this 8, “Confidential Information” means all non-public information disclosed in connection with the Services by either Party (with respect to such information, the “Disclosing Party”) to the other party (with respect to such information, the “Receiving Party”) prior to or after the Effective Date that is designated as “confidential” or that, given the nature of the information or the circumstances surrounding its disclosure, reasonably should be understood to be confidential, including non-public information relating to the Disclosing Party’s business, systems, operations, strategic plans, customers or vendors, pricing, technology, methods, processes, financial data, forecasts, programs, products or services. Confidential Information shall not include any information that (i) was known by the Receiving Party prior to its receipt from the Disclosing Party; (ii) is or becomes publicly known or available without breach of this Agreement; (iii) is rightfully disclosed to the Receiving Party by a third party without breach of confidentiality obligations; or (iv) is independently developed by the Receiving Party without use of any Confidential Information of the Disclosing Party.
Except as needed to fulfill its obligations or as otherwise permitted under this Agreement, the Receiving Party shall not disclose to any third party (except as expressly permitted herein) or use for its own benefit, or the benefit of a third party, the Confidential Information of the Disclosing Party, without the Disclosing Party’s prior written consent. The Receiving Party shall limit disclosure of the Disclosing Party’s Confidential Information to its directors, officers, employees, agents, contractors and advisors who have a need to know and who are under obligations of confidentiality no less protective of the Disclosing Party’s Confidential Information than as set forth herein. Additionally, the Receiving Party shall (i) take reasonable measures to avoid unauthorized disclosure, dissemination or use of the Confidential Information of the Disclosing Party, exercising at least the same degree of care in safeguarding the Confidential Information of the Disclosing Party as the Receiving Party would exercise with respect to its own Confidential Information of similar nature, but in no event less than a reasonable degree of care; and (ii) notify the Disclosing Party promptly upon discovery of any unauthorized disclosure, dissemination or use of Confidential Information of the Disclosing Party and cooperate with the Disclosing Party to regain possession of such Confidential Information and prevent its further unauthorized disclosure, dissemination and use. The Receiving Party may disclose Confidential Information of the Disclosing Party where required by Law, provided that Receiving Party shall, where permitted, notify the Disclosing Party prior to such disclosure in order to afford the Disclosing Party an opportunity to seek a protective order to prevent or limit disclosure of its Confidential Information to third parties. Notwithstanding anything to the contrary herein in this Section 8, the Receiving Party may retain copies Confidential Information of the Disclosing Party to the extent (i) stored in back-up/archival storage in accordance with its policies or (ii) required to comply with applicable Law.
The confidentiality obligations set forth in this Section 8 with respect to any Confidential Information of the Disclosing Party shall remain in effect during the term of this Agreement and for a period of three (3) years after the expiration or earlier termination thereof, except with respect to any Confidential Information that is a trade secret under applicable Law, for which the foregoing obligations will remain in effect so long as such Confidential Information remains a trade secret.
Warranties; Disclaimer
Each Party represents and warrants to the other Party that (i) it is duly organized, validly existing and in good standing; and (ii) the execution and delivery of this Agreement and the transactions contemplated hereby have been duly and validly authorized by all necessary action.
Provider represents and warrants that it (i) has the right and the authority to enter into this Agreement, to use the Services, and to Submit any content to the Kandoo Platform or otherwise provide such content and data to MDT; (ii) is not located in a country that is subject to a U.S. government embargo, or that has been designated by the U.S. government as a “terrorist supporting” country; and (iii) is not listed on any U.S. government list of prohibited or restricted parties.
THE SERVICES AND THE KANDOO APPLICATION ARE PROVIDED TO PROVIDER “AS IS” WITHOUT WARRANTY OR CONDITIONS OF ANY KIND, WHETHER EXPRESSED OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, SECURITY OR ACCURACY. MDT ASSUMES NO RESPONSIBILITY FOR ANY ERRORS, OMISSIONS OR INACCURACIES WHATSOEVER IN THE INFORMATION PROVIDED THROUGH THE SERVICES OR KANDOO APPLICATION. UNDER NO CIRCUMSTANCES WILL MDT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY PROVIDER’S RELIANCE ON INFORMATION OBTAINED THROUGH ACCESS TO OR USE OF THE SERVICES OR THE KANDOO APPLICATION. IT IS PROVIDER’S RESPONSIBILITY TO EVALUATE THE ACCURACY, COMPLETENESS AND USEFULNESS OF ANY INFORMATION PROVIDED, AND USE OF THE SERVICES AND THE KANDOO APPLICATION IS SOLELY AT PROVIDER’S OWN RISK. MDT has no special relationship with or fiduciary duty to Provider, and Provider acknowledges that MDT has no control over, and no duty to take any action regarding any acts or omissions taken by Provider or any other user of the Services or the Kandoo Application, including without limitation, how Provider or any other user may interpret or use materials accessed or developed through the Services or the Kandoo Application, or what actions Provider may take as a result of having been exposed to information obtained through the Services or Kandoo Application.
Limitation of Liability
The only type of damages that can be recovered against MDT arising from or related to this Agreement including without limitation in relation to the provision of the Services, shall be Provider’s direct damages, if any, arising from MDT’s gross negligence, willful misconduct or willful breach of this Agreement. MDT SHALL HAVE NO LIABILITY WHATSOEVER TO PROVIDER OR ANY THIRD PARTY CLAIMING BY OR THROUGH PROVIDER FOR THE ACCURACY, TIMELINESS OR CONTINUED AVAILABILITY OF THE SERVICES. Without limiting the foregoing, Provider’s only right with respect to any problems or dissatisfaction with the Services is to discontinue the use of such Services.
EXCEPT FOR THE LIMITED DIRECT DAMAGES SPECIFIED ABOVE, TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL MDT BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL OR PUNITIVE DAMAGES, FAILURES TO TRANSMIT OR RECEIVE ANY DATA, PROBLEMS, LOSS OR DAMAGE ASSOCIATED WITH ANY ACCESS TO OR USE OF THE SERVICES, OR OTHER PECUNIARY LOSS ARISING OUT OF OR RELATED TO THIS AGREEMENT) WHETHER OR NOT SUCH DAMAGES WERE FORESEEN OR UNFORESEEN INCLUDING THE USE OF OR INABILITY TO ACCESS OR USE THE SERVICES, EVEN IF MDT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES
Indemnification
Provider agrees to indemnify, defend and hold harmless MDT, its parents, subsidiaries, Affiliates, officers and employees, including costs and attorneys’ fees, from any claim or demand made by any third party due to or arising out of: (a) Provider’s receipt or use of the Services (including, for the avoidance of doubt access to or use of the Kandoo Platform or any content obtained by Provider through its access thereto), (b) Provider’s use or misuse of the Services, (c) any breach of this Agreement by Provider, (d) the infringement by Provider, or any third party obtaining access to the Services through Provider’s Access Information, of any Intellectual Property Rights or other right of any person or entity, including in connection with the Provider Applets or (e) Provider’s violation of any third-party rights or any applicable Laws.
Termination
The term of this Agreement shall be for thirty (30) days, unless otherwise agreed upon by the Parties, and shall automatically renew thereafter on a monthly basis upon the same terms and conditions as set forth herein.
Either Party may terminate this Agreement for any reason upon thirty (30) days’ written notice to the other Party. Additionally, MDT may terminate this Agreement and/or immediately cease to provide the Services without any liability whatsoever if MDT is prevented from providing any portion or all of any Services due to the acts or omissions of Provider or any third party, or by any Law, regulation, requirement or ruling issued in any form whatsoever by judicial or other governmental body or in the event of any third party claims against MDT, Provider or any other third party provider of MDT relating to the use of the Services. Nothing herein shall be construed to require MDT to seek a waiver of any Law, rule or restriction, or seek judicial review or appeal of any court order. Upon any termination of this Agreement for any reason (whether by Provider or by MDT), Provider must cease all use of the Services (including, for the avoidance of doubt, the Kandoo Platform).
Without limiting any of its other remedies, MDT may limit Provider’s activity, issue a warning, temporarily suspend, indefinitely suspend or terminate Provider’s account and refuse to provide Services to Provider if: (a) Provider breaches this Agreement or the documents it incorporates by reference; (b) MDT is unable to verify or authenticate any information Provider provides; or (c) MDT believes that Provider’s actions may cause financial loss or legal liability for Provider, other third party providers or MDT.
MDT reserves the right to investigate suspected violations of this Agreement. Provider hereby authorizes MDT to cooperate with (1) law enforcement authorities in the investigation of suspected criminal violations and (2) system administrators at Internet service providers, networks or computing facilities, and other content providers in order to enforce the terms and conditions of this Agreement.
The above-described actions are not MDT’s exclusive remedies and MDT may take any other legal, equitable or technical action it deems appropriate in the circumstances. MDT will not have any liability to Provider or any third party in relation to the termination of this Agreement for any reason whatsoever.
Any provision of this Agreement which expressly states that it is to continue in effect after termination or expiration of this Agreement, or which by its nature would survive the termination or expiration of this Agreement, shall do so.
General
Independent Contractors: Each Party shall perform its obligations hereunder as an independent contractor, and nothing contained in this Agreement shall be construed to create or imply a joint venture, providership, principal-agent, or employment relationship between the Parties. Except as expressly authorized by MDT in writing, Provider shall neither act nor purport to be acting as the legal agent of MDT, nor enter into any agreement on behalf of MDT or otherwise bind or purport to bind MDT in any manner whatsoever.
Notices: Any notices, reports or other communications required or permitted to be given under this Agreement shall be in writing and shall be sufficient if delivered by hand or sent by registered mail, courier or facsimile addressed to MDT at Mindful Digital Therapeutics, 215 E. 50th St., New York, NY 10022 ATTN: Kandoo Legal, or to Provider at the address provided upon signature as set forth below or as otherwise advised in writing.
No Waiver: No waiver by either Party of a breach or omission by the other Party under this Agreement shall be binding on the waiving Party unless it is expressly made in writing and signed by the waiving Party. Any waiver by a Party of a particular breach or omission by the other Party shall not affect or impair the rights of the waiving Party in respect of any subsequent breach or omission of the same or different kind.
Assignment, Subcontracting and Succession: Except as expressly permitted herein, neither this Agreement nor any of the rights or obligations hereunder may be assigned, transferred or subcontracted, in whole or in part, by Provider without the prior consent of MDT which shall not be unreasonably withheld, conditioned or delayed. MDT can freely assign, transfer or subcontract, in whole or in part, this Agreement or any of its rights or obligations hereunder without consent of Provider. This Agreement shall be binding upon the Parties and their respective lawful successors and permitted assigns.
Severability: If any one or more of the provisions of this Agreement shall for any reason be held to be invalid, illegal, or unenforceable in any respect, any such provision shall be severable from this Agreement, in which event this Agreement shall be construed as if such provision had never been contained herein.
Governing Law: This Agreement shall be governed by and construed under the Laws of the state of New York, without regard to conflict of laws principles. Each Party hereto irrevocably waives any objection on the grounds of venue, forum non-conveniens or any similar grounds and irrevocably consents to service of process by mail or in any other manner permitted by applicable Law and consents to the jurisdiction of the courts located in the state or federal courts located in New York County, New York.
Dispute Resolution.
The Parties agree that (i) any dispute, claim or controversy arising out of or relating to this Agreement shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules, (ii) the tribunal will consist of one arbitrator and will take place in the State of New York, (iii) the award rendered by the arbitrator shall be final and binding on the Parties and (iv) the judgment may be entered upon the arbitration award in accordance with applicable Law in any court in the State of New York having jurisdiction thereof. Notwithstanding any provision in this Agreement to the contrary with respect to applicable substantive Law, the Parties further agree that any arbitration conducted pursuant to this Agreement shall be governed by the United States Federal Arbitration Act (presently 9 U.S.C. Sec. 1-16). Except for a judgment upon the award rendered by the arbitrator, this Section 13.7(a) waives the Parties’ right to seek relief in court but shall not preclude a Party from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. Notwithstanding the foregoing, the Parties agree that either Party may seek injunctive or other equitable relief in state or federal court located in the State of New York in the event of actual or threatened infringement or misappropriation of intellectual property rights.
THE PARTIES HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE (I) ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN CONNECTION WITH ANY LEGAL DISPUTE BETWEEN THE PARTIES AND (II) ALL RIGHTS TO HAVE ANY DISPUTE BE BROUGHT, HEARD, ADMINISTERED, RESOLVED, OR ARBITRATED ON A CLASS, REPRESENTATIVE, OR COLLECTIVE BASIS.
Entire Agreement/Modification. This Agreement and, if applicable, the Business Associates Agreement between the Parties, constitutes the entire agreement between the Parties and supersedes all previous agreements and understandings relating to the subject matter hereof. This Agreement may not be altered, amended, or modified except by a written instrument signed by the duly authorized representatives of both Parties.
Counterparts. This Agreement may be executed in counterparts, or facsimile counterparts, each of which when executed by either of the Parties shall be deemed to be an original and such counterparts shall together constitute one and the same Agreement.
Electronic Agreement. Provider acknowledges and agrees that by clicking on the “I AGREE” button (or similar buttons or links as may be designated by MDT to show Provider’s acceptance of this Agreement and/or Provider’s agreement to download, install or otherwise access and use the Software), Provider is entering into a legally binding contract. Provider hereby agrees to the use of electronic communication in order to enter into contracts, place orders and create other records and to the electronic delivery of notices, policies and records of transactions initiated or completed through the Software. Furthermore, Provider hereby waives any rights or requirements under any Laws in any jurisdiction which require an original (non-electronic) signature or delivery or retention of non-electronic records, to the extent permitted under applicable mandatory Law. A printed version of this Agreement and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
Publicity. MDT reserves the right to make announcements, press releases, publications, presentations and other public statements that reference Provider’s identity as a Provider, without Provider’s prior written approval, provided that MDT does not disclose Provider’s Confidential Information in the course of such publicity or misrepresent Provider’s relationship with MDT.
Addendum to Kandoo Services Agreement and Terms of Use: Business Associate Agreement Rev.
Preamble and Definitions
Pursuant to the Health Insurance Portability and Accountability Act of 1996, as amended ("HIPAA"), Provider ("Covered Entity") and Mindful Digital Therapeutics LLC, or any of its corporate affiliates (“MDT” or "Business Associate"), a Delaware limited liability company, enter into this Business Associate Agreement ("BAA") as of the date of signature (the "Effective Date") that addresses the HIPAA requirements with respect to "business associates," as defined under the privacy, security, breach notification, and enforcement rules at 45 C.F.R. Part 160 and Part 164 ("HIPAA Rules"). A reference in this BAA to a section in the HIPAA Rules means the section as in effect or as amended.
This BAA is intended to ensure that Business Associate will establish and implement appropriate safeguards for the Protected Health Information ("PHI") (as defined under the HIPAA Rules) that Business Associate may receive, create, maintain, use, or disclose in connection with the functions, activities, and services that Business Associate performs for Covered Entity. The functions, activities, and services that Business Associate performs for Covered Entity are defined in the Services Agreement and Terms of Use (the "Underlying Agreement").
This BAA takes effect when Provider clicks on the “I AGREE” button (or similar buttons or links as may be designated by MDT to show Provider’s acceptance of this BAA form.
Catch-all definition: The following terms used in this Agreement shall have the same meaning as those terms in the HIPAA Rules (as defined below): Breach, Designated Record Set, Disclosure, Minimum Necessary, Protected Health Information, Required By Law, Secretary, Security Incident, Subcontractor, Unsecured Protected Health Information, and Use.
Specific definitions:
“Business Associate” shall generally have the same meaning as the term “Business Associate” at 45 CFR 160.103, and in reference to the Party to this Agreement, shall mean Mindful Digital Therapeutics LLC.
“Covered Entity” shall generally have the same meaning as the term “Covered Entity” at 45 CFR 160.103, and in reference to the Party to this Agreement, shall mean Provider.
“HIPAA Rules” shall mean the Privacy, Security, Breach Notification, and Enforcement Rules at 45 CFR Part 160 and Part 164.
General Obligations of Business Associate
Business Associate agrees to:
Not Use or Disclose Protected Health Information other than as permitted or required by this Agreement or as Required by Law;
Use appropriate safeguards, and comply with Subpart C of 45 CFR Part 164 with respect to electronic Protected Health Information, to prevent Use or Disclosure of Protected Health Information other than as provided for by this Agreement;
Report to Covered Entity any Use or Disclosure of Protected Health Information not provided for by this Agreement of which it becomes aware, including Breaches of Unsecured Protected Health Information as required at 45 CFR 164.410, and any Security Incident of which it becomes aware;
In accordance with 45 CFR 164.502(e)(1)(ii) and 164.308(b)(2), if applicable, ensure that any Subcontractors that create, receive, maintain, or transmit Protected Health Information on behalf of the Business Associate agree to the same restrictions, conditions, and requirements that apply to the Business Associate with respect to such information;
Make available Protected Health Information in a Designated Record Set to the Covered Entity as necessary to satisfy Covered Entity’s obligations under 45 CFR 164.524;
Make any amendment(s) to Protected Health Information in a Designated Record Set as directed or agreed to by the Covered Entity pursuant to 45 CFR 164.526, or take other measures as necessary to satisfy Covered Entity’s obligations under 45 CFR 164.526;
Maintain and make available the information required to provide an accounting of Disclosures to the Covered Entity as necessary to satisfy Covered Entity’s obligations under 45 CFR 164.528;
To the extent the Business Associate is to carry out one or more of Covered Entity's obligation(s) under Subpart E of 45 CFR Part 164, comply with the requirements of Subpart E that apply to the Covered Entity in the performance of such obligation(s); and
Make its internal practices, books, and records available to the Secretary for purposes of determining compliance with the HIPAA Rules.
Permitted Uses and Disclosures by Business Associate
Business Associate agrees to receive, use, or disclose PHI only in a manner that is consistent with this BAA and only in connection with providing services to Covered Entity; provided that the use or disclosure would not violate the Privacy Rule, including 45 C.F.R. § 164.504(e), if the use or disclosure would be done by Covered Entity. For example, the use and disclosure of PHI will be permitted for "treatment, payment, and health care operations," in accordance with the Privacy Rule
Business Associate may Use or Disclose Protected Health Information as Required by Law.
Business Associate agrees to make Uses and Disclosures and requests for Protected Health Information consistent with the Minimum Necessary requirements of the HIPAA Rules.
Business Associate may not Use or Disclose Protected Health Information in a manner that would violate Subpart E of 45 CFR Part 164 if done by Covered Entity.
4. Obligations of Covered Entity
Covered Entity shall:
i. Provide Business Associate with the Notice of Privacy Practices that Covered Entity produces in accordance with the Privacy Rule, and any changes or limitations to such notice under 45 C.F.R. § 164.520, to the extent that such changes or limitations may affect Business Associate's use or disclosure of PHI.ii. Notify Business Associate of any restriction on the use or disclosure of PHI that Covered Entity has agreed to or is required to comply with under 45 C.F.R. § 164.522, to the extent that such restriction may affect Business Associate's use or disclosure of PHI under this BAA.
iii. Notify Business Associate of any changes in or revocation of permission by an individual to use or disclose PHI, if such change or revocation may affect Business Associate's permitted or required uses and disclosures of PHI under this BAA.
Covered Entity shall not request Business Associate to use or disclose PHI in any manner that would not be permissible under the Privacy and Security Rule if done by Covered Entity, except as provided under Section Error! Reference source not found. of this BAA.
Term and Termination
Term. The Term of this Agreement shall be effective as of the Effective Date and shall terminate upon termination of the Underlying Agreement, unless terminated earlier in accordance with Section 5.b of this BAA.
Termination for Cause. Upon either party's knowledge of material breach by the other party, the non-breaching party shall provide an opportunity for the breaching party to cure the breach or end the violation; or terminate the BAA. If the breaching party does not cure the breach or end the violation within a reasonable timeframe not to exceed 30 days from the notification of the breach, or if a material term of the BAA has been breached and a cure is not possible, the non-breaching party may terminate this BAA and the Underlying Agreement upon written notice to the other party.
Obligations of Business Associate Upon Termination. Upon termination of this Agreement for any reason, Business Associate shall return to Covered Entity, or, if agreed by Covered Entity, destroy all Protected Health Information received from Covered Entity, or created, maintained, or received by Business Associate on behalf of Covered Entity, that the Business Associate still maintains in any form. Business Associate shall retain no copies of the Protected Health Information.
Survival. The obligations of Business Associate under this section shall survive the termination of this Agreement.
Miscellaneous
Governing Law. Except to the extent preempted by federal law, this BAA shall be governed by and construed in accordance with the same internal laws as that of the Underlying Agreement.
Regulatory References. A reference in this Agreement to a section in the HIPAA Rules means the section as in effect or as amended.
Amendment. The Parties agree to take such action as is necessary to amend this Agreement from time to time as is necessary for compliance with the requirements of the HIPAA Rules and any other applicable law.
Interpretation. Any ambiguity in this Agreement shall be interpreted to permit compliance with the HIPAA Rules.
