THIS MAIN SERVICES AGREEMENT GOVERNS CUSTOMER’S ACQUISITION AND USE OF RESOLUTIONMD SERVICES. CAPITALIZED TERMS HAVE THE DEFINITIONS SET FORTH HEREIN.
BY ACCEPTING THIS AGREEMENT, (1) EXECUTING A QUOTE THAT REFERENCES THIS AGREEMENT, OR (2) USING FREE SERVICES, CUSTOMER AGREES TO THE TERMS OF THIS AGREEMENT.
This Agreement was last updated on July 14, 2025. It is effective between Customer and ResolutionMD, Inc., as of the date of Customer’s accepting this Agreement (the “Effective Date”).
1. DEFINITIONS
“Agreement” means this Main Services Agreement
“Quote”means each ResolutionMD approved quote for ordering products and services during the term of this Agreement, or such other document containing substantially the same information in a form acceptable to ResolutionMD.
“Documentation” means, collectively, the operating instructions, user manuals, installation checklist, help files and other technical information for the System, in written or electronic form, delivered by ResolutionMD to Customer with the System.
“First Clinical Use” means the time at which a product is being used for patient care processes.
“Hardware” means any equipment identified in the Quote that is authored by ResolutionMD.
“Pass-Thru Product” means any software or hardware manufactured or supplied by third parties, which products are so identified in the Quote as being purchased or licensed by ResolutionMD on Customer’s behalf and for which ResolutionMD will not provide any services, including without limitation installation, maintenance or training.
“Software” means the proprietary software of ResolutionMD and its affiliates and any third-party embedded software in object code format licensed by Customer pursuant to this Agreement and as set forth on the Quote, including any Updates, modified versions, additions and copies thereof as provided hereunder. Software does not include any software not set forth in the Quote, including without limitation any proprietary ResolutionMD software not licensed to Customer hereunder, any other software licensed to ResolutionMD by a third party or any Pass-Thru Product.
“System” means all Software licensed, Third Party Products and Pass-Thru Products purchased, as the case may be, by Customer hereunder as set forth in the Quote.
“Third Party Product” means any hardware, software and service offered by a third party vendor identified as such in the Quote.
“Update” means any subsequent release of the Software that ResolutionMD makes available generally from time to time to its maintenance customers. Updates do not include any enhancements, releases or future software ResolutionMD may license to customers separately.
2. GRANT OF USER LICENSE; PERMITTED USE:
All rights not expressly granted in this Agreement by ResolutionMD are reserved to ResolutionMD.
a) Subject to the terms and conditions of this Agreement, ResolutionMD hereby grants Customer a non-exclusive, non-transferable, non-sub-licensable, subscription-based license (the “License”) to use the Software solely in connection with Customer’s internal use of the System, until such use is terminated as provided in this Agreement.
b) Notwithstanding the foregoing, Customer may permit subsidiaries, affiliates, employees, agents or contractors to use the System on Customer’s behalf subject to full compliance by Customer and such agents or contractors with the terms and conditions set forth in this Agreement. Customer agrees that neither Customer nor ResolutionMD grants any other rights or license with respect to the System, or any component thereof, to such agent or contractor and in no event will such agent or contractor use the System for its internal business operations or for any other purpose other than on Customer’s behalf pursuant to this Agreement. Customer shall indemnify and hold ResolutionMD harmless from any claim, loss, damage or expense (including reasonable attorneys’ fees) arising out of the use of the System, or any component thereof, by any such contractor or agent.
c) ResolutionMD and its licensors retain all right, title and interest in and to the Software and all copies thereof, including without limitation any and all copyrights, patents, trade secrets, trademarks and proprietary and confidential information rights in or associated with the Software. The Software is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. No right, title or interest in and to the Software is transferred or licensed to Customer except as expressly set forth herein.
3. COPY AND USE RESTRICTIONS:
a) Customer may not make or retain any copies of the Software. Customer may copy the Documentation only as reasonably necessary for user reference and backup purposes. Each copy of the Documentation made by Customer shall contain the same proprietary notices, labels and marks as the original thereof without any alteration.
b) Customer shall not: (i)sell, sublicense, assign, lease, encumber, grant a security interest in or otherwise transfer the System or the rights granted hereunder to any third party (and if Customer grants a security interest in, or otherwise transfers, the System in violation hereof, the secured party shall have no right to use or transfer the System); (ii)permit any timesharing, service bureau, subscription service or rental use of the System; (iii)reverse engineer, decompile, disassemble or create derivative works of any software component of the System, including without limitation the Software; (iv)remove or alter any proprietary notices, labels or marks on or contained in any part of the System; (v)install the Software on any hardware other than as permitted by this Agreement; or (vi)publish or otherwise release the results of any benchmark test of any software component of the System. As a condition of the use of the System by Customer, Customer hereby represents and warrants that it shall not use the System for any purpose that is unlawful or otherwise prohibited by this Agreement and shall abide by all applicable laws and regulations in Customer’s use of the Software.
4. TERM AND TERMINATION:
a) This Agreement shall commence on the Effective Date and shall continue in full force and effect until terminated pursuant to the terms hereof.
b) This Agreement shall remain in effect for one (1) year from the Effective Date. Thereafter, this Agreement shall be automatically renewed annually for additional one (1) year terms unless, on or before ninety (90) days prior to the end of the term, either Party notifies the other Party in writing that it wishes to terminate the Agreement at the end of such term.
c) Either party may terminate this Agreement at any time if the other party is in default of any material provision of this Agreement and fails to cure such default within 30 days after being notified of such default in writing. Upon termination, all of Customer’s rights to use the System, including the Software, Documentation and any hardware for which Customer has not paid in full, shall cease, and Customer shall destroy or return to ResolutionMD, at ResolutionMD’s election, all copies of the Software and Documentation in Customer’s possession, including any and all archival copies. Upon any such termination, Customer shall have the option to pay in full any outstanding amounts owed to ResolutionMD with respect to any hardware (whether Hardware, Third Party Products or Pass-Thru Products) purchased pursuant to the Quote, at which time title to such hardware shall pass to Customer free and clear of any security interest.
d) Any obligation to pay fees incurred under Section 7 prior to such termination, and the provisions of Section 2 (except in the case of Customer’s default) and Sections 9, 10, 11, 12, 17 and 20, and any other provision of this Agreement that by its terms shall be deemed to so survive, shall survive termination of the Agreement for any reason.
e) Termination for Convenience, This Agreement may be terminated at any time, with or without cause, upon providing thirty (30) day written notice.
5. ACCEPTANCE:
Customer shall conduct acceptance testing to confirm that the System performs in material and substantial compliance with the Documentation. Such acceptance testing will be conducted over a period not to exceed 30 days. If Customer’s tests indicate that the System does not operate in material and substantial accordance with the Documentation, Customer will promptly notify ResolutionMD in writing, setting forth in sufficient detail such non-conformity (“Non-Conformity”). Customer shall immediately provide ResolutionMD supervised access to the System and a reasonable time to bring the System into compliance. Immediately following ResolutionMD’s completion of any necessary corrections, the remainder (or fifteen days, whichever is greater) of the acceptance testing period will commence as provided above.
The System will be deemed accepted by Customer (“Acceptance”) upon the occurrence of the first of the following: (i) the expiration of the acceptance testing period set forth above without an uncured notice of Non-Conformity; or (ii) First Clinical Use.
6. FORCE MAJEURE:
Except for Customer’s payment obligations hereunder, the performance by either party of its obligations under this Agreement shall be suspended for a period that is reasonable under the circumstances if such failure or delay is caused by circumstances beyond its reasonable control including, but not limited to, acts of God, acts of terrorism, acts of civil or military authority, fires, strikes, floods, quarantine restrictions, war, riot or delays in transportation (each such event, a “Force Majeure”). The party wishing to claim relief by reason of Force Majeure shall promptly notify the other party in writing of such event and the cessation thereof. In the event of Force Majeure, the parties shall continue to perform all obligations not affected by such Force Majeure.
7. PAYMENT:
All undisputed payment obligations are due and payable within 30 days of the receipt of invoice and are due in United States dollars. Late payments will bear interest at the lower of 12% per annum or the maximum rate allowed by law, except as otherwise provided in the Quote. ResolutionMD may suspend Services, upon notice to Customer, if payments for such Services are overdue. Customer agrees to pay, in addition to hourly fees, pre-approved, reasonable expenses (including travel and lodging), and sales, use or similar taxes, including without limitation value added or goods and services taxes. No receipts will be provided for expenses under $25.
8. DELIVERY OF TITLE; RISK OF LOSS:
In the event the System, or any component thereof, is held in storage for Customer by ResolutionMD due to Customer’s delay, Customer shall assume all risk and expense of such storage and shall accept delivery of such System, when shipped, in the same configuration as stored.
9. CLINICAL USE OF THE PRODUCTS:
Customer acknowledges and agrees that ResolutionMD is not engaged in the practice of medicine, and is not determining appropriate medical use of the Software or other components comprising the System. All patient care decisions, including those arising from the analysis of images, are the responsibility of Customer. Customer shall defend, indemnify and hold harmless ResolutionMD, its officers, agents and employees, from and against all claims, actions, proceedings, damages, losses, liabilities and expenses, including reasonable attorneys’ fees, arising from any claim of malpractice, misdiagnosis or any other medical treatment matter in connection with the use of the System or any components thereof by Customer or Customer’s users, agents or contractors.
10. LIMITED WARRANTIES AND DISCLAIMERS:
a) ResolutionMD warrants that the Software (excluding Updates for purposes of this Section 10) will perform substantially in accordance with the Documentation for a period of 180 days from the date of installation. Should any failure to conform to these warranties occur during such respective periods, upon prompt written notice of the specific non-conformity from Customer, ResolutionMD shall take one of the following actions, in its sole discretion and without cost to Customer: (i) repair such defective product; (ii) replace the defective product with a product of similar kind and quantity; or (iii) refund the purchase price of the defective product. ResolutionMD does not warrant that: (w) the System will meet Customer’s requirements; (x) the Software will operate in combination with any Third Party Product or Pass Thru Product or other hardware, software, systems or data not provided by ResolutionMD, except as expressly set forth in the Documentation; (y) the operation of the Software will be uninterrupted or error-free; or (z) all Software errors are correctable. If delivery or installation of the System is delayed due to the fault of Customer, the warranty set forth in this Section 10(a) shall commence upon the originally scheduled installation date.
b) The warranty set forth in Section 10(a) will not apply if: (i) either the Software is not used in accordance with this Agreement or the Documentation; (ii) either the Software or the Hardware, or any part thereof, has been modified by any entity other than ResolutionMD; or (iii) a malfunction in the Software or the Hardware has been caused by any of Customer’s equipment or any products not acquired by Customer under the Quote.
c) ResolutionMD warrants that Maintenance Services, as defined in Schedule A, shall be performed in a professional and workmanlike manner in accordance with industry standards. For any breach of this warranty, Customer’s sole and exclusive remedy, and ResolutionMD’s entire liability therefor, shall be the re-performance of the non-conforming service. ResolutionMD shall not be liable for any such breach of warranty unless Customer provides written notice of such breach to ResolutionMD within 30 days of the performance of the services giving rise to such claim.
d) With respect to Third Party Products and Pass-Thru Products, Customer shall have the benefit of any third party warranties, service agreements and indemnities available to users of a System that includes such Third Party Products or Pass-Thru Products, as the case may be; provided, however, that Customer’s sole remedy for breach of any such warranty, indemnification, service agreement or other rights shall be against the third party offering such rights and not against ResolutionMD.
e) PARAGRAPHS A, C AND D ABOVE COMPRISE THE SOLE AND EXCLUSIVE REMEDIES TO WHICH CUSTOMER IS ENTITLED FOR BREACH OF WARRANTY. EXCEPT FOR WARRANTIES, IF ANY, CONTAINED IN THE DOCUMENTATION RELATING TO THE PERFORMANCE OF THE SYSTEM, THE SYSTEM AND SERVICES ARE PROVIDED WITHOUT ANY OTHER WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, SECURITY, SYSTEM INTEGRATION OR ACCURACY, OR INFORMATIONAL CONTENT AND NON INFRINGEMENT. RESOLUTIONMD’S WARRANTY DOES NOT APPLY TO THIRD PARTY PRODUCTS OR PASS-THRU PRODUCTS, IF ANY, INCLUDED IN ANY QUOTE, INVOICE OR OTHER AUTHORIZED RESOLUTIONMD PURCHASE ORDER AND RESOLUTIONMD SHALL HAVE NO OBLIGATION OR LIABILITY WHATSOEVER TO CUSTOMER WITH RESPECT TO SUCH THIRD PARTY PRODUCTS OR PASS-THRU PRODUCTS.
11. LIMITATION OF LIABILITY; INSURANCE:
a) WAIVER AND DISCLAIMER OF CONSEQUENTIAL DAMAGES. NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING BUT NOT LIMITED TO LOSS OF REVENUE OR PROFITS, FAILURE TO REALIZE SAVINGS OR OTHER BENEFITS, LOSS OF OR DAMAGE TO DATA, RECORDS OR PROGRAMMING, AND CLAIMS AGAINST CUSTOMER BY THIRD PERSONS) ARISING FROM OR RELATING TO THIS AGREEMENT OR A BREACH THEREOF OR ANY ORDER PLACED HEREUNDER, WHETHER BASED IN CONTRACT, TORT, WARRANTY, NEGLIGENCE, STRICT LIABILITY, BREACH OF STATUTORY DUTY OR OTHER THEORY, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
b) MAXIMUM DAMAGES. Except with respect to the indemnity provided in Section 12, the liability of such party and the other party’s sole and exclusive remedy for damages for any claim of any kind whatsoever with respect to this Agreement shall not be greater than the amount paid or owing for the components or services in the twelve months preceding such claim. amounts due and owing.
c) ResolutionMD shall not be responsible for any costs, expenses or damages suffered or incurred by Customer, or for any claim, judgment or award against such Customer, or the defense thereof, arising out of any actions, assistance or services of ResolutionMD, its agents, employees, consultants or contractors hereunder, unless resulting from the wilful misconduct or grossly negligent act of ResolutionMD or such agents, employees, consultants or contractors or if such damages result from a breach of confidentiality.
d) All claims against ResolutionMD or its licensors must be brought within one year after the cause of action arises.
e) Customer agrees to maintain general comprehensive liability and property damage insurance, including contractual liability insurance, in reasonable amounts, not less than the purchase price of the System and, upon request of ResolutionMD, Customer will provide ResolutionMD with a certificate of insurance demonstrating such coverage.
12. INDEMNIFICATION:
a) BY RESOLUTIONMD. ResolutionMD shall indemnify and hold Customer harmless solely from any claim by a third party that the use of the Software in accordance with this Agreement infringes any United States patent, copyright or trade secret of that third party, provided: (i) ResolutionMD is promptly notified in writing of the claim; (ii) ResolutionMD receives reasonable cooperation from Customer necessary to perform ResolutionMD’s obligations hereunder; and (iii) ResolutionMD has sole control over the defense and all negotiations for a settlement or compromise. The foregoing obligation of ResolutionMD is contingent upon proper use of the Software and adherence to the Documentation, and does not apply with respect to any Software or portions or components thereof: (A) not supplied by ResolutionMD; (B) used in a manner not expressly authorized by this Agreement or the Documentation; (C) made in accordance with Customer's specifications; (D) modified by Customer, if the alleged infringement relates either to such modification or to the combination of the modification with the Software or portions or components thereof; (E) combined with any other products (hardware or software), processes or materials not provided by ResolutionMD where the alleged infringement would not exist but for such combination; or (F) where Customer continues the allegedly infringing activity after being notified thereof and provided modifications that would have avoided the alleged infringement. ResolutionMD makes no representation or warranty as to any copyrights or patents or other intellectual property rights that may be embodied in any third party software or hardware or involved in the services performed by ResolutionMD.
b) In the event the Software is held by a court of competent jurisdiction to constitute an infringement or use of the Software is enjoined, ResolutionMD shall, at its sole option, do one of the following: (i) procure for Customer the right to continue use of the Software; (ii) provide a modification to the Software so that its use becomes non-infringing; (iii) replace the Software with software that is substantially similar in functionality and performance; or (iv) if none of the foregoing alternatives is reasonably available to ResolutionMD, ResolutionMD shall remove the Software and refund the residual value of the license fee paid for such infringing Software, depreciated using a straight-line method of depreciation over a three-year period from the date of Acceptance. This Section 12 states ResolutionMD’s sole liability and Customer’s exclusive remedy for infringement claims.
13. ADDITIONAL TERMS AND CONDITIONS:
The maintenance, installation, training and services purchased by Customer are described in the Quote. The terms and conditions of such services are set forth on Schedule A.
14. ADVERTISING; USE OF INTELLECTUAL PROPERTY:
Both parties grant the other party permission to make written or oral reference to the transactions contemplated by this Agreement in its public advertising, proposals and similar public forums and media. Such advertising shall reference only the occurrence of the transactions as well as general technical information related to implementation of the System. Any additional releases of partnership or case studies of usage of the System may be made only upon written agreement of both parties. The parties agree that specific contractual terms and prices will be treated as confidential information pursuant to Section 17.
Customer shall not register or use the trademarks or trade name of ResolutionMD or any affiliate thereof without the prior written consent of ResolutionMD or such affiliate, as the case may be, and shall not contest or otherwise bring into question ResolutionMD’s or such affiliate’s ownership thereof.
Neither party shall gain any rights of ownership in copyrights, patents or other intellectual property of the other party. Exclusive of the intellectual property provided by Customer and any proprietary Customer data, ResolutionMD shall own all title, right and interest(including any copyrights, patents, trade secrets or other intellectual property rights) in and to the Software, Hardware and all tangible materials delivered hereunder as well as all other results of any services, including without limitation installation, workflow prescriptions, maintenance and training. Upon full payment to ResolutionMD of all sums due for any such services, Customer is granted a non-exclusive, non-transferable license to use, for internal purposes only, any tangible material delivered by ResolutionMD or other result of such services provided to Customer hereunder. Customer shall retain ownership rights to all data entered into the System by Customer, or pre-existing data migrated into the System on behalf of Customer by ResolutionMD.
15. SYSTEM NOT FOR EXPORT:
The System, and its technology, is subject to United States export control laws and regulations. Customer agrees to comply with all such applicable laws and regulations, and further agrees not to knowingly transfer, directly or indirectly, any software, source code, technology, technical assistance or technical data received hereunder to any restricted end user or restricted country without export license, re-export license or other applicable authorization from the appropriate United States government agency or agencies.
16. ASSIGNABILITY:
Customer shall not transfer or assign this Agreement or any of its rights or obligations hereunder to any third party without ResolutionMD’s prior written consent, not to be unreasonably withheld. Any transfer, assignment or delegation in violation of the foregoing shall be void and may be treated as a material breach of this Agreement.
17. CONFIDENTIALITY:
Each party acknowledges that Confidential Information (as defined herein) constitutes a valuable asset of the other party and that the Confidential Information is the sole and exclusive property of such disclosing party. The receiving party agrees to maintain in confidence Confidential Information of the disclosing party with at least the same degree of care with which the receiving party holds its own confidential and proprietary information, but at all times with no less than reasonable care.Neither party will, at any time during the term of this Agreement and for a period of three years after termination thereof, disclose Confidential Information of the other party to any person other than as required to perform its obligations under this Agreement. For purposes hereof, Confidential Information means confidential or other proprietary information of the disclosing party (including any information deemed confidential pursuant to HIPAA, or such other information protected by law), including without limitation business plans, customer lists, information on product pricing and other terms of sale, technical data, trade secrets or know-how, including but not limited to research, product plans and specifications, products, services, investors, partners, distributors, markets, market studies, computer software and programs (including object code and source code), data, databases and database technologies, developments, inventions, processes, compilations, flowcharts, formulae, technology, sketches, designs, drawings, diagrams, manuals, schematics, samples, engineering, hardware configuration information, or marketing, finance or other business information disclosed to the receiving party, directly or indirectly, by the disclosing party if: (a) such information is marked with an appropriate confidential or proprietary legend in case of disclosure in written form or in any tangible form; or (b) such information is identified as confidential at the time of disclosure in oral form or in any intangible form and thereafter is summarized in a written memorandum by the disclosing party, which memorandum shall be provided to the receiving party no later than 30 days after the initial disclosure. For purposes hereof, Confidential Information shall include the terms and conditions of this Agreement. Confidential Information shall not include any information that the receiving party can demonstrate was: (i) in the possession or control of the receiving party prior to the time of disclosure hereunder; (ii) at the time of disclosure or thereafter becomes public knowledge through no fault of the receiving party; (iii) lawfully obtained by the receiving party from a third party that, to the knowledge of the receiving party, is not under any obligation of confidentiality to the disclosing party; (iv) developed independently by personnel of the receiving party who have not had access to Confidential Information; (v) approved for release by written authorization of the disclosing party; or (vi) required to be disclosed pursuant to, or as required by, law or legal process, provided that the receiving party shall advise the disclosing party of such request in time for the disclosing party to apply for legal protection.
Except as otherwise provided in this Section 17, all proprietary rights (including without limitation patent rights, copyrights and trade secrets) in and to Confidential Information shall remain the disclosing party’s property. The receiving party shall not cause or permit the reverse engineering, reverse assembly or reverse compilation of any Confidential Information or include any Confidential Information in any patent or patent application.
Upon termination of this Agreement or at any time upon the disclosing party’s written request, the receiving party will either return promptly to the disclosing party or destroy, with such destruction certified in writing by an authorized officer of the receiving party, all of Confidential Information, including all copies thereof.
18. REGULATORY COMPLIANCE:
ResolutionMD will maintain the Software in compliance with all applicable federal, state and local regulations, rules and guidelines, as the same may be amended from time to time, that are applicable to medical device manufacturers. Any applicable federal, state or local requirement affecting the Software or Hardware will be released to Customer through Updates in advance of the effective date of such requirement.
19. GENERAL:
a) Taxes: Customer is responsible for the payment of all sales, use, excise and similar taxes. The amount of any applicable sales, excise and other similar taxes shall be added to the price and shall be paid by Customer, whether or not invoiced. Customer will provide ResolutionMD with such evidence as ResolutionMD may reasonably request to establish that such taxes have been paid. If applicable, Customer may provide ResolutionMD with an exemption certificate acceptable to the relevant taxing authorities. Any taxes (other than income taxes) that ResolutionMD may be required to pay to, or collect and remit to, any governmental unit under any existing or future law upon or with respect to the sale, delivery, installation, storage, use or consumption of the System, any component thereof or any services provided hereunder by ResolutionMD are payable by Customer. If ResolutionMD is or becomes liable for or pays any such taxes or any related interest or penalty charges, Customer agrees to pay same to ResolutionMD upon demand. In the event that Customer is a tax-exempt entity, the foregoing provision shall not apply.
b) Interpretation; Jurisdiction, Dispute Resolution, Governing Law: Any dispute, controversy or claim relating to this Agreement or purchase order placed in support of this Agreement (a “Dispute”) will be resolved first through good faith, negotiations between ResolutionMD and Customer. If the parties are unable to resolve the Dispute, either party may submit the Dispute for resolution by mediation. If the Dispute cannot be resolved through mediation, either party may commence an action to resolve the Dispute in court. The governing law shall be the law of the defendants’ jurisdiction. The parties agree to submit to the exclusive jurisdiction of such courts. The parties expressly waive and forego any right to trial by jury.
c) Severability: In the event any provision of this Agreement shall for any reason be held to be invalid, illegal or unenforceable, the remaining provisions of this Agreement shall be unimpaired and such invalid, illegal or unenforceable provision shall be replaced by a provision that, being valid, legal and enforceable, comes closest to the original intention of the parties.
d) Waiver; Any forbearance, failure or delay by ResolutionMD in exercising any right, power or remedy hereunder shall not preclude the further exercise thereof. Every right, power and remedy of ResolutionMD shall continue in full force and effect until an instrument in writing executed by ResolutionMD specifically waives such right, power or remedy.
e) Notice; Any notice required or permitted to be given under this Agreement shall be in writing and sent by hand delivery, by a recognized national or regional overnight courier service with all charges prepaid, or by certified mail (return receipt requested), postage prepaid, to Customer at the address set forth on the cover page of this Agreement and to ResolutionMD as stated below. Any notice given by mail as provided herein shall be conclusively deemed to have been received by a party hereto and be effective on the fifth business day after the day on which mailed. Any other notice given hereunder shall be effective upon receipt. The parties may from time to time designate in writing other addresses expressly for the purpose of receipt of notice hereunder.
In the case of ResolutionMD to:
ResolutionMD,Inc. Attn: CEO
Suite 314, 1212 31st Ave NE
Calgary, AB T2E 7S8
f) Independent Contractors: The parties are entering into this Agreement as independent contractors and nothing herein shall be deemed to constitute either party an agent, franchisee or partner of, or joint venturer with, the other party for any purpose whatsoever. Neither party shall take any action (including without limitation making any statements or representations) giving rise to the impression, or by its silence or failure to act contribute to the impression, that either party is such an agent of the other. Neither party is granted any right or authority to assume or to create any obligation or responsibility, express or implied, on behalf of or in the name of the other party, or to bind such other party in any manner whatsoever.
g) Audit Rights: ResolutionMD or its designee may audit Customer with respect to Customer’s compliance with the terms of this Agreement upon reasonable notice to Customer; provided, however, that any such audit shall occur not more than once in any 12 month period. If the audit reveals a delta greater than 5% from the paid Fees or Royalties, Customer agrees to pay all costs related to such audit and the outstanding balance with the applicable late fee of 12% per annum applied.
h) Entire Agreement: This Agreement constitutes the entire and only agreement between the parties hereto and expressly supersedes and cancels any other agreements, whether oral or written, relating to the subject matter hereof. Any representation, affirmation of fact, and course of prior dealing, promise or condition in connection therewith, or usage of the trade not incorporated herein, shall not be binding on either party. If there is any conflict or inconsistency between the terms of this Agreement and any schedules hereto, the terms of this Agreement shall control; notwithstanding the foregoing, in the event of any conflict between the terms of the Quote and the terms of this Agreement or any schedules hereto, the terms of the Quote shall control. No waiver, alteration or modification of any of the provisions hereof shall be binding unless in writing and signed by the specifically authorized representatives of ResolutionMD and Customer. No additional or conflicting term in a purchase order or other document shall have any effect.
SCHEDULE A
RENEWALS, MAINTENANCE AND SERVICES TERMS AND CONDITIONS
1. MAINTENANCE SERVICES:
a) In consideration for the fees invoiced by ResolutionMD and paid by Customer, ResolutionMD shall provide the services set forth in this Schedule A (“Maintenance Services”) for a term of one year from the original date of purchase of the System. Thereafter, Maintenance Services are invoiced annually on each anniversary of the date of installation. Upon payment by Customer of the annual Maintenance Services fee, such Maintenance Services are renewed for one year. ResolutionMD may change the Maintenance Services offered at any time, effective as of the commencement of any renewal period. Customer acknowledges and agrees that should Customer terminate or decline to renew Maintenance Services and continue to use the Software component of the System, such continued use of the Software component of the System after the termination or non-renewal of the Maintenance Services shall be at Customer’s sole and exclusive risk.
Maintenance Services shall not include: (i) services with respect to any modification made to a System other than by ResolutionMD; (ii) necessary repairs caused by Customer’s use of the System other than in accordance with the terms of this Agreement and the Documentation; (iii) damage caused by the negligence or willful misconduct of Customer’s employees, agents or invitees or (iv) service for Third Party or Pass Thru Products, or (v) On Site Service described in this Schedule A, Section 6.
b) Fees and Payment: ResolutionMD shall have the right to increase the fees for Renewals and Maintenance Services set forth in the Quote starting with the second year of service. The amount of any such increase shall be the annual percentage increase in the CPI for Software and Information Technology Services, not to exceed five percent (5%). When ordered, Maintenance Services must be ordered for all Software and Hardware. In the event that coverage for Maintenance Services lapses as a result of either termination by Customer for any reason or by ResolutionMD for Customer’s non-payment, renewal of such service will require payment by Customer of a reinstatement fee to ResolutionMD equal to one hundred twenty-five percent (125%) of the sum of the fees for any previously unpaid maintenance period(s) plus full payment for the subsequent annual period. Maintenance Services fees will be billed on an annual basis and are payable in advance.
2. STANDARD SUPPORT:
ResolutionMD shall provide Customer with technical assistance. Customer may contact ResolutionMD support via the support portal (community.resolutionmd.com) or by e-mail at support@resolutionmd.com.
Issues which are out of ResolutionMD’s control, will not qualify for support as they are the responsibility of the Customer. If ResolutionMD identifies a support incident as non-qualified, it will provide its best efforts to transition the support case back to Customer in a timely manner.
Customer shall notify ResolutionMD of any adverse event or incident of patient harm or potential patient harm that is alleged to have been caused by the System. ResolutionMD and Customer agree to cooperate with each other in notifying applicable regulatory authorities and with conducting investigations and recalls, in accordance with applicable medical device regulations.
3. MONITORING AND AUDITS; BACK UP OF DATA:
Commencing upon installation and continuing through the term of the Agreement, ResolutionMD shall have the right to access the for audit purposes. Any information disclosed to ResolutionMD shall be considered Confidential Information pursuant to Section 17 of the Agreement.
Throughout the term of this Agreement, Customer acknowledges and agrees that it will regularly back up all data and programs maintained on or used in conjunction with the System. ResolutionMD shall have no liability for data loss, regardless of the cause.
4. MAINTENANCE:
a) ResolutionMD will provide remedial maintenance necessary to repair the System upon Customer’s request for service in the event such problem cannot be resolved through support. ResolutionMD shall make available remedial maintenance outside Normal Business Hours at ResolutionMD’s then current price for labor associated with such services.
b) Enhancements and Upgrades: Provided Enhancements do not require new or upgraded hardware or are listed as optional features in ResolutionMD’s price list, Enhancements and upgrades provided by Third Party Product and Pass-Thru Product vendors are passed to ResolutionMD’s Maintenance Services customers. For purposes hereof, “enhancements” shall mean any additions to third-party software that allow for additional functionality. In the event of any enhancements that require new or upgraded hardware, the requirements for such hardware will be passed to the customer for the customer to provide if desired.
c) Retirement of Releases: Maintenance Services are provided for each version of the Software commencing the date the version becomes generally available and continuing for a period of two years after such version is retired.
d) Termination: Customer may terminate Maintenance Service at the end of the term by giving written notice to ResolutionMD at least ninety (90) days prior to the end of any annual term. Upon notice to Customer, ResolutionMD may suspend or cancel Maintenance Service if Customer fails to make payment.
e) Termination for Convenience, This Agreement may be terminated at any time, with or without cause, upon providing thirty (30) day written notice.
5. SERVICE PROGRAM:
ResolutionMD provides installation, implementation, project management and application training for ResolutionMD products (“Services”) at ResolutionMD’s then-current list price. Each request from Customer for Services to be provided by ResolutionMD, and the obligations of each party with respect thereto, shall be detailed in a statement of work (SOW) or such other mutually agreed-to document. Each such document shall be incorporated by reference into this Agreement.
a) Any changes to a SOW must be reflected in writing in a new or amended SOW. Each revised SOW shall be incorporated by reference into this Agreement. ResolutionMD is not obligated to do any work not specified in a SOW signed as set forth herein. Either party may terminate a SOW with or without cause at any time by giving the other party 30 days prior written notice. Upon termination of the SOW, fees for the Services provided under it shall become due and payable.
b) Customer agrees to provide all resources reasonably required by ResolutionMD in order to implement the Services, including without limitation personnel, information and software and hardware computing and other facilities.
