MyndYou Software-as-a-Service Agreement

This Software-as-a-Service Agreement (the “Agreement” or the “Terms”) is a binding agreement between MyndYou Inc, a company incorporated under the laws of the State of Delaware with a principal office at  145 w 67 st, New York, NY, USA. (“Company”) and the entity identified in the applicable Subscription Form (“Customer”). The Company and Customer will each be referred to as a “Party” and both collectively, the “Parties”).

  1. Definitions
    1. Anomaly” means a change in a Client’s speech pattern or behavior which is detected by the Platform.   
    2. Business Associate Agreement” or “BAA” means the agreement entered into between the Parties for the purpose of complying with the requirements of HIPAA.
    3. Client” means the individual patient of Customer whose personal information the Customer inputs into the Platform after obtaining informed consent from the Client to participate in the Service.
    4. Client Data” means the personal information, protected health information, and activity records and information of a Client that Customer inputs into the Platform, as further detailed in subsection ‎4.1 below.
    5. Customer” means the entity identified in the applicable Subscription Form, which provides clinical or medical services to Clients.
    6. Data” mean Client Data and Output Data, collectively.
    7. Effective Date” as set forth in the applicable Subscription Form.
    8. Fees” means the applicable service fees, as set forth in section ‎5.1.
    9. HIPAA” means the Health Insurance Portability and Accountability Act of 1996, as amended, and its implementing regulations.
    10. Output Data” means the various reports, analytics, and other types of information and data that the Service may generate, provide or make available to Customer.
    11. Protected Health Information” means the Client’s health information, as defined under HIPAA.
    12. Service” means the Company’s proprietary technology platform and artificial intelligence that is designed to help clinicians and care providers with Anomaly detection and provide data driven care for seniors living with or without cognitive decline.
    13. Subscription Form” means a written instrument executed by Customer and Company which details the transaction between Customer and Company and Customer’s subscription to the Service.
    14. Taxes” means any sales or use tax or other government charges which may be imposed on or with respect to amounts paid or due to the Company.
    15. Term” means the period of these Terms as specified in section ‎7 below.
  2. Interpretation.As used herein, the term “including”, means including, but not limited to, and without limitation, to the generality of the preceding phrase.
  3. Use.
    1. Subject to these Terms and Customer’s payment of the applicable Fees, Customer may, during the Term, access and use the Service, strictly for Customer’s own business purposes, including the purpose of treating and providing services for the number of Clients authorized in the Subscription Order.
    2. Customer must ensure that Customer’s employees, consultants and agents that it designates to use the Service and access the Platform for Customer’s benefit fully comply with these Terms. Customer shall be liable to the Company for all acts or omissions of those that use and deal with the Service for Customer’s benefit, as though Customer itself had performed those acts or omissions.
  4. Data
    1. The Company will collect and process Client Data. Customer acknowledges and agrees that:
      1. Client Data may include personal data, personally identifiable information, and Protected Health Information, the sharing, processing, and use of which shall be subject to applicable data protection and privacy laws and regulations, including HIPAA, and the Business Associate Agreement.
      2. Company may store and process Client Data outside of the country in which the Clients are located and/or outside the country in which Client Data is collected.
      3. It is responsible to obtain and maintain valid informed consents from all Clients, as may be required under applicable law (including data protection or data processing laws and regulations), in order to allow the Company to lawfully collect, handle, retain, process and use the Client Data in the manners and for the purposes set forth in these Terms.
      4. Company may use aggregated and de-identified Client Data for its own business purposes.
    2. Subject to the BAA and any restriction on the use of PHI as set forth in HIPAA, Company will process, handle, use and maintain the Data (by itself or using trusted third-party service providers such as cloud service providers) for the following purposes:
      1. To provide the Service to Customer, conduct administrative and technical activities necessary to maintain and provide the Service and to improve and customize the Service;
      2. To bill and collect Fees, enforce these Terms, take any action in any case of dispute or legal proceedings;
      3. If Company is required, or reasonably believes it is required, by law, to share or disclose Data, or if such sharing or disclosure is required pursuant to a subpoena, order, or decree, issued by a competent judicial or administrative authority, provided that, to the extent legally permitted, the Company will endeavor to give Customer prompt notice of the requirement prior to such disclosure, to allow Customer, at its cost and expense, to intervene and protect its interests in the Data.
    3. The Company will dedicate its best efforts, using no less than commercially reasonable measures, to maintain the confidentiality of Data that the Company is exposed to, and to prevent and refrain from, disclosure or use of Data for purposes other than those specified in these Terms. The Company’s personnel will access Data on a strict ‘need to know’ basis, subject to these Terms.
    4. Customer assumes sole and exclusive responsibility to carry out such actions as it deems appropriate as a result of the Output Data. The Company has no responsibility or liability, regarding Customer’s reliance upon, or use of, the Output Data, Customer’s actions or omissions in connection with the Output Data, or any consequences resulting therefrom.
    5. Customer agrees to indemnify and hold harmless the Company and its directors, officers, employees, and subcontractors, upon the Company’s request and at Customer’s own expense, from, and against, any damages, loss, costs, expenses and payments, including reasonable attorney’s fees and legal expenses, arising from any third party complaint, claim, plea, or demand in connection with breach of section 4.1.3 above.
  5. Fees
    1. In consideration of the provision of the Service to Customer, Customer will pay Company as further set forth in the applicable Subscription Form.  
    2. Payments will be made via wire transfer, to the Company’s designated bank account, the details of which the Company shall separately convey to Customer, or as otherwise may be agreed in the Subscription Form. Customer shall add to all fees due herein any Taxes. Taxes shall be borne and paid by Customer as they become due. If applicable laws require that taxes be withheld by Customer from any amounts due to the Company under this Agreement, then Customer shall gross-up the fees up accordingly so that the Company actually receives the fees listed above.
    3. Customer is responsible for paying all Fees applicable to the subscription to the Service, whether or not Customer actively used, accessed or otherwise benefited from the Service.
    4. Failure to settle any overdue Fee within fifteen (15) calendar days of its due date will constitute a material breach of these Terms. Without derogating from any other rights and remedies available to the Company under applicable law, overdue Fees will accrue interest at the rate of one percent (1%) per month or part thereof, cumulative monthly on the linked capital from the due date until the date of actual payment. Customer will reimburse the Company for all legal costs and attorney fees that the Company incurs in the course of collecting Customer’s overdue fees.
  6. Restrictions
    1. Customer may not modify, make derivative works of, disassemble, de-compile or reverse engineer any binary-code part of the Service, or otherwise attempt to discover its underlying code, structure, implementation or algorithms.
    2. Customer may not use the Service in order to develop, or create, or permit others to develop or create, a product or service similar or competitive to the Service.
    3. Customer may not offer the Service to third parties, including by reselling, licensing, renting, leasing, transferring, lending, timesharing, assigning or redistributing the Service or any part thereof.
    4. Customer may not perform or attempt to perform any of the following in connection with the Service:
      1. Breaching the security of the Service, identifying, probing or scanning any security vulnerabilities in the Service,
      2. Accessing data not intended for Customer;
      3. Interfering with, circumventing, manipulating, overloading, impairing or disrupting the operation, or the functionality of the Service;
      4. Working around any technical limitations in the Service;
      5. Using any tool to enable features or functionalities that are otherwise disabled, inaccessible or undocumented in the Service;
    5. CUSTOMER MAY NOT USE THE SERVICE FOR ANY ACTIVITY THAT CONSTITUTES, OR ENCOURAGES CONDUCT THAT WOULD CONSTITUTE, A CRIMINAL OFFENSE, GIVE RISE TO CIVIL LIABILITY OR OTHERWISE VIOLATE ANY APPLICABLE LAW.
  7. Term and Termination
    1. Unless otherwise specified in the applicable Subscription Form, these Terms commence upon the Effective Date and will continue for a period of twelve (12) months thereafter, at which point the Terms will automatically renew for an additional twelve (12) months period, if not otherwise terminated earlier pursuant to this section 7 or if a Party has given a notice of non-renewal at least thirty (30) days prior to the end of the period.
    2. In addition to the foregoing, either party may terminate these Terms:
      1. In the event of a breach of these Terms by the other party, where the breach remains uncured for fifteen (15) days following written notice thereof from the non-breaching party to the breaching party;
      2. If the terminating party is required to do so by law; and
      3. If the other party is declared insolvent or bankrupt, is the subject of any proceeding related to its liquidation or insolvency (whether voluntary or involuntary), or makes an assignment for the benefit of creditors or takes or has taken against it any such other comparable action in any relevant jurisdiction.
    3. Immediately upon termination of these Terms, Customer must cease any and all use of the Service.
    4. Sections in these Terms that by their purpose of nature should survive termination of these Terms, will so survive.
  8. Software quality; Software modifications; Disclaimer of Warranty and Limitation of Liability
    1. Company will endeavor to have the Service operate properly. However, as a service that relies on software, artificial intelligence, predictive algorithms and third-party networks and continuous internet connectivity, the Company does not guarantee that the Service will operate in an uninterrupted or error-free manner, or that it will always be available, free from errors, omissions or malfunctions.
      If the Company receives notice of any failure or malfunction, or if the Company becomes aware of them by itself, the Company will attempt to regain the Service’s availability as soon as practicable. However, such incidents will not be considered a breach of these Terms.Even though the Company makes an effort to have the Service identify Anomalies, the Company cannot and does not guarantee that the Service will detect, identify, alert, or prevent any Anomaly. The Company will not be liable for any Anomaly detected or not detected by the Service.The Service does not constitute medical advice. Although the Service may alert Customer of an Anomaly detected in a particular Client, any reports provided to Customer are for informational purposes only and do not constitute a diagnosis or treatment. Customer remains responsible at all times for the diagnoses, treatment, and care of its Clients.
    2. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND EXCEPT IN THE EVENT OF THE COMPANY’S INTENTIONAL MISCONDUCT OR BREACH OF A PARTY’S INTELLECTUAL PROPERTY RIGHTS, THE COMPANY, INCLUDING ITS EMPLOYEES, DIRECTORS, OFFICERS, SHAREHOLDERS, ADVISORS, AND ANYONE ACTING ON ITS BEHALF, WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, STATUTORY OR PUNITIVE DAMAGES, LOSSES (INCLUDING LOSS OF PROFIT, LOSS OF BUSINESS OR BUSINESS OPPORTUNITIES AND LOSS OF DATA), COSTS, EXPENSES AND PAYMENTS, EITHER IN TORT, CONTRACT, OR IN ANY OTHER FORM OR THEORY OF LIABILITY (INCLUDING NEGLIGENCE), ARISING FROM, OR IN CONNECTION, WITH THESE TERMS, ANY USE OF, OR THE INABILITY TO USE THE SERVICE, ITS ANOMALY DETECTION FEATURES, OR THE OUTPUT DATA, ANY RELIANCE UPON THE OUTPUT DATA OR THE ANOMALY DETECTION FEATURES IN THE SERVICE, OR ANY ERROR, INCOMPLETENESS, INCORRECTNESS OR INACCURACY OF THE SERVICE, ITS ANOMALY DETECTION FEATURES, OR THE OUTPUT DATA.TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND EXCEPT IN THE EVENT OF THE COMPANY’S INTENTIONAL MISCONDUCT, THE TOTAL AND AGGREGATE LIABILITY OF THE COMPANY AND ITS EMPLOYEES, DIRECTORS, OFFICERS, SHAREHOLDERS, ADVISORS, AND ANYONE ACTING ON THEIR BEHALF, FOR DAMAGES ARISING OUT OF OR RELATED TO THESE TERMS, THE SERVICE OR THE OUTPUT DATA, SHALL BE LIMITED TO THE FEES CUSTOMER HAS ACTUALLY PAID THE COMPANY IN THE TWELVE MONTHS PRECEDING THE EVENT PURPORTEDLY GIVING RISE TO THE CLAIM.
    3. THE SOFTWARE IS PROVIDED TO CUSTOMER “AS IS”. THE COMPANY DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS, EITHER EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICE, THE ANOMALY DETECTION FEATURE OR THE OUTPUT DATA, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, NON-INFRINGEMENT, TITLE, SECURITY, COMPATIBILITY OR PERFORMANCE.
  9. Support and maintenance
    1. During the Term, the Company, either directly or with the assistance of third parties, may provide Customer technical support for technical questions, problems and inquiries regarding the Service, during the Company’s business days and hours, and pursuant to the support scheme, hours and channels separately conveyed to Customer.
    2. The Company will attempt to respond to Customer’s technical questions, problems and inquiries within a reasonable time. However, the Company –
      1. May decline to provide such support for matters that the Company deems, at its discretion, to require unreasonable time, effort, costs or expenses;
      2. Make no warranties to any specific response-time or to the successful or satisfactory resolution of the question, problem or inquiry.
    3. For the purpose of the provision of technical support for Customer’s technical questions, problems and inquiries, Customer will cooperate, and work closely with the Company, to reproduce malfunctions, including conducting diagnostic or troubleshooting activities, as the Company reasonably requests. Customer agrees to cooperate and perform such requested modifications.
  10.  Confidentiality
    1. Customer acknowledge that these Terms, any agreement to which these Terms are incorporated, the Service, including any past, current and future releases of the Service’s Platform, Software, features, architecture, layout, implementation and interfaces, but excluding Customer’s Data, any correspondence regarding the Service, including but not limited to promotional emails and emails regarding new product features, constitute valuable proprietary confidential information of the Company (“Confidential Information”), and that unauthorized disclosure of such Confidential Information is prohibited and could cause irreparable harm to the Company.
    2. Customer must hold such Confidential Information in confidence using the same degree of care, but in no case less than a reasonable degree of care, that Customer use to prevent the unauthorized dissemination or publication of its own confidential information. Customer may use this Confidential Information only for the purpose of utilizing the Service as permitted hereunder and except as explicitly otherwise provided herein, Customer may not disclose Confidential Information to any third party, including but not limited to any of its affiliates or any other corporate entities which Customer may now control or establish in the future, or demonstrate or present Confidential Information provided to Customer as part of the Service, without the Company’s prior written consent.
    3. The obligations set forth in this section shall not apply to information that: (i) is now or subsequently becomes generally available in the public domain through no fault or breach of Customer; (ii) Customer can demonstrate in your prior established records to have had rightfully in your possession prior to disclosure of the same by the Company; (iii) Customer can demonstrate by written records that you had rightfully obtained the same from a third party who has the right to transfer or disclose it, without default or breach of confidentiality obligations; (iv) the Company has provided its prior written approval for disclosure; or (v) Customer is required to disclose pursuant to a binding order or request by court or other governmental authority, or a binding provision of applicable law, provided that, to the extent permissible, Customer shall provide the Company notice of the requested disclosure as soon as practicable, to allow the Company, if it so chooses, to seek an appropriate protective or preventive order.
    4. Concurrently with this Agreement, the Parties agree to enter into the Business Associate Agreement attached hereto as Appendix A and incorporated herein, or any other Business Associate Agreement which the parties may enter into, and comply with all of its terms and conditions with respect to the treatment of Protected Health Information, and if any provision hereof is potentially or actually in conflict with the provisions of the Business Associate Agreement with respect to the treatment of Protected Health Information, the terms of the Business Associate Agreement shall prevail.
  11.   Intellectual Property.
    1. The Service is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. The Service is solely made available for use and access by Customer on a subscription basis in accordance with the Subscription Order and these Terms.
    2. Except for Customer’s limited access to use the Service and the Output Data according to these Terms, these Terms do not grant Customer or assign to Customer, any license, right, title, or interest in or to the Service or the intellectual property rights associated with it. All rights, title and interest, including copyrights, patents, trademarks, trade names, trade secrets and other intellectual property rights, and any goodwill associated therewith, in and to the Service or any part thereof, including computer code, graphic design, layout and the user interfaces of the Service, are and will remain at all times, owned by, or licensed, to the Company.
    3. The Company may indicate on its website and in other online and offline publications and communications that the Customer is a client of the Company and the Service. In connection with the foregoing, Customer hereby grants to the Company, only during the Term of this Agreement, a limited, non-transferable and non-sublicense-able right to use any proprietary marks, trade names, marketing slogans and logos that Customer may adopt from time to time, solely in connection with and for the purpose of the preceding sentence. In such instances of use, the Company will follow Customer’s branding guidelines which Customer informs the Company of in advance.
  12. Dispute Resolution; Governing Law and Venue.
    1. This Agreement shall be governed and construed solely in accordance with the laws of the State of New York without giving effect to conflicts of law principles thereof.
    2. The Parties will use reasonable efforts to resolve any dispute arising out of this Agreement through discussion between the appropriate personnel from each Party. If Parties are unable to resolve the dispute, either Party may escalate the dispute to its executives. If an executive level meeting fails to resolve the dispute within thirty (30) days after escalation, either Party may seek any available legal relief. This provision will not affect either Party’s right to seek injunctive or other provisional relief at any time.
    3. Any dispute arising out of or in connection with this Agreement, including any question regarding its existence, validity or termination, which the Parties cannot amicably resolve pursuant to the foregoing, shall be exclusively referred to the courts located in New York County, New York.
  13. Assignment. Customer may not assign these Terms without the Company’s prior written consent. Any purported assignment without the Company’s prior written consent is void. To the greatest extent permissible by law, the Company may assign these Terms, including all right, duties, liabilities, performances and obligations herein, upon notice to Customer, to a third-party, upon a merger, acquisition, change of control or the sale of all or substantially all of the Company’s equity or assets. By virtue of such assignment, the assignee assumes the Company’s stead, including all right, duties, liabilities, performances and obligations hereunder, and the Company is released therefrom.
  14. Relationship of the parties.The relationship between the parties hereto is strictly that of independent contractors, and neither party is an agent, partner, joint venturer or employee of the other.
  15. Complete Terms and Severability.These Terms, together with a BAA, constitute the entire and complete agreement between Customer and the Company concerning the subject matter herein. These Terms supersede all prior oral or written statements, understandings, negotiations and representations with respect to the subject matter herein. If any provision of these Terms is held invalid or unenforceable, that provision shall be construed in a manner consistent with the applicable law to reflect, as nearly as possible, the original intentions of the parties, and the remaining provisions will remain in full force and effect. These Terms may be modified or amended only in writing, signed by the duly authorized representatives of both parties.
  16. No waiver.Neither party will, by mere lapse of time, without giving express notice thereof, be deemed to have waived any breach, by the other party, of any terms or provisions of these Terms. The waiver, by either party, of any such breach, will not be construed as a waiver of subsequent breaches or as a continuing waiver of such breach.
  17. Counterpart signatures.This Agreement may be executed in any number of counterparts, each of which shall be deemed an original and enforceable against the Parties actually executing such counterpart, and all of which together shall constitute one and the same instrument.

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