Definitions:

“Agreement”: Has the meaning set out in Section 14;

“Contract Period”: The period set out in Section 2;

"Fee”: The total amount set out in the Order*;

“Leased Devices”: NeckCare Devices leased to Customer pursuant to Section 4;

“NeckCare”: NeckCare Enterprises, Inc., 520 Nicollet Mall, Ste 710, Minneapolis, MN 55402

“NeckCare™ Device”: The NeckCare™ headgear with a Bluetooth-enabled sensor that includes an accelerometer and a gyroscope;

“NeckCare™ System”: The NeckCare Device and the Software;

“NeckCare™ Software”: A web platform accessible at us.necksmart.app, used to conduct NeckCare assessments;

“Order”: A quote issued by NeckCare and signed by Customer, or a completed online order form including an order summary;

“Terms”: These Purchase Terms, as amended from time to time.

1. GENERAL TERMS

By placing an Order or otherwise using the NeckCare™ System, the Customer agrees to be bound by the Terms for the NeckCare™ System. Any action from the Customer specifying its wish to purchase the NeckCare™ System after having received these Terms, such as submitting an Order, shall be considered actively consenting to these Terms.

2. SUBSCRIPTION

By paying the Fee* above (excluded applicable taxes), the Customer will be granted the right to use the NeckCare™ System. The Contract Period starts at the date of implementation and, renews every month until cancelled, or alternatively, terminates on a date set out in the Order.

3. PURCHASE OF DEVICES

Title to purchased NeckCare™ Devices shall remain vested in NeckCare and shall not pass to the Customer until the purchase price for the devices has been paid in full and received by NeckCare. Irrespective of whether title to the NeckCare™ Devices remains vested in NeckCare, risk in the devices shall pass to the Customer upon delivery.

NeckCare Enterprises, Inc.

520 Nicollet Mall, Ste 710

Minneapolis, MN 55402

Devices may be returned for a full refund within thirty (30) days of delivery provided they are in unopened and undamaged original packaging. NeckCare™ Systems which are defective or arrive damaged will be replaced free of charge.

4. LEASE OF DEVICES

NeckCare will lease NeckCare™ Devices to Customer for the Contract Period upon request. The Leased Devices shall at all times remain the property of NeckCare, and the Customer shall have no right, title, or interest in or to the Leased Devices, except the right of possession and use during the Contract Period.

NeckCare shall deliver the Leased Devices to Customer. Risk of loss, theft, damage or destruction of the Leased Devices shall pass to the Customer upon delivery. The Leased Devices shall remain at the sole risk of Customer during the Contract Period and any further term during which the Leased Devices are in the possession, custody or control of Customer until such time as the Leased Devices are redelivered to NeckCare.

Customer shall during the Contract Period:

• ensure that the Leased Devices are kept and operated in a suitable environment, used only for the purposes for which they are designed, and operated in a proper manner by trained competent staff in accordance with any operating instructions provided by NeckCare;

• maintain at its own expense the Leased Devices in good and substantial repair in order to keep them in as good an operating condition as they were when delivered (fair wear and tear only excepted) including replacement of worn, damaged and lost parts, and shall make good any damage to the Leased Devices;

• make no alteration to the Leased Devices and shall not remove any existing component (or components) from the Leased Devices unless the component is replaced immediately (or if removed in the ordinary course of repair and maintenance as soon as practicable) by the same component or by one of a similar make and model or an improved or advanced version of it. Title in all substitutions, replacements, renewals made in or to the Leased Devices shall vest in NeckCare immediately on installation;

• not part with control of, sell or offer for sale, underlet or lend the Leased Devices or allow the creation of any mortgage, charge, lien or other security interest in respect of them;

• not suffer or permit the Leased Devices to be confiscated, seized or taken out of its possession or control under any distress, execution or other legal process, but if the Leased Devices are so confiscated, seized or taken, Customer shall notify NeckCare and Customer shall at its sole expense use its best endeavours to procure an immediate release of the Leased Devices and shall indemnify NeckCare on demand against all losses, costs, charges, damages and expenses incurred as a result of such confiscation; and

• not use the Leased Devices for any unlawful purpose.

No later than thirty (30) days after the expiry of the Contract Period, Customer shall deliver any Leased Devices to:

NeckCare Enterprises, Inc.

520 Nicollet Mall, Ste 710

Minneapolis, MN 55402

(or to such other address as may be subsequently be specified by NeckCare). Leased Devices not returned within the aforementioned period will be invoiced to Customer at a price of $1,500* per unit.

5. INVOICING

a. Details. All invoices are sent to the email address which has been provided by Customer.

b. Pricing. All prices are subject to change and NeckCare reserves the right to change any prices without further notice.

c. Failure to pay. In the event that an invoice becomes overdue, NeckCare will notify Customer by phone or email. After NeckCare has provided notice, Customer will have five business days to pay the overdue invoice. If Customer fails to make the payment by the end of the notice period, then NeckCare reserves the right to suspend provision of the NeckCare™ System until payment has been made. A late payment penalty of 5% per month will apply to any outstanding balances.

6. USE OF THE NECKCARE SYSTEM

a. Ownership of intellectual property rights. NeckCare owns and shall remain the sole owner of all intellectual property rights vested in the NeckCare™ System created prior to or during the performance by the parties of this Agreement. This ownership right includes any inventions, patents, rights in computer software, database rights, utility model rights, copyrights, design rights, mask works, trademark rights, trade names, or knowhow, whether registered or not.

b. Right to Use. NeckCare grants to the Customer a right to use the NeckCare™ System on a worldwide, revocable, non-exclusive, non-perpetual and non-transferable basis. Customer has no right to retain or to use the NeckCare™ System after cancellation notice has lapsed. Customer can create an unlimited number of users to the NeckCare™ System. This right includes updates and new releases of the NeckCare™ Software but not new modules/services/products added to the NeckCare™ System.

c. Limitations of use. Customer has no right to rent, lease, assign, transfer, sublicense, display or otherwise distribute or make the NeckCare™ System available to any third party, unless specifically stated in Section 12 (Assignability). The NeckCare™ System may not be (a) used in the performance of services for or on behalf of any third party or as a service bureau; (b) modified, incorporated into or combined with other software, or created as a derivative work of any part of the NeckCare™ System; or (c) used for any illegal purpose. Customer may not modify, disassemble, decompile or otherwise reverse engineer the NeckCare™ System (or any part thereof) nor permit any third party to do so except as expressly permitted by law. 

d. Indemnification. NeckCare will indemnify and hold the Customer harmless from all third party claims that use of the NeckCare™ System constitutes an infringement of any third party intellectual property right(s), unless such claim is based on Customer´s wrongful or illegitimate use of the NeckCare™ System. The foregoing states the entire liability of NeckCare and the sole and exclusive remedy for Customer with respect to any third party claim of infringement or misappropriation of intellectual property rights.

7. DATA & PRIVACY

a. Data processing. The NeckCare™ System is designed and developed to collect and process our Customers’ patients’ assessment tests. Any personal data processed by NeckCare when providing the NeckCare™ System is processed according to the Customer's instructions and on its behalf.

b. Customer Consent. Other than the processing of Customer’s data under 7(a), NeckCare collects some general information about NeckCare users and contact persons employed by Customer, such as the names and emails of the NeckCare users, for internal necessary purposes such as customer identification, invoicing, support and marketing of NeckCare products to Customer. In this regard, NeckCare will be the data controller and the Customer acknowledges and agrees that general Customer and user information collected for NeckCare’s internal use may be stored in NeckCare’s CRM, HubSpot, hosted in the United States. The Customer has the right to access, correct, modify and erase any personal data provided by the Customer to NeckCare. To exercise these rights, contact privacy@neckcare.com .

c. Customer Data. All data provided to NeckCare through the use of the NeckCare™ System is and shall remain Customer property. NeckCare does not sell or other way provide any information processed this way to any third party. To enable NeckCare to provide Customer with the NeckCare™ System, and subject to these Terms, Customer hereby grants to NeckCare a non-exclusive right to use and process data provided by Customer solely in connection with NeckCare’s operation of the NeckCare™ System on Customer’s behalf.

d. Customer Usage Data. The NeckCare™ System collects certain information about how the users of our customers access and use the NeckCare™ Software. This data is purely for NeckCare’s internal use for various purposes such as assessing and improving general customer experience of our tools, including the ability to offer better support to the customers if needed.

8. LIMITATION OF LIABILITY

Each Party shall only be liable for direct damages. As such, each party shall not be liable to the other party for any indirect, special, incidental, consequential, and/or punitive damages caused by Customers use of the NeckCare™ System, including, but not limited to, loss of data, loss of profits, revenues and/or business or other loss arising out of or resulting from this agreement even if it has been advised of the possibility of such damages. Furthermore, in no event shall a party’s cumulative liability under this agreement exceed the annual amount of the Fee.

9. WARRANTY

NeckCare warrants to the Customer, for a period of 12* months from delivery, that (i) the NeckCare™ Software will perform substantially as described in this Agreement, provided that it is used in accordance with the Agreement, and (ii) that sold or leased NeckCare™ Devices are free of defects in material and workmanship. NeckCare will, during this period, replace defective NeckCare™ Devices at no cost to Customer, and remedy significant errors in the NeckCare™ Software with updates, patches, statements of procedures and/or manners of application.

The warranty does not cover damage or failure due to negligence, alteration, abuse, improper use, or use for a purpose for which the NeckCare™ System is not designed. The warranty is made to the Customer and may not be assigned or otherwise transferred to any subsequent purchaser or user of the NeckCare™ System. Upon any such transfer, the warranty shall become void and NeckCare shall thereafter have no further obligation or liability with regard thereto.

The above warranty is in lieu of and excludes all other warranties or guarantees, whether express, implied or otherwise. No oral or written information or advice given by either party will create a representation or warranty. Specifically, NeckCare makes no representations or warranties with regard to the use of the NeckCare™ System for the purpose of ensuring Customer compliance with any laws or regulations.

10. TERMINATION

a. Termination without cause. After an initial period of twelve (12) months, either party may terminate this Agreement at any time for its convenience by giving at least a prior 90 days written notice to the other party.

b. Termination with cause. Without affecting any other right or remedy available to it, either party may terminate this Agreement, with immediate effect in the event of a material breach by the other party. Material breach shall include: (i) any violation of the terms of Sections 5(c), 6(b-d), 11, and/or 12; (ii) any other breach that a party has failed to cure within fourteen (14) calendar days after receipt of written notice by the other party; (iii) an act of gross negligence or willful misconduct of a party; and (iv) the insolvency, liquidation or bankruptcy of a party.

c. Reimbursement. In case of Customer termination under Section 10(a), Customer remains liable for payment of all Fees owed (and, if applicable, the return of all Leased Devices) and will not be entitled to a credit or refund. This also applies should NeckCare terminate under Section 10(b). In case of termination by NeckCare under Section 10(a), Customer is entitled to a pro-rated refund corresponding to the remaining period of the term.

11. CONFIDENTIALITY

Each of the parties agrees to (a) maintain in confidence any non-public information of the other party, whether written or otherwise, disclosed by the other party in the course of performance of this Agreement (‘Confidential Information’); (b) use its best endeavors to protect Confidential Information in accordance with the same degree of care with which it protects its own Confidential Information; and (c) not disclose the other party’s Confidential Information to any third party, except in response to a valid order by a court or other governmental body or as required by law. The receiving party will promptly give notice to the disclosing party of any disclosure of the other party’s Confidential Information.

12. ASSIGNABILITY

This Agreement is binding upon and will only benefit the parties. Except as otherwise expressly provided in this Agreement, neither party may assign, transfer, convey or encumber this Agreement or any rights granted in it without the prior written consent of the other party (such consent not to be unreasonably withheld). Notwithstanding the foregoing, a party shall have the right to assign this Agreement to its affiliates or to a successor entity in the event of a merger, consolidation, transfer, stock purchase, provided the assignee is subject to all obligations of the Agreement.

13. LAW & DISPUTE RESOLUTION

These terms and any dispute in relation to the NeckCare™ System, or the Customers use hereof will be governed by and construed in accordance with the laws of the state of Minnesota, USA. In the event of any suit or proceeding arising out of or related to this Agreement, the courts of the state of Minnesota, USA, will have exclusive jurisdiction.

14. RELATION TO OTHER DOCUMENTS

These Terms, together with the Order, the Website Terms of Use, and the Privacy Policy, constitutes the entire agreement (“Agreement”) between the parties and supersedes any prior communications, commitments, or agreements, oral or written, with respect to the subject matter of these Terms. Any other standard or boilerplate terms and conditions included in any document provided by one party to another (e.g., click-wrap agreements and purchase orders) are not to be considered agreed upon and will not be binding on either party. Any changes or modifications to this Agreement must be in writing and signed before taking effect.

15. MINIMUM SYSTEM REQUIREMENTS

The computer operating the NeckCare™ Platform can be a PC or Mac (laptop or desktop) with screen requirement size:

• 7.7” or larger with each side 5.4” or longer

To run the NeckCare™ Platform, the following minimum system requirements apply:

• Windows 10 version 1706 (Windows) / OS X Yosemite (Mac)

• Bluetooth 5.0

• 8 GB RAM

To calibrate the NeckCare™ sensor a mobile device is needed (tablet or mobile phone):

• Android OS 8.0 / iOS 11.0 or newer

The NeckCare™ Platform is a web-based application and requires an internet network connection.

• The software is compatible with Google Chrome (version 56 or higher) and Microsoft Edge (version 79 or higher) web browsers.