Definitions:

“Agreement”: Has the meaning set out in Section 13;

“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 3;

“NeckCare”: NeckCare Enterprises Inc., 6385 Old Shady Oak Road, Suite #250, Eden Prairie, MN 55344

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

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

“NeckCare™ Platform”: A web platform accessible at app.neckcare.com, used to conduct NeckCare assessments;

"NeckCare™ Home": The web-based patient application accessible at exercises.neckcare.com, used by Customer's patients to perform exercises prescribed through the NeckCare™ Platform;

"NeckCare™ Products": The NeckCare™ System, NeckCare™ Home, and any other software or services provided by NeckCare under an Order;

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

“Terms”: These Terms of Sale, as amended from time to time in accordance with Section 13.

1. GENERAL TERMS

By placing an Order or otherwise using the NeckCare™ Products, the Customer agrees to be bound by the Terms for the NeckCare™ Products. Updated versions of these Terms take effect, and are accepted by Customer, as set out in Section 13(a).

2. SUBSCRIPTION

By paying the Fee above (excluding applicable taxes), the Customer will be granted the right to use the NeckCare™ Products. The Contract Period starts at the date of implementation and renews annually until cancelled.

3. 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:

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  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;

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  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;

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  Make no alteration to the Leased Devices and shall not remove any existing component (or components) from the Leased Devices;

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  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;

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  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

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  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.
6385 Old Shady Oak Road
Suite #250
Eden Prairie, MN 55344

(or to such other address as may 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.

4. INVOICING & BILLING

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

b. Billing. NeckCare may collect payments directly or via a third-party payment processor to bill Customer through a payment account linked to Customer’s NeckCare account. The processing of payments by a payment processor will be subject to the terms, conditions and privacy policies of such payment processor in addition to this Agreement. NeckCare is not responsible for any errors by a payment processor. By entering into this Agreement Customer agrees to pay NeckCare, either directly or through a payment processor, all Fees and other charges at the prices then in effect and in accordance with the applicable payment terms. Customer authorizes NeckCare, through a payment processor, to charge Customer’s chosen payment provider. NeckCare reserves the right to correct any errors or mistakes that NeckCare or a payment processor makes even if NeckCare or a payment processor have already requested or received payment.

c. Pricing. NeckCare may change its prices. A price change for an existing subscription takes effect at the start of Customer’s next renewal period, and NeckCare will notify Customer at least thirty (30) days in advance.

d. 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™ Products until payment has been made. Late payment interest of 1.5% per month, or the maximum rate permitted by law if lower, will apply to any overdue balances.

e. Recurring Billing. The subscription payment terms may consist of an initial period, for which there is a one-time charge, followed by recurring period charges as agreed to by Customer. By choosing a recurring payment plan, Customer acknowledges that such Fees have an initial and recurring payment feature and Customer accepts responsibility for all recurring charges prior to termination.

5. USE OF THE NECKCARE™ PRODUCTS

a. Ownership of intellectual property rights. NeckCare owns and shall remain the sole owner of all intellectual property rights vested in the NeckCare™ Products 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™ Products on a revocable, non-exclusive, non-perpetual and non-transferable basis. This right includes updates and new releases of the NeckCare™ Products but not new modules/services/products added to the NeckCare™ Products. Customer has no right to retain or to use the NeckCare™ Products after cancellation notice has lapsed. The number of users that the Customer may add to the NeckCare™ Products is determined by their subscription plan.

c. Limitations of use. Customer has no right to rent, lease, assign, transfer, sublicense, display or otherwise distribute or make the NeckCare™ Products available to any third party, unless specifically stated in Section 11 (Assignability). The NeckCare™ Products 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™ Products; or (c) used for any illegal purpose. Customer may not modify, disassemble, decompile or otherwise reverse engineer the NeckCare™ Products (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™ Products 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™ Products. 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.

6. DATA & PRIVACY

a. Data processing. The NeckCare™ Products are designed and developed to collect and process our Customers’ patients’ assessment tests. Any personal data processed by NeckCare when providing the NeckCare™ Products is processed according to the Customer's instructions and on its behalf, except as set out in Sections 6(b), 6(d) and 6(f).

b. Customer Consent. Other than the processing of Customer’s data under 6(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 and on NeckCare’s AWS servers, 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 info@neckcare.com.

c. Customer Data. All data provided to NeckCare through the use of NeckCare™ Products (“Customer Data”), whether before or after the effective date of these Terms, is and shall remain Customer property. NeckCare does not sell or otherwise provide any information processed this way to any third party, except (i) to subcontractors that need it to provide the NeckCare™ Products and are bound by written obligations at least as protective as these Terms and the BAA, (ii) as required by law, and (iii) De-identified Data as permitted under Section 6(f). To enable NeckCare to provide Customer with the NeckCare™ Products, and subject to these Terms, Customer hereby grants to NeckCare a non-exclusive right to use and process Customer Data solely (i) in connection with NeckCare’s operation of the NeckCare™ Products on Customer’s behalf, and (ii) to create De-identified Data in accordance with Section 6(f).

d. Customer Usage Data. The NeckCare™ Products collect technical and usage information about how Customer’s users access and use them (“Usage Data”). NeckCare may use Usage Data to operate, support, secure and improve the NeckCare™ Products. Usage Data that includes protected health information is Customer Data, is handled under the BAA, and is used for product improvement only after de-identification under Section 6(f).

e. Marketing Use of Customer Name and Logo. Customer grants NeckCare a non-exclusive, royalty-free right to use Customer’s name, logo, and trademarks in NeckCare marketing materials, including but not limited to its website, presentations, customer lists, and promotional content, solely to identify Customer as a user of the services. Such use will be in accordance with any reasonable brand guidelines provided by Customer and will not imply endorsement. NeckCare will not disclose any confidential information of Customer. Customer may revoke this permission at any time upon written notice.

f. De-identified Data. NeckCare may de-identify Customer Data in accordance with applicable law, including, where Customer Data constitutes protected health information, the de-identification standard at 45 C.F.R. § 164.514(b) (“De-identified Data”). De-identified Data does not identify any patient or other individual, and is not Customer property under Section 6(c). NeckCare may group De-identified Data by customer for internal analysis but will not disclose data identifying Customer to third parties without Customer's consent. NeckCare may use, disclose, license and sell De-identified Data, alone or combined with de-identified data from other customers, for its lawful business purposes, including to analyze, maintain and improve the NeckCare™ Products and services, to develop new products, features and reference values, to create aggregated statistics and benchmarks, and for research, and to commercialize De-identified Data or products derived from it. NeckCare will not attempt to re-identify, and will not permit any third party to re-identify, Customer or any individual from De-identified Data. NeckCare may disclose De-identified Data to third parties only (i) in aggregated form that does not identify Customer, such as in scientific publications or benchmark reports, or (ii) to research, development or commercial partners and licensees under a written agreement that prohibits re-identification of any individual or of Customer, and prohibits further disclosure except to parties bound by the same restrictions. This Section 6(f) survives termination of this Agreement.

7. 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™ Products, including, but not limited to, 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.

8. WARRANTY & RETURN POLICY

Return Policy: You may cancel your Agreement and return your NeckCare™ Device for any reason within thirty (30) days of receipt of your NeckCare™ Device for a full refund of your initial Fee, less return shipping costs. To request a refund, you must contact our support team at support@neckcare.com.

Lifetime Warranty. NeckCare warrants to the Customer that:

(i) the NeckCare™ Platform will perform substantially as described in this Agreement, provided that it is used in accordance with the Agreement

(ii) that sold or leased NeckCare™ Devices are free of defects in material and workmanship.

NeckCare will replace defective NeckCare™ Devices at no cost to Customer, and remedy significant errors in the NeckCare™ Platform with updates, patches, statements of procedures and/or manners of application.

This Lifetime Warranty is non-transferable. To be eligible for the Lifetime Warranty, you must:

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  Have an active subscription with no outstanding balance or any unpaid fees

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  Have a valid payment method on file

This Lifetime Warranty Does Not Cover

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  Damage or failure due to negligence, alteration, abuse, improper use, or use for a purpose for which the NeckCare™ Device is not designed.

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  Damage or failure due to accident, acts of God, unauthorized commercial use, abuse, neglect, theft, unusual atmospheric conditions;

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  Cosmetic damage;

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  Any unauthorized modification to the NeckCare™ Device;

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  Attempted repair by unauthorized persons or with any parts not originally intended for or compatible with the NeckCare™ Device.

The above warranty is in lieu of and excludes all other warranties or guarantees, whether expressed, 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™ Products for the purpose of ensuring Customer compliance with any laws or regulations.

9. TERMINATION

a. Termination without cause. Unless otherwise agreed, Subscription (clause 2) and Leased Device (clause 3) Agreements are active for 12 months at a time. Either party may terminate this Agreement at any time for its convenience by giving at least a prior 30 days written notice to the other party. Terminations will take effect at the end of the Agreement period.

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 4(d), 5(b-d), 10, and/or 11; (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 9(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 9(b). In case of termination by NeckCare under Section 9(a), Customer is entitled to a pro-rated refund corresponding to the remaining period of the term.

10. 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.

11. ASSIGNABILITY

This Agreement is binding upon Customer placing an Order, as per Section 1, 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.

12. LAW & DISPUTE RESOLUTION

These terms and any dispute in relation to the NeckCare™ Products, 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.

13. RELATION TO OTHER DOCUMENTS

These Terms, together with the Order, the BAA (as defined in Section 13(b)), the Terms of Use, and the Privacy Policy, constitute the entire agreement (“Agreement”) between the parties and supersede 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 are not to be considered agreed upon and will not be binding on either party. In the event of a conflict, the BAA prevails with respect to protected health information.

a. Update to these Terms. NeckCare may update these Terms from time to time. NeckCare will notify Customer of any material update at least thirty (30) days before it takes effect, by email to the address provided by Customer and/or by notice within the NeckCare™ System. The updated Terms take effect on the date stated in the notice. Customer's continued use of the NeckCare™ Products after that date constitutes Customer's acceptance of the updated Terms, and no signature or other action by Customer is required. If Customer does not agree to an update, Customer may, notwithstanding Sections 9(a) and 9(c), terminate this Agreement by written notice before the update takes effect, and NeckCare will refund, on a pro-rated basis, any prepaid Fees for the period after termination.

b. Business Associate Agreement. Where Customer is a covered entity under HIPAA, NeckCare's processing of protected health information is governed by a business associate agreement ("BAA") as follows: (i) if Customer has signed a separate business associate agreement with NeckCare, that agreement is the BAA and the NeckCare Business Associate Addendum does not apply; and (ii) otherwise, the NeckCare Business Associate Addendum is the BAA, forms part of this Agreement, and takes effect for Customer on the date on which these Terms take effect for Customer. NeckCare may update the NeckCare Business Associate Addendum in the same manner as these Terms under Section 13(a). Where the BAA does not permit NeckCare to de-identify protected health information, Section 6(f) applies to Customer Data only to the extent permitted by the BAA.

14. MINIMUM SYSTEM REQUIREMENTS

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

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  7.7” or larger with each side 5.4” or longer

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

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  Supported versions of Windows and macOS, receiving security updates from the manufacturer

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  Modern web browser that automatically updates to the latest version

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  Bluetooth 5.0

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  8 GB RAM

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

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  A mobile device running supported versions of iOS and Android, receiving security updates from the manufacturer

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