Master Terms & Conditions

PLEASE READ THIS CAREFULLY. THIS MASTER TERMS AND CONDITIONS (THIS “AGREEMENT”) CONTAINS ALL OF YOUR RIGHTS AND OBLIGATIONS AS A PURCHASER OF DEVICES AND ASSOCIATED SERVICES AS DESCRIBED HEREIN. THIS AGREEMENT WILL APPLY WHETHER YOU ARE A PHYSICIAN OR OTHER LICENSED HEALTH CARE PROVIDER, MEDICAL PRACTICE, MEDICAL SCHOOL OR OTHER AUTHORIZED END-USER OR A DISTRIBUTOR OF THE DEVICES AND SERVICES (EACH AS DEFINED BELOW), ALTHOUGH CERTAIN TERMS AND CONDITIONS HEREIN WILL BE APPLICABLE ONLY TO CERTAIN CLIENTS AS EXPRESSLY SET FORTH IN THIS AGREEMENT.  BY CLICKING “ACCEPT,” YOU ARE AGREEING TO BE LEGALLY BOUND AND TO BECOME A PARTY TO THIS AGREEMENT. THIS AGREEMENT IS EFFECTIVE AS OF THE DATE THAT YOU CLICK “ACCEPT” (THE “EFFECTIVE DATE”) AND VAVE HEALTH, INC.’S OFFER TO SELL THE DEVICES OR PROVIDE THE SERVICES (EACH AS DEFINED BELOW) IS EXPRESSLY CONDITIONED UPON YOUR ACCEPTANCE OF THIS AGREEMENT.

For purposes of this Agreement, Vave Health, Inc., will be referred to as “Vave Health” and you, or the entity on whose behalf you are acting, will be referred to as “Client.” Vave Health and Client may each be referred to as a “Party” and collectively as “Parties.”

WHEREAS, Vave Health is a company that provides portable ultrasound imaging probes (the “Devices”) and hosted software services (the “Services”) for viewing, using and storing the ultrasound images and imaging studies for various medical diagnostic purposes, research and education;

WHEREAS, Client is (a) a physician or other licensed health care provider, medical practice, medical school or other authorized user or (b) an approved distributor of the Devices and Services; and

WHEREAS, Vave Health desires to sell the Devices and/or provide the associated Services to Client and Client desires to purchase the Devices and/or receive the associated Services from Vave Health.

NOW, THEREFORE, in consideration of the mutual promises contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:

1. SCOPE OF SERVICES
   1. Services. Subject to the terms of this Agreement and payment of the amounts due under the Quotation issued by Vave Health, or such other document as may be mutually agreed to by the Parties (hereinafter, the “Quotation”), Vave Health will provide Client with access to an agreed upon specified number of End Users (as defined herein), to use the Services. The Services shall include the hosted, on demand Web-based provision of applications, application programming interfaces, and platform services provided by Vave Health, which is accessed from Client owned and/or controlled computer systems via the Internet (“Vave Cloud”) and the associated mobile application, which is installed on Client or end user owned and/or controlled mobile devices (“Vave Health App”). The “Documentation” means documentation describing the design, features, use of and functionality of the Services and Devices, including any other documentation provided by Vave Health to Client in connection with the Services. The Services together with Support Services (as defined below) and any Professional Services (as defined below), are collectively, the “Services.” Only a Client that is fully paid up and its designated employees and agents (“End Users”) may access and use the Services. Client is permitted to terminate and re-designate individual employees and agents as authorized End Users, provided that the total number of End Users does not exceed the number specified in the Quotation. Client and End Users are expressly prohibited from authorizing the sharing of login credentials, sharing login credentials with unauthorized individuals, or otherwise making the Services available to more than the number of End Users specified in the Quotation or to any persons not presently designated as an authorized End User. All use of the Services by End Users is subject to the restrictions set forth in Exhibit A (End User Agreement). Client shall be responsible for ensuring that End Users execute such End User Agreement prior to such End User receiving access to the Services and any Devices.
   2. Support Services. Subject to the terms of the Quotation, including any termination of such Services, Vave Health will provide to Client reasonable technical support, maintenance, and generally available updates (the “Support Services”). Client shall not contract with or otherwise allow a third party to provide assistance or support for the Services or Devices without the prior written consent of Vave Health.
   3. Professional Services. From time to time, Client may engage Vave Health to provide certain professional services (“Professional Services”), such as for training, implementation or customization of the Services. Fees for Professional Services will be based on Vave Health’s then applicable Professional Services rates. Each such engagement of Professional Services will be described in a Statement of Work that must be accepted by an authorized representative of each Party. In the event of a conflict between the terms provided in this Agreement and the terms of any Statement of Work, the terms of this Agreement will prevail, except that the terms of the Statement of Work shall prevail over conflicting terms of this Agreement (but only with respect to such applicable Statement of Work) where the Statement of Work explicitly identifies such conflicting terms and confirms the intent of the Parties to supersede or modify the conflicting term of this Agreement.
   4. Changes to Services. Vave Health may modify or delete any features of the Services at any time in any manner that: (i) is not reasonably expected to have a material adverse impact on the Services or (ii) may be necessary to meet any applicable legal, regulatory, or industry-standard requirements or demands. Vave Health shall use commercially reasonable efforts to notify Client as promptly as practicable of such changes to the Services that could reasonably be expected to have a material adverse impact on the Services.
   5. System Monitoring. Vave Health expressly reserves the right to monitor any and all use of the Services, including certain performance characteristics of the Devices. Vave Health may gather system data for the purpose of optimizing the Services. This information includes, but is not limited to, data regarding memory usage, connection speed and efficiency, as well as temperature, battery and other Device characteristics. Vave Health shall have no obligation to monitor the Client Data, but reserves the right to monitor the Services for purposes of verifying compliance with the terms of this Agreement.
2. DEVICES & ADDITIONAL TERMS

The portable ultrasound imaging probes (if any) set forth in the Quotation, which Client desires to purchase from Vave Health and which Vave Health agrees to sell to Client, are collectively referred to herein as the “Devices.” The Devices will be connected to Client’s or an End User’s smartphone in order to enable the use of the Services, which includes the ability to immediately view the ultrasound image and any other Client Data (as defined below) and upload such Client Data for viewing, use and storage. Only Client and its designated End Users may access and use the Devices; provided, that in no event shall a Client that is a distributor of the Devices or any of its employees or agents be permitted to access and use the Devices except to the extent permitted in connection with the inspection thereof, as set forth on Exhibit B. The additional terms and conditions that apply to Purchased Devices (if any) are set forth on Exhibit B hereto, which is incorporated and made a part of this Agreement. In the event of a conflict between the terms provided in this Agreement and the terms of Exhibit B, the terms of this Agreement will prevail, except that the terms of Exhibit B shall prevail over conflicting terms of this Agreement if and to the extent Exhibit B explicitly identifies such conflicting terms and confirms the intent of the Parties to supersede or modify the conflicting term of this Agreement.

3. QUOTATION — FEES AND PAYMENT
   1. Fees. Client shall pay all amounts due for the Devices and permitted use of the Services as set forth in the Quotation. No third-party pass-through fees, direct fees, or any other transaction costs, are included; Client is solely responsible for payment of any such fees and costs.
   2. Payment. Client will be charged for the Devices and permitted use of the Services consistent with the Quotation. Client shall pay any applicable state, federal, or other sales and use taxes that may be associated with the purchase of the Devices and Services under this Agreement, and Vave Health may collect all applicable sales taxes. If Client claims tax-exempt status, Client will provide Vave Health with documentation of such status. If applicable, all reasonable and customary travel related expenses, such as airfare, hotel, transportation, and meals will be charged to Client for any on-site work performed under this Agreement. If travel expenses are incurred, Vave Health will make reasonable efforts to keep travel costs to a minimum.
   3. Payment Disputes. If Client has a good faith dispute regarding payment for a particular Device or Service, such dispute shall not entitle Client to withhold payment for any other Device or portion of Service.
   4. Discount Disclosure. The dollar value of the discounts or other reductions in price pursuant to this Agreement, if any, and any other items and services not paid for by Client and received by Client under this Agreement are “discounts and other reductions in price” under Section 1128B(b)(3)(A) of the Social Security Act (42 U.S.C.§ 1320-a-7b(b)(3)(A)), as amended. It is the intent of the parties to comply with the Anti-kickback Law and “Discount Safe Harbor” set forth at 42 C.F.R.§ 1001.952(h) and all successor and similar applicable laws. The Discount Safe Harbor requires that certain discounts be reported and/or passed on to Federal and State health care programs, such as Medicare and Medicaid. Client understands and agrees it must properly disclose the discounts or reductions in price, and reflect such discounts or reductions in price in the costs claimed or charges made, under any Federal or State health care program which provides cost or charge-based reimbursement to Client for the items and services covered by this Agreement. Client shall be solely responsible for determining whether the savings or discounts it receives must be reported or passed on to payors.
4. DATA PRIVACY
   1. Obligations. Client acknowledges and agrees that Vave Health does not require any specific data from Client or End User, that Client and End User controls the content of any Client Data (as defined below) that is inputted, transmitted, uploaded, transferred, submitted, disclosed, processed, collected, stored, replicated or in any other way accessed or used through the use of the Services, and that Vave Health has no obligation to monitor the content of any Client Data. Client shall be responsible for procuring any necessary consents and making any notifications under applicable Law with respect to the provision of the Client Data to Vave Health through the Services and the processing of such Client Data by Vave Health through the Services. Upon request of Vave Health, Client will provide Vave Health with documentation to support such consent.
   2. Compliance with Law. Vave Health acknowledges that in the performance of the Services, Vave Health may have access to Client Data. Vave Health shall only use and disclose Client Data in accordance with applicable Law, including without limitation the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) and the Health Information Technology for Economic and Clinical Health Act (found in Title XIII of the American Recovery and Reinvestment Act of 2009) (“HITECH” and, collectively with HIPAA, “HIPAA”).

For purposes of this Agreement, Law means: (a) any national, state, local or other law or statute in any applicable jurisdiction; (b) any rule or regulation issued by a relevant regulatory agency; and (c) any written or authoritative interpretation by such relevant regulatory agency of any such law, statute, rule or regulation.

5. OWNERSHIP
   1. Vave Health Property. Vave Health owns, and shall retain ownership during the term of this Agreement to, all right, title and interest in and to: (i) the Services and the technology, software, hardware, products, processes, algorithms, user interfaces, documentation, user manuals and know-how related to the Services; (ii) any data and content generated through the use or execution of the Services to the extent such data or content does not include Protected Health Information (“PHI”) as that term is defined in HIPAA; (iii) any and all Vave Health Confidential Information (as defined below); (iv) Anonymized Data (as defined below); (v) the technology, software, hardware, products, processes, algorithms, user interfaces, documentation, user manuals and know-how related to the Devices; and (vi) and any and all Intellectual Property Rights embodied in (i)-(vi) (collectively the “Vave Health Property”). “Intellectual Property Rights” means patents, inventions, utility models, trademarks, service marks, trade and service names, copyrights, database rights and design rights (whether or not any of them are registered, and including applications for registration of any of them), social media, domain names and website content, rights in know-how, moral rights, trade secrets and rights of confidence and all rights or forms of protection of a similar nature or having similar or equivalent effect to any of them which may exist anywhere in the world.

Vave Health shall own any and all developments, inventions and work product created under any Professional Services, including but not limited to training materials, implementation guides and customizations of the Services.  Without limiting the foregoing, Vave Health shall have a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into the Services and Devices any other suggestions, enhancement requests, recommendations or other feedback provided by Client and End Users relating to the Services and Devices. All rights not expressly granted to Client herein are expressly reserved by Vave Health.

1. Client Data. As between the Parties, the data, images, imaging studies and content that Client or an End User inputs, transmits, uploads, transfers, submits, discloses or otherwise provides to the Services will remain exclusive property of Client (collectively, the “Client Data”). Notwithstanding anything in this Agreement to the contrary, and notwithstanding any termination or expiration of this Agreement, Client Data will not include anonymized data which is defined as Client Data that has been fully and permanently de-identified in accordance with HIPAA (“Anonymized Data”), which such data shall be Vave Health Property as set forth above.

6. CLIENT RESPONSIBILITIES
   1. Medical Diagnosis and Treatment. Client acknowledges and agrees that all clinical and medical treatment, diagnostic and/or billing decisions are Client’s responsibility. Noncompliance with this Section or any other provision of this Agreement shall void the warranty provided pursuant to this Agreement.
   2. Use for Clinical Diagnostic Purposes. Client acknowledges and agrees that it and its End Users will use the Devices and Services in compliance with this Agreement, the Device labeling, the Intended Use(s), Indications for Use, Directions for Use and/or any other written instructions provided by Vave Health from time to time, and only for clinical diagnostic purposes in the diagnosis or treatment of a disease or condition, for teaching, research or other authorized purposes and not for any entertainment or amusement purposes. Noncompliance with this Section shall void the warranty; provided, that in no event shall a Client that is a distributor of the Devices or any of its employees or agents be permitted to access and use the Devices for any clinical diagnostic or other purposes except to the extent permitted in connection with the inspection thereof, as set forth on Exhibit B.
   3. Maintenance. Client is responsible for maintaining the Device in accordance with all written instructions and labeling, including cleaning and disinfecting the Device.
   4. Client Equipment. Client is responsible for obtaining and properly maintaining any Client Equipment, defined as: (i) Client’s computer hardware, software and network infrastructure used to access the Services; (ii) the smartphones used to connect to the Device; (iii) other data storage and viewing platforms and networks including but not limited to Client’s internal systems (e.g., EMR and DICOM) for viewing and accessing ultrasound images and imaging studies; and (iv) any ancillary services needed to connect to, access or otherwise use the Devices and Services. Client shall be responsible, and under no circumstances will Vave Health or its Affiliates or any of their licensors or suppliers be responsible, for any loss, damage or liability arising out of any Client Equipment, including any delays, inaccuracies, errors, malfunctions, security failures or other incident attributable to Client Equipment.
   5. Restrictions on Use. Client shall not, and shall not allow or assist any End User or other third party to: (i) use the Device or Services in a manner inconsistent with its labeling, Intended Use(s), Indications for Use, Directions for Use and/or any other written instructions provided by Vave Health from time to time; (ii) rent, lease, sublicense, assign, distribute, transfer, copy, reproduce, download, display, modify or timeshare or otherwise make the Vave Health Property or any portion thereof available to any third party other than its authorized End Users as contemplated by this Agreement; (iii) use the Devices or Services to send or store infringing or unlawful material or material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (iv) modify, copy or create derivative works based on the Vave Health Property, provided that Client may print, annotate or export Client Data contained in certain reporting/reviewing/viewing functions but only to the extent expressly permitted in the Documentation and only for purposes of providing medical care to the individual patient associated with such Client Data; (v) translate, reverse engineer, decompile, disassemble, or otherwise attempt to discover any source code or underlying ideas of any Vave Health Property, or modify any Vave Health Property, except to the extent (but only to such extent) that applicable Law prohibits such restrictions; (vi) access or use the Vave Health Property to develop or create competing products or services or copy any features or user interface of the Vave Health Property or otherwise use such Vave Health Property as a component of or a base for products or services prepared for commercial sale, sublicense, lease, access or distribution; (vii) attempt to repair the Vave Health Property; (viii) disable any security devices or codes on the Vave Health Property; (ix) alter, remove, or obscure any proprietary rights notices on the Vave Health Property or related Documentation; (x) create Internet “links” to or from the Services, or “frame” or “mirror” any content forming part of the Services except that Client may create links for sharing images and imaging studies consistent with the Documentation; or (xi) use the Services for purposes of benchmarking or other comparative analysis intended for publication without Vave Health’s prior written consent.
   6. Liability for Content. Client shall be responsible, and under no circumstances will Vave Health or its Affiliates or any of their licensors or suppliers be responsible, for any loss, damage or liability arising out of any Client Data, including any mistakes or inaccuracies contained in the Client Data, the use (or misuse or misappropriation) or subject matter of the Client Data, or Client Data while it resides in or is stored on Client Equipment. Client is solely responsible for uploading Client Data for storage in accordance with the Documentation and for any loss of Client Data resulting from Client’s failure to so upload as further described in clause (i) below.
   7. Security of Account. Client agrees to maintain all security regarding its and its End Users’ account ID, password, and connectivity, including its computer networks. If Client’s or its End Users’ account ID or password are stolen, or otherwise compromised, Client is obligated to immediately change the password and inform Vave Health of the compromise. Client shall be responsible, and under no circumstances will Vave Health or its Affiliates or any of their licensors or suppliers be responsible, for any loss, damage or liability arising out of any compromise of Client’s and its End Users’ access credentials, Client Equipment and/or computer networks.
   8. Location of Authorization. Client hereby acknowledges that the Devices and Services are authorized for sale and use only within the United States as of the date hereof and, thereafter, within any such additional jurisdiction or territory as Vave Health may, in its sole discretion, determine and notify Client from time to time.
   9. Client Data Not Uploaded to Services. Client agrees and acknowledges that the Client must be logged into the Services in order to use the Device. All Client Data generated through use of the Device may be transferred to the Services or Client’s internal system/network for storage and subsequent use, provided that if Client or End User logs out of the Services without selecting an option to upload such Client Data for storage and subsequent use purposes, the Client Data will be deleted and will be unrecoverable through use of the Services.
   10. Security Requirements. Client agrees and acknowledges that it will: (a) establish and maintain industry standard information, physical and administrative security protocols, including virus protection, for all Client Equipment; (b) establish and maintain backup and disaster recovery plans for any Client Data not uploaded to the Services; and (c) prevent unauthorized access to the Services and Devices and interception of transmission of Client Data from the Device to the smartphone.
7. HOSTED SECURITY

Vave Health maintains, and will continue to maintain throughout the Term of this Agreement, commercially reasonable security measures in connection with Client’s use of the Services that are designed to protect Client Data and prevent unauthorized access in accordance with applicable Law.

8. REPRESENTATIONS AND WARRANTIES; DISCLAIMER OF WARRANTIES
   1. Mutual Representations and Warranties. Each Party represents and warrants to the other Party as of the Effective Date that: (i) it has the full right, power and authority to enter into this Agreement, to perform its obligations hereunder; (ii) this Agreement has been duly executed by it and is legally binding upon it, enforceable in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium and other similar laws and equitable principles related to or limiting creditors’ rights generally; and (iii) the execution and performance of this Agreement does not (a) conflict with, violate, result in a breach of or constitute a default under a Party’s organizational documents, or any agreement, instrument or understanding, oral or written, to which it is a Party or by which it may be bound nor (b) violate any applicable Law having jurisdiction over such Party.
   2. Vave Health Representations and Warranties.

Services Warranty

Subject to the terms and conditions set forth in this Agreement, Vave Health warrants that the Services, when properly used for the purpose and in the manner specifically authorized by this Agreement and in accordance with the Documentation, will perform materially in accordance with the Documentation. The foregoing warranty shall be effective for so long as Client owns and operates the Devices and the Services in accordance with this Agreement. The warranty in this Section 8(b) shall not apply to the Services to the extent that the Services has been modified by any party, other than Vave Health.

Professional Services Warranty

Vave Health represents and warrants that any Professional Services will be performed by trained individuals in a professional and workperson-like manner.

Device Warranty

Vave Health warrants solely to the original Client that: (a) the Device will be free from defects in title, material and workmanship under normal use and service and (b) the Device will perform substantially in accordance with the Documentation for the duration specified in Exhibit B or the original quotation or offer (“Warranty Period”). The Documentation is meant solely to describe the applicable Device at the time of manufacture and is not a warranty of any type, express or implied, including, without limitation, a warranty of merchantability or fitness for a particular purpose.  The terms of any additional Device warranty (if selected in the Quotation) including the Warranty Period are set forth in Exhibit B or the original quotation/written offer.

Warranty Exclusions

Vave Health shall not have any obligation to Client hereunder if the warranty claim results from or arises out of, in whole or in part: (i) the use of the Device in combination with any software, tools, hardware, equipment, supplies, accessories or any other materials or services not furnished by Vave Health or recommended in writing by Vave Health or using or combining the Device with any item or data that does not properly and unambiguously exchange data with the Device in accordance with the Documentation; (ii) the use of the Device in a manner or environment, or for any purpose, for which Vave Health did not design or license it, or inconsistent with the Device’s labeling, Intended Use(s), Indications for Use, Directions for Use and/or any other written instructions provided by Vave Health from time to time; (iii) any alteration, modification or enhancement of the Device by Client or any third party not authorized or approved in writing by Vave Health; (iv) any defect or deficiency (including failure to conform to Documentation) that results, in whole or in part, from any improper storage, handling or use of a Device (including any damage or defect caused in whole or in part by Client or during the transit of such Device to Client), failure to maintain the Device in the manner described in the Documentation, inadequate back-up or virus protection or any cause external to the Device or beyond Vave Health’s reasonable control, including, but not limited to, power failure and failure to keep the Device clean and free of dust, sand and other particles or debris; or (v) any use or maintenance, or any repair or service of the Device, by anyone other than Vave Health or its authorized representatives. In addition, this warranty does not cover the Device to the extent it is used in any country other than the country to which Vave Health ships the Device.

Vave Health shall have no obligation to Client under the warranty, or otherwise, if: (a) the failure of the Devices or Services to meet the warranty or conform materially to the Documentation can be attributable to Client Equipment, third party software or hardware or Client Data or (b) the failure of the Devices or Services to meet the warranty or conform substantially to the Documentation can be attributable to causes that are not the responsibility of Vave Health.

Warranty Remedy

Client will promptly notify Vave Health of any Device defect subject to the warranty set forth in this Section 8(b) and return the Device as set forth herein at Client’s expense; provided, that if upon receipt thereof Vave Health determines that such defect is subject to the warranty set forth in this Section 8(b), Vave Health shall reimburse client for all reasonable costs incurred to return the Device to Vave Health. Client will follow the cleaning and disinfection procedures set forth in the Documentation and any other instructions from Vave Health regarding Device return, and will package the Device in order to protect it from damage during return shipping. If Vave Health confirms that the Device is defective and subject the warranty set forth in this Section 8(b), Vave Health will promptly replace the defective Device with either a new or refurbished Device. If Vave Health determines that the damage resulted from any of the events or causes which are excluded or disclaimed from the warranty, or which void the warranty, pursuant to this Agreement,  Vave Health will so notify Client and Client may purchase a replacement Device.  For the avoidance of doubt, any alteration, abuse, misuse, further manufacturing, packaging, processing, adjustment or repair by any person or entity other than Vave Health shall void the warranty set forth in this Agreement.

Exclusive Remedy

Vave Health’s sole obligation and Client’s sole remedy for breaches of the warranty in this Section 8(b) is for Vave Health to use commercially reasonable efforts to provide services to correct the failure of the Services or provide a new or refurbished Device that shall operate substantially in accordance with the Documentation.

THE FOREGOING REMEDY IS EXCLUSIVE, IS SUBJECT TO THE LIMITATIONS SET FORTH HEREIN AND SHALL BE CLIENT’S SOLE REMEDY WITH RESPECT TO ANY CLAIM OF BREACH OF WARRANTY ARISING OUT OF OR RELATING TO THIS AGREEMENT.

1. Client Representations and Warranties. Client represents and warrants that it will, and will ensure that its End Users, use the Services and Devices only in accordance with all applicable Laws (including but not limited to HIPAA). Client shall report to Vave Health (i) any adverse event relating to a Device and/or the Services and (ii) any customer complaint regarding any Device and/or the Services, in each case, promptly upon becoming aware thereof. Client shall reasonably cooperate with Vave Health to comply with all applicable reporting obligations (including, without limitation, tracking the Devices) and resolve such complaints.

Client acknowledges that Vave Health is a United States corporation and, as such, is subject to the provisions of the Foreign Corrupt Practices Act of 1977 of the United States of America, 91 Statutes at Large, Sections 1495 et seq. (“FCPA”), and any other similar laws in the country or territory in which Client is located. Under the FCPA, it is unlawful to pay or to offer to pay anything of value to foreign government officials, or employees, or political parties or candidates, or to persons or entities who will offer or give such payments to any of the foregoing to obtain or retain business or to secure an improper commercial advantage. Client further acknowledges that it is familiar with the provisions of the FCPA and hereby agrees that it shall take or permit no action which will either constitute a violation under, or cause Vave Health to be in violation of, the provisions of the FCPA.

1. Disclaimer of Warranties. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 8, VAVE HEALTH MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY OR COMPLETENESS, OR NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS. VAVE HEALTH DOES NOT WARRANT, REPRESENT, OR GUARANTEE THAT THE SERVICES SHALL BE UNINTERRUPTED, ERROR-FREE, OR THAT THE SERVICES OR DEVICES WILL PROVIDE ANY SPECIFIC RESULTS FOR CLIENT, OR PROVIDE ANY RESULTS AT ALL. FURTHER, CLIENT ACKNOWLEDGES AND UNDERSTANDS THAT THE SERVICES MAY BE CONTINGENT ON THIRD PARTY PERFORMANCE AND VAVE HEALTH CANNOT GUARANTEE AND IS NOT LIABLE FOR THE SAME. THE SERVICES AND DEVICES, AND DELIVERABLES, IF APPLICABLE, PROVIDED HEREUNDER ARE NOT INTENDED TO SUBSTITUTE FOR, OR TO REPLACE THE SKILL, KNOWLEDGE, AND EXPERIENCE OF CLIENT, END USER OR OTHER LICENSED PHYSICIANS OR OTHER CARE PROVIDERS. VAVE HEALTH ASSUMES NO RESPONSIBILITY FOR PATIENT CARE AND IS NOT PROVIDING THE DEVICES OR ANY SERVICE HEREUNDER TO THE CLIENT AS A SUBSTITUTE OR REPLACEMENT FOR THE MEDICAL JUDGMENT OF THE CLIENT’S PHYSICIANS, END USERS OR OTHER CARE PROVIDERS. VAVE HEALTH HAS NO, AND DISCLAIMS ANY RESPONSIBILITY WHATSOEVER FOR, AND CLIENT HEREBY RELEASES VAVE HEALTH FROM AND INDEMNIFIES AND HOLDS HARMLESS VAVE HEALTH AND ITS AFFILIATES, AND THEIR RESPECTIVE DIRECTORS, OFFICERS AND EMPLOYEES FROM, ANY CLAIMS ARISING FROM OR RELATED TO THE CONDUCT OF THE CLIENT’S BUSINESS OR FOR ACTS OR OMISSIONS OF CLIENT AND END USERS IN THE PROVISION OF PATIENT CARE, AND THAT ANY RELIANCE UPON THE VAVE HEALTH PROPERTY OR SERVICES HEREUNDER SHALL NOT DIMINISH THE CLIENT’S RESPONSIBILITY FOR PATIENT CARE. Further, Vave Health does not and cannot control the performance of Internet or cellular services provided or controlled by third parties. At times, actions or inactions of such third parties can impair or disrupt Client’s connections to the Internet or cellular service (or portions thereof). Although Vave Health will use commercially reasonable efforts to take all actions it deems appropriate to remedy and avoid such events, Vave Health cannot guarantee that such events will not occur. VAVE HEALTH DISCLAIMS ANY AND ALL LIABILITY RESULTING FROM OR RELATED TO THE PERFORMANCE OR NON-PERFORMANCE OF INTERNET SERVICES PROVIDED OR CONTROLLED BY THIRD PARTIES WHICH ARE NOT VAVE HEALTH’S AUTHORIZED SUBCONTRACTORS.
2. Warranties to Client Only. The warranties stated in this Section are made only to Client and Vave Health shall have no liability to any third party, including any End User, with respect to the Services or Devices, including as a result of the warranties contained herein.

9. LIMITATION OF LIABILITY
   1. Liability Limitation. IN NO EVENT SHALL EITHER PARTY OR VAVE HEALTH’S THIRD PARTY SUPPLIERS HAVE LIABILITY ARISING OUT OF OR PERTAINING TO THIS AGREEMENT TO THE OTHER PARTY OR ANY OTHER THIRD PARTY FOR ANY SPECIAL, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL, PUNITIVE, OR INDIRECT DAMAGES OF ANY KIND BASED ON ANY CLAIM OR LEGAL THEORY, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF DATA, LOST OPPORTUNITY, LOST SAVINGS, LOST PROFITS, LOSS OF USE, BUSINESS INTERRUPTION OR COST OF SUBSTITUTE SERVICES OR TECHNOLOGY, EVEN IF INFORMED OF THE POSSIBILITY OF ANY SUCH DAMAGES IN ADVANCE, INCLUDING ANY CLAIMS BASED UPON BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER LEGAL THEORY. ADDITIONALLY, NEITHER VAVE HEALTH NOR VAVE HEALTH’S SUPPLIERS’ OR LICENSORS’ AGGREGATE LIABILITY TO CLIENT OR ITS AFFILIATES AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AND END USERS FOR ANY CLAIMS ARISING UNDER THIS AGREEMENT OR OTHERWISE ARISING FROM THE TRANSACTIONS CONTEMPLATED HEREIN AND THEREIN REGARDLESS OF THE FORM OF ACTION (INCLUDING, BUT NOT LIMITED TO, ACTIONS FOR BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY, RESCISSION AND BREACH OF WARRANTY) SHALL EXCEED THE AGGREGATE PURCHASE PRICE IN THE CLIENT’S QUOTATION. CLIENT HEREBY RELEASES VAVE HEALTH FROM ALL OBLIGATIONS, LIABILITY, CLAIMS OR DEMANDS IN EXCESS OF THIS LIMITATION. THIS LIMITATION OF LIABILITY SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAWS AND NOTWITHSTANDING THE FAILURE OF ANY LIMITED REMEDY.
   2. Transmission of Data. Vave Health is not responsible for loss or alteration of Client Data in transmission (including in transmission from the Device to the smartphone and from the smartphone to the Services or Client’s internal system/network), due, in whole or in part, to improper transmission by Client or an End User, or failure by Client, an End User or any third party to act on any communication transmission to or by Client or an End User through the Services or through use of a Device. Vave Health is not responsible for any Client Data generated through use of the Device.
10. INDEMNITY
    1. Vave Health’s Indemnification Obligations. Vave Health shall defend, indemnify, and hold harmless Client and its Affiliates, and their respective directors, officers, and employees against any and all actions, claims or assertions brought against them by a third party (“Claims”), that the Services or Devices, when used within the scope of and in accordance with this Agreement and the Documentation, infringes a United States patent or copyright. In the event that the Services and/or Device in the opinion of Vave Health, is likely to or does become the subject of a claim of infringement, Vave Health shall have the right at its sole option and expense to (which shall be Client’s sole remedy for any such Claims): (i) modify the Services and/or Device to be non-infringing provided that such modification does not fundamentally change the functionality of the Services and/or Device; (ii) obtain for Client a license to continue using the Services and/or Device at no additional charge to Client; or (iii) if neither (i) nor (ii) are reasonably practicable (as determined by Vave Health), terminate this Agreement and refund to Client the pro rata portion of fees paid to Vave Health for such portion of the Services and/or Device thereof that cannot be utilized by Client due to such infringement.
    2. Vave Health shall have no liability under this Section 10 for any Claim based upon: (i) any component of software provided by Client or any third party; (ii) any modification by a party other than Vave Health, unless such modification was at the direction of Vave Health; (iii) the combination, operation or use of the Services and/or Device with a software program(s) or data not part of Services and/or Device if the claim would have been avoided had such combination, operation or use not occurred; (iv) the Services and/or Device being used in a manner not authorized by this Agreement or in a manner inconsistent with its labeling, Intended Use(s), Indications for Use, Directions for Use and/or any other written instructions provided by Vave Health from time to time; and (v) continued use of the Services and/or Device from the date of written notice wherein Vave Health informs Client that such continued use may lead to a claim. This Section 10(a) and (b) sets forth Vave Health’s sole and exclusive obligation and liability, and Client’s sole and exclusive remedy, for any infringement or misappropriation of intellectual property rights of any kind.
    3. Client’s Indemnification Obligations. Client shall indemnify and defend Vave Health and its Affiliates, licensors, and suppliers, and their respective directors, officers, shareholders, employees, contractors and agents from and against any and all Claims and all liabilities, awards, damages, settlements, fees, penalties, costs and expenses (including reasonable attorney’s fees) owing to third parties (including for avoidance of doubt, government and regulatory agencies) in connection therewith (collectively, “Losses”), arising from: (i) any gross negligence or willful misconduct by Client and/or any End User; (ii) any failure by Client and/or any End User to procure appropriate consents or authorizations, including from patients; (iii) any failure to comply with the End User Agreement attached hereto; (iv) breach of Section 6 (Client Responsibilities); (v) Client’s and/or its End Users’ misuse of the Services and/or Devices or use in a manner inconsistent with its labeling, Intended Use(s), Indications for Use, Directions for Use and/or any other written instructions provided by Vave Health from time to time; (vi) Client Data (whether properly or improperly obtained and/or transmitted); (vii) Client Equipment, including, without limitation, any failure or malfunction caused by the smartphone connected to the Device; (viii) Client’s and/or its End Users’ failure to comply with any applicable Law; (ix) the consequences of Client’s and/or End Users’ utilization of the Services and/or Devices in respect of any third party; and/or (x) any allegation that any Client Data or any intellectual property rights owned or licensed by Client infringes the Intellectual Property Rights of a third party.
    4. Indemnification Procedure. The Party having the benefit of the indemnification obligation under this Section 10 (the “Indemnitee”) shall: (a) give the Party having the indemnification obligation (the “Indemnitor”) prompt written notice of any claim; (b) allow the Indemnitor to have sole control over the defense and settlement of the claim, provided, however, that the Indemnitee shall have the option, at its sole discretion, to participate in the defense of any such claim using attorneys selected by it, the costs and expenses of which shall be the responsibility of Indemnitee; and (c) provide all assistance reasonably requested by Indemnitor, at Indemnitor’s expense, in the defense and settlement of the claim. The Indemnitor will not consent to the entry of any judgment or enter into any settlement with respect to a Claim without the Indemnitee’s prior written consent (not to be unreasonably withheld or delayed) unless: (i) the judgment or proposed settlement involves only the payment of monetary damages by the Indemnitor, and does not impose injunctive or other equitable relief upon or otherwise adversely affect the Indemnitee; (ii) there are no additional Claims pending against the Indemnitee, and no adverse impact on existing Claims, as a result of the judgment or proposed settlement; and (iii) the Indemnitee will have no liability with respect to such judgment or proposed settlement and will not otherwise be materially and adversely affected by the terms of such settlement.
11. CONFIDENTIALITY

“Confidential Information” means any confidential and proprietary information related to a Party’s business belonging to one Party (“Discloser”), and disclosed to the other Party (“Recipient”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including information concerning research, development, design details and specifications (including beta versions of functionality), financial information, procurement requirements, engineering and manufacturing information, customer lists, business forecasts, sales information and marketing plans, internal business processes, product designs, pricing terms, the terms and conditions of this Agreement (including the Exhibits hereto, the Quotation, or any other forms or documents related to this Agreement), and any additional information that any End User or other third party has disclosed to Discloser in confidence and that Discloser is permitted to disclose to Recipient under the terms and conditions of this Agreement. Any information related to the Services, Devices or other Vave Health Property shall be deemed to be the Confidential Information of Vave Health, and any Client Data shall be deemed to be the Confidential Information of Client. Recipient shall only use Confidential Information of the Discloser for the purposes of this Agreement and shall keep such information in strict confidence. Recipient shall restrict disclosure of Confidential Information solely to its employees, attorneys, accountants, contractors and other representatives with a need to know and who have been advised of the confidentiality restrictions of this Agreement and who are bound by confidentiality obligations at least as restrictive as those set forth herein, and Recipient shall not disclose Confidential Information to any third parties, except End Users as permitted hereunder, and use no less than reasonable care in its obligations.  Recipient shall be responsible for a breach of the confidentiality restrictions herein by any person to whom it has shared Confidential Information. Except as expressly set forth elsewhere in this Agreement, all Confidential Information shall remain the property of the respective Discloser. Information will not be deemed “Confidential Information” if such information: (a) is generally available to the public (other than through breach of this Agreement); (b) is received from a third party lawfully empowered to disclose such information without being subject to an obligation of confidentiality; or (c) was rightfully in the Recipient’s possession free of any obligation of confidence at the time it was communicated to the Recipient. Notwithstanding the above, the Recipient will not be in violation of this Section 11 with regard to a disclosure that was in response to a valid order by a court or other governmental body, provided that the Recipient provides the Discloser with prompt written notice of such disclosure where reasonably possible in order to permit the Discloser to seek confidential treatment of such information and provided that Recipient only disclose such portion of Confidential Information as is legally required to be disclosed.

12. GOVERNING LAW

This Agreement shall be governed by the laws of the state of California, without giving effect to any conflict of law principles. The Parties hereby waive any objection to the exclusive jurisdiction and venue of the state and federal courts in Santa Clara, California.

13. TERM AND TERMINATION
    1. Term. The Agreement shall commence on the Effective Date and shall continue in effect for the term specified in the Quotation (the “Initial Term”). Following the Initial Term, this Agreement will automatically renew for subsequent terms of the same length as the Initial Term, and in any event, at least twelve (12) months, (each, a “Renewal Term”). Either Party may terminate this Agreement by giving written notice of non-renewal within thirty (30) days prior to the end of the Initial Term or Renewal Term as applicable.
    2. Termination for Breach. This Agreement may be terminated by either Party for material breach if such breach has not been cured by the other Party within thirty (30) days’ receipt of written notice of such breach by such other Party.
    3. Suspension. Vave Health may suspend the provision of the Services to Client under this Agreement effective immediately upon notice if: (a) [Client fails to pay any portion of the fees due under the Quotation within thirty (30) days after receiving written notice from Vave Health that payment is past due; (b)] Client or an End User breaches Section 6 (Client Responsibilities); or (c) Client’s or an End User’s use of the Services: (i) poses a security risk to the Services or any other third party or (ii) may adversely impact Vave Health’s systems, networks, any Vave Health Property or the data of any other Vave Health client. During any such suspension, or in the event that the Services are unavailable for any reason, Client is solely responsible for continuity of patient care, including, identifying alternate means of accessing diagnostic images, imaging studies and patient data.
    4. Effects of Termination. Upon expiration or termination of this Agreement under this Section 13, Vave Health shall have the right to immediately terminate Client and any End Users’ ability to archive new studies. Upon Client’s reasonable and written request, Vave Health will return or destroy any Client Data, excluding any Anonymized Data. Vave Health will be permitted to retain Client’s Confidential Information if such retention is necessary to meet Vave Health’s legal compliance obligations, is done pursuant to Vave Health’s records management program, and is limited to the minimum Client Confidential Information and minimum retention period needed to meet these obligations. Client shall immediately pay to Vave Health all amounts due and payable prior to the date of such expiration or termination.
    5. Survival. Sections 2 (Devices), 3 (Fees and Payment), 4 (Data Privacy), 5 (Ownership), 6(f) (Liability for Content), 6(g) (Security of Account), 8 (Representations and Warranties; Disclaimer of Warranties), 9 (Limitation of Liability), 10 (Indemnity), 11 (Confidentiality), 12 (Governing Law), 13 (Term and Termination), 14(d) (Entire Agreement), 14(e) (Notices), 14(h) (Severability), and 14(i) (Waiver; Modification) shall survive the termination or expiration (as applicable) of this Agreement.
14. GENERAL
    1. Independent Contractors. The Parties are independent contractors. Nothing in this Agreement shall be construed to create a joint venture, partnership, franchise, or an agency relationship between the Parties.
    2. Assignment. Client may not be assigned (including by operation of law in connection with a merger, consolidation, reorganization or transfer of all or substantially all of Client’s assets or stock) without the prior written consent of Vave Health. Any attempted assignment in violation of this Section shall be void. This Agreement shall bind and inure to the benefit of the Parties, their respective successors and permitted assigns.
    3. Entire Agreement. This Agreement as executed by the Parties constitutes the complete and exclusive agreement and understanding between the Parties and terminates and supersedes any prior agreement or understanding relating to the subject matter hereof between Vave Health and Client, whether oral or written. None of the general terms and conditions set forth in any purchase order, acknowledgement form, or any other document issued by Client shall apply.
    4. Notices. Notices must be in writing; delivered: (i) personally; (ii) by certified mail return receipt requested; (iii) by facsimile transmission with a confirming copy sent the same day by first class mail; or (iv) by a nationally recognized overnight courier service; and addressed to the addresses set forth above. Each notice shall be deemed given upon receipt of such notice by the other Party. All notices shall be sent to the Parties at the addresses set forth in the Quotation.
    5. Force Majeure. Neither Party will be in default or otherwise liable for any delay in or failure of its performance under this Agreement if such delay or failure arises by any reason beyond its reasonable control, including any act of God, or any acts of the common enemy, the elements, earthquakes, floods, fires, epidemics, riots, failures or delays in transportation or communications, internet or telecommunications failures, cyberattacks or any act or failure to act by the other Party, its employees, agents or contractors or epidemics, pandemics, or restraints of government. The Parties will promptly inform and consult with each other as to any of the above causes, which in their judgment may or could be the cause of a substantial delay in the performance of this Agreement.
    6. Publicity.
    7. Vave Health may issue one or more press releases announcing the existence of this Agreement and generally describing the terms hereof or as otherwise mutually agreed by the Parties. During the Term of this Agreement, Vave Health may use Client’s name and logo on the Vave Health web site and in Vave Health’s collateral marketing materials, provided that Client has approved in writing the form of any such use, such approval not to be unreasonably withheld.
    8. Any marketing, promotion, or other publicity material, whether in written, electronic, or any other form, that refers to Vave Health, the Devices, the Services or to this Agreement must be approved in writing by Vave Health prior to its use or release.
    9. Severability. If one or more provisions of this Agreement are held to be unenforceable under Applicable Laws, the Parties agree to renegotiate such provision in good faith, in order to maintain the economic position enjoyed by each Party as closely as possible to that under the provision rendered unenforceable. In the event that the Parties cannot reach a mutually agreeable and enforceable replacement for such provision, then: (i) such provision shall be excluded from this Agreement; (ii) the balance of this Agreement shall be interpreted as if such provision were so excluded; and (iii) the balance of this Agreement shall be enforceable in accordance with its terms.
    10. Waiver; Modification. If a Party waives any term or provision or the other Party’s breach of this Agreement, such waiver shall not be effective unless it is in writing and signed by the Party against whom such waiver is asserted. No waiver by a Party of a breach of this Agreement by the other Party shall constitute a waiver of any other or subsequent breach by such other Party. This Agreement may be modified only if authorized representatives of both Parties consent in writing.
15. DISTRIBUTOR PROVISIONS

The following provisions are only applicable to Clients who are distributors of Vave Health.

1. Traceability. Client will create and maintain accurate records of all activities and events related to the Devices to the extent necessary to ensure product traceability. The records will be constructed in such a manner that all significant activities or events will be traceable for a period of not less than two (2) years past the expiration date or two (2) years after the Devices have been taken out of service, whichever occurs first. Such records must be clear, readily available, and include the following: (i) each order received and accepted; (ii) the serial or lot number and expiration date of the Devices and the address where Devices are delivered; (iii) the method of identifying the invoice issued to a customer; and (iv) each customer credit issued and the reason therefor.
2. Customer Complaints. Client will cooperate fully with Vave Health in dealing with customer complaints concerning the Devices and will take such action to resolve such complaints as deemed necessary or appropriate by Client or as may be otherwise reasonably requested by Vave Health.  Client agrees to report to Vave Health any complaint regarding a Device of which Client becomes aware within three (3) days of receiving the complaint, or report of any death or serious injury.  Client agrees to assist Vave Health to facilitate the resolution of complaints. For purposes of this Section 15(b), a complaint can be the occurrence of any of the following: (i) receipt of any Devices quality claims, medical claims or complaints or other written claims or complaints; or (ii) receipt of any written communication from any applicable regulatory agency pertaining to a Device.
3. Sales Representatives and Permitted Subdistributors. Client will not, without the prior written consent of Vave Health, appoint any subdistributors in connection with the performance of this Agreement.  Client agrees that all of its sales representatives and permitted subdistributors will be subject to the terms and conditions of this Agreement.

 

EXHIBIT A
End User License Agreement

The Vave Health, Inc. platform (“Vave Health Cloud”) is a cloud-based ultrasound image acquisition and sharing platform for patient care, research, education or other authorized use. The examination and associated patient information that you will store, send, and/or receive through Vave Health Probe will be transferred and stored in compliance  with the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) and the Health Information Technology for Economic and Clinical Health Act (found in Title XIII of the American Recovery and Reinvestment Act of 2009) (“HITECH” and, collectively with HIPAA, “HIPAA”).

By clicking the accept button, you acknowledge and agree to the following:

• You are an authorized user of the Vave Health Cloud and have the authority and the right to use the login credentials that you are using, and to access, use, transmit, and, except to the extent you are a distributor, share the imaging examination and protected health information (PHI) of the associated patients.
• You will not share your login credentials or otherwise permit unauthorized individuals to access Vave Health Probe.
• You are either (a) a licensed physician in good standing or otherwise qualified to use Vave Health Probe and have been trained on the use of diagnostic ultrasound imaging devices, (b) a licensed health care provider associated with a healthcare teaching facility or otherwise in receipt of a Vave Health Probe for a 90-day period as permissible for business development or evaluation purposes (a “Covered Evaluator”) or (c) an approved distributor of the Vave Health Probe.
• You have obtained any required consents, authorizations, or other permissions necessary to share the image and associated patient information and have otherwise taken steps to ensure that the transmission complies with applicable law.
• You are not purporting to be anyone other than yourself (or a person for whom you have legal authority to act).
• You are adhering to all international, national and/or state laws/regulations that govern the exam and associated PHI.
• You will only use Vave Health Probe in accordance with Vave Health Inc’s Terms and Conditions and the Device labeling, the Intended Use(s), Indications for Use, Directions for Use and/or any other written instructions provided by Vave Health from time to time.
• You are sharing this imaging examination and associated PHI for purposes of research, education or continuity of care and not for any illegal or malicious purpose.
• You will only transfer Protected Health Information (PHI) from the Vave Health Cloud using an encrypted connection.
• Vave Health, Inc. is not the intended recipient of any imaging examination, rather, Vave Health, Inc., provides a platform for the storage and transfer of imaging examinations from one health care provider to another.
• Vave Health, Inc., is not a healthcare provider and is not responsible for the medical care or treatment of any patient.
• Vave Health, Inc., will not be responsible for the content, results, diagnoses (or lack thereof) in the data provided and/or transmitted and will not review, verify, or provide any opinion or consultation regarding same.
• You agree to hold Vave Health, Inc., harmless from any costs or damages arising from your use, misuse or reliance on this system, except to the extent that such costs or damages are caused by Vave Health, Inc.’s gross negligence or intentional misconduct.
• If you are a Covered Evaluator, you agree to return all Vave Health Probes in your possession no later than 90 days following the receipt thereof from Vave Health, in their original condition, subject to normal wear and tear, and free of all damage or defect.

 

 

EXHIBIT B
Devices – General Terms

Device Return Policy:

• The return option period following delivery of the applicable Device(s) to Client as specified in the original quotation or written offer.
• Client shall submit all return requests by emailing support@vavehealth.com (unless otherwise instructed in writing by Vave Health).
• If the returned Device is sealed and unused (as determined by Vave Health), Vave Health will refund to Client the purchase price paid by Client for such returned Device, contingent upon its timely return to Vave Health and Client providing a stated reason for the return.
• If the returned Device seal is broken but Client confirms that the returned Device has not been used for any a clinical, medical treatment, or diagnostic purpose, Vave Health will refund to Client the purchase price paid by Client for such returned Device, contingent upon its timely return to Vave Health, Client providing a stated reason for the return, and Vave Health’s verification of non-use for any a clinical, medical treatment, or diagnostic purpose.
• If the returned Device is damaged and/or not operational (as determined by Vave Health), Client shall promptly pay to Vave Heath an amount equal to the lesser of (i) the cost of repair for such returned Device or (ii) the purchase price paid by Client for such returned Device.

Shipping Terms:

Shipment of all Products shall be Ex Works (EXW) (INCOTERMS 2020) point of distribution by Vave Health, at which time title and risk of loss shall pass to Client. The method of transportation will be at Vave Health’s discretion and all Devices shall be prepared and packed for shipment in accordance with Vave Health’s customary practices and any Device specifications. All shipment costs shall be paid by Client and if prepaid by Vave Health, Client shall reimburse Vave Health for all shipping costs. Any special shipping requests by Client, including, without limitation, freight forwarder or air freight, may incur additional charges for which Client will be responsible. Where permitted by law, Vave Health retains a security interest in all Devices sold until full payment is received.

Delivery:

Delivery dates are approximate. Vave Health reserves the right to make delivery in installments. All such installments shall be separately invoiced and paid for when due, without regard to subsequent deliveries.

Inspection:

Client shall inspect the Devices delivered and notify Vave Health in writing within five (5) calendar days after receipt of shipment of any complaint that relates to the Devices, including any claims for shortages. Failure to give such notice shall constitute unqualified acceptance and a waiver of all such claims by Client for such Devices.