TRIAL PROGRAM AGREEMENT
THIS TRIAL PROGRAM AGREEMENT (this “Agreement”) is entered into as of start date of the Trial (the “Effective Date”), by and between NEUROMERSIVE INC., a Delaware corporation (“NRXR”), and the entity subscribed to a Trial with NRVR(“Licensee”).
WHEREAS, NRXR designs and creates virtual reality exercises for use in neurological rehabilitation (collectively with all proprietary software, software as a service, and/or hardware, whether or not such hardware is proprietary, and any related updates, materials, and documentation made available to Licensee by NRXR in connection with this Agreement, the “Product”);
WHEREAS, Licensee is a comprehensive healthcare provider engaged in neurological rehabilitation;
NOW, THEREFORE, in consideration of the premises and the agreements set forth in this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties, intending to be legally bound hereby, agree as follows:
1. Provision of Product and Grant of License. NRXR shall provide Licensee with the Product, including all software, hardware, materials, and documentation necessary for the operation of the Product and as described in Exhibit A, which is attached hereto and incorporated for all purposes. Subject to the terms and conditions contained in this Agreement, NRXR hereby grants to Licensee, for the Term, a non-exclusive, nontransferable, limited license to utilize the Product for a test period (the “Test Period”) for the sole purpose of evaluating the Product and its effectiveness (the “Trial”) in accordance with test criteria mutually agreed to by the parties. The Test Period shall begin on the day that the Product is delivered to Licensee and shall end __ days later. The license terminates upon the expiration of the Test Period or, if this Agreement is breached, immediately and without notice.
2. Ownership. All right, title, interest, and ownership in the Product shall at all times remain solely with NRXR. All data created throughout the Term by NRXR and by the Product shall be the property and Confidential Information of NRXR.
3. Restrictions on Use. With regard to the Product, no intellectual property license, and no other license of any kind, is granted except for the limited right to use the Product as provided in this Agreement during the Term. Licensee shall use the Product according to and in compliance with all documentation and recommendations provided by NRXR. Licensee shall not reverse engineer, disassemble, or decompile any software which in included in or with the Product. No NRXR materials may be copied, reproduced, distributed, republished, downloaded, displayed, posted, or transmitted in any form or means without NRXR’s prior express written permission. Licensee shall not alter the Product except with the prior written consent of NRXR. Any alterations made or suggested for the Product by Licensee shall be the exclusive property of NRXR, together with all intellectual property and other rights therein. Licensee shall execute any documents, and otherwise cooperate with NRXR at NRXR’s expense, as necessary to enable NRXR to protect such rights.
4. Term. Unless earlier terminated as provided herein, the term of this Agreement (the “Term”) and shall end on the day that the Product is delivered to NRXR after the Test Period. The Term may be extended upon mutual, written agreement by the parties.
5. Feedback. Licensee agrees to meet regularly with NRXR to discuss and provide NRXR information and feedback (collectively, “Feedback”) regarding: (1) the nature and extent of Licensee’s use or operation of the Product; (2) any changes or suggestions regarding the Product; (3) all errors or feature requests; (4) the characteristic conditions and symptoms leading to the errors or suggested feature requests in sufficient detail to allow NRXR to recreate them itself; (5) user experience with and response to the Product; and (6) any errors, discoveries, ideas, concepts, feature requests or suggestions relevant to the Product. Licensee hereby assigns to NRXR all right, title, and interest in and to such Feedback, including all intellectual property rights therein (including moral rights; provided that any non-assignable moral rights are waived to the extent permitted by law) and will provide commercially reasonable assistance at the request of NRXR to perfect such assignment.
6. Risk of Loss. Upon delivery of the Product, Licensee bears all risk of loss until the Product is returned to the possession of NRXR. Licensee agrees to maintain the Product in an undamaged condition and operate the Product in the manner set forth in the Product documentation. Licensee will not remove or alter any legend or marks stating that the Product is the property of NRXR or its vendor, as applicable. The hardware portion of the Product must be returned to NRXR in the same condition as when the hardware portion of the Product was delivered to Licensee with the exception of reasonable wear and tear. NRXR is authorized to have Licensee invoiced, and Licensee hereby agrees to pay, for any and all damage to the Product, as determined by NRXR in its reasonable direction.
7. Fees and Expenses. Unless otherwise agreed by NRXR and Licensee, NRXR shall provide Licensee the Product at no charge for the Term. If, at the conclusion of the Term, Licensee executes a long-term license agreement with NRXR, then NRXR will invoice Licensee for the Product as per the terms of that agreement.
8. Termination. Either party may terminate this Agreement upon seven (7) days’ written notice if the terminating party determines, in its sole opinion, that the objectives of the Test Plan are not achievable, and either party may terminate this Agreement immediately if the other party materially breaches this Agreement. Upon termination of this Agreement, Licensee shall cease using the Product and shall return the Product and all related documentation to NRXR, fully insured with postage prepaid. The rights and responsibilities of the parties pursuant to Sections 2, 5, 6, 8, 9, 11 – 13, 23, and 24, shall survive the expiration or earlier termination of this Agreement.
9. DISCLAIMER OF WARRANTY. LICENSEE ACCEPTS THE PRODUCT AND NRXR MATERIALS “AS IS,” WITH ANY ERRORS OR DEFECTS. NRXR MAKES NO EXPRESS OR IMPLIED WARRANTY OF ANY KIND WITH RESPECT TO THE PRODUCT, AND SPECIFICALLY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AS WELL AS ANY WARRANTY OF NON-INFRINGEMENT.
10. HEALTH AND SAFETY WARNINGS. LICENSEE ACKNOWLEDGES AND AGREES THAT THE PRODUCT IS A VIRTUAL REALITY PLATFORM AND THAT THERE ARE INHERENT RISKS OF PERSONAL INJURY, DISCOMFORT, AND/OR PROPERTY DAMAGE THAT ARE ASSOCIATED WITH VIRTUAL REALITY PLATFORMS AND THE PRODUCT AND THAT SUCH RISKS MAY BE GREATER FOR THE ANTICIPATED USERS OF THE PRODUCT. LICENSEE ACKNOWLEDGES AND AGREES THAT IT SHALL READ, EVALUATE, AND FOLLOW ALL HEALTH AND SAFETY WARNINGS, GUIDELINES AND/OR INSTRUCTIONS WITH RESPECT TO THE PRODUCT (INCLUDING ALL RELATED HARDWARE, SOFTWARE AND SERVICES).
11. LIMITATION OF LIABILITY. IN NO EVENT SHALL NRXR BE LIABLE TO LICENSEE OR ANY USER OF THE PRODUCT FOR PAYMENT OF ANY SPECIAL, INCIDENTAL, DIRECT, INDIRECT, PUNITIVE, OR CONSEQUENTIAL DAMAGES OR FOR THE LOSS OF PROFITS, GOODWILL, BUSINESS OPPORTUNITIES, USE OR REVENUE, WHETHER IN CONTRACT, IN TORT (INCLUDING NEGLIGENCE), IN WARRANTY OR OTHERWISE, RESULTING FROM THE PERFORMANCE OF NRXR’S OBLIGATIONS UNDER THIS AGREEMENT OR LICENSEE’S USE OF THE PRODUCT, INCLUDING, WITHOUT LIMITATION, DAMAGES ARISING FROM PERSONAL INJURY OR DAMAGE TO PROPERTY, EVEN IF NRXR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING THE FOREGOING, NRXR’S TOTAL LIABILITY UNDER THIS AGREEMENT FOR ANY REASON, WHETHER IN TORT, CONTRACT, OR OTHERWISE, SHALL BE LIMITED TO ACTUAL DAMAGES NOT TO EXCEED ONE THOUSAND DOLLARS ($1,000.00).
12. Confidentiality. Licensee and NRXR shall hold, and shall each cause their respective officers, employees, agents, consultants, and advisors to hold (and NRXR shall cause NRXR and its respective officers, employees, agents, consultants, and advisors to hold), in strict confidence and not to disclose or release without the prior written consent of the other party, any and all Confidential Information (as defined herein); provided, that a receiving party may disclose, or may permit disclosure of, Confidential Information (a) to their respective auditors, attorneys, financial advisors, bankers, and other appropriate consultants and advisors who have a need to know such information and are informed of their obligation to hold such information confidential to the same extent as is applicable to the parties hereto and in respect of whose failure to comply with such obligations, Licensee or NRXR, as the case may be, will be responsible or (b) to the extent Licensee or NRXR is compelled to disclose any such Confidential Information by judicial or administrative process or, in the opinion of legal counsel, by other requirements of law. Notwithstanding the foregoing, in the event that any demand or request for disclosure of Confidential Information is made pursuant to clause (b) above, Licensee or NRXR, as the case may be, shall promptly notify the other of the existence of such request or demand and shall provide the other a reasonable opportunity to seek an appropriate protective order or other remedy, which both parties will cooperate in seeking to obtain. In the event that such appropriate protective order or other remedy is not obtained, the party whose Confidential Information is required to be disclosed shall or shall cause the other party to furnish, or cause to be furnished, only that portion of the Confidential Information that is legally required to be disclosed. As used in this section, “Confidential Information” shall mean all proprietary, technical, or operational information, data, or material of one party which has been disclosed by Licensee or its representatives, on the one hand, or NRXR or its representatives, on the other hand, in written, oral (including by recording), electronic, or visual form to, or otherwise has come into the possession of, the other (except to the extent that such Information can be shown to have been (i) in the public domain through no fault of such party or (ii) later lawfully acquired from other sources by the party to which it was furnished; provided, however, in the case of (ii) that such sources did not provide such information in breach of any confidentiality obligations).
13. Protected Health Information. Notwithstanding anything in this Agreement to the contrary, to the extent that Feedback is protected health information (“PHI”, as defined in the Health Insurance Portability and Accountability Act of 1996, the Health Information Technology for Economic and Clinical Health Act, and the regulations promulgated thereunder), NRXR shall not use or disclose PHI except as necessary to provide and support the Product and shall not use or disclose PHI in a manner that would violate any law if used or disclosed by Licensee, except as otherwise permitted by this Agreement or as required by law. NRXR shall implement reasonable and appropriate safeguards to ensure that PHI is not used or disclosed in any manner inconsistent with this Agreement and to protect the confidentiality, integrity, and availability of any electronic PHI it creates, receives, maintains, or transmits on behalf of Licensee as required by law. Licensee retains any and all rights to the PHI it releases to NRXR. NRXR agrees that it acquires no title or rights to PHI as a result of this Agreement. If NRXR and Licensee enter into a separate business associate agreement, such business associate agreement shall supersede this section in its entirety.
14. Assignment. Licensee shall not assign this Agreement, nor any interest therein, or otherwise transfer any rights or obligations under this Agreement. Any attempted assignment or transfer may result in the immediate termination of this Agreement at NRXR’s option.
15. Notices. All notices and other communications hereunder shall be in writing and shall be deemed given upon (a) a transmitter’s confirmation of a receipt of a facsimile transmission, (b) confirmed delivery of a standard overnight courier or when delivered by hand or (c) the expiration of five business days after the date mailed by certified or registered mail (return receipt requested), postage prepaid, to the parties at the following addresses (or at such other addresses for a party as shall be specified by like notice):
16. If to NRXR, to:
Neuro Rehab XR, Co.
6913 Camp Bowie Blvd., #173
Fort Worth, Texas 76116
Attn: Veena Somareddy
Telephone: (855) 589-8326
17. Relationship of Parties. Nothing contained in this Agreement shall be construed as creating a fiduciary relationship or a partnership, joint venture, agency, trust or other association of any kind, each party hereto being individually responsible only for its own obligations as set forth in this Agreement.
18. No Third-Party Beneficiaries. Nothing in this Agreement is intended to or shall confer upon any person or entity (other than the parties hereto) any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement, including any user of the Product, and no person or entity shall be deemed a third-party beneficiary under or by reason of this Agreement.
19. Amendment. No amendments, additions to, alterations, modifications, or waivers of all or any part of this Agreement shall be of any effect, whether by course of dealing or otherwise, unless explicitly set forth in writing and executed by both parties hereto. If the provisions of this Agreement and the provisions of any purchase order, service order, work statement, or similar order acknowledgment written in connection with this Agreement conflict, the provisions of this Agreement shall prevail.
20. Waiver. The waiver by any party hereto of a breach of any provision of this Agreement shall not operate or be construed as a waiver of any subsequent breach. The failure of any party to require performance of any provision of this Agreement shall not affect any party’s right to full performance thereof at any time thereafter.
21. Severability. If any provision of this Agreement or the application of any such provision to any person, entity or circumstance shall be declared judicially to be invalid, unenforceable or void, such decision shall not have the effect of invalidating or voiding the remainder of this Agreement, it being the intent and agreement of the parties that this Agreement shall be deemed amended by modifying such provision to the extent necessary to render it valid, legal and enforceable while preserving its intent or, if such modification is not possible, by substituting therefor another provision that is legal and enforceable and that achieves the same objective.
22. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed to be an original, but all of which together shall constitute one agreement binding on NRXR and Licensee.
23. Governing Law. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Texas without giving effect to the conflicts of law principles thereof.
24. Jurisdiction and Waiver of Jury Trial. Any action, suit or proceeding seeking to enforce any provision of, or based on any matter arising out of or in connection with, this Agreement must only be brought in any federal court located in the State of Texas or any Texas state court, and each party consents to the non-exclusive jurisdiction and venue of such courts (and of the appropriate appellate courts therefrom) in any such action, suit or proceeding and irrevocably waives, to the fullest extent permitted by law, any objection that it may now or hereafter have to the laying of the venue of any such, action, suit or proceeding in any such court or that any such action, suit or proceeding brought in any such court has been brought in an inconvenient forum. Process in any such action, suit or proceeding may be served on any party anywhere in the world, whether within or without the jurisdiction of any such court.
EACH PARTY ACKNOWLEDGES THAT ANY DISPUTE THAT MAY ARISE OUT OF OR RELATING TO THIS AGREEMENT OR THE SERVICES IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE SUCH PARTY HEREBY EXPRESSLY WAIVES ITS RIGHT TO JURY TRIAL OF ANY DISPUTE BASED UPON OR ARISING OUT OF THIS AGREEMENT OR THE SERVICES. THE SCOPE OF THIS WAIVER IS INTENDED TO ENCOMPASS ANY AND ALL ACTIONS, SUITS AND PROCEEDINGS THAT RELATE TO THE SUBJECT MATTER OF THIS AGREEMENT, INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. EACH PARTY REPRESENTS THAT (a) NO REPRESENTATIVE, AGENT, OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT IN THE EVENT OF ANY ACTION, SUIT OR PROCEEDING, SEEK TO ENFORCE THE FOREGOING WAIVER, (b) SUCH PARTY UNDERSTANDS AND WITH THE ADVICE OF COUNSEL HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, AND (c) SUCH PARTY MAKES THIS WAIVER VOLUNTARILY.
25. Further Assurances. From time to time, each party agrees to execute and deliver such additional documents, and will provide such additional information and assistance as any party may reasonably require to carry out the terms of this Agreement.
26. Joint Drafting and Negotiation. Each of Licensee and NRXR agrees that they have had an opportunity to participate in the drafting, preparation and negotiation of this Agreement. Each of Licensee and NRXR expressly acknowledges such participation and negotiation in order to avoid the application of any rule construing contractual language against the drafter thereof and agrees that the provisions of this Agreement shall be construed without prejudice to the party who actually memorialized this Agreement in final form.
27. Entire Agreement. This Agreement constitutes the entire agreement between NRXR and Licensee with respect to the subject matter hereof and supersedes any and all prior representations, warranties, understandings, or agreements, written or oral, with respect to the subject matter hereof. By signing up for a Trial, you agree to be bound by the Terms in this agreement
EXHIBIT A
PRODUCT
1. XR Therapy Trial System