Standard license agreement
priaid AG, an incorporated company (société anonyme, Aktiengesellschaft) pursuant to the laws of Switzerland with its registered office at Sonnenbergstrasse 17, 8835 Feusisberg, Switzerland (the “Company”);
the client/licensee mentioned in the main agreement/contract (the “Beneficiary“).
(collectively referred to as the “Parties”).
- The Company is a start-up, which develops, offers and markets a web-based triagetool for the outpatient medical market (the “Tool”, which can be offered as an API-service and/or as a Component).
- The Beneficiary is a company, which will use the Tool to support its services.
- The End-User is a client (paying or non-paying) of the Beneficiary which will use the services (supported by the Tool) of the Beneficiary. (the “End-User”)
- The Company and the Beneficiary conclude a contract to license/use the Tool (the “Purpose”).
- To reach the Purpose both parties could disclose each other certain proprietary information such as workflows, processes, plans, trade secrets, customer data, business affairs, know-how, algorithms and source code of the software, which by the disclosing party is classified as confidential and potentially price sensitive. The parties will protect confidential information in the way as they have set out in this agreement.
IT HAS BEEN AGREED AS FOLLOWS:
- Contract components
- The main agreement/contract and its appendices and additional individual contracts are integral part of this standard agreement.
- Deviations in other contractual documents (main agreement/contract, appendices, individual contracts, etc.) from this contract need to be made in writing referring to the deviation of this standard agreement.
- In case of any discrepancies or contradictions the order of priority is as follows, whereby among documents of the same hierarchy the newer versions will have priority:
- The main agreement/contract and its appendices.
- The standard license agreement and/or standard service agreement.
- The individual contracts in addition to the standard agreement.
- Object of contract
- Object of right-to-use license:
The Beneficiary (licensee) is permitted on payment of the agreed remuneration to use the API-service and/or Component provided by the Company (licensor) for its own business use for the purposes of building or using IT solutions. The Beneficiary is hereby permitted to use the Tool under the terms of the agreed license model. Any other rights pertaining to the Tool/IT-solution provided (or its further development) remain entirely with the Company.
Details of the license model are contained in the main agreement or its appendices. The level of the remuneration to be paid by the Beneficiary is contained in an invoice to be prepared separately for the Beneficiary.
- Contract details of right-to-use license agreement
- Use and remuneration
The Tool can be offered with different features and depending on the license model chosen as per the main agreement or its appendices not all features described in the following are included in all packages.
- The Beneficiary (licensee) receives with full payment of the remuneration an according to the chosen license model applicable, non-exclusive right for use for a limited period of time (one year or corresponding to ordered term) of the API-service and/or Component as well as the applicable documentation for his own purpose.
- Until full remuneration based on the agreed schedule is received the Beneficiary is authorized to use the API-service and/or Component, but this right can be recalled again. The Company (licensor) may recall or deny use of the license as long as the Beneficiary is behind on his payment obligations based on the agreed remuneration and schedule.
- All data processing devices (such as hard disks or central processors) that hold part or the complete API-service and/or Component for a limited time or permanent, are owned by the Beneficiary or are under his direct control.
- The license is by default applicable only for the use/offering from one location (country, market) of the Beneficiary and refers to the individual or legal person of the Beneficiary. This means that for the use of the API-service and/or Component for multiple locations and/or in subsidiaries or for the use in products/services of clients of the Beneficiary it is necessary to purchase additional licenses or this point needs to be mentioned expressedly in the main contract/agreement. The Beneficiary needs to make sure that the Tool (API-service and/or Component) is used pursuant to the laws of the country, where it is being used/offered.
- Copying rights, assignment and access protection
- The Beneficiary may make a backup copy of the Component. However only a single backup copy may be made and retained and it is to be labelled as a copy of the licensed Component.
- It is prohibited to make further copies (which includes printing of the program code, the algorithm, the output and of the contents of the priaid database). Distribution of the documentation or the description of the program is only permitted with the express written agreement of the Company.
- The Beneficiary cannot pass on the API-service/Component and related documentation to any third parties, except where the disclosure is necessary for the performance of the own service and it has been agreed in advance in writing with the Company. In such a case the Beneficiary needs to make sure that the third party must comply with the same non-disclosure and confidentiality provisions as himself and also accepts the intellectual property rights and copyrights of the Company.
- The Beneficiary may without the prior written consent of the Company neither rent, lease, pledge the API-service/Component nor arrange its ASP-use (application service providing).
- The Beneficiary is under an obligation to take appropriate measures to prevent unauthorized third party access to the API-service/Component. Any data storage media on which the API-service/Component is provided and the backup copies are to be kept in a location which is protected against unauthorized third party access. Employees of the Beneficiary are to be expressly instructed to comply with these provisions and the provisions of intellectual property rights and copyrights.
- Decompiling and modifications of the API-service/Component
- Conversion of the licensed program code, the algorithms or the output into other code forms (decompiling) and all other types of derivation of the source code of the API-service/Component or its parts (reverse engineering) including modification of the API-service/Component are prohibited.
- Removal of anti-copy protection or any similar protection mechanism is only permitted to the extent that this protection mechanism is impeding or preventing problem-free use of the API-service/Component. The burden of proof that the protective mechanism is impeding or preventing problem-free use of the API-service/Component rests with the Beneficiary. The Beneficiary is under an obligation, to notify the Company in writing of the removal of anti-copy protection or similar protection mechanism from the API-service/Component. The Beneficiary shall define as precisely as possible any problem with the use of the API-service/Component which necessitates a permitted modification of the API-service/Component of this type. This obligation to define the problem includes a detailed description of the symptoms of the problem, the suspected cause of the problem and in particular a comprehensive description of the API-service/Component modification made. If the Company rectifies the defect as a result of such notification, the Beneficiary is under an obligation to delete the API-service/Component modified by him and any copies which exist and to confirm this in writing to the Company.
- If the Beneficiary needs information that is indispensable to establish the interoperability of an independently created IT program/development with the API-service/Component, then he needs to make the relevant request to the Company if such a change is not already allowed according to the product documentation, the chosen license model or the delivered information. The Company reserves the right to provide or refuse the needed information.
- The Beneficiary is not entitled to conduct modifications or interferences at the API-service/Component or to have them conducted by a third party, not even to remove possible bugs.
These actions may only be assigned to third parties who have commercial operations, if the Company is not willing to make the required API-service/Component modifications in return for an appropriate fee. The Company is to be given sufficient time to check the assignment of the work and is to be supplied with the name of the third party.
- Warranty claims and obligation to check for and give notice of defects
According to the recognized standard of technology it is impossible to develop complex software products (respectively API-services/Components) that are completely free of defects, that can be used for every conceivable scenario or that works always error-free in all applications and combinations particularly with different hardware components. The condition of the API-service/Component provided by the Company is not focused to eliminate all defects, but rather that the software has no defects, which hinder the intended usage more than only in a minor way.
- The Company ensures within a warranty period of one year from the date of delivery that the supplied API-service/Component is essentially free from material and manufacturing defects and essentially works in accordance with the service description.
- The Beneficiary shall check the supplied API-service/Component within 10 working days of delivery, particularly in order to verify that the basic program functions are complete and in working order. Defects which are identified or with that could be identifiable by properly examining the goods must be reported to the Company in writing within a week. Defects which are not identifiable from a properly conducted check as described above are to be notified within 5 working days of discovery. A notice of defects must contain as detailed as possible a description of the defects. The requirements of any defect form provided by the Company must be complied with.
If the above described obligation to check for and give notice of defects is breached, the API-service/Component is deemed to have been accepted in respect of the defect in question. The properties of the API-service/Component provided by the Company can already be tested in advance on the occasion of a due diligence, however they should be tested latest on actual use and latest from then on the above de facto acceptance enters into force.
- If a notice of defects properly reported is justified, the Company will replace it free of charge. The Company will be entitled to proceed to a substitute delivery at its own option. The Beneficiary has to assist the Company in any possible remedial measures to its capacities. The Company shall be entitled to refuse the chosen manner of supplementary performance or the entire subsequent performance if such is only possible at unreasonable expense. If the Company delivers the supplementary performance API-service/Component in condition without defects, then the defect API-service/Component must be deleted from all data storage devices of the Beneficiary and cannot be passed on to any third parties. Withdrawal from the contract is not possible on the grounds of an immaterial defect.
If the Beneficiary has made a claim against the Company under the guarantee and it turns out that either there is no defect or that the defect asserted does not trigger any guarantee obligation by the Company, the Beneficiary must reimburse the Company for any and all expenses incurred by the Company, to the extent that it is responsible for making a claim against the Company based on gross negligence or criminal intent.
- The API-service/Component provided by the Company is protected by copyright and all other corresponding proprietary rights. The proprietary rights apply especially to the programming code, the algorithm, the output of the API-service/Component, the documentation, the appearance, the design of the user interface incl. the input/output masks and the print-outs, the content, the structure and organization of the API-service/Component, the names, logos and other presentations within the IT development. All proprietary rights belong to the Company who is the manufacturer of the API-service/Component.
- The duplication, use, transmission, modification or reproduction of the contents of the API-service/Component without explicit prior consent is prohibited. Any use, even parts of it, outside the scope of this this license contract and usually intended purpose of the API-service/Component is explicitly not allowed. The API-service/Component has to be treated like any other copyrighted material. Other components parts of the API-service/Component, such as supplied designs and templates can exclusively and only be used in conjunction with the API-service/Component and are also subject to these provisions.
- Copyright notices, logos, company name, serial numbers as well as other features that serve as product identification must under no circumstances be removed or changed, unless the license model allows within the scope of White-Labeling such a deviation from the provision and it has been agreed. The same applies to suppressing the display of such features on the screen.
- In the event of any breach of the above-mentioned agreements in clause 3, the Beneficiary agrees to pay a contractual penalty in the amount of CHF 10’000, excluding objections in regards to multiple occurrences. Moreover the Company is entitled to cancel the license contract on significant grounds in the event of serious infringements of his copyright in the API-service/Component.
- Upon receipt of the cancelation or expiration of the license, all rights of use of the Beneficiary expire regardless of payments already made. In this case the API-service/Component, the documentation and the outputs shall be returned to the Company, all (backup) copies of the API-service/Component destroyed. In case a return is impossible due to technical reasons, the Beneficiary will after getting the Company’s written approval delete everything and confirm this to the Company in writing.
- Software updates, further development and property rights
- Each license includes based on the chosen license model any updates made during the license period. It is under the license model entitled to these updates, if any are provided by the Company.
- The Company aims to continuously develop the existing API-service/Component. The Tool and in particular the algorithms and content of the databases should as well be incorporated in the future development of new products. The rights to the intellectual property, regardless of whether they have arisen before, during or after the licensing and possible cooperation with the Beneficiary, belong exclusively to the Company (priaid AG). In particular, the Company holds full rights to the following ideas, concepts and developments (which are without exception confidential):
- IT-supported triage of patients („selftriage app“ and „expert system“) based on the priaid technology,
- the triage Tool developed by priaid, its algorithms and any enhancement and optimization of algorithms,
- the validation and testing setup developed by priaid, which is used to continuously improve the algorithms and the platform,
- the content of the priaid-platform, in particular the medical content.
- Duration of contract / cancellation / support after termination of contract
- This standard agreement will be in force from the date on which the main agreement/contract is signed by both parties and its cancellation is pursuant to the main agreement/contract.
- With the termination of the contract all rights and obligations expire with the exception of confidentiality and data protection obligations and intellectual property rights and copyright.
- Warranty and liability
- The Company does not provide any guarantee that (i) the Tool/services meet the requirements or expectations of the Beneficiary (or his end users); (ii) the Tool/services will be available uninterrupted, timely, secure or error free; (iii) the results that may be obtained from the use of the Tool/service will be accurate or reliable; (iv) any errors in the services will be corrected.
The Company shall not be liable for any direct or indirect damages, resulting from: (i) the use or the inability to use the Tool/services; (ii) any changes made to the Tool/services; (iii) any permanent or temporary unavailability of the Tool/services; (iv) unavailability, respectively incorrect availability of data provided by the Tool/services; (v) or any other matter relating to the Tool/services. Technical support is provided under the terms of the license model and on a best-effort basis. The Company does not accept any warranty claims for the availability of technical support. The Company has the right to use for the provision of services at any time and in any amount the services of third parties.
- The Company shall only be held liable for damage if the Company or one of its vicarious agents has violated an essential contractual obligation (cardinal obligation) in a manner jeopardizing the contract or if the damage is due to gross negligence or deliberate intent on the part of the Company. The Company’s liability is limited to the license/purchase price of the Tool (API-service/Component). Claims of the Beneficiary beyond that, especially claims for damages including those for escaped benefit or because of other financial damages of the Beneficiary are excluded. The Company is not liable for cases of force majeure such as fires, floods, earthquakes, hostage-taking, terrorist attacks or acts of war.
- The Company is not liable for any data loss. The Company is also not liable for damages insofar as the Beneficiary (or end user) would have been able to prevent their occurrence via measures to be reasonably expected of it – in particular such as via IT and data backup. No liability is accepted in respect of the suitability of the Tool (API-service/Component) for the Beneficiary’s purposes and its compatibility with the Beneficiary’s (or end user’s) existing IT environment (software and hardware).
- If the Company cannot provide services as a result of serious causes (e.g. force majeure, power cuts, failure of electronic data processing), then the Company’s obligations will cease for the extent and duration of the obstruction, unless it can be proven that the Company is significantly at fault. Generally no claim can be asserted with respect to the permanent availability of the API-service/Component provided by the Company. If the system is not available at all, or not available with the full range of features, for reasons for which the Company cannot be held responsible, or for maintenance-related reasons, then the Company cannot be held liable for damages, including consequential damages that may result for the Beneficiary.
- The Company assumes no liability for damages for the Beneficiary (the medical service provider or the end user), which may arise from a contact that has been established with the help of any priaid solution (e.g. Tool, API-service/Component) between medical service provider and patient. The Company shall only provide the technical requirements for the transfer and administration of information, and shall not be involved, neither as intermediary, party or representative of a party, in the contractual relationship between Beneficiary, medical service provider and end user (patient). The end user (patient) is responsible for the correctness of the entries made and information submitted, the Beneficiary and/or medical service provider is responsible for the resulting medical service. The Company is in particular not liable for the correctness of the entries made or information submitted by the end user (patient) to the medical service provider and/or the Beneficiary and the correctness of the offered medicals services by the medical service provider and/or the Beneficiary.
- The Company’s liability shall be excluded in the event of a use by the Beneficiary that is contrary to the contract.
- The parties undertake to keep confidential all information related to this Agreement during the effectiveness of this Agreement and for five years after its termination, and during such time parties shall not disclose such information to any third party except (a) as required by law or regulations, (b) as necessary to support a claim or defense in litigation between the parties hereto, or (c) as otherwise agreed in writing between the parties. Notwithstanding the foregoing, parties may disclose the existence of the present Agreement for commercial purposes.
- Regarding any other confidential information the parties hereby agree as follows:
- For purposes of this agreement, “Confidential Information” shall mean any and all non-public information the Company/the Beneficiary (the Originator) has disclosed or may disclose to the Beneficiary/the Company (the Recipient), including but not limited to information related to: functionality of the Tool, Tool development and design, IT development not yet known to the public, clients or prospective clients, internal communications, events, or meetings, or any other research, development, operations, marketing, transactions, regulatory affairs, discoveries, inventions, methods, processes, articles, materials, algorithms, formulas, specifications, designs, drawings, data, strategies, plans, prospects, know-how and ideas, whether tangible or intangible, and including all copies, analyses and other derivatives thereof.
- The Recipient agrees (i) not to disclose any Confidential Information or any information derived therefrom to any third person, (ii) to keep the Originator’s Confidential Information confidential and take all the reasonable precautions to protect the confidentiality of such Confidential Information with the same degree of care with which it protects the confidentiality of its own confidential information, but in no event with less than a reasonable degree of care, and (iii) not to use any Confidential Information for any purpose whatsoever except to advance the legitimate business interests of the Originator under written or oral instruction of the Originator’s authorized officers.
- All right, title, and interest in and to the Confidential Information shall remain with the Originator or its licensors. Nothing in this agreement is intended to grant any rights to Recipient under any patents, copyrights, trademarks, or trade secrets of the Originator.
- On request of the Originator and termination of this agreement, the Recipient shall destroy all materials, including electronic media of the Originator with confidential information at their own expense, including all copies in his possession (including all copies owned by its directors, officers, employees or consultants)
- Privacy and End-User Agreements
- The Beneficiary agrees to keep the patients’ personal data, in particular their personal health data, which has been provided with the help of any priaid solution (e.g. Tool, API-service/Component) strictly confidential. The Beneficiary won’t use it for any purpose other than the medical service/treatment of the patient. The Beneficiary also explicitly acknowledges that any further disclosure of the personal data of patients, especially any disclosure of their data to other doctors, nurses, hospitals, clinics and health insurance is not allowed and that this further disclosure requires an additional explicit consent by the patient. The Beneficiary guarantees that all data which he has gained knowledge about due to the use of any priaid solution (e.g. Tool, API-service/Component) will be used exclusively for medical services, treatment and billing of the respective patient. It is strictly prohibited to economically or in any other way exploit the data which the Beneficiary has gained knowledge about under the present agreement, even after the termination of this Agreement.
In addition, the parties commit to comply with applicable laws on data protection.
- Miscellaneous regarding confidentiality and privacy
- The parties shall inform their employees and agents about the privacy obligations, oblige them to maintain confidentiality and monitor compliance.
- In the event that a party, its employees or subcontractors violates confidentiality and data protection obligations, the relevant party owes to the other party a penalty unless it can prove that neither they nor their employees and any subcontractors are at fault. The penalty is CHF 10’000 per case. The right to assert a higher claim for compensation remains reserved. Payment of the penalty does not exempt from further compliance with the confidentiality and data protection obligations.
- Neither party makes any explicit or implicit assurance or warranty pertaining the correctness or completeness of the protected information.
- The confidentiality and data protection provisions continue to remain in force also after the termination of the contract.
- Non-forfeiture of claims
- If a party fails to assert a right or legal remedy for which it would be entitled under this agreement, then this doesn’t mean that it waives any further rights or legal remedies related thereto.
- Severability clause
- Should any provision of this agreement be or become invalid or illegal or include a gap, then the remaining provisions shall retain their validity. The invalid provision must be replaced by a valid provision, the content of which comes as close as possible to that of the invalid provision.
- Applicable law and place of jurisdiction
- The parties agree that in respect of all legal matters arising in the context of the contract, the law of Switzerland shall apply, to the exclusion of the UN Convention on Contracts for the International Sale of Goods.
- Both parties agree to try to settle their dispute amicably before resorting to the courts in a way which is verifiable. If agreement cannot be reached and the appeal to the court is unavoidable, then both parties agree to Bezirk Hoefe (SZ), Switzerland, as the exclusive jurisdictional body.
- Final provisions
- Neither party shall acquire tacitly or in any other manner license or right to or ownership of proprietary information, which the other party has communicated or which has been received from the other party.
- Nothing in this agreement shall limit the right of the parties to hold talks with third parties, provided that such discussions do not violate the terms of this agreement or its contract elements.
- The parties are prohibited to entice employees, freelancers, stakeholders or people involved (e.g. advisor) away from the other party. This prohibition applies during the term of this agreement, and three years after termination of the agreement. However, the Board of the respective party may agree to a waiver for the other party.
- The rights of the parties under this agreement may not be transferred without the prior written consent of the other party.
- Changes and additions to the present contract and any attachment are valid only in written form.
 API: Modular programming interface, which offers certain program routines for a „main program“, into which priaid services want to be integrated. An API is not capable of functioning by itself; however it works only in combination with a main program asking for different services.
Component: A program package, which has been designed to offer certain defined functionalities and program routines for a specific purpose.