These TERMS OF SERVICE (“Terms”) form a legal agreement between you, or the entity you represent, (“you” or “Customer”) and Fivos, Inc. (“Fivos”) a Delaware company with its principal office at 8 Commerce Avenue, West Lebanon, NH 03784. The access to, and use of the Fivos’ Device Evaluation Portal (“DEP”) is subject to and governed by these Terms. You agree that by accessing DEP, you have read, understood, and agreed to be bound by these Terms. IF YOU DO NOT AGREE WITH ALL OF THESE TERMS, THEN YOU ARE EXPRESSLY PROHIBITED FROM USING THE SUBSCRIPTION SERVICES AND YOU MUST DISCONTINUE USE IMMEDIATELY.
Fivos reserves the right, in our sole discretion, to make changes or modifications to these Terms at any time and for any reason. We will alert you about any changes via the DEP or by e-mail set forth on the applicable Order Form (as defined below). You will be subject to and will be deemed to have been made aware of and to have accepted, the changes in any revised Terms by your continued use of DEP after the date such revised Terms are posted.
Effective: February 4, 2025
1. Definitions.
a. “Affiliates” means any person, corporation, or other entity which controls, is controlled by, or is under common control with a Party, where “control” means control of more than fifty percent (50%) of the voting stock or other ownership interest.
b. “Confidential Information” means any non-public information disclosed by one Party (“Disclosing Party”) to the other Party (“Receiving Party”) which is labeled as proprietary or confidential at the time of disclosure or by its nature is confidential and would be judged so under a reasonableness standard, or is disclosed or provided under circumstances reasonably indicating it is confidential or proprietary. Confidential Information does not include information that (a) is independently developed by the Receiving Party; (b) is rightfully given to the Receiving Party by a third party without confidentiality obligation; (c) was known to the Receiving Party at the time of disclosure, without confidential or proprietary restriction; or (d) becomes public through no fault of the Receiving Party.
c. “Damage” means any (i) settlement amounts approved by the indemnifying Party; and (ii) damages and costs finally awarded against the indemnified Party by a court of competent jurisdiction.
d. “DEP Data” means patient data collected from healthcare institutions, with all direct and indirect personal identifiers
removed in strict accordance with the standards and requirements of 45 CFR §164.514 and further fully anonymized in accordance with current accepted industry practices, and all observations, reports, analyses, statistics, and other information created, compiled, analyzed, generated or derived from such information provided by Fivos in the course of providing the Subscription Services.
e. “Documentation” means all online user manuals, developer documentation, and other technical materials relating to the Subscription Services made available to Customer by Fivos, as may be updated from time to time.
f. “Initial Term” means the initial term of a Subscription to Service(s) as specified in the initial Order Form, beginning on the Service Date.
g. “Malicious Code” means viruses, worms, time bombs, Trojan horses, and other malicious code, files, scripts, software agents and programs.
h. “Order Form” means an order form order executed by Fivos and the Customer for Services placed by Customer and governed by these Terms.
i. “Renewal Term” means each recurring twelve (12) month period following expiration of the Initial Term, unless a different time period is specified in an applicable Order Form.
j. “Service Date” means the service date specified in an Order Form on which the Initial Term or a Renewal Term of a Subscription starts.
k. “Subscription” means a subscription to the DEP specified in one or more Order Forms.
l. “Subscription Period” means the period of time from the Service Date, including the Initial Term and all Renewal Terms, until the expiration or termination of a Subscription.
m. “Subscription Services” means a Subscription to the DEP Data and associated data-processing and analysis services as further specified in one or more Order Forms, along with any software made available by Fivos in connection with such services.
2. Access and Use.
a. Provision of Services; Subscription. During the Subscription Period and subject to these Terms, Customer may access and use the DEP. Customer may add additional Subscriptions Services to their Subscription by entering into an Order Form for such additional services. Any terms set out in an Order Form only apply to the Subscription Services referenced in such Order Form.
b. Restrictions
I. Acceptable Use. Customer must not: (a) use the Subscription Services other than solely for its internal business purposes, (b) modify, copy, or create derivative works based on, the Service or Documentation; (c) license, sublicense (except to Affiliates), sell, resell, rent, lease, transfer, assign, distribute, or make the Service available to any third parties; (d) reverse-engineer the Service; (e) interfere with, or create an undue burden on the Service or Fivos’ network in a manner that poses or has the potential to pose significant harm to Fivos’ other customers or internal systems; (f) use the Service in violation of any Laws; (g) act in a manner intended to circumvent Service-specific usage limits or quotas; (h) send or store Malicious Code in connection with the Service (j) probe, scan or test any vulnerability of the Subscription Services, including, without limitation, performing penetration, stress or load testing, including by introducing software or automated agents or scripts, other than those expressly permitted by the Documentation or as explicitly set forth in the Order Form, without prior written consent from Fivos; or (k) perform or publish any performance or benchmark tests or analyses relating to the Service, other than solely for Customer’s internal use. Fivos reserves the right to terminate or suspend your access to DEP at our discretion, without notice, for conduct that we believe violates these Terms or is harmful to other users or the application.
II. DEP Data Use. Customer acknowledges and agrees that it may only utilize the DEP Data made available to the Customer for its own, internal, quality improvement, quality assurance, and research and development purposes. In addition, Customer agrees, unless approved in writing by Fivos, it will not use the Subscription Services or the DEP Data: (i) for marketing that compares the effectiveness of Customer’s device(s) to any or all other similar devices collected in in the DEP; (ii) general commercial purposes; (iii) preparation of scientific publications for presentations; (iv) publication or any other application public use; or (v) Customer’s regulatory submission and reporting requirements, which, for clarity, includes providing such DEP Data to any regulatory authority.
c. User Accounts. You are responsible for maintaining the confidentiality of all usernames, passwords, and other access credentials (such as API tokens and OAuth credentials) created by or assigned to you (“Credentials”) and are solely responsible for all activities that occur with such Credentials. Customer is responsible for all actions on Users’ accounts and for all Users’ compliance with these Terms. Customer and users must protect the confidentiality of their passwords and login credentials. You will promptly notify Fivos if it suspects or knows of any fraudulent activity with its Credentials, or if they become compromised.
3. Payment.
a. Invoicing and Payment Terms. The fees and accepted methods of payment are set forth on the applicable Order Form. Unless otherwise specified in an Order Form, Fivos will invoice Customer annually in advance of the Customer’s Service Date. If Customer adds any Subscription Services to the Subscription at a later time, Fivos will invoice Customer for fees resulting from such addition. Each invoice will be due and payable upon receipt by Customer (“Payment Due Date”). Fivos may invoice Customer separately for any fees related to Customer’s use of the Subscription Services exceeding the usage limits set out in the Order Form. Customer’s obligation to pay all fees is non-cancellable and except as explicitly set forth in these Terms, Fees are non-refundable.
b. Late Payments. After the Payment Due Date, invoiced fees may bear interest at the rate of 1.5% per month (or the highest rate permitted by law, if less) compounded daily from the Payment Due Date until paid in full. Customer will be responsible for all reasonable expenses (including attorneys’ fees) incurred by Fivos in collecting past-due Fees. If Customer has not paid the Fees within thirty (30) days of the Payment Due Date, Fivos may (a) suspend Customer’s access to the Service until all undisputed and past-due Fees are paid in full; and (b) turn Customer over for collection to a third-party agency, if Customer fails to pay all undisputed past-due fees within thirty (30) days after Fivos notifies Customer of non-payment of such undisputed past-due fees.
4. Term and Termination.
a. Term. The Subscription Period shall be set forth in the applicable Order Form. These Terms shall remain in effect until the Order Form has expired or been terminated. These Terms and any Subscription may be terminated only in accordance with Section 4.b. below. Unless otherwise specified in an Order Form, a Subscription will automatically renew for a successive Renewal Term thereafter unless and until either Party provides written notice of its intent not to renew a Subscription at least two (2) months prior to the expiration of the Initial Term or the then-current Renewal Term.
b. Termination. Either party may at any time terminate a Subscription, in whole or in part, upon written notice to the other party, if: (a) the other party has materially breached any provision of these Terms, and such breach cannot be cured, or, if curable, such breach remains uncured thirty (30) days after receipt of notice from the non-breaching party specifying such breach in reasonable detail; (b) the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors; or (c) the other party becomes generally unable or fails to pay its debts as they come due.
c. Effect of Termination. Upon expiration or termination of a Subscription: (a) Customer’s right to use and access the Subscription Services ends; (b) Customer will immediately pay all outstanding fees due to Fivos through the date of termination or expiration; and (c) each party will upon request of the other party promptly return or destroy all Confidential Information of the other Party. Notwithstanding the foregoing, the Receiving Party may retain any Confidential Information that cannot feasibly be returned or destroyed, and a copy of any Confidential Information required for compliance with its internal record keeping requirements or automatic archival activities, provided that Section 8 shall continue to apply to such retained Confidential Information until it is deleted or returned.
5. Proprietary Rights. All rights, title and interest including, but not limited to, copyright and other intellectual property rights in and to DEP, including without limitation the website, programs, procedure forms and designs as well as the patents, trademarks, applications and other intellectual property associated therewith, are owned by Fivos, Inc. None of the foregoing is a “work-made-for-hire”. Such rights are protected by United States copyright laws, other applicable copyright laws, and international treaty provisions. Fivos, Inc. retains all rights not expressly granted herein.
6. Disclaimer of Warranties. To the extent allowed by local law, DEP is provided to Customer “as is” without warranties or conditions of any kind, whether oral or written, express or implied. Fivos, Inc. specifically disclaims any implied warranties or conditions of merchantability, satisfactory quality, non-infringement and fitness for a particular purpose.
7. Compliance with Law. Fivos and Customer shall comply with all applicable laws. Each party represents and warrants to the other that to the best of its knowledge: (a) neither it nor any of its principals or affiliates are excluded from participation under any federal health care program, as defined under 42 U.S.C. § 1320a-7b(f); (b) neither party has arranged or contracted (by employment or otherwise) with any employee, contractor or agent that it or its Affiliates know or should know are excluded from participation in any federal health care program; and (c) no final adverse action, as such term is defined under 42 U.S.C. § 1320a-7e(g), has occurred or is pending against it or its Affiliates or to its knowledge against any employee, contractor or agent engaged to provide items or services under these Terms; and, shall notify the other party of any event covered by (a) through (c) above or any basis therefore within seven (7) business days of its learning of any such event.
8. Confidentiality. You and Fivos shall protect, preserve, and maintain the confidentiality of the Disclosing Party’s Confidential Information using the same standards to protect the Confidential Information of it affords its own such information, but in no event less than a commercially reasonable degree of care. Each party will only use the Disclosing Party’s Confidential Information only as permitted by these Terms or required to provide the Subscription Services. You specifically agree not to disclose to any third-party information regarding DEP and related systems, including any and the contents and documentation thereof, processes, and safeguards in place, without Fivos’ prior written consent in each instance, unless legally required to do so.
9. Data Security. Customer must make every attempt to safeguard Customer’s data and other files while uploading or downloading it from DEP. Fivos does not assume responsibility for loss of data or any other losses that result from updating or downloading Customer data.
10. Limitation of Liability. EXCEPT FOR A PARTY’S BREACH OF CONFIDENTIALITY, GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, AND REGARDLESS OF THE FORM OF ACTION, (i) IN NO EVENT WILL EITHER PARTY (OR ITS OFFICERS, DIRECTORS, EMPLOYEES, MEMBERS, MANAGERS OR AGENTS) BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF REPUTATION OR COSTS OF SUBSTITUTE SERVICES) ARISING OUT OF OR RELATING TO THE SUBSCRIPTION SERVICES, DEP, OR AN ORDER FORM, EVEN IF SUCH PARTY IS ADVISED OF THE POSSIBILITY THEREOF OR IS NEGLIGENT, AND (ii) THE MAXIMUM AGGREGATE LIABILITY OF EITHER PARTY (AND ITS OFFICERS, DIRECTORS, MEMBERS, MANAGERS, EMPLOYEES AND AGENTS) FOR DAMAGES FOR ANY CAUSE WHATSOEVER (INCLUDING NEGLIGENCE) SHALL, BE LIMITED TO THE FEES PAID OR PAYABLE BY CUSTOMER TO FIVOS IN THE YEAR IN WHICH THE CLAIM AROSE.
11. Indemnification.
a. Indemnification by Fivos. Fivos will defend Customer and its Affiliates authorized to use the Subscription Services under these Terms, and their respective officers, directors, and employees, and indemnify them against Damages to the extent arising from an allegation that the Subscription Services when used in accordance with the Documentation and these Terms infringe any third party’s United States Intellectual Property Right. Such indemnity, however, excludes any claims that arise or result from (i) Customer’s use of the Subscription Services or DEP in combination with equipment, software or services not provided, recommended or furnished by Fivos, provided that no indemnification claim would have arisen but for such combination; (ii) Customer’s use of the Subscription Services or DEP that materially violates an Order Form or applicable law, regulation of any governmental authority or self-regulatory agency or authority; or (iii) Customer’s use of the Subscription Services or DEP in a manner for which they were neither designed nor contemplated.
b. Infringement Remedies. If a Subscription Service infringes third-party Intellectual Property Rights, Fivos may, at Fivos’ option, in regard to the affected Subscription Service: (a) procure for Customer the right to continue using the Service; (b) replace the Service with non-infringing services which do not materially impair the functionality of the Service for Customer; (c) modify the Service so that it becomes non-infringing; or (d) terminate the Subscription to the impacted Service and provide a pro rata refund of any Fees paid by Customer to Fivos for the remainder of the Subscription Term for the affected Service.
c. Indemnification by Customer. Customer will defend Fivos and its Affiliates, licensors, suppliers, officers, directors, employees and agents and indemnify them against Damages arising from or that are based upon: (a) Customer’s use of the Subscription Service in a manner not permitted by these Terms and the Documentation; and (b) your gross negligence, willful misconduct or fraud.
d. Procedure. The indemnifying party’s obligations as set forth above are expressly conditioned upon each of the following: (a) the indemnified party will promptly notify the indemnifying party in writing of any threatened or actual Damages; provided, that failure to provide such prompt notice will not release the indemnifying party from its indemnity obligations except to the extent the indemnifying party is materially prejudiced thereby; (b) the indemnified party will tender sole control of the defense or settlement of the indemnified portion of the legal proceeding to the indemnifying party; (c) the indemnified party will cooperate with the indemnifying party (at the indemnifying party’s expense) to facilitate resolving any allegations and the settlement or defense of the indemnified portion; and (d) the indemnifying party will not settle the indemnified portion of any legal proceeding without the indemnified party’s prior written consent in a manner which (x) results in an admission of liability by the indemnified party, (y) requires payment of monies by the indemnified party, or (z) requires indemnified party to take or refrain from taking an action.
12. General Terms.
a. Assignment. Except for an assignment pursuant to a merger, acquisition or sale of a party’s business or assets, or any similar transaction regardless of form, Customer may not assign an Order Form or these Terms without Fivos’ written consent, such consent not to be unreasonably withheld, conditioned or delayed. Any assignment in violation of this Section 12.a. shall be void ab initio. Each Order Form and these Terms shall be binding upon each party’s successors and permitted assigns.
b. Applicable Law. These Terms and each Order Form will be construed, governed, and interpreted in accordance with the laws of the state of Delaware, excluding its conflicts of law provisions. If a provision of these Terms is held invalid under any applicable law, such invalidity shall not affect any other provision of these Terms that can be given effect without the invalid provision. Further, all terms and conditions of these Terms shall be deemed enforceable to the fullest extent permissible under applicable law, and when necessary, the court is requested to amend any and all terms or conditions to give them such effect.
c. Agreement Order of Precedence; Conflicting Terms. In the case of any conflict between these Terms and an Order Form, these Terms will govern and control. An Order Form will take precedence over these only in respect of the Subscription Services listed in such Order Form. The order of precedence listed herein will only apply to the extent that there is a conflict.
d. Force Majeure. Neither party shall be liable for any failure or delay in the performance of any of their respective obligations (other than the payment of fees) if prevented from doing so by a cause or causes beyond its reasonable control (a “Force Majeure Event”), including without limitation fires, floods, terrorism, strikes, blackouts, war, restraints of government, utility or communications failures or interruptions, failures of third party vendors, Internet slow-downs or failures (through denial of service, worms, telecommunications problems or the like), equipment failures, computer hackers or other causes that are beyond a party’s reasonable control. Performance under these Terms and any applicable Order Form shall be suspended for both parties throughout the duration of the Force Majeure Event. If any such suspension of performance exceeds thirty (30) days, the non-affected party may, at its option, terminate an Order Form upon notice to the affected party.
e. Notices. All notices to be given or otherwise made to a party, in order to constitute valid notice under these Terms or under any Order Form, must be made in writing, must be delivered by hand in person, or by express overnight courier service, or by registered or certified mail, e-mail, postage pre-paid return receipt requested, and must be addressed to such party at the address or e-mail set forth on the applicable Order Form or at such other address or e-mail as may be hereafter designated in writing by such party.
f. Severability. If any provision of an Order Form or these Terms shall be held to be illegal, invalid or unenforceable, such illegality, invalidity or unenforceability shall apply only to such provision and shall not in any manner affect or render illegal, invalid or unenforceable any other provision of such Order Form or these Terms and such Order Form or Terms shall be reformed, construed and enforced to the fullest extent as if any such illegal, invalid or unenforceable provision were not contained herein. Counterparts. Each Order Form may be executed in counterparts, and in scanned, electronic, or tangible form, each of which shall be deemed an original, but together shall constitute one and the same instrument.
g. Independent Contractors. Each Order Form shall create an independent contractor relationship between Fivos and the Customer. Neither party shall have any authority to act in any way as a representative of the other, or to bind the other to any third party, except as specifically set forth herein, and the parties shall not be deemed to be partners, joint ventures or the like by virtue of the provisions hereof.
h. Headings. The headings preceding the various paragraphs and subparagraphs of these Terms and each Order Form are intended solely for the convenience of the parties and shall not be deemed relevant in the construction of these Terms and/or Order Form or its terms.
i. Survival. The obligations under Sections 2, 5, 7, 8, and 10 of these Terms and any other provision of these Terms or applicable Order Form that by its nature is intended to survive, shall survive the termination or expiration of such Order Form.
j. Entire Agreement; Modifications; No Waiver. Each Order Form, which includes (i) the exhibits and schedules attached thereto and (ii) these Terms, constitute the entire agreement between the parties with respect to the subject matter hereof, supersedes any and all existing agreements relating to the subject matter hereof, and may not be modified or amended except by a written instrument signed by both parties. No failure or delay in exercising any right, power or remedy under an Order Form shall operate as a waiver thereof, nor shall any single or partial exercise of any right under an Order Form preclude any other or further exercise thereof or the exercise of any other right.