SOFTWARE SERVICES AGREEMENT
PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING THIS SERVICE.
BY USING THE SERVICE, CLICKING AGREE OR OTHER FORM OF ASSENT, YOU ARE AGREEING TO BE BOUND BY THIS AGREEMENT. IF YOU ARE AGREEING TO THIS AGREEMENT ON BEHALF OF OR FOR THE BENEFIT OF YOUR EMPLOYER OR A THIRD PARTY, THEN YOU REPRESENT AND WARRANT THAT YOU HAVE THE NECESSARY AUTHORITY TO AGREE TO THIS AGREEMENT ON THEIR BEHALF. REVIEW SECTION 9, AS IT REQUIRES MANDATORY ARBITRATION AND CONTAINS A CLASS ACTION WAIVER.
This agreement is between JET Worldwide Enterprises Inc., a Delaware corporation (“JET”), and the User agreeing to these terms (“Customer”).
1. SOFTWARE SERVICE.
This agreement provides Customer access to and usage of CatchU, an Internet-based software service designed to administer and calculate multisensory integration effects (“Tests”) in order to objectively assess fall risk in adults who have a patient or client relationship with Customer (“Users”). CatchU includes a mobile software/app on which the Test is taken by a User and also generates Test results and billing assistance for Tests (“Service”).
2. USE OF SERVICE.
Customer Owned Data. All data uploaded by Customer or User invited by Customer to the Service remains the property of Customer, as between JET and Customer (“Customer Data”). Customer grants JET the right to use the Customer Data solely for purposes of performing under this agreement and as permitted in this agreement. During the term of this agreement, Customer may export its Customer Data to the extent permitted by functionality within the Service. Further Customer grants JET the option of using deidentified data for the purposes of product enhancement, research and/or publications.
Access and Usage. Customer may allow its contractors to access the Service in compliance with the terms of this agreement, which access must be for the sole benefit of Customer. Customer is responsible for the compliance with this agreement by its employees and contractors.
General Customer Responsibilities. Customer: (i) must keep its passwords secure and confidential; (ii) is solely responsible for Customer and User Data and all activity in its account in the Service; (iii) must use reasonable efforts to prevent unauthorized access to its account and notify JET promptly of any such unauthorized access; and (iv) may use the Service only in accordance with the Service's online knowledge base and applicable law.
Customer Responsibilities with Regard to Users. Customer understands the following and agrees that it is Customer’s responsibility to make Users (its patients and/or clients) aware of the following:
● CatchU is a screening test for a User’s risk of falls but a low probability score does not guarantee that a User will not fall.
● CatchU is NOT an Emergency Service and in the event of an emergency, patients and clients must use a phone to call 911 or Customer or another healthcare provider.
● Though Users may be in direct, virtual contact with JET through the Service, neither JET nor the Service provides any medical or healthcare services or advice including, but not limited to, emergency or urgent medical services.
● Users are responsible for the security of their communications that are within their control, including, without limitation secure internet connection, creating strong passwords, and safeguarding such passwords.
Technical Support. JET must provide Customer support for the Service under the terms of JET's Customer Support Policy (Support), which is located at email@example.com.
Third Party Services. The Service interoperates with one or more third party services and depends on the continuing availability and access to such third-party service and any data or information interfaces (“Third Party Services”). If for any reason JET cannot access or use the applicable Third Party Service (including without limitation, change in terms or increase in fees charged by a third-party service provider), JET may not be able to provide all of the functions of its Service. No refund or credit will be provided for unavailability of any Third Party Services. Customer will only be charged for reports generated as a result of a User participating in a Test.
Availability. JET will make commercially reasonable efforts to maintain the availability of the Service, excluding any scheduled downtime, events beyond the reasonable control of JET and Customer or User technical issues. The features and functions of the Service may change but will not materially degrade during a paid term of an order.
Mutual Compliance with Laws. Each party represents and warrants to the other party that it will comply with all applicable laws regarding its performance under this agreement.
Accuracy of Information Provided. Customer represents and warrants to JET that all Customer Data and other material provided under Customer’s account, by Customer or on its behalf by a contractor or User, is true, correct and accurate. If Customer learns that any Customer or User Data provided to JET as part of the Service is not true, correct or accurate, Customer must immediately notify JET of this fact, and provide the true, correct and accurate information. JET relies on Customer and User representations regarding the truth, accuracy and compliance with laws of Customer Data.
No Medical Advice Provided By JET. The Service is solely providing a technology platform and a wellness device to calculate an objective fall risk assessment and to provide suggestions to the referring medical practitioner for counseling of the User. The Service does not provide medical advice, provide medical or diagnostic services, obtain User’s informed consent or authorization to use the Service, or prescribe medication. Use of the Service is not a substitute for the professional judgment of health care providers in diagnosing and treating patients/Users or determining safety precautions. Customer agrees that it is solely responsible for verifying the accuracy of User information, obtaining User’s informed consent to use the Service and for all of its decisions or actions with respect to the medical care, treatment, fall risk categorization and well-being of Users, including without limitation, all of Customer’s acts or omissions. Any use or reliance by Customer upon the Service will not diminish that responsibility. Customer assumes all risks associated with Customer’s clinical use of the Service for the treatment of patients/Users, development of care plans or recommendation of activity levels or safety precautions for Users. JET does not assume any liability or responsibility for damage or injury (including death) to Customer, a User (patient or client of Customer) other persons, or tangible property arising from any use of the Service.
Indemnification. Customer indemnifies and holds JET and its affiliates, directors, officers, employees, agents, representatives, successors and assigns, from and against any loss, cost, damage or expense, including reasonable attorneys’ fees and court costs, arising out of or in connection with its or its employees, contractors or Users’ use of the Service.
Customer’s Compliance With Medical Retention Laws, Patient Records Access, Privacy Laws, and Third Party Payor Laws. Customer is responsible for understanding and complying with all state and federal laws related to retention of medical records, User access to information, and User authorization to release data. Customer agrees that it is solely responsible for informing patients/Users of the risks of using the Service and obtaining any consent or authorization from patient/User deemed necessary under state or federal privacy laws prior to using the Service or giving patient/User information to JET. Customer further understands that use of the Service does not guarantee payment from any third-party payor and agrees that Customer is solely responsible for compliance with any laws, policies, rules or regulations required by any such third-party payors.
OTHER THAN THE ABOVE WARRANTY, THE SERVICE IS PROVIDED ‘AS IS' WITHOUT WARRANTY. JET DISCLAIMS ALL WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, AND FITNESS FOR A PARTICULAR PURPOSE. WHILE JET TAKES REASONABLE PHYSICAL, TECHNICAL, AND ADMINISTRATIVE MEASURES TO SECURE THE SERVICE, JET DOES NOT GUARANTEE THAT THE SERVICE CANNOT BE COMPROMISED. CUSTOMER UNDERSTANDS THAT THE SERVICE MAY NOT BE ERROR FREE, AND USE MAY BE INTERRUPTED.
General. Customer must pay all fees as specified on an order for the Service. Customer is responsible for the payment of all sales, use, withholding, VAT, and other similar taxes. Invoices will be delivered to Customer through the Service or email provided by Customer and will be due sixty (60) days from the date the Invoice was issued by Customer. If Customer does not make payment by the sixty (60) day deadline, Customer will be responsible for a 1.5% per month late fee.
Payments are to be made by ACH or wire transfer, complying with information presented on each invoice.CUSTOMER IS RESPONSIBLE FOR THE TIMELY PAYMENT OF ALL FEES. For questions on billing or payments, please access www.catchu.net/FAQ. JET reports provided to Customer will be identified by Customer and will contain PII including health data and counseling suggestions specific to an individual customer. That report will be retained in JET databases. Any use made by JET for product enhancement and/or research will utilize deidentified data.
5. MUTUAL CONFIDENTIALITY.
Definition of Confidential Information. Confidential Information means all non-public information disclosed by a party (“Discloser”) to the other party (“Recipient”), whether orally, visually, 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 (“Confidential Information”). JET's Confidential Information includes, without limitation, the Service, its user interface design and layout, its pricing information, and its Software and Documentation (defined below). Customer's Confidential Information includes, without limitation, the Customer Data.
Protection of Confidential Information. The Recipient must use the same degree of care that it uses to protect the confidentiality of its own confidential information (but in no event less than reasonable care or standards required by applicable laws), and it may not disclose or use any Confidential Information of the Discloser for any purpose outside the scope of this agreement. The Recipient must make commercially reasonable efforts to limit access to Confidential Information of Discloser to those of its employees and contractors who need such access for purposes consistent with this agreement and who have signed confidentiality agreements with Recipient no less restrictive than the confidentiality terms of this agreement.
Exclusions. Confidential Information excludes information that: (i) is or becomes generally known to the public without breach of any obligation owed to Discloser; (ii) was known to the Recipient on a non-confidential basis prior to its disclosure by the Discloser without breach of any obligation owed to the Discloser; (iii) is received from a third party on a non-confidential basis without breach of any obligation owed to Discloser; or (iv) was independently developed by the Recipient without use or access to the Confidential Information. The Recipient may disclose Confidential Information to the extent required by law or court order, but will provide Discloser with advance notice to seek a protective order.
6. DATA SECURITY MEASURES
Security Measures. In order to protect Customer's Confidential Information, JET: (i) implements and maintains reasonable security measures appropriate to the nature of the Confidential Information including, without limitation, technical, physical, administrative, and organizational controls, and will maintain the confidentiality, security, and integrity of such Confidential Information; (ii) implements and maintains industry standard systems and procedures for detecting, preventing, and responding to attacks, intrusions, or other systems failures and regularly tests, or otherwise monitors the effectiveness of the safeguards’ key controls, systems, and procedures; (iii) designates an employee or employees to coordinate implementation and maintenance of its Security Measures (as defined below); and (iv) identifies reasonably foreseeable internal and external risks to the security, confidentiality, and integrity of Customer's Confidential Information that could result in the unauthorized disclosure, misuse, alteration, destruction, or other compromise of such information, and assesses the sufficiency of any safeguards in place to control these risks (collectively, “Security Measures”).
Notice of Data Breach. If JET knows that Customer Confidential Information has been accessed, disclosed, or acquired without proper authorization and contrary to the terms of this agreement, JET will promptly alert Customer of any such data breach, and immediately take such actions as may be necessary to preserve forensic evidence and eliminate the cause of the data breach. JET will give highest priority to immediately correcting any data breach, and will devote such resources as may be required to accomplish that goal. JET will provide Customer with all available information reasonably necessary to enable Customer to fully understand the nature and scope of the data breach. To the extent that Customer, in its sole reasonable discretion, deems warranted, Customer may provide notice to any or all parties affected by any data breach. JET will provide Customer with information about what JET has done or plans to do to minimize any harmful effect of the unauthorized use or disclosure of, or access to, Confidential Information.
Business Associate Agreement. If Customer is a Covered Entity as that term is defined in the Health Insurance Portability and Accountability Act (“HIPAA”) and its implementing regulations, then Customer and JET agree to be bound by the terms and provisions of JET’s Business Associate Agreement from time to time in effect, which can be found at www.catchu.net/BAA and which is incorporated by reference herein. JET will provide 30 days’ prior notice to the Customer of any amendment to the Business Associate Agreement. Such amendments shall be effective when posted to the website.
Reservation of Rights. The Service and the Software and Documentation (defined below) are the proprietary property of JET and its licensors, and all right, title, and interest in and to the Service and the Software and Documentation, including all associated intellectual property rights, remain only with JET. Customer may not remove or modify any proprietary marking or restrictive legends in the Service or Software and Documentation. JET reserves all rights unless expressly granted in this agreement.
Restrictions. Customer may not: (i) sell, resell, rent, or lease the Service or use it in a service-provider capacity; (ii) use the Service to store or transmit unsolicited marketing emails, libelous, or otherwise objectionable, unlawful, or tortious material, or to store or transmit infringing material in violation of third-party rights; (iii) interfere with or disrupt the integrity or performance of the Service; (iv) attempt to gain unauthorized access to the Service or its related systems or networks; (v) reverse engineer the Service or the Software and Documentation; or (vi) access the Service or use the Software and Documentation to build a competitive service or product, or copy any feature, function, or graphic for competitive purposes.
Software and Documentation. All software (including mobile as well as data management and report generation )provided by JET as part of the Service (“Software”), and the Service documentation, sample data, marketing materials, training materials, and other materials provided through the Service or by JET (“Documentation”) are licensed to Customer as follows: JET grants Customer a non-exclusive, non-transferable license during the term of this agreement, to use such Software in accordance with the Documentation, solely in connection with the Service.
Aggregation Services and De-identified Data. JET will use protected health information to provide data aggregation services (as that term is defined by HIPAA) to Customer and to create de-identified data in accordance with 45 CFR 164.514(a)-(c) for Customer. JET and its affiliates may use and disclose, during and after this agreement, all aggregate, anonymized information and de-identified data for purposes of enhancing the Service, technical support and other business purposes, including research in compliance with the HIPAA Privacy Standards.
8. TERM AND TERMINATION.
Term. This agreement continues until all orders have expired or are terminated for material breach as provided below.
Mutual Termination for Material Breach. If either party is in material breach of this agreement, the other party may terminate this agreement at the end of a written 30-day notice/cure period, if the breach has not been cured.
Return of Customer Data. Within 60 days after termination, upon request JET will make the Service available for Customer to export Customer Data as described at www.catchu.net/Data_Export After such 60-day period, JET has no obligation to maintain the Customer Data and may destroy it.
Return JET Property Upon Termination. Upon termination of this agreement for any reason, Customer must pay JET for any unpaid amounts and upon request of JET. destroy or return any property or Confidential Information of Jet. Upon Jet's request, Customer will confirm in writing its compliance with this destruction or return requirement.
Suspension. JET may temporarily suspend the Service and/or remove the applicable Customer Data if it in good faith believes that, as part of using the Service, Customer has violated a law or made any misrepresentation as part of using the Service. JET will attempt to contact Customer in advance.
Suspension for Non-Payment. JET may in its sole discretion temporarily suspend the Service if Customer is more than 30 days late on any payment due pursuant to an order.
9. LIABILITY LIMIT.
Exclusion of Indirect Damages. To the maximum extent allowed by law, JET is not liable for any indirect, special, incidental, or consequential damages arising out of or related to this agreement (including, without limitation, costs of delay; loss of or unauthorized access to data or information; and lost profits, revenue, or anticipated cost savings, or injury or death to Users), even if it knows of the possibility or foreseeability of such damage or loss. If Customer is a California citizen, Customer specifically assumes the above mentioned risks and agrees that the limitations of liability in this agreement shall apply to all unknown or unanticipated results of the use of the Service, as well as those known and anticipated, Customer does hereby knowingly waive any and all rights and protections under California Civil Code Section 1542, which Customer agrees that he or she understands and which reads as follows: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.”
Total Limit on Liability. To the maximum extent allowed by law, JET's total liability arising out of or related to this agreement (whether in contract, tort, or otherwise) does not exceed the amount paid by Customer on behalf of the User(s) involved in the liability claim within the 12-month period prior to the event that gave rise to the liability.
10. GOVERNING LAW AND DISPUTES.
Governing Law. This agreement is governed by the laws of the State of New York (without regard to conflicts of law principles) for any dispute between the parties or relating in any way to the subject matter of this agreement.
General Arbitration Process. Any dispute or claim that may arise between the parties relating in any way to or arising out of this agreement, Customer’s use of or access to the Services (a “Claim”), must be resolved exclusively through final and binding arbitration (rather than in court) before a single arbitrator with at least ten years’ experience in dealing with business disputes under the then current commercial or international rules of the American Arbitration Association, and the proceeding will be held in the city of New York, New York. Any judgment on the award rendered by the arbitrator is final and may be entered in any court of competent jurisdiction. Nothing in this agreement prevents either party from seeking injunctive or equitable relief in any court of competent jurisdiction. The prevailing party in any arbitration or litigation is entitled to recover its attorneys’ fees and costs from the other party.
PROHIBITION OF CLASS AND REPRESENTATIVE ACTIONS. EACH PARTY MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL PARTY BASIS, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PARTY'S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, CLASS OR REPRESENTATIVE PROCEEDING.
11. OTHER TERMS.
Entire Agreement and Changes. This agreement and the order constitute the entire agreement between the parties and supersede any prior or contemporaneous negotiations or agreements, whether oral or written, related to this subject matter. Customer is not relying on any representation concerning this subject matter, oral or written, not included in this agreement. No representation, promise, or inducement not included in this agreement is binding. No modification or waiver of any term of this agreement is effective unless both parties sign it, however this agreement may be modified through an online process provided by JET.
Consent to Electronic Notice, Communications and Transactions. For purposes of messages and notices about the Service (including, without limitation, collections and payments issues), JET may send email notices to the email address associated with Customer's account or provide in service notifications. For certain notices (e.g., notices regarding termination or material breaches), JET may send notices to the postal address provided by Customer. JET has no liability associated with Customer's failure to maintain accurate contact information within the Service or its failure to review any emails or in-service notices. CUSTOMER AGREES THAT ITS ELECTRONIC SUBMISSIONS VIA THE SERVICES IN CONNECTION WITH SUCH ACTIVITIES CONSTITUTE ITS AGREEMENT TO BE BOUND BY SUCH AGREEMENTS AND TRANSACTIONS AND APPLIES TO ALL RECORDS RELATING TO SUCH TRANSACTIONS. Customer represents and warrants that it has the authority to take such actions.
No Assignment. Neither party may assign or transfer this agreement to a third party, nor delegate any duty, except that the agreement and all orders may be assigned, without the consent of the other party, as part of a merger or sale of all or substantially all the businesses or assets of a party.
Independent Contractors. The parties are independent contractors with respect to each other.
Enforceability and Force Majeure. If any term of this agreement is invalid or unenforceable, the other terms remain in effect. Except for the payment of monies, neither party is liable for events beyond its reasonable control, including, without limitation, force majeure events.
Money Damages Insufficient. Any breach by a party of this agreement or violation of the other party's intellectual property rights could cause irreparable injury or harm to the other party. The other party may seek a court order to stop any breach or avoid any future breach of this agreement.
Survival of Terms. Any terms, that by their nature survive termination of this agreement for a party to assert its rights and receive the protections of this agreement, will survive (including, without limitation, the confidentiality terms).
Mobile Software. JET may make available software to access the Software to Users, via a mobile device and to Customers via a web portal. To take the Test, User must have access to a compatible mobile phone. To administer the service, order Tests and review billing, Customer must access a secured website using established credentials. JET does not warrant that the Software will be compatible with User’s mobile device. Customer or a User may use mobile data in connection with the Software and may incur additional charges from Customer's or a User’s wireless provider for these services. Customer agrees that it or its Users are solely responsible for any such charges. Customer acknowledges that JET may, from time to time, issue upgraded versions of the Software, and may automatically electronically upgrade the version of the Software that Customer is using on its mobile device. Customer consents to such automatic upgrading on its mobile device, and agrees that the terms and conditions of this agreement will apply to all such upgrades. If the mobile device software is acquired from an Apple platform (App Store Software), the additional terms set forth on Exhibit A apply.
Feedback. If Customer provides feedback or suggestions about the Service, then JET (and those it allows to use its technology) may use such information without obligation to Customer.
Last Revised 30/11/2021
EXHIBIT A - MOBILE SOFTWARE FROM APPLE APP STORE
The following applies to any JET Mobile Software Customer acquires from the Apple App Store (App Store Software):
Acknowledgment. This agreement is between JET and Customer only, and not with Apple, and JET, not Apple, is solely responsible for the App Store Software and the content thereof. The agreement does not provide for usage rules for App Store Software that are in conflict with the App Store Terms of Service as of the effective date of the agreement (which Customer acknowledges it has had the opportunity to review).
Scope of License. The license granted to Customer for the App Store Software is limited to a non-transferable license on any Apple-branded Products that the Customer owns or controls and as permitted by the Usage Rules set forth in the App Store Terms of Service, except that such App Store Software may be accessed and used by other accounts associated with the purchaser via Family Sharing or volume purchasing.
Maintenance and Support. JET is solely responsible for providing any maintenance and support services with respect to the App Store Software, as specified in the agreement, or as required under applicable law. JET and Customer acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Software.
Warranty. JET is solely responsible for any App Store Software warranties, whether express or implied by law, to the extent not effectively disclaimed. In the event of any failure of the App Store Software to conform to any applicable warranty, Customer may notify Apple, and Apple may refund the purchase price for the App Store Software (if that purchase price was paid to Apple on behalf of JetJET to Customer; and that, to the maximum extent permitted by applicable law, Apple has no other warranty obligation whatsoever with respect to the App Store Software, and any other claims, losses, liabilities, damages, costs, or expenses attributable to any failure to conform to any warranty is JET’s sole responsibility.
Product Claims. JET and Customer acknowledge that JET, not Apple, is responsible for addressing any claims of Customer or any third party relating to the App Store Software or Customer’s possession and/or use of that App Store Software, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store Software fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection, privacy, or similar legislation, including in connection with the App Store Software’s use of the HealthKit and HomeKit frameworks. This agreement does not limit JET's liability to Customer beyond what is permitted by applicable law.
Intellectual Property Rights. JET and Customer acknowledge that, in the event of any third-party claim that the App Store Software or Customer’s possession and use of that App Store Software infringes that third party’s intellectual property rights, Customer, not Apple, will be solely responsible for the investigation, defense, settlement, and discharge of any such intellectual property infringement claim.
Legal Compliance. Customer represents and warrants that: (i) he/she/it is not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) he/she/it is not listed on any U.S. Government list of prohibited or restricted parties.
Developer Name and Address. Company's name is JET Worldwide Enterprises Inc. and address is 9 Margarita Drive, Stony Point, NY 10980, and the contact information (phone number; email address) to which any Customer questions, complaints, or claims with respect to the App Store Software should be directed as follows: firstname.lastname@example.org
Third-Party Beneficiary. JET and Customer acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of this agreement, and that, upon Customer’s acceptance of the agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce the agreement against Customer as a third-party beneficiary thereof.