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Terms and Conditions
BOLA AI SUBSCRIPTION TERMS
May 10th, 2022
The Bola AI Subscription Terms set forth herein (“Subscription Terms”) are applicable to and incorporated in all Order Forms made and entered into by and between Bola Technologies, Inc (“Bola AI”) and customers of Bola AI (each a “Customer”). As used herein, the term Customer shall mean, and be applicable to, each entity that executes an associated Order Form as defined below and the term Agreement shall mean the executed Order Form including the Subscription Terms.
WHEREAS, Bola is the owner of the Bola AI platform – an artificial intelligence voice assistant for electronic health records that helps healthcare providers capture and retrieve data hands-free; and
WHEREAS, Customer wishes to obtain from Bola AI access to the Bola AI platform in accordance with the Subscription Terms.
NOW THEREFORE, in consideration of the mutual promises contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Bola and Customer agree as follows:
1. DEFINITIONS AND CONSTRUCTION.
In the Subscription Terms, unless the context otherwise requires, the following words and expressions will have the following meanings:
“Affiliate” means any entity or affiliated group, which directly or indirectly (a) controls a party, (b) is controlled by a party or (c) is under common control with a party, for as long as such relationship remains in effect, including any subsidiary thereof.
“Customer Data” means electronic data and information submitted to the Service by Customer, or collected from Customer by the Service.
“Order Form” means the document on which the details of the access to the Service are set forth, and to which the Subscription Terms are incorporated by reference, a sample of which is included herein as Exhibit A.
“Output” means any physical or electronic output resulting from Customer’s or Bola’s use of the Customer Data in the Service.
“Professional Services” means those services to be performed by Bola in connection with the provision of access to the Service ordered by Customer in an Order Form.
“Service” means the Bola platform.
“Subscription Term” Except as otherwise specified in an Order Form, the Subscription Term will commence upon execution of the Agreement and continue on a monthly basis unless terminated in accordance with Sections 9.2 and 9.3.
“User” means an employee of Customer who is authorized to administer the Service on Customer’s behalf and to whom Bola has supplied a license key.
2. BOLA RESPONSIBILITIES.
2.1 Access to Service. Subject to the Subscription Terms, Bola hereby grants to Customer a limited, nonexclusive, non-transferable license to access and use the Service during the Subscription Term. The number of locations and Users authorized to access the Service at any given time may not exceed the limits specified in the Order Form. Customer will be solely responsible for limiting access to and usage of the Service to authorized Users and for ensuring that its authorized Users use the Service only as authorized hereunder and in compliance with all applicable laws and regulations.
2.2 Protection of Customer Data.
(a) Bola will maintain administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer Data. Those safeguards will include, but will not be limited to, measures for preventing access, use, modification or disclosure of Customer Data by Bola personnel except (i) to provide the Service and prevent or address service or technical problems, (ii) as compelled by law in accordance with the “Confidentiality: Compelled Disclosure” section below, or (iii) as expressly permitted in writing by Customer.
(b) The Service is hosted on, and the Customer Data is stored in, third party cloud servers. Bola does not have any control over the security of the cloud itself.
2.3 Professional Services. Any Professional Services and deliverables to be executed by Bola will be negotiated between the parties, and set forth in an Order Form.
2.4 Hosting Services. As recited above, the Service is hosted by a third-party service provider contracted by Bola. As of the date of the Agreement such hosting service is provided through Microsoft Azure and Bola passes through all associated warranties and obligations to Customer. Bola reserves the right to change such service provider in Bola’s sole discretion and at any time upon providing written notice thereof to Customer.
2.5 Training. Customer is responsible for ensuring that each User has completed the training associated with the Service and made available to Customer and Users through Bola’s internet site. Users are entitled to unlimited use of such training program.
3. USE OF SERVICES.
3.1 Subscriptions. Access to the Service is purchased as a subscription under the Subscription Terms and any additional terms set forth in an executed Order Form.
3.2 User Credentials. A User’s License Keys may not be shared with any individual other than the specified User. A User identification may be permanently reassigned by Customer to a new individual replacing one who no longer requires ongoing use of the Service on Customer’s behalf.
3.4 Usage Restrictions. Customer will not (a) make the Service available to, or use the Service for the benefit of, anyone other than Customer, (b) sell, resell, license, sublicense, distribute, rent or lease the Service, or include the Service in a service bureau or outsourcing offering, (c) use the Service to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) interfere with or disrupt the integrity or performance of the Service or third-party data contained therein, (e) attempt to gain unauthorized access to the Service or its related systems or networks, (f) permit direct or indirect access to or use of the Service in a way that circumvents a contractual usage limit, (g) copy the Service or any part, feature, function or user interface thereof, (h) frame or mirror any part of the Service, other than framing on Customer’s own intranets or otherwise for its own internal business purposes, (i) access the Service in order to build a competitive product or service, (j) reverse engineer the Service (to the extent such restriction is permitted by law), or use or access the Service from a location other than the location(s) authorized under the Agreement.
4. FEES AND PAYMENT.
4.1 Fees and Payment. Customer will pay all fees specified in the Order Form in accordance with the payment terms specified in the Order Form. Except as otherwise specified in the Agreement, payment obligations are non-cancelable and fees paid are non-refundable (subject to Section 9.3). Any changes to services ordered under an Order Form must be mutually agreed to in writing by the parties, and may result in an increase of fees. The pricing listed in an Order Form will be subject to annual increase on the anniversary date thereof upon sixty (60) days notice by Bola AI.
4.2 Overdue Charges. If any invoiced amount is not received by Bola by the due date, then without limiting Bola’s rights or remedies, those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower.
4.3 Suspension of Service. If any invoiced amount is not received by Bola by the due date, Bola may, without limiting its other rights and remedies, suspend Customer’s access to the Service until such amounts are paid in full, provided Bola has given Customer at least ten (10) days’ prior notice that its account is overdue in accordance with the “Notices” section below.
4.4 Taxes. Bola’s fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with its orders hereunder. If Bola has the legal obligation to pay or collect Taxes for which Customer is responsible under this section, Bola will invoice Customer and Customer will pay that amount unless Customer provides Bola with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, Bola is solely responsible for taxes assessable against it based on its income, property and employees.
5. PROPRIETARY RIGHTS AND LICENSES.
5.1 Reservation of Rights. Subject to the limited rights expressly granted hereunder, Bola and its licensors reserve all of their right, title and interest in and to the Service, including (a) its programming architecture and platform, (b) any improvements, enhancements, modifications or features for the Service or platform developed during the term of the Agreement, and (c) all intellectual property rights in the foregoing. No rights are granted to Customer hereunder other than as expressly set forth herein.
5.2 License by Customer to Host and Use Customer Data. Customer grants Bola and its Affiliates a worldwide, limited-term license to host, copy, transmit and display Customer Data, as necessary for Bola to provide the Service and the Output in accordance with the Agreement. Subject to the limited licenses granted herein, Bola acquires no right, title or interest from Customer or its licensors under the Agreement in or to any Customer Data. Customer represents and warrants that it has the right to grant this license to the Customer Data to Bola, and that Customer’s and Bola’s use of the Customer Data as contemplated herein does not violate any rights of any third parties. Bola shall have no liability with respect to the accuracy of the Customer Data.
5.3 Grant by Customer to Use Feedback. Customer grants to Bola and its Affiliates all right, title and interest in and to any suggestion, enhancement request, recommendation, correction or other feedback provided by Customer or Users relating to the operation of the Service that are thereafter incorporated in the Service.
6.1 Definition of Confidential Information. “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure; including, but not limited to, business and marketing plans, software and technical information, product plans and designs, and business processes. Confidential Information of Customer includes Customer Data; Confidential Information of Bola includes the Service and the terms and conditions of the Agreement (including pricing and other terms described on the Order Form) However, Confidential Information does not include any information that (a) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (c) is received from a third party without breach of any obligation owed to the Disclosing Party, or (d) was independently developed by the Receiving Party.
6.2 Protection of Confidential Information. The Receiving Party will (a) use the same degree of care to protect the Disclosing Party’s Confidential Information that it uses to protect the confidentiality of its own Confidential Information (but not less than reasonable care), (b) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of the Agreement, and (c) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with the Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. Neither party will disclose the terms of the Agreement to any third party other than its Affiliates, legal counsel and accountants without the other party’s prior written consent, provided that a party that makes any such disclosure to its Affiliate, legal counsel or accountants will remain responsible for such Affiliate’s, legal counsel’s or accountant’s compliance with this “Confidentiality” section.
6.3 Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.
7. MUTUAL INDEMNIFICATION.
7.1 Indemnification by Bola. Bola will defend Customer against any claim, demand, suit or proceeding made or brought against Customer by a third party alleging that the use of the Service in accordance with the Agreement infringes or misappropriates such third party’s patent, copyright, trademark or trade secret rights (a “Claim”), and will indemnify Customer from any damages, attorney fees and costs finally awarded against Customer as a result of, or for amounts paid by Customer under a court-approved settlement of, a Claim, provided Customer (a) promptly gives Bola written notice of the Claim, (b) gives Bola sole control of the defense and settlement of the Claim (except that Bola may not settle any Claim unless it unconditionally releases Customer of all liability), and (c) gives Bola all reasonable assistance, at Bola’s expense. If Bola receives information about an infringement or misappropriation claim related to the Service, Bola may in its discretion and at no cost to Customer (i) modify the Service so that it no longer infringes or misappropriates, (ii) obtain a license for Customer’s continued use of the Service in accordance with the Agreement, or (iii) terminate Customer’s access to the Service upon 10 days’ written notice and refund Customer any fees that Customer prepaid for access to the Service for the period following the effective date of termination. The above defense and indemnification obligations do not apply to the extent a Claim arises from Customer’s breach of the Agreement or to the extent such Claim arises from any modification(s) to the Service made by Customer.
7.2 Indemnification by Customer. Customer will defend Bola against any Claim (1) alleging that the Customer Data, or Customer’s use of the Service in breach of the Agreement, infringes or misappropriates such third party’s intellectual property rights or violates applicable law, or (2) arising from any breach of the Agreement by Customer, and Customer will indemnify Bola from any damages, attorney fees and costs finally awarded against Bola as a result of, or for any amounts paid by Bola under a court-approved settlement of, a Claim provided Bola (a) promptly gives Customer written notice of the Claim, (b) gives Customer sole control of the defense and settlement of the Claim (except that Customer may not settle any Claim unless it unconditionally releases Bola of all liability), and (c) gives Customer all reasonable assistance, at Customer’s expense.
7.3 Exclusive Remedy. This “Mutual Indemnification” section states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this section.
8. DISCLAIMERS; LIMITATION OF LIABILITY
8.1 Disclaimers. THE SERVICE AND OUTPUT IS PROVIDED “AS IS,” AND BOLA DOES NOT MAKE ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
8.2 Limitation of Liability. BOLA’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THE AGREEMENT WILL NOT EXCEED THE AMOUNT PAID BY CUSTOMER HEREUNDER IN THE 6 MONTHS PRECEDING THE INCIDENT GIVING RISE TO LIABILITY. THE ABOVE LIMITATIONS WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY.
8.3 Exclusion of Consequential and Related Damages. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR LOST REVENUES OR FOR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER WILL NOT APPLY WITH RESPECT TO A BREACH BY EITHER PARTY OF ITS CONFIDENTIALITY OBLIGATIONS UNDER THE AGREEMENT, A PARTY’S INDEMNIFICATION OBLIGATIONS HEREUNDER, OR TO THE EXTENT PROHIBITED BY LAW.
8.4 Third Party Software. By its nature, the Service connects to third-party software (“Third Party Software”). BOLA EXPRESSLY DISCLAIMS ANY AND ALL LIABILITY WITH RESPECT TO THIRD PARTY SOFTWARE.
9. TERM AND TERMINATION
9.1 Term. The term of the Agreement is coterminous with the termination or expiration of the Subscription Term(s) set forth in all executed Order Forms. References in the Agreement to either the termination of the Subscription Term or the termination of the Agreement will be interpreted to mean both the termination of the Subscription Term and the termination of the Agreement.
9.2 Termination for Cause. A party may terminate the Agreement for cause (a) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (b) if 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.
9.3 Termination for Convenience. Customer may terminate the Agreement or any Order Form for convenience upon thirty (30) days written notice to Bola AI. In such event any amounts paid to Bola AI by Customer shall be retained by Bola AI unless otherwise specified in an Order Form. Termination of all Order Forms then in effect shall be deemed termination of the Agreement.
9.4 Refund or Payment upon Termination. If the Agreement is terminated by Customer in accordance with the “Termination for Cause” section above, Bola will refund Customer fees that Customer prepaid for access to the Service for the period following the effective date of termination. If the Agreement is terminated by Bola in accordance with the “Termination for Cause” section above, Customer will pay any fees that Customer would otherwise have had to pay for the remainder of the Subscription Term had it not been terminated. In no event will termination relieve Customer of its obligation to pay any fees payable to Bola for the period prior to the effective date of termination.
9.5 Customer Data Portability and Deletion. Upon request by Customer made within sixty (60) days after the effective date of termination or expiration of the Agreement, Bola will make the Customer Data available to Customer for export or download, subject to Customer’s payment of Bola’s standard data export fees then in effect. After such 60-day period, Bola will have no obligation to maintain or provide any Customer Data, and may in its sole discretion thereafter delete or destroy all copies of Customer Data in its systems or otherwise in its possession or control, unless legally prohibited.
9.6 Surviving Provisions. The sections titled “Fees and Payment,” “Proprietary Rights,” “Confidentiality,” “Disclaimers,” “Mutual Indemnification,” “Limitation of Liability,” “Refund or Payment upon Termination,” “Customer Data Portability and Deletion,” “Surviving Provisions” and “General Provisions” will survive any termination or expiration of the Agreement.
10. GENERAL PROVISIONS
10.1 Customer Insurance. Customer will, at its expense, maintain a policy of general liability insurance and/or professional liability insurance in commercially reasonable amount to insure it, its employees and agents, against all claims and liabilities arising out of or related to Customer’s use of the Service. Evidence of such coverage will be presented to Bola as requested upon execution of the Agreement and annually thereafter.
10.2 Export Compliance. The Service and Output may be subject to export laws and regulations of the United States and other jurisdictions. Bola and Customer each represents that it is not named on any U.S. government denied-party list. Customer will not permit any User to access or use the Service in or by a national of a U.S.-embargoed country (currently Cuba, Iran, North Korea, Sudan or Syria) or in violation of any U.S. export law or regulation.
10.3 Entire Agreement and Order of Precedence. These Subscription Terms are hereby incorporated into each executed Order Form by reference. Each Order Form, together with the Subscription Terms, represents the entire agreement between Bola AI and Customer regarding Customer’s use of the Service set forth in the applicable Order Form and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of the Agreement will be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. The parties agree that any term or condition stated in a Customer purchase order or in any other Customer order documentation is void. In the event of any conflict or inconsistency among the following documents, the order of precedence will be: (1) in the Order Form, and (2) the Subscription Terms.
10.4 Relationship of the Parties. The parties are independent contractors. The Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
10.5 Third-Party Beneficiaries. There are no other third-party beneficiaries under the Agreement.
10.6 Notices. Except as otherwise specified herein or in an executed Order Form, all notices related to the Agreement will be in writing and will be effective upon (a) delivery by nationally recognized courier service, (b) the third business day after mailing by US Mail, or (c) except for notices of termination or an indemnifiable claim (“Legal Notices”), the day of sending by email. Notices will be addressed to the recipient at the recipient’s address indicated in an Order Form or such other address as the recipient may from time to time specify for Legal Notices.
10.7 Waiver. No failure or delay by either party in exercising any right under the Agreement will constitute a waiver of that right.
10.8 Severability. If any provision of the Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of the Agreement will remain in effect.
10.9 Assignment. Neither party may assign any of its rights or obligations under the Agreement, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld) and any attempted assignment without such consent will be void and of no effect. Notwithstanding the foregoing, either party may assign the Agreement in its entirety without the other party’s consent to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
10.10 Force Majeure. Neither party will be liable for any failure or delay in its performance under the Agreement (or the performance of or access to the Service), other than payment obligations, due to causes that are beyond its reasonable control, including, but not limited to, an act of God, act of civil or military authority, fire, epidemic, pandemic, flood, earthquake, riot, war, terrorism, sabotage, and governmental action; provided that the delayed party: (a) gives the other party written notice of such cause promptly; and (b) uses its reasonable efforts to correct such failure or delay.
10.11 Governing Law. The Agreement, and any disputes arising out of or related hereto, will be governed exclusively by the internal laws of the Commonwealth of Massachusetts.
10.12 Venue. Any controversy or claim arising out of or relating to the Agreement, or the breach thereof, which cannot be settled through good faith negotiations between the parties in thirty (30) days, shall be settled by binding arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules. The arbitration shall be heard by one arbitrator selected by the AAA in Boston, Massachusetts. Any party or witness residing outside of Massachusetts may testify via Skype or any other audio/visual means approved by the arbitrator. The prevailing party shall be entitled to an award of its attorney’s fees. The award rendered by the arbitrator shall be non-appealable, and judgment on the award may be entered in any court having jurisdiction thereof.