VOS Systems LLC/AlertTrace ™
Welcome to AlertTrace™, provided to you by VOS Systems LLC, a Delaware limited liability company with offices located at 304 W. University Ave, Gainesville, FL 32601, USA (“VOS”, “Company”, “we”, “us”, or “our”). VOS offers Wearable Devices and Gateway/Hub Equipment, along with access to Database information and Applications software, all as defined herein (together the “Technology”), which enables our purchasers (“Purchaser” or “you” or “your”) to trace inter-personal proximity contacts among wearers of Wearable Devices, and in some cases to provide wearers with audible or vibratory alerts when an interpersonal proximity contact is being detected or recorded, and in some cases to provide wearers of the Wearable Devices alerts if they are entering an area in which alerts are activated within defined parameters (together the “Service”).
- Definitions: Capitalized terms not elsewhere defined herein shall have the following definitions:
1.1 “Wearable Devices” shall mean the hardware and related firmware and antennae, including components enabling Bluetooth tracking and interaction, and connection with Gateway/Hub Equipment, provided by VOS to Purchaser, which enable Purchaser to utilize the benefits of the Service;
1.2 “Gateway/Hub Equipment” shall mean the hardware and related firmware and antennae, including components enabling cellular or wi-fi or other similar modes of transmission of data, connection to the Wearable Devices, and location recording capabilities, which are provided by VOS to Purchaser, which enable Purchaser to utilize the benefits of the Service;
1.3 “Equipment” shall mean the Wearable Devices and Gateway/Hub Equipment provided by VOS to Purchaser, which enable Purchaser to utilize the benefits of the Service;
1.4 “Applications” shall mean the computer software Applications, either for desktop or mobile device usage, offered by VOS which enables Purchaser to access and utilize data from the Equipment in connection with the Service;
1.5 “Database” shall mean any computer server databases necessary for Purchaser to utilize the Equipment or the Applications in connection with the Service;
1.6 “Credentials” shall mean any license keys, API access, username(s) and/or password(s), necessary for Purchaser to utilize the Equipment or access the Database or Applications in connection with the Service.
- Subject to these Terms, and provided Purchaser pays all the fees to VOS as described hereunder, VOS grants Purchaser a limited, non-exclusive, non-transferable right and license, with a limited right to sublicense (but only as expressly provided in this Section 2), to access and use the Database and/or Applications in connection with the Service during the Duration. Excluding any user data that you may provide, you acknowledge that all the intellectual property rights, including copyrights, patents, trademarks, and other proprietary right, in the Database and/or Applications and its content are owned by Company or Company’s suppliers.
2.1 Sublicense. VOS hereby grants Purchaser a limited right to sublicense its rights to the Technology to any subsidiary of Purchaser or entity which is acquiring control of Purchaser (each a “Sublicensee”). Purchaser agrees that prior to granting access to the Technology, any such Sublicensee will be required to enter into an agreement with the Purchaser, limiting the Sublicensee’s access to the Equipment and Service and protecting VOS’s rights, title and interest in the Technology and Service in a manner that is equivalent to these Terms. Purchaser shall be ultimately responsible for Sublicensee’s use of the Equipment and Service.
2.2 Access. VOS will provide to Purchaser any Credentials and information necessary for Purchaser to utilize the Equipment or to access the Database or Applications in connection with the Service. Purchaser agrees to notify VOS, with a reasonable effort, of any unauthorized use of which Purchaser becomes aware, of the Credentials provided to Purchaser.
2.3 Additional Equipment. Except for the Equipment described in Section 3 herein, Purchaser shall be responsible for providing any additional hardware, software or equipment necessary to utilize the Equipment or access the Database or Applications, such as computer equipment, related peripherals and the particular LAN or Wi-Fi used to connect the computer equipment to the cloud, and/or otherwise use the Service. Purchaser acknowledges that the Equipment, Database and/or Applications may be operated on a hosted basis or on a software as a service (SaaS) basis. If Purchaser elects to operate the Equipment or Database or Applications on a hosted basis, Purchaser is solely responsible for providing any servers, computers or other hardware, which meet the technical requirements to utilize the Equipment or Applications, at its sole expense. If Purchaser elects to operate the Equipment, Database or Applications on a SaaS basis, Purchaser is responsible for securing, at its sole expense, sufficient access to the internet necessary for use of the Equipment, Database or Applications.
2.4 Downtime. VOS shall use commercially reasonable efforts to endeavor to maintain operation of the Database and/or Applications, when provided on a SaaS basis, on a 24-hour per day, 365-days-per-year basis. VOS will use all commercially reasonable efforts to limit unscheduled downtime per month to four (4) hours, and to limit to eight (8) hours during the weekend the time for scheduled down time per month. From time to time however, and as may be necessary to maintain the proper operation of the Service, VOS may disable the server(s) housing the Database and/or the Applications for repairs, upgrades or routine maintenance (such events, “Scheduled Downtime”). VOS will use commercially reasonable efforts to minimize the impact of such Scheduled Downtime and to inform Purchaser forty-eight (48) hours in advance of such Scheduled Downtime. Notwithstanding the foregoing, VOS may disable the server(s) housing the Database or the Applications or parts of the Service at any time if VOS determines in its sole discretion that such disabling is necessary to protect the servers or the Database or Applications, or VOS or Purchaser against spoofing attacks, SQL injection attacks, trojan horses, key
loggers, network tracers, computer viruses, buffer overflow attacks or any other electronic attack.
2.5 Updates. From time to time, VOS shall during the duration of the contract period update all necessary updates on the firmware on the Equipment, or the server(s) housing the Database, or the Applications, in order to, among other things, correct errors, improve the performance of the Service, increase the capacity of the Service, add additional features to the Service and respond to any security issues.
3.1 Delivery; Acceptance. Equipment will be delivered, F.O.B. Destination (shipment, handling, insurance pre-paid and absorbed by VOS) no later than the delivery date indicated on the applicable Purchase Order as accepted by VOS. Purchaser shall be provided the Equipment described in an authorized Purchase Order from the Purchaser and accepted in writing by VOS, or in an Invoice provided by VOS and accepted in writing by Purchaser, which documents are incorporated herein by reference. Purchaser is responsible for inspecting Equipment upon delivery and identifying any defects, damage or other problems with the Equipment within thirty (30) business days from delivery. If no defects, damage or other problems are reported within this time period, Purchaser will be deemed to have accepted the Equipment in working order.
3.2 Ownership; Loss or Damage. Except as expressly provided herein, upon receipt of payment by VOS for Equipment, Purchaser shall be the owner of all right, title and interest in and to the Equipment. Notwithstanding the foregoing, Purchaser acknowledges and agrees that the Equipment is being provided to Purchaser solely to facilitate Purchaser’s use of the Service. After the time the Equipment has been accepted by Purchaser, Purchaser shall be responsible for all Loss, theft or damage to or destruction of the Equipment from any cause not covered by an express warranty contained herein (each occurrence a “Loss”). Purchaser will notify VOS of any Loss within thirty (30) days. VOS will, at its exclusive option, repair or replace the Equipment that is covered by an express warranty contained herein. Purchaser acknowledges and agrees that any Loss will not modify its obligation to make all payments required under these Terms throughout the remaining Term unless otherwise discussed and mutually agreed.
- Ownership and Restrictions on Use.
4.1 Ownership. Under the limited license granted herein, Purchaser shall protect all rights, title and interest of VOS to the Technology by ensuring that Equipment is not provided to any party other than under a sublicense as provided in Section 2.
4.2 Restrictions on Use. Except as expressly provided herein, no other right to access or utilize the Equipment or Database or Applications is granted under these Terms, and Purchaser shall not attempt to access or utilize the Equipment, Database or Applications other than as provided herein and for the intended purpose of the Service. Purchaser shall not provide access to the Equipment or Database or Applications to any third party, unless expressly authorized by VOS. Purchaser may not post, copy or transfer information produced by the Equipment or Database or Applications to any public forum or website. Purchaser acknowledges and agrees that, except as expressly provided herein, all rights in and to the Technology and Database and Applications (and its related information) belongs exclusively to VOS, and Purchaser shall not at any time do, or omit, or suffer to be done or omitted, any act or thing which may impair VOS’s rights in and to the Database or Applications. Purchaser specifically agrees that Purchaser shall not use, or permit to be used, the Equipment or Database or Applications, or VOS’s Confidential Information (as defined herein), for any other purpose than using the Service, including
without limitation, to reverse engineer, disassemble, decompile, or design around the Equipment or Database or Applications, or other intellectual property rights of VOS. VOS expressly reserves and retains all other rights in and to the Technology not expressly granted herein. Purchaser shall not acquire and shall not claim any title to the Service, Database or Applications, and the license granted herein is not intended to be and shall not be construed as an assignment, in part or in whole, of the Technology or Service.
- Additional Obligations of Parties.
5.1 Support. VOS shall provide support in connection with the Equipment and Service as set forth in the approved Purchase Order or Invoice for the Equipment and Service.
5.2 Integration. VOS shall provide the integration services set forth in the approved Purchase Order or Invoice for the Equipment and Service.
5.3 Confidential Information. In the event the parties have entered into a separate Nondisclosure
Agreement (“NDA”) then “Confidential Information” shall retain the meaning set forth in the NDA and the NDA shall remain in effect until the later to occur of either the date on which all obligations of confidentiality under the NDA would terminate per the terms of the NDA or two (2) years from the date of termination of these Terms. In the event there is no separate NDA, each party shall treat information of the other party as strictly confidential and shall safeguard such information as Confidential Information and not disclose such information.
5.5 Personal Information Breach. If VOS becomes aware of any unauthorized disclosure or use of your personal information, VOS will cooperate with you to mitigate the harm (if any) to affected data subjects and to rectify the cause of the unauthorized disclosure or use. If unauthorized use or disclosure of your personal information arises from VOS’s breach of these Terms, negligence or willful misconduct, VOS, in coordination with you, will prepare and send any notifications required by law and provide identity theft prevention services to affected data subjects to the extent required by law.
5.6 Destruction of Personal Information. Promptly after the expiration or other termination of the Service, VOS will delete all copies of your Confidential Information and personal information in VOS’s possession or control, and, if requested by you, certify in writing that it complied with this requirement.
5.7 Insurance. VOS will maintain industry standard insurance and provide Purchaser with proof of insurance upon request.
- Service and Subscription Fees.
6.1 Fees. Purchaser agrees to pay the subscription, service or license fees, or other fees set
forth in the approved Purchase Order or Invoice for the Equipment and Service.
6.2 Collection. Unless otherwise mutually agreed to in writing by the parties, all payments to VOS shall be due no later than thirty (30) days from the date of invoice, delivery of product(s) or provision of service.
- Duration of Services and Termination.
7.1 Duration. These Terms shall commence upon the Effective Date and continue for an initial term as set forth in the approved Purchase Order or Invoice for the Equipment and Service, unless earlier terminated in accordance with this Section 7. Thereafter, this Agreement shall be automatically renewed on the first day following the expiration of the initial term or, after the initial term, on the first day following the expiration of the immediately preceding term (each such successive term a “Renewal Period”), unless Purchaser gives written notice to VOS in advance of the expiration date that the Agreement will be terminated. As used herein, the initial term and any Renewal Period are collectively referred to as the “Duration”.
7.2 Termination for Breach. Either party may terminate these Terms effective immediately if the other party materially breaches these Terms and fails to cure such breach within thirty (30) days of receipt of written notice from the non-breaching party identifying the nature of the breach.
7.3 Effect of Termination. Upon termination of these Terms, Purchaser shall immediately terminate any use of the Service. If the Service or Applications were provided to Purchaser on a hosted basis, Purchaser shall delete and completely remove the Applications from all of its hardware. Purchaser shall have no further right, license or privilege to access or use the Equipment or Applications or Service. Purchaser shall not be entitled to any refund of amounts paid prior to termination, unless Purchaser terminates these Terms based on VOS’s material breach or a force majeure, in which case VOS will provide a prorated refund of fees paid based on the remainder of the subscription term at the time the Service ends. All provisions in these Terms that should, based on their nature, survive the termination of these Terms shall survive the termination of these Terms.
- Warranties; Limit of Liability.
8.1 Limited Warranties. VOS and Purchaser each represent, warrant and covenant to the other that: (i) it is in good standing in the state or country of its organization and qualified to do business in every jurisdiction in which it is required to be qualified; (ii) it has full power and authority to enter into these Terms; (iii) the execution and performance by it of its obligations under these Terms will not constitute a breach of any other agreement or a violation of any ordinance, statute, law, or regulation to which it is a party or by which it is bound; and (iv) as of the Effective Date and until termination or expiration of the Duration, it is and will remain in compliance with and abide by any and all statutes, laws, ordinances, rules, and regulations promulgated by any government entity which are applicable to it. VOS will represent, warrant and covenant that the Service will conform, in all material respects, to its specifications. Purchaser’s exclusive remedy for a breach of this warranty shall be to have VOS update or modify the Equipment or Applications to correct the non-conformity with the specifications.
8.2 Equipment Warranty. VOS warrants for a period of one year following delivery of the Equipment to the Purchaser (the “Warranty Period”) that the Equipment shall be free from material defects in materials and workmanship (the “VOS Warranty”). VOS’s sole obligation under this warranty shall be to repair or replace such Equipment at no charge to Purchaser. The Equipment must be returned to VOS (with VOS’s authorization and at VOS’s cost) in order to receive warranty repair or replacement (unless VOS determines such return is not necessary) and shall become VOS’s property. Returns must be sent to:
2603 N.W. 13th St., Ste. 541
Gainesville, FL 32609
Batteries in the Equipment are excluded from the warranty and are not designed to last beyond several months. However, VOS will provide replacement batteries as requested by Purchaser during the Duration. For a warranty claim to be made, Purchaser must follow the commercially reasonable procedures established by VOS from time to time. VOS reserves the right to change the VOS Warranty, at any time, upon written notice to Purchaser, provided, however, that, with respect to each Equipment, the VOS Warranty which is in effect as of the date of the order for that Equipment shall continue to apply. The VOS Warranty sets forth the sole remedy for any Equipment that does not meet the VOS Warranty.
8.3 WARRANTY DISCLAIMER. EXCEPT FOR THE EXPRESS WARRANTIES PROVIDED ABOVE, THE SERVICE, APPLICATIONS AND EQUIPMENT ARE OFFERED TO PURCHASER “AS IS” AND WITHOUT ANY WARRANTY, GUARANTY, CONDITION, COVENANT OR REPRESENTATION, EXPRESS, IMPLIED OR STATUTORY. ALL WARRANTIES, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TIMELINESS, CURRENCY, ACCURACY OR OTHER ATTRIBUTES, OR FROM A COURSE OF DEALING OR USAGE OF TRADE ARE SPECIFICALLY DISCLAIMED. PURCHASER ACKNOWLEDGES THAT VOS MAKES NO GUARANTEE THAT USE OF THE
SERVICE WILL ENABLE PURCHASER TO FULFILL ITS OBLIGATIONS TO ITS SUBPURCHASERS OR CUSTOMERS AND THAT PURCHASER IS SOLELY RESPONSIBLE FOR ENSURING SUCH OBLIGATIONS ARE MET.
8.4 LIMITATIONS ON LIABILITY. EACH PARTY’S AGGREGATE LIABILITY TO THE OTHER PARTY ARISING FROM OR RELATED TO THESE TERMS SHALL BE LIMITED TO THE AGGREGATE AMOUNT PAID, DUE AND PAYABLE BY PURCHASER TO VOS DURING THE DURATION OF THESE TERMS. NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES ARISING FROM BREACH OF WARRANTY, BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY IN TORT OR ANY OTHER LEGAL THEORY. THE FOREGOING LIMITATIONS WILL NOT APPLY TO (A) EITHER PARTY’S INDEMNIFICATION OBLIGATIONS IN THIS AGREEMENT, (B) VOS’S OBLIGATIONS IN SECTION 5.5, AND (C) GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
9.1 Indemnification by VOS. VOS shall indemnify, defend and hold harmless Purchaser from and against any and all losses, damages, costs and expenses (including reasonable attorneys’ fees) arising out of or resulting from any claim, demand, charge, action, cause of action or other proceeding asserted by any third party against Purchaser (a) alleging that the Service (or Purchaser’s use thereof) infringes such third party’s U.S. patent, copyright, trademark, trade secret or other intellectual property right (each, an “Infringement Claim”), or (b) arising from VOS’s breach of its obligations in these Terms regarding the processing of your personal information. Without limiting the foregoing, if VOS receives notice of an Infringement Claim, VOS shall have the right, at its option and sole expense, to obtain for Purchaser (and its Purchaser Users) the right to continue to use the Service or modify or replace the Service with an alternative, non-infringing solution that performs all the same material functionality.
9.2 Indemnification by Purchaser. Purchaser shall indemnify, defend and hold harmless VOS from and against any and all losses, damages, costs and expenses (including reasonable attorneys’ fees) arising out of or resulting from any claim, demand, charge, action, cause of action or other proceeding asserted by any third party against VOS resulting from the conduct of Purchaser’s business while using the Service, including, without limitation, personal injury actions, wrongful death action, property damage, breach of contract, employee or workplace disputes.
9.3 No Liability for Infections. SPECIFICALLY, PURCHASER UNDERSTANDS AND AGREES THAT THE EQUIPMENT AND SYSTEM IS NOT INTENDED TO BE USED TO PREVENT, NOR DESIGNED TO PREVENT, INFECTIONS AMONG WEARERS OF THE WEARABLE DEVICES, NOR IS THE EQUIPMENT AND SYSTEM ABLE TO GUARANTEE THAT EMPLOYEES, STAFF, VOLUNTEERS OR OTHER WEARERS OF THE WEARABLE DEVICES WILL HAVE IMPROVED HEALTHCARE OUTCOMES IN THE EVENT OF AN INFECTION.
- Governing Law. These Terms shall be interpreted, construed and governed according to the laws of the State of Delaware, USA, without reference to conflicts of law principles thereof.
- Assignment; Parties in Interest. These Terms may not be assigned (by operation of law or otherwise) or transferred, in whole or in part, by either party without the prior written consent of the Purchaser or without notice provided promptly after an assignment from the Purchaser to VOS; provided, however, that either party shall be entitled to assign these Terms, without the prior written consent of the other party, to any successor corporation or other legal entity which succeeds as a going concern to the business presently conducted by such party pursuant to a merger, consolidation or sale of all or substantially all of its assets, if such successor corporation assumes in writing such party’s obligations hereunder. Except as specifically provided herein, these Terms are not intended to and do not create any rights in favor of any person or legal entity not a party hereto.
- Relationship of the Parties. For all purposes hereof and in the performance of its obligations under the Agreement, VOS is and shall remain an independent provider of equipment and service contractor and nothing in the Agreement shall be deemed or construed to create an employment relationship, joint venture, or partnership relationship between Purchaser and VOS. Except as provided herein, neither party shall have any power or authority to bind or commit the other party.
- Force Majeure. Neither party shall be responsible for any failure to perform, or delay in performing any of its obligations under the Agreement, where and to the extent that such a failure or delay results from causes outside the control of such party. Such causes shall include, without limitation, delays caused by the other party, acts of God, acts of the government in its sovereign or contractual capacity, fires, floods, epidemics, quarantine restrictions, freight embargoes, strikes, civil commotion or the like. If a force majeure persists for more than thirty (30) days, the performing party may terminate the Service and the Agreement upon written notice, and the performing party will not incur any liability in connection with such termination.
- The invalidity or unenforceability of any provision or part of any provision of the Agreement shall not affect the validity or enforceability of any other provision or part thereof and any such invalid or unenforceable provision or part thereof shall be deemed to be severable, and no provision or part thereof shall be deemed dependent upon any other provision or part thereof unless expressly provided for herein.
- Contact Information. If you have any questions about these Terms, please contact us at info@VOSIQ.com, or call (855) 924-4402, or via mail at 304 W. University Ave., Gainesville, FL 32601.
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