Please read these Terms of Service (these “Terms”) carefully. These Terms govern Bambi Health, Inc. (“Bambi Health” or “we”) provision of software and services, and Customer’s (as defined below) use thereof, as set forth in an Order Form (as defined below) executed between Bambi Health and Customer. TOGETHER, THESE TERMS AND ANY ORDER FORM(S) CONSTITUTE THE “AGREEMENT.” THE AGREEMENT IS EFFECTIVE AS OF THE ORDER FORM EFFECTIVE DATE (AS DEFINED AND SET FORTH IN THE INITIAL ORDER FORM). CAPITALIZED TERMS USED BUT NOT DEFINED HEREIN SHALL HAVE THE MEANINGS GIVEN TO THEM IN THE ORDER FORM.
BY EXECUTING AN ORDER FORM THAT INCORPORATES THESE TERMS BY REFERENCE, BY CLICKING ON THE “I ACCEPT” BUTTON, AND/OR OTHERWISE USING THE SERVICES, THE INDIVIDUAL OR ENTITY OBTAINING THE RIGHT TO ACCESS SUCH SERVICES (“CUSTOMER” or “YOU”) IS AGREEING TO BE BOUND BY AND IS A PARTY TO THIS AGREEMENT. IF THE INDIVIDUAL SIGNING THE ORDER FORM FOR CUSTOMER IS SIGNING ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, SUCH INDIVIDUAL REPRESENTS THAT HE OR SHE HAS THE AUTHORITY TO BIND THAT COMPANY OR OTHER LEGAL ENTITY. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, YOU MAY NOT ACCESS OR USE THE SERVICES.
CERTAIN ASPECTS OF THE SERVICES ARE PROVIDED WITH OR OTHERWISE COMPATIBLE WITH CERTAIN SERVICES OWNED OR CONTROLLED BY THIRD PARTIES. YOUR USE OF THOSE THIRD-PARTY SERVICES WILL BE GOVERNED BY THOSE LICENSES, AND NOT THIS AGREEMENT.
YOU MAY NOT ACCESS THE SERVICES IF YOU ARE A DIRECT COMPETITOR OF BAMBI HEALTH, EXCEPT WITH BAMBI HEALTH’S PRIOR WRITTEN CONSENT. IN ADDITION, YOU MAY NOT ACCESS THE SERVICES FOR PURPOSES OF MONITORING THEIR AVAILABILITY, PERFORMANCE OR FUNCTIONALITY, OR FOR ANY OTHER BENCHMARKING OR COMPETITIVE PURPOSES.
Capitalized terms will have the meanings set forth in this section, or in the section where they are first used.
Subject to Customer’s payment of the fees set forth in the Order Form (“Fees”), Bambi Health will provide Customer with access to the Bambi Health Solution via a web browser. On or as soon as reasonably practicable after the Order Form Effective Date (as defined in the Order Form), Bambi Health will provide to Customer the necessary passwords, security protocols and policies and network links or connections and Access Protocols to allow Customer and its Authorized Users to access the Bambi Health Solution in accordance with the Access Protocols; provided that nothing herein will be construed to require Bambi Health to provide, or bear any responsibility with respect to, any telecommunications or computer network hardware required by Customer or any Authorized User to access the Bambi Health Solution from the internet.
Subject to the terms and conditions of this Agreement, Bambi Health will exercise commercially reasonable efforts to (a) provide support for the use of the Services, and (b) keep the Services and available to Customer, in each case in accordance with its then-current standard policies and procedures.
If Customer purchases access to the Developer Platform under an Order Form, Customer may use the Developer Platform solely for the purposes expressly permitted in Section 3.1 and the applicable Order Form. Customer is solely responsible for all Customer Applications, including their development, operation, security, support, compliance with applicable law, and interaction with the Services. Bambi Health is not responsible for any Customer Application or any act or omission of Customer’s developers, contractors, service providers or end users.
Customer is responsible for maintaining the confidentiality and security of all API Credentials and for all activity occurring through such API Credentials. Bambi Health may establish and enforce rate limits, call limits, payload limits, technical limitations and other usage controls for the Developer Platform. Customer will not circumvent or attempt to circumvent any such limits.
Bambi Health may suspend, throttle, limit or disable Customer’s access to the Developer Platform if Bambi Health reasonably determines that Customer’s use may violate this Agreement, exceed applicable limits, create a security risk, impair the Services, interfere with another customer’s use of the Services, or violate applicable law.
Bambi Health may modify, update, suspend, deprecate, or discontinue any portion of the Developer Platform, including any API, Webhook, endpoint, field, event or Documentation. Where commercially reasonable, Bambi Health will provide advance notice of material deprecations; provided that Bambi Health may make changes without advance notice where necessary for security, legal compliance, performance or availability.
Subject to the terms and conditions of this Agreement and an applicable Order Form, Bambi Health grants to Customer a non-exclusive, non-transferable (except as permitted under Section 13.5 (No Assignment)) license during the Term, solely for Customer’s internal business purposes and in accordance with the limitations (if any) set forth in the Order Form, (a) to access and use the Bambi Health Solution in accordance with the Documentation; (b) to access and use the Developer Platform solely to develop, test and operate Customer Applications that interoperate with the Bambi Health Solution for Customer’s internal business purposes; and (c) to use and reproduce a reasonable number of copies of the Documentation solely to support Customer’s use of the Services. Customer may permit Authorized Users to access and use the features and functions of the Bambi Health Solution as contemplated by this Agreement; provided Customer will be solely responsible for all acts or omissions of its Authorized Users, developers, contractors, service providers and end users with respect to the use of the Services, Developer Platform and Customer Applications.
Customer will not, and will not permit any Authorized User or other party to: (a) allow any third party to access the Bambi Health Solution, Licensed Material or Documentation, except as expressly allowed herein; (b) modify, adapt, alter or translate the Bambi Health Solution, Licensed Material or Documentation; (c) sublicense, lease, sell, resell, rent, loan, distribute, transfer or otherwise allow the use of the Bambi Health Solution or Documentation for the benefit of any unauthorized third party; (d) reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or the underlying ideas, algorithms, structure or organization) of the Bambi Health Solution, except as permitted by law; (e) interfere in any manner with the operation of the Bambi Health Solution or the hardware and network used to operate the Bambi Health Solution; (f) modify, copy or make derivative works based on any part of the Bambi Health Solution or Documentation; (g) access or use the Bambi Health Solution to build a similar or competitive product or service; (h) attempt to access the Bambi Health Solution through any unapproved interface; or (i) otherwise use the Bambi Health Solution, Licensed Material, or Documentation in any manner that exceeds the scope of use permitted under Section 3.1 (License Grant) or in a manner inconsistent with applicable law (including, without limitation, Applicable Data Protection Laws), the Documentation, or this Agreement. Customer will not remove, alter, or obscure any proprietary notices (including copyright and trademark notices) of Bambi Health or its licensors on the Licensed Material or any copies thereof. CUSTOMER ACKNOWLEDGES THAT THE BAMBI HEALTH SOLUTION IS NOT INTENDED TO BE USED AS MEDICAL ADVICE, DIAGNOSIS, OR TREATMENT OF ANY MEDICAL CONDITION OR HEALTH PROBLEM, AND CUSTOMER SHALL BE RESPONSIBLE FOR ALL MEDICAL ADVICE, DIAGNOSIS AND TREATMENT PROVIDED TO ANY PATIENTS. Without limiting the foregoing, Customer will not, and will not permit any Authorized User or other party to, use the Developer Platform to scrape data, conduct security testing outside approved parameters, benchmark or monitor the Services for competitive purposes, develop or enhance a competing product or service, resell or make available any API, Webhook or Bambi Health functionality to any third party, or expose data or functionality made available through the Developer Platform to any third party except as expressly authorized in an Order Form or in writing by Bambi Health.
The Bambi Health Solution, Licensed Materials and Documentation, and all enhancements and improvements thereto, and worldwide Intellectual Property Rights in each of the foregoing, are the exclusive property of Bambi Health and its suppliers. All rights in and to the Bambi Health Solution and Documentation not expressly granted to Customer in this Agreement are reserved by Bambi Health and its suppliers. Except as expressly set forth herein, no express or implied license or right of any kind is granted to Customer regarding the Bambi Health Solution, Documentation, or any part thereof.
Subject to the terms and conditions of this Agreement, Bambi Health grants Customer a perpetual, royalty-free, fully-paid, nonexclusive, non-transferable (except as permitted under Section 13.5 (No Assignment)), non-sublicensable license to use the Licensed Material solely for Customer’s internal business purposes.
Certain items of software may be provided to Customer with the Bambi Health Solution and are subject to “open source” or “free software” licenses (“Open Source Software”). Some of the Open Source Software is owned by third parties. The Open Source Software is not subject to the terms and conditions of Sections 3.3 (Ownership) or 11 (Indemnification). Instead, each item of Open Source Software is licensed under the terms of the end-user license that accompanies such Open Source Software. Nothing in this Agreement limits Customer’s rights under, or grants Customer rights that supersede, the terms and conditions of any applicable end user license for the Open Source Software. If required by any license for particular Open Source Software, Bambi Health makes such Open Source Software, and Bambi Health’s modifications to that Open Source Software, available by written request at the notice address specified below.
Customer hereby grants to Bambi Health a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by Customer, including Authorized Users, relating to the Services. Bambi Health will not identify Customer as the source of any such feedback.
Certain features of the Services may use AI Features. Customer may provide AI Inputs and receive AI Outputs from the Services. Customer acknowledges that AI Outputs may be inaccurate, incomplete, non-deterministic or unsuitable for Customer’s intended use and that AI Features may generate the same or similar AI Outputs for Bambi Health, Customer, other customers, or other users. Customer is responsible for independently reviewing, validating and determining whether to rely on any AI Output. Bambi Health does not represent that any AI Output will be error-free or appropriate for any clinical, operational, business, compliance or other purpose. Customer will not use any AI Output as the sole basis for medical advice, diagnosis, treatment or other decisions that may have a legal or similarly significant effect on an individual. Customer will not use any AI Feature, AI Input or AI Output to create, train, improve or validate any competing artificial intelligence, machine learning, foundation model, large language model or similar service, or to reverse engineer, extract or discover any model, model weights, algorithms, safety features, prompts, training data or operation of any AI Feature. Customer will not represent that any AI Output was solely human-generated where doing so would be misleading or unlawful.
In consideration for the access rights granted to Customer and the Services performed by Bambi Health under this Agreement, Customer will pay to Bambi Health the Fees. Except as otherwise provided in the Order Form, all Fees are billed monthly and due and payable within thirty (30) days of the date of the invoice. Bambi Health will be reimbursed only for expenses that are expressly provided for in an Order Form or SOW or that have been approved in advance in writing by Customer, provided Bambi Health has furnished such documentation for authorized expenses as Customer may reasonably request. Bambi Health reserves the right (in addition to any other rights or remedies Bambi Health may have) to discontinue the Bambi Health Solution and suspend all Authorized Users’ and Customer’s access to the Services if any Fees are more than thirty (30) days overdue until such amounts are paid in full. Customer will maintain complete, accurate and up-to-date Customer billing and contact information at all times. Except as provided in an Order Form, Fees are not refundable. Except as otherwise expressly stated in an Order Form, Bambi Health reserves the right to increase Fees on thirty (30) days’ notice.
From time to time Bambi Health may use certain third parties to provide payment services (e.g., card acceptance, merchant settlement and related services) (“Payment Processors”). By selecting certain billing and/or payments features, Customer agrees to comply with the terms and conditions and policies of the Payment Processors used by Bambi Health, and hereby consents and authorizes Bambi Health to share any information and payment instructions provided herein with Payment Processors to the minimum extent required to complete Customer’s transactions hereunder.
The Fees are exclusive of all applicable sales, use, value-added and other taxes, and all applicable duties, tariffs, assessments, export and import fees, or other similar charges, and Customer will be responsible for payment of all such taxes (other than taxes based on Bambi Health’s income), fees, duties, and charges and any related penalties and interest, arising from the payment of the Fees, the provision of the Services, or the license of the Bambi Health Solution to Customer. Customer will make all payments of Fees to Bambi Health free and clear of, and without reduction for, any withholding taxes; any such taxes imposed on payments of Fees to Bambi Health will be Customer’s sole responsibility, and Customer will provide Bambi Health with official receipts issued by the appropriate taxing authority, or such other evidence as the Bambi Health may reasonably request, to establish that such taxes have been paid.
Any amounts not paid when due will bear interest at the rate of one- and one-half percent (1.5%) per month, or the maximum legal rate if less, from the due date until paid.
Unless otherwise stated in an Order Form, vehicle-based Fees are calculated based on the number of vehicles subscribed, enabled, or otherwise designated for use with the applicable Services during the relevant billing period, as specified in the applicable Order Form. If Customer purchases access to the Developer Platform, Customer will pay the Developer Platform subscription Fee and the supplemental per-vehicle Fee set forth in the applicable Order Form. The Developer Platform Fees are in addition to, and not in lieu of, any Fees payable for Customer’s existing subscription to the Bambi Health Solution or any other Services.
Customer is solely responsible for any and all obligations with respect to the accuracy, quality and legality of Customer Content. Customer will obtain all third party licenses, consents and permissions needed for Bambi Health to collect, access, use, and otherwise Process the Customer Content to provide the Services. Without limiting the foregoing, Customer will be solely responsible for providing all notices to, and obtaining from, third parties, including, without limitations its customers, all necessary rights and consents for Bambi Health to use the Customer Content for the purposes set forth in this Agreement (including, without limitation, all notices and consents required under Applicable Data Protection Laws). Customer grants Bambi Health a non-exclusive, worldwide, royalty-free and fully paid license during the Term (a) to use the Customer Content as necessary for purposes of providing and improving the Services, (b) to use the Customer trademarks, service marks, and logos as required to provide the Services, or in promotional materials marketing websites and the like, and (c) derive aggregated, de-identified and/or anonymized data from Customer Content (“Derived Data”). Bambi Health will be the sole owner of all such Derived Data and will have the right to use such Derived Data for any lawful business purpose. The Customer Content, and all worldwide Intellectual Property Rights in it, is the exclusive property of Customer. All rights in and to the Customer Content not expressly granted to Bambi Health in this Agreement are reserved by Customer.
Customer represents and warrants that any Customer Content will not (a) infringe any copyright, trademark, or patent; (b) misappropriate any trade secret; (c) be deceptive, defamatory, obscene, pornographic or unlawful; (d) contain any viruses, worms or other malicious computer programming codes intended to damage Bambi Health’s system or data; and (e) otherwise violate the rights of a third party. Bambi Health is not obligated to back up any Customer Content; the Customer is solely responsible for creating backup copies of any Customer Content at Customer’s sole cost and expense. Customer agrees that any use of the Bambi Health Solution contrary to or in violation of the representations and warranties of Customer in this Section 5.2 (Customer Warranty) constitutes unauthorized and improper use of the Bambi Health Solution.
Customer and its Authorized Users will have access to the Customer Content and will be responsible for all changes to and/or deletions of Customer Content and the security of all passwords and other Access Protocols required in order the access the Bambi Health Solution. Customer will have the ability to export its own Customer Content out of the Bambi Health Solution and is encouraged to make its own back-ups of the Customer Content. Customer will have the sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Content.
Customer acknowledges that it, and not Bambi Health, is responsible for operating Customer’s own business, including with respect to obtaining all licenses, permits and other governmental registrations to enable its use of the Services. The Bambi Health Solution is not intended to be used as advice as to whether to engage in any particular transaction.
Customer may elect to use Third-Party Applications with the Services or Developer Platform. Bambi Health is not responsible for any Third-Party Application or for any disclosure, modification, deletion, loss, corruption, or other Processing of Customer Content resulting from Customer’s use of, or integration with, any Third-Party Application. If Customer enables a Third-Party Application or integration, Customer authorizes Bambi Health to permit the applicable third party to access Customer Content as necessary to enable the interoperation requested by Customer, subject to the BAA to the extent PHI is involved. Customer is solely responsible for evaluating, procuring, configuring, securing, and maintaining each Third-Party Application and for complying with any applicable third-party terms.
Where the parties have agreed to Bambi Health’s provision of Professional Services, the details of such Professional Services will be set out in an Order Form or a mutually executed statement of work (“SOW”). The Order Form or SOW, as applicable, will include: (a) a description of the Professional Services; (b) the schedule for the performance of the Professional Services; and (c) the Fees applicable for the performance of the Professional Services. Each Order Form or SOW, as applicable, will incorporate the terms and conditions of this Agreement. To the extent that a conflict arises between the terms and conditions of an Order Form or SOW and the terms of this Agreement, the terms and conditions of this Agreement will govern, except to the extent that the Order Form or SOW, as applicable, expressly states that it supersedes specific language in the Agreement.
Before providing to Bambi Health, or enabling Bambi Health to Process any PHI, Customer will enter into a Business Associate Agreement (“BAA”) with Bambi Health in the form provided by Bambi Health at: https://www.hibambi.com/legal/business-associate-agreement. If Customer has not entered into the BAA, Customer represents, warrants and covenants Bambi Health is not Processing any PHI on behalf of Customer under this Agreement in a manner covered by HIPAA. Any PHI shall be governed by the BAA and shall not be Confidential Information. In the event of a conflict between any provision of the BAA and this Agreement, the provision providing the higher level of privacy or data protection shall govern.
Customer may not use the Developer Platform to access, transmit, disclose, export or otherwise Process PHI unless Customer and Bambi Health have entered into a BAA governing such PHI. Customer is responsible for ensuring that Customer’s use of the Developer Platform, Customer Applications and any downstream systems used by or on behalf of Customer comply with the BAA and all Applicable Data Protection Laws.
During the Term, Bambi Health will maintain commercially reasonable safeguards and procedures designed to prevent the unauthorized use or disclosure of Personal Data. During the Term, Bambi Health will maintain commercially reasonable physical, administrative and technical security measures designed to maintain the availability, integrity and confidentiality of Personal Data.
Without limiting Customer’s obligations under Sections 2 (Provision of Services), and 3 (Intellectual Property), each party shall comply with all Applicable Data Protection Laws in the performance of their respective obligations under this Agreement with respect to the Processing of Personal Data. The sale, retention, use or disclosure of Personal Data shall be governed by Bambi Health’s Privacy Policy, as in effect from time to time, and located at https://www.hibambi.com/legal/privacy-policy.
To the extent that Bambi Health or Customer reasonably determine that Applicable Data Protection Laws require the parties to execute any additional agreements governing Personal Data, the parties agree to negotiate in good faith with respect to such additional agreements.
To the extent any AI Feature Processes Customer Content, Personal Data or PHI, such Processing will be subject to this Agreement and, where applicable, the BAA. Customer represents and warrants that it has obtained all rights, consents, authorizations, notices and lawful bases necessary to submit AI Inputs to Bambi Health and to permit Bambi Health to Process AI Inputs and AI Outputs to provide, maintain, secure and improve the Services. Customer will not submit PHI to any AI Feature unless such submission is permitted under the applicable Order Form, Documentation and BAA. Except as expressly stated in an Order Form, BAA, or other written agreement between the parties, Bambi Health will not use Customer Content or PHI to train third-party foundation models or large language models, and Bambi Health will not permit third-party providers of AI Features to use Customer Content or PHI to train or improve their foundation models or large language models except as necessary to provide the applicable AI Feature to Customer.
Bambi Health may monitor Customer’s use of the Services and Developer Platform to operate, maintain, secure, support, improve, and protect the Services, to detect and address threats to the security, integrity, availability, and performance of the Services, to enforce usage limits, and to investigate suspected illegal activity or violations of this Agreement. Bambi Health may use information derived from such monitoring in aggregated or de-identified form for security, operations, analytics, product improvement, and service management purposes, provided that such information does not identify Customer or any individual.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES, LICENSED MATERIAL, AI OUTPUT, DEVELOPER PLATFORM, APIS, WEBHOOKS AND DOCUMENTATION ARE PROVIDED “AS IS,” WITHOUT ANY CONDITION OR WARRANTY WHATSOEVER. THE ENTIRE RISK ASSOCIATED WITH THE USE OF THE SERVICES RESIDES WITH CUSTOMER. BAMBI HEALTH EXPRESSLY DISCLAIMS ALL OTHER REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION, ANY WARRANTIES OF TITLE, NON-INFRINGEMENT, NON-INTERFERENCE AND/OR QUIET ENJOYMENT, SYSTEM INTEGRATION, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, DATA ACCURACY, API AVAILABILITY, WEBHOOK DELIVERY, AI OUTPUT ACCURACY AND ERROR-FREE OPERATION. BAMBI HEALTH DOES NOT WARRANT THAT OPERATION OF THE BAMBI HEALTH SOLUTION, DEVELOPER PLATFORM, APIS OR WEBHOOKS WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ANY AI OUTPUT WILL BE ACCURATE, COMPLETE OR SUITABLE FOR CUSTOMER’S INTENDED USE.
IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, COSTS OF DELAY, ANY FAILURE OF DELIVERY, BUSINESS INTERRUPTION, COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION, OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION UPON DAMAGES AND CLAIMS IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.
THE MAXIMUM LIABILITY OF EITHER PARTY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT WILL NOT EXCEED THE FEES PAID BY CUSTOMER TO BAMBI HEALTH DURING THE TWELVE (12) MONTHS PRECEDING THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. IN NO EVENT WILL BAMBI HEALTH’S SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT.
The parties agree that the limitations of liability set forth in this Section 9 (Limitation of Liability) will survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy. The parties acknowledge that the prices have been set and the Agreement entered into in reliance upon these limitations of liability and that all such limitations form an essential basis of the bargain between the parties.
“Confidential Information” means any nonpublic information of a party (the “Disclosing Party”), whether disclosed orally or in written or digital media, that is identified as “confidential” or with a similar legend at the time of such disclosure or that the receiving party (the “Receiving Party”) knows or should have known is the confidential or proprietary information of the Disclosing Party. The Services, Documentation, and all enhancements and improvements thereto will be considered Confidential Information of Bambi Health.
The Receiving Party agrees that it will not use or disclose to any third party any Confidential Information of the Disclosing Party, except as expressly permitted under this Agreement. The Receiving Party will limit access to the Confidential Information to Authorized Users (with respect to Customer) or to those employees who have a need to know, who have confidentiality obligations no less restrictive than those set forth herein, and who have been informed of the confidential nature of such information (with respect to Bambi Health). In addition, the Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner that it protects its own proprietary information of a similar nature, but in no event with less than reasonable care. At the Disclosing Party’s request or upon termination or expiration of this Agreement, the Receiving Party will return to the Disclosing Party or destroy (or permanently erase in the case of electronic files) all copies of the Confidential Information that the Receiving Party does not have a continuing right to use under this Agreement, and the Receiving Party will, upon request, certify to the Disclosing Party its compliance with this sentence.
The confidentiality obligations set forth in Section 10.2 (Protection of Confidential Information) will not apply to any information that (a) is at the time of disclosure or becomes generally available to the public through no fault of the Receiving Party; (b) is lawfully provided to the Receiving Party by a third party free of any confidentiality duties or obligations; (c) was already known to the Receiving Party at the time of disclosure free of any confidentiality duties or obligations; or (d) the Receiving Party can demonstrate, by clear and convincing evidence, was independently developed by employees and contractors of the Receiving Party who had no access to the Confidential Information. In addition, the Receiving Party may disclose Confidential Information to the extent that such disclosure is necessary for the Receiving Party to enforce its rights under this Agreement or is required by law or by the order of a court or similar judicial or administrative body, provided that (to the extent legally permissible) the Receiving Party promptly notifies the Disclosing Party in writing of such required disclosure and cooperates with the Disclosing Party if the Disclosing Party seeks an appropriate protective order.
Bambi Health will defend at its expense any suit brought against Customer, and will pay any settlement Bambi Health makes or approves, or any damages finally awarded in such suit, insofar as such suit is based on a claim by any third party alleging that the Bambi Health Solution infringes such third party’s patents, copyrights or trade secret rights under applicable laws of any jurisdiction within the United States of America. If any portion of the Bambi Health Solution becomes, or in the opinion of Bambi Health is likely to become, the subject of a claim of infringement, Bambi Health may, at the option of Bambi Health: (a) procure for Customer the right to continue using the Bambi Health Solution; (b) replace the Bambi Health Solution with non-infringing software or services which do not materially impair the functionality of the Bambi Health Solution; (c) modify the Bambi Health Solution so that it becomes non-infringing; or (d) terminate this Agreement and refund any unused prepaid Fees for the remainder of the term then in effect, and upon such termination, Customer will immediately cease all use of the Bambi Health Solution and Documentation. Notwithstanding the foregoing, Bambi Health will have no obligation under this section or otherwise with respect to any infringement claim based upon (i) any use of the Bambi Health Solution not in accordance with this Agreement or as specified in the Documentation; (ii) any use of the Bambi Health Solution in combination with other products, equipment, software or data not supplied by Bambi Health; or (iii) any modification of the Bambi Health Solution by any person other than Bambi Health or its authorized agents (collectively, the “Exclusions” and each, an “Exclusion”). This section states the sole and exclusive remedy of Customer and the entire liability of Bambi Health, or any of the officers, directors, employees, shareholders, contractors or representatives of the foregoing, for infringement claims and actions.
Customer will defend at its expense any suit brought against Bambi Health, and will pay any settlement Customer makes or approves, or any damages finally awarded in such suit, insofar as such suit is based on a claim arising out of or relating to (a) an Exclusion, (b) Customer’s breach or alleged breach of Sections 5.2 (Customer Warranty) or 13.6 (Compliance with Law), (c) any Customer Application or any use of the Developer Platform by or on behalf of Customer, including any API misuse, unauthorized disclosure, security incident, or downstream Processing caused by Customer or a Customer Application, or (d) claims for bodily injury or damage to physical property, to the extent (i) alleged to be caused by Customer’s or any other party’s use of the Bambi Health Solution; or (ii) caused by the acts or omissions of Customer, its employees, officers or agents. This section states the sole and exclusive remedy of Bambi Health and the entire liability of Customer, or any of the officers, directors, employees, shareholders, contractors or representatives of the foregoing, for the claims and actions described herein.
The indemnifying party’s obligations as set forth above are expressly conditioned upon each of the foregoing: (a) the indemnified party will promptly notify the indemnifying party in writing of any threatened or actual claim or suit; (b) the indemnifying party will have sole control of the defense or settlement of any claim or suit; and (c) the indemnified party will cooperate with the indemnifying party to facilitate the settlement or defense of any claim or suit.
This Agreement will begin on the Order Form Effective Date (as defined in the Order Form) and continue in full force and effect as long as any Order Form remains in effect, unless earlier terminated in accordance with this Agreement (the “Term”). The term of an Order Form will begin on the Order Form Effective Date (as defined in the Order Form) set forth in the Order Form and continue in full force and effect for the initial term specified therein; thereafter the term of such Order Form shall be automatically extended for additional monthly periods until either party gives 30 days prior notice of non-extension to the other.
Either party may terminate this Agreement immediately upon notice to the other party if the other party materially breaches this Agreement, and such breach remains uncured more than thirty (30) days after receipt of written notice of such breach.
Upon termination or expiration of this Agreement for any reason: (a) all licenses granted hereunder will immediately terminate; (b) promptly after the effective date of termination or expiration, each party will comply with the obligations to return all Confidential Information of the other party, as set forth in Section 10 (Confidentiality); and (c) any amounts owed to Bambi Health under this Agreement will become immediately due and payable. Sections 1 (Definitions), 2.3 through 2.6 (Developer Platform; APIs; Webhooks), 3.2 (Restrictions), 3.3 (Ownership), 3.4 (License to Licensed Material), 3.5 (Open Source Software), 3.6 (Feedback), 3.7 (AI Features), 4 (Fees and Expenses; Payments), 5.5 (Third-Party Applications and Integrations), 7 (Data Security; Privacy), 8 (Disclaimer), 9 (Limitation of Liability), 10 (Confidentiality), 11 (Indemnification), 12.3 (Effect of Termination), 12.4 (Data Extraction), and 13 (Miscellaneous) will survive expiration or termination of this Agreement for any reason.
For twenty (20) days after the end of the Term, as applicable, Bambi Health will make Customer Content available to Customer through the Bambi Health Solution on a limited basis solely for purposes of Customer retrieving Customer Content, unless Bambi Health is instructed by Customer to delete such data before that period expires. After such period, Bambi Health will discontinue all use of Customer Content and destroy all copies of Customer Content in its possession.
This Agreement and any action related thereto will be governed and interpreted by and under the laws of the State of Delaware, without giving effect to any conflicts of laws principles that require the application of the law of a different jurisdiction. Customer hereby expressly consents to the personal jurisdiction and venue in the state and federal courts for New Castle County, Delaware for any lawsuit filed there against Customer by Bambi Health arising from or related to this Agreement. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
Customer agrees not to export, reexport, or transfer, directly or indirectly, any U.S. technical data acquired from Bambi Health, or any products utilizing such data, in violation of the United States export laws or regulations.
If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will remain enforceable and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
Neither party will assign, subcontract, delegate, or otherwise transfer this Agreement, or its rights and obligations herein, without obtaining the prior written consent of the other party, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void; provided, however, that either party may assign this Agreement in connection with a merger, acquisition, reorganization or sale of all or substantially all of its assets, or other operation of law, without any consent of the other party. The terms of this Agreement will be binding upon the parties and their respective successors and permitted assigns.
Customer will, and will ensure that all Authorized Users, always comply with all foreign and domestic laws, ordinances, regulations, and statutes that are applicable to its and their purchase and use of the Services, Licensed Material and Documentation.
Any delay in the performance of any duties or obligations of either party (except the payment of Fees owed) will not be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, or any other event beyond the control of such party, provided that such party uses reasonable efforts, under the circumstances, to notify the other party of the cause of such delay and to resume performance as soon as possible.
Customer’s relationship to Bambi Health is that of an independent contractor, and neither party is an agent or partner of the other. Customer will not have, and will not represent to any third party that it has, any authority to act on behalf of Bambi Health.
All notices required or permitted under this agreement must be delivered in writing, if to Bambi Health, by emailing contact@bambi.health and if to Customer by emailing the Customer email address listed on the Order Form, provided, however, that with respect to any notices relating to breaches of this agreement or termination, a copy of such notice will also be sent in writing to the other party at the address listed on the Order Form by courier, by certified or registered mail (postage prepaid and return receipt requested), or by a nationally-recognized express mail service. Each party may change its email address and/or address for receipt of notice by giving notice of such change to the other party.
This Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matters hereof and supersedes and merges all prior discussions between the parties with respect to such subject matters. No terms or conditions contained in any purchase order, vendor onboarding document, invoice portal, procurement document, or other administrative form submitted by Customer will modify, supersede, or supplement this Agreement, regardless of whether Bambi Health accepts, acknowledges, signs, or processes such document, unless such document is signed by an authorized signatory of Bambi Health and expressly states that it amends this Agreement. No modification of or amendment to this Agreement, or any waiver of any rights under this Agreement, will be effective unless in writing and signed by an authorized signatory of Customer and Bambi Health.
