COMMERCIAL TERMS - 2021

By & Between

 BIORITHM PTE LTD, a limited company duly registered and existing under the laws of Singapore, company registration no. 201435219N, having its registered address at 81 Ayer Rajah Crescent #01-60/61, Singapore 139967 (hereinafter referred to as the “Company”) of one part;

And

 Customer,  a limited company duly registered and existing under the laws of SINGAPORE, , having its registered address in Singapore (hereinafter referred to as the “Customer”) of the other part.

 (the Company and the Customer may be referred to in this Agreement individually as a “Party” and collectively as the “Parties”)

 Whereas

a.     The Company develops and owns the “Telehealth Solution” named “Femom lite” including, if any, its upgraded and/or modified versions (collectively referred to as the “Software”), details of which are described in Appendix I;

 b.     The Customer is a part of the Customer and

 c.     The Parties would like to deploy the Telehealth Solution” named “Femom lite” with the Customers and Customer’s patients.

 

NOW, THEREFORE, the Parties have agreed as follows:

 

1.     Software. Femom lite Server (SaaS): Femom lite Cloud is the hosting platform designed and used to deliver Femom lite applications as a service (“The Service”). Each subscriber's femom lite server is located on a dedicated virtual server at an Amazon Web Services data centre within Singapore. Biorithm is responsible for provisioning, monitoring, updating, and managing the client servers, and for providing technical support to femom lite subscribers.

2.     Usage of the Software: Under this Agreement, the Company will use commercially reasonable efforts to provide the Customer with a limited license to use the Software as a service solution for remote monitoring of patient physiological and non-physiological data for the purpose of determining the usability, desirability, scalability of the Software with the Customer’s applications and operations environment.

3.     Biorithm Responsibilities

Under these terms, Biorithm shall:

  • Maintain regulatory approval of femom lite according to CUSTOMER’s local regulatory Agency.

  • Provide availability of system at 95% or more.

  • Provide backup for installed production servers via AWS RDS Database.

  • Monitor and manage the Biorithm’s components on the servers.

  • Provide clients the App available through Google PlayStore  supported by Android 7.0 and above.

  • Provides clinician web application with support for latest Microsoft Edge, Mozilla Firefox, Google Chrome and Safari web browsers.

  • Provide training, clinician’s manuals, with contact details for technical support requests.

4.     CUSTOMER Responsibilities

CUSTOMER will:

  • Enroll patients onto the femom lite platform.

  • Create patient accounts in the portal and assign groups, and threshold values based on individual assessment, either by CUSTOMER themselves or by proxy to CUSTOMER’s clients.

  • Assure that patients are trained and instructed in using the App (optionally with POC devices) by themselves or by proxy. BIO is not obligated to instruct patients on behalf of the CUSTOMER.

  • Establish routines with healthcare professionals or care team to review data on a regular basis (e.g. daily), and must contact patients who generate alerts (i.e. red, yellow, orange and blue alarms), either by themselves or by a proxy.

  • Must attend femom lite first-time training and refresher training as required.

  • Supply end-user support either by themselves or by proxies.

  • To track all systems and/or devices distributed to CUSTOMER and patients/clients such that the systems and/or devices can be identified and recalled, should a recall be issued by BIO.

  • All devices must be registered in BIO logistics to ensure full traceability of all deployed devices.

  • Should a 3rd party organization be employed by CUSTOMER to handle the device logistics, then it is COSTUMER’s obligation to verify that the subcontractor(s) maintain complete and updated records for all deployed devices, in such a manner that all devices can be traced and reclaimed in case of a recall.

5.     Technical Support. The Company will provide the Customer with reasonable technical support services in accordance with the Company’s standard practice.

 

6.     Requirements to Start Deployment. The Parties will complete the following actions and satisfy the following requirements prior to the start of the Deployment:

(a)   Signature of the invoice

(b)   Customers training.

 

7.     Deployment Success Criteria. The deployment will be considered successful if the Parties achieve the following results:

(a)   Clinicians’ questionnaires should be implemented on the questionnaire builder and visible on the patient mobile app without fault;

(b)   All transmitted user input values should be visible on the clinician web application; and

(c)   Assuming no wireless/connectivity issues, submitted patient-reported information should be visible without delay on the clinician web application.

8.     Deployment Period: Deployment will start on invoice signature date and continue for a period as indicated on the signed invoice. 

9.     Accounting and Records : Customer shall be deemed to have access to the Software where the logs show transactions within a specific month, where relevant Patient data has been submitted from a Patient’s hardware (i.e. mobile phone) to the specified server. Payment shall be calculated upon all Patients that were active in the given month. 

CUSTOMER agrees to maintain complete and accurate books of accounts in which the particulars of all sales of the femom lite with Patients’ access to the femom lite system are recorded in reasonable detail to enable payments payable hereunder to be determined, unless other model for BIO’s invoicing has been agree on by the Parties. 

 

10.  Restrictions and responsibilities. The Customer shall not, without the Company’s advance written consent, directly or indirectly:

(a)   modify, translate, reproduce, or create derivative works based on any part of the Software;

(b)   rent, lease, distribute, sell, transfer, or provide access to the Software to any third party;

(c)   use the Software for the benefit of any third party;

(d)   incorporate the Software into a product or service that the Customer provides to a third party;

(e)   interfere with any license key mechanism in the Software;

(f)    reverse engineer, disassemble, decompile, or otherwise attempt to discover the source code, object code, underlying structure, underlying ideas, know-how, algorithms, file formats, or non-public APIs relevant to the Software;

(g)   remove or obscure any proprietary or other notices contained in the Software;

(h)   use the Software for competitive analysis or to build competitive products;

(i)     publicly disseminate information regarding the performance of the Software;

(j)     encourage or assist any third party to do any of the foregoing;

(k)   with respect to any Software that is distributed or provided to the Customer for use on the Customer premises or devices, the Company hereby grants the Customer a non-exclusive, non-transferable, non-sublicensable license to use such Software during the Deployment Period.

11.  Compliance with laws. The Customer represents, covenants, and warrants that the Customer will use the Software only in compliance with the Company’s standard policies then in effect and all applicable laws and regulations. The Customer hereby agrees to indemnify and hold harmless the Company against any damages, losses, liabilities, settlements, and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from the Customer’s use of Software. Although the Company has no obligation to monitor the Customer’s use of Software, the Company may do so and may prohibit any use of Software it believes may be (or alleged to be) in violation of the terms and conditions stipulated herein.

 

12.  Equipment. The Customer will be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access, or otherwise the use of Software, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers, and the like (collectively referred to as the “Equipment”). The Customer will also be responsible for maintaining the security of Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of the Customer account or Equipment.

 

13.  Confidentiality. Proprietary Information. Each Party (or “Receiving Party”) understands that the other Party (or “Disclosing Party”) has disclosed or may disclose, business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of the Company includes non-public information regarding features, functionality, and performance of the Software. Proprietary Information of the Customer includes non-public data provided by the Customer to the Company to enable Deployment (“Customer Data”).

 The Receiving Party agrees to take reasonable precautions to protect such Proprietary Information, and not to use (except for deployment or as otherwise permitted herein) or divulge to any third party any such Proprietary Information. The Disclosing Party agrees that the foregoing will not apply with respect to any information after three (3) years following the disclosure thereof or any information that:

(i)     is or becomes generally available to the public (other than as a result of wrongful disclosure under this Agreement);

(ii)   was in its possession or known by its prior to receipt from the Disclosing Party;

(iii)  was independently developed without the use of any Proprietary Information of the Disclosing Party; or

(iv)  is required to be disclosed by law.

 

14.  Intellectual Property Right.

(a)   The Customer recognizes that the Software, and customizations, updates, or corrections, if any, are the property of, and all rights thereto, are owned by the Company. The Company shall continue to own all right, title, and interest in and to the Software, and all intellectual property rights embodied therein or related thereto.

(b)   The Parties agree that, except as expressly provided herein, no intellectual property rights are granted to the Customer by implication or otherwise.

(c)   The Customer shall keep the Software, and customizations, updates and/or corrections, if any, free and clear of any claims, liens, and encumbrances attributable to the use or possession of the Software by the Customer.

(d)   The Software is for the sole use of the Customer and shall be used only for the purpose set forth in this Agreement.

(e)   The Customer agrees to promptly notify the Company if it obtains information as to any unauthorized possession, use, or disclosure of the Software by any person or entity, and further agrees to cooperate with the Company in protecting the Company’s proprietary rights.

15.  Customer Data. The Customer will own all right, title, and interest in and to the Customer Data, as well as any data that is based on or derived from the Customer Data and provided to the Customer as part of the Deployment. However, the Customer hereby grants to the Company, throughout the period of performance of this contract, a non-exclusive, non-transferable, worldwide, royalty-free, and fully paid-up right and license to use such Customer Data in aggregated or de-identified form for the purposes of providing and improving the Software.

The Company will own and retain the all right, title, and interest in and to:

(i)     the Software, all improvements, enhancements, or modifications thereto;

(ii)   any software, applications, inventions, or other technology developed in connection with the Deployment; and

(iii)  all intellectual property rights related to any of the foregoing.

 

16.  Personal Data Privacy.  

(a)   The Parties acknowledge and agree that any data provided by or collected from the data subjects (“Personal Data”) to and/or (i) used by the Customer and (ii) processed by the Company directly or indirectly in the performance of this Agreement shall remain at all times the property of the Personal Data. The Personal Data shall be identified, clearly marked, and recorded as such by the Customer on all media and in all documentation. The Parties acknowledge and agree to strictly comply with any data privacy laws, rules, regulations, notifications, including but not limited to Personal Data Protection Act (PDPA-2021) (and as amended in the future) in carrying out their obligations pursuant to this Agreement. The Parties shall take all reasonable precautions and adequate measures to preserve the integrity and prevent any corruption or loss, damage or destruction of the Personal Data, and shall maintain its Personal Data privacy policies and best practices during the term of this Agreement, and promptly notify the other Party of any change in such policies status.

 

17.  Warranty and Disclaimer. The Company will use reasonable efforts consistent with prevailing industry standards to maintain the Software in a manner that minimizes errors and interruptions in the functioning of the Software. The Software may be temporarily unavailable for scheduled maintenance or unscheduled emergency maintenance, either by the Company or by third-party providers, or because of other causes beyond the Company’s reasonable control, but the Company will use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. However, the Company does not warrant that the functioning of the Software will be uninterrupted or error-free; nor does it make any warranty as to the results that may be obtained from the use of Software. Except as expressly set forth in this section, the Software is provided “as is” and the Company disclaims all warranties, express or implied, including, but not limited to, implied warranties of merchantability and fitness for a particular purpose and non-infringement.

18.  Limitation of Liability. Notwithstanding anything to contrary, except for bodily injury of a person, the Company, its suppliers (including but not limited to all equipment and technology suppliers), officers, affiliates, representatives, contractors, and employees will not be responsible or liable with respect to any subject matter of this Agreement or terms and conditions related thereto under any contract, negligence, strict liability or other theory:

(a)   for error or interruption of use or loss or inaccuracy or corruption of data or cost of procurement of substitute goods, services or technology or loss of business;

(b)   or any indirect, exemplary, incidental, special, or consequential damages;

(c)   for any matter beyond the Company’s reasonable control or Force Majeure situation; or

(d)   for any amounts that, together with amounts associated with all other claims, exceed the fees paid by the Customer to the Company for the Software under this Agreement in the 12 months prior to the act that gave rise to the liability.

The term “Force Majeure” used in this Agreement shall mean an event, or a series of related events, that is outside the reasonable control of the Party affected including, without limitation, failures of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks, and wars.

19.  Term. This Agreement begins on the date of the femom lite invoice signature and, unless terminated earlier under this Agreement, continues until the end of the deployment period. Upon expiration or termination of this Agreement, the Customer will no longer have access to or the right to use the Software, unless the Parties enter into an agreement for the continued use of Software.

 

20.  Independent Contractors. The Customer and the Company are independent contractors in all matters relating to this Agreement, and this Agreement will not be construed to create a partnership, joint venture, agency, employment, or any other relationship between the Customer and the Company.

 

21.  Governing Law. This Agreement is governed by Singapore laws without giving effect to principles of conflicts of law. Any disputes arising out of or in connection with this Agreement shall be brought to and determined by Singapore Court.

 

22.  Final Provisions.

(a)   This Agreement constitutes the entire agreement between the Parties with respect to its subject matter and supersedes all prior agreements between the Parties regarding the same subject matter.

(b)   This Agreement can be modified only by a written amendment signed by the Parties.

(c)   Failure to enforce any provisions of this Agreement will not constitute a waiver.

(d)   If any provision is unenforceable, the other provisions will remain effective.

(e)   The Parties may execute this Agreement by electronic signatures or by facsimile in counterparts, which taken together will constitute one instrument.

(f)    Neither Party may assign or transfer this Agreement without the prior written consent of the other Party.

(g)   Any notice under this Agreement must be in writing and delivered personally or by overnight courier or sent by email.

(h)   The section headings of this Agreement are for convenience only and have no value for the interpretation of the Agreement.

Appendix I

 

The femom lite is a telemedicine solution, prescribed by clinicians to patients, intended for remote monitoring of physiological and non-physiological parameters. The femom lite solution is a combination of a mobile patient application and a web-based clinician portal.

 The user-friendly app uses a customized clinical workflow to guide the patient through capturing measurements for multiple devices (e.g. blood pressure monitor, glucose meter, digital weight scale, etc.), answering questions regarding their condition and symptoms. 

Biorithm’s unique platform enables doctors to gather the patient’s health data through a highly customizable clinical workflow or protocol, that is easily generated in a web portal by the clinical team. The web-based clinician portal can be accessed via PC or tablet and provides the clinical team with access to

•       Create clinical protocol and use the branching logic to create a unique clinical workflow

•       On-board patient

•       View health and wellbeing data,

•       Manage color code notification and alerts, based on customized thresholds    

•       Communicate with the patient via secure text, video.

 Management of information is simple with all tasks being role and workgroup-orientated, enabling access to information to users accordingly.