License agreement

EasyCare Data Services Agreement

PLEASE READ THIS DATA SERVICES AGREEMENT ("AGREEMENT") CAREFULLY BEFORE USING RESMED EASYCARE SYSTEMS, SERVICES OR ONLINE COMMUNICATION MODULES OR CARDS ("EASYCARE PRODUCTS"). BY USING EASYCARE PRODUCTS YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT USE EASYCARE PRODUCTS. IN THE EVENT YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, PLEASE CONTACT RESMED CUSTOMER SERVICE AT 1 (800) 424-0737 TO DISCUSS THE RETURN OF YOUR EASYCARE PRODUCTS. ANY PRODUCT RETURNS MUST BE SUBMITTED IN ACCORDANCE WITH RESMED'S GENERAL TERMS AND CONDITIONS OF SALE AS NOTED ON THE BACK OF YOUR INVOICE. RESTOCKING FEES MAY APPLY.

Definitions

In this Agreement, the words "we", "us" or "our" mean ResMed Corp., its wholly-owned subsidiaries and affiliates and its successors or assigns. When we use the words, "you" or "your" we mean the customer who has purchased the EasyCare product and Services in accordance with ResMed's general terms and conditions of sale ("Customer") and any person authorized by the Customer to access or receive the Services and/or System (each a "User"). "Services" means that information, communication and data retrieval system for EasyCare Products provided to you by us through the website easycareonline.com ("Site"). "Systems" includes ResMed flow generators, EasyCare Products, access to patient data through the Site, EasyCare Products communication modules, and any other hardware and software and including but not limited to EasyCare Card and related written documentation provided by ResMed in connection with the Services. All of the ResMed EasyCare technology, products, Services and/or Systems described in this paragraph are sometimes individually or collectively referred to in this Agreement as "EasyCare Products." The "Effective Date" will be the date on which you first agree to the terms and conditions of this Agreement.

Services

During the term of this Agreement, ResMed, in consideration of the Service Fees paid by Customer, grants a limited, non-exclusive, non-transferable, non-sublicenseable, revocable license to Customer and its Users to access and use the Site and the System in accordance with the terms hereof.

Term

This Agreement will commence on the Effective Date and will remain in effect for so long as you retain the EasyCare Products, or access or use the Services or Systems.

Fees and Payment

Customer agrees to pay the applicable Service Fee(s), as provided by ResMed in a separate writing from time to time. The Service Fees will be due on a predetermined basis, unless otherwise invoiced by ResMed.

Patient Information

The System uses algorithms and identifiers (e.g., serial numbers) to link patient demographics to patient data. You are responsible for the accuracy and consistency of all identifiers and patient demographic information (e.g., patient name, date of birth, etc.) whether entered by you or provided by another person or system. The accuracy and consistency of this information will impact how the System matches patients with patient data. You are responsible for all clinical decisions based on patient data reported on the System.

Patient data are protected by laws and regulations governing the privacy and security of health information. Applicable laws and regulations will depend on your local jurisdiction. For United States Customers, we will provide the Services in compliance with the HIPAA Business Associate Addendum (attached to this Agreement as Exhibit A).

Equipment and Software Requirements

You will supply and maintain a personal computer with access to the Internet in order to access the System and Services. Specifically, you agree (1) to supply, maintain and utilize Microsoft Internet Explorer version 7.0 or above and Firefox 3.0 or above ("Software") to access the System and Services; (2) the Software, and any future upgrades, will be loaded and operational on your personal computer and you will supply and maintain a modem, or similar equipment when applicable, to access the Services or the System; (3) to receive information by electronic transmission of a visual display of the text; (4) that 128-bit encryption is required for the use of the Services or the System; and (5) that our liability for viruses, worms, trojan horses, or other similar harmful components that may enter your computer system by downloading information, software, or other materials from using the Software, Services or the System will be limited to the greater of (a) the replacement value of the affected hardware, software or other material; (b) Fees paid by you to us during the preceding twelve (12) months, or (c) a maximum amount of three thousand ($3,000.00) dollars subject to the other provisions of this Agreement.

Access

Customer will be required to select or will be assigned a First User Username and Password. The First User may add, edit and inactivate additional User accounts, passwords and access capabilities (collectively, "Access Codes"). Customer is responsible for all User accounts and Access Codes added, edited or inactivated through the use of the First User Username and any Fees incurred or initiated via those accounts. You acknowledge and agree that Access Codes are required to access the Services and System. You agree to keep all Access Codes confidential to prevent unauthorized access and to prevent unauthorized use of the Services and the System.

You also agree to protect the security of Access Codes and other means of identification for access to and use of the System and Services. We reserve the right to disable your access to the Services and/or System, if we reasonably believe your Access Codes have, or may have been, obtained in an illegal or unauthorized manner or are being used, or may be used, by an unauthorized person(s).

By accessing patient information through the Services, you represent and warrant that you have obtained the right and authorization to do so, either by (1) receiving a written and signed authorization from the patient; (2) receiving the SD card containing patient information from the Systems; or (3) receiving the patient's System serial number from the patient.

Customer and User Responsibility

Customer is responsible for all of the equipment and Software required for Users authorized by Customer to access and/or use the Services and System. If Customer permits other persons, or other entities to use the Services or access the System, Customer is responsible for any Service Fees incurred by such third persons.

You will notify us immediately if you believe your account and/or your Access Code(s) have been accessed, taken or used without your permission, or if there is a suspected or actual violation of the security of the Site, System and/or any data provided to or maintained by the Site and/or System. In addition, you will inform us immediately in writing of the need to deactivate an Access Code due to potential or actual security concerns or for any other reason.

You agree to report to ResMed immediately the discovery of any type of discrepancy, anomaly or error detected in information obtained via the System. You will also immediately report to ResMed the discovery of any virus or corruption on the System or on your own equipment used to connect to or otherwise access the System, including any hardware or software.

You agree that it is your responsibility to comply with all applicable laws and to ensure adequate security of your equipment and related peripherals. You are responsible for obtaining and maintaining all necessary consents, permissions or authorizations required or advisable in connection with the transmission, storage, retrieval, access, use and/or disclosure of patient information through the Services, the Site and/or the System.

Representation and Warranty Regarding Home Use

You understand that the EasyCare Products are cleared by the U.S. Federal Food and Drug Administration in the United States, or by the applicable regulatory authority in your local jurisdiction, and are intended solely for normal home use and are not cleared or intended for use in acute healthcare settings or in other locations where the wireless transmission of information may interfere with the operation of essential equipment, such as life support, nuclear facilities, or aircraft navigation or communication systems, in which interference could lead to death, personal injury or severe physical or environmental damage. You represent and warrant that neither you nor your employees or patients will use the EasyCare Products, Site, Services or Systems in such a location and that you will provide express instructions to your employees and patients regarding the appropriate location for use.

ResMed Responsibility

We, or a third party acting as our agent, are responsible for the operation and maintenance of hardware and software necessary to deliver the Services through the Site. However, neither we, nor our agent(s) will be liable:

  • If you have not properly followed EasyCare Product instructions on how to retrieve and view data;
  • If your equipment and/or the software were not working properly and this problem was or should have been apparent to you when you attempted to access Services;
  • If circumstances beyond our or our agent's control prevent display of information or the making of a data retrieval, despite precautions taken. Such circumstances include but are not limited to computer failure, telecommunication outages, postal strikes and other labor unrest, delays caused by payees, fires, floods, and other natural disasters.

Maintenance

We may on a regular basis perform maintenance on our equipment or the System, which may result in interrupted service or errors in the Site and/or Services. We also may need to change the scope of our Services from time to time. We will attempt to provide prior notice of such interruptions and changes but cannot guarantee that such notice will be provided.

Title and Archival of Data

Customer and/or its Users will maintain title to any data created by Customer and its Users in using the System so long as Customer remains an active ResMed customer. Specifically, if you discontinue purchases from ResMed, breach any of your obligations to ResMed, or if any of your accounts is terminated for any reason, then your access to the Services may be modified, suspended, reassigned, or terminated by ResMed at its sole and absolute discretion. You grant ResMed a license to use such data for the purposes of operating and supporting the Services, System and Site and for the purposes of de-identifying the data and using it in any manner determined by ResMed. Furthermore, You agree that ResMed may enable System tracking technology at its sole and unilateral discretion, including, for example, for inventory control and/or channel verification purposes. You agree that the Services, System and the Site are not a permanent medical record archive or storage system. You acknowledge and agree that it is your responsibility to download or otherwise retain any data created in using the System and to store such data separately within your own records. In addition, you are solely responsible for archiving the data or otherwise complying with Customer and/or User's medical record policies and procedures. ResMed does not provide any services related to archival of data. In the event that ResMed does offer archiving functionality in the future, this Agreement will be amended to address archival processes and responsibility.

De-identification of Data

ResMed may de-identify any and all data obtained by Resmed under this Agreement, the Services and the System, and use such de-identified data, all in accordance with the de-identification requirements of applicable law.

Limited Warranty

ResMed warrants that, to ResMed's best knowledge, your permitted use of the Site, Services and System will not infringe the intellectual property rights of any third party.

Warranty Disclaimer

ResMed does not and will not provide medical information, advice or service to you or your patients. Content available through the Services or the System is solely for informational and educational purposes. Neither the content nor the patient reports are to be used as a substitute for professional judgment of healthcare providers in diagnosing and treating patients. EXCEPT AS PROVIDED IN THIS AGREEMENT, THE SYSTEM, SITE AND SERVICES ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE SYSTEM, SITE AND SERVICES IS WITH YOU. SOME JURISDICTIONS LIMIT OR DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, THEREFORE THE ABOVE EXCLUSION OF IMPLIED WARRANTIES MAY NOT APPLY TO YOU.

ResMed does not warrant that the functions contained in the System, Site or Services will meet your requirements or that its operation will be uninterrupted or error free or compatible with the other software or hardware of your systems. RESMED'S SOLE OBLIGATION OR LIABILITY UNDER THIS SECTION AND THE FOREGOING LIMITED WARRANTY IS THE REPAIR OR REPLACEMENT OF THE SERVICE, OR AT RESMED'S DISCRETION, REFUND OF PAYMENTS MADE BY YOU FOR SERVICES IN THE TWELVE MONTHS PRECEDING SUCH EVENT.

Limitation of Liability

IN NO EVENT WILL RESMED BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL OR INDIRECT DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY LOSS OF DATA, LOSS OF PROFITS OR LOST SAVINGS, ARISING OUT OF THIS AGREEMENT OR CONNECTED IN ANY WAY WITH THE USE, MISUSE OR INABILITY TO USE THE SYSTEM, SITE OR SERVICES, EVEN IF RESMED HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY THIRD PARTY. SHOULD WE HAVE ANY LIABILITY TO YOU OR ANY THIRD PARTY FOR ANY DIRECT LOSS, HARM OR DAMAGE, EXCEPT FOR BREACH OF CONFIDENTIALITY (SEE BELOW), INSURED CLAIMS, AND THE PARTIES' RESPECTIVE EXPRESS INDEMNITY OBLIGATIONS, THE TOTAL LIABILITY OF RESMED FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT OR OTHERWISE ) WILL NOT EXCEED THE LESSER OF THE AGGREGATE AMOUNT OF THE FEES YOU HAVE PAID TO US FOR SERVICES DURING THE TWELVE MONTHS IMMEDIATELY PRECEDING THE DAY THE ACT OR OMISSION OCCURRED THAT GAVE RISE TO THE CLAIM OR THREE THOUSAND (USD$3,000.00) United States DOLLARS. YOU UNDERSTAND AND ACKNOWLEDGE THAT ABSENT YOUR AGREEMENT TO THIS LIMITATION OF LIABILITY, WE WOULD NOT PROVIDE YOU ACCESS TO THE SYSTEM, SITE OR SERVICES. THE LIMITATIONS PROVIDED IN THIS SECTION WILL APPLY EVEN IF ANY OTHER REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE.

Your exclusive remedy in the event of the complete and unrecoverable failure of the Services, Site or the System to operate or perform is limited to, at ResMed's discretion, the reasonable cost of replacing the lost information, providing available back-up information, or refunding the fees you have paid to us for Services during the twelve (12) months immediately preceding the date of such failure.

Proprietary and Confidential Information

You acknowledge and agree that the System and Site are the proprietary property of ResMed. You agree that the System and Site embody substantial creative rights, confidential and proprietary information, copyrights, trademarks and trade secrets, all of which will remain the exclusive property of ResMed. You further agree that you and your employees, agents and representatives will not copy, reproduce, modify, reverse engineer or decompile any portion of the System or Site, and you and your employees, agents and representatives will use the System, Site and Services only for internal purposes, as provided in this Agreement. Except as otherwise disclosed herein ResMed or licensed source owns all rights, title, and interest in and to all copyright, trademark, service mark, patent, trade secret or other intellectual property and proprietary rights worldwide in and to the System and the Site.

Indemnity

You, at your own expense, will indemnify and hold harmless ResMed, its subsidiaries, affiliates or assignees, and their directors, officers, employees, agents and representatives, and defend any and all actions brought against same with respect to any claim, demand, cause of action, debt or liability, including reasonable attorneys' fees, experts' fees, and court costs, to the extent that it arises from the acts or omissions of you, your directors, officers, employees, agents, or representatives, including but not limited to the use of the System, Site or Service or any patient data stored or transmitted using the System, Site or Service.

Relationship of the Parties

Nothing in this Agreement will be construed to constitute either party as the partner, employee, or agent of the other. Neither party has any authority to bind the other in any respect. Each party will remain an independent contractor, responsible only for its own actions. Each party will conduct all of its business in its own name and in such manner as such party may see fit, at its own expense.

Governing Law

The terms and conditions of this Agreement will be governed by and construed in accordance with the laws of the state of California, without regard or giving effect to its conflict of laws principles.

Dispute Resolution

All controversies and claims arising under or relating to this Agreement are to be resolved by arbitration in accordance with the then-current rules of the American Health Lawyers Association, if you are a United States Customer, or of the International Chamber of Commerce, if you are a non-United States Customer, before a panel of three arbitrators selected in accordance with those rules. The arbitration is to be conducted in the County of San Diego, California. The arbitrators are to apply California law, without regard to its conflict of laws principles. All proceedings shall be conducted in English. Each party shall submit to any court of competent jurisdiction for purposes of enforcing any award, order or judgment. Any award, order or judgment pursuant to the arbitration is final and may be entered and enforced in any court of competent jurisdiction. Each party shall bear its own costs, expenses and attorneys' fees (and all related costs and expenses) incurred in connection with any proceeding arising from or related to any transaction contemplated by this Agreement, and in connection with enforcing any judgment or order thereby obtained.

Notices

We may give notices or other communications required under this Agreement by posting or providing links on other communications through the Site or System.

Assignment

We may assign the rights and delegate the duties under this Agreement to a company affiliated with us or to any other party. You may not assign the rights or obligations of this Agreement without the prior written consent of ResMed.

Severability

It is the desire and intent of the parties that the provisions of this Agreement shall be enforced to the fullest extent permissible under the laws and public policies applied in each jurisdiction in which enforcement is sought. Accordingly, if any particular term or provision of this Agreement shall be adjudicated to be invalid or unenforceable, this Agreement shall not be deemed null and void, but such term or provision shall be deemed modified to the extent necessary to render such term or provision enforceable, and the rights and obligations of the parties shall be construed and enforced accordingly, preserving to the fullest permissible extent the intent and agreements of the parties set forth in this Agreement, such modification to apply only with respect to the operation of this Agreement in that particular jurisdiction in which such adjudication is made. If such term cannot be so modified, this Agreement shall be deemed amended to delete therefrom the portion thus adjudicated to be invalid or unenforceable, such deletion to apply only with respect to the operation of this Agreement in that particular jurisdiction in which such adjudication is made. In the event any provisions of this Agreement relating to the time period, scope of activities or areas of restrictions shall be declared by a court of competent jurisdiction to exceed the maximum time period, scope of activities or area such court deems reasonable and enforceable, the time period, scope of activities or areas of restrictions shall thereafter be deemed the maximum which such court deems reasonable and enforceable. All provisions not affected by any such invalidity shall remain in full force and effect to the fullest extent possible consistent with the intent of the parties.

Miscellaneous

A waiver of any term or provision of this Agreement at any time will not be deemed a waiver of the term or provision in the future. This Agreement represents the full and final agreement of the parties as to the subject matter and supersedes any prior written or oral agreement. In the event of any conflict between this Agreement and other agreements, the terms of this Agreement will control except in the limited instance of a separately negotiated business associate agreement executed between Customer and ResMed. We reserve the right to modify this Agreement at any time and to impose any additional terms or conditions on your use of the Site, Services or System. Such modifications including any additional terms and conditions will be incorporated into this Agreement and effective immediately. Your continued use of the Site, Services or System will be deemed acceptance of any such modification(s).

THIS ADDENDUM IS APPLICABLE TO UNITED STATES CUSTOMERS ONLY

Exhibit A

HIPAA BUSINESS ASSOCIATE ADDENDUM

You have entered into an EasyCare Data Services Agreement ("Agreement") with ResMed Corp., under which ResMed may have access to, make, or use protected health information ("PHI") of your patients. To the extent that you are a "Covered Entity," and ResMed is a "Business Associate," as those terms are defined by the federal Health Insurance Portability and Accountability Act of 1996 and its implementing regulations ("HIPAA"), you and ResMed agree as follows:

I. GENERAL PROVISIONS

Section 1. Effect. This HIPAA Business Associate Addendum ("Addendum") supplements, modifies and amends the Agreement. The terms and provisions of this Addendum will supersede any other conflicting or inconsistent terms and provisions in the Agreement.

Section 2. Definitions. The "HITECH Act" means the American Recovery and Reinvestment Act of 2009 (P.L. 111-5), Div. A, Title XIII and Div. B, Title IV, the Health Information Technology for Economic and Clinical Health Act. All other capitalized terms used herein without definition will have the respective meanings assigned to such terms in 45 C.F.R. Parts 160 and 164 (the "HIPAA Regulations").

II. OBLIGATIONS OF RESMED

Section 1. Use and Disclosure of Protected Health Information. ResMed may use and disclose PHI received from or created or received on behalf of you only as required to satisfy its obligations under the Agreement, as permitted herein, as directed by the patient who is the subject of the PHI, or as required by law. The parties contemplate that ResMed may disclose PHI to ResMed or Customer's subcontractors or agents as part of the Services provided under the Agreement or as otherwise authorized by Customer. ResMed will not, and will ensure that its directors, officers, employees, contractors and agents do not, use or disclose PHI received from, or created or received on behalf of, you in any manner that would constitute a violation of the HIPAA Regulations if done by you. Except as otherwise limited in the Arrangement(s) or this Agreement, ResMed may disclose PHI (i) for the proper management and administration of ResMed, or (ii) to carry out ResMed's legal responsibilities if (a) the disclosure is required by law, or (b) ResMed obtains reasonable assurances from the person to whom the information is disclosed that it will remain confidential and used or further disclosed only as required by law or for the purpose for which it was disclosed to the person and the person notifies ResMed of any instances of which it is aware in which the confidentiality of the information has been breached. Further, ResMed may de-identify any and all PHI in accordance with 45 C.F.R. § 164.514(b) and use such de-identified data in any manner determined by ResMed. Notwithstanding any other provision contained in this Addendum, Customer expressly authorizes ResMed to (i) disclose PHI to another covered entity or health care provider for the Payment activities of the entity that receives the PHI; and (ii) disclose PHI to another covered entity for Health Care Operations activities of the entity that receives the PHI, if each entity either has or had a relationship with the Individual who is the subject of the PHI being disclosed, the PHI pertains to such relationship, and the disclosure is for the Treatment, Payment, or Health Care Operations of the covered entity.

Section 2. Safeguards Against Misuse of Information. ResMed will use appropriate safeguards to prevent the use or disclosure or PHI other than pursuant to the terms and conditions of this Addendum and the Agreement and implement administrative, physical and technical safeguards that reasonably and appropriately protect the confidentiality, integrity and availability of electronic PHI that it creates, receives, maintains or transmits on your behalf. Specifically, ResMed will comply with 45 C.F.R. §§ 164.308, 164.310, 164.312, and 164.316.

Section 3. Reporting of Disclosures of Protected Health Information. ResMed will report to you any use or disclosure of PHI or any Security Incident in violation of this Addendum of which it becomes aware.

Section 4. Notification of Breach. ResMed will notify you of a Breach of Unsecured Protected Health Information within thirty (30) business days after discovery of such Breach. ResMed will provide such information to you as required by the HIPAA Regulations.

Section 5. Agreements by Third Parties. ResMed will ensure that each agent or subcontractor that has or will have access to PHI, which is received from you, or created or received on your behalf, agrees to be bound by the same restrictions and conditions that apply to ResMed pursuant to this Addendum with respect to such PHI and to including implementing reasonable and appropriate safeguards to protect the PHI.

Section 6. Access to Information. If ResMed maintains PHI in a Designated Record Set, as defined in 45 C.F.R. § 164.501, and upon request of Customer, ResMed agrees to provide access to such PHI in a Designated Record Set to an Individual in order for Customer to comply with the requirements under 45 C.F.R. § 164.524. If ResMed provides copies or summaries of PHI to an Individual it may impose a reasonable, cost-based fee in accordance with 45 C.F.R. § 164.524(c)(4). Notwithstanding the foregoing, if the PHI that is the subject of a request for access is maintained in one or more Designated Record Sets electronically and if the Individual requests an electronic copy of such information, ResMed shall provide access to the PHI in the electronic form and format requested. Further, if an Individual’s request for access directs ResMed to transmit the copy of PHI directly to another person designated by the Individual, ResMed shall provide the copy to the person designated by the Individual. The Individual’s request must be in writing, signed by the Individual, and clearly identify the designated person.

Section 7. Availability of Protected Health Information for Amendment. If ResMed maintains PHI in a Designated Record Set, ResMed agrees to make available PHI for amendment and incorporate any amendments to PHI in a Designated Record Set, in order for Customer to comply with 45 C.F.R. § 164.526. .

Section 8. Accounting of Disclosures. ResMed agrees to document those disclosures of PHI, and information related to such disclosures, as required to respond to a request by an Individual for an accounting of disclosures of PHI in accordance with 45 C.F.R. § 164.528 and the HITECH Act. ResMed further agrees to provide you such information upon request to permit you to respond to a request by an Individual for an accounting of disclosures of PHI, in accordance with 45 C.F.R. § 164.528, or, if required by the HITECH Act, to provide an Individual an accounting of disclosures of PHI upon request made by the Individual directly to ResMed.

Section 9. Availability of Books and Records. ResMed hereby agrees to make its internal practices, books and records relating to the use and disclosure of PHI received from, or created or received by ResMed on your behalf available to the Secretary for purposes of determining your compliance with the HIPAA Regulations.

Section 10. Remuneration in Exchange for PHI. Except as otherwise permitted by law, ResMed will not directly or indirectly receive remuneration in exchange for a disclosure of PHI without the Individual's authorization.

III. OBLIGATIONS OF CUSTOMER AND USERS

Section 1. Minimum Necessary. You will disclose to ResMed only that PHI which is reasonably necessary to achieve the purpose of the disclosure.

Section 2. Changes in Policies and Procedures. You will notify ResMed prior to implementing any change in your privacy or security policies and procedures, including your Notice of Privacy Practices, which would affect ResMed's obligations hereunder.

IV. MISCELLANEOUS PROVISIONS

Section 1. Limitation of Liability. NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR PUNITIVE DAMAGES OF ANY KIND OR NATURE, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES.

Section 2. Indemnification by Customer. Customer shall indemnify and hold ResMed harmless from and against any and all liability and costs, including attorneys´┐Ż fees, created by a breach of this Agreement by Customer, its agents or subcontractors, without regard to any limitation or exclusion of damages provision otherwise set forth in the Arrangement(s).

V. TERM AND TERMINATION

Section 1. Term. This Addendum will become effective on the Effective Date and, unless otherwise terminated as provided herein, will have a term that will run concurrently with that of the last expiration date or termination of the Agreement.

Section 2. Termination Upon Breach of Provisions Applicable to Protected Health Information. Any other provision of the Agreement notwithstanding, this Addendum and the Agreement may be terminated by either party (i) upon thirty (30) days written notice to the other party in the event that the other party breaches any material provision contained in this Addendum and such breach is not cured within such thirty (30) day period; or (ii) immediately if, in the non-breaching party's reasonable determination, cure is not possible.

Section 3. Effect of Termination. Upon termination of the Agreement and this Addendum ResMed shall either return or destroy all PHI received from Customer or created or received by ResMed on behalf of Customer and which ResMed still maintains in any form. ResMed shall not retain any copies of such PHI. Notwithstanding the foregoing, to the extent that Customer and ResMed agree that it is not feasible to return or destroy such PHI, the terms and provisions of this Addendum shall survive termination and such PHI shall be used or disclosed solely for such purpose or purposes which prevented the return or destruction of such PHI.

By clicking on the "YES" button below, I acknowledge that I am electronically signing this Agreement and agreeing to be legally bound by all of the terms, conditions and notices contained or referenced herein.



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