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Photologic Subscription Agreement
Revision: January 2023
THIS SUBSCRIPTION AGREEMENT (THIS “AGREEMENT”) IS AN AGREEMENT BETWEEN YOU (“CUSTOMER”) AND PHOTOLOGIC APS (“PHOTOLOGIC”) AND SETS OUT THE TERMS AND CONDITIONS UNDER WHICH PHOTOLOGIC AGREES TO GRANT THE CUSTOMER THE RIGHT TO ACCESS AND USE OUR SERVICE.
PHOTOLOGIC PROVIDES A SERVICE DESIGNED TO FACILITATE THE SECURE PROCESSING AND TRANSFER OF DATA AND MEDIA (INCLUDING BUT NOT LIMITED TO PHOTOGRAPHIC IMAGES) BY HEALTHCARE PROFESSIONALS THROUGH OUR PORTAL (THE "PORTAL") AND/OR OUR APPLICATION FOR MOBILE DEVICES (THE "APP"). COLLECTIVELY THE PORTAL AND APP IS REFERRED TO HEREIN AS THE "SERVICE").
BY ACCEPTING THIS AGREEMENT EITHER BY CHECKING A BOX INDICATING YOUR ACCEPTANCE OR PLACING AN ORDER (AS DEFINED IN SECTION 1) THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT TO US THAT YOU HAVE THE LEGAL AUTHORITY TO BIND SUCH LEGAL ENTITY AND ITS AFFILIATES TO THIS AGREEMENT, IN WHICH CASE REFERENCES TO “CUSTOMER,” “YOU” AND “YOUR” IN THIS AGREEMENT SHALL MEAN SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY OR IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MUST NOT ACCEPT THIS AGREEMENT AND YOU MAY NOT USE THE SERVICE.
1.1 CAPITALIZED TERMS (whether in the singular or plural) shall have the meanings assigned in the text of this Agreement, and Customer’s Order. For the purpose of this Agreement, an “Order” means an order for the Services placed by Customer and accepted by Photologic. The Order may be a physical purchase order or an online webform.
2.1 ACCESS. Commencing on the Effective Date of this Agreement, Photologic shall make available to Customer the unique instance of the Service for use by the number of Authorized Users specified in this Agreement or an applicable Order.
2.2 RIGHTS TO THE SERVICE. Subject to the terms and conditions of this Agreement, Photologic hereby grants Customer a non-exclusive, non-transferable, worldwide right to access the Service and permit the number of individual users specified in this Agreement or an applicable Order referencing this Agreement to use the Service solely for Customer’s own internal purposes (“Authorized Users”). Unless otherwise specified, the term “quantity” as used in the Order refers to the number of Authorized Users that are permitted to access and use the Service. Photologic will use commercially reasonable efforts to provide the Service in compliance with the Photologic Service Level Agreement.
2.3 UPDATES. At no charge to Customer, Photologic shall install on its servers any software updates deemed reasonably necessary to address errors, bugs or other performance issues in the Service (collectively, “Updates”). Updates (if any) shall be subject to the same terms and conditions of this Agreement.
2.4 RESTRICTIONS AND CONDITIONS. Customer shall not, directly, indirectly or through its Authorized Users, employees and/or the services of independent contractors: (a) attempt to sell, transfer, assign, rent, lend, lease, sublicense or otherwise provide third parties rights to the Service; (b) “frame,” “mirror,” copy or otherwise enable third parties to use the Service (or any component thereof) as a service bureau or other outsourced service; (c) allow access to the Service by multiple individuals impersonating a single end user; (d) use the Service in a manner that interferes with, degrades, or disrupts the integrity or performance of Service or other offerings, including data transmission, storage and backup; (e) use the Service for the purpose of developing a product or service that competes with the Service; (f) circumvent or disable any security features or functionality associated with Service; or (g) use the Service in any manner prohibited by law.
2.5 RESERVATION OF RIGHTS. All rights not expressly granted to Customer are reserved by Photologic, its suppliers and licensors.
2.6 RETURN OF HOSTED DATA. If requested by Customer within thirty (30) days of the expiration or termination of this Agreement, Photologic shall make available to Customer all Customer data stored within the Service at the time of expiration or termination. Thirty (30) days after termination, Photologic shall have no further obligation to Customer and may, at its option, permanently delete or destroy the Service and all information and materials contained therein.
2.7 DELIVERY OF SERVICE AND MATERIALS. The Service, and any Updates or maintenance releases thereof, shall be made available only on a hosted basis, and will not be delivered in object code or physical media to Customer. The Service, and any deliverables provided under this Agreement will be delivered only through an electronic transfer.
2.8 SECURITY POLICY. Photologic agrees to maintain data security policies and procedures that are compliant EVS-ISO/IEC TR 13335 Guidelines, models and terms, the standards EVS ISO / IEC 2382-8 and EVS-ISO/IEC TR 13335 are used for information security terms. In line with AWS policies (see links below), Photologic retains control of which European Cloud Zone(s) are used to store and process content entered into our SaaS environments/Service. This allows Photologic environments to be established in specific geographic locations as needed. Our environments are designed to make use of availability zones within the same Region (data centre cluster), where possible, for backup and data storage purposes. Photologic will not move customer content across regions, except as legally required.
Privacy and Data Protection Considerations of our service provider can be found at:
Privacy and Data Protection Considerations
Cloud infrastructure is built around Regions and Availability Zones. The following is a list of the current Availability Zones within geographic Regions around the world:
Regions and Availability Zones
3.1 ADDITIONAL SUPPORT SERVICES including consulting, support agreement, training and system integration, may be separately purchased from Photologic under the terms of an addendum to this Agreement. For clarity, Photologic has no obligation to support Customer’s own technology, internal infrastructure, provide free training, or consult on customer created content such as views, reports, and configurations or third party technologies and services unless agreed to in writing via an approved addendum to this Agreement or a statement of work.
4.1 SUBSCRIPTION FEES. In consideration of the rights granted herein, Customer shall pay Photologic the amounts specified in Customer’s Order for the Service for the number of Authorized Users permitted to access and use the Service (“Subscription Fees”). Photologic reserves (among other rights and remedies) the right to suspend access to the Service in the event that Customer does not pay Photologic for the Service.
4.2 COMPLIANCE WITH LAWS. Photologic will comply with all laws applicable to its provision under this Agreement, including those applicable to privacy and security of personal information (including mandatory trans-border data transfers and mandatory data breach notification requirements), but excluding laws specifically applicable to Customer and its industry not generally applicable to information technology service providers regardless of industry. Customer will comply with all laws applicable to its use of the Service, including those applicable to collection and processing of Personal Data. Customer agrees to provide any required disclosures to and obtain any required consents for the transfer of Personal Data to Photologic.
5.1 PHOTOLOGIC OWNERSHIP. As between the parties, Photologic, its suppliers and licensors exclusively own all right, title, and interest in and to all Intellectual Property Rights in the Service, notwithstanding anything in these terms, except for the access and use rights, expressly granted in Section 2 “Software as a Service” of this Agreement, Photologic reserves all rights in the Service and does not grant Customer any rights (express, implied, through exhaustion, or otherwise).
5.2 CUSTOMER OWNERSHIP. As between the parties, Customer will retain all right, title, and interest in and to all Intellectual Property Rights in Customer’s data uploaded by or for Customer and processed in the Service. Customer hereby grants to Photologic a royalty-free, fully-paid, non-exclusive, non-transferrable (except as set forth in Section 11.1 “Assignment”), worldwide, right to use Customer’s data solely to provide and support the Service.
6.1 TERM Unless otherwise specified in an applicable Order the Term of this Agreement shall commence on the Effective Date and shall continue in force and effect until Termination.
6.2 TERMINATION. Either party may terminate this Agreement: (a) on 90 days prior notice to the other; (b) immediately on notice if the other party materially breaches this Agreement and such breach has not been cured within thirty (30) days of providing notice thereof.
6.3 EFFECT OF TERMINATION. Upon termination for any reason, Customer shall discontinue all use of the Service.
7.1 CUSTOMER. Customer shall indemnify and hold Photologic, its suppliers and licensors harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable legal fees and costs) arising out of or in connection with a claim which, if true, would constitute a breach of Customer’s obligations under Section 2 or 4 of this Agreement. In the event Photologic is required to seek legal remedies to enforce collection of any amounts due under this Agreement, Customer agrees to reimburse for all additional costs associated with collection of that past due amount, including reimbursement of collection and legal fees.
7.2 PHOTOLOGIC. Photologic shall indemnify and hold Customer harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of a third party claim that the Service infringes any third-party patent, copyright, or trademark issued before, or misappropriates any third-party trade secret during the Term of this Agreement. Photologic shall have no indemnification obligation, and Customer shall indemnify Photologic pursuant to this Agreement, for claims of infringement arising from the combination of Service with any unique aspects of Customer’s business, for instance Customer’s content, products, services, hardware or business processes, or for any use of the Service not expressly authorized herein.
7.3 PROCESS. A party seeking indemnification hereunder shall promptly notify in writing the other party of any claim for which defense and indemnification is sought. Each party agrees that it will not, without the other’s prior written consent, enter into any settlement or compromise of any claim that: (a) results, or creates a likelihood of a result, that in any way diminishes or impairs any right or defense that would otherwise exist absent such settlement or compromise; or (b) constitutes or includes an admission of liability, fault, negligence or wrongdoing on the part of the other party. Each indemnifying party has the sole right to control the defense of any claim for which it is providing indemnification hereunder with counsel mutually acceptable to the parties. The indemnified party may, at its own expense, participate in the defense of any such claim.
8.1 MUTUAL WARRANTIES. Each party represents and warrants to the other that it is duly authorized to execute an agreement subject to this Agreement and perform the obligations set forth herein.
8.2 DISCLAIMER. THE SERVICE AND ANY PHOTOLOGIC TRAINING, INSTRUCTION AND SUPPORT OR OTHER SERVICES PROVIDED IN CONNECTION WITH THIS AGREEMENT ARE PROVIDED STRICTLY ON AN “AS IS” BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR SATISFACTORY RESULTS ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY PHOTOLOGIC, ITS SUPPLIERS AND ITS LICENSORS.
8.3 CUSTOMER ACKNOWLEDGES AND AGREES THAT THE SERVICE MAY BE SUBJECT TO INTERRUPTION, LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF INTERNET APPLICATIONS AND ELECTRONIC COMMUNICATIONS. PHOTOLOGIC IS NOT RESPONSIBLE FOR ANY SUCH DELAYS, DELIVERY FAILURES, OR ANY OTHER DAMAGE RESULTING FROM EVENTS BEYOND PHOTOLOGIC’S REASONABLE CONTROL, WITHOUT REGARD TO WHETHER SUCH EVENTS ARE REASONABLY FORESEEABLE BY PHOTOLOGIC.
8.4 LIMITATION. CUSTOMER’S EXCLUSIVE REMEDY AND PHOTOLOGIC’S, ITS SUPPLIERS’ AND LICENSORS’ TOTAL AGGREGATE LIABILITY RELATING TO, ARISING OUT OF, IN CONNECTION WITH, OR INCIDENTAL TO THIS AGREEMENT, WHETHER FOR BREACH OF CONTRACT, BREACH OF WARRANTY, INDEMNIFICATION OR ANY OTHER CLAIM SHALL BE LIMITED TO THE ACTUAL DIRECT DAMAGES INCURRED BY CUSTOMER, UP TO THE AGGREGATE AMOUNTS PAID BY CUSTOMER AND RECEIVED BY PHOTOLOGIC HEREUNDER DURING THE THREE (3) MONTHS IMMEDIATELY PRECEEDING THE APPLICABLE CLAIM. THE EXISTENCE OF MULTIPLE CLAIMS OR SUITS UNDER OR RELATED TO THIS AGREEMENT WILL NOT ENLARGE OR EXTEND THIS LIMITATION OF DAMAGES. CUSTOMER HEREBY RELEASES PHOTOLOGIC, ITS SUPPLIERS AND LICENSORS FROM ALL OBLIGATIONS, LIABILITY, CLAIMS OR DEMANDS IN EXCESS OF THIS LIMITATION. THE PROVISIONS OF THIS SECTION DO NOT WAIVE OR LIMIT PHOTOLOGIC’S ABILITY TO OBTAIN INJUNCTIVE OR OTHER EQUITABLE RELIEF FOR BREACH OF THESE TERMS.
8.5 EXCLUSION OF CERTAIN DAMAGES AND LIMITATIONS OF TYPES OF LIABILITY. IN NO EVENT WILL PHOTOLOGIC BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, INDIRECT OR PUNITIVE DAMAGES, OR LOST PROFITS OR LOST REVENUE ARISING OUT OF OR RELATED TO THE SUBJECT MATTER OF THIS AGREEMENT OR THE USE OF OR INABILITY TO USE THE SERVICE. THE FOREGOING EXCLUSION AND LIABILITY LIMITATIONS APPLY EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IN THE EVENT OF STRICT OR PRODUCT LIABILITY.
8.6 INTERPRETATION. The limitations in sections 8.3 and 8.4 are independent of each other. The limitation of damages set forth in section 8.3 shall survive any failure of essential purpose of the limited remedy in section 8.4.
9.1 NOTICE. Either party may give notice to the other party by means of electronic mail to the primary contact designated on the Order or by written communication sent by first class mail which shall constitute written notice under this Agreement.
9.2 ADDITIONAL USERS. In the event Customer desires to increase the number of Authorized Users permitted to access and use the Service, Customer can create such additional users via the Portal. All additional licenses shall be subject to the terms of this Agreement and will incur Subscription Fee relative to the license type (Doctor/surgeon or Nurse). For clarity, in no event shall any other term or provision of this Agreement be deemed modified, amended or altered as a result of such purchase and all other changes to this Agreement shall be governed by Section 10, below.
With the exception of additional Authorized Users obtained by Customer under Section 9.2, Photologic shall not be bound by any subsequent terms, conditions or other obligations included in any Customer purchase order, receipt, acceptance, confirmation or other correspondence from Customer unless expressly assented to in writing by Photologic. The parties may supplement the terms of this Agreement at any time by signing a written addendum, which shall be deemed incorporated by this reference upon execution. The terms of any addendum shall control any conflicting terms in this Agreement. Unless expressly stated otherwise in an applicable addendum, all addenda shall terminate upon Termination of this Agreement.
11.1 ASSIGNMENT. Neither party may assign or novate its rights or obligations under this Agreement, by operation of law or otherwise (any of the foregoing, “Assign”), without the other party’s prior written consent. Notwithstanding the foregoing, on notice and without the other’s consent: (a) either party may in connection with a merger, reorganization, or sale of all or substantially all of such party’s assets or equity, assign its rights and obligations under this Agreement to such party’s successor; and (b) Photologic may Assign its rights and obligations under this Agreement to an affiliate subject to the other party’s prior written consent. Any attempted or alleged Assignment in violation of this Section 11.1 will be null and void. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors, and permitted assigns.
11.2 RELATIONSHIP. Nothing in this Agreement will be construed to create a partnership, joint venture, agency, or other relationship. Neither party has the right or authority to assume or create any obligation of any kind, express or implied, in the other party’s name or on its behalf. No third-party is a third-party beneficiary of, or liable under, this Agreement, and no third-party is responsible for any obligations or liability arising out of Customer’s use of the Service.
11.3 FORCE MAJEURE. Photologic is not, and may not be construed to be, in breach of this Agreement for any failure or delay in fulfilling or performing the Service, when and to the extent such failure or delay is caused by or results from acts beyond Photologic’s reasonable control, including: strikes, lock-outs, or other industrial disputes; trespass, sabotage, theft or other criminal acts export bans, sanctions, war, terrorism, riot, civil unrest, or government action; failure of Internet connectivity or backbone or other telecommunications failures, in each case outside of Photologic’s local network; breakdown of plant or machinery; nuclear, chemical, or biological contamination; fire, flood, natural disaster, extreme adverse weather, or other acts of God (each a “Force Majeure Event”). Photologic will use reasonable efforts to mitigate the effects of such Force Majeure Event.
11.4 GOVERNING LAW. This Agreement shall be governed by the laws of Denmark without regard to the choice or conflicts of law provisions of any jurisdiction to the contrary, and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Service shall be brought before the Maritime and Commercial Court of Copenhagen. The failure of Photologic to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision. All disclaimers, limitations, payment obligations and restrictions of warranty, as well as the provisions of this “General” section shall survive Termination of this Agreement. If any part of this Agreement is found to be illegal, unenforceable, or invalid, Customer’s right to use the Service will immediately terminate, except for those provisions noted above which will continue in full force and effect.
11.5 ENTIRETY. This Agreement (together with any Order referencing this Agreement, Photologic’s Privacy Policy and any required Data Processing Agreement) comprises the entire agreement between Customer and Photologic and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein.
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Photologic ApS
Ved Smedebakken 1, 1.
2800 Kgs. Lyngby
Denmark
CVR: 38436031
