September 19, 2023
3720 Clifton Pl, Montrose, CA 91020, USA
Capitalized terms are defined in this document’s last section.
These Policies govern Customer’s use and license of the Toccare and SynTouch’s performance of the Services. SynTouch may update these Policies or any Toccare SOP at any time, and SynTouch will post the updated versions on this site. By either using the Toccare or accepting the Services, Customer agrees to be legally bound to these Policies, the Toccare SOPs and any updates thereof. If Customer does not agree to these Policies, the Toccare SOPs or any updates thereof, it must notify SynTouch in writing at email@example.com, in which case all Services provided to Customer pursuant to these Policies shall terminate and Customer relinquishes all rights granted hereunder.
SYNTOUCH’S OBLIGATIONS. During the Term (as defined below), SynTouch will:
1. Perform the Services by using commercially reasonable efforts as determined by SynTouch in its sole discretion within a reasonable time following SynTouch’s receipt of Services Requests, provided that (i) Customer submits such Services Requests in accordance with the Toccare SOPs; (ii) Customer grants SynTouch reasonable access to the Toccare, Customer’s Data and Certified Toccare Operators; and (iii) Customer is in full compliance with the Toccare SOPs and has installed all Toccare Updates. For the avoidance of doubt, SynTouch may elect not to perform the Services if Customer fails to abide by this subsection 1 as determined by SynTouch in its sole discretion.
2. Subject to the terms set forth in the Business Documents, supply Sensors to Customer per Customer’s requests. Sensors supplied to Customer may be new or refurbished as determined by SynTouch in its sole discretion.
3. Provide training in the use of the Toccare to Customer’s personnel subject to SynTouch’s fee for personnel time and out-of-pocket expenses as set forth below in subsection 4(ii) of Customer’s Obligations.
CUSTOMER’S OBLIGATIONS. Customer will:
1. Only use the Toccare for Customer’s internal business purposes, and only allow Certified Toccare Operators to operate the Toccare and Certified Personnel to submit Services Requests.
2. At all times comply with the Toccare SOPs, and not directly or indirectly (i) violate laws or regulations that affect the use of the Toccare; (ii) disassemble, modify, remove, merge, scrape, translate, decode or reverse engineer any portion of the Toccare, the Sensors or the Software; (iii) use any data mining, gathering, separation or extraction tool, or any robot, spider or other automatic device or manual process to monitor, use or copy any portion of the Software, Licensed IP or data generated thereby; (iv) use, reproduce, compile, disclose, publish, display, distribute, transmit or make available any portion of the Toccare, Licensed IP or data generated in connection with the Toccare’s operation for the benefit of any third party; (v) remove any notice indicating SynTouch’s or SynTouch suppliers’ proprietary rights in the Toccare, Software or Licensed IP; (vi) create derivative works of the Toccare, Software or Licensed IP or any portion or component thereof; (vii) make false, misleading or deceptive statements or representations regarding SynTouch, the Toccare or the Services; or (viii) assign, sell, lease, rent, transfer, exchange, encumber, grant any rights, license or sublicense in all or any portion of the Toccare or the Sensors during or after the Term.
3. Promptly return to SynTouch any Sensors that Customer no longer needs for use with the Toccare, or that are not usable due to wear and tear or defect.
4. Bear the cost of (i) SynTouch’s personnel time and out-of-pocket expenses incurred to perform Services that may be necessary due to Customer’s failure to comply with the Toccare SOPs; (ii) SynTouch’s personnel time and out-of-pocket expenses incurred to perform other services including but not limited to, ancillary services not specified in the Business Documents; (iii) Sensors that are lost while in Customer’s possession or during shipping from Customer to SynTouch; (iv) all shipping and transportation expenses associated with Customer’s return of Sensors to SynTouch; and (v) Sensors damaged as a result of reasons other than reasonable wear and tear, including damage caused by Customer’s non-compliance with the Toccare SOPs. All Customer’s costs due to lost or damaged Sensors are set forth in the Business Documents.
5. Install all Toccare Updates. Failing to install any Toccare Updates may cause the Toccare to become inoperable and unsupported and/or hinder SynTouch’s performance of the Services.
TERM AND TERMINATION.
1. If the Customer purchased the Toccare, the term of these Policies will commence on the date of acceptance for use of the Toccare set forth in the Business Documents (the “Acceptance Date”) and continue until one (1) year following the Acceptance Date (the “Initial Term”) provided that Customer pays the applicable Services and licensing fee for the Initial Term (the “Initial Fee”). Following the Initial Term, these Policies will automatically renew for successive one-year terms (each a “Renewal Term” and together with the Initial Term, the “Term”) provided that Customer pays the fee billed by SynTouch at the beginning of each Renewal Term (the “Renewal Fee”), or unless Customer gives SynTouch written notice at firstname.lastname@example.org of Customer’s election not to renew at least thirty days prior to the expiration of the Initial Term or the then-current Initial or Renewal Term.
2. If Customer rents the Toccare, these Policies apply during the rental period set forth in the Business Documents and such rental period shall be deemed the “Term.”
3. SynTouch may terminate these Policies and the Services if (i) Customer does not pay the Initial Fee, the Renewal Fee or other amounts when due; (ii) Customer has not performed or complied in whole or in part with these Policies, the Business Documents or the Toccare SOPs; or (iii) SynTouch determines that it is required by law to terminate the Services or that continuing to provide the Services would subject SynTouch or Customer to liability. If SynTouch notifies Customer in writing of Customer’s breach or default under these Policies, then SynTouch may terminate these Policies if Customer does not cure the breach or default to SynTouch’s reasonable satisfaction within thirty days of such written notice.
4. Upon termination, SynTouch’s obligations and all rights granted to Customer hereunder shall terminate immediately, including Customer’s right to use the Licensed IP and the Sensors.
LICENSE GRANT. Subject to Customer’s full compliance with these Policies and the Business Documents, SynTouch hereby grants to Customer during the Term a non-exclusive, non-transferable, limited license to use the Licensed IP and the Sensors for the sole purpose of Customer’s operation of the Toccare. Except as may be expressly licensed to Customer hereunder, all right, title and interest in and to the Licensed IP and the Sensors, all derivative works thereof, and all related documentation and materials, including all intellectual property and proprietary rights embodied therein, will always be exclusively owned by SynTouch. Customer will not use the Toccare or the Sensors for any purpose except as expressly permitted herein. Notwithstanding the foregoing, Customer will exclusively own Customer’s Data.
LIMITED WARRANTY AND WARRANTY DISCLAIMER. SynTouch warrants that the Services will be performed by skilled and qualified personnel in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services. EXCEPT FOR THE WARRANTIES EXPLICITLY SET FORTH HEREIN AND IN THE BUSINESS DOCUMENTS, SYNTOUCH MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE TOCCARE, SENSORS, LICENSED IP OR SERVICES AND DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY (A) WARRANTY OF MERCHANTABILITY; OR (B) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (C) WARRANTY OF TITLE; OR (D) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; OR (E) WARRANTY ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE.
LIMITATION OF LIABILITY. In no event during or after the Term, will SynTouch be liable to Customer or any third party for any loss of use, revenue or profit or loss of data or diminution in value, or for any consequential, indirect, incidental, special, exemplary, or punitive damages whether arising out of breach of contract, tort (including negligence), strict liability or otherwise, regardless of whether such damages were foreseeable and whether or not SynTouch had been advised of the possibility of such damages, and notwithstanding the failure of any agreed or other remedy of its essential purpose. Furthermore, in no event during or after the Term shall SynTouch be liable to Customer or any third party as to the accuracy or completeness of any measurements or information generated by the Toccare. Customer’s reliance upon such measurements or information or conclusions drawn therefrom will be at Customer’s own risk to the maximum extent permitted by law and will not give rise to any liability of SynTouch or any of its affiliates. In no event both during and after the Term, will SynTouch’s aggregate liability arising out of or related to these Policies or any Business Documents, whether arising out of or related to breach of contract, tort (including negligence), strict liability, or otherwise, exceed the total of the amounts paid and payable to SynTouch pursuant to the Business Documents.
MUTUAL CONFIDENTIALITY. Notwithstanding any other agreement between Customer and SynTouch, each of Customer or SynTouch (the “Receiving Party”) may receive proprietary information from the other (the “Disclosing Party”) relating to the Disclosing Party’s business, vendors, products, services, customers, trade secrets, methods, processes, procedures, or other information reasonably expected to be treated in a confidential manner (“Proprietary Information”). Customer’s Data is considered Customer’s Proprietary Information. The Receiving Party and its employees and agents will, at all times, including after termination of these Policies, keep in trust and confidence all Proprietary Information of the Disclosing Party, and not use it other than in furtherance of these Policies or pursuant to any Business Documents, nor will the Receiving Party or its employees or agents disclose any such Proprietary Information to any third party without the Disclosing Party’s prior written consent.
ENTIRE AGREEMENT. These Policies together with the Business Documents are the entire agreement between Customer and SynTouch relating to the subject matter hereof; supersede all prior or contemporaneous understandings and will prevail if a conflict arises between these Policies, together with the Business Documents, and any other agreement between Customer and SynTouch. Notwithstanding the foregoing, in the event of a conflict between the terms of the license in these Policies and the Business Documents, the license terms in these Policies will prevail.
WAIVERS. The failure by either Customer or SynTouch at any time to require performance of any provision or terms hereof or pursuant to the Toccare SOPs will in no manner affect such party’s rights later to enforce the same. No waiver by Customer or SynTouch of any condition or of any breach of any term, representation or warranty contained in these Policies will be effective unless in writing, and no waiver in any one or more instances will be deemed to be a further or continuing waiver of any such condition or breach in other instances or a waiver of any other condition or breach of any other term, representation, or warranty.
GOVERNING LAW. All matters arising out of or relating to these Policies or the Toccare SOPs are governed by and construed in accordance with the laws of the State of California without giving effect to any conflict-of-laws provisions that would cause the application of the laws of any other jurisdiction. The exclusive jurisdiction for all disputes arising out of or relating to these Policies will be the California State and United States Federal courts sitting in the County of Los Angeles, California, USA.
“Business Documents” means binding agreements and notices between Customer and SynTouch including but not limited to policies, quotations, invoices, sales orders, purchase orders, purchase agreements, rental agreements, and that certain Limited Warranty for the Toccare Haptics Measurement System relating to Customer’s purchase, installation, acceptance, or use of the Toccare or SynTouch’s performance of the Services.
“Certified Personnel” means any of Customer’s personnel or contractors who have received SynTouch’s written certification to submit Services Requests. At SynTouch’s sole discretion, certification may be conditioned upon receiving training by SynTouch.
“Certified Toccare Operators” means Certified Personnel who have received SynTouch’s written certification to operate the Toccare. At SynTouch’s sole discretion, certification may be conditioned upon receiving training by SynTouch.
“Customer” means the customer identified in the purchase or rental order accepted by SynTouch for the Toccare, and, when applicable, Certified Personnel.
“Customer’s Data” means all measurements and data generated from Customer’s use of the Toccare.
“Fee” is defined in the Term and Termination section above.
“Initial Fee” is defined in the Term and Termination section above.
“Initial Term” is defined in the Term and Termination section above.
“Licensed IP” means intellectual property (including patents, trade secrets, copyrights, and trademarks) that is owned by SynTouch and embedded in the Toccare or the Sensors and contained in the Toccare’s data output.
“Policies” means these Policies for the Use, Support and License of the Toccare Haptics Measurement System.
“Renewal Fee” is defined in the Term and Termination section above.
“Renewal Term” is defined in the Term and Termination section above.
“Sensors” means the Toccare sensors provided by SynTouch for Customer’s use of the Toccare.
“Services” means SynTouch’s installation, service, and support of the Toccare and the supply of Sensors to Customer in accordance with the Toccare SOPs and Business Documents. For the avoidance of doubt, the Services do not include training of Customer’s personnel.
“Services Requests” means requests for Services submitted by Certified Personnel in accordance with the Toccare SOPs.
“Software” means software and firmware embedded in the Toccare or the Sensors.
“SynTouch” means SynTouch, Inc.
“Term” is defined in the Term and Termination section above.
“Toccare” means the Toccare® Haptics Measurement System consisting of a controller, a test station, a computer console, and ancillary documents, minor components, cables, toolkit, calibration samples and accessories, excluding Sensors.
“Toccare SOPs” means standard operating procedures published by SynTouch relating to the installation, acceptance, use, operation, and care of the Toccare.
“Toccare Updates” means updates or modifications to the Toccare provided by SynTouch to Customer from time to time at SynTouch’s sole discretion.