Boring Radiology Master Terms

These Master Terms govern Customer’s access to and use of the Boring Radiology products identified in one or more Order Forms. They are accepted by the execution of an Order Form that references them and, together with the other documents described in Section 2, form the agreement between Boring Radiology, Inc., a Delaware corporation (“Boring Radiology”), and the customer identified in the Order Form (“Customer”). Boring Radiology and Customer are each a “Party” and together the “Parties.”

1. Definitions§

§1.1 Defined Terms. Capitalized terms have the meanings given below, in an Order Form or Product Schedule, or elsewhere in the Agreement. Capitalized terms used but not defined in the Agreement that are defined in HIPAA have the meanings given in HIPAA.

“Agreement” means these Master Terms, each Order Form, the Product Schedule for each Product ordered, and the BAA.

“BAA” means Boring Radiology’s Business Associate Agreement published at the URL identified in the Order Form or, if the Parties have executed a business associate agreement directly, that executed agreement.

“Billing Start Date” means, for each Order Form, the first day of the first full calendar month following that Order Form’s Effective Date; if the Effective Date is the first day of a calendar month, the Billing Start Date is the Effective Date.

“Boring Radiology IP” means the Products, the Documentation, De-identified Data, Usage Data, and all other Confidential Information of Boring Radiology, together with all intellectual property rights in any of them.

“Claim” means any claim, demand, suit, or proceeding brought by a third party.

“Current Period” has the meaning given in Section 11.1.

“Customer Data” means documents, data, and other content that Customer or its Permitted Users submit to the Products, or that the Products receive from Customer Systems, together with all output the Products generate from that content, such as draft report text and extracted order information, and all Customer-Dedicated Models, including any PHI, but excluding De-identified Data and Usage Data.

“Customer-Dedicated Model” has the meaning given in Section 4.2.

“Customer Systems” has the meaning given in Section 3.2.

“De-identified Data” means information derived from Customer Data that has been de-identified in accordance with 45 C.F.R. § 164.514(a)–(c) and that does not identify Customer or any Permitted User.

“Deployment Window” means, for each Order Form, the period from its Effective Date through the day before its Billing Start Date, during which Customer may deploy, configure, and test the Products. If the Effective Date is the first day of a calendar month, there is no Deployment Window.

“Documentation” means Boring Radiology’s then-current user guides, specifications, and technical documentation for the Products.

“Effective Date” means, for each Order Form, the effective date set out in or determined under that Order Form.

“Fees” means all amounts payable under an Order Form, including subscription fees, Usage Fees, and one-time fees.

“HIPAA” means the Health Insurance Portability and Accountability Act of 1996 and the Health Information Technology for Economic and Clinical Health Act, together with their implementing regulations at 45 C.F.R. Parts 160 and 164, in each case as amended from time to time.

“Hosted Product” means a Product that Boring Radiology hosts and makes available over the internet, as identified in its Product Schedule.

“Installed Product” means a Product that Customer installs and operates on Customer Systems, as identified in its Product Schedule.

“Order Form” means Boring Radiology’s ordering document, executed by both Parties, that references these Master Terms.

“Order Term” has the meaning given in Section 11.1.

“Permitted Users” means Customer’s employees, contractors, and agents whom Customer authorizes to use the Products on its behalf.

“PHI” means Protected Health Information, as defined in HIPAA, that Boring Radiology creates, receives, maintains, or transmits on Customer’s behalf under the Agreement.

“Product” means each Boring Radiology software product identified in an Order Form, including any updates Boring Radiology makes generally available for it.

“Product Schedule” means the product-specific terms for a Product, published at the URL identified in the Order Form.

“Report” means a written or electronic document, whether preliminary or final, created by a licensed healthcare professional that records the professional interpretation of one or more diagnostic imaging studies, including findings, impressions, comparisons to prior studies, and clinical recommendations.

“Subscription Year” means each consecutive twelve-month period during an Order Term, the first beginning on the Billing Start Date and each later one beginning on an anniversary of it.

“Term” has the meaning given in Section 11.1.

“Usage Data” means data about the operation, performance, and use of the Products, such as feature usage, session and volume counts, software version, and system performance and error information, that does not include PHI.

“Usage Fees” means Fees charged per unit of use, such as per Billable Report, as described in the applicable Product Schedule and Order Form. Tiered subscription Fees, including m2 tier Fees, are recurring subscription Fees and not Usage Fees.

2. The Agreement§

§2.1 Components. The Agreement consists of these Master Terms, each Order Form, the Product Schedule for each Product ordered under an Order Form, and the BAA. A Product Schedule applies only to Products ordered under an Order Form.

§2.2 Order of Precedence. If provisions of the Agreement conflict, they control in the following order: (a) the BAA, solely with respect to the use, disclosure, safeguarding, and breach reporting of PHI, and not with respect to fees, liability, indemnification, insurance, or other commercial matters, which these Master Terms govern unless a directly executed business associate agreement expressly references and overrides this Section 2.2; (b) an Order Form, but only where it expressly states that it overrides a specifically identified provision of these Master Terms or a Product Schedule; (c) the applicable Product Schedule, with respect to its Product; (d) these Master Terms; and (e) any other provision of an Order Form. A conflict exists only where compliance with both provisions is impossible.

§2.3 Online Terms and Versions. These Master Terms, each Product Schedule, and the online BAA each carry a version number. The versions in effect on an Order Form’s Effective Date govern that Order Form for its Initial Order Term. Boring Radiology may publish updated versions from time to time. An updated version applies to an existing Order Form only from the start of a Renewal Term, and only if Boring Radiology notified Customer of the update at least ninety (90) days before that Renewal Term begins; otherwise the prior version continues to apply until the following Renewal Term. Changes required by law may take effect sooner upon written notice. Boring Radiology will provide a copy of any version upon request.

3. Customer Responsibilities§

§3.1 Permitted Users. Customer will ensure that each Permitted User provides accurate registration information and keeps account credentials confidential. Customer is responsible for all activity under its Permitted Users’ accounts and for its Permitted Users’ compliance with the Agreement, and will promptly notify Boring Radiology of any unauthorized use of an account or any other known or suspected security breach.

§3.2 Customer Systems. Customer is responsible for obtaining, maintaining, and securing the networks, internet connectivity, hardware, software, and other systems it uses to access the Products and, for Installed Products, the servers or virtual machines on which they run (together, “Customer Systems”).

§3.3 Professional Judgment. The Products are administrative, workflow, documentation, and data discovery tools. Customer is solely responsible for all clinical decisions and for all Reports, orders, and other clinical documentation created, located, or managed using the Products, and will ensure that such content is reviewed by appropriately qualified personnel before it is relied on for patient care or entered into a patient’s medical record. The Products are not a substitute for the professional judgment of a licensed healthcare professional.

§3.4 Lawful Use and Consents. Customer will use the Products in compliance with applicable law. Customer represents that it has obtained all rights, consents, and authorizations, and has made all disclosures, required for Boring Radiology to process Customer Data as contemplated by the Agreement.

4. Rights and Ownership§

§4.1 Boring Radiology IP; License. Boring Radiology owns all right, title, and interest in the Boring Radiology IP and reserves all rights not expressly granted in the Agreement. Subject to Customer’s compliance with the Agreement, Boring Radiology grants Customer, during the applicable Order Term, a nonexclusive, nontransferable right, without the right to sublicense, for its Permitted Users to access and use each Hosted Product and to install and use each Installed Product on Customer Systems, in each case solely for Customer’s internal business purposes and within the scope set out in the applicable Order Form and Product Schedule.

§4.2 Customer Data. As between the Parties, Customer owns all Customer Data. Customer grants Boring Radiology a nonexclusive, worldwide, royalty-free license during the Term to use, reproduce, process, and display Customer Data (a) to provide, support, secure, and bill for the Products, including by developing Customer-Dedicated Models, and (b) subject to Section 4.4, to create De-identified Data to the extent permitted by the BAA. Boring Radiology will not use Customer Data containing PHI to train, tune, or otherwise develop any artificial intelligence or machine learning model other than a Customer-Dedicated Model. A “Customer-Dedicated Model” is a model, or a customization of a model (such as weights, adapters, prompts, stored examples, or learned preferences), developed from Customer Data solely to provide the Products to Customer and its Permitted Users, and not used for or made available to any other customer. Customer-Dedicated Models are Customer Data. Boring Radiology will not train, tune, or fine-tune any model, prompt, template, or other component that it uses for more than one customer on Customer Data containing PHI; such training and tuning will use only De-identified Data, synthetic or publicly available data, or Feedback. Reviewing Customer Data to diagnose and correct errors in the Products, as part of providing and supporting them under Section 4.2(a), is not training or tuning.

§4.3 De-identified Data. Subject to Section 4.4, Boring Radiology may use De-identified Data to develop, train, test, and improve its products and services, including by training artificial intelligence and machine learning models. Boring Radiology will not (a) attempt to re-identify any individual, Customer, or Permitted User from De-identified Data; (b) disclose De-identified Data to any third party unless that third party is contractually prohibited from attempting re-identification; (c) sell or license De-identified Data to any third party as a standalone data set; or (d) publicly disclose De-identified Data in a form that identifies Customer.

§4.4 Opt-Out. Customer may elect that Boring Radiology not create De-identified Data from Customer’s Customer Data for the purposes described in Section 4.3 (an “Opt-Out”), either in an Order Form or, at any time, by written notice to Boring Radiology. An Opt-Out elected in an Order Form takes effect on that Order Form’s Effective Date; an Opt-Out made by notice takes effect thirty (30) days after Boring Radiology receives it. Boring Radiology may continue to use De-identified Data created, and models developed, before an Opt-Out took effect, in accordance with Section 4.3, and Sections 4.3(a) through (d) continue to apply to that De-identified Data.

§4.5 Usage Data. Boring Radiology may collect and use Usage Data to provide, support, secure, bill for, and improve its products and services. Boring Radiology will not disclose Usage Data to third parties in a form that identifies Customer, except to service providers acting on its behalf.

§4.6 Feedback. Customer may, but is not required to, provide suggestions or other feedback about the Products (“Feedback”). Customer grants Boring Radiology a perpetual, irrevocable, worldwide, royalty-free, fully paid-up, transferable license, with the right to sublicense, to use and exploit Feedback for any purpose.

§4.7 Changes to the Products. Boring Radiology may modify the Products from time to time but will not materially reduce the core functionality of a Product during a Current Period. If a modification requires material changes to Customer Systems, Boring Radiology will give Customer reasonable advance notice.

§4.8 Restrictions. Customer will not, and will not permit any third party to: (a) use the Products other than as permitted by the Agreement; (b) use the Products for the benefit of a Boring Radiology competitor or to develop a similar or competing product; (c) reverse engineer, decompile, disassemble, or attempt to derive the source code of the Products, except to the extent applicable law expressly permits despite this restriction; (d) copy, modify, or create derivative works of the Products; (e) sell, lease, sublicense, distribute, or otherwise make the Products available to any third party; (f) transmit viruses or other harmful code to the Products; (g) remove or obscure any proprietary notices on the Products or Documentation; (h) interfere with or disable any security mechanism of the Products; or (i) circumvent or interfere with any license key, usage counter, or other technical limit on the Products.

5. Fees and Payment§

§5.1 Fees. Customer will pay the Fees set out in each Order Form. Except as expressly provided in the Agreement, Fees are nonrefundable.

§5.2 Invoicing and Payment. Unless an Order Form provides otherwise: (a) recurring subscription Fees are invoiced monthly in advance on the fifth (5th) day of each calendar month, beginning with the month in which the Billing Start Date occurs, or, where the Order Form provides for annual billing, annually in advance at the start of each Subscription Year; (b) Usage Fees are invoiced monthly in arrears; and (c) one-time Fees are invoiced upon execution of the Order Form. No subscription Fees or Usage Fees accrue during the Deployment Window. Payment is due within thirty (30) days after the invoice date.

§5.3 Usage Measurement. Usage Fees, and any usage-based tier determinations, are calculated as described in the applicable Product Schedule using Boring Radiology’s usage records, which control absent manifest error. Upon Customer’s written request, Boring Radiology will provide reasonable supporting detail for any usage-based charge.

§5.4 Fee Changes. Boring Radiology may change the Fees under an Order Form effective at the start of any Renewal Term by notifying Customer at least ninety (90) days before that Renewal Term begins. A tier adjustment made under a Product Schedule is not a Fee change for purposes of this Section.

§5.5 Taxes. Fees exclude taxes. Customer is responsible for all sales, use, value-added, and similar taxes arising from the Agreement, other than taxes based on Boring Radiology’s net income, unless Customer provides a valid exemption certificate.

§5.6 Late Payment. Undisputed amounts not paid when due accrue interest at the lesser of one and one-half percent (1.5%) per month and the maximum rate permitted by law. Customer will reimburse Boring Radiology’s reasonable costs of collecting overdue undisputed amounts, including reasonable attorneys’ fees.

§5.7 Payment Disputes. Customer will notify Boring Radiology in writing of any good-faith dispute regarding an invoice within thirty (30) days after receiving it, and will pay all undisputed amounts when due. Amounts not disputed within that period are deemed accepted. The Parties will use commercially reasonable efforts to resolve any dispute within thirty (30) days after notice.

6. Confidentiality§

§6.1 Definition. “Confidential Information” means non-public information disclosed by one Party (the “Disclosing Party”) to the other (the “Receiving Party”) that is identified as confidential or that a reasonable person would understand to be confidential given its nature and the circumstances of disclosure. Boring Radiology’s Confidential Information includes the Boring Radiology IP. Customer’s Confidential Information includes Customer Data. The terms of the Agreement are the Confidential Information of both Parties. PHI is also subject to the BAA.

§6.2 Exceptions. Confidential Information does not include information that (a) is or becomes public through no fault of the Receiving Party; (b) was known to the Receiving Party before disclosure, as shown by its written records; (c) is independently developed by the Receiving Party without use of the Disclosing Party’s Confidential Information, as shown by its written records; or (d) is received from a third party without restriction and without breach of any obligation to the Disclosing Party. These exceptions do not apply to PHI.

§6.3 Use and Disclosure. The Receiving Party will use the Disclosing Party’s Confidential Information only to exercise its rights and perform its obligations under the Agreement; will protect it with at least the care it uses for its own similar information, and no less than reasonable care; and will disclose it only to its employees, contractors, and service providers who need to know it for those purposes and are bound by confidentiality obligations at least as protective as these. Boring Radiology may also disclose the terms of the Agreement, but not Customer Data, in confidence to actual or prospective investors, acquirers, lenders, and auditors. The Receiving Party may disclose Confidential Information to the extent required by law or legal process if it gives the Disclosing Party prompt notice (where legally permitted), reasonably cooperates with any effort to obtain a protective order, and discloses only what is legally required.

§6.4 Duration. The obligations in this Section 6 continue for three (3) years after the Agreement ends, except that obligations regarding (a) PHI continue for the period set out in the BAA and (b) trade secrets continue for as long as the information remains a trade secret under applicable law.

§6.5 Return or Destruction. Upon termination of the Agreement or the Disclosing Party’s written request, and subject to Section 11.6, the Receiving Party will return or destroy the Disclosing Party’s Confidential Information, except that it may retain (a) copies required by law and (b) copies in archival or disaster-recovery backups that are not readily accessible, until they are deleted in the ordinary course. Retained information remains subject to this Section 6. Upon request, the Receiving Party will confirm its compliance in writing. Return or destruction of PHI is governed by the BAA.

7. Data Protection and Security§

§7.1 Business Associate Agreement. If Customer is a Covered Entity, or a Business Associate of a Covered Entity, and Customer Data includes PHI, the BAA applies to Boring Radiology’s handling of that PHI and is incorporated into the Agreement. If Customer is a Business Associate of a Covered Entity, Boring Radiology acts as Customer’s Subcontractor, and Customer assumes the obligations of the “Covered Entity” under the BAA with respect to Boring Radiology. The Parties may execute a business associate agreement directly; if they do, the executed agreement replaces the BAA published online for all Order Forms between them.

§7.2 Security Program. Boring Radiology will maintain a written information security program that includes administrative, physical, and technical safeguards appropriate to the nature of the Products and the Customer Data they process, including a documented risk analysis and risk management process that Boring Radiology will review periodically. For Installed Products, Boring Radiology’s obligations under this Section apply to its software development, update, and remote-access practices, and Customer is responsible for the security of Customer Systems.

§7.3 Independent Attestation. Boring Radiology is pursuing a SOC 2 Type II attestation and will use commercially reasonable efforts to obtain one. Once it is obtained, Boring Radiology will maintain a current SOC 2 Type II attestation, or a comparable independent attestation or certification, during the Term, and will provide its most recent report upon Customer’s written request, no more than once per year. Boring Radiology will also respond, no more than once per year, to Customer’s reasonable written security questionnaire. Reports and questionnaire responses are Boring Radiology’s Confidential Information.

§7.4 Business Continuity. For Hosted Products, Boring Radiology will maintain a business continuity and disaster recovery plan appropriate to the nature of the Products and will periodically test and update it. If Boring Radiology invokes that plan, it will notify Customer promptly and work to restore the affected Hosted Products as quickly as reasonably practicable.

§7.5 Data Location and Destruction. Boring Radiology will store and process Customer Data only within the United States and will not access Customer Data, including through remote access to Installed Products, from outside the United States. When Boring Radiology destroys Customer Data, it will use methods consistent with NIST Special Publication 800-88 for media under its control and, for Customer Data stored with Subprocessors, the Subprocessor’s industry-standard deletion and media-sanitization practices.

§7.6 Subprocessors. Boring Radiology may engage third parties to process Customer Data on its behalf (“Subprocessors”). Boring Radiology remains responsible for its Subprocessors’ performance, will bind each Subprocessor that processes PHI to written obligations as required by the BAA, and will provide a current list of Subprocessors upon request. Subprocessors that handle PHI are Subcontractors under the BAA.

8. Warranties and Disclaimers§

§8.1 Mutual. Each Party represents and warrants that (a) it has full power and authority to enter into and perform the Agreement; (b) the Agreement is a valid and binding obligation enforceable against it in accordance with its terms; (c) entering into and performing the Agreement does not conflict with any other agreement by which it is bound; and (d) it will comply with applicable law in performing the Agreement.

§8.2 By Customer. Customer represents and warrants that each Permitted User who authors Reports or performs other clinical functions using the Products is appropriately licensed to do so. Customer may permit Permitted Users to access the Products from outside the United States and is responsible for ensuring that such access complies with applicable law, including export control and data protection laws. Section 7.5 continues to govern Boring Radiology’s own storage of, and access to, Customer Data.

§8.3 By Boring Radiology. Boring Radiology warrants that each Product will perform materially in accordance with its Documentation during the applicable Order Term. If a Product does not, Customer will notify Boring Radiology in writing, and Boring Radiology will use commercially reasonable efforts to correct the nonconformity. If Boring Radiology does not correct it within thirty (30) days after that notice, either Party may terminate the affected Order Form, and Boring Radiology will refund any prepaid Fees for the terminated portion of the Current Period. This Section states Customer’s exclusive remedy for breach of this warranty. This warranty does not apply to nonconformities caused by Customer Systems, use not in accordance with the Documentation, modifications not made by Boring Radiology, or, for Installed Products, failure to install updates made available by Boring Radiology.

§8.4 Disclaimers. Customer is solely responsible for complying with the laws, regulations, and professional standards that apply to its and its Permitted Users’ use of the Products, including laws governing the practice of medicine and medical records. Boring Radiology does not represent that the Products satisfy any such requirement.

EXCEPT AS EXPRESSLY SET OUT IN SECTIONS 8.1 AND 8.3, THE PRODUCTS AND ALL OTHER BORING RADIOLOGY IP ARE PROVIDED “AS IS,” AND BORING RADIOLOGY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR ACCURACY, AND ANY WARRANTY THAT THE PRODUCTS WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE.

THE PRODUCTS DO NOT PROVIDE CLINICAL INTERPRETATION, DIAGNOSIS, OR TREATMENT RECOMMENDATIONS AND ARE NOT INTENDED FOR USE AS A MEDICAL DEVICE. UNLESS A PRODUCT SCHEDULE EXPRESSLY PROVIDES OTHERWISE, NO PRODUCT IS INTENDED TO SERVE AS A SYSTEM OF RECORD OR AS CUSTOMER’S MEDICAL RECORD.

9. Indemnification§

§9.1 By Boring Radiology. Boring Radiology will defend Customer and its directors, officers, employees, and Permitted Users (the “Customer Indemnitees”) against any Claim alleging that a Product, as provided by Boring Radiology, infringes or misappropriates that third party’s intellectual property rights, and will pay the damages finally awarded against, or the settlement amounts agreed by Boring Radiology on behalf of, any Customer Indemnitee in connection with that Claim. This Section does not apply to any Claim arising from (a) use of a Product other than as authorized by the Agreement; (b) modification of a Product by anyone other than Boring Radiology; (c) combination of a Product with products, services, or data not provided by Boring Radiology, where the Claim would not have arisen without that combination; (d) Customer Data; or (e) the fraud, gross negligence, or willful misconduct of any Customer Indemnitee. If a Product is, or in Boring Radiology’s judgment is likely to become, the subject of a Claim, Boring Radiology may, at its option and expense, (i) obtain the right for Customer to continue using it; (ii) modify it to be non-infringing without materially reducing its functionality; or (iii) if neither is commercially practicable, terminate the affected Order Form and refund any prepaid Fees for the terminated portion of the Current Period. This Section states Boring Radiology’s entire liability, and Customer’s exclusive remedy, for infringement or misappropriation of third-party intellectual property rights.

§9.2 By Customer. Customer will defend Boring Radiology and its affiliates, directors, officers, employees, and agents (the “Boring Radiology Indemnitees”) against any Claim arising from (a) an allegation that Customer Data, or Boring Radiology’s use of Customer Data in accordance with the Agreement, violates applicable law or the rights of a third party, including any failure by Customer to obtain a required right, consent, or authorization; (b) the breach of Section 3.4, 4.8, or 8.2, or the fraud, gross negligence, willful misconduct, or violation of law, by Customer or any Permitted User; or (c) the diagnosis, care, or treatment of any patient, including any Report, order, or other clinical documentation that Customer or a Permitted User finalizes, relies on, or enters into a patient’s medical record; and will pay the damages finally awarded against, or the settlement amounts agreed by Customer on behalf of, any Boring Radiology Indemnitee in connection with that Claim. This Section does not apply to any Claim to the extent it arises from Boring Radiology’s breach of the Agreement or the BAA.

§9.3 Procedures. Each Party’s obligations under this Section 9 are subject to the indemnified party (a) promptly notifying the indemnifying Party of the Claim in writing, provided that late notice relieves the indemnifying Party of its obligations only to the extent it is materially prejudiced; (b) giving the indemnifying Party sole control of the defense and settlement of the Claim; and (c) providing reasonable cooperation at the indemnifying Party’s expense. The indemnifying Party will not agree to any settlement that imposes an obligation other than the payment of money on the indemnified party without its consent, which will not be unreasonably withheld. The indemnified party may participate in the defense with its own counsel at its own expense.

10. Limitation of Liability§

§10.1 Exclusion of Certain Damages.

EXCEPT AS PROVIDED IN SECTION 10.4, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, OR FOR ANY LOSS OF DATA, BUSINESS, REVENUE, OR PROFITS, ARISING OUT OF OR RELATING TO THE AGREEMENT, UNDER ANY THEORY OF LIABILITY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

NOTWITHSTANDING THE FOREGOING, REASONABLE, DOCUMENTED COSTS OF LEGALLY REQUIRED BREACH NOTIFICATION, CREDIT MONITORING FOR AFFECTED INDIVIDUALS WHERE CUSTOMARY, CALL-CENTER SUPPORT, AND FORENSIC INVESTIGATION, IN EACH CASE RESULTING FROM A PARTY’S BREACH OF THE BAA OR SECTION 7, ARE DIRECT DAMAGES RECOVERABLE SUBJECT TO THE DATA PROTECTION CAP. AMOUNTS PAYABLE TO A THIRD PARTY UNDER SECTION 9 ARE DIRECT DAMAGES.

§10.2 General Cap.

EXCEPT AS PROVIDED IN SECTIONS 10.3 AND 10.4, EACH PARTY’S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THE AGREEMENT, UNDER ANY THEORY OF LIABILITY, WILL NOT EXCEED THE LESSER OF (A) THE FEES PAID AND PAYABLE BY CUSTOMER UNDER THE AGREEMENT DURING THE TWELVE (12) MONTHS BEFORE THE FIRST ACT OR OMISSION GIVING RISE TO THE LIABILITY (OR, IF THAT ACT OR OMISSION OCCURS BEFORE THE FIRST ANNIVERSARY OF THE FIRST BILLING START DATE, THE FEES PAYABLE FOR THE FIRST TWELVE (12) MONTHS UNDER ALL ORDER FORMS THEN IN EFFECT) AND (B) ONE HUNDRED THOUSAND DOLLARS ($100,000) (THE “GENERAL CAP”).

§10.3 Data Protection Cap; Indemnity Cap.

EXCEPT AS PROVIDED IN SECTION 10.4, EACH PARTY’S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO A BREACH OF THE BAA OR SECTION 7, UNDER ANY THEORY OF LIABILITY, WILL NOT EXCEED THE GREATER OF (A) FIVE (5) TIMES THE FEES PAID AND PAYABLE UNDER THE AFFECTED ORDER FORM DURING THE TWELVE (12) MONTHS BEFORE THE FIRST ACT OR OMISSION GIVING RISE TO THE LIABILITY (OR, IF THAT ACT OR OMISSION OCCURS BEFORE THE FIRST ANNIVERSARY OF THAT ORDER FORM’S BILLING START DATE, THE FEES PAYABLE UNDER THAT ORDER FORM FOR ITS FIRST TWELVE (12) MONTHS) AND (B) THE DATA PROTECTION FLOOR STATED IN THE PRODUCT SCHEDULE FOR THE AFFECTED PRODUCT OR, IF MORE THAN ONE PRODUCT IS AFFECTED, THE HIGHEST APPLICABLE DATA PROTECTION FLOOR (THE “DATA PROTECTION CAP”). THE DATA PROTECTION CAP IS SEPARATE FROM THE GENERAL CAP, AND AMOUNTS PAID UNDER ONE DO NOT REDUCE THE OTHER.

EXCEPT AS PROVIDED IN SECTION 10.4, EACH PARTY’S TOTAL AGGREGATE LIABILITY UNDER SECTION 9 WILL NOT EXCEED AN AMOUNT EQUAL TO THE DATA PROTECTION CAP, CALCULATED AS IF EACH ORDER FORM FOR A PRODUCT THAT IS THE SUBJECT OF THE CLAIM WERE THE AFFECTED ORDER FORM (THE “INDEMNITY CAP”). THE INDEMNITY CAP IS SEPARATE FROM THE GENERAL CAP AND THE DATA PROTECTION CAP, AND AMOUNTS PAID UNDER ANY ONE DO NOT REDUCE THE OTHERS.

§10.4 Exclusions.

THE LIMITATIONS IN SECTIONS 10.1 THROUGH 10.3 DO NOT APPLY TO (A) CUSTOMER’S OBLIGATION TO PAY FEES, INCLUDING ANY EARLY TERMINATION FEE, OR (B) A PARTY’S LIABILITY FOR ITS FRAUD OR WILLFUL MISCONDUCT.

§10.5 Application.

THE LIMITATIONS IN THIS SECTION 10 APPLY REGARDLESS OF THE FORM OF ACTION AND EVEN IF A LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

11. Term and Termination§

§11.1 Term. The Agreement begins on the Effective Date of the first Order Form and continues until all Order Forms have expired or been terminated, unless terminated earlier under this Section 11 (the “Term”). Each Order Form begins on its Effective Date and continues through its Deployment Window and then for the initial term stated in it, measured from its Billing Start Date (together, the “Initial Order Term”), and then renews automatically for successive one (1) year periods (each, a “Renewal Term”), unless either Party gives written notice of non-renewal at least sixty (60) days before the end of the Current Period. The Initial Order Term and all Renewal Terms together are the “Order Term,” and the Initial Order Term or Renewal Term then in effect is the “Current Period.”

§11.2 Termination for Cause. Either Party may terminate the Agreement or any affected Order Form upon written notice if the other Party (a) materially breaches the Agreement and does not cure the breach within thirty (30) days after receiving written notice describing it, or (b) becomes the subject of a bankruptcy petition or other insolvency proceeding, or has a receiver appointed for its business.

§11.3 Termination for Convenience. Customer may terminate the Agreement or any Order Form for convenience upon ninety (90) days’ written notice, subject to Section 11.4.

§11.4 Early Termination Fee. If Customer terminates the Agreement or any Order Form under Section 11.3, Customer will pay, for each terminated Order Form and in addition to all other amounts then due, an amount equal to the recurring subscription Fees (excluding Usage Fees) that would have become due under that Order Form for the remainder of the Current Period (the “Early Termination Fee”). The Early Termination Fee will be invoiced as of the effective date of termination and is due within thirty (30) days after the invoice date. No Early Termination Fee is due for any termination under Section 8.3 or 9.1, or for any termination by Customer under Section 11.2 or under Section 9.2 of the BAA. If Boring Radiology terminates the Agreement or any Order Form under Section 11.2, or under Section 9.2 of the BAA because of Customer’s breach, Customer will pay the Early Termination Fee for each terminated Order Form as if Customer had terminated under Section 11.3. The Parties agree that the Early Termination Fee is a reasonable estimate of Boring Radiology’s losses from early termination and is not a penalty.

§11.5 Suspension. Boring Radiology may suspend access to a Product, in whole or in part, if (a) there is a threat to or attack on the Product or Boring Radiology’s systems; (b) suspension is required by law; (c) Customer or a Permitted User breaches Section 4.8; or (d) any undisputed amount remains unpaid ten (10) business days after Boring Radiology gives written notice that it is past due. Boring Radiology will give advance notice of suspension where practicable, will limit any suspension to what is reasonably necessary, and will restore access promptly after the cause is resolved.

§11.6 Effect of Termination. Upon expiration or termination of an Order Form: (a) the rights granted under it end, and Customer will stop using the affected Products; (b) Customer will pay all amounts accrued under it; (c) for Hosted Products, upon Customer’s written request made within thirty (30) days after expiration or termination, Boring Radiology will make Customer Data then held in the Product available for export in a commonly used format. Boring Radiology will delete that Customer Data within sixty (60) days after expiration or termination in accordance with the BAA and Section 7.5, subject to any shorter retention period in the applicable Product Schedule or Order Form (but not shorter than the thirty (30) day export period), and except for copies retained under Section 6.5(a) or (b), which remain subject to the BAA and Section 6; and (d) for Installed Products, within thirty (30) days Customer will uninstall the Product, delete all copies, and upon request certify in writing that it has done so.

§11.7 Survival. Sections 1, 2.2, 3.3, 3.4, 4 (other than the licenses granted in Sections 4.1 and 4.2), 5 (as to amounts accrued), 6, 7.1, 7.5, 8.2, 8.4, 9, 10, 11.4, 11.6, 11.7, and 12 survive expiration or termination of the Agreement, as do Sections 7.2 and 7.6 for any Customer Data retained after termination, together with any other provision that by its nature is intended to survive. The license in Section 4.2(a) survives for as long as Boring Radiology retains Customer Data as permitted by the Agreement.

12. General§

§12.1 Independent Contractors. The Parties are independent contractors. Nothing in the Agreement creates a partnership, joint venture, agency, franchise, or employment relationship, and neither Party may make commitments on behalf of the other.

§12.2 Amendment; Waiver; Severability. Except as provided in Sections 2.3 and 5.4, the Agreement may be amended only in a writing signed by both Parties. A waiver is effective only if in writing and signed by the waiving Party, and a waiver of one breach is not a waiver of any other. If any provision is held unenforceable, it will be enforced to the maximum extent permissible and the remaining provisions will remain in effect.

§12.3 Force Majeure. Neither Party is liable for any delay or failure to perform, other than a payment obligation, caused by events beyond its reasonable control, such as natural disasters, epidemics, war, terrorism, civil unrest, labor disputes, acts of government, failures of public utilities or telecommunications networks, or large-scale cyberattacks, provided that the affected Party uses reasonable efforts to mitigate the effects and resume performance. This Section does not excuse a Party’s obligations under Section 7 or the BAA to maintain safeguards or to report and respond to security incidents.

§12.4 Assignment. Neither Party may assign the Agreement without the other Party’s prior written consent, except that either Party may assign it without consent, upon written notice, to an affiliate or to a successor in a merger, acquisition, reorganization, or sale of all or substantially all of its assets or of the business to which the Agreement relates. Any other attempted assignment is void. The Agreement binds and benefits the Parties and their permitted successors and assigns.

§12.5 Governing Law and Forum. The Agreement is governed by the laws of the State of Delaware, without regard to its conflict-of-laws rules. Subject to Section 12.6, the state and federal courts located in Delaware have exclusive jurisdiction over any action arising out of or relating to the Agreement, and each Party consents to their jurisdiction and venue. EACH PARTY WAIVES ITS RIGHT TO A JURY TRIAL IN ANY SUCH ACTION.

§12.6 Dispute Resolution. Before starting litigation over a dispute arising out of the Agreement, a Party will give the other written notice of the dispute. Senior representatives of each Party with authority to settle it will attempt in good faith to resolve it within fifteen (15) days after that notice and, failing that, will escalate it to their respective chief executives or other senior officers, who will attempt to resolve it within ten (10) days after the escalation. Either Party may then pursue its remedies under Section 12.5. This Section does not prevent either Party from seeking injunctive or other equitable relief at any time.

§12.7 Notices. Notices under the Agreement must be in writing and sent to the addresses in the applicable Order Form or, for Boring Radiology, to Boring Radiology, Inc., 1207 Delaware Avenue #5445, Wilmington, DE 19806, Attn: Legal, with a copy by email to legal@boringrad.com. Notices are effective (a) upon personal delivery; (b) one business day after sending by recognized overnight courier with tracking; or (c) when sent by email, upon the recipient’s confirmation of receipt (an automated reply does not count). Operational notices, such as maintenance notices and notices of updated terms under Section 2.3, may be sent by email to the notices contact identified in the Order Form and are effective when sent.

§12.8 Non-Solicitation. During the Term and for twelve (12) months afterward, neither Party will solicit for employment any employee of the other Party who performed work in connection with the Agreement, without the other Party’s prior written consent. General solicitations not targeted at those employees, and hiring anyone who responds to them, do not violate this Section.

§12.9 Publicity. Boring Radiology may identify Customer by name as a customer, including in customer lists, unless Customer notifies Boring Radiology that it objects. Otherwise, neither Party will use the other’s name, logo, or trademarks in any press release, case study, or public statement without the other’s prior written consent.

§12.10 Entire Agreement. The Agreement is the Parties’ complete and exclusive agreement regarding its subject matter and supersedes all prior or contemporaneous agreements and communications regarding it. It governs only the Products ordered under an Order Form. Terms in any Customer purchase order, vendor registration, supplier portal, or similar document have no effect, even if Boring Radiology accepts or signs that document.

§12.11 Counterparts; Electronic Signatures. Order Forms and any other document under the Agreement may be executed in counterparts and by electronic signature, each of which is an original and all of which together are one instrument.

§12.12 Interpretation. Headings are for convenience only. “Including” and similar terms mean “including without limitation.” “Or” is not exclusive. “Days” means calendar days, and “business days” means Monday through Friday, excluding U.S. federal holidays. A reference to a law includes its implementing regulations and any amendment or successor.

§12.13 Construction. The Agreement will not be construed against either Party as its drafter. Each Party has had the opportunity to consult legal counsel regarding the Agreement.

§12.14 Equitable Relief. A breach of Section 4.8, Section 6, or Section 12.8 may cause the non-breaching Party irreparable harm for which monetary damages would be inadequate, and the non-breaching Party may seek injunctive relief in addition to any other remedy.

§12.15 Nonexclusive Relationship. Nothing in the Agreement prevents either Party from entering into similar arrangements with third parties.