Safe Care by Tobii DYNAVOX
Product Trials Terms and Conditions
1. General Provisions
a. Loaned equipment.
Tobii Dynavox (“The company”) will lend out the Loaned Equipment to Borrower on the terms and conditions set forth in this Agreement, for a period of two weeks or otherwise agreed in writing.
b. Software license.
The Company hereby grants to Borrower a limited, non-exclusive, non-transferable, royalty-free license to use any software and accompanying documentation delivered with or embedded in the Loaned Equipment during the Loan Period. Borrower shall not: (a) create derivative works of, distribute, sell, assign, pledge, sublicense, lease, loan, rent, deliver or otherwise transfer the software, or any copy thereof; (b) copy the software; (c) decompile, disassemble, attempt to derive the software source code, or otherwise reverse engineer the software by any means, or permit or assist any third party to decompile, disassemble, reverse engineer, or derive or attempt to derive the software source code; (d) sell, distribute, rent, lease or use the software for time-sharing purposes; (e) publish the software or any portion thereof; (f) remove any copyright or proprietary notices contained in the software; or (g) directly or indirectly use any eye images gathered through use of the software to develop new or enhance existing eye tracking technologies, including but not limited to, algorithms or hardware in competition with the software or Loaned Equipment.
c. Responsibility of the equipment.
In view hereof, the Borrower agrees that except solely as expressly stated herein Tobii Dynavox shall assume no responsibility whatsoever vis-à-vis Borrower regarding defects, faults or inadequate performance of the Loaned Equipment and Borrower agrees that it will not advance any claims for damages against Tobii Dynavox. Non-compliance may result in the return of the Equipment and other remedies as specified in this Agreement It shall be the responsibility of the Borrower to procure all official permits and licenses which may be required for the use of the Equipment by the Borrower. The Borrower shall be solely responsible for compliance with any safety and/or operating requirements applicable to the use of the Loaned Equipment.
d. Reporting and assessment Requirements.
This loan agreement is contingent upon the Borrower submitting reports about the loan as specified herein. The Borrower shall provide the following information to Tobii Dynavox regarding the trials[1]:
i. The number of assessments carried out.
ii. The number of applications for funding initiated or planned as a result of the trial, including timing when available.
iii. Out of the total assessments during the trial, the number of funding cases approved by funding bodies or resulting in the procurement of Tobii Dynavox AAC solutions.
e. Training and support requirement: This Agreement requires Borrower’s mandatory participation in training provided by Tobii Dynavox trainers or representatives during the Loan Period. These training sessions are essential for the proper use and maintenance of the Loaned Equipment. If for any reason the training sessions cannot be conducted, Tobii Dynavox reserves the right to seek modification to the terms of this Agreement. Visits from Tobii Dynavox trainers or representatives are optional.
[1] These provisions may be subject to change in writing by Tobii Dynavox.
2. Title
Tobii Dynavox is the owner of the Loaned Equipment. Title to the Loaned Equipment shall at all times remain with Tobii Dynavox.
3. Risk of loss
Upon delivery and continuing until such time as the Loaned Equipment is properly returned to Tobii Dynavox’s designated facility, Borrower bears all risk of loss to the Loaned Equipment, excluding only normal wear and tear, which shall be decided solely by Tobii Dynavox. In the event of any loss or damage to the Loaned Equipment while in Borrower’s custody or control, Borrower shall immediately notify Tobii Dynavox, and shall be liable to Tobii Dyanvox for the cost of repair (or, fair market value of the Loaned Equipment, if repair is not deemed appropriate in Tobii Dynavox’s sole discretion).
4. Shipment
Tobii Dynavox will cover both the outbound shipment and return shipment expenses. Additionally, the Borrower must facilitate standard packaging and drop-off for the return of the Loaned Equipment, as per instructions provided by Tobii Dynavox.
5. Permitted Use
Borrower agrees to (a) use the Loaned Equipment solely for his/her personal evaluation and use, and to not permit or allow any third-party to use the Loaned Equipment (except that assistance with the device may be provided by Borrower’s designated caregiver(s), if applicable); (b) operate the Loaned Equipment in accordance with all operating instructions, safety recommendations, and for the purpose for which the Loaned Equipment was designed and intended; (c) handle and store the Loaned Equipment with due care such that it is maintained at all times in good working order; (d) not make any modifications or alterations to the Loaned Equipment (including any embedded software) without Tobii Dynavox’s prior written consent; (e) not remove any labels, symbols, part numbers, serial numbers, trademarks, trade names, logos, patent or copyright notices or makings affixed to the Loaned Equipment; (f) not sell, pledge, mortgage, encumber, or otherwise dispose of the Loaned Equipment (or any portion thereof).
6. Insurance
Borrower shall maintain insurance sufficient to cover his/her obligations under this Agreement. Any insurance proceeds shall, at Tobii Dynavox’s election, be applied towards repair or replacement, or paid in cash to Tobii Dynavox. Upon request, Borrower agrees to provide Tobii Dynavox with evidence of insurance via a certificate or other documentation acceptable to Tobii Dynavox.
7. Indemnification
Borrower agrees to indemnify, defend and hold Tobii Dynavox harmless from any and all damages, losses, claims, causes of action, expenses and liability of any nature whatsoever associated with the Loaned Equipment while it is under the care, custody, and control of Borrower or at any time during the Loan Period.
8. Disclaimer
LOANED EQUIPMENT IS PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, INCLUDING BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITING THE FOREGOING, TOBII DYNAVOX DOES NOT WARRANT THAT LOANED EQUIPMENT WILL BE UNINTERRUPTED, ERROR-FREE, OR ACCOMPLISH ANY PARTICULAR RESULT. TOBII DYNAVOX ALSO MAKES NO CLAIM WHATSOEVER THAT THE LOANED EQUIPMENT IS SUITABLE FOR THE BORROWER’S NEEDS.
9. Repair & Replacement of Loaned Equipment
Tobii Dynavox assumes no responsibility whatsoever with regard to defects or inadequate performance of the Loaned Equipment. As such, Tobii Dynavox offers no repairs or replacement of defective Loaned Equipment.
10. Confidential Information
“Confidential Information” means all information and materials which (i) are not generally known to the public or within the industry; (ii) are acquired or learned by the Borrower as a result of and during the Borrower’s engagement with Tobii Dynavox; and (iii) are proprietary to or treated as confidential by Tobii Dynavox or any of Tobii Dynavox’s Affiliates. Confidential Information includes, but is not limited to, all Intellectual Property, customer lists, license agreement terms and conditions, products, product specifications, market analysis, processes, know-how, technologies, confidential or secret designs, formulae, ideas, methods, proposals, procedures, machinery, apparatus, prices, discounts, manufacturing costs and techniques, technical data, business plans and financial data or results, and anything else Tobii Dynavox considers proprietary and confidential. [“Affiliates” means any entity that controls, is controlled by, or is under common control or ownership with Tobii Dynavox.] The Borrower acknowledges that during the course of the Borrowers’ engagement hereunder, the Borrower may be exposed to Confidential Information of Tobii Dynavox and its customers, clients, and third parties. The Borrower agrees to maintain the confidentiality of all such confidential Information and not to disclose or use any Confidential Information whatsoever. The Borrower’s obligation to maintain the confidentiality of any Confidential Information pursuant to this clause shall survive the expiration or termination of this Agreement.
11. Data Protection
Tobii Dynavox, as the data controller, may process personal data on behalf of the Borrower solely for the purpose of fulfilling obligations under this Agreement, including providing support services and maintaining records related to the Loaned Equipment. The Borrower, as the data processor, shall ensure that Tobii Dynavox’s instructions regarding the processing of personal data are followed and implement appropriate security measures to protect the data from unauthorized access, disclosure, alteration, or destruction. Upon termination, Tobii Dynavox shall securely delete or return all personal data, unless retention is required by law or otherwise agreed upon by both parties.
12. Intellectual Property
Tobii Dynavox (and Tobii Dynavox’s licensors, as the case may be) retains all rights, title and interest in patent, copyright, trademark, trade secret and other intellectual property rights (“Intellectual Property Rights”), existing prior, during and after expiration of this Agreement, including Intellectual Property Rights in the Loaned Equipment and any embedded software or accompanying documentation, or associated therewith or derived therefrom.
13. Compliance
The Borrower agrees to comply with all laws and regulations applicable to the use and transportation of the Loaned Equipment.
14. Termination
Either Party may terminate this Agreement with or without cause by written notice to the other Party. Upon termination, Borrower must immediately return the Loaned Equipment as well as any associated packaging, cords, chargers, documents, manuals, and anything provided to Borrow by Tobii Dynavox pursuant to this Agreement, to the address specified below (Duties on Termination).
If the Borrower is an organization or commercial entity they shall without prejudice to any express provisions for termination contained herein, this Agreement may be terminated immediately (i) in case of the Borrower’s breach of the Agreement, (ii) if any other relationship, e.g. any distribution agreement, has expired or been breached by the Borrower, (iii) if the legal structure or ownership of the Borrowers has changed, or (iv) if the Borrower enters into liquidation, becomes insolvent, enters into composition, corporate reorganization proceedings or enters into receivership or any other similar event.
15. Duties on Termination
In the event of termination of this Agreement, both Parties shall adhere to specified duties to facilitate a smooth and organized transition of the Loaned Equipment back to Tobii Dynavox. The Borrower is obligated to promptly return all loaned equipment to the Company, in the same condition as received, reasonable wear and tear excepted. The Borrower shall ensure that all accessories, manuals, and accompanying materials are returned with the Loaned Equipment and shall complete a formal device (iOS, Windows etc.) log-out and account reset process ahead of the return.
Additionally, the Borrower is responsible for the costs associated with the return of the equipment to the Company, including packaging and shipping expenses. The Company upon receiving the returned Loaned Equipment, will conduct a thorough inspection to verify its condition and completeness. Any damages beyond normal wear and tear shall be documented, and the Borrower may be held responsible for the repair or replacement costs, as outlined in this Agreement. Should the Loaned Equipment not be returned within a 30-day period, the Company reserves the right to invoice the Borrower for the full value of the Loaned Equipment, and Borrower agrees to pay said invoice. Both Parties agree to cooperate in good faith to conclude the termination process efficiently and in compliance with the terms stipulated in this Agreement.
16. Miscellaneous
a. Relationship of the Parties.
The Parties are independent contractors. Under no circumstances shall this Agreement be construed as one of agency, partnership, joint venture or employment. Neither Party has the authority to bind the other or incur obligations on the other Party’s behalf.
b. Governing Law and Forum.
This Agreement will be interpreted and construed in accordance with the laws of Sweden, without regard to conflict of law principles. All disputes, controversies and differences between the Parties arising out of or relating to this Agreement shall be settled amicably through negotiations in good faith. If a dispute cannot be settled amicably, the dispute shall be finally settled by the Arbitration Institute of the Stockholm Chamber of Commerce. The arbitration shall be conducted in Stockholm, Sweden in accordance with the rules of the Arbitration Institute of the Stockholm Chamber of Commerce. The arbitral award shall be final and binding upon both Parties.
c. Force Majeure.
Neither Party will be liable for any failure or delay in the performance of its obligations on account of strikes, shortages, riots, fire, flood, storm, earthquake, acts of God, hostilities, or any other cause beyond its reasonable control.
d. Severability and Waiver.
In the event one or more provisions (or a portion thereof) herein shall be held by a court of competent jurisdiction to be invalid, illegal, or unenforceable in any respect, such provision (or any portion thereof) will be enforced to the extent consistent with the stated intention of the Parties, or, if incapable of such enforcement, will be deemed severed and deleted, while the remainder of this Agreement continues in full force and effect. Tobii Dynavox’s failure to enforce, or Tobii Dynavox’s waiver of any default or breach, will not constitute a waiver of any other or subsequent default or breach.
e. Survival.
Termination of this Agreement shall not affect the operation of those provisions herein that, by their terms, survive or are required to effectuate the Parties’ intent as reflected by this Agreement.
f. Assignment.
Borrower may not assign this Agreement without Tobii Dynavox’s prior written consent. Any purported assignment in violation of this Agreement shall be null and void. Notwithstanding, Tobii Dynavox may assign this Agreement to any of its legal affiliates, TD Partners, or any entity in connection with a reorganization, merger, consolidation, acquisition, or similar transaction, in order to best fulfill its obligations.
