2.            PRODUCTS AND SERVICES
2.1.        Subject to the terms and conditions of this Agreement, HoloCare shall provide to the Customer the "Product”, which shall mean HoloCare Studio 2 and related services. The Product consists of the necessary hardware and software, for Customer to use the the Product under the existing CE/UKCA mark intended use. The Product will be licensed to the Customer during the Agreement term.
2.2.        The Product shall be used by Intended Users only. “Intended Users” shall mean the Customer’s relevant pre-approved employees, who are the Product’s intended users and who, after receiving the appropriate training, are eligible to use the Product according to its intended use.
2.3.        The activities and deliverables in scope of this Agreement is divided into three categories; (i) the establishment phase, (ii) the operational phase, and (iii) additional services, further described below:
2.3.1.    The establishment phase: The establishment phase is comprised of the activities and deliverables required to install the Product at the Customer site and prepare it for intended use. The activities and deliverables are specified below:
2.3.1.1.                HoloCare shall deliver the Product to the Customer, including necessary hardware components and access to software components for Intended Users.
2.3.1.2.                HoloCare shall deliver appropriate training of the Intended Users.
2.3.1.3.                The Parties will agree on timelines following the commencement of this Agreement. Unless specifically agreed otherwise, all timelines stated by HoloCare are estimates only.
2.3.2.    The operational phase: The operational phase refers to the time period where the Customer can use the Product according to its intended use, as set forth in Appendix A.  This phase begins when the activities and deliverables of the establishment phase are completed, and lasts until this Agreement is terminated.
2.3.3.    The scope and fee for the additional service(s) shall be mutually agreed before work commences.
2.4.        Customer support
2.4.1.    Support requests can be submitted in one of two ways: Either (i) via e-mail to support@holocare.com or (ii) via telephone call to +47 22 90 10 00
2.4.2.    HoloCare’s support is available between 8:00 – 18:00 CET (business hours) Monday to Friday (business days). The availability of HoloCare’s support adheres to HoloCare’s internal procedures and can be subject to change.
2.4.3.    Response times to e-mails and telephone calls are guaranteed within 1 business day (10 business hours).
2.4.4.    Incidents and errors are handled on a best effort basis.
2.4.5.    All customer support communication shall be conducted in English.
3.            CUSTOMER’S COMMITMENTS
3.1.        The Customer agrees and understands that the Product shall only be used by its Intended Users, and in accordance with its intended use and Instructions for Use (IFU) from HoloCare. Furthermore, the Customer will:
3.1.1.    Make the Intended Users available to undergo appropriate training delivered by HoloCare prior to using the Product;
3.1.2.    Ensure, and be responsible for, that all Intended Users use the Product in line with the terms and conditions of this Agreement;
3.1.3.    Comply with the system requirements for the Product;
3.1.4.    Proactively assist HoloCare to resolve any requests for support or other technical issues.
3.1.5.    Treat, store and use any hardware component (such as the HoloLens) with due care and diligence and in accordance with instructions from HoloCare and the hardware’s original manufacturer.
3.1.6.    Upon termination by either Party, return to HoloCare any hardware is legally owned by HoloCare in the same manner they were provided, except for such impairment expected by normal wear and tear.
3.2.        The Product shall not be used for primary diagnosis. The Product shall not under any circumstances be used as a replacement to other equipment or procedures, or otherwise replace any processes or activities the Customer already performs to prepare for surgery.
3.3.        The Customer assumes all risks for the use of the Product and any results thereof, and must take necessary precautions when using the Product. This includes, but is not limited to having  back-up plans in place in case of downtime or in case the Product does not work as intended.
3.4.        The Customer shall promptly report to HoloCarein writing any incident that directly or indirectly led, might have led, or might lead to the death or serious deterioration in the health of a patient, user, or other person (“Serious Incident”) involving the Product. The report shall include detailed information about the Serious Incident, including the circumstances of the incident and the outcome. HoloCare provide the Customer with adequate information and training, as necessary, to assist the Customerin identifying and reporting Serious incidents as required by this provision.
4.            PRICE AND PAYMENT TERMS
4.1.        Pricing and remuneration terms are agreed separately.
4.2.        Any fees not paid at the agreed time shall be subject to late payment interests in accordance with the Norwegian Interest Act. 
4.3.        The Customer is in no event allowed to withhold any payments.
4.4.        In the event of delayed or default payment for the Product, HoloCare reserves the right to move the case to debt collection and use a third party debt collector’s services. Additional fines or interest rates may apply to the Customer’s payment.
 
5.            INTELLECTUAL PROPERTY
5.1.        HoloCare grants to the Customer a non-exclusive, non-transferable, royalty-free, worldwide, limited, and revokable license to use the Products, solely for purposes of fulfillment of this Agreement, during the Agreement term and in accordance with the terms and conditions of this Agreement.
5.2.        HoloCare is the exclusive owner of and retains all rights, titles and interests in and to the Product and any further development, improvements or changes of it, both to its hardware and software parts, and all modifications, enhancements, upgrades, and updates thereto, and additionally the Product or rights developed from the activities performed under this Agreement, including any feedback from the Customer, regardless if incorporated or not to the Product, and to HoloCare trade names, trademarks, logos, domain names, copyrights, source code, object code, inventions, patents, utility models, know how, trade secrets, data, user data and confidential information and all intellectual property rights (including rights of use and exploitation) therein and thereto (the foregoing collectively the “HoloCare IP”).  To the extent Customer acquires any right, title, or interest in any HoloCare IP, Customer hereby assigns all such right, title, and interest to HoloCare. HoloCare herey accepts such assignment. To the extent that an assignment of Customer’s rights in any HoloCare IP is not possible under applicable law, Customer hereby grants to HoloCare an irrevocable, perpetual, worldwide, exclusive, transferable, sublicensable through multiple tiers of sublicensees, fully paid-up, royalty-free, and unrestricted license and right to use such HoloCare IP in any media now known or hereafter developed and for any purpose whatsoever, in each case without any additional consent of Customer required. HoloCare herby accepts such license. Customer shall procure that each of its employees and Intended Users (a) assigns any right, title and interest it may acquire in and to the HoloCare IP to Customer to enable Customer to fulfill its obligation pursuant to the immediately preceding sentence, and (b) to waive and agree never to assert any moral rights against HoloCare and its affiliates and its and their suppliers, customers and succesors in right.
5.3.        Except as provided in this Agreement, neither Party shall acquire any rights in the foregoing and neither Party shall copy, transmit, transfer, modify, or create derivative works of the other Party’s existing intellectual property, nor permit or authorize any third-party to do any of the foregoing. There are no implied licenses under this Agreement.
5.4.        Each Party will promptly inform the other if it becomes aware of any infringement or alleged infringement of any third-party rights by use or further development of the Product.
6.            CONFIDENTIALITY
6.1.        Each Party shall keep and procure to be kept secret and confidential all all information regarding the other Party’s technology, products, or business, including trade secrets and secret know-how, that the other Party discloses or makes available to such Party as a result of the relationship of the Parties under this Agreement, in each case, whether in oral, written, graphic, electronic, or other form (“Confidential Information”) and shall not use or disclose the same for any other purpose than the proper performance of this Agreement, the exercise of a Party’s rights or with the express prior consent of the other Party contained herein or otherwise obtained in writing on a case-by-case basis.
6.2.        If the Customer is a public body, the scope of the confidentiality obligation under this provision shall not go beyond that laid down by the Norwegian Act of 10 February 1967 relating to Procedure in Cases concerning the Public Administration (Public Administration Act) or corresponding sector-specific regulations.
6.3.        The confidentiality obligation shall not prevent the disclosure of information if such disclosure is demanded pursuant to laws or regulations, including any disclosure or right of access pursuant to the Norwegian Act of 19 May 2006 relating to the Right of Access to Documents in the Public Administration (Freedom of Information Act). The disclosing Party  shall, if possible, notify the other Party prior to the disclosure of such information and where prior notice is not possible, the disclosing Party shall notify promptly after disclosure, and shall disclose only that portion of the Confidential Information that the disclosing Party is legally required to disclose, and shall disclose it only to those individuals that are legally required and Intended to access such Confidential Information.
6.4.        The obligations of confidentiality and non-use under this Section do not extend to any Confidential Information that:
•              was already known to the receiving Party, other than under an obligation of confidentiality, at the time of disclosure by the other Party;
•              was generally available to the public or otherwise part of the public domain at the time of its disclosure to the other Party;
•              becomes generally available to the public or otherwise part of the public domain after its disclosure and other than through any act or omission of the receiving Party in breach of this Agreement;
•              was disclosed to the receiving Party, other than under an obligation of confidentiality, by a third party who had no obligation to the other Party not to disclose such information; or
•              was independently developed by the receiving Party without the use of or reference to Confidential Information received from the disclosing Party, or to such Party’s Technology or Intellectual Property Rights, as evidenced by the receiving Party’s written records.
6.5.        The confidentiality obligation shall apply to the Parties’ employees, subcontractors and other third parties who act on behalf of the Parties in connection with the implementation of the Agreement. The Parties may only transmit confidential information to such subcontractors and third arties to the extent necessary for the implementation of the Agreement, and provided that they are subjected to a confidentiality obligation corresponding to that stipulated in this Section 6.
6.6.        The confidentiality obligations set forth under this section 6 shall survive expiration or termination of this Agreement for any reason. 
7.            DATA PROCESSING AND SECURITY
7.1.        HoloCare shall handle cyber security and data processing in accordance with applicable law and the at all times relevant procedures of HoloCare. The Customer can at any time request copies of the relevant procedures for review.
7.2.        If HoloCare will process personal data on behalf of the Customer according to the General Data Protection Regulation, the Parties shall enter into a separate data processing agreement.
8.            REPRESENTATIONS
8.1.        Each Party represents to the other:
8.1.1.    It is an entity duly organized, validly existing under the laws of county of its incorporation and Intended and entitled to enter into this Agreement. It has taken all required corporate, statutory and other approvals for enabling it to sign, execute and deliver this Agreement and the person signing this Agreement has been duly Intended to sign, execute and deliver this Agreement and to bind such Party; and
8.1.2.    This Agreement is the legal, valid and binding obligation of each Party, enforceable against each Party, in accordance with its respective terms.
9.            WARRANTY
9.1.        HoloCare warrants that the Product, under normal use and circumstances, will perform substantially in accordance with written description of the Products as provided in Appendix A.
9.2.        Except as the warranty provided in Section 9.1. no other representations and warranties are given by HoloCare to the Customer.
9.3.        HoloCare does not make any representations, warranties or guaranties as to the reliability, timeliness, quality, suitability, truth, availability, accuracy or completeness of the Products or results of the use of the Products. Notwithstanding anything to the contrary in this Agreement, and without in any way limiting the HoloCare’s other disclaimers of warranties, HoloCare does not warrant that the quality or performance of the Products will meet the Customer’s requirements, that it will fit for a particular purpose or that the Customer will be able to achieve any particular results from use of the Products.
9.4.        This disclaimer of warranty section shall apply to the fullest extent permitted by law in the applicable jurisdiction.
10.         BREACH OF CONTRACT
10.1.     A Party may claim damages for the other Party’s breach of the Agreement.
10.2.     If one Party claims that the other Party is in breach of the Agreement, the claiming Party must notify the breaching Party of the claim without undue delay after the breach of contract has been discovered or should have been discovered.
10.3.     In the event of delays, or errors or defects to the Product affecting the Customer's ability to use the Products or significant parts of the Product, HoloCare shall be entitled to, and offer to rectify or correct the delay, error or defect at no additional cost to the Customer within reasonable time. The Customer commits to act in good faith during this time and shall not have any claims, financial or otherwise, if HoloCare rectify or correct the delay, error or defect within reasonable time and to a reasonably acceptable level. If HoloCare is not able to rectify the delay, error or defect according to this clause HoloCare shall at its own discretion offer to give a reasonable price reduction or ship a replacement Product, which shall be the Customer's sole remedy under this Section.
10.4.     In the event of material breach of contract by either Party, the Party claiming a breach may terminate the Agreement with immediate effect after first giving the Party in breach a written notice and a reasonable deadline to rectify the situation.
11.         LIMITATION OF LIABILITY
11.1.     In no event will either Party, its affiliates, employees, agents, representatives, contractors or other third party partners be liable to the other Party or any other person for any indirect, incidental, punitive, special, exemplary or consequential damages arising out of this Agreement, whether based on warranty, contract, tort (including negligence), or any other legal theory; including without limitation damages resulting from lost profits, lost data, loss of business or business interruption or third party claims.
11.2.     The maximum aggregate damages the Customer may claim during the term of the Agreement is limited to an amount equivalent to the fees paid by the Customer to HoloCare during a 12 months period prior to the date of the initial claim.
11.3.     In particular, HoloCare shall not be liable for any potential misuse of the Product outside the scope of this Agreement and the intended use of the Product within existing CE Mark or UKCA Mark, as applicable in the jurisdiction of use, approval as defined in Appendix A. The limitation of liability stated in Section 11.1. does not apply to the benefit of the Customer if  the Customer’s use of the Products contrary to the terms of this Agreement. Customer agrees to indemnify, defend, and hold HoloCare as well as its respective representatives harmless from and against any and all third party liabilities, demands, damages, claims, losses, costs, or expenses, including reasonable attorneys’ fees, (each, a “Claim”) to the extent that a Claim arises out of or results, directly or indirectly, from use of the Products by Customer or any of its Intended Users outside the scope of this Agreement and the intended use of the Product within existing CE Mark or UKCA Mark, as applicable in the jurisdiction of use. 
11.4.     This limitation of liability section will apply to the fullest extent permitted by law.
12.         TERM AND TERMINATION
12.1.     The Agreement shall commence on the Effective Date and remain in force for the an initial period of 12 months (“Initial Period”). Following the Initial Period the Agreement will be automatically renewed for a renewal period of 12 months at the time (“Renewal Period”) unless either Party gives to the other Party a written notice of termination at least 90 days before the end of the Initial Period or each Renewal Period.
12.2.     Upon termination by either Party, the Customer shall return to HoloCare any hardware according to clause 3.1.6 above, and return to HoloCare any Confidential Information as defined in clause 6.
13.         MISCELLANEOUS
13.1.     Force Majeure. Neither Party shall be deemed to be in default of this Agreement if prevented from performing any obligation (other than a financial obligation) hereunder for any reason beyond its control, including but not limited to, war, civil commotion, pandemic, fire, flood or casualty, labor difficulties, shortages of or inability to obtain labor, materials or equipment, governmental regulations or restrictions, or unusually severe weather. In any such case, the Party unable to perform its obligations shall notify the other Party, and the Parties shall negotiate in good faith with the goal of preserving this Agreement and the respective rights and obligations of the Parties hereunder, to the extent reasonably practicable.
13.2.     Assignment. Neither Party may assign, transfer, or delegate any of its rights or obligations under this Agreement without the prior written consent of the other Party. Notwithstanding the foregoing, either Party may assign this Agreement in its entirety, without the consent of the other Party, to an affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets, provided that the assignee agrees in writing to be bound by the terms and conditions of this Agreement.
13.3.     Survival. The provisions of Sections 4 (Intellectual Property), 7 (Confidentiality),  11 (Limitation of liability), 13.4 (Expenses; Taxes) and 13.7 (Governing Law) and shall survive the expiration or termination of this Agreement.
13.4.     Expenses; Taxes.  Except as otherwise specified in this Agreement, each Party will bear its own costs of performance under this Agreement. Each Party shall be liable for all taxes, duties, levies or tariffs or charges of any kind imposed by any federal, state, or local governmental entity.
13.5.     Sub Contractors. HoloCare is entitled to use subcontractors to fulfill parts of the Agreement.
13.6.     Entire Agreement. This Agreement constitutes the entire Agreement and understanding between the Parties with respect to its subject matter and supersedes all prior and contemporaneous Agreements, understandings, and negotiations, whether oral with respect to the same. This Agreement may not be amended or modified except by a written Agreement signed by both Parties.
13.7.     Governing Law. This Agreement shall be interpreted and enforced pursuant to the substantive laws of Norway. Any dispute arising out of it shall be subject to the sole jurisdiction of the courts of Norway, with Oslo City Court being the exclusive court of first instance.
13.8.     [Language Version. This Agreement has been drawn up in German and English language. In the event of discrepancies between the language versions, the English version shall prevail.]