1. Definitions

“Customer Data” has the meaning described in clause 4.1. 

“Effective Date” means the date on which this EULA is concluded, i.e. the date of acceptance of the terms and conditions of this EULA by Customer.  

"Hallucination" is an output generated by MIA that does not correlate with the input data or the expected outcome, based on the underlying AI’s learning model. This may manifest in the form of anomalies, unexpected associations or output that is untrue, incomplete and/or inappropriate in the context of the provided data. 

“Initial Term” has the meaning described in clause 11.2.  

“MIA” stands for “Medical Interactive Assistant” and means software that is made available to Customer as part of the Software, that is based on Licensor’s proprietary code as well as third-party code and which Customer can interact with in natural language.  

“Product” has the meaning set out in clause 2.1.

“Purpose” has the meaning set out in clause 2.1. 

“Software” means the VitalMedix software, all and any variants thereof, which Customer can access in the form of a SaaS platform, a smartphone application and an application to be installed on the Wearable.  

“Subscription” means the agreement on a paid license concluded by the Parties upon the procedure lined out in clause 10.2.   

“Subscription Term” means the term of the Subscription. 

“Trial Period” has the meaning set out in clause 11.1. 

“Wearable” means a smartwatch or a similar device, including online and voice connectivity, which, besides other functions, through its sensors in combination with the Software is gathering biometric data of Customer and carries out various types of communication for the Purpose. 

2. Subject Matter & License

2.1 The product consists of the Wearable and of the Software, including a voice frontend enabling Customer to interact with MIA and various backend software systems through which MIA is being developed, customized, trained, operated and managed (“Product”). The purpose of the Product is to document, calculate, visualize, transmit or otherwise process Customer Data in support of Customer’s health, including but not limited to motivating Customer in respect of his pursuit of health-related goals, providing health-related guidance and notifying third parties in case of emergency (“Purpose”). The Product is the result of a hybrid technological approach that combines Licensor's proprietary AI technology with an advanced Large Language Model (LLM). Embedding the LLM into Licensor's AI technology serves to provide comparatively robust and accurate information tailored to serve the Purpose.

2.2 Licensor grants Customer a worldwide, non-exclusive, non-transferable, non-sublicensable license to download, install and use the Software in line with the restrictions set out in clause 3 during the Trial Period and the Subscription Term respectively. 

2.3 Customer acknowledges and agrees that the LLM underlying MIA is an integral component of Licensor's service offering. Any LLM employed by Licensor is a sophisticated artificial intelligence system that has been trained on a diverse set of data sources to understand and generate human-like language. 

2.4 Customer hereby expressly acknowledges and agrees that the general terms, conditions and policies of the LLM underlying MIA ("LLM TCP", available on www.holomedix.ai/policies) are an integral part of this EULA. Customer affirms his understanding that the LLM TCP are incorporated by reference into this EULA and agrees to comply with and be bound by the LLM TCP in their entirety as applicable. Customer acknowledges that the LLM TCP may contain provisions that are specific to the use, licensing, limitation of liability, confidentiality, data protection, and intellectual property rights related to the LLM. Customer hereby consents to honor and abide by such provisions as if they are fully set forth herein.

2.5 Customer undertakes to familiarize himself with the LLM TCP prior to using the Software and confirms that he will adhere to the stipulations set forth therein as applicable. Customer further agrees that any use of the Software signifies its unconditional acceptance of the LLM TCP.

3. Restrictions regarding the Software and MIA

3.1 Except as expressly authorized by Licensor, Customer will not and will not permit others to:  

 

• distribute, sell or sublicense the Software to any third party; 

• use the Software on behalf of, or provide it to, third parties;  

• use the Software to develop a similar or competing product or service; 

• scrape, data mine, reverse engineer, decompile, disassemble or seek to access the source code or non-public APIs to or from the Software, except to the extent expressly permitted by law (and then only upon prior notice to Licensor); 

• modify or create derivative works of the Software or copy the Software or any element thereof (other than permitted by law or required for the download, installation and/or use of the Software); 

• remove or obscure any proprietary notices in the Software or otherwise misrepresent the source of ownership of the Software;  

• publish benchmarks or performance information about the Software or facilitate third parties to compile benchmarks or performance measurements with respect to the Software;  

• interfere with the offering of and operation of the Software by Licensor;  

• circumvent the Software’s access restrictions or conduct any security or vulnerability tests of the Software;  

• transmit any viruses or other harmful materials to the Software;  

• allow individuals to share login credentials;  

• engage in any fraudulent, misleading, illegal or unethical activities using or related to the Software; or  

• use the Software to store, transmit or create any illegal material or content.  

 

3.2 Customer will not and will not permit others to:   

 

• use MIA and/or the LLM in a manner that infringes, misappropriates or otherwise violates any third party’s rights;  

• share with MIA including the LLM any personal information of persons under 16 or allow minors to use MIA including the LLM without consent from their parent or guardian;  

• reverse assemble, reverse compile, decompile, translate, engage in model extraction or stealing attacks or otherwise attempt to discover the source code or underlying components of MIA and/or the LLM, algorithms and systems of MIA and/or the LLM (except to the extent these restrictions are contrary to applicable law); or 

• use output of MIA including the LLM based to develop any artificial intelligence models that compete with MIA and/or the LLM. 

4. Customer Data & Security

4.1 Customer grants Licensor the non-exclusive, worldwide, limited right to use, copy, store, transmit, and display the data provided by Customer when using the Product or gathered by the Wearable’s sensors (“Customer Data”) as far as is required for Licensor to provide the Product.

4.2 Licensor may use Customer Data in order to operate, improve, analyze and support the Product and for other lawful business purposes, provided such data does not constitute personal data.

4.3 Licensor uses reasonable technical and organizational measures designed to protect the Product as well as any Customer Data it receives. Licensor will maintain commercially reasonable standards and controls designed to detect and prevent any exposure of the Software to viruses, malware, Trojan horses, and any other code intended to do harm. 

5. Product Maintenance & Support

5.1 Licensor from time to time may update the Software and it will make the latest version of the Software available to Customer. Licensor, however, is under no obligation to update the Software.

5.2 In case of an update release, the relevant information will be provided on the Licensor’s website. Where applicable, downloads will be made available on the same website or in the relevant app stores. Customer is free to download, install and use the update subject to the same terms as is the Software.

5.3 If Customer does not or does not properly install the update, Customer accepts any deviations from the Product as agreed on in this EULA, including its lack of availability, if such deviations are attributable to the lack of the update and Licensor has made available the update to Customer, including any proper installation instructions.

5.4 Licensor is committed to ensuring that the Software operates as intended and it will offer support to address and resolve any issues specifically related to the Software. The scope of support provided by the Licensor includes troubleshooting problems encountered during the normal operation of the Software and providing updates and patches for the Software to correct errors and maintain compatibility with operating systems or third-party applications.

5.5 Licensor’s obligation to provide support is limited to the Software and does not extend to the Wearable and any third-party applications or systems not directly related to the Software. 

6. AI Transparency

6.1 Besides its effective support of Customer, MIA shall provide to Customer a high level of AI transparency. To this end, MIA is designed to (i) inform Customer in a comprehensible manner by its very design and, as far as necessary, explicitly that its functioning, in particular its output creation, is based on an AI system and (ii), as far as technically feasible, mark any output in a machine-readable format and detectable as artificially generated.

6.2 Customer commits to not remove, modify or otherwise interfere with the appearance, display of information or any other measure taken by Licensor to ensure a high level of AI transparency. Customer passes on the same obligation to any third party to which access to MIA’s output is granted.

6.3 To further increase AI transparency, Licensor seeks to make available, where possible, information on the functioning and training of the AI system(s) on which MIA is based on its website.

7. Intellectual Property

7.1 Neither Party grants the other Party any rights or licenses not expressly set out in this EULA. Except for Licensor’ use rights, Customer retains all intellectual property and other rights in the Customer Data. Except for Customer’s use rights in the Software pursuant to clause 2.2, Licensor and any owner of third-party software integrated into the Software retain all intellectual property and other rights in the Software, including the applied LLM.

7.2 Licensor may use registered or unregistered signs, trademarks or designs owned or licensed by Licensor in relation to the Product. Customer agrees not to interfere with any such rights, e.g. by use of any such signs, trademarks or designs other than for the Purpose without Licensor’ prior written consent.

8. Infringement of Intellectual Property Rights of Third Parties

8.1 Licensor shall not be liable for any intellectual property infringement that may occur as a result of Customer's use of the Product. This exclusion of liability extends to all forms of intellectual property infringement that may arise from the generative capabilities of MIA.

8.2 Customer acknowledges that MIA operates on the basis of complex algorithms and processes data in a manner that can lead to the creation of outputs that are unpredictable and may inadvertently infringe, resemble or replicate the intellectual property of third parties.

8.3 Customer acknowledges that Licensor does not have control over the specific inputs provided by Customer or the particular manner in which Customer uses the outputs generated by MIA. Consequently, Licensor cannot foresee or prevent potential intellectual property infringements that may result from Customer's actions.

8.4 Customer agrees to assume full responsibility for ensuring that the use of the Product does not infringe the intellectual property rights of third parties. This includes conducting due diligence

• on the Customer Data; and 

• on MIA’s outputs to identify and rectify any potential IP infringement before using such outputs. 

 8.5 In case of a notification of Customer about an intellectual property infringement by Licensor or a third party, Customer undertakes to stop the conduct that resulted in the intellectual property infringement immediately and to confirm his respective activities vis-á-vis Licensor in writing. 

8.6 In the event that Customer becomes aware of any potential intellectual property infringement resulting from the use of the Product, Customer agrees to cease such use immediately and to inform Licensor without undue delay. 

9. Liability

9.1 Customer hereby acknowledges and agrees that MIA operates on the basis of complex algorithms and processes data through sophisticated computational methods. While Licensor seeks to employ AI in a way that minimizes the risk of incorrect or inappropriate output, in particular of false medical advice, the nature of these algorithms and processes is such that they can produce outputs that are inherently unpredictable.

9.2 Licensor shall not be held liable for any unpredicted outputs generated by MIA, including but not limited to any Hallucination. Customer accepts that the use of MIA and any reliance on its outputs are at Customer's own risk. Licensor makes no warranty, express or implied, that MIA’s outputs are accurate, complete, reliable, or suitable for Customer. Customer, in particular, acknowledges that the Product can in no way replace examination and/or advice by a medical doctor or any other medical specialist as well as emergency calls (e.g., under 112 in Germany).

9.3 Customer further agrees that Licensor shall not be responsible for any consequences, whether direct or indirect, arising from the use of MIA’s outputs. This includes, but is not limited to, any decisions made or actions taken by Customer in reliance upon such outputs.

9.4 Subject to clause 8, Customer shall be liable without limitation for damages caused intentionally or by gross negligence, as well as for culpable injury to life, body, or health.

9.5 Notwithstanding the cases of unlimited liability set forth, the Parties shall be liable to each other for breaches of contractual obligations due to slight negligence only if such breaches pertain to the fundamental duties which are essential for the proper execution of the contract and on which the other Party may reasonably rely. Such duties are those whose fulfillment makes the proper execution of the contract possible in the first place and whose violation endangers the achievement of the purpose of the contract. However, this liability is limited to the foreseeable, contract-typical damages that were identifiable at the time of the conclusion of the contract.

9.6 The provisions of this clause 9 shall also extend to the benefit of the employees, representatives, and organs of Licensor and Customer (if applicable). 

10. License Fees

10.1 License fees only apply during the Subscription Term.

10.2 Customer may book a Subscription in accordance with the plans (detailing the available types of a Subscription and the applicable license fees) offered by Licensor on its website https://www.holomedix.ai/subscription-plans or via the VitalMedix smartphone app. Upon any such booking, if approved by Licensor, Licensor in due time sends to Customer a confirmation email upon which the Subscription begins to apply (if not stated otherwise by the Parties). If, however, the booking is made during the Trial Period, the Subscription shall begin on the first day after the end of the Trial Period.  

11. Term and Termination

11.1 Upon the Effective Date, Customer shall have the right to test the Software free-of-charge for a trial period of fourteen (14) days (“Trial Period”). If Customer has not booked a Subscription during the Trial Period, access to the Software expires at the end of the Trial Period and the Software will seize to be available to Customer by the end of that period. The Customer’s right of withdrawal www.holomedix.ai/withdrawalpolicy from this contract remains unaffected.

11.2 Any Subscription shall remain in force for a period of twelve (12) months starting on the day following the Trial Period (“Initial Term”). Thereafter, the Subscription continues to be in effect if not terminated by either Party in accordance with clauses 11.3 or 11.4.

11.3 The Parties may terminate the Subscription with effect to the end of the Initial Term or later by providing notice of at least thirty (30) days to the other Party.

11.4 Notwithstanding the above, Licensor retains the right to terminate the EULA without notice for a material reason. A material reason shall exist in particular, but not exclusively, where: 

• Customer is in breach of any material obligation under clauses 2, 3, 7 and 8; 

• Customer fails to pay any undisputed license fees within fourteen (14) days of receiving a notice of non-payment; or 

• Customer's actions are risking harm to other customers or to the security, integrity or availability of the Software. 

11.5 Any termination, whether ordinary or extraordinary, must be made in writing to be effective. 

12. Data Protection

12.1 Both Parties shall adhere to the applicable data protection laws relevant to each Party. It is imperative that all activities conducted under this EULA are in strict compliance with such legal requirements to ensure the protection of personal and sensitive data.

12.2 As far as Customer Data contains any personal data, the personal data shall only be processed in accordance with the VitalMedix Data Protection Declaration www.holomedix.ai/dataprotection 

13. Confidentiality

13.1 The Parties commit to maintaining the confidentiality of all confidential information, including trade secrets, acquired in relation to this agreement and its execution. Both Customer and Licensor shall not disclose, disseminate, or otherwise utilize such confidential information to any third parties.

13.2 Confidential information pertains to any data and information that is explicitly marked as confidential or whose confidential nature is apparent based on the circumstances of disclosure, regardless of whether it is communicated in written, electronic, tangible or oral form.

13.3 The obligation to maintain confidentiality does not apply where Customer and Licensor are legally compelled to disclose the confidential information by law, or by a final and binding administrative or court order.

13.4 Any form of reverse engineering or any attempt to reverse engineer the Software is forbidden. As far as applicable, each Party shall ensure that all its employees are bound by confidentiality obligations that are substantially similar to those set out in this section.

14. Miscellaneous

14.1 This EULA shall be subject to the laws of the Federal Republic of Germany and it shall be interpreted in line with those laws. The application of the United Nations Convention on Contracts for the International Sale of Goods dated April 11, 1980 is excluded. The place of performance of providing the Product is Berlin.

14.2 All disputes arising out of or in connection with the EULA, including any question regarding its existence, validity or termination, shall be subject to the exclusive jurisdiction of the District Court of Berlin II (Landgericht Berlin II).

14.3 This EULA sets out the Parties’ entire agreement regarding the Subject Matter; it supersedes any and all prior and contemporaneous agreements, promises, assurances and understandings between the Parties (whether written or oral) regarding the Product. In the event of any conflict among the terms of this EULA and a later agreement on a Subscription concluded between the Parties pursuant to clause 10.2, the latter shall take precedence over the EULA.

14.4 To be effective, any amendment or supplement to this EULA must be in written form.

14.5 Neither Party may assign this EULA, delegate its obligations or assign its rights hereunder without the prior written consent of the other party which, however, will not be unreasonably withheld. This applies except if Licensor assigns this EULA, delegates its obligations or assigns its rights hereunder in connection with a merger, reorganization, acquisition or other transfer of all or substantially all its assets or voting securities, with reasonable prior notice to the other Party; any other non-permitted assignment is void. This EULA will bind and inure to the benefit of each Party’s permitted successors and assigns.

14.6 Neither Licensor nor Customer is liable for any delay or failure to perform any obligation under this EULA (except for a failure to pay fees which shall still be due and payable but may be deferred until payment of fees is possible following the resolution of the force majeure event) due to force majeure, i.e. events beyond its reasonable control, such as a strike, blockade, war, act of terrorism, riot, internet or utility failures, refusal of government license or natural disaster.

14.7 If a term or condition of this EULA shall become ineffective or void, the effectiveness of the remaining provisions of this EULA shall not be affected. The ineffective or void term or condition shall be replaced with the legally permitted term or condition that comes closest to the economic and contractual intention of the Parties as was reflected in the original provision.