Rest Assure Terms and Conditions - Copy

SomnoMed Rest Assure HCP Portal - Terms and Conditions of Use

Version 1.
Last updated: October 2023
1. Acceptance of the Terms
2. Definitions
3. Privacy
4. License to access and use SomnoMed HCP Portal
5. Term
6. Patient Information
6. Equipment and Software Requirements
7. Access
8. Customer Responsibility
9. Prohibited Locations for Use
10. SomnoMed Responsibility
11. Benefits
12. Use and Archival of Data
13. Warranty Disclaimer
14. Limitation of Liability
15. Intellectual Property Rights and Confidential Information
16. Indemnity
17. Relationship of the Parties
18. Governing Law
19. Dispute Resolution
20. Notices
21. Assignment
22. Severability
23. Modification of Terms
24. Waiver and Entire Agreement
25. Force Majeure
Exhibit A – For Customers in Canada

1. Acceptance of the Terms
PLEASE READ SOMNOMED’S REST ASSURE HCP PORTAL TERMS AND CONDITIONS OF USE CAREFULLY BEFORE USING THE REST ASSURE PORTAL. BY CHECKING THE “I ACCEPT THE TERMS AND CONDITIONS” BOX YOU AGREE TO BE BOUND BY AND BE SUBJECT TO:
These Terms of Use, including its Exhibits (“Terms”)
Legal Disclaimer
Intellectual Property

IF YOU DO NOT AGREE, DO NOT USE THE REST ASSURE HCP PORTAL AND CONTACT SOMNOMED CUSTOMER
SUPPORT: infousa@somnomed.com (Americas); representative.eu@somnomed.com (Europe, Middle East and Africa); contactaus@somnomed.com (APAC) TO REMOVE ACCESS TO THE REST ASSURE SYSTEM.
In these Terms “we,” “our,” “us” and “SomnoMed” refer to:
SomnoMed Ltd, Level 3, 20 Clarke St, Crows Nest, NSW 2065, Australia.

All expressions used in these Terms beginning with a capital letter have the meaning given to them in Section 2 Definitions of this Terms.

These Terms are between SomnoMed and you (“you” or “Customer”). You acknowledge and agree that:
(i) you accept these Terms on behalf of the entity for which you are authorized to act (e.g., an employer) and acknowledge that such entity is legally bound by these Terms (and you agree to act in a manner consistent with these Terms) or, if you are not authorized to act on behalf of such entity, then you accept these Terms either as an Authorized User of such entity or on behalf of yourself (where no such entity exists) as an individual and acknowledge that you are legally bound by these Terms; and
(ii) you represent and warrant that you have the right, power and authority to act on behalf of and bind such entity (if any) or yourself.

2. Definitions
“Authorized User” means your employees and/or contractors and the employees and/or contractors of your affiliated companies (where you are a legal entity duly incorporated in accordance with the laws of the Territory).

“Customer Data” means Personal Data relating to you or your Authorized Users entered by you or your Authorized Users into the SomnoMed HCP Portal.
“Data Protection Laws” means, to the extent applicable but not limited to, the European Data Protection Laws, UK Data Protection Laws and, to the extent applicable, the data protection or privacy laws of any other country. European Data Protection Laws means the EU General Data Protection Regulation 2016/679 of the European Parliament and of the Council (“GDPR”); and laws implementing or supplementing the GDPR. “UK Data Protection Laws means all laws relating to data protection, the processing of Personal Data, privacy and/or electronic communications in force from time to time in the UK, including the UK GDPR and the Data Protection Act 2018.

“Patient Controlled Data” means any information and/or Personal Data provided by the individual patient in connection with the Services provided by SomnoMed to you and where the patient may exercise his/her individual legal rights to control his/her Personal Data as per applicable Data Protection Laws. Patient controlled data includes Device and Patient Data.

“De-Identified Data” means processed and/or unprocessed data that cannot reasonably identify an individual or be capable of being associated with a particular individual, or, where permitted under applicable law, has been determined to present a very small risk that the information could be used, alone or in combination with other reasonably available information, to identify an individual who is a subject of the information.

“Device(s)” includes Rest Assure oral devices that transmit data to the Rest Assure cloud servers. Terms and conditions for SomnoMed Devices are covered under a separate document.

“Device Data” means the data which is transmitted by a Device to the Rest Assure cloud servers. “EEA” means the European Economic Area.
“Effective Date” will be the date on which you first agree to these Terms.

“HCP” means Health Care Professional and refers to all paid and unpaid persons serving in healthcare settings who have the potential for direct or indirect exposure to patients.

“Intellectual Property Rights” means all inventions (whether patentable or not), patents, utility models, designs (both registered and unregistered), copyright, database rights, trade and service marks (both registered and unregistered) together with all applications for, right to the grant of and extensions of the same, and all other intellectual and industrial property including but not limited to similar or analogous rights throughout the world, in each case for the full term of the relevant right.

“Patient Data” means patient Personal Data, such as patient name, date of birth, email address, gender, and personal health data, which corresponds to a particular Device relating to that patient, and which enables SomnoMed to provide the Services to you in relation to that patient and that Device. Patient Data is also deemed to be Sensitive Personal Data. Sensitive Personal Data is a category of Personal Data considered to be especially sensitive and includes medical records and other personal health information (PHI), as defined in and subject to the U.S. Health Insurance and Portability Act of 1996 and special categories of data under applicable Data Protection Law (such as racial or ethnic origin, genetic and biometric data, home life).

“Personal Data” means any information related to an identified or identifiable natural person (Data Subject), as defined under applicable Data Protection Law, Processed in connection with the Services. Personal Data includes Patient, Customer, Controlled and Device Data.

“SomnoMed Databases” means all databases, collections, compilations or works which store and enable SomnoMed to present any of the Device Data, Patient Data and/or Customer Data stored in SomnoMed’s cloud system.

“SomnoMed Rest Assure HCP portal ” means the Services, and the SomnoMed Databases and other infrastructure employed by SomnoMed to provide the Services (including but not limited to SomnoMed systems, websites, applications, and online communication modules).

“Services” include, but are not limited to, access to SomnoMed’s Rest Assure HCP portal. The Services may be modified from time to time to add to, remove or include additional services, and/or functionality, beyond those Services offered today, and those additional services and/or functionality will be governed by these Terms. The Services may require inter alia, access to personal health related (Sensitive Personal Data) and other information, communication, compliance, cloud-based data hosting, retrieval, patient management system, billing-related activities, patient and customer related analytics and online support program offered by SomnoMed.

“Territory” means the country in which you acquire access to the SomnoMed Rest Assure HCP portal. If you acquire access to the Rest Assure Portal in a member country of the EEA or Switzerland, “Territory” means all the countries of the EEA and Switzerland.

3. General Data Privacy Term

SomnoMed Processes Personal Data (including Sensitive Personal Data) in order to provide you with our Services and to the extent required for the performance of these Terms. The Processing of which will be done in accordance with the applicable Data Protection Law and the HCP Privacy Notice. For information on how your Personal Data is Processed when you use the Service, please refer to our HCP Privacy Notice.

Customers in Europe, Middle East and Africa
The servers that host the Rest Assure HCP portal are hosted in a secure data centre located in The Netherlands provided by a third-party HDS Certified Health Hosting Provider.
When you contact us, your request or information is tracked within the European Economic Area and Switzerland and addressed by SomnoMed personnel located in the European Economic Area and Switzerland.
Customers in Asia-Pacific
The servers that host the SomnoMed are hosted in a secure data centre located in Australia provided by a third-party service provider.
When you contact us, personnel may be located at SomnoMed affiliates in the United States, Canada, The Philippines or Australia. In limited circumstances, SomnoMed technical support may access your patients’ data to provide you with technical support and/or troubleshooting of the Rest Assure HCP portal.
Customers in US and Canada
The servers that host the SomnoMed Rest Assure HCP portal are hosted in a secure data centre located inside the United States of America.

4. License to access and use the SomnoMed Rest Assure HCP Portal

SomnoMed grants you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to access and use SomnoMed Rest Assure HCP portal in accordance with these Terms.

5. Term

These Terms will commence on the Effective Date and will remain in effect so long as SomnoMed permits you to access or use the SomnoMed Rest Assure HCP portal and until the Terms are terminated.
SomnoMed may stop providing access to the SomnoMed Rest Assure HCP portal on written notice to you (a “Termination Notice”) if:
(i) providing the SomnoMed Rest Assure HCP portal would create a substantial economic or technical burden or material security risk for us, or if it is necessary for us to do so to comply with the law or requests of governmental entities;
(ii) the use of the SomnoMed Rest Assure HCP portal by you or our provision of any of the Services to you has become impractical or unfeasible for any legal, business or regulatory reason;
(iii) you are in breach or default of any material obligation set out in these Terms (including but not limited to non-payment of any outstanding sums owed to SomnoMed including Service(s) fees, if applicable) and you do not cure that breach/default within fifteen (15) days following written notice from SomnoMed; or
(iv) you become subject to bankruptcy proceedings, become insolvent, make an arrangement with your creditors.
On any termination of these Terms:

I. all your rights under these Terms will terminate within fifteen (15) days from the date of the Termination Notice; and
II. you remain responsible for all fees and charges you have incurred through to the date of termination.

6. Patient Information

Through the SomnoMed Rest Assure HCP portal you may access your Patient Data and corresponding Device Data associated with your patients.

SomnoMed does not, through the Rest Assure HCP portal or its available functions, provide medical advice. SomnoMed Services are intended solely as a resource and informational tool. We are not medical professionals and SomnoMed employees do not discuss or advise on any issues relating to medical treatment or diagnosis. Accordingly, you are responsible for all reliance and clinical decisions based on patient data and information reported on the SomnoMed Rest Assure HCP portal. SomnoMed’s Rest Assure HCP portal is not intended to, and does not provide, medical advice.

The SomnoMed Rest Assure HCP portal is a tool that can assist you in the provision of health services, but it is not a substitute for competent human intervention and discretionary thinking. Therefore, you agree that you will be responsible for each of the following, as applicable, when using SomnoMed Rest Assure HCP portal: (i) reading information displayed accurately; (ii) confirming the accuracy of life threatening information and critically important results that are accessed or stored through SomnoMed Rest Assure HCP portal in the same manner that such information and results would be confirmed or verified if it were in paper form or as would otherwise be confirmed or verified if you were using applicable standards of good medical practice; (iii) Reconfirming a decision to change or cease a patient’s therapy with data from a diagnostic sleep test and (iv) reporting any errors or suspected errors discovered in the course of using SomnoMed Rest Assure HCP portal.

Customer Data, Patient Data and corresponding Device Data are protected by laws and regulations governing the privacy and security of personal health information. In your dealings with all personal data, you must comply with applicable laws and regulations as set out in your Territory.

By accessing Patient Data and corresponding Device Data through the SomnoMed Rest Assure HCP portal, you represent and warrant that you have the right and authority to do so as part of your treatment of that patient. Should the SomnoMed Rest Assure HCP portal show details of a patient that is not under your care, you will contact SomnoMed immediately.

If you are in the United States, you represent and warrant to SomnoMed that you have obtained and will maintain all permissions, authorizations and appropriate consents from your patients required under: (i) the Telephone Consumer Protection Act of 1991 (“TCPA”) and any other Federal, State or local laws and regulations applicable to automated outbound contacts by phone, texts or email with consumers; and (ii) The Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), as amended by the Health Information Technology for Economic and Clinical Health Act of 2009 (“HITECH”), and applicable regulations for the transmission, storage, retrieval, access, use and/or disclosure of protected health information of patients for the use of the SomnoMed Rest Assure HCP portal.

If you are in Canada, you represent and warrant to SomnoMed that you have provided all necessary notices to, and obtained and will maintain all permissions, authorizations and appropriate consents from your patients required under all applicable federal and provincial legislation and related regulations for the collection, transmission, storage, retrieval, access, use and/or disclosure of personal information and personal health information of patients for the use of the SomnoMed Rest Assure HCP portal. SomnoMed will provide the SomnoMed Rest Assure HCP portal in compliance with the Personal Information and Personal Health Information Addendum incorporated into these terms as Exhibit A, Part 1.

For Customers in the EEA, Switzerland and the UK, SomnoMed will provide SomnoMed Rest Assure HCP portal in relation to the Personal Data (including but not limited to personal health data) of your patients in compliance with the applicable Data Protection Laws of the EU, EEA, Switzerland and the UK (as applicable).

If you handle personal data of French patients, you represent and warrant to SomnoMed that you will at all times meet the requirements of the Politique Générale De Sécurité Des Systèmes D’Information De Santé

(PGSSIS) in France (as amended updated or replaced from time to time) in relation to French patient personal data collected, transmitted, stored, retrieved, accessed, used and/or disclosed by you.

If you are located anywhere else in the world, you represent and warrant to SomnoMed that you have provided all necessary notices to, and obtained and will maintain all permissions, authorizations and appropriate consents from your patients required under all applicable legislation and related regulations for the collection, transmission, storage, retrieval, access, use and/or disclosure of personal information and personal health information of patients for the provision of SomnoMed Rest Assure HCP portal. You will be responsible for determining patients’ eligibility, coverage and replacement schedules for patients’ supplies.

7. Access

To access SomnoMed Rest Assure HCP portal you must create a user account (using a unique email address) or a user account must be created for you.

Unless otherwise agreed with SomnoMed in writing, user accounts may only be created and maintained for your Authorized Users solely for the purposes of providing services to you or your affiliated companies. If you permit the creation of user accounts for other third parties to access and use SomnoMed Rest Assure HCP portal, SomnoMed may elect to terminate your access to the SomnoMed Rest Assure HCP portal.
Passwords are required to access SomnoMed Rest Assure HCP portal. You will keep all passwords created by you and/or on your behalf confidential to prevent unauthorized access and to prevent unauthorized use of SomnoMed Rest Assure HCP portal. You will protect the security of the passwords created by you and/or on your behalf and other means of identification for access to, and use of, the SomnoMed Rest Assure HCP portal, including as required by applicable laws and regulations (where applicable).

Unless otherwise authorized by SomnoMed in writing: (i) only one user account may be created per user; (ii) a user account may only be used by the individual for whom the user account is created and may not be shared with any other individual; and (iii) you will immediately disable an Authorized User’s account when they no longer qualify as an Authorized User.
SomnoMed reserves the right to disable your or your organization’s access to the SomnoMed Rest Assure HCP portal, if we reasonably believe your logins and password(s) have, or may have been, obtained in an illegal or unauthorized manner or are being used, or may be used, by an unauthorized person(s).

If determined by the applicable SomnoMed affiliate that sells to you and as separately communicated to you, you agree to pay the applicable Service fee(s) for the Service(s) acquired by you from such affiliate.

8. Customer Responsibility

You will supply and maintain equipment to access SomnoMed Rest Assure HCP portal. Specifically, you agree to use appropriate software per SomnoMed’s minimum system requirements to access SomnoMed Rest Assure HCP portal.

You are responsible for all of the equipment and software required to access and use SomnoMed’s Rest Assure HCP Portal. SomnoMed reserves the right to terminate your access to the SomnoMed Rest Assure HCP portal, or any portion thereof, if not accessed for six consecutive months. You will notify us immediately if you believe your account(s) and/or password(s) have been accessed, taken or used without your permission, or if there is a suspected or actual violation of the security of the SomnoMed Rest Assure HCP portal.

You must not use or allow the use of any web scraping in connection with the SomnoMed Rest Assure HCP portal for any purpose without our prior written approval from SomnoMed.

You agree to immediately report to SomnoMed the discovery of any type of discrepancy, anomaly or error detected in information obtained from the SomnoMed Rest Assure HCP portal. You will also immediately report to SomnoMed the discovery of any virus or corruption in SomnoMed Rest Assure HCP portal or on your own equipment used to connect to or otherwise access the SomnoMed Rest Assure HCP Portal that potentially affect or do affect SomnoMed Rest Assure HCP portal. Any malicious attacks from a Customer site will be addressed to protect SomnoMed systems, including blocking or terminating access or connections to stop the attack, and you agree to provide all reasonable assistance and cooperation to SomnoMed in relation to any such attacks, as soon as requested by SomnoMed. You must notify us within forty-eight (48) hours if you suspect a data breach regarding SomnoMed Rest Assure HCP portal.

You must keep secured:
I. any data retrieved from SomnoMed Rest Assure HCP portal.
II. any logins and passwords Somnomed provides. You must restrict access to Authorized Users.

9. Prohibited Locations for Use

You will not access and/or use the SomnoMed Rest Assure HCP portal for patients or Devices acquired outside the Territory, without SomnoMed’s prior written consent.

10. SomnoMed Responsibility

Neither SomnoMed, nor our agent(s) will be liable:
if you have not properly followed SomnoMed Rest Assure HCP portal instructions on how to set up and access your account and/or retrieve and view data;

if your internet access, equipment and/or software were not working properly and this problem was or should have been apparent to you when you attempted to access SomnoMed Rest Assure HCP portal or in the event of failure by you to comply with your obligations in Section 7 (Access) or Section 8 (Customer Responsibility); in circumstances more particularly described in Section 25 (Force Majeure)of these Terms.

SomnoMed may, on a regular basis, perform maintenance, modifications, upgrades for other refinements of SomnoMed Rest Assure HCP portal. Such works may result in interrupted service or errors in the SomnoMed Rest Assure HCP portal. If we anticipate an interruption to SomnoMed Rest Assure Portal, SomnoMed will attempt to provide prior notice of such interruptions but cannot guarantee that such notice will be provided. If SomnoMed does not anticipate an interruption to the SomnoMed Rest Assure HCP portal, we may not provide you prior notice.

11. Benefits

The provision of data to you and other Authorized users may be considered a benefit under relevant government legislation, such as the Sunshine Act in the US. If required, SomnoMed will disclose this as required under law.

12. Use and Archival of Data

You and/or your Authorized Users will have access to any Patient Data and corresponding Device Data so long as these Terms remain active. You acknowledge that any individual’s health data (Sensitive Personal Data)is Patient Controlled Data, and your access to any individual patient’s data may be removed at any time, by SomnoMed, at the request of the patient.

If you breach any of your obligations to SomnoMed, or if any of your accounts or these Terms are terminated for any reason, then where permitted by applicable law your access to the Rest Assure HCP portal may be modified, suspended, or terminated by SomnoMed at its sole and absolute discretion.

You agree that SomnoMed Rest Assure HCP portal are not intended to be a permanent medical record archive or storage system. You acknowledge and agree that it is your responsibility to download or otherwise retain any data transmitted to or entered using the SomnoMed Rest Assure HCP portal and to store such data separately within your own records. In addition, you are solely responsible for archiving such data or otherwise complying with medical record policies and procedures required by law. SomnoMed does not provide any services related to archival of data.

For users in the EU, EEA, Switzerland and the UK
To the extent necessary, you grant SomnoMed’s support services in the EU, EEA, Switzerland and the UK the permission to access Customer Data, Patient Data and corresponding Device Data for the purposes of operating and supporting the SomnoMed Rest Assure HCP portal. Furthermore, SomnoMed will process Customer Data in accordance with the applicable Data Protection Laws and the Privacy Notice.

For users anywhere outside the EU, EEA, Switzerland and the UK
To the extent necessary, you grant SomnoMed permission to use Customer Data, Patient Data and Device Data for the purposes of operating and supporting SomnoMed Rest Assure HCP portal; and De-Identified Data for our own use, including statistical analyses, surveys and research (such as clinical research, patient satisfaction surveys and market research), to enhance existing and develop new products and services, for benchmarking and analytics as well as any other purposes in accordance with applicable law.

13. Warranty Disclaimer

SomnoMed does not and will not provide medical advice or service to you, your Authorized Users or your patients. Content available through SomnoMed Rest Assure HCP portal is solely for informational and educational purposes. Neither the content or the patient reports are to be used as a substitute for professional judgment of healthcare providers in diagnosing and treating patients.
EXCEPT AS PROVIDED IN THESE TERMS, THE SOMNOMED REST ASSURE HCP PORTAL IS PROVIDED “ASIS” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON- INFRINGEMENT, RESULTS, ACCURACY, COMPLETENESS, ACCESSIBILITY, COMPATIBILITY, SECURITY, FREEDOM FROM COMPUTER VIRUS OR CONTINUED AVAILABILITY, AND THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE SOMNOMED REST ASSURE HCP PORTAL IS WITH YOU. SOME JURISDICTIONS LIMIT OR DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, THEREFORE THE ABOVE EXCLUSION OF IMPLIED WARRANTIES MAY NOT APPLY TO YOU.

SomnoMed does not warrant that the functions contained in SomnoMed Rest Assure HCP portal will meet your requirements or that its operation will be uninterrupted or error-free or compatible with the other software or hardware of your systems. SOMNOMED’S SOLE OBLIGATION OR LIABILITY UNDER THIS SECTION AND THE FOREGOING LIMITED WARRANTY IS THE REPLACEMENT OF THE SOMNOMED REST ASSURE HCP PORTAL.

14. Limitation of Liability

EXCEED THE LESSER OF THE AGGREGATE AMOUNT OF THE SERVICE FEES YOU HAVE PAID TO US FOR THE SOMNOMED REST ASSURE HCP PORTAL DURING THE TWELVE MONTHS IMMEDIATELY PRECEDING THE DAY THE ACT OR OMISSION OCCURRED THAT GAVE RISE TO THE CLAIM OR USD $2,000.00 (UNITED STATES DOLLARS). YOU UNDERSTAND AND ACKNOWLEDGE THAT ABSENT YOUR AGREEMENT TO THIS LIMITATION OF LIABILITY, WE WOULD NOT PROVIDE YOU ACCESS TO THE SOMNOMED REST ASSURE HCP PORTAL. THE LIMITATIONS PROVIDED IN THIS SECTION WILL APPLY EVEN IF ANY OTHER REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE.

Your exclusive remedy in the event of the complete and unrecoverable failure of the SomnoMed Rest Assure HCP portal to operate or perform is limited to, at SomnoMed’s discretion, providing available backup information, or refunding the Service fees you have paid for using the SomnoMed Rest Assure HCP portal during the twelve (12) months immediately preceding the date of such failure.
SomnoMed Rest Assure HCP portal relies on third-party products and services to provide parts of the SomnoMed Rest Assure HCP portal. For example, we rely on mobile operating system vendors and mobile carriers to enable connectivity and mobile device notifications through the Service. These third-party products and services are beyond our control and they may not operate in a reliable manner, be available 100% of the time, or become obsolete due to newer technology. SomnoMed is not responsible for any damages or losses, whether foreseeable or remote, due to the operation of third-party products.

Limitations on Liability and Remedies for users in the EU EEA, Switzerland and the UK
To the extent permitted by applicable laws, in no event shall SomnoMed be liable for any special, indirect, incidental, consequential, punitive, or exemplary damages or for loss of profits, revenues, contracts, customers, loss of use, loss of data, loss of business goodwill, business interruption, cost of replacement goods or services, or failure to realize expected cost savings which arises out of, or is in any way connected, to these Terms even if advised of the possibility of same or same were reasonably foreseeable.
If, notwithstanding the other provisions of these Terms, SomnoMed is found to be liable to you for any damage or loss which arises out of, or is in any way connected with, these Terms or your use of the SomnoMed Rest Assure HCP portal (“Claim”), to the extent permitted by applicable laws, SomnoMed’s liability shall in no event exceed an amount equal to the total of any/all fees for SomnoMed Rest Assure HCP portal received by SomnoMed from you in the twelve (12) calendar months immediately preceding your Claim.
You understand and acknowledge that absent your agreement to the foregoing limitations of liability, SomnoMed would not provide you with access to the SomnoMed Rest Assure HCP portal. Nothing in these Terms limits or excludes our responsibility for death or personal injury caused by our negligence or any other liability that cannot be excluded or limited under applicable laws.

15. Intellectual Property Rights and Confidential Information

15.1 Ownership of Intellectual Property Rights
The SomnoMed Rest Assure HCP portal is the proprietary property of SomnoMed. The SomnoMed Rest Assure HCP portal comprise Intellectual Property Rights (as defined in Clause 4 above), all of which will remain the exclusive property of SomnoMed, a SomnoMed affiliate, and/or their respective licensors. You and your Authorized Users, employees, agents and representatives will not copy, reproduce, modify, reverse engineer or decompile any portion of the SomnoMed Rest Assure HCP portal without the written permission of SomnoMed. You and your Authorized Users, patients, employees, agents and representatives will use SomnoMed Rest Assure HCP portal as provided in these Terms. Except as otherwise disclosed, SomnoMed owns all rights, title, and interest in and to all Intellectual Property Rights (as defined in Clause 4 above) worldwide in and to SomnoMed Rest Assure HCP portal.

15.2 SomnoMed’s Confidential Information
You and SomnoMed acknowledge and agree that the SomnoMed Rest Assure HCP portal and any information relating thereto are SomnoMed’s confidential information (“SomnoMed’s Confidential Information”). You agree that you will not disclose any of SomnoMed’s Confidential Information to any third party and that you shall protect SomnoMed’s Confidential Information. In the event of termination of these Terms, you shall cease using SomnoMed’s Confidential Information and shall promptly return or certify in writing to SomnoMed that you have destroyed, all of SomnoMed’s Confidential Information, with the exception of any of

SomnoMed’s Confidential Information that it is necessary to keep for record keeping purposes. The obligations in this Section will not apply to any information which you can demonstrate to the reasonable satisfaction of SomnoMed: (i) is or becomes available to the public other than by breach of these by you of these Terms; (ii) is rightfully received by you from a third party without confidential limitations; (iii) is independently developed by you without access to SomnoMed’s Confidential Information; (iv) is known to you without any restriction on its use or disclosure prior to first receipt of it from SomnoMed; or (v) is disclosed as required by a court order.

16. Indemnity

You, at your own expense, will indemnify and hold harmless SomnoMed and its assignees, and their directors, officers, employees, agents and representatives, and defend any and all actions brought against same with respect to any claim, demand, cause of action, debt or liability, including reasonable attorneys’ fees, experts’ fees, and court costs, to the extent that it arises from or relates to:
the acts or omissions of you, your Authorized Users, directors, officers, employees, agents, or representatives, including but not limited to the use of SomnoMed Rest Assure HCP portal or any Customer Data, Patient Data and corresponding Device Data stored or transmitted using SomnoMed Rest Assure HCP portal;

I. your failure or alleged failure to obtain any or all permissions, authorizations and “opt-in” consents from each patient required under applicable Federal, State or local laws and regulations; or

II. your breach of these Terms and/or applicable Addenda/Exhibits.

17. Relationship of the Parties

Nothing in these Terms will be construed to constitute either party as the partner, employee, or agent of the other. Neither party has any authority to bind the other in any respect. Each party will remain an independent contractor, responsible only for its own actions. Each party will conduct all of its business in its own name and in such manner as such party may see fit, at its own expense.

18. Governing Law

These Terms will be governed by and construed in accordance with the laws of the State of New South Wales, Australia, without regard or giving effect to its conflict of laws principles.

19. Dispute Resolution

To the extent permitted by applicable laws, all controversies and claims arising under or relating to these Terms are to be resolved in accordance with the governing laws set out in Clause 18 above. All proceedings shall be conducted in the language of the governing law. Subject to applicable law, each party shall bear its own costs, expenses and attorneys’ fees (and all related costs and expenses) incurred in connection with any proceeding arising from or related to any transaction contemplated by these Terms, and in connection with enforcing any judgment or order thereby obtained. Each party further agrees to waive any right to pursue a dispute by asserting a disputed claim in a representative capacity or participating in a class action with respect to SomnoMed Rest Assure HCP portal. However, in those cases where the rules governing jurisdiction and venue would be void under the laws of your respective country, the rules governing jurisdiction and venue for litigation and other disputes in your respective country will apply.

20. Notices

Notices from SomnoMed shall be in writing and may be sent by email or posted by any other method that SomnoMed reasonably determines will provide appropriate notice. Notices from you shall be in writing and may be sent by email to infousa@somnomed.com (for Customers in the Americas); representative.eu@somnomed.com (for Customers in Europe, Middle East and Africa); contactaus@somnomed.com (for Customers in Asia Pacific). Notices from SomnoMed to you shall be effective:
(i) in the case of notices by email when sent to the email address known or made available to SomnoMed by you or on your behalf; or (ii) in the case of postings by other methods deemed reasonable by SomnoMed, ten (10) business days after such notices are sent in the manner reasonably determined by SomnoMed. Notices from you to SomnoMed shall be effective when received by SomnoMed.

21. Assignment

You may not assign, novate or otherwise transfer any of your rights under these Terms without our prior written consent, and any such attempt to do so without our consent will be null and void.

We may in our discretion assign, novate, subcontract or otherwise transfer without further consent or notification any of our rights and delegate any of our duties under these Terms to a company affiliated with us or to any other party.

22. Severability

If any portion of these Terms is held to be invalid or unenforceable, the remaining portions of these Terms will remain in full force and effect. Any invalid or unenforceable portions will be deemed modified to the extent necessary to render such term or provision enforceable whilst preserving to the fullest permissible extent the intent of the original portion. If such construction is not possible, the invalid or unenforceable portion will be severed from these Terms but the rest of these Terms will remain in full force and effect.

23. Modification of Terms

These Terms and the provision of the SomnoMed Rest Assure HCP portal are subject to change from time to time. In such cases, SomnoMed will provide you with details of any changes to these Terms and you will be asked to reaccept them. If you do not agree to the modified Terms of Use, we may opt to suspend or terminate your access and use of the SomnoMed Rest Assure HCP portal, and (if applicable)refund any fees paid by you which are attributable to the unexpired portion of the period for which you paid those fees.

24. Waiver and Entire Agreement

A waiver of any term or provision of these Terms at any time will not be deemed a waiver of the term or provision in the future. These Terms (and the documents referred to herein) constitute the full and final agreement between you and SomnoMed and supersede all prior negotiations, agreements, discussions and understandings between the parties, if any, whether oral or in writing, with respect to the subject matter hereof, and there are no warranties, representations or other agreements between the parties in connection with the subject matter hereof except as specifically set forth in these Terms. You further acknowledge that no terms or conditions, usages of trade, courses of dealing or agreements purporting to modify, vary, explain or supplement these Terms shall be binding on SomnoMed unless specifically agreed to in writing by an authorized representative of SomnoMed.

25. Force Majeure

SomnoMed will not be liable for delays or failures in performance due to any cause beyond our reasonable control including Labour disputes or other industrial disturbances, systemic electrical, telecommunications or other utility failures, power outages, strikes or other labour unrest, delays caused by payees, pandemics, fires, floods, earthquakes, storms, or other acts of nature, embargoes, riots, acts or orders of government, acts of terrorism or war.

By checking the “I accept the terms and conditions” box on the SomnoMed Rest Assure Portal, I acknowledge that I am electronically signing these Terms and agreeing to be legally bound by all of the terms and conditions contained or referenced in these Terms.

EXHIBIT A

Personal Information and Personal Health Information Addendum Applicable to Customers in Canada only
Customer and SomnoMed (defined above in the Terms) have entered into SomnoMed Rest Assure HCP Portal Terms of Use (the “Terms”) under which SomnoMed may collect, use, retain, store, disclose, de-identify and dispose of and otherwise process certain personal information (“PI” )and personal health information (“PHI”) of the Customer’s patients. To the extent that the Customer is a “health information custodian,” “custodian,” “trustee” or “organization” (as those terms are defined under Privacy Legislation [as defined below] ), and the Customer provides PI and/or PHI of its patients to a SomnoMed entity that is an “agent,” “information manager,” “affiliate,” “trustee” or “organization” (as those terms are defined under Privacy Legislation) as part of the provision of the SomnoMed HCP Portal (as defined in the Terms) to and on behalf of the Customer, the Customer and SomnoMed agree as follows with respect to the exchange of PI and/or PHI through use of the SomnoMed Rest Assure HCP Portal or otherwise:

I. GENERAL PROVISIONS
Section 1. Effect. This Personal Information and Personal Health Information Addendum (“Addendum”) defines, supplements, modifies and amends the Terms with respect to PI and/or PHI. The terms and provisions of this Addendum will supersede any other conflicting or inconsistent terms and provisions in the Terms with respect to PHI and shall govern SomnoMed’s obligations with respect to all PI and/or PHI received from the Customer.

Section 2.Definitions. All capitalized terms used herein that are not otherwise defined shall have the following meanings:
“Breach” means (a) the loss or misuse of PI and/or PHI,(b) the accidental, unauthorized and/or unlawful access, disclosure or handling of PI and/or PHI, or (c) any other act or omission that compromises the security, confidentiality and/or integrity of PI and/or PHI.
“CASL” means an Act to promote the efficiency and adaptability of the Canadian economy by regulating certain activities that discourage reliance on electronic means of carrying out commercial activities, and to amend the Canadian Radio-television and Telecommunications Commission Act, the Competition Act, the Personal Information Protection and Electronic Documents Act and the Telecommunications Act, S.C. 2010, c. 23, commonly known as “Canada’s Anti-Spam Legislation.”
“Commercial Electronic Message” has the meaning as assigned to the term in CASL.
“Individual” means the identified or identifiable individual whose PI and/or PHI is processed; an identifiable individual is one who can be identified, directly or indirectly, in particular by reference to an identification number or to one or more factors specific tohis/her physical, physiological, mental, economic, cultural or social identity.
“Legal Action” means any demand, claim, action, complaint, investigation or audit by a third party relating to the collection, use, retention, storage, protection, disclosure, de-identification, destruction or other processing of PI and/or PHI in connection with the SomnoMed Rest Assure HCP portal or as otherwise authorized under the Terms and this Addendum by Customer.
“Privacy Legislation” means applicable federal and provincial privacy and data protection legislation and the regulations enacted thereunder, including, but not limited to: Personal Information Protection and Electronic Documents Act, SC 2000, c 5; Personal Health Information Protection Act, 2004, SO2004, c 3, Sch A; Personal Information Protection Act, SBC 2003, c63; Personal Information Protection Act, SA 2003, c P-6.5; Personal Health Information Act, SNS 2010, c 41; The Personal Health Information Act, CCSM c P33.5; The Health Information Protection Act, SS 1999, c H-0.021; and an Act respecting the Protection of Personal Information in the Private Sector, CQLR c P-39.1.
“PHI” means any personal health information (as defined by Privacy Legislation) relating to an Individual; It includes without limitation electronic data and paper-based files that contain such information.
“PI” means any personal information (as defined by Privacy Legislation) relating to an Individual (including any information that can be reverse-engineered, cross-linked or combined with other available information to identify an Individual); it includes without limitation electronic data and paper-based files that contain such information and depending on the applicable Privacy Legislation ,may further include, without limitation, PHI.
“Unsuccessful Security Incident” means, without limitation, pings and other broadcast attacks on SomnoMed’s firewall, port scans, unsuccessful log-in attempts, denial of service attacks, and any combination of the above, so long as no such incident results in unauthorized access, use or disclosure of Customer’s electronic PI and/or PHI.

Section 3. Amendment. SomnoMed and the Customer agree to amend this Addendum to the extent necessary to allow either SomnoMed and/or the Customer to comply with Privacy Legislation as may be amended from time to time.

II. OBLIGATIONS OF SOMNOMED
Section 1. Collection, Use and Disclosure of PI and/or PHI. SomnoMed is permitted to collect, use, retain, store, disclose, de-identify or dispose of and otherwise process PI and/or PHI for purposes that a reasonable person would consider appropriate in the circumstances provided that such collection, use, retention, storage, disclosure, de-identification, disposal or other processing of PI and/or PHI is only as authorized under the Terms and this Addendum or otherwise by the Customer (and by the Individual who is the subject of the PI and/or PHI, with such Individual’s consent having been given to SomnoMed), or as required by law.
SomnoMed shall not otherwise collect, use, retain, store, disclose, or dispose of any PI and/or PHI unless authorized by the Customer. The parties agree that SomnoMed may disclose PI and/or PHI to its affiliates (or other related entities), agents and subcontractors who will only use such PI and/or PHI for the same purposes as SomnoMed in connection with the SomnoMed Rest Assure HCP portal, the Terms or this Addendum.

SomnoMed shall not and shall take reasonable steps to ensure that its directors, officers, employees, affiliates, subcontractors and agents do not, collect, use, retain, store, disclose, de-identify or dispose of any PI and/or PHI received from the Customer in any manner that would constitute a violation of Privacy Legislation.

Except as otherwise limited in the Terms or this Addendum and provided that SomnoMed complies with Privacy Legislation and CASL, the Customer permits SomnoMed to collect, use, retain, store, de-identify, dispose of and otherwise process PI and/or PHI: (i) for performance, management and/or administration of SomnoMed, the SomnoMed Rest Assure HCP portal, the Terms or this Addendum; (ii) to fulfill SomnoMed’s legal obligations in connection with the SomnoMed Rest Assure HCP portal, the Terms or this Addendum;(iii) to provide PI and/or PHI aggregation services; (iv) to communicate with the Customer and Individuals for the purposes of marketing SomnoMed’s new and existing products and services; (v) to develop and improve SomnoMed’s new and existing products and services; (vi) as required by applicable law; and (vii) as otherwise authorized by the Customer in writing. Notwithstanding the foregoing, nothing herein shall permit SomnoMed to send Commercial Electronic Messages to any person unless SomnoMed has express or implied consent to do so in accordance with CASL (or an exception to CASL’s consent requirements applies) and with Privacy legislation.

Except as otherwise limited in the Terms or this Addendum, SomnoMed may disclose PI and/or PHI: (i) for performance management and/or administration the SomnoMed Rest Assure HCP portal, the Terms or this Addendum; or (ii) to fulfill SomnoMed’s legal obligations, if the disclosure is required by law, and (iii) as otherwise authorized by the Customer or patient.
Except where disclosure is required by law, SomnoMed shall obtain reasonable assurances from the person to whom the PI and/or PHI is disclosed that: (i) the PI and/or PHI will remain confidential and will be used or further disclosed only as required to comply with the law or a binding order of governmental body or for the purpose for which it was disclosed to the person; and (ii) the person agrees, as required by the applicable law, to notify SomnoMed of known unauthorized access to PI and/or PHI that is subject to applicable data breach notification law where such access is caused by a confirmed breach of the person’s security measures and renders misuse of the PI and/or PHI reasonably likely.

Notwithstanding any other provision contained in this Addendum, the Customer expressly authorizes SomnoMed to: (i) disclose PI and/or PHI for the purposes of treatment activities of a healthcare provider; (ii) disclose PI and/or PHI to third-party service providers or subcontractors authorized pursuant to this Addendum for the payment activities of the third-party service provider or subcontractor; (iii) disclose PI and/or PHI to third-party service providers or subcontractors authorized pursuant to this Addendum for health care operations activities of the entity that receives the PI and/or PHI, if each entity either has or had a relationship with the Individual who is the subject of the PI and/or PHI being disclosed, the PI and/or PHI pertains to such relationship and the disclosure is necessary for the third-party service provider or

subcontractor to carry out its obligations; and (iv) disclose PI and/or PHI to third-party service providers or subcontractors that provide data hosting and/or storage services, including, without limitation, Microsoft Azure Services (if applicable).

Section 2. Compilation of Reports; De-identification. Notwithstanding any other provision contained in this Addendum, the Customer expressly authorizes SomnoMed to de-identify any and all PI and PHI for: (i) the purpose of generating reports for distribution to the Customer; (ii) the purpose of linking such de-identified data with other third-party databases for analytics; (iii) as part of registered clinical trials and (iv) SomnoMed’s internal purposes, including to develop, improve, market and offer to the Customer SomnoMed’s new and existing products and services.

Section 3. Safeguards Against Misuse of Information. SomnoMed and Customer shall use appropriate administrative, technical and physical security safeguards to prevent the theft, loss and unauthorized access, copying, modification, use, disclosure or disposal of PI and/or PHI and shall comply with applicable provisions of Privacy Legislation in such regard.

Section 4. Privacy Policies and Employee Training. SomnoMed and Customer shall maintain privacy policies in accordance with Privacy Legislation, which will include without limitation a process to respond to complaints arising under Privacy Legislation, and these policies will be made available for inspection on request.

SomnoMed and customer shall educate its employees on Privacy Legislation and CASL, on handling PI and PHI in accordance with Privacy Legislation, and on respective privacy policies, and shall take reasonable steps to ensure employee compliance through staff training, confidentiality and data protection agreements and employee sanctions for material non-compliance.

SomnoMed and customer shall take reasonable steps to ensure that its employees who are terminated, resign or no longer require access to PI and/or PHI from the Customer return all PI and/or PHI and cannot, thereafter, access any applications, hardware, software, network and facilities belonging to either SomnoMed or the Customer.

Section 5. Reporting of Breaches. SomnoMed and customer will advise the other party if it becomes aware of any Breach. Such notice shall include the identity of each Individual whose PI and/or PHI has been, or is reasonably believed to have been, subject to a Breach and any other requirements as set out in Privacy Legislation. SomnoMed’s obligation to report Breaches under this section is not and will not be construed as an acknowledgement by SomnoMed of any fault or liability with respect to any Breach including but not limited to with respect to any Legal Action relating to a Breach.

Section 6. Agreements by Third Parties. SomnoMed shall obtain and maintain a written agreement with each affiliate, agent or subcontractor that collects, holds, uses, communicates or discloses Individuals’ PI and/or PHI on behalf of SomnoMed. Under each such agreement, such affiliate, agent or subcontractor shall agree to restrictions and conditions that support SomnoMed’s obligations pursuant to this Addendum with respect to such PI and/or PHI.

Section 7. Access to Information. Subject to any restrictions under applicable laws, if SomnoMed maintains a record of PI and/or PHI (as defined in Privacy Legislation) in connection with the SomnoMed Rest Assure HCP portal, the Terms or this Addendum, upon request of the Customer, SomnoMed shall provide access to such record of PI and/or PHI to the Customer, to the extent necessary for the Customer to comply with its obligations under Privacy Legislation. If SomnoMed receives a direct request from an Individual for access to PI and/or PHI, subject to SomnoMed’s obligations pursuant to Privacy Legislation, SomnoMed will verify the individual identity and will provide this information to the individual.

Section 8. Availability of PI and/or PHI for Amendment. If SomnoMed receives a direct request from an Individual for amendment or correction to that Individual’s PI and/or PHI or an expressed wish of an Individual relating to the disclosure of that Individual’s PHI, subject to SomnoMed’s obligations pursuant to Privacy
Legislation, SomnoMed will verify the identity of the individual and amend the individuals’ details.

Section 9. Disclosure Log. SomnoMed shall maintain a log of access to, and disclosure by SomnoMed and SomnoMed’s employees of PI and/or PHI in connection with individual’s requests to change HCP’s who can view their data and make details of this log available to the Customer as and when requested.

Section 10. Availability of Books and Records. SomnoMed agrees to make its internal practices, books and records relating to the use and disclosure of PI and/or PHI received from, or created or received by SomnoMed on behalf of, the Customer available to the Customer for purposes of determining compliance with the Privacy Legislation.

Section 11. Remuneration in Exchange for PI and/or PHI. Except for the purposes set forth in the Terms and this Addendum and as otherwise permitted or provided by law, SomnoMed shall not directly or indirectly receive remuneration in exchange for any PI and/or PHI of an Individual.

Section 12. Minimum Necessary. SomnoMed shall limit its collection, use or disclosure of PI and/or PHI to the minimum necessary to accomplish those purposes authorized under the Terms, this Addendum and otherwise by the Customer, or as required by law, and will make PI and/or PHI available only to those employees and/or subcontractors of SomnoMed who require access in order to fulfill such purposes.

Section 13. Communication regarding Privacy Matters. SomnoMed shall provide the Customer with the name of a contact person at SomnoMed responsible for SomnoMed’s privacy compliance and notify the Customer within twenty-four (24)hours of any changes in the identity of the responsible person. SomnoMed’s privacy Office can be contacted at privacy@Somnomed.com

III. OBLIGATIONS OF CUSTOMER
Section 1. Disclosure of PI and/or PHI to SomnoMed. The Customer shall disclose PI and/or PHI to SomnoMed only as permitted under Privacy Legislation and only to the extent such PI and/or PHI is necessary for SomnoMed to support the SomnoMed Rest Assure HCP portal or fulfill SomnoMed’s legal obligations in connection with the SomnoMed Rest Assure HCP portal, the Terms or this Addendum.

Section 2. Disclosure of PI and/or PHI to Third Parties. By entering into the Terms, the Customer agrees to SomnoMed’s disclosure of PI and PHI to SomnoMed’s subcontractors, subject to the conditions set out in this Addendum.

Section 3. Consent of Individuals. SomnoMed shall provide all necessary notices to and obtain all necessary consents from Individuals, (including, without limitation, Privacy Legislation and CASL), in order for Customer and SomnoMed to collect, use, retain, store, de-identify, disclose or dispose of and otherwise process PI and/or PHI for all purposes permitted by the Terms, this Addendum and otherwise by the Customer (including, without limitation, to permit SomnoMed to operate SomnoMed’s Rest Assure HCP portal and to otherwise satisfy its obligations under the Terms and this Addendum) or as otherwise permitted or required by law.

Section 4. Hosting of Customer data, PI and/or PHI outside Canada. The Customer agrees that SomnoMed and its affiliates, agents, subcontractors and service providers may transfer PI and/or PHI and access, retain, store, use, de-identify, dispose of and otherwise process PI and/or PHI and customer data outside Canada, including, without limitation, in the United States and The Philippines. The Customer acknowledges that their customer data, PI and/or PHI: (i) may be transferred to, accessed, retained, stored, used, de-identified, disposed of and otherwise processed by SomnoMed and its affiliates, agents, service providers and subcontractors outside Canada, including the United States and the Philippines, for the same purposes as SomnoMed in connection with the SomnoMed Rest Assure HCP portal, the Terms or this Addendum; (ii) will be subject to applicable foreign laws and disclosure requirements, including in the United States and The Philippines; and (iii) may be accessed by foreign courts, law enforcement and national security authorities, including the United States and The Philippines.

Section 5. Cooperation. Subject to any legal restrictions, the Customer shall reasonably cooperate with SomnoMed to respond to any Legal Action, including but not limited to any Legal Action by any Individual or regulatory authority.

TERM AND TERMINATION
Section 1. Term. This Addendum will become effective on the Effective Date of the Terms and unless otherwise terminated as provided herein, will have a term that will run concurrently with that of the last expiration date or termination of the Terms.

Section 2. Termination Upon Breach of Provisions Applicable to PI and/or PHI. Any other provision of the Terms notwithstanding, this Addendum and the Terms may be terminated by the Customer upon thirty (30) days’ written notice to SomnoMed in the event that SomnoMed breaches any material provision contained in this Addendum and such breach is not cured within thirty(30) days of the date the Customer provides written notice of the alleged material breach.

Section 3. Effect of Termination. Upon termination of the Terms and this Addendum, subject to any legal restrictions, SomnoMed shall return or permanently, irretrievably and securely delete, destroy and/or dispose of all PI and/or PHI received from the Customer. SomnoMed shall not retain any copies of such PI and/or PHI unless required by applicable law or to satisfy a regulatory or reporting obligation. Notwithstanding the foregoing, to the extent that it is not possible to return or destroy such PI and/or PHI, this Addendum shall survive such termination and such PI and/or PHI shall be used or disclosed solely for such purpose or purposes which prevented the return or destruction of such PI and/or PHI or as required by applicable law.

SomnoMed Rest Assure patient app - Terms and Conditions of Use

Last updated: October 2023 Version 1.
1. Acceptance of the Terms
2. Definitions
3. Privacy
4. License to access and use SomnoMed Rest Assure patient app
5. Terms
6. Patient Information
6. Equipment and Software Requirements
7. Access
8. Customer Responsibility
9. Prohibited Locations for Use
10. SomnoMed Responsibility
11. Use and Archival of Data
12. Warranty Disclaimer
13. Limitation of Liability
14. Intellectual Property Rights
15. Indemnity
16. Governing Law
17. Dispute Resolution
18. Notices
19. Assignment
20. Severability
21. Modification of Terms
22. Waiver and Entire Agreement
23. Force Majeure
Exhibit A – For Customers in Canada

1. Acceptance of the Terms
PLEASE READ SOMNOMED’S REST ASSURE PATIENT APP TERMS AND CONDITIONS OF USE CAREFULLY BEFORE USING THE REST ASSURE PATIENT APP. BY CHECKING THE “I ACCEPT THE TERMS AND CONDITIONS” BOX YOU AGREE TO BE BOUND BY AND BE SUBJECT TO:
These Terms of Use, including its Exhibits (“Terms”)
Legal Disclaimer
Intellectual Property

IF YOU DO NOT AGREE, DO NOT USE THE REST ASSURE PATIENT APP AND CONTACT SOMNOMED
CUSTOMER SUPPORT: infousa@somnomed.com (Americas); representative.eu@somnomed.com (Europe, Middle East and Africa); contactaus@somnomed.com (APAC) TO REMOVE ACCESS TO THE REST ASSURE SYSTEM.
In these Terms “we,” “our,” “us” and “SomnoMed” refer to:
SomnoMed Ltd, Level 3, 20 Clarke St, Crows Nest, NSW 2065, Australia.
All expressions used in these Terms beginning with a capital letter have the meaning given to them in Section 2 Definitions of this Terms.
These Terms are between SomnoMed and you (“you” or “Customer”). You acknowledge and agree that:
(i) you accept these Terms on behalf of the entity for which you are authorized to act (e.g., an employer) and acknowledge that such entity is legally bound by these Terms (and you agree to act in a manner consistent with these Terms) or, if you are not authorized to act on behalf of such entity, then you accept these Terms either as an Authorized User of such entity or on behalf of yourself (where no such entity exists) as an individual and acknowledge that you are legally bound by these Terms; and
(ii) you represent and warrant that you have the right, power and authority to act on behalf of and bind such entity (if any) or yourself.

2. Definitions

“Authorized User” means you.

“Customer Data” means Personal Data relating to you entered by you into the SomnoMed Rest Assure patient app.

“Data Protection Laws” means, to the extent applicable but not limited to, the European Data Protection Laws, UK Data Protection Laws and, to the extent applicable, the data protection or privacy laws of any other country. European Data Protection Laws means the EU General Data Protection Regulation 2016/679 of the European Parliament and of the Council (“GDPR”); and laws implementing or supplementing the GDPR. “UK Data Protection Laws means all laws relating to data protection, the processing of Personal Data, privacy and/or electronic communications in force from time to time in the UK, including the UK GDPR and the Data Protection Act 2018.

“Customer Controlled Data” means any information and/or Personal Data provided by you in connection with the Services provided by SomnoMed to you and where you may exercise your individual legal rights to control your Personal Data as per applicable Data Protection Laws. Customer controlled data includes Device and Patient Data.

“Device(s)” includes Rest Assure oral devices that transmit data to the Rest Assure cloud servers. Terms and conditions for SomnoMed Devices are covered under a separate document.

“Device Data” means the data which is transmitted by a Device to the Rest Assure cloud servers. “EEA” means the European Economic Area.

“Effective Date” is the date on which you first agree to these Terms.

“HCP” means Health Care Professional and refers to all paid and unpaid persons serving in healthcare settings who have the potential for direct or indirect exposure to patients.

“Patient Data” means patient Personal Data, such as patient name, date of birth, email address, gender, and personal health data, which corresponds to a particular Device relating to that patient, and which enables SomnoMed to provide the Services to you in relation to your Device. Patient Data is also deemed to be Sensitive Personal Data. Sensitive Personal Data is a category of Personal Data considered to be especially sensitive and includes medical records and other personal health information (PHI), as defined in and subject to the U.S. Health Insurance and Portability Act of 1996 and special categories of data under applicable Data Protection Law (such as racial or ethnic origin, genetic and biometric data, home life).

“Process(ing)” means to perform any operation or set of operations upon Personal Data, whether or not by automatic means, including, but not limited to, collecting, recording, organizing, storing, adapting or altering, retrieving, accessing, consulting, using, disclosing by transmission, disseminating, or otherwise making available, aligning or combining, blocking, erasing or destroying.

“SomnoMed Databases” means all databases, collections, compilations or works which store and enable SomnoMed to present any of the Device Data, Patient Data and/or Customer Data stored in SomnoMed’s cloud system.

“SomnoMed Rest Assure patient app ” means the Services, and the SomnoMed Databases and other infrastructure employed by SomnoMed to provide the Services (including but not limited to SomnoMed systems, websites, applications, and online communication modules).

“Services” include, but are not limited to, access to SomnoMed’s Rest Assure patient app. The Services may be modified from time to time to add to, remove or include additional services, and/or functionality, beyond those Services offered today, and those additional services and/or functionality will be governed by these Terms. The Services may require inter alia, access to personal health related (Sensitive Personal Data) and other information, communication, compliance, cloud-based data hosting, retrieval, patient management system, billing-related activities, patient and customer related analytics and online support program offered by SomnoMed.

“Territory” means the country in which you acquire access to the SomnoMed Rest Assure patient app. If you acquire access to the Rest Assure App in a member country of the EU, EEA or Switzerland, “Territory” means all the countries of the EEA and Switzerland.

3. General Data Privacy Term

SomnoMed processes Personal Data (including Sensitive Personal Data) in order to provide you with our Services and to the extent required for the performance of these Terms. The Processing of which will be done in accordance with the applicable Data Protection Law and the Patient Privacy Notice. For information on how your Personal Data is Processed when you use the Service, please refer to our Patient Privacy Notice.

Customers in Europe, Middle East and Africa
The servers that host the Rest Assure patient app are hosted in a secure data centre located in The Netherlands provided by a third-party HDS Certified Health Hosting Provider.
When you contact us, your request or information is tracked within the European Economic Area and Switzerland and addressed by SomnoMed personnel located in the European Economic Area and Switzerland.
Customers in Asia-Pacific
The servers that host the SomnoMed are hosted in a secure data centre located in Australia provided by a third-party service provider.
When you contact us, personnel may be located at SomnoMed affiliates in the United States, Canada, The Philippines or Australia. In limited circumstances, SomnoMed technical support may access your patients’ data to provide you with technical support and/or troubleshooting of the Rest Assure patient app.
Customers in US and Canada
The servers that host the SomnoMed Rest Assure patient app are hosted in a secure data centre located inside the United States of America.

4. License to access and use the SomnoMed Rest Assure patient app

SomnoMed grants you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to access and use SomnoMed Rest Assure patient app in accordance with these Terms.

5. Terms

These Terms will commence on the Effective Date and will remain in effect so long as SomnoMed permits you to access or use the SomnoMed Rest Assure patient app and until the Terms are terminated.
SomnoMed may stop providing access to the SomnoMed Rest Assure patient app on written notice to you (a “Termination Notice“) if:

(i) providing the SomnoMed Rest Assure patient app would create a substantial economic or technical burden or material security risk for us, or if it is necessary for us to do so to comply with the law or requests of governmental entities;
(ii) the use of the SomnoMed Rest Assure patient app by you or our provision of any of the Services to you has become impractical or unfeasible for any legal, business or regulatory reason;
(iii) you are in breach or default of any material obligation set out in these Terms (including but not limited to non-payment of any outstanding sums owed to SomnoMed including Service(s) fees, if applicable) and you do not cure that breach/default within fifteen (15) days following written notice from SomnoMed; or

On any termination of these Terms:
I. all your rights under these Terms will terminate within fifteen (15) days from the date of the Termination Notice; and

II. you remain responsible for all fees and charges you have incurred through to the date of termination.

6. Patient Information

Through the SomnoMed Rest Assure patient app you may access your Patient Data and corresponding Device Data.

SomnoMed does not, through the Rest Assure patient app or its available functions, provide medical advice. SomnoMed Services are intended solely as a resource and informational tool. We are not medical professionals and SomnoMed employees do not discuss or advise on any issues relating to medical treatment or diagnosis. Accordingly, please discuss the information reported on the SomnoMed Rest Assure patient app with your medical and/or dental sleep medicine provider. SomnoMed’s Rest Assure patient app is not intended to, and does not provide, medical advice.

7. Access

To access SomnoMed Rest Assure patient app you must create a user account (using a unique email address).

Unless otherwise agreed with SomnoMed in writing, user accounts may only be created and maintained for you solely for the purposes of providing services to you. If you permit the creation of user accounts for other third parties to access and use SomnoMed Rest Assure patient app, SomnoMed may elect to terminate your access to the SomnoMed Rest Assure patient app.

Passwords are required to access SomnoMed Rest Assure patient app. You will keep all passwords created by you confidential to prevent unauthorized access and to prevent unauthorized use of SomnoMed Rest Assure patient app. You will protect the security of the passwords created by you and other means of identification for access to, and use of, the SomnoMed Rest Assure patient app, including as required by applicable laws and regulations (where applicable).
Unless otherwise authorized by SomnoMed in writing: (i) only one user account may be created per user and
(ii) a user account may only be used by the individual for whom the user account is created and may not be shared with any other individual.

SomnoMed reserves the right to disable your access to the SomnoMed Rest Assure patient app, if we reasonably believe your logins and password(s) have, or may have been, obtained in an illegal or unauthorized manner or are being used, or may be used, by an unauthorized person(s).

8. Customer Responsibility

You will supply and maintain equipment to access SomnoMed Rest Assure patient app. Specifically, you agree to use appropriate software per SomnoMed’s minimum system requirements to access SomnoMed Rest Assure patient app.

You are responsible for all of the equipment and software required to access and use SomnoMed’s Rest Assure patient app. SomnoMed reserves the right to terminate your access to the SomnoMed Rest Assure patient app, or any portion thereof, if not accessed for six consecutive months. You will notify us immediately if you believe your account(s) and/or password(s) have been accessed, taken or used without your permission, or if there is a suspected or actual violation of the security of the SomnoMed Rest Assure patient app.

You agree to immediately report to SomnoMed the discovery of any type of discrepancy, anomaly or error detected in information obtained from the SomnoMed Rest Assure patient app. You will also immediately report to SomnoMed the discovery of any virus or corruption in SomnoMed Rest Assure patient app or on your own equipment used to connect to or otherwise access the SomnoMed Rest Assure patient app that potentially affect or do affect SomnoMed Rest Assure patient app. Any malicious attacks from a Customer site will be addressed to protect SomnoMed systems, including blocking or terminating access or connections to stop the attack, and you agree to provide all reasonable assistance and cooperation to SomnoMed in relation to any such attacks, as soon as requested by SomnoMed. You must notify us within forty-eight (48) hours if you suspect a data breach regarding SomnoMed Rest Assure patient app.

You must keep secured:
I. any data retrieved from SomnoMed Rest Assure patient app.

II. any logins and passwords that Somnomed provides. You must restrict access to Authorized Users.

9. Prohibited Locations for Use

You will not access and/or use the SomnoMed Rest Assure patient app for Devices acquired outside the Territory, without SomnoMed’s prior written consent.

10. SomnoMed Responsibility

Neither SomnoMed, nor our agent(s) will be liable:

if you have not properly followed SomnoMed Rest Assure patient app instructions on how to set up and access your account and/or retrieve and view data;
if your internet access, equipment and/or software were not working properly and this problem was or should have been apparent to you when you attempted to access SomnoMed Rest Assure patient app or in the event of failure by you to comply with your obligations in Section 7 (Access) or Section 8 (Customer Responsibility); in circumstances more particularly described in Section 25 (Force Majeure) of these Terms.

SomnoMed may, on a regular basis, perform maintenance, modifications, upgrades for other refinements of SomnoMed Rest Assure patient app. Such works may result in interrupted service or errors in the SomnoMed Rest Assure patient app. If we anticipate an interruption to SomnoMed Rest Assure app, SomnoMed will attempt to provide prior notice of such interruptions but cannot guarantee that such notice will be provided. If SomnoMed does not anticipate an interruption to the SomnoMed Rest Assure patient app, we may not provide you prior notice.

11. Use and Archival of Data
You will have access to any Patient Data and corresponding Device Data so long as these Terms remain active, and subject to the SomnoMed Patient Data privacy policy. Your Personal Data is Customer Controlled Data that you can control by exercising your data protection rights as laid down and specified in the SomnoMed App: Privacy Notice for Patient use.

If you breach any of your obligations to SomnoMed, or if any of your accounts or these Terms are terminated for any reason, then where permitted by applicable law your access to the Rest Assure patient app may be modified, suspended, or terminated by SomnoMed at its sole and absolute discretion.

You agree that SomnoMed Rest Assure patient app are not intended to be a permanent medical record archive or storage system. You acknowledge and agree that it is your responsibility to download or otherwise retain any data transmitted to or entered using the SomnoMed Rest Assure patient app and to store such data separately within your own records. SomnoMed does not provide any services related to archival of data.

For users in the EU, EEA, Switzerland and the UK
To the extent necessary, you grant SomnoMed’s support services in the EU, EEA, Switzerland and the UK the permission to access Customer Data, Patient Data and corresponding Device Data for the purposes of operating and supporting the SomnoMed Rest Assure patient app. Furthermore, SomnoMed will process Customer Data in accordance with the applicable Data Protection Laws and the SomnoMed Rest Assure App Privacy Notice.

For users anywhere outside the EU, EEA, Switzerland and the UK
To the extent necessary, you grant SomnoMed permission to use Customer Data, Patient Data and Device Data for the purposes of operating and supporting the SomnoMed Rest Assure patient app; and De-Identified Data for our own use, including statistical analyses, surveys and research (such as clinical research, patient satisfaction surveys and market research), to enhance existing and develop new products and services, for benchmarking and analytics as well as any other purposes in accordance with applicable law.

12. Warranty Disclaimer

SomnoMed does not and will not provide medical advice or service to you. Content available through SomnoMed Rest Assure patient app is solely for informational and educational purposes. Neither the content or the patient reports are to be used as a substitute for professional judgment of healthcare providers in diagnosing and treating patients.

EXCEPT AS PROVIDED IN THESE TERMS, THE SOMNOMED REST ASSURE PATIENT APP IS PROVIDED “ASIS” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON- INFRINGEMENT, RESULTS, ACCURACY, COMPLETENESS, ACCESSIBILITY, COMPATIBILITY, SECURITY, FREEDOM FROM COMPUTER VIRUS OR CONTINUED AVAILABILITY, AND THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE SOMNOMED REST ASSURE PATIENT APP IS WITH YOU. SOME JURISDICTIONS LIMIT OR DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, THEREFORE THE ABOVE EXCLUSION OF IMPLIED WARRANTIES MAY NOT APPLY TO YOU.
SomnoMed does not warrant that the functions contained in SomnoMed Rest Assure patient app will meet your requirements or that its operation will be uninterrupted or error-free or compatible with the other software or hardware of your systems. SOMNOMED’S SOLE OBLIGATION OR LIABILITY UNDER THIS SECTION AND THE FOREGOING LIMITED WARRANTY IS THE REPLACEMENT OF THE SOMNOMED REST ASSURE PATIENT APP.

13. Limitation of Liability

Limitations on Liability and Remedies for users anywhere outside the EEA, Switzerland and the UK TO THE EXTENT PERMITTED BY APPLICABLE LAWS, IN NO EVENT WILL SOMNOMED BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL SPECIAL, PUNITIVE OR INDIRECT DAMAGES OF ANY KIND OR NATURE,
INCLUDING, WITHOUT LIMITATION, ANY LOSS OF DATA, LOSS OF PROFITS OR LOST SAVINGS, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE ARISING OUT OF THESE TERMS OR CONNECTED IN ANY WAY WITH THE USE, MISUSE OR INABILITY TO USE THE SOMNOMED REST ASSURE PATIENT APP, EVEN IF SOMNOMED HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY THIRD PARTY. SHOULD SOMNOMED HAVE ANY LIABILITY TO YOU OR ANY THIRD PARTY FOR ANY DIRECT LOSS, HARM OR DAMAGE, (EXCEPT INSURED CLAIMS, AND THE PARTIES’ RESPECTIVE EXPRESS INDEMNITY OBLIGATIONS), OR IF REQUIRED BY APPLICABLE LAW FOR ANY CONSEQUENTIAL, INCIDENTAL OR INDIRECT DAMAGES, THE TOTAL LIABILITY OF SOMNOMED FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT OR OTHERWISE) WILL NOT EXCEED THE LESSER OF THE AGGREGATE AMOUNT OF THE SERVICE FEES YOU HAVE PAID TO US FOR THE SOMNOMED REST ASSURE PATIENT APP DURING THE TWELVE MONTHS IMMEDIATELY PRECEDING THE DAY THE ACT OR OMISSION OCCURRED THAT GAVE RISE TO THE CLAIM OR USD $1,000.00 (UNITED STATES DOLLARS). YOU UNDERSTAND AND ACKNOWLEDGE THAT ABSENT YOUR AGREEMENT TO THIS LIMITATION OF LIABILITY, WE WOULD NOT PROVIDE YOU ACCESS TO THE SOMNOMED REST ASSURE PATIENT APP. THE LIMITATIONS PROVIDED IN THIS SECTION WILL APPLY EVEN IF ANY OTHER REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE.

Your exclusive remedy in the event of the complete and unrecoverable failure of the SomnoMed Rest Assure patient app to operate or perform is limited to, at SomnoMed’s discretion, providing available backup information, or refunding the Service fees you have paid for using the SomnoMed Rest Assure patient app during the twelve (12) months immediately preceding the date of such failure.

SomnoMed Rest Assure patient app relies on third-party products and services to provide parts of the SomnoMed Rest Assure patient app. For example, we rely on mobile operating system vendors and mobile carriers to enable connectivity and mobile device notifications through the Service. These third-party products and services are beyond our control and they may not operate in a reliable manner, be available 100% of the time, or become obsolete due to newer technology. SomnoMed is not responsible for any damages or losses, whether foreseeable or remote, due to the operation of third-party products.

Limitations on Liability and Remedies for users in the EU EEA, Switzerland and the UK
To the extent permitted by applicable laws, in no event shall SomnoMed be liable for any special, indirect, incidental, consequential, punitive, or exemplary damages or for loss of profits, revenues, contracts, customers, loss of use, loss of data, loss of business goodwill, business interruption, cost of replacement goods or services, or failure to realize expected cost savings which arises out of, or is in any way connected, to these Terms even if advised of the possibility of same or same were reasonably foreseeable.
If, notwithstanding the other provisions of these Terms, SomnoMed is found to be liable to you for any damage or loss which arises out of, or is in any way connected with, these Terms or your use of the SomnoMed Rest Assure patient app (“Claim”), to the extent permitted by applicable laws, SomnoMed’s liability shall in no event exceed an amount equal to the total of any/all fees for SomnoMed Rest Assure patient app received by SomnoMed from you in the twelve (12) calendar months immediately preceding your Claim.
You understand and acknowledge that absent your agreement to the foregoing limitations of liability, SomnoMed would not provide you with access to the SomnoMed Rest Assure patient app.

Nothing in these Terms limits or excludes our responsibility for death or personal injury caused by our negligence or any other liability that cannot be excluded or limited under applicable laws.

14. Intellectual Property Rights

The SomnoMed Rest Assure patient app is the proprietary property of SomnoMed. The SomnoMed Rest Assure patient app comprise Intellectual Property Rights (as defined in Clause 4 above), all of which will remain the exclusive property of SomnoMed, a SomnoMed affiliate, and/or their respective licensors. You will not copy, reproduce, modify, reverse engineer or decompile any portion of the SomnoMed Rest Assure patient app without the written permission of SomnoMed. You will use the SomnoMed Rest Assure patient app as provided in these Terms. Except as otherwise disclosed, SomnoMed owns all rights, title, and interest in and to all Intellectual Property Rights (as defined in Clause 4 above) worldwide in and to the SomnoMed Rest Assure patient app.

15. Governing Law

These Terms will be governed by and construed in accordance with the laws of the State of New South Wales, Australia, without regard or giving effect to its conflict of laws principles.

16. Dispute Resolution

To the extent permitted by applicable laws, all controversies and claims arising under or relating to these Terms are to be resolved in accordance with the governing laws set out in Clause 18 above. All proceedings shall be conducted in the language of the governing law. Subject to applicable law, each party shall bear its own costs, expenses and attorneys’ fees (and all related costs and expenses) incurred in connection with any proceeding arising from or related to any transaction contemplated by these Terms, and in connection with enforcing any judgment or order thereby obtained. Each party further agrees to waive any right to pursue a dispute by asserting a disputed claim in a representative capacity or participating in a class action with respect to SomnoMed Rest Assure patient app. However, in those cases where the rules governing jurisdiction and venue would be void under the laws of your respective country, the rules governing jurisdiction and venue for litigation and other disputes in your respective country will apply.

17. Notices

Notices from SomnoMed shall be in writing and may be sent by email or posted by any other method that SomnoMed reasonably determines will provide appropriate notice. Notices from you shall be in writing and may be sent by email to infousa@Somnomed.com (for Customers in the Americas); representative.eu@somnomed.com (for Customers in Europe, Middle East and Africa); contactaus@somnomed.com (for Customers in Asia Pacific). Notices from SomnoMed to you shall be effective:
(i) in the case of notices by email when sent to the email address known or made available to SomnoMed by you or on your behalf; or (ii) in the case of postings by other methods deemed reasonable by SomnoMed, ten (10) business days after such notices are sent in the manner reasonably determined by SomnoMed. Notices from you to SomnoMed shall be effective when received by SomnoMed.

18. Assignment

You may not assign, novate or otherwise transfer any of your rights under these Terms without our prior written consent, and any such attempt to do so without our consent will be null and void. We may in our discretion assign, novate, subcontract or otherwise transfer without further consent or notification any of our rights and delegate any of our duties under these Terms to a company affiliated with us or to any other party.
19. Severability

20. Modification of Terms

These Terms and the provision of the SomnoMed Rest Assure patient app are subject to change from time to time. In such cases, SomnoMed will provide you with details of any changes to these Terms and you will be asked to reaccept them. If you do not agree to the modified Terms of Use, we may opt to suspend or terminate your access and use of the SomnoMed Rest Assure patient app, and (if applicable)refund any fees paid by you which are attributable to the unexpired portion of the period for which you paid those fees.

21. Waiver and Entire Agreement

22. Force Majeure

SomnoMed will not be liable for delays or failures in performance due to any cause beyond our reasonable control including labour disputes or other industrial disturbances, systemic electrical, telecommunications or other utility failures, power outages, strikes or other labour unrest, delays caused by payees, pandemics, fires, floods, earthquakes, storms, or other acts of nature, embargoes, riots, acts or orders of government, acts of terrorism or war.

By checking the “I accept the terms and conditions” box on the SomnoMed Rest Assure patient app, I acknowledge that I am electronically signing these Terms and agreeing to be legally bound by all of the terms and conditions contained or referenced in these Terms.

EXHIBIT A
Personal Information and Personal Health Information Addendum Applicable to Customers in Canada only
Customer and SomnoMed (defined above in the Terms) have entered into SomnoMed Rest Assure patient app Terms of Use (the “Terms”) under which SomnoMed may collect, use, retain, store, disclose, de-identify and dispose of and otherwise process certain personal information (“PI” )and personal health information (“PHI”) of the Customer’s patients. To the extent that the Customer is a “health information custodian,” “custodian,” “trustee” or “organization” (as those terms are defined under Privacy Legislation [as defined below] ), and the Customer provides PI and/or PHI of its patients to a SomnoMed entity that is an “agent,” “information manager,” “affiliate,” “trustee” or “organization” (as those terms are defined under Privacy Legislation) as part of the provision of the SomnoMed patient app (as defined in the Terms) to and on behalf of the Customer, the Customer and SomnoMed agree as follows with respect to the exchange of PI and/or PHI through use of the SomnoMed Rest Assure patient app or otherwise:

I. GENERAL PROVISIONS

Section 1. Effect. This Personal Information and Personal Health Information Addendum (“Addendum”) defines, supplements, modifies and amends the Terms with respect to PI and/or PHI. The terms and provisions of this Addendum will supersede any other conflicting or inconsistent terms and provisions in the Terms with respect to PHI and shall govern SomnoMed’s obligations with respect to all PI and/or PHI received from the Customer.
Section 2.Definitions. All capitalized terms used herein that are not otherwise defined shall have the following meanings:
“Breach” means (a) the loss or misuse of PI and/or PHI,(b) the accidental, unauthorized and/or unlawful access, disclosure or handling of PI and/or PHI, or (c) any other act or omission that compromises the security, confidentiality and/or integrity of PI and/or PHI.
“CASL” means an Act to promote the efficiency and adaptability of the Canadian economy by regulating certain activities that discourage reliance on electronic means of carrying out commercial activities, and to amend the Canadian Radio-television and Telecommunications Commission Act, the Competition Act, the Personal Information Protection and Electronic Documents Act and the Telecommunications Act, S.C. 2010, c. 23, commonly known as “Canada’s Anti-Spam Legislation.”
“Commercial Electronic Message” has the meaning as assigned to the term in CASL.
“Individual” means the identified or identifiable individual whose PI and/or PHI is processed; an identifiable individual is one who can be identified, directly or indirectly, in particular by reference to an identification number or to one or more factors specific tohis/her physical, physiological, mental, economic, cultural or social identity.
“Legal Action” means any demand, claim, action, complaint, investigation or audit by a third party relating to the collection, use, retention, storage, protection, disclosure, de-identification, destruction or other processing of PI and/or PHI in connection with the SomnoMed Rest Assure patient app or as otherwise authorized under the Terms and this Addendum by Customer.
“Privacy Legislation” means applicable federal and provincial privacy and data protection legislation and the regulations enacted thereunder, including, but not limited to: Personal Information Protection and Electronic Documents Act, SC 2000, c 5; Personal Health Information Protection Act, 2004, SO2004, c 3, Sch A; Personal Information Protection Act, SBC 2003, c63; Personal Information Protection Act, SA 2003, c P-6.5; Personal Health Information Act, SNS 2010, c 41; The Personal Health Information Act, CCSM c P33.5; The Health Information Protection Act, SS 1999, c H-0.021; and an Act respecting the Protection of Personal Information in the Private Sector, CQLR c P-39.1.
“PHI” means any personal health information (as defined by Privacy Legislation) relating to an Individual; It includes without limitation electronic data and paper-based files that contain such information.

“PI” means any personal information (as defined by Privacy Legislation) relating to an Individual (including any information that can be reverse-engineered, cross-linked or combined with other available information to identify an Individual); it includes without limitation electronic data and paper-based files that contain such information and depending on the applicable Privacy Legislation ,may further include, without limitation, PHI. “Unsuccessful Security Incident” means, without limitation, pings and other broadcast attacks on SomnoMed’s firewall, port scans, unsuccessful log-in attempts, denial of service attacks, and any combination of the above, so long as no such incident results in unauthorized access, use or disclosure of Customer’s electronic PI and/or PHI.

Section 3. Amendment. SomnoMed and the Customer agree to amend this Addendum to the extent necessary to allow either SomnoMed and/or the Customer to comply with Privacy Legislation as may be amended from time to time.

II. OBLIGATIONS OF SOMNOMED
Section 1. Collection, Use and Disclosure of PI and/or PHI. SomnoMed is permitted to collect, use, retain, store, disclose, de-identify or dispose of and otherwise process PI and/or PHI for purposes that a reasonable person would consider appropriate in the circumstances provided that such collection, use, retention, storage, disclosure, de-identification, disposal or other processing of PI and/or PHI is only as authorized under the Terms and this Addendum or otherwise by the Customer (and by the Individual who is the subject of the PI and/or PHI, with such Individual’s consent having been given to SomnoMed), or as required by law. SomnoMed shall not otherwise collect, use, retain, store, disclose, or dispose of any PI and/or PHI unless authorized by the Customer. The parties agree that SomnoMed may disclose PI and/or PHI to its affiliates (or other related entities), agents and subcontractors who will only use such PI and/or PHI for the same purposes as SomnoMed in connection with the SomnoMed Rest Assure patient app, the Terms or this Addendum.

SomnoMed shall not and shall take reasonable steps to ensure that its directors, officers, employees, affiliates, subcontractors and agents do not, collect, use, retain, store, disclose, de-identify or dispose of any PI and/or PHI received from the Customer in any manner that would constitute a violation of Privacy Legislation.

Except as otherwise limited in the Terms or this Addendum and provided that SomnoMed complies with Privacy Legislation and CASL, the Customer permits SomnoMed to collect, use, retain, store, de-identify, dispose of and otherwise process PI and/or PHI: (i) for performance, management and/or administration of SomnoMed, the SomnoMed Rest Assure patient app, the Terms or this Addendum; (ii) to fulfill SomnoMed’s legal obligations in connection with the SomnoMed Rest Assure patient app, the Terms or this Addendum;(iii) to provide PI and/or PHI aggregation services; (iv) to communicate with the Customer and Individuals for the purposes of marketing SomnoMed’s new and existing products and services; (v) to develop and improve SomnoMed’s new and existing products and services; (vi) as required by applicable law; and (vii) as otherwise authorized by the Customer in writing. Notwithstanding the foregoing, nothing herein shall permit SomnoMed to send Commercial Electronic Messages to any person unless SomnoMed has express or implied consent to do so in accordance with CASL (or an exception to CASL’s consent requirements applies) and with Privacy legislation.

Except as otherwise limited in the Terms or this Addendum, SomnoMed may disclose PI and/or PHI: (i) for performance management and/or administration the SomnoMed Rest Assure patient app, the Terms or this Addendum; or (ii) to fulfill SomnoMed’s legal obligations, if the disclosure is required by law, and (iii) as otherwise authorized by the Customer or patient.

Except where disclosure is required by law, SomnoMed shall obtain reasonable assurances from the person to whom the PI and/or PHI is disclosed that: (i) the PI and/or PHI will remain confidential and will be used or further disclosed only as required to comply with the law or a binding order of governmental body or for the purpose for which it was disclosed to the person; and (ii) the person agrees, as required by the applicable law, to notify SomnoMed of known unauthorized access to PI and/or PHI that is subject to applicable data breach notification law where such access is caused by a confirmed breach of the person’s security measures and renders misuse of the PI and/or PHI reasonably likely.

Notwithstanding any other provision contained in this Addendum, the Customer expressly authorizes SomnoMed to: (i) disclose PI and/or PHI for the purposes of treatment activities of a healthcare provider; (ii) disclose PI and/or PHI to third-party service providers or subcontractors authorized pursuant to this Addendum for the payment activities of the third-party service provider or subcontractor; (iii) disclose PI and/or PHI to third-party service providers or subcontractors authorized pursuant to this Addendum for health care operations activities of the entity that receives the PI and/or PHI, if each entity either has or had a relationship with the Individual who is the subject of the PI and/or PHI being disclosed, the PI and/or PHI pertains to such relationship and the disclosure is necessary for the third-party service provider or subcontractor to carry out its obligations; and (iv) disclose PI and/or PHI to third-party service providers or subcontractors that provide data hosting and/or storage services, including, without limitation, Microsoft Azure Services (if applicable).

Section 2. Compilation of Reports; De-identification. Notwithstanding any other provision contained in this Addendum, the Customer expressly authorizes SomnoMed to de-identify any and all PI and PHI for: (i) the purpose of generating reports for distribution to the Customer; (ii) the purpose of linking such de-identified data with other third-party databases for analytics; (iii) as part of registered clinical trials and (iv) SomnoMed’s internal purposes, including to develop, improve, market and offer to the Customer SomnoMed’s new and existing products and services.

Section 4. Privacy Policies and Employee Training .SomnoMed and Customer shall maintain privacy policies in accordance with Privacy Legislation, which will include without limitation a process to respond to complaints arising under Privacy Legislation, and these policies will be made available for inspection on request.
SomnoMed and customer shall educate its employees on Privacy Legislation and CASL, on handling PI and PHI in accordance with Privacy Legislation, and on respective privacy policies, and shall take reasonable steps to ensure employee compliance through staff training, confidentiality and data protection agreements and employee sanctions for material non-compliance.

Section 7. Access to Information. Subject to any restrictions under applicable laws, if SomnoMed maintains a record of PI and/or PHI (as defined in Privacy Legislation) in connection with the SomnoMed Rest Assure patient app, the Terms or this Addendum, upon request of the Customer, SomnoMed shall provide access to such record of PI and/or PHI to the Customer, to the extent necessary for the Customer to comply with its obligations under Privacy Legislation. If SomnoMed receives a direct request from an Individual for access to PI and/or PHI, subject to SomnoMed’s obligations pursuant to Privacy Legislation, SomnoMed will verify the individual identity and will provide this information to the individual.

Section 8. Availability of PI and/or PHI for Amendment. If SomnoMed receives a direct request from an Individual for amendment or correction to that Individual’s PI and/or PHI or an expressed wish of an Individual relating to the disclosure of that Individual’s PHI, subject to SomnoMed’s obligations pursuant to Privacy Legislation, SomnoMed will verify the identity of the individual and amend the individuals’ details.

Section 9. Disclosure Log. SomnoMed shall maintain a log of access to, and disclosure by SomnoMed and SomnoMed’s employees of PI and/or PHI in connection with individual’s requests to change HCP’s who can view their data and make details of this log available to the Customer as and when requested.

Section 10. Availability of Books and Records. SomnoMed agrees to make its internal practices, books and records relating to the use and disclosure of PI and/or PHI received from, or created or received by SomnoMed on behalf of, the Customer available to the Customer for purposes of determining compliance with the Privacy Legislation.

Section 11. Remuneration in Exchange for PI and/or PHI. Except for the purposes set forth in the Terms and this Addendum and as otherwise permitted or provided by law, SomnoMed shall not directly or indirectly receive remuneration in exchange for any PI and/or PHI of an Individual.

Section 13. Communication regarding Privacy Matters .SomnoMed shall provide the Customer with the name of a contact person at SomnoMed responsible for SomnoMed’s privacy compliance and notify the Customer within twenty-four (24)hours of any changes in the identity of the responsible person. SomnoMed’s Privacy Officer can be contacted at privacy@somnomed.com.

III. OBLIGATIONS OF CUSTOMER
Section 1. Disclosure of PI and/or PHI to SomnoMed. The Customer shall disclose PI and/or PHI to SomnoMed only as permitted under Privacy Legislation and only to the extent such PI and/or PHI is necessary for SomnoMed to support the SomnoMed Rest Assure patient app or fulfill SomnoMed’s legal obligations in connection with the SomnoMed Rest Assure patient app, the Terms or this Addendum.

Section 3. Consent of Individuals. SomnoMed shall provide all necessary notices to and obtain all necessary consents from Individuals, (including, without limitation, Privacy Legislation and CASL), in order for Customer and SomnoMed to collect, use, retain, store, de-identify, disclose or dispose of and otherwise process PI and/or PHI for all purposes permitted by the Terms, this Addendum and otherwise by the Customer (including, without limitation, to permit SomnoMed to operate SomnoMed’s Rest Assure patient app and to otherwise satisfy its obligations under the Terms and this Addendum) or as otherwise permitted or required by law.

Section 4. Hosting of Customer data, PI and/or PHI outside Canada. The Customer agrees that SomnoMed and its affiliates, agents, subcontractors and service providers may transfer PI and/or PHI and access, retain, store, use, de-identify, dispose of and otherwise process PI and/or PHI and customer data outside Canada, including, without limitation, in the United States and The Philippines. The Customer acknowledges that their customer data, PI and/or PHI: (i) may be transferred to, accessed, retained, stored, used, de-identified, disposed of and otherwise processed by SomnoMed and its affiliates, agents, service providers and subcontractors outside Canada, including the United States and the Philippines, for the same purposes as SomnoMed in connection with the SomnoMed Rest Assure patient app, the Terms or this Addendum; (ii) will be subject to applicable foreign laws and disclosure requirements, including in the United States and The Philippines; and (iii) may be accessed by foreign courts, law enforcement and national security authorities, including the United States and The Philippines.

TERM AND TERMINATION
Section 1. Term. This Addendum will become effective on the Effective Date of the Terms and unless otherwise terminated as provided herein, will have a term that will run concurrently with that of the last expiration date or termination of the Terms.

Section 2. Termination Upon Breach of Provisions Applicable to PI and/or PHI. Any other provision of the Terms notwithstanding, this Addendum and the Terms may be terminated by the Customer upon thirty (30) days’ written notice to SomnoMed in the event that SomnoMed breaches any material provision contained in this Addendum and such breach is not cured within thirty(30) days of the date the Customer provides written notice of the alleged material breach.

Section 3. Effect of Termination. Upon termination of the Terms and this Addendum, subject to any legal restrictions, SomnoMed shall return or permanently, irretrievably and securely delete, destroy and/or dispose of all PI and/or PHI received from the Customer. SomnoMed shall not retain any copies of such PI and/or PHI unless required by applicable law or to satisfy a regulatory or reporting obligation. Notwithstanding the foregoing, to the extent that it is not possible to return or destroy such PI and/or PHI, this Addendum shall survive such termination and such PI and/or PHI shall be used or disclosed solely for such purpose or purposes which prevented the return or destruction of such PI and/or PHI or as required by applicable law.

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