Last Updated: January 27, 2026

VIVID Pill Counter Terms and Conditions

This VIVID Pill Counter Subscription Agreement (“Subscription Agreement”) is entered into by and between Scientific Industries, Inc. ("Scientific Industries") and the entity providing Electronic Acceptance (as defined below) to this Subscription Agreement (“Client”), on the date that Client provides Electronic Acceptance (“Effective Date”). This Subscription Agreement shall incorporate the Scientific Industries Website Terms and Conditions and the Scientific Industries Website Privacy Policy (collectively, “Ancillary Agreements,” and together with this Subscription Agreement, the “Agreement”). 

The Agreement sets forth the parties’ respective rights and obligations concerning Client’s purchase of a subscription (“Subscription”), which: (a) includes one (1) VIVID Pill Counter device (“Device”); (b) entitles Client to access the VIVID software application that supports the Device (collectively, “Software”); and (c) entitles Client to access to certain support services associated with the Device and Software (collectively, “Support Services,” and together with the Device and Software, the “Device, Software and Services”). To the extent that anything in or associated with this Subscription Agreement is in conflict or inconsistent with any Ancillary Agreement, this Subscription Agreement shall take precedence unless otherwise stated to the contrary therein. The Agreement sets forth the parties’ respective rights and obligations concerning Scientific Industries granting Client access to, and use of, Scientific Industries’ proprietary Device, Software and Services. For purposes of the Agreement, any reference to Client shall include any and all of Client’s employees accessing the Device, Software and Services, authorized contractors accessing the Device, Software and Services, and/or authorized agents accessing the Device, Software and Services (collectively, “Users”). Client shall ensure that all Users accessing the Device, Software and Services comply with Scientific Industries’ use restrictions concerning the Device, Software and Services set forth herein.

 

1. Device, Software and Services Overview.

Subject to the terms and conditions of the Agreement, and any subsequent limitations established by Scientific Industries upon prior email notice to Client from time-to-time, Scientific Industries grants Client a limited, revocable, non-exclusive, non-transferable, non-sublicensable internal right, during the Term (as defined below) only, for Client and its authorized Users who are under direct supervision, to: (a) access and use Scientific Industries’ proprietary Device, Software and Services (including those components made available by Scientific Industries’ third-party technology partners (“Licensors”)), made available as an ongoing subscription service and related interfaces; and (b) access and use the documentation associated with the Device, Software and Services (“Documentation”) in connection with its use of the Device, Software and Services. Users who access and use the Device, Software and Services must each have their own account that is associated with a corporate email address assigned to them by Client (each, a “User Account”) and may only access and use the Device, Software and Services via such User Accounts. Client shall be solely responsible for any and all activities that occur by and through use of any and all User Accounts, including any charges incurred in connection therewith. Scientific Industries will use commercially reasonable efforts to: (i) maintain Device, Software and Services uptime, but Scientific Industries provides no guarantee of availability; and (ii) support Client use cases, but Scientific Industries does not guarantee the availability of particular features, functionality or other attributes of the Device, Software and Services. Client may only access and use the Device, Software and Services in the United States and Canada (“Permitted Territory”).

 

2. Device, Software and Services Functionality and Limitations.

Depending on the Subscription plan that Client has obtained, the Device, Software and Services act as an automated medication counting system that uses proprietary algorithms to: (a) count pills, tablets and capsules (collectively, ”Pills”); (b) process non-countable medications (e.g., unit-of-use items, such as inhalers, creams, and liquids); and (c) capture images of prescription labels for reporting and practice management functionality. Please be advised that the Device, Software and Services are intended to serve as an assistive tool for licensed pharmacy personnel only. Client acknowledges and agrees that use of the Device, Software and Services is subject to the following disclaimers, caveats and limitations:

2.1 Counting Limitations.

The Device, Software and Services may not provide an accurate count of Pills. Client and its Users are solely responsible for verifying all Pill counts manually and should not rely on the Device, Software and Services for providing an accurate Pill count in all circumstances. Without limiting the foregoing, the Device, Software and Services may not detect or accurately count: (a) yellow translucent gel Pill capsules with little or no pigmentation; (b) fully clear or minimally pigmented translucent Pill capsules; (c) Pills with obscure or irregular shapes (e.g., stars, triangles); (d) Pills containing a through-hole; or (e) Pills on overfilled Pill trays, as overcrowding prevents accurate counting.

 2.2 Performance Factors.

Without limiting the disclaimers set forth in Section 2.1 above, the accuracy of Pill counting by the Device, Software and Services may also be affected by: (a) lighting conditions; (b) tray cleanliness; (c) the presence of dust, debris, or foreign objects on the Pill tray and/or obscuring the Device’s optical sensors; and/or (d) incorrect tray and/or Device use or neglected maintenance (collectively, “Performance Factors”).

2.3 Color Detection Feature.

The color detection feature, which can help to identify some Pills of the same shape but different colors, is available with some Subscription plans; provided, however, that Client acknowledges and agrees that: (a) the color detection feature is intended only as an assistive tool for licensed pharmacy personnel, and Client and its Users are solely responsible for verifying all Pill colors; and (b) the color detection feature is subject to the Performance Factors listed above, and may be further impeded by Pill color variance and/or type.

2.4 Barcode Scanning and National Drug Code (“NDC”) Verification.

The Device, Software and Services include barcode-scanning and NDC-validation features that can be used by Client and its Users to verify medication data which include the following: (a) scanning: (i) standard universal product code (“UPC”) barcodes commonly printed on medication packaging; and (ii) Global Standards 1 (“GS1”)-compliant DataMatrix barcodes (Global Trade Item Number (“GTIN”) format); and (b) cross-referencing scanned UPC values with corresponding NDCs; provided, however, that, Client acknowledges and agrees that: (i) the barcode-scanning and NDC-validation features are intended only as assistive tools for licensed pharmacy personnel, and Client and its Users are solely responsible for verifying all UPC and NDC codes; (ii) the Device, Software and Services UPC-to-NDC mapping relies on standardized conversion tables and drug databases made available by third-parties, such as the Medi-Span database (made available by Wolters Kluwer N.V. (“Wolters Kluwer”)) and the Food and Drug Administration (“FDA”) NDC Directory and, as such, Scientific Industries has no control over, or responsibility for, the accuracy of the data contained in those databases or the results generated by mapping utilizing such databases; (iii) the Device, Software and Services barcode-scanning and NDC-validation features rely on standard conversion rules when interpreting NDC formats and, as such, variations between 10-digit and 11-digit formats may result in incorrect or incomplete validation; and (iv) Scientific Industries is not responsible for validation errors that arise due to: (A) manufacturer formatting differences; (B) UPC-to-NDC mapping discrepancies; (C) 10/11-digit conversion anomalies; and/or (D) missing or irregular GTIN encoding.

2.5 Client Obligations and Limitations of Liability Associated with Barcode Scanning and NDC Verification.

Without limiting the provisions set forth in Section 2.4 above, Client and its Users are solely responsible for: (a) confirming that the scanned NDC matches the prescribed medication; (b) ensuring that lot and expiration information for the prescribed medication is correct; and (c) validating correct product selection despite any scanner-generated alert signal or pass message. Scientific Industries shall not be liable, in any way, for dispensing errors resulting from reliance on barcode-scanning and/or NDC-validation features. Without limiting the foregoing: (i) Scientific Industries shall not be liable for incorrect validation based on inaccurate, incomplete, or outdated barcode data; (ii) no warranty is provided by Scientific Industries regarding barcode availability, readability or correctness; (iii) variations in manufacturer packaging, printing, or coding may cause incorrect interpretations; and (iv) Client assumes all risks associated with relying on barcode-derived information.

2.6 Third-Party Data Feeds.

The Device, Software and Services rely, in part, on third-party data feeds and medication-related data, as same are made available by the FDA, Wolters Kluwer and other third parties (“Third-Party Data Providers”), which include drug images, brand/generic relationships, identifiers, clinical data, labeler, product, and package codes (collectively, “Third-Party Data and Images”). Scientific Industries does not control the Third-Party Data and Images that are made available by Third-Party Data Providers in connection with the Device, Software and Services. The Third-Party Data Providers are solely responsible for the accuracy, completeness, appropriateness, safety and/or usefulness of the Third-Party Data and Images. The Third-Party Data and Images should not necessarily be relied upon by Client. Scientific Industries does not represent or warrant that the Third-Party Data and Images and other information made available by and/or through the Device, Software and Services is accurate, complete, up-to-date or appropriate. Client understands and agrees that Scientific Industries will not be responsible for, and Scientific Industries undertakes no responsibility to monitor or otherwise police, Third-Party Data and Images provided by Third-Party Providers. Client agrees that Scientific Industries shall have no obligation and incur no liability to such users in connection with any Third-Party Data and Images. Without limiting the foregoing, the Third-Party Data and Images may not reflect all state-specific regulatory requirements, and Client is solely responsible for confirming same prior to dispensing any Pills.

2.7 Remote Access, Updates and Bug Fixes.

Scientific Industries reserves the right (but is not obligated) to add additional features or functions to the existing Software, and to provide technical support, including bug fixes, error corrections, patches, new releases or any other component not specified within the Agreement, from time-to-time. The Software periodically communicates with Scientific Industries’ servers. Scientific Industries may require the updating of the Software residing on Client’s Device when Scientific Industries releases a new version of the Software, or when Scientific Industries makes new features available. Updates to certain features may require action on the part of Client, such as activation or upgrading to the latest version through its account(s). The aforementioned technical support and/or updates may also occur automatically without prior notice through remote access to Client’s Device, or upon prior notice to Client and may occur all at once or over multiple sessions, in Scientific Industries’ sole and absolute discretion. Client hereby consents to this remote access and these update/technical support services. Scientific Industries’ access to Client’s Device will be limited to providing support, facilitating the provision of the Device, Software and Services and/or updating the Software. Where Scientific Industries is denied access for these purposes, Client’s ability to utilize the Device, Software and Services may be limited. Client acknowledges and agrees that Scientific Industries has no obligation to make any subsequent versions of the Software available, or to provide bug fixes, error corrections, patches, new releases or any other component not specified within the Agreement. Scientific Industries reserves the right, upon reasonable, notice to discontinue or limit the use of the older versions of any Device, Software and Services features.

2.8. Open-Source Software Notices and License Acknowledgments.

The Device, Software and Services rely on certain third-party open-source software components (“Open-Source Software”). These Open-Source Software components are incorporated into the Device, Software and Services in compliance with the respective licenses of the third-party open source software providers (“Third Party Open-Source Software Providers”). The following Open-Source Software libraries are used within the Device, Software and Services: (a) DIPLib 3.3; and (b) OpenCV 4.6, as each are licensed under the Apache License 2.0, a copy of which can be accessed at the following URL: https://www.apache.org/licenses/LICENSE-2.0. Scientific Industries does not claim ownership of the Open-Source Software components. All use by Client and its Users of the Open-Source Software remains subject to the licenses applicable to the Open-Source Software. The Open-Source Software is provided on an “AS IS” and “AS AVAILABLE” basis, without warranty of any kind. Scientific Industries provides no warranties, express or implied, regarding the Open-Source Software and disclaims all responsibility for performance, security and/or defects arising from or related to the Open-Source Software components. Use of the Device, Software and Services does not grant Client any rights to modify, distribute, or reverse-engineer the Open-Source Software components.

 

3. Cloud Infrastructre, AWS Hosting, and Service Dependency. 

3.1 AWS Infrastructure.

Client acknowledges and agrees that the Device, Software and Services rely on Amazon Web Services (“AWS”) for hosting, storage, networking, and security infrastructure including, but not limited to: (a) account authentication and role management; (b) Subscription validation; (c) analytics dashboards and reporting; (c) non-PHI (as defined below) image transmission; (d) system configuration, updates, and backend services; (e) redundancy, backups, and resilience; and (f) storage of non-sensitive operational data. AWS provides industry-standard security certifications (e.g., SOC 1/2/3, ISO 27001, FedRAMP, where applicable). Client acknowledges and agrees that Scientific Industries relies on AWS’s physical, environmental, and infrastructure security safeguards. In light of the foregoing, Client is responsible for securing its own Device, networks and access credentials. For purposes of the Agreement, “PHI” means Protected Health Information, which is any individually identifiable health information related to a person's past, present, or future health, care, or payment for care, protected by laws like the Health Insurance Portability and Accountability Act (“HIPAA”) to maintain patient privacy, including medical records, diagnoses, demographic data (name, address, SSN), and insurance details, in any format (paper, electronic, verbal). 

3.2 AWS Uptime Commitments and Service Interruptions.

Scientific Industries does not guarantee uninterrupted, error-free, or continuous AWS availability. Outages, slowdowns, or disruptions in AWS services may affect Cloud (as defined below) functionality associated with the Device, Software and Services. For purposes of the Agreement, the “Cloud” refers to remote servers that are accessed over the Internet, and the software and databases that run on those servers. Further, AWS may update, modify, or deprecate underlying services at any time and such changes may impact the Cloud features associated with the Device, Software and Services. Scientific Industries reserves the right, but is not obligated, to modify Cloud infrastructure, architecture, or configurations in response to AWS changes/downtime. Scientific Industries is not liable for AWS updates/modifications, AWS outages, performance degradation, regional downtime, or other third-party hosting incidents that affect the performance and/or availability of the Device, Software and Services in any way, including any losses, delays, or errors arising from or related thereto. AWS uptime commitments are governed by AWS's Service Level Agreements, not Scientific Industries’. Scientific Industries cannot exceed the uptime, durability, or security guarantees provided by AWS. 

3.3 AWS Data Handling, Storage, and Redundancy.

Client acknowledges and agrees that: (a) the Device, Software and Services Cloud ecosystem depends on AWS for backup, replication and data durability which comprises the full extent of the underlying durability and redundancy of stored data; (b) non-PHI data transmitted to Scientific Industries’ Cloud services may be stored in AWS-managed environments; provided, that, PHI is not stored within AWS unless expressly stated otherwise (currently PHI is handled only through Azure as detailed below), and Scientific Industries does not backup PHI; and (c) AWS availability zones and replication mechanisms govern redundancy, not Scientific Industries’ systems. In light of the foregoing, Client acknowledges and agrees that: (i) the backup, replication and data durability features are provided on an “AS IS” and “AS AVAILABLE” basis, without warranty of any kind; (ii) Data loss or corruption may occur due to AWS outages, user actions, or factors beyond Scientific Industries’ control; (iii) Scientific Industries does not guarantee successful or complete restoration of data; and (iv) Scientific Industries is not responsible, or liable, for data loss, delayed restoration and/or backup failures attributable to AWS or Client’s acts and/or omissions.

3.4 Client Responsibilities for Local Data.

Client is solely responsible for backing up: (a) PHI and prescription label images stored locally on the Device; (b) payment management system (“PMS”) transaction data; (c) structured query language (“SQL”) databases stored within Client’s internal environment; and (d) any records required under applicable federal, state and/or local laws, rules and regulations including, without limitation, HIPAA. Without limiting the foregoing, Client acknowledges and agrees that Scientific Industries does not back up, store, or recover locally stored PHI or internal prescription-related data.

3.5 Cloud Data Retention Policy.

It is Scientific Industries’ policy to destroy any and all data transmitted by Client through the Cloud in connection with Client’s use of the Device, Software and Services (“Cloud Data”) when such Cloud Data is no longer required to facilitate the provision of the Device, Software and Services to Client (“Destruction Schedule”), other than where a longer retention period is required by Applicable Law (as defined below) or there is a Litigation Hold (as defined below) placed on such Cloud Data. Client acknowledges and agrees that deletion of Cloud Data does not affect, remove, or overwrite any locally stored PHI or PMS data. For purposes of the Agreement, a “Litigation Hold” is applied where Scientific Industries; (a) receives notice that a lawsuit or other legal or administrative proceeding has been initiated or filed, or learns of facts creating a reasonable likelihood that a lawsuit or other legal or administrative proceeding will be initiated or filed (including threats of a lawsuit or other legal or administrative proceeding), against Scientific Industries involving any Cloud Data; (b) receives notice that a consumer complaint has been filed, or learns of facts creating a reasonable likelihood that a consumer complaint will be filed against Scientific Industries involving any Cloud Data; and/or (c) receives notice that a regulatory action or inquiry has been initiated involving any governmental regulatory body, or learns of facts creating a reasonable likelihood that a regulatory action or inquiry will be initiated (including threats of a regulatory action or inquiry), where Scientific Industries is the target, either directly or indirectly, . 

 

4. Data Handling, Privacy, and PHI Processing.

4.1 Local Data Storage.

The Device stores the following data locally, in SQL database and system files: (a) PMS-delivered prescription data (which contains PHI); (b) image logs of Pills; and (c) images of prescription labels (which may include the applicable User’s face, body or other items/individuals appearing in the background) (collectively, “Locally Stored Data”) Client is at all times solely responsible for the security of, and access to, the Device and all Locally Stored Data stored on the Device. Client must implement technical, physical, and administrative safeguards to ensure that the Device, and associated Locally Stored Data, remain secure at all times. Scientific Industries shall not be liable in any way for any unauthorized access to the Device and/or the Locally Stored Data stored on the Device

4.2 PHI Processing via Azure (for label OCR).

PHI is processed exclusively through HIPAA-eligible Microsoft Azure services (“Azure”) under an agreement between Scientific Industries and Microsoft, Inc.; provided, that: (a) no PHI is sent to Azure demo, preview, Vision Studio, or non-compliant endpoints; (b) all PHI transmission uses encrypted HTTPS; and (c) Microsoft, Inc. is not authorized by Scientific Industries to use PHI for training, external systems and/or any purpose other than facilitating the provision of the Device, Software and Services.

4.3 Automated Image Capture.

Client acknowledges and agrees that some Subscription tiers transmit non-PHI Pill images to Scientific Industries for the following purposes: (a) quality improvement; (b) algorithmic training; and (c) internal analytics. The non-PHI Pill images include drug type and NDC only, with no patient data.

4.4 PMS/HL7 Integration.

The Device receives PHI locally from Client’s PMS via Health Level Seven (“HL7”); provided, that: (a) this PHI is not transmitted online; and (b) Client is solely responsible for securing and maintaining the PMS-to-Device connection.

 

5. Client Responsibilities and Restrictions.

5.1 Client Responsibilities.

Client is solely responsible for: (a) dispensing, verification, and accuracy of Pill counts; (b) proper operation and maintenance of the Device including, keeping the tray and other components clean and in good repair; (c) ensuring proper lighting and other environmental factors; (d) removing non-Pill objects from the Device tray; (e) updating Software-related security patches, as well as Microsoft Windows-related security patches; (d) providing Wi-Fi or Ethernet in order to access the Device, Software and Services; (e) implementing firewall, routing, security configuration, antivirus and physical security protocols in connection with Client’s use of the Device, Software and Services; (f) configuring and ensuring secure access to the Device, Software and Services and that the Device, Software and Services are only used by authorized Users; (g) complying with all applicable federal, state and/or local laws, rules and regulations related to the collection, storage, transmission and use of PHI in connection with Client’s use of the Device, Software and Services including, without limitation, HIPAA, as well as any applicable state and/or federal regulations applicable to pharmacy-related businesses and/or services; and (h) maintaining any and all licenses and/or permits necessary for the operation of the Client Business (as defined below).

5.2 Restrictions.

Other than as expressly permitted in the Agreement, Client will not, and will not authorize any third party (including any Users) to, directly or indirectly: (a) interfere or attempt to interfere with the proper working of the Device, Software and Services, including through abuse of server capacity; (b) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure of the Device, Software and Services or any software or data related to the Device, Software and Services; (c) copy, alter, modify, or create derivative works of the Device, Software and Services or any software, source code, object code, underlying structure, design, look and feel, expression, ideas or algorithms, or Documentation associated therewith; (d) sell, rent, lease, distribute, pledge, assign, or otherwise transfer or encumber any rights to the Device, Software and Services; provided, however, that Client may sell the Device (but not the Software) as a complete unit (not the constituent parts) in accordance with the conditions and restrictions set forth in Section 14 below; (e) remove or otherwise alter any proprietary notices or labels from the Device, Software and Services or any portion thereof; (f) bypass any measures to prevent or restrict access to the Device, Software and Services (or other accounts, computer systems or networks connected to the Device, Software and Services); (g) scan or test vulnerability of the Device, Software and Services or related products and/or services without Scientific Industries’ prior written consent; or (h) use the Device, Software and Services: (i) for any fraudulent or unlawful purpose; (ii) in violation of any Applicable Law, or a third party’s proprietary or contractual rights; (iii) to build any products or services that are competitive with the Device, Software and Services; (iv) outside of the Permitted Territory; (v) in a way that circumvents any contractual usage limit; (vi) for any system or application in which the failure of the Device, Software and Services could create a risk of personal injury or death, such as medical systems, life sustaining or life-saving systems, transportation systems, or nuclear systems; or (vii) in any way that otherwise violates the use restrictions set forth in the Agreement or Documentation.

5.3 Client Business Use Only.

Client acknowledges and agrees that Client’s subscription to the Device, Software and Services is limited to connecting Client’s internal business functions and operations (collectively, “Client Business”) and, other than as expressly permitted in the Agreement, no other right is granted hereunder to use the Device, Software and Services for the benefit of third parties, including as a service bureau, time-sharing or managed Scientific Industries arrangement. Client shall not permit Scientific Industries competitors, or individuals acting on behalf of Scientific Industries competitors, to access the Device, Software and Services. The Device, Software and Services may not be accessed for any benchmarking, comparative or competitive purposes unless preauthorized in writing by Scientific Industries.

5.4 Client Account Access.

Client and its Users will create and maintain unique access credentials in connection with Client’s account(s) for its use of the Device, Software and Services (“Access Credentials”), and will keep all Access Credentials secret and confidential. Client will be responsible for all activities that occur through use of such Access Credentials. Client shall immediately notify Scientific Industries of any actual or suspected unauthorized access to, or use of, Client’s account.

 

6. Intellectual Property Rights.

 6.1 Client Data.

Client shall at all times own and retain all right, title and interest in and to the Cloud Data, as well as any and all other PHI and non-PHI transmitted by and/or through the Device, Software and Services (collectively, the “Client Data”). During the Term, Scientific Industries and its sub-processors will have the right to use Client Data solely for purposes of providing the Device, Software and Services to Client and fulfilling its obligations hereunder.

6.2 Device, Software and Services.

As between Client and Scientific Industries, all right, title, and interest in and to the Device, Software and Services shall at all times be owned exclusively by Scientific Industries; provided, however, that Client may sell the Device (but not the Software) as a complete unit (not the constituent parts) in accordance with the conditions and restrictions set forth in Section 14 below. Scientific Industries may, at any time and in its sole discretion, replace, modify, alter, improve, enhance, or change the Device, Software and Services or Scientific Industries Data. Nothing contained herein grants or transfers to Client any title or ownership interest in or to the Device, Software and Services or any patent, copyright, trade secret, trade name, trademark or other proprietary or intellectual property rights related to Scientific Industries and/or the Device, Software and Services (other than the limited Device resale rights set forth in Section 14). All rights not expressly granted to Client are reserved by Scientific Industries. In addition, Scientific Industries shall have the right to use and display Client’s logo and trade names for marketing and promotional purposes in connection with Scientific Industries’ website and marketing materials, subject to Client’s trademark usage approval provided to Scientific Industries. Client represents and warrants that it has all necessary rights, licenses, and consents to provide the Client Data to Scientific Industries for all uses contemplated by the Agreement

6.3 Feedback.

Client may provide Scientific Industries with suggestions, ideas, enhancement requests, feedback, or recommendations relating to the Device, Software and Services (collectively, “Feedback”). Scientific Industries may make, use, sell, reproduce, create derivatives of, display or otherwise utilize the Feedback during and after the Term. Scientific Industries will not publicly associate such Feedback with Client without Client’s prior written consent.

6.4 Usage Data.

Scientific Industries will compile statistical and technical data and information related to or generated through the performance, operation and/or use of the Device, Software and Services and related features and functionality (“Usage Data”). For clarification purposes, Usage Data will exclude all Client Data processed by and/or through the Device, Software and Services, but may include limited Client account information. Scientific Industries will not publicly disclose Usage Data unless it is aggregated and anonymized. Scientific Industries may use Usage Data during and after the Term for purposes of implementing, operating, maintaining, auditing compliance in connection with the use of, and improvement (including training and machine learning) of the Device, Software and Services and fulfilling its obligations hereunder.

 

7. Confidential Information.

(a) For purposes of the Agreement, “Confidential Information” means non-public information disclosed by a party (the “Disclosing Party”) to the other party (the “Receiving Party”) that is designated in writing, or identified orally at time of disclosure, by the Disclosing Party as “confidential” or “proprietary,” or under the circumstances, a person would reasonably assume to be confidential or proprietary information of the Disclosing Party. During the Term, and following the expiration or termination of the Agreement, the Receiving Party shall maintain the confidentiality of the Confidential Information using at least the same degree of care that such party uses to protect its own Confidential Information of a similar nature, which shall be no less than reasonable care. Neither party will use or disclose any Confidential Information except as specifically contemplated herein, or other than to its employees or agents who need to know the Confidential Information for its performance of the Agreement and such employees or agents must be bound by confidentiality obligations substantially similar to those set forth herein. The Receiving Party is responsible for its employees’ or agents’ breach of these confidentiality obligations.

(b) The foregoing restrictions do not apply to information that: (i) has been independently developed by the Receiving Party without use of or access to the Disclosing Party's Confidential Information; (ii) has become publicly known through no breach of this section by the Receiving Party; (iii) has been rightfully received by the Receiving Party, without obligation of confidentiality, from a third party authorized to make such disclosure; (iv) has been approved for release in writing by the Disclosing Party; or (v) was known by the Receiving Party without obligation of confidentiality prior to receipt from the Disclosing Party. The disclosure by the Receiving Party of the Confidential Information will not be considered a breach of this section to the extent that such Confidential Information is required to be disclosed by a competent legal or governmental authority, provided that the Receiving Party gives the Disclosing Party prompt written notice of such requirement prior to disclosure, assists in obtaining an order to protect the information from public disclosure (if legally permissible) and will only disclose that portion of Confidential Information that is legally required to be disclosed.

(c) All Confidential Information will be promptly returned or destroyed by the Receiving Party, at the Disclosing Party’s discretion and upon its written request (including any written notice of termination of the Agreement by either party). Notwithstanding anything set forth herein to the contrary, the Receiving Party may retain Confidential Information if necessary to comply with legal or regulatory requirements, external accounting standards, or otherwise as contained in an archived computer system made in accordance with reasonable disaster recovery procedures, provided that such copy will remain subject to these obligations.

(d) The parties acknowledge that any breach of this Section 7 may cause irreparable damage to the Disclosing Party, for which monetary damages may be inadequate. In addition to any other remedy available at law or in equity, the Disclosing Party is entitled to specific performance and injunctive or other equitable relief, without the requirement to post bond or other form of security, against a breach or threatened breach of this section.

8. Subscriptions and Free Trials. 

8.1 Tiers and Features.

There are three (3) Subscription tiers: Basic, Standard and Premium. Depending on the Subscription tier Client selects, Client would gain access to some or all of the following features: (a) priority support; (b) extended warranty; (c) access to loaner Devices; (d) Medi-Span database access; (e) analytics dashboard; (f) track and trace; (g) Client authentication and role management; (h) reporting and partial count tracking; (i) automatic email reporting; and/or (j) free Device tray replacement.

8.2 Recurring Billing.

In consideration of the Device, Software and Services made available to Client hereunder, Client will pay Scientific Industries the applicable Subscription fee for the Subscription tier selected by Client, plus applicable sales tax, on a recurring basis for as long as Client’s account remains active (the “Recurring Fees”). Such Recurring Fees will be charged to Client’s Payment Method (as defined below) in advance, and Client acknowledges and agrees that Scientific Industries will not obtain any additional authorization from Client for the applicable Recurring Fees. Every time that Client accesses the Device, Software and Services, Client re-affirms that Scientific Industries is authorized to charge Client’s Payment Method and to have the Recurring Fees applied to same. Shipping and handling fees may apply to the Device. For purposes of the Agreement, “Payment Method” shall mean Client’s designated credit/debit card or Client’s checking account. Subscription cancellation shall only apply to the next recurring Subscription cycle. Scientific Industries shall not provide a refund where Client cancels a Subscription in the middle of the applicable Subscription period.

8.3 Free Trials.

Where Scientific Industries offers a free trial period for Client’s Subscription, if any, such free trial period shall last for one (1) month, or as otherwise specified during registration. Free trials may not be combined with any other offers. Client must submit a valid Payment Method during registration for a free trial; provided, however, that no charges will be made against the Payment Method unless Client does not cancel prior to the end of Client’s free trial period. Scientific Industries will begin billing the Payment Method for Client’s monthly or annual Subscription Recurring Fees at the end of the free trial period unless Client cancels prior to the end of the free trial period. Client will receive a notice from us that Client’s free trial period will be ending at least seven (7) days prior to the date that the paid portion of Client’s Subscription will begin.

8.4 General Payment and Billing Terms.

UNLESS OTHERWISE INDICATED, ALL SALES ARE FINAL AND NON-REFUNDABLE. Subject to the conditions set forth herein, you agree to be bound by the billing provisions (including pricing) of Scientific Industries in effect at any given time. Upon reasonable prior notice to Client, Scientific Industries reserves the right to change its billing provisions, in its sole discretion. Purchase of the Device, Software and Services after receipt of such notice shall constitute consent to any and all such changes; provided, however, that any amendment or modification to the billing provisions shall not apply to any charges incurred prior to the applicable amendment or modification. If any payment is more than ten (10) days delinquent, Scientific Industries may charge a late fee on unpaid balances at the lesser of one and one-half percent (1.5%) per month, or the highest rate permitted by law, and may also terminate or suspend Client’s access to the Device, Software and Services upon email notice. If Scientific Industries uses a collection agency or commences legal action to recover any overdue amounts, Client agrees to reimburse Scientific Industries for all expenses Scientific Industries incurs to recover such amounts, including attorneys' fees and court costs. If Client fails to pay on time and Scientific Industries refers Client’s account(s) to a third party for collection, a collection fee will be assessed and will be due at the time of the referral to the third party. The fee will be calculated at the maximum percentage permitted by Applicable Law.

 

9. Representations and Warranties. 

 9.1 Mutual Representations.

Without limiting any other representation and warranty set forth in the Agreement, each party hereby represents and warrants to the other party that: (a) it has the full power and authority to enter into the Agreement; (b) the Agreement is a valid and binding obligation of such party; and (c) it has obtained and shall maintain throughout the term of the Agreement all necessary licenses, authorizations, approvals and consents to enter into, exercise its rights and perform its obligations hereunder in compliance with all Applicable Law.

 9.2 Client Representations.

Client represents and warrants that: (a) it has the power and authority to enter into and perform its obligations under the Agreement; and (b) at all times, its use of the Device, Software and Services, and its commercial activities in connection therewith, will: (i) comply with all applicable foreign, federal, state and local laws, rules, regulations and ordinances including, without limitation, HIPAA, Applicable Privacy Laws (as defined below), laws applicable to the collection, use and storage of biometric data, Export Control Laws (as defined below), the Gramm-Leach Bliley Act, the Fair Credit Reporting Act, the Federal Trade Commission Act, the Fair Debt Collection Practices Act, the Federal Communications Act, and all rules and regulations promulgated under any of the foregoing, as well as all applicable state laws including, without limitation, the California Financial Privacy Act and the Vermont Consumer Protection Act, and all rules and regulations promulgated under such state laws (collectively, “Applicable Law”); and (ii) not violate any applicable rights of any third-party including, but not limited to, infringement or misappropriation of any copyright, patent, trademark, trade secret or other proprietary, property or other intellectual property right. For purposes of the Agreement, “Applicable Privacy Laws” means any and all statutes, regulations, regulatory guidelines and judicial or administrative holdings or interpretations related to consumer privacy including, but not limited to, the EU General Data Protection Regulation (“GDPR”), the UK General Data Protection Regulation (“UK GDPR”), the California Consumer Privacy Act, Cal. Civ. Code § § 1798.100 et seq. (“CCPA”), the California Privacy Rights Act (“CPRA”), the Colorado Privacy Act (“CPA”), the Connecticut Data Privacy Act (“CTDPA”), the Delaware Personal Data Privacy Act (“DPDPA”), the Florida Digital Bill of Rights (“FDBR”), the Indiana Consumer Data Protection Act (“ICDPA”), the Iowa Consumer Data Protection Act (“ICDPA”), the Kentucky Consumer Data Protection Act (“KCDPA”), the Maryland Online Data Privacy Act (“MODPA”), the Minnesota Consumer Data Privacy Act (“MNCDPA”), the Montana Consumer Data Privacy Act (“MCDPA”), the Nebraska Data Privacy Act (“NDPA”), New Hampshire’s SB 255-FN (“NHDPA”), the New Jersey Data Privacy Act (“NJDPA”), the Oregon Consumer Privacy Act (“OCPA”), the Rhode Island Data Transparency and Privacy Protection Act (“RIDTPPA”), the Tennessee Information Protection Act (“TIPA”), the Texas Data Privacy and Security Act (“TDPSA”), the Utah Consumer Privacy Act (“UCPA”) and the Virginia Consumer Data Protection Act (“VCDPA”).

9.3 Scientific Industries Representations.

Scientific Industries represents and warrants that, during the Term: (i) the Device, Software and Services will function in accordance with the Documentation in all material and applicable respects; provided, however, that the exclusive remedy for a violation of this warranty shall be for Scientific Industries to correct the non-conformance within thirty (30) days from the date Scientific Industries receives written notice of such non-conformance, or if Scientific Industries cannot substantially fix the non-conformance in a commercially reasonable manner, Client may terminate the Agreement and Scientific Industries will issue a refund for any unused, pre-paid fees following the effective date of the termination; and (ii) that it has all title and licenses required to provide the Device, Software and Services and that the Device, Software and Services will not and do not infringe upon or misappropriate any third party’s intellectual property rights; provided, however, that the exclusive remedy for a violation of these warranties is indemnity as described in Section 13.2 (Indemnification by Scientific Industries).

9.4 Warranty Disclaimer.

OTHER THAN AS EXPRESSLY SET FORTH HEREIN TO THE CONTRARY,THE DEVICE, SOFTWARE AND SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH HEREIN, SCIENTIFIC INDUSTRIES HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE WITH RESPECT TO THE DEVICE, SOFTWARE AND SERVICES, AND CLIENT’S ACCESS TO AND USE THEREOF. SCIENTIFIC INDUSTRIES SPECIFICALLY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. SCIENTIFIC INDUSTRIES EXERCISES NO CONTROL WHATSOEVER OVER THE CLIENT DATA. SCIENTIFIC INDUSTRIES DOES NOT WARRANT: (A) AS TO THE RESULTS OBTAINED BY CLIENT OR ITS USERS IN CONNECTION WITH THE DEVICE, SOFTWARE AND SERVICES INCLUDING, WITHOUT LIMITATION: (I) THE ACCURACY OF PILL COUNTS; (II) THE ACCURACY OF THE ALGORITHMS UTILIZED; (III) THE ACCURACY OF MEDICATION IDENTIFICATION FEATURES; AND/OR (IV) THE ACCURACY OF PILL DISPENSATIONS; (B) THAT THE USE OF THE DEVICE, SOFTWARE AND SERVICES WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE; (C) THAT THE DEVICE, SOFTWARE AND SERVICES WILL OPERATE IN COMBINATION WITH ANY OF THE HARDWARE, SOFTWARE AND/OR SYSTEMS OF CLIENT; AND/OR (D) THAT THE DEVICE, SOFTWARE AND SERVICES WILL MEET CLIENT’S REQUIREMENTS. SCIENTIFIC INDUSTRIES IS NOT RESPONSIBLE FOR ANY ISSUES RELATED TO THE PERFORMANCE, OPERATION OR SECURITY OF THE DEVICE, SOFTWARE AND SERVICES TO THE EXTENT ARISING FROM CLIENT’S OR ITS USERS’ ACTIONS, DATA, THIRD PARTY APPLICATIONS OR OTHER SERVICES PROVIDED BY THIRD PARTIES INCLUDING, WITHOUT LIMITATION, THE MEDI-SPAN AND FDA DATABASES, AS WELL AS AWS AND AZURE. Without limiting the foregoing, Scientific Industries shall use reasonable efforts consistent with prevailing industry standards to maintain the Device, Software and Services in a manner which minimizes errors and interruptions in the Device, Software and Services. The Device, Software and Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Scientific Industries or by third-party providers, or because of other causes beyond Scientific Industries’ reasonable control, and Scientific Industries shall not be liable, or considered in breach of the Agreement, for any such scheduled or unscheduled Device, Software and Services disruption.

 

10. Compliance with Applicable Privacy Laws. 

10.1 Each party shall provide all assistance as is reasonably requested by the other party to meet its obligations under Applicable Privacy Laws with respect to: (a) responding to individuals’ Consumer Requests (as defined below), including opt-out preference signals; (b) conducting any required Risk Assessments; and (c) conducting any required Cybersecurity Audits. Such assistance shall be promptly provided.

10.2 Client shall implement, maintain and apply, at its own cost and expense: (i) the technical and organizational security measures prescribed by Applicable Privacy Laws; and (ii) without limiting the foregoing, and taking into account the nature of the processing performed by it, the technical and organizational security measures necessary to secure the Covered Personal Information against any Personal Information Breach (as defined below), including any Covered Personal Information processed by Scientific Industries on Client’s behalf.

10.3 With respect to any Personal Information Breach, Client shall without undue delay and within seventy-two (72) hours of becoming aware of the Personal Information Breach: (i) notify Scientific Industries of the Personal Information Breach and immediately and at its own expense investigate and take all steps necessary to identify, prevent and mitigate the effects of the Personal Information Breach. Without limiting the foregoing, Client shall fully reimburse, indemnify and hold Scientific Industries harmless from and against any and all costs and/or losses that Scientific Industries may incur as a result of the Personal Information Breach, including any costs associated with Scientific Industries notifying any affected individuals; and (ii) to the extent practicable without prejudicing the continued security of the Covered Personal Information or any investigation into the Personal Information Breach, immediately provide Scientific Industries with details of the Personal Information Breach, including identifying the portions of the Covered Personal Information accessed, the identity of affected individuals, and such other and additional information as Scientific Industries may reasonably request concerning the Personal Information Breach.

10.4 During the Term, Client shall: (i) make available to Scientific Industries (and to third party auditors acting on Scientific Industries’ behalf), upon request, all information necessary to demonstrate Client’s compliance with Applicable Privacy Laws and the requirements set forth in this Section 10; and (ii) allow for and contribute to the audit and inspection of such material, including manual reviews and automated scans, as conducted by Scientific Industries and its third party auditors.

10.5 For purposes of the Agreement, “Consumer Requests” means consumer requests to: (i) correct inaccurate and/or outdated Covered Personal Information; (ii) opt-out from and/or limit the use and/or sharing of sensitive Covered Personal Information; (iii) opt out from the sale and/or sharing of any Covered Personal Information; (iv) know the: (A) categories of Covered Personal Information that such party has collected about the subject consumer(s); (B) specific pieces of Covered Personal Information that such party has collected about the subject consumer(s); (C) categories of sources from which the Covered Personal Information is collected; (D) business or commercial purpose for collecting, selling and/or sharing the subject Covered Personal Information; and (E) categories of third parties to whom such party discloses Covered Personal Information; (v) opt-out of profiling; (vi) opt-out of targeted advertising; and/or (vii) delete any Covered Personal Information collected.

10.6 For purposes of the Agreement, “Covered Personal Information” means, in addition to any definition under Applicable Privacy Laws, any personally identifiable information that identifies, relates to, describes, is capable of being associated with, or could reasonably be linked, directly or indirectly, to any individual or household that would be considered a resident of California, Colorado, Connecticut, Delaware, Florida, Indiana, Iowa, Kentucky, Maryland, Minnesota, Montana, Nebraska, New Jersey, New Hampshire, Oregon, Rhode Island, Tennessee, Texas, Utah or Virginia.

10.7 For purposes of the Agreement, “Personal Information Breach” means any breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, any Covered Personal Information.

 

11. Term and Termination.

The Agreement shall commence on the Effective Date and continue for as long as there is any active Subscription (the “Term”) unless otherwise terminated as set forth herein. Either party may terminate the Agreement: (i) with or without cause upon thirty (30) days’ prior written notice; provided, however, that Scientific Industries shall not provide a refund where Client terminates the Agreement, without cause, in the middle of the applicable Subscription period; (ii) upon ten (10) days’ prior written notice, due to the other party’s material breach of the Agreement that is not cured during the 10-day notice period; (iii) immediately upon written notice of the institution by or against the other party of insolvency, receivership or bankruptcy proceedings that are not dismissed within sixty (60) days of the date of filing; (iv) upon the other party's making an assignment for the benefit of creditors; or (v) upon the other party's dissolution or ceasing to do business. Scientific Industries shall not provide a refund where Scientific Industries terminates the Agreement under Section 11(ii)-(v) above in the middle of the applicable Subscription period. Within ten (10) days after termination or expiration of the Agreement for any reason (the “Termination Date”), each party shall return or, at the other party’s direction, destroy, and provide written certification of the destruction of, any tangible embodiments of such party’s Confidential Information in its possession or control. Upon the Termination Date, the licenses granted hereunder shall immediately cease, and Client shall not be permitted to use the Device, Software and Services as of the Termination Date.

 

12. Limitation of Liability. 

(a) TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT WILL CLIENT, SCIENTIFIC INDUSTRIES AND/OR SCIENTIFIC INDUSTRIES’ LICENSOR’S BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, RELIANCE, OR EXEMPLARY DAMAGES, OR ANY LOSS OF REVENUE, PROFITS (EXCLUDING FEES UNDER THE AGREEMENT), SALES, DATA, GOODWILL OR REPUTATION THAT RESULT FROM THE AGREEMENT, EVEN IF SUCH PARTY OR ITS AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

(b) TO THE EXTENT NOT PROHIBITED BY LAW, AND EXCEPT FOR THE LIABILITIES DESCRIBED BELOW IN SECTION 13(c), IN NO EVENT WILL THE TOTAL LIABILITY OF CLIENT, SCIENTIFIC INDUSTRIES AND/OR SCIENTIFIC INDUSTRIES’ LICENSORS FOR ANY DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THE AGREEMENT (WHETHER IN CONTRACT OR TORT, INCLUDING NEGLIGENCE, WARRANTY, OR OTHERWISE) EXCEED IN THE AGGREGATE THE AMOUNTS PAID OR PAYABLE BY CLIENT TO SCIENTIFIC INDUSTRIES IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY.

(d) WITHOUT LIMITING ANY OF THE PROVISIONS CONTAINED IN THIS SECTION 12, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, SCIENTIFIC INDUSTRIES SHALL NOT BE LIABLE TO CLIENT OR ANY THIRD-PARTY FOR ANY INDIRECT, SPECIAL, PUNITIVE, CONSEQUENTIAL (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST DATA OR LOSS OF GOODWILL), OR INCIDENTAL DAMAGES, WHETHER BASED ON A CLAIM OR ACTION OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY, TORT, BREACH OF ANY STATUTORY DUTY, INDEMNITY OR CONTRIBUTION, OR OTHERWISE, EVEN IF SCIENTIFIC INDUSTRIES OR ITS THIRD-PARTY SUPPLIERS OR LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LIABILITY, ARISING OUT OF OR RELATING TO THE AGREEMENT, THE DEVICE, SOFTWARE AND SERVICES, OR ANY INFORMATION, SERVICES, PRODUCTS OR SOFTWARE MADE AVAILABLE OR ACCESSIBLE TO YOU BY AND THROUGH SAME, INCLUDING, BUT NOT LIMITED TO, FOR: (A) THE USE OR THE INABILITY TO USE THE DEVICE, SOFTWARE AND SERVICES; (B) THE INABILITY TO INSTALL, OR REINSTALL, THE SOFTWARE ON ANY DEVICE; (C) UNAUTHORIZED ACCESS TO, OR ALTERATION OF, YOUR CLIENT DATA, ACCOUNT INORMATION AND/OR OTHER PERSONALLY IDENTIFIABLE OR NON-PERSONALLY IDENTIFIABLE INFORMATION; (D) ANY ISSUE RELATED TO THE TIMELINESS, ACCURACY OR RELIABILITY OF THE DEVICE, SOFTWARE AND SERVICES INCLUDING, WITHOUT LIMITATION: (I) THE ACCURACY OF PILL COUNTS; (II) THE ACCURACY OF THE ALGORITHMS UTILIZED; (III) THE ACCURACY OF MEDICATION IDENTIFICATION FEATURES; AND/OR (IV) THE ACCURACY OF PILL DISPENSATIONS; (E) THE FAILURE OF CLIENT TO REALIZE ANY SPECIFIC BENEFIT OR OUTCOME RELATED TO THE CLIENT BUSINESS; (F) ANY TECHNICAL ERROR OR OTHER ERROR OF ANY KIND, WHETHER HUMAN, MECHANICAL OR ELECTRONIC, ASSOCIATED WITH ANY OF THE DEVICE, SOFTWARE AND SERVICES; OR (G) ANY OTHER MATTER RELATING TO THE DEVICE, SOFTWARE AND SERVICES

(e) NOTWITHSTANDING THE FOREGOING, EACH PARTY’S OR ITS AFFILIATES’ TOTAL LIABILITIES FOR ITS INDEMNIFICATION OBLIGATIONS (SECTION 13), BREACH OF CONFIDENTIALITY (SECTION 7), AND ANY MISUSE OF THE OTHER PARTY’S INTELLECTUAL PROPERTY WILL NOT BE SUBJECT TO ANY LIMITATIONS OF LIABILITY.

 

13. Indemnification. 

 13.1 Indemnification by Client.

Client hereby agrees to protect, defend and indemnify Scientific Industries, its Licensors, and their respective affiliates, officers, directors, shareholders, members, agents and employees harmless from and against any and all claims (including first-person claims initiated by Scientific Industries), demands, losses or expenses, of any nature whatsoever, including reasonable attorneys' fees, arising directly or indirectly from or out of any: (i) breach of the Agreement by Client; (ii) Client’s unauthorized or improper use of the Device, Software and Services; (iii) Client’s violation of any Applicable Law including, without limitation, HIPAA and/or any Applicable Privacy Law; (iv) the act and/or omission of any User; and/or (v) the gross negligence or willful misconduct of Client and/or its employees.

 13.2 Indemnification by Scientific Industries.

Scientific Industries shall defend, indemnify and hold harmless Client, its officers, directors and employees from any and all claims, demands, proceedings, or suits brought by an unaffiliated third party alleging the Device, Software and Services (excluding the Client Data) infringes upon or misappropriates the intellectual property rights or proprietary rights of such third party. Scientific Industries will pay any costs and damages attributable to such claim that are finally awarded by a court against Client or agreed to pursuant to a settlement agreement.

(a) If an infringement or misappropriation claim covered under this Section 13.2 is made or threatened, Scientific Industries may, in its sole discretion: (i) replace or modify the Device, Software and Services with a non-infringing alternative having substantially equivalent capability; (ii) procure the right for Client to continue its use of the Device, Software and Services; or (iii) if neither (i) or (ii) is commercially practical, without limiting Scientific Industries’ indemnification obligations hereunder, terminate the Agreement without penalty and refund any unused, prepaid fees for the remainder of the unexpired Subscription Term to Client.

(b) Scientific Industries shall have no liability under this Section 13.2 to the extent that any third-party claims described herein are based on (i) use of the Device, Software and Services in a manner that violates the Agreement or the Documentation, or the written instructions given to Client by Scientific Industries; (ii) any information, technology, materials or data (or any portions or components of the foregoing) not created or provided by Scientific Industries; (iii) any modification to the Device, Software and Services by any party other than Scientific Industries (where the claim arises from or relates to such modification); (iv) combination of the Device, Software and Services with third-party applications, products, processes, materials or other technology not provided by Scientific Industries (where the claim arises from or relates to such combination); or (v) where Client continues the allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement.

(c) THIS SECTION 13 STATES THE ENTIRE OBLIGATION OF SCIENTIFIC INDUSTRIES AND ITS LICENSORS WITH RESPECT TO ANY ALLEGED OR ACTUAL INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS BY THE DEVICE, SOFTWARE AND SERVICES.

 

14. Device Repair, Return, Resale, and PHI Removal Requirements.

14.1 User Responsibility for PHI Removal Prior to Shipment.

Before sending the Device to Scientific Industries for repair, inspection, replacement, or any other service, Client is solely responsible for: (a) removing or securely deleting all PHI stored on the Device; (b) backing up any Locally Stored Data required for regulatory compliance; (c) ensuring that the transfer of the Device to Scientific Industries is compliant with all Applicable Law, including HIPAA; and (d) ensuring that no PHI, prescription label images, patient identifiers, or PMS transaction data remain stored on the Device prior to shipment. Scientific Industries does not receive, store, or process PHI during repairs. Devices received with PHI stored thereon may be wiped without recovery, and Scientific Industries assumes no responsibility for lost data. Client shall be solely responsible and liable for any and all claims associated with Client’s transfer of PHI to Scientific Industries via a Device.

14.2 Subscription Non-Transferability.

Client’s Subscription is non-transferable. If the Device is sold, loaned, reassigned, or transferred by Client to any third party, the existing Subscription associated with the Device shall become null and void, and a new Subscription must be purchased and activated by the new Device owner.

14.3 Resale or Transfer of Device Ownership.

If Client sells or transfers a Device to a new owner, the following conditions apply: (a) Client must perform a local data wipe and removal of all PHI prior to transfer; (b) the new owner cannot use the Device with Client’s Subscription or Cloud account; (c) Scientific Industries may require the Device to be returned for factory reset before it can be registered under a new account; and (d) a factory reset may erase all data permanently, which is not reversible. Scientific Industries has the right to refuse service to Devices that have changed ownership without proper reset or registration. Further, a factory reset may involve the following: (i) clearing all software configurations; (ii) wiping internal databases; (iii) removing all Cloud-associated credentials; and (iv) resetting Device identity for registration. Factory resets can only be performed by Scientific Industries or an authorized partner of Scientific Industries. Unauthorized factory resets or other tampering with a Device may void warranty and future eligibility for a Subscription.

 

15. Remote Access, TeamViewer Support, Loaner Devices and Tray Replacement.

15.1 Remote Access Through TeamViewer.

Scientific Industries provides optional remote technical support through the TeamViewer application (“TeamViewer”), as made available by TeamViewer Germany GmbH, to diagnose, troubleshoot and/or resolve issues. Remote access is performed exclusively through TeamViewer embedded in or linked from the Device. Remote access will only be initiated with express User authorization. Scientific Industries cannot connect via remote access unless Client manually grants access through the Device interface. Remote sessions provide Scientific Industries with full control of the Device, including access to logs, software settings, and local storage. Client must close or revoke remote access at the end of each session.

15.2 Access to PHI and Sensitive Data During Support Sessions.

Scientific Industries may be able to view PHI or logs containing PHI stored on the Device during a remote access session. PHI may be visible in: (a) PMS transaction logs; (b) prescription label images; (c) local SQL databases; and (d) on-screen. Scientific Industries shall not make copies of, store, transmit, or retain any PHI viewed during remote sessions. Any PHI exposure during a remote access session is a direct consequence of Client granting access to Scientific Industries and is not initiated or controlled by Scientific Industries.

15.3 Client Responsibility for PHI Safeguards During Remote Access.

Client is solely responsible for: (a) ensuring that PHI is minimized on-screen during support sessions where possible; (b) removing or masking PHI and other sensitive content before requesting help, if feasible; (c) understanding that granting remote access inherently allows visibility into the Device environment; and (d) compliance with HIPAA and other Applicable Laws when enabling remote access. Scientific Industries is not responsible, and shall not be liable in any way, for any PHI exposure resulting from Client-initiated remote access sessions. Client assumes all risk associated with enabling TeamViewer sessions.

15.4 Tray Replacement Program.

Where permitted by Client’s Subscription tier, Client shall be entitled to one (1) replacement Device tray per each twelve (12) month period of Client’s Subscription; provided, however, that, in order to exercise the right for a tray replacement, Client must document the damage to the existing tray and pay any associated shipping and handling charges.

15.5 Loaner Devices.

After Client has completed remote access troubleshooting and Scientific Industries determines that Client must return its Device for repairs, Client may be entitled to a loaner Device provided, however, that, Client must: (a) pay any associated shipping and handling charges, covering both shipments of the Device to and from Scientific Industries’ facilities; (b) return the Device in the time period required by Scientific Industries; and (c) enter into a separate agreement covering the Loaner Device. Client acknowledges and agrees that the loaner Device may be a refurbished Device.

15.6 Extended Warranty Coverage.

Where included in Client’s Subscription tier, Client’s Device may be covered by an extended warranty. Extended warranty coverage applies only when the following conditions are met: (a) the Device is under five (5) years old; (b) Client has not tampered with, misused, abused or conducted unauthorized repairs to the Device; (c) the extended warranty is limited to parts and labor; (d) Client may incur a fee where Scientific Industries does not detect any defect with the Device submitted; and (e) Client must obtain a return merchandise authorization (“RMA”) from Scientific Industries prior to exercising its extended warranty rights.

 

16. Non-Sanctioned Status.

Client shall ensure that neither Client nor any of its executive officers, directors or any individual, entity, or organization holding any ownership interest or controlling interest in Client (“Connected Persons”) is an individual, entity, or organization with whom Scientific Industries is prohibited from dealing with by any law, regulation, or executive order, including names appearing on the U.S. Department of the Treasury’s Office of Foreign Assets Control’s and Specially Designated Nationals and Blocked Persons List. If Client or any of its Connected Persons, is determined to be or for any reason becomes an individual, entity, or organization with whom Scientific Industries is prohibited from dealing with in accordance with this Section 16, Client shall give immediate written notice to Scientific Industries and Scientific Industries shall have the right to terminate the Agreement with immediate effect, without fault or liability. If Scientific Industries exercises the termination right described in this Section 16, Client shall pay Scientific Industries for any and all fees prior to the effective date of termination and shall not be entitled to any refund for any unused, pre-paid fees following the effective date of termination, unless payment is prohibited by law.

 

17. Force Majeure.

Other than for payment obligations arising hereunder, neither party will be liable for, or will be considered to be in breach of the Agreement on account of, any delay or failure to perform as required by the Agreement as a result of any causes or conditions that are beyond such party's reasonable control and that such party is unable to overcome through the exercise of commercially reasonable diligence (each, a “Force Majeure Event”). If any Force Majeure Event occurs (which shall include, without limitation, acts of God, COVID-19 and any similar disease, virus and/or pandemic, telecommunications, Internet or network failure, results of vandalism or computer hacking, fire, explosion, storm or other natural occurrences, any conflicting order, direction, action or request of any applicable governmental body (including, without limitation, state and local governments) or of any regulatory department, agency, commission, court, bureau, corporation or other instrumentality, or of any civil or military authority, national emergencies, insurrections, riots, wars, strikes or other such labor difficulties), the affected party will give prompt written notice to the other party and will use commercially reasonable efforts to minimize the impact of such Force Majeure Event. Notwithstanding the foregoing, the parties’ obligations to one another shall be excused and/or postponed during and only for the duration of the applicable Force Majeure Event and shall resume as soon as practicable after the Force Majeure Event has ended.

 

18. Miscellaneous.

Client shall not assign, sublicense, or otherwise transfer, by agreement or operation of law, the rights or licenses granted to it hereunder without the prior written consent of Scientific Industries, and all assignments in violation of this prohibition shall be null and void. Scientific Industries may assign the Agreement, without Client's consent: (a) to any parent, subsidiary, or affiliate entity; or (b) to any purchaser of all or substantially all of Scientific Industries’ assets or to any successor of Scientific Industries by way of merger, consolidation or similar transaction. Subject to the foregoing, the Agreement will be binding upon, enforceable by, and inure to the benefit of the parties and their respective successors and permitted assigns. The parties hereto are independent contractors. There is no relationship of partnership, agency, employment, franchise or joint venture between the parties. Neither party has the authority to bind the other, or incur any obligation on its behalf. This Services Agreement, together with the Ancillary Agreements, represents the entire agreement between the parties relating to the subject matter hereof and may only be modified in a writing signed by both parties. No waiver of any breach of any provision of the Agreement shall constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party. The Agreement shall be governed by the laws of the State of New York without reference to conflicts of law principles and any proceeding arising in connection with the Agreement may only be brought under the statutes and common law of the State of New York. In any dispute arising out of the Agreement, Scientific Industries and Client each consent to the jurisdiction of both the state and federal courts of New York, NY, and agree to bring any actions arising out of the Agreement in such courts. The prevailing party in any action brought for the enforcement or interpretation of the Agreement shall be entitled to receive, from the losing party, without limitation, reasonable attorneys’ fees and costs of litigation, in addition to any other relief to which it may be entitled. If any provision or clause of the Agreement is held unenforceable, the remainder of the Agreement will continue in full force and effect. Each party has fully participated in the drafting of the Agreement and neither party shall be deemed to be the drafting party of the Agreement. Section headings used herein are for convenience only, are not part of the Agreement, and shall not be used in construing the Agreement.

 

19.Electronic Signatures.

Client acknowledges and agrees that Client accepts this Subscription Agreement, together with the Ancillary Agreements, via electronic means rather than via traditional handwritten signature ("Electronic Acceptance"). Client acknowledges and agrees that by clicking on the submit button, or taking such other action as may be designated by Scientific Industries as a means of accepting this Subscription Agreement, together with the Ancillary Agreements, Client is submitting a legally binding electronic signature and is entering into a legally binding contract. Client acknowledges that Client's electronic submission constitutes Client's agreement and intent to be bound by this Subscription Agreement, together with the Ancillary Agreements. Pursuant to any and all applicable statutes, regulations, rules, ordinances or other laws including, without limitation, the United States Electronic Signatures in Global and National Commerce Act, P.L. 106-229 (the "E-Sign Act") and other similar state and federal statutes, CLIENT HEREBY AGREES TO THE USE OF ELECTRONIC SIGNATURES, CONTRACTS, ORDERS AND OTHER RECORDS AND TO ELECTRONIC DELIVERY OF NOTICES, POLICIES AND RECORDS OF TRANSACTIONS INITIATED OR COMPLETED THROUGH ANY CLIENT API MADE AVAILABLE BY SCIENTIFIC INDUSTRIES, THE SCIENTIFIC INDUSTRIES WEBSITE AND/OR THE DEVICE, SOFTWARE AND SERVICES. Further, Client hereby waives any rights and/or requirements under any statutes, regulations, rules, ordinances or other law in any jurisdiction which requires an original signature or delivery or retention of non-electronic records, or to payments or the granting of credits by other than electronic means. Client acknowledges and agrees that it has the ability to print information delivered to Client electronically, or otherwise knows how to store that information in a way that ensures that it remains accessible to Client in unchanged form.