OCTAVE INNOVATION LLC
STANDARD TERMS AND CONDITIONS
These Standard Terms and Conditions apply to any purchase of Octave Innovation LLC’s online materials. By completing the purchase of materials or associated services from Octave Innovation LLC, a Washington limited liability company (“Octave”), including any subsequent order for additional materials, licenses, or services, you (“Purchaser”) expressly agree to be bound by these Standard Terms and Conditions (“Terms”).
1. Definitions. “Confidential Information” means all tangible and intangible information, knowledge, and material concerning the business, products, proposed new products, services, customers, business relationships, finances or other proprietary information regarding Octave which is not known to the general public, or which may otherwise constitute proprietary or a trade secret of Octave. “Deliverables” means the items to be provided by Octave to Purchaser under these Terms. “Intellectual Property” means products, designs, processes, software, forms, tools, schematics, prototypes, graphics, pictures, inventions, ideas, discoveries, techniques, improvements, trade secrets, trademarks, trade names, and all other materials which are patentable, copyrightable, trademarkable, or otherwise legally protectable, which Octave owns or to which Octave holds the rights and all improvements, modifications, or enhancements thereto. “License” means the rights granted by Octave to Purchaser to use the Materials in accordance with, and subject to, the terms, conditions, and limitations of these Terms. “Materials” means all tangible Work Product, written documents, images, pictures, owned or provided by Octave to Purchaser under these Terms. “Services” means all intangible services provided by Octave under these Terms. “Trainings” means the training resources made available by Octave. “Work Product” means: (i) all Deliverables, (ii) all Intellectual Property, in any stage of development, that Octave conceives, creates, develops, or reduces to practice in connection with performing the Services, and (iii) all tangible embodiments (including models, presentations, prototypes, reports, samples, and summaries) of each item of such Intellectual Property. “Work Product” shall include developments, procedures, materials, instructional sequences, performance data, videotape, still photographs, and original works of authorship, and all similar matters, whether or not copyrightable, and includes all records and expressions of those matters, including any and all of the above arising from Octave providing the Services to the Purchaser, whether conducted by or under the supervision of Octave.
2. License To Use; Limitations. Octave grants, and Purchaser accepts, upon the terms set forth herein, a limited, non-exclusive, non-sublicensable, and nontransferable license to access and use Trainings and Deliverables and solely for Purchaser’s own individual use under these Terms. Nothing herein grants Purchaser any right, license, or permission to use, copy, or distribute the Trainings, Materials, or Deliverables. All right, title and ownership of all Trainings, Materials, Deliverables, and all copies thereof shall remain at all times the exclusive property of Octave.
3. License Grant. Purchaser grants Octave a non-exclusive, royalty-free, fully paid up, perpetual, irrevocable, transferable, worldwide license (with the right to grant and authorize sublicenses) to any and all Purchaser data and/or Purchaser confidential and proprietary information or other intellectual property, as necessary for Octave to fulfill its obligations under these Terms. Purchaser grants Octave a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into Octave’s materials or services any suggestion, enhancement, request, recommendation, correction or other feedback provided by Purchaser relating to the development or implementation of materials or services provided by Octave hereunder.
4. Intellectual Property; Ownership. Purchaser agrees that any Work Product created hereunder will be the sole and exclusive property of Octave. To the extent Deliverables contain any Purchaser background intellectual property or Purchaser confidential information, Purchaser hereby grants Octave a non-exclusive, royalty-free, fully paid up, perpetual, irrevocable, transferable, worldwide license (with the right to grant and authorize sublicenses) to use, copy, sell, distribute, improve, or otherwise exploit the Deliverables.
5. Intellectual Property Rights. Purchaser understands and agrees that Octave does not and will not, by the terms of this Agreement, assign to Purchaser any rights to any Work Product described in this Agreement, including any copyrights, patent rights and trade secret rights, vested or contingent, including without limitation with respect to each of the foregoing renewal rights and rights to license and assign. Purchaser further understands and agrees that Octave does not, and will not, waive, any moral rights that Octave has or may have in the Work Product described in this Agreement.
6. Compliance with HIPAA. To the extent Purchaser is a Covered Entity as defined under the Health Insurance Portability and Accounting Act, 45 CFR Part 160 and Part 164 (“HIPAA”), any information received by Octave from Purchaser regarding Purchaser’s patients shall be governed by a Business Associate Agreement as applicable and required under HIPAA, which Octave shall require be executed by Purchaser prior to Purchaser providing Octave with any patient information. Purchaser agrees that Octave is not responsible for how Purchaser treats its patients’ information and further agrees to indemnify, defend and hold Octave, its employees and representatives harmless from and against any and all losses, liabilities, and costs (including without limitation, attorneys’ fees) resulting from or arising out of claims of third parties (in whole or in part) due to violations by Purchaser of any and all laws and regulations related to such information, including but not limited to HIPAA.
7. No Warranties. TRAININGS, MATERIALS, DELIVERABLES, AND SERVICES ARE PROVIDED "AS-IS" AND "AS PROVIDED.” EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT, OCTAVE MAKES NO EXPRESS OR IMPLIED WARRANTY AS TO ANY MATTER, INCLUDING WITHOUT LIMITATION, THE SERVICES AND TRAININGS PROVIDED AND THE RIGHTS GRANTED, AND THEIR MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR OTHER VIOLATION OF RIGHTS. OCTAVE DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE, VALIDITY, ACCURACY OR RELIABILITY OF, OR THE RESULTS OF THE USE OF, OR OTHERWISE RESPECTING THE SERVICES, THE TRAININGS OR THE GRANTED RIGHTS. ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THIS AGREEMENT MUST BE BROUGHT NO LATER THAN ONE YEAR AFTER THE CAUSE OF ACTION ACCRUES. Purchaser understands and agrees that the success of Services is subject to numerous variables, including Purchaser’s cooperation. Octave does not guarantee success of the Services within Purchaser’s own environment. Purchaser understands and agrees that Octave’s sole obligation is to provide access to trainings, resources, and coaching within the scope agreed by Purchaser and Octave and Octave is in no way responsible for the results seen by Client.
8. Limitations of Liability. UNDER NO CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, SHALL OCTAVE OR ANY OF ITS EMPLOYEES OR REPRESENTATIVES BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH ANY SERVICE PROVIDED BY OCTAVE OR ITS EMPLOYEES OR REPRESENTATIVES UNDER THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOST PROFITS, USE, AND DATA, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, EXCEPT TO THE EXTENT SUCH LIMITATION IS PROHIBITED BY LAW. OCTAVE’S AGGREGATE LIABILITY HEREUNDER SHALL NOT EXCEED THE AMOUNTS PAID BY CLIENT TO OCTAVE UNDER THESE TERMS.
9. Indemnification. Purchaser agrees to indemnify, hold harmless and defend Octave and its directors, officers and employees from and against any liability, claim, loss, cost, expense or damage (including reasonable attorneys’ fees and court costs) incurred in connection with any claim arising from or related to any willful or negligent act of Purchaser or its agents, or representations or any actions taken by Purchaser with regard to its business operations or Purchaser’s obligations under these Terms.
10. General. Entire Agreement. This is the complete agreement between the parties with respect to the subject matter herein and these Terms supersede any previous understanding not otherwise reduced to a written contract between Octave and Purchaser respecting such subject matter. Any amendments, changes, waivers, discharges or releases of any provision of these Terms shall not be valid unless in writing and signed by an authorized representative of both parties. Injunction. Purchaser agrees that Octave would be irreparably harmed by Purchaser’s breach of its obligations hereunder, and such harm could not be compensated by money damages alone. Therefore, Octave will be entitled to obtain injunctive and other equitable relief for the threatened or actual breach by Purchaser of these Terms, without the obligation to post a bond or other security. Headings. The headings used in this Agreement are for convenience only and are not intended to be used as an aid to interpretation. Validity. If any part of this Agreement is held to be illegal or unenforceable, the validity or enforceability of the remainder of this Agreement shall not be affected. Assignment. Purchaser may not assign its rights or obligations under these Terms without the prior written consent of Octave, which may be granted or withheld in Octave’s sole and absolute discretion. Any such attempt to assign in violation of the foregoing restriction shall be null and void. These Terms will be binding upon and inure to the benefit of the parties hereto, their respective successors and permitted assigns. Publicity. Purchaser shall not refer to the existence of this purchase or these Terms in any press release, advertising or materials distributed to prospective customers, without the prior written consent of Octave. This obligation will survive the cancellation or other termination of these Terms. Octave shall have the right to issue press releases identifying Purchaser as a business customer. No Waiver. Failure by either party to exercise any right or remedy under these Terms does not signify acceptance or constitute an ongoing waiver of the event giving rise to such right or remedy or similar event. Governing Law. These Terms shall be construed according to the laws of the State of Washington without reference the rules governing conflicts of law. Except for actions for injunctive relief or to recover amounts owed, all disputes arising out of or relating to this contract, or the breach thereof, shall be settled by arbitration conducted by a single arbitrator administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereto. The reasonable attorneys’ fees and costs arising from any dispute under this Agreement shall be borne by the non-prevailing Party. Force Majeure. Neither party shall have any liability for any loss, or for any failure to perform any obligation hereunder, due to causes beyond its reasonable control, including without limitation, pandemic, government shutdown, industrial disputes of whatever nature, power loss or fluctuations, telecommunications failure, hacker attacks, internet slowdowns, acts of God, or any other cause constituting a force majeure event; provided, however, that the foregoing will not excuse or delay Purchaser’s payment obligations hereunder. Provided further, in no event will any pandemics, epidemics, or other virus outbreaks (including COVID-19), constitute a force majeure event for Purchaser. Survival. All sections of these Terms that are intended by their nature or context to survive the expiration or termination hereof. Compliance with Laws. Purchaser shall comply with, and shall cause its personnel to comply with, all applicable foreign and United States federal, state and local laws, licenses and regulations related to or arising out of this Agreement, including, without limitation and as applicable, all laws and regulations related to fraud, abuse, discrimination, confidentiality, false claims and prohibition of kickbacks. Expenses of Enforcement. In the event of any default regardless of whether cured, Purchaser will pay Octave a sum equal to all expenses, including attorneys’ fees, if any, incurred by Octave in connection with the enforcement of these Terms, together with interest on such amount at the maximum annual rate allowable by law or one and one-half percent (1 1/2%) per month, whichever is less, until the date when such amounts are paid to or collected by Octave will be enforceable in any court of competent jurisdiction.