WESPER SLEEP LAB AGREEMENT

This Wesper Sleep Lab Agreement (“Agreement”) is a legally binding agreement between you (a single natural or legal person, hereinafter referred to by the term (hereinafter “Subscriber” or “You” or words of similar import) and Wesper, Inc. (hereinafter “Wesper”, or “Us”, “We”, “Our” or words of similar import) with regard to Your use of the Services as further described below.  

IMPORTANT - PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING THE SERVICES. BY REQUESTING, ACCESSING OR USING THE SERVICES IN ANY FORM OR MEDIA, SUBSCRIBER CONFIRMS THAT SUBSCRIBER HAS READ AND UNDERSTANDS THIS AGREEMENT AND THAT SUBSCRIBER AGREES TO BE BOUND BY THIS AGREEMENT. IF SUBSCRIBER DOES NOT AGREE OR DOES NOT WISH TO BECOME A PARTY TO THIS AGREEMENT, SUBSCRIBER SHOULD NOT REQUEST, ACCESS OR USE THE SERVICES. SUBSCRIBER CONFIRMS THAT IT UNDERSTANDS THIS AGREEMENT AND AGREES TO BE BOUND BY THIS AGREEMENT BY EXECUTING AN ORDER FORM OR ONLINE ORDERING DOCUMENT REFERENCING THESE AGREEMENT. ANY ORDER FORM OR ONLINE ORDERING DOCUMENT OR WEBPAGE PROVIDED BY WESPER SHALL BE REFERRED TO HEREIN AS AN “ORDER FORM”.  

IF SUBSCRIBER IS ENTERING INTO THIS AGREEMENT ON BEHALF OF (AND FOR USE ON BEHALF OF) A COMPANY, GOVERNMENTAL ENTITY OR OTHER ENTITY (AN "ENTITY"), SUBSCRIBER REPRESENTS THAT IT HAS THE AUTHORITY TO BIND SUCH ENTITY TO THIS AGREEMENT.  THE TERM "SUBSCRIBER" REFERENCED HEREIN REFERS TO: (1) THE ENTITY, ITS OFFICERS, DIRECTORS, AGENTS, AND EMPLOYEES OR (2) YOU, AS AN INDIVIDUAL, IN THE CASE OF A NON-LEGAL ENTITY.    

THE “EFFECTIVE DATE” OF THIS AGREEMENT IS THE EARLIER OF THE FIRST DATE OF ANY APPLICABLE ORDER FORM OR THE FIRST DAY SUBSCRIBER REQUESTS, USES OR ACCESSES THE SERVICES. EACH ORDER FORM MAY NOT BE CANCELLED ONCE THESE AGREEMENT HAS BEEN ACCEPTED, AND NO REFUNDS WILL BE GRANTED. 

We update this Agreement from time to time.  If you have an active subscription to the Application Services (defined below), Wesper will let You know when we update these Agreement via in-application notification or by email (if You subscribe to receive email updates). If you do not have an active subscription, an updated Agreement will be indicated by the "Date last modified" date below. 

Date last modified: June 27, 2023 

1. Definitions
2. “Access Protocols” means instructions, passwords, access codes, technical specifications, connectivity standards or protocols, or other relevant procedures.
3. “Affiliate” means any corporation, partnership or other entity now existing or hereafter organized that directly or indirectly controls, is controlled by or under common control with a Party.  For purposes of this definition “control” means the direct possession of a majority of the outstanding voting securities of an entity.
4. “Applicable Law” means any applicable law, rule or regulation of any federal, state, local, government agency (e.g., FDA) or foreign government or political subdivision, or any binding judgment or order of an arbitrator, court or tribunal of competent jurisdiction.
5. “Application Services” Wesper’s clinical portal and patient mobile application.
6. “Application Services Subscription” means the set of Application Services and ancillary services (including support and training) made available to Subscriber by Wesper for the fees set forth in the applicable Order Form.  
7. “Subscription Term” means the period of time during which Subscriber and its Authorized Users are authorized to use the Application Services Subscription.  The Subscription Term is set forth in the applicable Order Form.  
8. “Authorized User” means an Authorized Clinical User or an Authorized Patient User.
9. “Authorized Clinical User” means any individual authorized by Subscriber to access or use the clinical portal component of the Application Services.
10. “Authorized Patient User” means any individual authorized by Subscriber to access the patient mobile application component of the Application Services and to receive the Wesper Equipment and Wesper Adhesives.
11. "Drop Ship Wesper Equipment” means the Wesper Equipment made available to Subscriber by Wesper on a “dop ship” basis in accordance with the terms of this Agreement and Exhibit B, for the fees set forth in the applicable Order Form, that are identified in the applicable Order Form as Drop Ship Wesper Equipment.  
12. “Intellectual Property Rights” means any and all intellectual property and proprietary rights of any kind or nature, whether protected, created or arising under any Applicable Law, in any jurisdiction, whether registrable or not, whether registered or not, and whether now known or hereafter existing, including all: (a) works of authorship, including copyrights, mask works, computer programs and moral rights; (b) trademarks, service marks, trade dress, trade names and other indicia of source or origin (collectively, “Marks”), together with all of the goodwill associated therewith or symbolized thereby; (c) trade secrets and know-how; (d) patents, patent rights, and industrial property rights; (e) layout designs, designs; (f) data and database rights and other rights in and to data and databases; (g) other proprietary rights of every kind and nature; and (h) all registrations, applications for, and renewals, extensions, or reissues of any of the foregoing, in each case in any jurisdiction throughout the world. 
13. "Inventory” means the Wesper Equipment that is delivered to Subscriber in bulk for Subscriber’s later distribution or delivery to Authorized Patient Users.  
14. “Leased Wesper Equipment” means the Wesper Equipment made available to Subscriber by Wesper for the fees set forth in the applicable Order Form, that are identified in the applicable Order Form as Leased Wesper Equipment and that Subscriber leases in accordance with the terms of this Agreement and Exhibit B.  
15. “Order Form” means the online order form or webpage completed by Subscriber, or final, approved quotation provided to Subscriber by a Wesper sales representative that sets forth the Application Services, Wesper Adhesives, and/or Wesper Equipment to be provided by Wesper to Subscriber. 
16. “Other Equipment” means any third party equipment not under the Wesper Marks that is used by Subscriber or Applicable Users in conjunction with the Wesper Sleep Lab or any component thereof.
17. “Purchased Wesper Equipment” means the Wesper Equipment made available to Subscriber by Wesper for the fees set forth in the applicable Order Form, that are identified in the applicable Order Form as Purchased Wesper Equipment and that Subscriber purchase in accordance with the terms of this Agreement and Exhibit C.  
18. “PHI” means protected health information, as the term is defined in the Health Insurance Portability and Accountability Act of 1996, the Health Information Technology for Economic and Clinical Health (HITECH) Act, and the regulations promulgated under such Acts.
19. “Service Exception” means any: (a) Subscriber or Authorized Clinical Users failure to comply with this Agreement or Applicable Law, (b) unauthorized or improper use or modification of the Wesper Sleep Lab, (c) combination of the Wesper Sleep Lab (or any component thereof) with other products, software or services not provided or authorized by Wesper (including, without limitation, use of the Wesper Equipment with any adhesive product that is not the Wesper Sleep Patch), (d) a force majeure event, (e) failure, interruption, outage, or other problem with the Internet or any software, system, network, facility, Third Party Applications, or Other Equipment or service not supplied by Wesper, or (f) scheduled downtime of the Application Services for routine maintenance.
20. “Subscriber Materials” means all information, data, images, photographs and other visual content provided by or on behalf of Subscriber (including by Authorized Users) or otherwise transmitted by Subscriber or any Authorized User through the Application Services.
21. “Subscription Start Date” means the start date of the Subscription Term. The Subscription Start Date is set forth on the applicable Order Form. 
22. “Third Party Applications” means online, web-based applications or services and offline software products that are provided by third parties and interoperate with the Application Services.
23. “Warranty Period” has the meaning set forth in Exhibit A for Drop Ship Wesper Equipment; the meaning set forth in Exhibit B for Leased Wesper Equipment; and the meaning set forth in Exhibit C for Purchased Wesper Equipment.  
24. “Wesper Equipment” means the pulse oximeter, two (2) Wesper sleep patches, and, if set forth on the applicable Order Form, a charging station.
25. “Wesper Sleep Lab” means the Wesper Equipment, Wesper Adhesives, and the Application Services. 
26. “Wesper Adhesives” means Wesper adhesives for use with the Wesper Equipment. 
27. Services
28. Application Services. Subject to the terms and conditions of this Agreement and the applicable Order Form, Wesper will provide Authorized Users with access to the Application Services during the Application Services Subscription Term. Subscriber and Authorized Users shall access the Application Services in accordance with the Access Protocols and be responsible for the security of all Access Protocols. Authorized User IDs cannot be shared or used by more than one Authorized User. Subscriber shall use commercially reasonable efforts to prevent unauthorized access to, or use of, the Wesper Sleep Lab, and notify Wesper promptly of any unauthorized use. Subscriber is responsible for all activities of Authorized Clinical Users, including all access to or use of the Application Services. It is Subscriber’s responsibility to inform Authorized Clinical Users that access to and use of the Wesper Sleep Lab is subject to this Agreement and to ensure that Authorized Clinical Users comply with the terms of this Agreement and Applicable Law. Subscriber is responsible for procuring and maintaining the network connections that connect Subscriber to the Application Service. In the event Subscriber desires to purchase additional services or customization, the Parties shall execute an additional Order Form.
29. Support and Training. Wesper will use commercially reasonable efforts to make the Application Services available during the applicable Application Services Subscription Term, excluding any unavailability attributable to any Service Exception. Wesper will use commercially reasonable efforts to provide Subscriber with support and troubleshooting by telephone or email. Subscriber consents to the recording of support and troubleshooting calls for quality assurance and training purposes. Wesper will use commercially reasonable efforts to correct all material errors, bugs, or malfunctions of the Application Services or the failure of the Application Services to conform, in all material respects, with their specifications (each, a “Services Defect”) as soon as practicable after becoming aware of such Services Defect, provided that Wesper will not be obligated to correct Services Defects attributable to any Service Exception. From time to time, Wesper may remotely update, upgrade, or modify the Application Services or software or firmware embedded in Wesper Equipment for any reason without notice. This Agreement will apply to any such update, upgrade, or modification. At Subscriber’s request and at no charge to Subscriber, Wesper will provide reasonable remote training to instruct Authorized Clinical Users regarding the basic use of the Wesper Sleep Lab
30. Wesper Equipment. The Order Form shall state if the Wesper Equipment is Drop Ship Wesper Equipment, Leased Wesper Equipment, or Purchased Wesper Equipment. 

During a period of thirty (30) days commencing as of the Effective Date of the Order Form (the “Replacement Period”), Subscriber shall be entitled to request a replacement Wesper Equipment if the Wesper Equipment arrives defective. During the Replacement Period, Wesper will pay the shipping charges for delivery of replaced Wesper Equipment to you. Subscriber acknowledges that if Subscriber requests a replacement of Wesper Equipment, Subscriber is required to return the Wesper Equipment to Wesper in the same condition as when Subscriber received it (reasonable wear and tear excepted). To initiate a replacement, please contact support@wesper.co .

During a period of thirty (30) days commencing as of the date of delivery of the applicable Wesper Equipment (the “Return Period”), Subscriber shall be entitled to return unopened Wesper Equipment. IF THE WESPER EQUIPMENT HAS BEEN OPENED, IT IS NOT ELIGIBLE FOR RETURN PURSUANT TO THIS PARAGRAPH. Subscribed shall be required to pay the shipping charges for delivery of returning the unopened Wesper Equipment to Wesper, and such returned unopened Wesper Equipment must be received by Wesper during the Return Period. If Wesper receives the unopened Wesper Equipment return during the Return Period, Subscriber shall receive a refund of the fees paid for the returned unopened Wesper Equipment within sixty (60) days from receipt of such returned unopened Wesper Equipment. To initiate a return of an unopened Wesper Equipment, please contact support@wesper.co.

1. In addition to the terms of this Agreement, the following terms and conditions shall apply to Wesper Equipment and Subscriber’s use thereof: 
2. For Drop Ship Wesper Equipment, the terms set forth in Exhibit A shall apply. 
3. For Leased Wesper Equipment, the terms set forth in Exhibit B shall apply. 
4. For Purchased Wesper Equipment, the terms set forth in Exhibit C shall apply. 
5. Wesper Adhesives. In addition to the terms of this Agreement, the terms set forth in Exhibit D shall apply to Wesper Adhesives. 
6. Authorized Patient Users. Subscriber shall ensure that all Authorized Patient Users accept and agree to be bound by the Wesper Terms of Use Agreement available here: [https://wesper.co/policies/terms-of-service] (“Wesper TOS”). No Authorized Patient User may access or use the Wesper Sleep Lab until such Authorized Patient User accepts the Wesper TOS.   
7. Intellectual Property, Data Use
8. Ownership. As between the Parties, Wesper owns and retains all worldwide right title and interest in and to: (a) the Wesper Sleep Lab, (b) Marks, (c) Wesper Confidential Information, (d) all improvements, enhancements and modifications to, and derivative works of, any of the foregoing, and (e) all Intellectual Property Rights in and to any of the foregoing (collectively, clauses (a) through (e), “Wesper Intellectual Property”). No implied license or right of any kind is granted to Subscriber regarding Wesper Intellectual Property or any part thereof.
9. Limitations. Subscriber and Authorized Users shall use the Wesper Sleep Lab in accordance with this Agreement and Wesper instructions. Subscriber shall not, and shall ensure that Authorized Users do not, use or attempt to use the Wesper Sleep Lab for any purpose or in any manner that (a) is prohibited by this Agreement or Applicable Law, (b) transmits any unauthorized or unsolicited advertisements, e-mail or other commercial communications, (c) transmits any viruses, (d) interferes with or attempts to gain unauthorized access to Wesper’s network, or (e) impairs or limits Wesper’s ability to operate the Wesper Sleep Lab or any third party’s ability to access or use the Wesper Sleep Lab. Without limiting the foregoing, Subscriber shall not, and shall not permit any Authorized User or other party to, directly or indirectly: (i) sublicense, lease, rent, loan, distribute, or otherwise transfer the Application Services (or any component thereof) to any third party; (ii) modify, translate, reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or the underlying ideas, algorithms, structure or organization) of the Application Services (or any component thereof); (iii) copy, reproduce or create derivative works of the Application Services (or any component thereof); (iv) permit use of the Application Services for the development of new, or the modification of existing, products or services, whether offered by Subscriber, Authorized Users or a third party; (v) permit use of the Application Services (or any component thereof) for a time share, outsourcing or similar relationship; or (vi) remove, alter or obscure any labels, Wesper Marks or other proprietary notices from the Application Services.
10. Usage Data. Wesper may collect usage data relating to Subscriber’s and Authorized User’s use of the Wesper Sleep Lab. Wesper will own all Intellectual Property Rights in and to such data and may use such data for any purpose; provided, however, that if Wesper provides such data to a third party, it will aggregate such data so that Subscriber or Authorized Users cannot be identified as the source of such data. Usage data does not include PHI.
11. Subscriber Materials. Subscriber shall have the sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Subscriber Materials. Subscriber is solely responsible for creating backup copies of all Subscriber Materials. Subscriber hereby grants Wesper and its Affiliates a non-exclusive, worldwide, perpetual, royalty-free, irrevocable, fully paid up and transferable license, with the right to sublicense through multiple tiers, exercisable in perpetuity, to host, copy, use, distribute, access, read, store and display: (a) the Subscriber Materials, Subscriber Marks and Subscriber Confidential Information as necessary for the purposes of: (i) providing the Wesper Sleep Lab, (ii) exercising Wesper’ rights and performing its obligations hereunder, (iii) satisfying any Applicable Law, legal process or governmental request, (iv) detecting, preventing or otherwise addressing technical issues, and (v) responding to Authorized Users’ support requests; and (b) the Subscriber Materials in order to create, or have a third party create, aggregated, statistical data or compilations of Subscriber Materials with other data, and use or otherwise exploit or make available to other persons and entities such aggregated, statistical data or compilations of Subscriber Materials, in each case for any business or commercial purpose.
12. Feedback. Any information or materials that Subscriber or Authorized Users submit in connection with providing feedback regarding the Wesper Sleep Lab (“Feedback”) is not confidential. Wesper is free to use and exploit any Feedback in any manner without any notification, payment, attribution or other obligation to Subscriber or Authorized Users.
13. Fees And Expenses; Payments

Subscriber will pay all fees and charges specified in the Order Form. Fees are exclusive of taxes and other governmental charges, which are Subscriber’s responsibility. All fees and applicable taxes are invoiced and payable in accordance with the applicable Order Form. Except as otherwise expressly specified in this Agreement, payment obligations are noncancelable, and fees are nonrefundable. If any amount is past due more than thirty (30) days, Subscriber shall pay interest on the overdue balance at the rate of one percent (1%) per month or the maximum permitted by Applicable Law, plus all expenses of collection. 

1. Representations, Warranties and Disclaimers
2. Limited Warranty. Wesper warrants that, during Warranty Period, Wesper Equipment and Wesper Adhesives will materially conform to Wesper’s applicable specifications and be free from material defects in material and workmanship (“Limited Warranty”). Wesper will repair or replace Wesper Equipment and Wesper Adhesives that fail to materially conform to the Limited Warranty in all material respects (“Defective Equipment”) of which Subscriber notifies Wesper during the Warranty Period. This Limited Warranty is Subscriber’s sole and exclusive remedy for Defective Equipment and is not transferable. If Wesper notifies Subscriber that Wesper Equipment or Wesper Adhesives must be replaced for safety reasons, Subscriber shall comply with all Wesper instructions and cooperate in good faith with Wesper to replace such Wesper Equipment or Wesper Adhesives. 
3. Subscriber Warranty. Subscriber represents, warrants and covenants to Wesper that: (a) Subscriber shall, and shall ensure Authorized Clinical Users, comply with all Applicable Law while accessing or using the Wesper Sleep Lab and maintain in effect all permits, licenses and other authorizations necessary for such use, (b) Subscriber shall ensure all Authorized Clinical Users possess the requisite knowledge, qualifications, expertise and training necessary to use the Wesper Sleep Lab, (c) Subscriber will at all times maintain all rights, authorizations and consents (including those required under Applicable Law) to provide the Subscriber Materials, and (d) the Subscriber Materials (i) do not and shall not infringe, misappropriate or otherwise violate any Intellectual Property Rights of any person or any other third-party right, including any privacy right or right of publicity; (ii) may be used, stored, disclosed and otherwise processed as contemplated under this Agreement without any further license, right, consent, or authorization not yet secured by Subscriber; (iii) are not, and shall not be, deceptive, defamatory, obscene, pornographic or unlawful; and (iv) do not and shall not contain any viruses, worms or other harmful, surreptitious or malicious computer programming codes. 
4. Disclaimers. THE LIMITED WARRANTY IS THE SOLE AND EXCLUSIVE WARRANTY MADE BY WESPER AND ARE MADE FOR THE BENEFIT OF SUBSCRIBER ONLY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW: (A) THE WESPER SLEEP LAB IS PROVIDED “AS IS,” AND WESPER MAKES NO (AND HEREBY DISCLAIMS ALL) OTHER WARRANTIES, REPRESENTATIONS, OR CONDITIONS, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED OR STATUTORY, (B) WESPER DOES NOT WARRANT THAT OPERATION OF ANY COMPONENT OF THE WESPER SLEEP LAB WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT ALL DEFECTS WILL BE REPAIRED, AND (C) WESPER HAS NO RESPONSIBILITY OR LIABILITY ARISING FROM OR RELATED TO: (I) ANY DATA OR DATA OUTPUT CONTAINED IN THE WESPER SLEEP LAB, (II) THE USE, MISUSE, ABUSE, IMPROPER, OR UNAUHORIZED USE OF, OR INABILITY TO USE, THE WESPER SLEEP LAB OR ANY OTHER PRODUCTS OR SERVICES PROVIDED TO SUBSCRIBER BY WESPER; OR (III) THE USE OF OTHER EQUIPMENT, ADHESIVES, OR ANY OTHER PRODUCTS NOT MANUFACTURED BY OR SOLD UNDER THE WESPER MARK (REGARDLESS OF WHETHER PURCHASED FROM OR FURNISHED BY WESPER). THE WESPER SLEEP LAB IS A PRESCRIPTION MEDICAL DEVICE AND SHOULD NOT BE PROVIDED TO WOMEN WHO ARE PREGNANT, TRYING TO GET PREGNANT OR WHO HAVE A POSITIVE URINE PREGNANCY TEST ON THE DAY OF USE, WOMEN WHO ARE BREASTFEEDING, PATIENTS WITH SIGNIFICANT CARDIORESPIRATORY DISEASE, POTENTIAL RESPIRATORY MUSCLE WEAKNESS DUE TO NEUROMUSCULAR CONDITION, AWAKE HYPOVENTILATION OR SUSPICION OF SLEEP RELATED HYPOVENTILATION, CHRONIC OPIOID MEDICATION USE, HISTORY OF STROKE, HISTORY OF SEVERE INSOMNIA OR ANY KNOWN HEALTH CONDITION THAT, IN THE OPINION OF WESPER’S SLEEP PROFESSIONALS, PRECLUDES USE OF THE WESPER SLEEP LAB. 
5. Limitation of Liability 

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER WESPER NOR ITS AFFILIATES OR SUPPLIERS SHALL BE LIABLE TO SUBSCRIBER OR AUTHORIZED USERS FOR ANY SPECIAL, INDIRECT, EXEMPLARY, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY NATURE INCLUDING DAMAGES OR COSTS DUE TO LOSS OF PROFITS, DATA, REVENUE, GOODWILL, PRODUCTION OR USE, BUSINESS INTERRUPTION, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR PERSONAL OR PROPERTY DAMAGE ARISING OUT OF OR IN CONNECTION WITH WESPER’S PERFORMANCE HEREUNDER OR THE USE, MISUSE, OR INABILITY TO USE THE WESPER SLEEP LAB OR OTHER PRODUCTS OR SERVICES HEREUNDER, REGARDLESS OF THE CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, EVEN IF WESPER HAS BEEN NOTIFIED OF THE LIKELIHOOD OF SUCH DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE MAXIMUM LIABILITY OF WESPER ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT OR THE WESPER SLEEP LAB SHALL NOT EXCEED THE FEES PAID BY SUBSCRIBER TO WESPER DURING THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY. IN NO EVENT SHALL WESPER’ SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT. The Parties agree that the limitations of liability set forth in this section shall survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy. The Parties acknowledge that the fees have been set and the Agreement entered into in reliance upon these limitations of liability and that all such limitations form an essential basis of the bargain between the Parties.

Confidentiality and Privacy

1. Confidential Information. During the Agreement Term, a Party (“Disclosing Party”) may provide the other Party (“Receiving Party”) with certain information regarding the Disclosing Party’s business, technology, products, or services or other confidential or proprietary information (collectively, “Confidential Information”). The Disclosing Party will mark all Confidential Information in tangible form as “confidential” or “proprietary” or with a similar legend and identify all Confidential Information disclosed orally as confidential at the time of disclosure and provide a written summary of such Confidential Information within thirty (30) days after such oral disclosure. The Receiving Party agrees that it will not use or disclose to any third party any Confidential Information of the Disclosing Party, except as expressly permitted under this Agreement. The Receiving Party will limit access to the Confidential Information to Authorized Clinical Users (with respect to Subscriber) or to those of its or its Affiliates’ personnel, agents or consultants who have a need for such access (with respect to Wesper), and in each case, who have confidentiality obligations no less restrictive than those set forth herein, and who have been informed of the confidential nature of such information. In addition, the Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in a substantially similar manner that it protects its own proprietary information of a similar nature, but in no event with less than reasonable care. Upon termination or expiry of this Agreement, the Receiving Party will destroy (or permanently erase in the case of electronic files) all copies of the Confidential Information that the Receiving Party does not have a continuing right to use under this Agreement, and the Receiving Party shall, upon request, provide to the Disclosing Party a written affidavit certifying compliance with this sentence. The confidentiality obligations set forth in this Section 7.1 will not apply to any information that: (a) becomes generally available to the public through no fault of the Receiving Party; (b) is lawfully provided to the Receiving Party by a third party free of any confidentiality duties or obligations; (c) was already known to the Receiving Party at the time of disclosure; or (d) the Receiving Party can prove, by clear and convincing evidence, was independently developed by employees and contractors of the Receiving Party who had no access to the Disclosing Party’s Confidential Information. In addition, the Receiving Party may disclose Disclosing Party’s Confidential Information to the extent that such disclosure is necessary for the Receiving Party to enforce its rights under this Agreement or is required by Applicable Law or by the order of a court or similar judicial or administrative body, provided that the Receiving Party promptly notifies the Disclosing Party in writing of such required disclosure and cooperates with the Disclosing Party if the Disclosing Party seeks an appropriate protective order.
2. Privacy. Both Parties will comply with all Applicable Laws relating to privacy and data protection, including, to the extent applicable, the Health Insurance Portability and Accountability Act of 1996, the Health Information Technology for Economic and Clinical Health (HITECH) Act, and the regulations promulgated under such Acts. Without limiting the generality of the foregoing, Subscriber shall ensure that all Authorized Patient Users are provided adequate notice regarding the Authorized Patient Users’ use of the Application Services and shall obtain any and all consents and authorizations from Authorized Patient Users necessary in relation to such individuals’ use of the Application Services in the ways contemplated by this Agreement.

Term And Termination

Term. Unless earlier terminated in accordance with the terms hereof, the term of this Agreement commences on the Effective Date and will continue until the date occurring thirty (30) days after there are no longer any Order Forms in effect (“Agreement Term”). 

Suspension of Application Services. Without incurring any obligation or liability to Subscriber, any Authorized User, or other person, Wesper may suspend provision of the Application Services if Wesper reasonably determines: (a) Subscriber has breached its obligation to timely pay any fees, or (b) there has been a material breach of Section 3.2 (Limitations). In each case, the suspension will continue until such breach has been remedied to Wesper’s satisfaction.

Termination. A Party may terminate this Agreement immediately upon notice to the other Party if the other Party materially breaches this Agreement, and such breach remains uncured for more than five (5) business days (for payment breach) or thirty (30) days (for any other breach) after the breaching Party’s receipt of written notice of such breach from the other Party.

Effect of Termination or Expiration. Upon termination or expiration of this Agreement, the applicable Order Form, or any Application Services Subscription, as applicable, for any reason: (a) all rights and obligations of both Parties regarding the Application Services, including all licenses granted hereunder to the Application Services, will immediately terminate (except for the license set forth in Section 3.4 (Subscriber Materials)); (b) if this Agreement is terminated by Subscriber for Wesper’s uncured material breach, Wesper will refund Subscriber prepaid unused fees for the Application Services, (c) Subscriber shall cease and shall cause Authorized Users to cease accessing or using the Application Services; and (d) Subscriber’s and Authorized Users’ access to the Application Services will be automatically terminated, all passwords and individual accounts will be removed, and all Subscriber Materials that have been uploaded, submitted or entered into the Application Services by Subscriber or Authorized Users may be destroyed. All provisions of this Agreement which by their nature are intended to survive the termination of this Agreement will survive such termination.

1. Miscellaneous
2. Discount Disclosure. This Agreement may result in a discount or reduction in price for the Wesper Sleep Lab or any component thereof. Subscriber is obligated to properly disclose and appropriately reflect the net value or reduced prices of the Wesper Sleep Lab or any component thereof on applicable cost reports or in charges to Medicare, Medicaid, and other federal health insurance programs or state health insurance programs in accordance with Section 1128B(b)(3) of the Social Security Act, 42 U.S.C. §1320a-7b(b)(3). For purposes of proper reporting and disclosure to insurance programs, a more detailed breakdown of the costs is located on the Order Form and invoices provided by Wesper, which should be retained and made available to federal or state governmental officials upon request. 
3. Insurance. During the Agreement Term, Subscriber shall, at its own expense, maintain and carry insurance coverage of the type and with the limits customary to Subscriber’s business and reasonably acceptable to Wesper. Subscriber shall promptly provide Wesper with copies of certificates of insurance. This section shall not be construed as waiving, restricting, or limiting the liability of Subscriber for any obligations imposed under this Agreement (including any provisions requiring Subscriber to indemnify).
4. Indemnification. Subscriber will indemnify, hold harmless and, at Wesper’s request, defend Wesper, in each case at Subscriber’s expense, from any suit brought against Wesper, and will pay any settlement Subscriber makes or approves, or any damages finally awarded in such suit, insofar as such suit is based on a claim by any third party arising out of or relating to: (a) Subscriber’s or Authorized Users’ use of the Wesper Sleep Lab, (b) the actual or alleged violation of Applicable Laws by Subscriber or Authorized Users, or (c) any breach of Section 5.2 (Subscriber Warranty), (d) improper use of Wesper Equipment (including, without limitation, use of the Wesper Equipment with any third party materials or adhesives), or (e) Subscriber’s failure to pay any taxes under this Agreement. 
5. Other Equipment and Third Party Applications. Wesper assumes no liability for Other Equipment or Third Party Applications. Subscriber uses Other Equipment and Third Party Applications at its own risk and subject to all terms and conditions imposed by the third party supplier or manufacturer (including any license or warranty terms and conditions). Subscriber shall be solely responsible for ensuring compliance with third party terms of use, privacy policies and contractual obligations in making such Other Equipment and Third Party Applications available to Authorized Users.  
6. No Assignment. Subscriber shall not assign, subcontract, delegate, or otherwise transfer this Agreement, or its rights and obligations herein, without the prior written consent of Wesper. The terms of this Agreement shall be binding upon the Parties and their respective successors and permitted assigns.
7. Publicity. Either Party may disclose that Subscriber has ordered the Wesper Sleep Lab and Wesper may describe in general, non-confidential terms, this Agreement in its marketing materials. Any other disclosure shall require the prior approval of both Parties. If requested by Wesper, Subscriber agrees to serve as a reference account, participate in case studies and other promotional activity of Wesper, and participate in the creation of a mutually agreed upon press release announcing Subscriber’s order of the Wesper Sleep Lab.
8. Modifications to this Agreement. Wesper may modify this Agreement from time to time. Any modifications will be effective as of the Effective Date of any Order Form or renewal thereof that follows the posting of a notice of such modifications to [https://wesper.co/pages/equipement-return-policy].
9. General. Wherever used, the words “or” and “any” are used in the inclusive sense, and “including” will be interpreted to mean “including, without limitation.” If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will remain enforceable, and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by Applicable Law. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. This Agreement is the final, complete and exclusive agreement of the Parties with respect to the subject matters hereof and supersedes all prior discussions and agreements (oral or written) between the Parties with respect to such subject matters. No modification of or amendment to this Agreement by Customer, or any waiver of any rights under this Agreement by Wesper, will be effective unless in writing and signed by an authorized signatory of the Parties. This Agreement will be governed and interpreted by and under the laws of the state of New York, without regard to its conflicts of laws provisions. Any action relating to this Agreement shall exclusively be brought in New York, New York, and both Parties irrevocably consent to the personal jurisdiction of such courts. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. Except as otherwise expressly provided herein, the Parties’ rights and remedies under this Agreement are cumulative. Subscriber acknowledges that the Wesper Sleep Lab contains valuable trade secrets and proprietary information of Wesper, that any actual or threatened breach of Section 3 or Section 7 by Subscriber will constitute immediate, irreparable harm to Wesper for which monetary damages would be an inadequate remedy. In such case, Wesper will be entitled to immediate injunctive relief without the requirement of posting bond. If any legal action is brought to enforce this Agreement, the prevailing Party will be entitled to receive its attorneys’ fees, court costs, and other collection expenses, in addition to any other relief it may receive. Subscriber agrees not to export, reexport, or transfer, directly or indirectly, any U.S. technical data acquired from Wesper, or any products utilizing such data, including the Wesper Sleep Lab (or any component thereof), in violation of the United States export laws or regulations. Any delay in the performance of any duties or obligations of a Party (except the payment of money owed) will not be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, pandemic, epidemic or any other event beyond the control of such Party, provided that such Party uses reasonable efforts, under the circumstances, to notify the other Party of the cause of such. Subscriber’s relationship to Wesper is that of an independent contractor, and neither Party is an agent or partner of the other. Subscriber will not have any authority to act on behalf of Wesper. Each Party must deliver all notices or other communications required or permitted under this Agreement in writing to the other Party at the address listed in the Order Form by courier, certified or registered mail (postage prepaid and return receipt requested), or by a nationally recognized express mail service. Notice will be effective upon receipt or refusal of delivery. Each Party may change its address for receipt of notice by giving notice of such change to the other Party in accordance with this section.

EXHIBIT A

ADDITIONAL TERMS AND CONDITIONS FOR THE DROP SHIP WESPER EQUIPMENT 

This Exhibit A forms part of the Agreement.  In the event of a conflict between the terms of the Agreement and this Exhibit A, this Exhibit A shall control, but only with respect to the lease of the Wesper Equipment as described in the Order Form.  

1. Definitions.
2. “Warranty Period” means a period of twelve (12) months after delivery of the applicable Drop Ship Wesper Equipment, or until such Drop Ship Wesper Equipment is returned to Wesper (whichever is shorter) (“Warranty Period”).
3. Drop Ship Wesper Equipment Term. The Drop Ship Wesper Equipment is provided pursuant to the pricing in the applicable Order Form, for the Drop Ship Wesper Equipment Term. Subscriber is authorized to use the Drop Ship Wesper Equipment in connection with Subscriber’s Application Services Subscription. The “Drop Ship Wesper Equipment Term” shall continue until Subscriber returns the Drip Ship Wesper Equipment to Wesper, in accordance with Wesper’s standard return procedures described here: https://wesper.co/pages/equipement-return-policy. Subscriber acknowledges and agrees that regardless of any Subscription Term set forth on the applicable Order Form Subscriber is obligated to pay all applicable fees for Drop Ship Wesper Equipment until such Drop Ship Equipment is returned to Wesper.
4. Care of Drop Ship Wesper Equipment in Inventory. Subscriber shall properly care for and maintain the Drop Ship Wesper Equipment as specified in the instructions delivered with the Drop Ship Wesper Equipment and shall not alter, modify, or add to the Drop Ship Wesper Equipment. Subscriber will be responsible for Drop Ship Wesper Equipment loss, damage, and repair or replacement costs caused by Subscriber’s or an Authorized Clinical User’s negligence or willful misconduct, excepting normal wear and tear, as reasonably determined by Wesper. Title to and ownership of the Drop Ship Wesper Equipment is and will remain retained by Wesper. Subscriber agrees to keep the Drop Ship Wesper Equipment free and clear from any liens, claims, encumbrances, security interests or mortgages and to indemnify Wesper for any loss caused by Subscriber’s or Authorized Clinical Users’ failure to protect Wesper’ title. Subscriber shall execute any and all documents reasonably requested by Wesper to evidence Wesper’ title to and ownership of the Drop Ship Wesper Equipment. 
5. Delivery, Risk of Loss, Wesper Equipment Location. Wesper will use commercially reasonable efforts to provide timely delivery of the Drop Ship Wesper Equipment set forth in an Order Form to the Subscriber address specified therein or to Authorized Patient Users, as applicable. Subscriber will be responsible for all shipping and handling, insurance, duties, customs and similar costs. Shipping will be F.O.B. shipping point, freight prepaid and added to the fees payable by Subscriber. Upon receipt of Drop Ship Wesper Equipment by an Authorized Clinical User, the Authorized Clinical User shall thoroughly inspect all Drop Ship Wesper Equipment and immediately inform Wesper if the Drop Ship Wesper Equipment is damaged, defective or fails to meet Wesper’s published specifications. Subscriber acknowledges and agrees that the Drop Ship Wesper Equipment may be reconditioned, refurbished, or serviceable used Drop Ship Wesper Equipment that meets and satisfies Wesper’ quality assurance standards.
6. Restrictions. Subscriber shall not, and shall not permit any Authorized User or other party to, directly or indirectly: (i) sublicense, lease, rent, loan, distribute, or otherwise transfer the Wesper Sleep Lab (or any component thereof) to any third party; (ii) modify, translate, reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or the underlying ideas, algorithms, structure or organization) of the Wesper Sleep Lab (or any component thereof); (iii) copy, reproduce or create derivative works of the Wesper Sleep Lab (or any component thereof); (iv) permit use of the Wesper Sleep Lab for the development of new, or the modification of existing, products or services, whether offered by Subscriber, Authorized Users or a third party; (v) permit use of the Wesper Sleep Lab (or any component thereof) for a time share, outsourcing or similar relationship; or (vi) remove, alter or obscure any labels, Wesper Marks or other proprietary notices.
7. Inspection. Upon at least 10 days prior written notice, Subscriber will permit Wesper or its representatives to review Subscriber’s relevant records and inspect Subscriber’s facilities to ensure compliance with this Agreement. Wesper will have the right to enter Subscriber location(s) where the Inventory is located upon reasonable notice and during normal business hours, for the purposes of confirming the existence, condition, and proper maintenance of Drop Ship Wesper Equipment.
8. Suspension. Without incurring any obligation or liability to Subscriber, any Authorized User, or other person, Wesper may suspend provision of the Drop Ship Wesper Equipment if Wesper reasonably determines: (a) Subscriber has breached its obligation to timely pay any fees, or (b) there has been a material breach of Section 5 of this Exhibit B (Restrictions). In each case, the suspension will continue until such breach has been remedied to Wesper’s satisfaction.
9. Termination.  
10. In addition to the termination rights set for in the Agreement, Wesper may terminate the Drop Ship Wesper Equipment effective immediately if Wesper receives notice that any Inventory has been moved, transferred, or otherwise taken from Subscriber’s custody or control. Such termination will not relieve Subscriber’s obligation to pay fees hereunder. 
11. Termination for Convenience. Subscriber may terminate any Drop Ship Wesper Equipment for convenience by providing not less than sixty (60) days’ prior written notice to Wesper.
12. Effect of Termination or Expiration. In addition to the obligations set forth in Section 8.4 of the Agreement, upon termination or expiration of this Agreement, any Order Form, or any Drop Ship Wesper Equipment, (a) all rights and obligations of both Parties regarding the Wesper Equipment, including all licenses granted hereunder to the Wesper Equipment, will immediately terminate; (b) if this Agreement is terminated by Subscriber for Wesper’s uncured material breach, Wesper will refund Subscriber prepaid unused fees for the Drop Ship Wesper Equipment, (c) Subscriber shall cease and shall cause Authorized Users to cease accessing or using the Wesper Sleep Lab, and (d) Subscriber will return the Wesper Equipment in accordance with the Wesper Equipment Return Requirements Policy [https://wesper.co/pages/equipement-return-policy]. 

EXHIBIT B

ADDITIONAL TERMS AND CONDITIONS FOR LEASED WESPER EQUIPMENT

This Exhibit B forms part of the Agreement.  In the event of a conflict between the terms of the Agreement and this Exhibit B, this Exhibit B shall control, but only with respect to the lease of the Wesper Equipment as described in the Order Form.  

Definitions.

1. “Lease Term” means the length of the lease for the Leased Wesper Equipment, as set forth on the applicable Order Form.
2. “Warranty Period” means a period of twelve (12) months after delivery of the applicable Leased Wesper Equipment (“Warranty Period”).

Lease. As long as Subscriber is not in default under this Exhibit C and the Agreement, Subscriber may possess and use the Leased Wesper Equipment for the Lease Term in accordance with this Exhibit B, the Order Form, and the Agreement. Subscriber agrees not to waive its right to use and possess the Leased Wesper Equipment in favor of any party other than Wesper and further agrees not to abandon the Leased Wesper Equipment to any party other than Wesper.

Use of Leased Wesper Equipment. Subscriber will use the Leased Wesper Equipment only as specified in the manual and labeling accompanying the Leased Wesper Equipment, and for no other purposes.  Subscriber will not permit any third party to use the Leased Wesper Equipment in any manner not specified in the manual or labeling accompanying the Leased Wesper Equipment. Subscriber will store and handle Leased Wesper Equipment in accordance with the procedures specified in the manual and labeling accompanying the Leased Wesper Equipment. Subscriber will comply with all applicable federal, state and local laws and regulations in using or permitting the use of, storing and handling the Leased Wesper Equipment.

Care of Leased Wesper Equipment. Subscriber shall properly care for and maintain the Leased Wesper Equipment as specified in the instructions delivered with the Leased Wesper Equipment and shall not alter, modify, or add to the Leased Wesper Equipment. Subscriber will not remove any parts, accessories or attachments to or from the Leased Wesper Equipment other than in the course of routine maintenance as directed by Wesper. Subscriber shall, at its sole cost, maintain the Leased Wesper Equipment in good operating order, repair and condition excepting normal wear and tear resulting from permitted use. All additions, repairs, parts accessories, hardware and devices furnished or affixed to any Leased Wesper Equipment shall become the property of Wesper. Title to and ownership of the Leased Wesper Equipment is and will remain retained by Wesper. Subscriber agrees to keep the Leased Wesper Equipment free and clear from any liens, claims, encumbrances, security interests or mortgages and to indemnify Wesper for any loss caused by Subscriber’s or Authorized Clinical Users’ failure to protect Wesper’ title. Subscriber shall execute any and all documents reasonably requested by Wesper to evidence Wesper’ title to and ownership of the Leased Wesper Equipment. Subscriber does not and shall not acquire any right, title or interest in any Leased Wesper Equipment leased under this Exhibit C except the right to use the Leased Wesper Equipment under the terms provided in this Agreement. Subscriber will be responsible for Leased Wesper Equipment loss, damage, and repair or replacement costs, excepting normal wear and tear, as reasonably determined by Wesper. 

Delivery, Risk of Loss, Wesper Equipment Location. Wesper will use commercially reasonable efforts to provide timely delivery of the Leased Wesper Equipment set forth in an Order Form to the Subscriber address specified therein. Subscriber will be responsible for all shipping and handling, insurance, duties, customs and similar costs. Shipping will be F.O.B. shipping point, freight prepaid and added to the fees payable by Subscriber. Upon receipt of Drop Ship Wesper Equipment by an Authorized Clinical User, the Authorized Clinical User shall thoroughly inspect all Drop Ship Wesper Equipment and immediately inform Subscriber (and not Wesper) if the Leased Wesper Equipment is damaged, defective or fails to meet Wesper’s published specifications. Subscriber acknowledges and agrees that the Leased Wesper Equipment may be reconditioned, refurbished, or serviceable used Leased Wesper Equipment that meets and satisfies Wesper’ quality assurance standards.

Restrictions. Subscriber shall not, and shall not permit any Authorized User or other party to, directly or indirectly: (i) modify, translate, reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or the underlying ideas, algorithms, structure or organization) of the Wesper Sleep Lab (or any component thereof); (ii) copy, reproduce or create derivative works of the Wesper Sleep Lab (or any component thereof); (iii) permit use of the Wesper Sleep Lab for the development of new, or the modification of existing, products or services, whether offered by Subscriber, Authorized Users or a third party; or (iv) remove, alter or obscure any labels, Wesper Marks or other proprietary notices.

Casualty Occurrence. Subscriber bears all risk of any loss, theft, damage to, or destruction of the Leased Wesper Equipment from any cause whatever ("casualty occurrence"). No casualty occurrence shall relieve Subscriber from its obligations under this Exhibit C or the Agreement. In the event of a casualty occurrence to any Leased Wesper Equipment, Subscriber shall give Wesper prompt notice of it and if Wesper reasonably determines such item of Leased Wesper Equipment is lost, stolen, destroyed or damaged beyond repair, then Subscriber shall pay to the Wesper, not later than sixty (60) days after notification by Wesper, the casualty value of such item of Leased Wesper Equipment. The “casualty value” of any item of Leased Wesper Equipment shall be equal to a total of: (i) all matured by unpaid amounts, if any, due at the time of such payment; plus (ii) the sum of the present values of unmatured payments with respect to such item of Leased Wesper Equipment, with the present value of each such unmatured payment being calculated by discounting the amount of it at a discount rate of 20% per annum from the date such payment would otherwise be due to the date of payment of the casualty value; plus (iii) the "reversionary value" of the item of Leased Wesper Equipment less the net amount of the recovery, if any, actually received by Wesper from insurance or otherwise for such loss, theft, damage or destruction. For purposes of this Section, reversionary value shall be the estimated fair market value of the item of Leased Wesper Equipment as of the end of the Lease Term, as though such casualty occurrence had not occurred. Upon such replacement or payment, as appropriate, the lease shall terminate with, and only with, respect to the item of Leased Wesper Equipment or portion of it so replaced or paid for and Subscriber shall become entitled to such replaced or paid for item of Leased Wesper Equipment or portion of it "as is, where is." 

Inspection. Upon at least 10 days prior written notice, Subscriber will permit Wesper or its representatives to review Subscriber’s relevant records and inspect Subscriber’s facilities to ensure compliance with this Agreement. Wesper will have the right to enter Subscriber location(s) where the Inventory is located upon reasonable notice and during normal business hours, for the purposes of confirming the existence, condition, and proper maintenance of Leased Wesper Equipment. 

Termination.  

In addition to the termination rights set for in the Agreement, Wesper may terminate the lease to the Leased Wesper Equipment effective immediately if Wesper receives notice that any Inventory has been moved, transferred, or otherwise taken from Subscriber’s custody or control. Such termination will not relieve Subscriber’s obligation to pay fees hereunder. 

Effect of Termination or Expiration. In addition to the obligations set forth in Section 8.4 of the Agreement, upon termination or expiration of this Agreement, any Order Form, or any lease to the Leased Wesper Equipment, (a) all rights and obligations of both Parties regarding the Wesper Equipment, including all licenses granted hereunder to the Wesper Equipment, will immediately terminate; (b) if this Agreement is terminated by Subscriber for Wesper’s uncured material breach, Wesper will refund Subscriber prepaid unused fees for the Drop Ship Wesper Equipment, and (d) Subscriber will return the Wesper Equipment in accordance with the Wesper Equipment Return Policy [https://wesper.co/pages/equipement-return-policy]. 

1. Insurance. During the Lease Term, Subscriber shall, at its expense, keep in effect an "all risk" property insurance policy covering the Leased Wesper Equipment in an amount not less than the full replacement cost of the Leased Wesper Equipment. In addition, Subscriber shall also carry a public liability insurance policy (comprehensive general liability or other similar form of third party liability coverage acceptable to Wesper). All insurance policies shall be in form and amount and with insurers acceptable to Wesper. The all risk property insurance policy shall name Wesper and its assigns as loss payee, and the public liability insurance policy shall name Wesper as an additional insured. Each policy shall provide: (i) for no less than 30-days' prior written notice of modification, cancellation or non-renewal to Wesper; (ii) that such policy shall not be invalidated as against Wesper or its assigns for any violation of any term of the policy or Subscriber's application for it; and (iii) that such insurance is primary insurance and any other insurance covering Wesper or its assigns shall be secondary and excess of such policy. Subscriber shall pay the premiums and deliver to Wesper at the commencement of the Lease Term, a certificate of insurance, or other evidence satisfactory to Wesper, stating that coverage is in effect, provided, however, Wesper shall be under no duty either to ascertain the existence of or to examine such insurance policy or to advise Subscriber if such insurance shall not comply with the requirements of this lease. Proceeds from any public liability insurance policy shall be made payable first on behalf of the Wesper to the extent of its liability, if any. Subscriber shall promptly notify any appropriate insurer and Wesper of each occurrence which may become the basis of a claim or cause of action against the insureds and provide lessor with all data pertinent to such occurrence. The proceeds of casualty insurance, at the option of Wesper, shall be applied toward: (a) the repair or replacement of the Leased Wesper Equipment; (b) payment of the casualty value of it; or (c) the payment of any other accrued obligation of Subscriber under this agreement.
2. No Assignment. Without Wesper 's prior written consent, Subscriber shall not transfer, assign, sell, sublet, or otherwise dispose of any of Subscriber's interest in any Leased Wesper Equipment of this Agreement, and any attempt by Subscriber to accomplish the same without Wesper 's consent shall be null and void. 
3. Default. Upon the occurrence of any event of default by Subscriber, Wesper, at its sole option, and in addition to its other remedies available under the Agreement and at law, declare the full payment for the entirety of the Lease Term immediately due and payable. Wesper's remedies provided for in this Exhibit C shall be in addition to any and all other remedies provided, existing or available in its favor under any other provisions of this Agreement, at law, in equity or under statute. Wesper 's remedies may be exercised concurrently or separately, and the exercise of one remedy shall not be deemed to be an election of such remedy or to preclude the exercise of any other remedy. No failure or delay on the part of Wesper in exercising any right or remedy provided under these Exhibit C shall operate as a waiver of it. Subscriber waives notice of place of sale or lease and manner and place of any advertising. 

EXHIBIT C

ADDITIONAL TERMS RELATING TO PURCHASED WESPER EQUIPMENT 

This Exhibit C forms part of the Agreement.  In the event of a conflict between the terms of the Agreement and this Exhibit C, this Exhibit C shall control, but only with respect to the purchase of the Wesper Equipment as described in the Order Form.  

1. Definitions.
2. “Warranty Period” means a period of twelve (12) months after delivery of the applicable Purchased Wesper Equipment (“Warranty Period”).
3. Credit Approval.  Wesper’s obligation to ship Purchased Wesper Equipment reflected on an Order Form is subject to Wesper’s credit approval of Subscriber.
4. Delivery Terms. Wesper will use commercially reasonable efforts to provide timely delivery of the Purchased Wesper Equipment set forth in an Order Form to the Subscriber address specified therein. Subscriber will be responsible for all shipping and handling, insurance, duties, customs and similar costs. Shipping will be F.O.B. shipping point, freight prepaid and added to the fees payable by Subscriber. Unless otherwise set forth in the applicable Order Form, title to Purchased Wesper Equipment will pass to Subscriber when Wesper has loaded such Purchased Wesper Equipment on the carrier’s vehicle.  Upon receipt of Drop Ship Wesper Equipment by an Authorized Clinical User, the Authorized Clinical User shall thoroughly inspect all Drop Ship Wesper Equipment and immediately inform Subscriber (and not Wesper) if the Purchased Wesper Equipment is damaged, defective or fails to meet Wesper’s published specifications. Subscriber acknowledges and agrees that the Purchased Wesper Equipment may be reconditioned, refurbished, or serviceable used Purchased Wesper Equipment that meets and satisfies Wesper’ quality assurance standards.
5. Substitutions and Modifications.  Wesper will have the right to make substitutions and modifications in the specifications or composition of Purchased Wesper Equipment provided that such substitutions or modifications will not materially adversely affect overall product performance.
6. Returns. Wesper reserves the right to refuse any return of Purchased Wesper Equipment that are not defective or nonconforming, not covered by the warranty described above in Section 5.1 of the Agreement or whose defects were caused by improper use, storage or handling. Subscriber must contact Wesper before returning any Purchased Wesper Equipment for any reason. Subscriber shall not have the right to return Purchased Wesper Equipment to Wesper without Wesper’s prior consent after contacting Wesper at support@wesper.co. All returns must be packaged as instructed by Wesper and labeled with the assigned RMA number. Wesper will repair or replace, at its option, defective or nonconforming Purchased Wesper Equipment covered by the warranty described in Section 5.1 of the Agreement that are returned to Wesper within 20 days of issuance of an RMA number. All products returned must be in accordance with Wesper’s Shipping and Returned Materials Authorization Procedure.  
7. Use and Handling of Purchased Wesper Equipment.  Subscriber will use the Purchased Wesper Equipment only as specified in the manual and labeling accompanying the Purchased Wesper Equipment, and for no other purposes.  Subscriber will not permit any third party to use the Purchased Wesper Equipment in any manner not specified in the manual or labeling accompanying the Purchased Wesper Equipment. Subscriber will store and handle Purchased Wesper Equipment in accordance with the procedures specified in the manual and labeling accompanying the Purchased Wesper Equipment. Subscriber will comply with all applicable federal, state and local laws and regulations in using or permitting the use of, storing and handling the Purchased Wesper Equipment. 
8. Firmware.  Firmware embedded within the Purchased Wesper Equipment (“Firmware”) is licensed and not sold to Subscriber.  Subject to the terms and conditions of this Agreement, Wesper grants to Subscriber a non-exclusive, non-transferable, fully-paid, restricted license to use the Firmware solely as incorporated in the Purchased Wesper Equipment and solely in connection with the operation of the Purchased Wesper Equipment for Subscriber’s internal use.  Subscriber shall not (a) use, copy, modify or transfer the Firmware or any copy thereof, (b) sell, license, distribute, copy, modify, publicly perform or display, transmit, publish, edit, translate, create derivative works from or otherwise make unauthorized use of the Firmware or permit unauthorized access thereto, (c) reverse engineer, decompile, disassemble, or otherwise manipulate the Firmware or any portion thereof, or (d) attempt to do any of the foregoing. 
9. Ownership.  Wesper retains all proprietary rights in and to all designs, engineering details, and other technology and information pertaining to Purchased Wesper Equipment.  Except as expressly set forth herein, the sale of Purchased Wesper Equipment ordered hereunder does not grant to, convey or confer upon Subscriber or Subscriber’s Authorized Users or customers, or upon anyone claiming under Subscriber, a license, express or implied, under any patent right, copyright, or other intellectual property right of Wesper covering or relating to any use other than is consistent with the labeling thereof to which the Purchased Wesper Equipment may be put. Subscriber shall not, and shall not permit any Authorized User or other party to, directly or indirectly permit use of the Wesper Sleep Lab for the development of new, or the modification of existing, products or services, whether offered by Subscriber, Authorized Users or a third party; or remove, alter or obscure any labels, Wesper Marks or other proprietary notices.
10. Export Restrictions. Subscriber acknowledges that the laws and regulations of the United States may restrict the export and re-export of certain commodities and technical data of United States origin.  Subscriber agrees that it will not export or re-export the Purchased Wesper Equipment in any form without the appropriate United States and/or foreign government licenses.

EXHIBIT D

ADDITIONAL TERMS RELATING TO WESPER ADHESIVES

This Exhibit D forms part of the Agreement.  In the event of a conflict between the terms of the Agreement and this Exhibit D, this Exhibit D shall control, but only with respect to the purchase of Wesper Adhesives as described in the Order Form.  

1. Definitions.
2. “Warranty Period” means a period of three months after delivery of the applicable Wesper Adhesives or after first use of the Wesper Adhesives, whichever occurs first (“Warranty Period”).
3. Delivery Terms. Wesper will use commercially reasonable efforts to provide timely delivery of the Wesper Adhesives set forth in an Order Form to the Subscriber address specified therein. Subscriber will be responsible for all shipping and handling, insurance, duties, customs and similar costs. Shipping will be F.O.B. shipping point, freight prepaid and added to the fees payable by Subscriber. Unless otherwise set forth in the applicable Order Form, title to Wesper Adhesives will pass to Subscriber when Wesper has loaded such Wesper Adhesives on the carrier’s vehicle.  
4. Substitutions and Modifications.  Wesper will have the right to make substitutions and modifications in the specifications or composition of Wesper Adhesives provided that such substitutions or modifications will not materially adversely affect overall product performance.
5. Returns. Wesper reserves the right to refuse any return of Wesper Adhesives that are not defective or nonconforming, not covered by the warranty described above in Section 5.1 of the Agreement or whose defects were caused by improper use, storage or handling. Subscriber must contact Wesper before returning any Wesper Adhesives for any reason. Subscriber shall not have the right to return Wesper Adhesives to Wesper without Wesper’s prior consent and without having obtained a Returned Materials Authorization number (“RMA”) from Wesper by contacting support@wesper.co . All returns must be packaged and labeled as instructed by Wesper. Wesper will repair or replace, at its option, defective or nonconforming Wesper Adhesives covered by the warranty described in Section 5.1 of the Agreement that are returned to Wesper within 20 days of issuance of an RMA number. All products returned must be in accordance with Wesper’s Shipping and Returned Materials Authorization Procedure.  
6. Use and Handling of Purchased Wesper Adhesives.  Subscriber will use the Wesper Adhesives only as specified in the manual and labeling accompanying the Wesper Adhesives, and for no other purposes.  Subscriber will not permit any third party to use the Wesper Adhesives in any manner not specified in the manual or labeling accompanying the Wesper Adhesives. Subscriber will store and handle Wesper Adhesives in accordance with the procedures specified in the manual and labeling accompanying the Wesper Adhesives. Subscriber will comply with all applicable federal, state and local laws and regulations in using or permitting the use of, storing and handling the Wesper Adhesives. 
7. Ownership.  Wesper retains all proprietary rights in and to all designs, engineering details, and other technology and information pertaining to Wesper Adhesives.  Except as expressly set forth herein, the sale of Wesper Adhesives ordered hereunder does not grant to, convey or confer upon Subscriber or Subscriber’s customers, or upon anyone claiming under Subscriber, a license, express or implied, under any patent right, copyright, or other intellectual property right of Wesper covering or relating to any use other than is consistent with the labeling thereof to which the Wesper Adhesives may be put.
8. Export Restrictions. Subscriber acknowledges that the laws and regulations of the United States may restrict the export and re-export of certain commodities and technical data of United States origin.  Subscriber agrees that it will not export or re-export the Wesper Adhesives in any form without the appropriate United States and/or foreign government licenses.