INTELLIJOINT VIEW PLATFORM TERMS OF SERVICE 

If you have any questions about these Terms of Service or if you wish to provide any feedback with respect to the Services, please contact us at: support@intellijointsurgical.com

1. GENERAL

1.1. Product Description. The Intellijoint VIEW platform is designed to allow surgeons to plan total joint arthroplasty procedures using patient x-rays, implant templates, and modelling tools. The product allows surgeons to overlay patient x-rays with implant schematics and perform measurement and implant positioning tasks. Information from the Intellijoint VIEW platform may be saved, printed, or exported to other Intellijoint products including Intellijoint HIP and Intellijoint KNEE.

1.2. Terms of Service. This Agreement (“Terms of Service”) govern Your access to and use of Intellijoint Surgical Inc. (“Intellijoint”) services including the Intellijoint VIEW platform (“Services”) as identified in one or more order forms executed and accepted by Intellijoint or made available by Intellijoint from time-to-time including, without limitation, any evaluation, trial, or pre-release software (each a “Subscription Agreement”). Intellijoint may update these terms from time-to-time and will provide You with notice of such changes.

1.3. Acceptance. By using or visiting the Services, You accept and agree to be bound by (i) these Terms of Service, (ii) all Subscription Agreements which are incorporated herein by reference and (iii) our Privacy Notice, found at https://www.intellijointsurgical.com/privacy-notice/ (“Privacy Notice”) which is incorporated herein by reference (and collectively referred to as the “Agreement”). This Agreement constitutes a binding agreement between You (“You” and “Your”) and Intellijoint. This Agreement represents the parties’ entire understanding regarding the Services and shall govern over any prior oral or written agreement or discussions.

2. INTELLIJOINT SERVICES

2.1. Subscription Service. Unless otherwise set out in a Subscription Agreement, Services are purchased by a health care provider (“Client” e.g. Your institution) who has signed a separate agreement to purchase the Services for Your use on a subscription basis. All rights not expressly granted to You in this Agreement are reserved and retained by Intellijoint. Intellijoint will make the Service available to You pursuant to this Agreement. To obtain support for the Services please contact the Client.

2.2. Not Professional Advice. The Services provided by Intellijoint under this Agreement are intended to provide surgeons with comprehensive pre-operative planning tools that enable the implementation of modern best practices for total joint arthroplasty procedures. However, the documents and other materials available through the Services and any advice provided, (collectively, the “Service Materials”) are for informational purposes only; they are not guaranteed to be correct, complete or up-to-date, and all final decisions belong to You. In particular, Intellijoint does not review the Service Materials or any information that You or Client input to the Services or provide to Intellijoint for accuracy, completeness or sufficiency.

YOU ACKNOWLEDGE AND AGREE THAT THE SERICES PROVIDED UNDER THIS AGREEMENT ARE AN ADJUNCT TO, AND NOT A REPLACEMENT FOR, YOUR KNOWLEDGE, EXPERTISE, AND JUDGMENT AND AS SUCH, RESPONSIBILITY FOR THE USE OF THE SERVICES, THE SERVICE MATERIALS OR RELIANCE UPON ANY RECOMMENDATIONS MADE BY THE SERVICES REMAINS WITH YOU.

2.3. Access and Security. In order to use the Service, You will have to register and create a user account (each an “Account”) with Intellijoint and provide one or more names, email addresses, login usernames and passwords (together, “ID”). You are responsible for maintaining the confidentiality of Your IDs. You are responsible and liable in accordance with the terms of this Agreement for any and all activity that occurs on Your Account. If You suspect any unauthorized use with Your Account, You must notify Intellijoint immediately. To the extent that You engage any third party to assist, support or use the Service on Your behalf (e.g. engaging an independent Intellijoint sales representative to support case planning) You and You alone will be responsible for the actions of the third party as if the actions or omissions were Your own in accordance with the terms of this Agreement.

2.4. Territories. The Services are offered for sale and use only in jurisdictions where Intellijoint or its authorized distributors hold the required regulatory licenses, approvals, or authorizations for use of the Services (each a “Territory”). Intellijoint or its authorized distributor shall be responsible for obtaining and maintaining any regulatory licenses or approvals required for the lawful marketing and provision of the Services in each Territory.

3. INTELLIJOINT CONTENT AND SERVICE LICENSING

3.1. Intellijoint Content. The Services and Service Materials contain content owned by Intellijoint, its suppliers or licensors including, without limitation, documentation, implant templates, and software (“Intellijoint Content”). Intellijoint, its suppliers and licensors own and retain all rights, including all intellectual property rights, in and to the Services and Intellijoint Content. The Services and Intellijoint Content are protected by copyright, trademark, patent, trade secret and other laws.

3.2. Ownership and License. Subject to Your compliance with this Agreement, Intellijoint grants You a limited, revocable, non-transferable, non-exclusive and personal right to access, use and display the Services and Intellijoint Content in the Territories during the period set out in the applicable Subscription Agreement (“Subscription Term”). You may publicly display or perform the Services, including the capture and publication of any user interfaces, only for academic, research, education and demonstration purposes as long as You respect all branding guidelines published by Intellijoint. You may not otherwise reproduce, modify, display, perform or distribute the Services without the prior written consent of Intellijoint.

3.3. Restrictions. You shall not (and shall not permit others to): (i) license, sub-license, sell, resell, transfer, rent, lease, lend, assign, distribute or share the Services or Intellijoint Content or make any of them available for access by third parties; (ii) create derivative works based on or otherwise modify the Services or Intellijoint Content; (iii) disassemble, reverse engineer or decompile the Services or Intellijoint Content; (iv) access the Service or Intellijoint Content in order to develop a competing product or service; (v) use the Service or Intellijoint Content to provide a service for others; (vi) remove or modify a copyright or other proprietary rights notice on or in the Services or Intellijoint Content; (vii) use the Services or Intellijoint Content to violate any applicable law or regulation; (viii) disable, hack or otherwise interfere with any security, digital signing, digital rights management, verification or authentication mechanisms implemented in or by the Services; (ix) include, send, store or run software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs from the Services; or (x) interfere with or disrupt the integrity or performance of the Service or Intellijoint Content.

3.4. Feedback. In the course of using the Services, You may provide Intellijoint with input regarding the Services, including, without limitation, comments or suggestions regarding the possible creation, modification, correction, improvement or enhancement of the Services (“Feedback”). Subject to Section 9 (Confidentiality), You grant Intellijoint a worldwide, royalty-free, non-exclusive, perpetual, irrevocable license to use, incorporate, modify, and create derivative works from any Feedback for the purpose of developing, improving, marketing, and supporting Intellijoint’s products and services. Intellijoint shall have no obligation to compensate or credit You for Feedback.

3.5. Updates. Intellijoint may modify or update the Services and Intellijoint Content from time-to-time in order to adapt it technically, adjust documentation, change user interfaces, or to expand or limit functionality.

4. USER CONTENT AND LICENSES

4.1. User Content. The Services provide the ability for You to upload, publish, export, and input content including, without limitation, imaging data, case notes, and surgical planning measurements (“User Content”). Intellijoint does not monitor, view, analyze, or edit any User Content, and Intellijoint is not responsible for preventing or identifying infringement of intellectual property rights or non-compliance with applicable laws pertaining to User Content. Intellijoint will not be liable, directly or indirectly, in any way for any damage or loss caused or alleged to be caused by or in connection with User Content.

4.2. Ownership and License. As between You and Intellijoint, You retain ownership in the User Content. By uploading, displaying, or publishing User Content to the Services, You grant Intellijoint a worldwide, royalty-free, fully paid-up, non-exclusive, sublicensable, and transferable license to use, reproduce, modify, distribute, display, and perform the User Content during the Term of this Agreement only in connection with the delivery of Services for You. This license grant is subject to our Privacy Notice. This license is necessary for Intellijoint to deliver, test, and improve the Services. Intellijoint may use de-identified User Content uploaded to the Services to: (i) improve the Services and develop new features; (ii) conduct research and development regarding surgical planning techniques; (iii) create aggregate statistical analyses and benchmarking data; (iv) train machine learning algorithms and artificial intelligence models; and (v) publish or share industry insights in aggregate form. Intellijoint will not attempt to re-identify any de-identified data and will not combine de-identified data from multiple users in a manner that could enable re-identification of individual patients or surgeons.

4.3. De-identified Data Architecture.

4.3.1. Technical De-identification Process. The Services employ automated technical controls to ensure only de-identified data is stored and processed. Upon upload, all imaging files are processed through Intellijoint’s automated de-identification system which removes standard DICOM metadata tags that commonly contain Protected Health Information (“PHI”) or Personally Identifiable Information (“PII”). Original files containing metadata are not retained by Intellijoint after the de-identification process completes. Intellijoint does not require the upload, use, storage or processing of identifiable PHI or PII for any operational or functional purpose related to the Services.

4.3.2. User Responsibilities for Complete De-identification. While Intellijoint’s automated system removes standard DICOM metadata tags, You remain responsible for: (i) Ensuring that imaging data does not contain patient identifying information “burned into” or overlaid on the images themselves (such as patient names, medical record numbers, or dates visible within the x-ray image); (ii) Verifying that unusual or custom DICOM tags not addressed by Intellijoint’s standard stripping process do not contain identifying information; (iii) Ensuring that the imaging characteristics themselves (e.g., rare anatomical features, unusual implants, distinctive pathology) combined with other information do not create a reasonable basis for re-identification; and (iv) Not including patient identifying information in file names, case notes, or other free-text fields within the Services. Intellijoint recommends that You review Your institutional policies and consult with Your privacy officer regarding whether additional de-identification steps are required before using the Services.

4.3.3. Intellijoint Position. Because of the automated de-identification process described above, the Services are designed, marketed, and operated exclusively as a de-identified surgical planning platform. Intellijoint’s position is that properly de-identified data processed through the Services does not constitute PHI under the Health Insurance Portability an Accountability Act “HIPAA” or “Personal Data” under the General Data Protection Regulation “GDPR”. Accordingly, Intellijoint does not act as a “Business Associate” under HIPAA or a “data processor” under GDPR with respect to standard use of the Services, and no Business Associate Agreement (“BAA”) or Data Processing Agreement (“DPA”) is required for such standard use.

4.3.4. Residual Risk and User Liability. Notwithstanding the automated stripping process, You acknowledge and agree that: If any PHI/PII remains in uploaded data after the automated stripping process (whether in image pixels, non-standard tags, file names, or free-text fields), such data is uploaded in violation of the intended use of the Services. Intellijoint has no obligation to manually review uploaded data to verify complete de-identification. You assume all risk and liability for any PHI/PII that remains in uploaded data, including responsibility for compliance with privacy laws and breach notification requirements. Intellijoint’s automated process does not constitute a guarantee, warranty, or representation that uploaded data is fully de-identified under applicable law. You shall indemnify Intellijoint for any claims, fines, penalties, or liabilities arising from PHI/PII present in Your uploaded data.

4.3.5. Customer Assessment. Notwithstanding Intellijoint’s position above, Client may determine, based on its own legal analysis, institutional policies, risk assessment, or interpretation of applicable law, that execution of a BAA or DPA is required or advisable for use of the Services.

4.4. Patient Authorizations. Patient authorization is not generally required when the Services are used with properly de-identified data pursuant to Section 4.3. Notwithstanding this above, You should consult with Your institutional privacy officer, legal counsel, or compliance department regarding Your obligations and obtain any required institutional approvals or IRB review for use of the Services with de-identified patient data. You are responsible for complying with any institutional policies requiring patient notification or consent even for de-identified data and ensuring Your use of the Services complies with applicable professional standards and ethical guidelines.

4.5. Representations and Warranties. You represent and warrant that: (i) You own or have the necessary licenses, rights, consents and permissions to collect, use and publish the User Content that You submit to the Services; (ii) such collection, use, transfer and disclosure is not prohibited by any applicable law; (iii) the uploading of Your User Content on the Service and the licenses granted to Intellijoint under this Agreement do not and will not violate the rights of any individual or entity; and (iv) no payments of any kind shall be due by Intellijoint to any organization for the use or distribution of User Content.

4.6. Prohibited Content. You agree that You will not upload or use User Content in connection with the Service that is obscene, threatening, predatory, libelous, misleading, defaming or otherwise violates or attempts to violate the privacy rights, publicity rights, copyrights, trademark rights, contract rights or any other rights of any individual or entity. Intellijoint reserves the right to investigate and take appropriate action against anyone who, in our sole discretion, violates these provisions including removing the offending User Content without prior notice.

4.7. Necessary Disclosure. Intellijoint may preserve, store or disclose User Content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (i) comply with legal processes, as further described in our Privacy Notice; (ii) comply with this Agreement; (iii) respond to claims that any User Content violates the rights of any individual or entity; or (iv) protect the rights, property, or personal safety of Intellijoint, Customers or the public.

5. PRIVACY AND SECURITY

5.1. Applicability. The Services are not designed or intended for processing PHI under HIPAA, Personal Data under GDPR, or equivalent identified patient data under other privacy laws. Intellijoint acts neither as a business associate nor as a data processor with respect to Your use of the Services.  Please refer to Section 4 for further information and restrictions regarding User Content.

5.2. Privacy Notice. Intellijoint’s collection and use of Your information, including Your Account, ID and User Content, is governed by our Privacy Notice. You understand that through Your use of the Services, You consent to the collection and use of this information, including the transfer of this information to or from other countries for storage, processing and use by Intellijoint. You understand, as further described in our Privacy Notice, that Intellijoint may use third party providers to store, process and transfer personal information (including PII and PHI) on servers located outside of Your jurisdiction of use and in jurisdictions whose data protection laws may differ from those of Your jurisdiction of use, including but not limited to the United States of America. As a result, personal information may be subject to access requests from governments, courts, or law enforcement in those jurisdictions according to the laws in those jurisdictions. For example, information may be shared in response to valid demands or requests from government authorities, courts and law enforcement officials in jurisdictions other than Your own. Subject to applicable laws in such other jurisdictions, Intellijoint will use reasonable efforts to ensure that appropriate protections are in place to require our third parties to maintain protections on personal information that are equivalent to those that apply in Your jurisdiction. If You have questions regarding our policies and practices with respect to our use of third-party service providers outside of Your jurisdiction, including with respect to the collection, use, disclosure or storage of personal information by service providers outside of Your jurisdiction for us or on our behalf, please contact us as set out in the Privacy Notice. As part of providing the Services, Intellijoint may need to provide You with certain communications, such as service announcements and administrative messages. These communications are considered part of the Services. As part of signing up to receive the Services, You may have also opted in to receive email communications from Intellijoint. If You opted-in to receive such communications, Intellijoint may use the information to: (i) communicate with You regarding the Services and promotions; (ii) provide You with other information that You request; or (iii) improve the Services. In compliance with applicable laws, You will always have the opportunity to “unsubscribe” from receiving any e-mail or other communications at any time and Intellijoint will ensure that all e-mails include instructions on how to unsubscribe if You no longer wish to receive future e-mails from Intellijoint. Intellijoint provides an on-going opportunity to unsubscribe or opt-out of contact by accessing our website at www.intellijointsurgical.com/view-unsubscribe/ or by contacting privsec@intellijointsurgical.com. If You decide to unsubscribe, Intellijoint will only contact You (i) for the purposes allowed under applicable law; (ii) to send You notices of changes to our Privacy Notice; or (iii) to receive Service related messages.

5.3. Security. The Services are provided by Intellijoint using third party services and data center facilities including, without limitation, data storage and processing with HealthCareBlocks (https://www.healthcareblocks.com/) and hosted with Amazon Web Services, to which You have remote access via the Services. You consent to Intellijoint subcontracting these services to third parties. Intellijoint implements security procedures to help protect Your User Content from security attacks. However, You understand that use of the Services necessarily involves transmission of Your User Content over networks that are not owned, operated or controlled by us, and Intellijoint is not responsible for any User Content that is lost, altered, intercepted, copied or stored across such networks. Intellijoint cannot guarantee that our security procedures will be error-free, that transmissions of Your User Content will always be secure or that unauthorized third parties will never be able to defeat our security measures or those of our third-party service providers. If You become aware of any security breach in the Services, You agree to promptly notify Intellijoint. Intellijoint agrees to notify You in the event of a confirmed detected security breach or suspicious access of Your User Content.

5.4. Data Encryption. All User Content will be encrypted at rest and in transit using a strong cryptographic protocol that is consistent with industry standards.

5.5. Support. Intellijoint may offer remote support services in connection with the Services. Remote support services are not designed for and should not include displaying or transmitting identifiable PHI/PII. You must ensure that any screen sharing or troubleshooting sessions exclude patient identifiers unless separately authorized and covered under an executed BAA or DPA.

5.6. Maintenance and Repairs. Intellijoint uses reasonable efforts to ensure that availability of the Services will be uninterrupted and that transmissions will be error-free. However, due to the nature of the internet, this cannot be guaranteed. Also, Your access to Services may be occasionally suspended or restricted to allow for repairs, maintenance or the introduction of new facilities or services. Intellijoint will attempt to limit the frequency and duration of any such suspension or restriction, and Intellijoint will use reasonable efforts to alert or notify You in the event of any scheduled or non-scheduled suspension of Services for maintenance or repair purposes. Due to the nature of technical outages, Intellijoint cannot guarantee notice prior to unplanned outages. Intellijoint will not be held responsible for any delay or failure to comply with our obligations under these conditions if the delay or failure arises from any cause which is beyond our reasonable control.

6. WARRANTY

6.1. No End User Warranties. EXCEPT AS EXPRESSLY SET OUT HEREIN, THIS SERVICE (INCLUDING THE SERVICE MATERIALS AND THE INTELLIJOINT CONTENT) IS PROVIDED ON AN “AS-IS”, “AS-AVAILABLE” BASIS, WITHOUT ANY REPRESENTATIONS, WARRANTIES OR CONDITIONS, EXPRESS, STATUTORY OR IMPLIED INCLUDING, WITHOUT LIMITATION, ANY CONDITIONS, ENDORSEMENTS, GUARANTEES, REPRESENTATIONS OR WARRANTIES OF DURABILITY, MERCHANTABILITY, MERCHANTABLE QUALITY, SATISFACTORY QUALITY, ACCURACY, TITLE, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE OR USE, ARISING FROM A STATUTE OR CUSTOM OR A COURSE OF DEALING OR USAGE OF TRADE, OR THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ERRORS WILL BE CORRECTED, OR THAT DATA WILL BE RETAINED, OR WILL NOT BE DELETED, LOST OR MODIFIED, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. THE USE OF THE SERVICES IS AT YOUR OWN RISK. WITHOUT LIMITING THE FOREGOING, INTELLIJOINT DOES NOT REPRESENT OR WARRANT THAT THE SERVICES SHALL FUNCTION WITHOUT FAILURE, ERROR OR INTERRUPTION. NOTHING IN THIS AGREEMENT EXCLUDES OR LIMITS RIGHTS THAT CANNOT BE EXCLUDED UNDER APPLICABLE CONSUMER PROTECTION OR MEDICAL DEVICE LAWS.

6.2. Client Warranties. Any representations, warranties, service levels, indemnities, remedies, or guarantees that Intellijoint may provide are made solely to the applicable Client under the Subscription Agreement governing the System or the Services, and not to individual Users under these Terms. Nothing in these Terms modifies, expands, or creates any warranties beyond those expressly set out in the applicable Subscription Agreement. To obtain support for the Services please contact the Client.

6.3. User Expertise. You acknowledge that Your use of the Services, and any reliance on outputs, requires Your own clinical judgment, verification, and independent assessment, and that no warranty is made that the Services are suitable for any specific patient, procedure, implant, or clinical decision.

7. INDEMNIFICATION

7.1. Intellijoint Indemnification. Intellijoint does not provide any indemnification to You under this Agreement. Any indemnification obligations of Intellijoint, if applicable, are contained exclusively in the Subscription Agreement between Intellijoint and the applicable Client.

7.2. Your Indemnification. You shall indemnify and hold harmless Intellijoint from third-party claims arising out of: (i) Your breach of this Agreement; (ii) Your failure to de-identify data prior to upload; (iii) Your violation of applicable laws or Client policies; (iv) Your misuse, alteration, misinterpretation, or unauthorized reliance on the Services; and (v) Your negligent or intentional conduct, except to the extent caused by Intellijoint.

7.3. Process. The party seeking indemnification will promptly notify the other party of the claim and cooperate with the other party in defending the claim. The indemnifying party will have full control and authority over the defense, except that: (i) any settlement requiring the party seeking indemnification to admit liability requires prior written consent, not to be unreasonably withheld or delayed; and (ii) the other party may join the defense with its own counsel at its expense.

8. LIMITATIONS OF LIABLITY AND DAMAGES

8.1. Exclusion of Consequential Damages. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL INTELLIJOINT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION ANY DAMAGES FOR PERSONAL INJURY, MEDICAL COMPLICATIONS, LOSS OF DATA, LOSS OF PROFITS, LOSS OF OPPORTUNITY, BUSINESS INTERRUPTION, OR ANY DAMAGES ARISING OUT OF OR RELATED TO YOUR USE OF (OR INABILITY TO USE) THE SERVICES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

8.2. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE TOTAL AGGREGATE LIABILITY OF INTELLIJOINT AND THE INTELLIJOINT PARTIES ARISING OUT OF OR RELATING TO THESE TERMS OR THE USE OF THE SERVICES SHALL NOT EXCEED THE GREATER OF: (A) ONE HUNDRED UNITED STATES DOLLARS (USD $100); or (B) THE AMOUNT PAID BY YOU FOR THE SERVICES IN THE 12 MONTHS PRECEDING THE EVENT GIVING RISE TO LIABILITY.

8.3. Exceptions to Limitations. NOTWITHSTANDING SECTIONS 8.1 AND 8.2, THE LIMITATIONS, EXCLUSIONS, AND DISCLAIMERS SET FORTH IN THIS AGREEMENT SHALL NOT APPLY TO: (A) A PARTY’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT OR FRAUD; (B) A PARTY’S BREACH OF ITS OBLIGATIONS UNDER ARTICLE 9 (CONFIDENTIALITY); (C) A PARTY’S INFRINGEMENT OR MISAPPROPRIATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS; (D) CUSTOMER’S BREACH OF LICENSE RESTRICTIONS UNDER SECTIONS 3 OR 4; OR (E) LIABILITY THAT CANNOT BE LIMITED OR EXCLUDED UNDER APPLICABLE LAW.

8.4. Relationship to Subscription Agreement. Any enterprise-level warranties, indemnities, or liability limitations applicable to the Client are set out exclusively in the Subscription Agreement. Nothing in these Terms modifies, expands, or reduces any rights or remedies available to the Customer under the Subscription Agreement.

9. CONFIDENTIALITY

9.1. Confidential Information. You acknowledge that certain non-public information relating to the Services is confidential and proprietary to Intellijoint, including without limitation (a) non-public documentation, support communications, diagnostic information, system performance information, feature specifications, and technical or business materials; and (b) the non-public visual design elements, user interface laYouts, user experience flows, navigation structures, workflow logic, analytics display formats, data visualization structures, interaction patterns, and other non-public aspects of the design or operation of the Services (collectively, “Confidential Information”). You agree not to disclose, publish, record, reproduce, distribute, or otherwise share Confidential Information with any third party except as reasonably necessary for clinical, academic, or non-commercial research purposes permitted under these Terms, and provided such disclosures do not facilitate competitive analysis, benchmarking, workflow emulation, reverse engineering, or the development or improvement of any competing or substitutive product or service. For clarity, (i) Confidential Information does not include any patient-identifiable information or other regulated personal data, which You are expressly prohibited from uploading or submitting to the Services, and (ii) nothing in this Section authorizes the disclosure, upload, or processing of any identifiable patient or institutional confidential information.

9.2. Obligations of Non-Disclosure. Recipient agrees that at all times and notwithstanding any termination or expiration of this Agreement it will hold in strict confidence and not disclose to any third-party any Confidential Information of the Discloser, except as approved in writing by the Discloser, and will use the Confidential Information of the Discloser only as reasonably necessary to fulfill the purposes of this Agreement. The Recipient will also protect such Confidential Information with at least the same degree of care that the Recipient uses to protect its own Confidential Information, but in no case, less than reasonable care. The Recipient will limit access to the Confidential Information of the Discloser to only those of the Recipient’s employees, partners, contractors, investors or authorized representatives having a need to know (herein “Representatives”). Prior to a Representative receiving Confidential Information the Representative will be been advised of the obligations contained in this Agreement. Representatives must either agree in writing to be bound by this Agreement, or have previously entered into a binding confidentiality agreement with the Recipient that affords substantially similar protection of the Confidential Information as this Agreement. Recipient will not have any obligations under this Agreement with respect to a specific portion of the Confidential Information of the Discloser if the Recipient can demonstrate that such portion of Confidential Information: (i) was in the public domain at the time it was disclosed to the Recipient; (ii) entered the public domain subsequent to the time it was disclosed to the Recipient, through no fault of the Recipient; (iii) was already in the Recipient’s possession at the time it was disclosed to the Recipient; (iv) was communicated to the Recipient free of any obligation of confidence subsequent to the time it was disclosed to the Recipient; or (v) was independently developed by employees or agents of the Recipient. Notwithstanding the above, the Recipient may disclose certain Confidential Information of the Discloser, without violating the obligations of this Agreement, to the extent such disclosure is required by a valid order of a court or other governmental body having jurisdiction, provided that the Recipient uses all reasonable efforts to provide sufficient notice of this requirement to the Discloser to enable the Discloser to seek an order limiting or preventing the disclosure of the Confidential Information.

9.3. Survival Period. The obligations in respect of Confidential Information shall survive for five (5) years following the expiration of this Agreement, or in the case of trade secrets, for so long as the information remains a trade secret. For clarity, the terms of this Agreement are confidential and shall not be disclosed by either Party except to those employees, agents or officers or professional advisors with a need to know the information. Notwithstanding any other term in this Agreement, neither Party is obligated to erase confidential information archived by their automatic security or disaster recovery systems. Any such retained copy shall remain subject to the confidentiality and non-use obligations herein. The provisions of this section shall survive termination or expiration of this Agreement.

9.4. Access to Books and Records. The following clause is included herein to address Section 1861(v)(1)(I) of the Social Security Act and corresponding regulations to the extent it applies to this Agreement (as well as any prior agreements for the same or similar Services). Until the expiration of four (4) years after the furnishing of Services pursuant to this Agreement, Intellijoint shall make available upon written request of the Secretary of Health and Human Services or the United States Comptroller General or any of their duly authorized representatives, this Agreement, books, documents, and records which are necessary to verify the nature and extent of costs incurred by Intellijoint under this Agreement; and if Intellijoint carries out any of the duties of this Agreement through a subcontract, with a value or cost of $10,000 or more over a twelve (12) month period (including contracts for both goods and services in which the service component is worth $10,000 or more over a twelve (12) month period), with a related organization, such subcontract must contain a clause to the effect that until the expiration of four years after the furnishing of services pursuant to such subcontract, the related organization shall make available upon written request of the Secretary of Health and Human Services or the United States Comptroller General or any of their duly authorized representatives, the subcontract, books, documents, and records of such organization that are necessary to verify the nature and extent of such costs.

10. TERM AND TERMINATION

10.1. Term. This Agreement shall commence on the date set out in each applicable Subscription Agreement and shall remain in effect through the end of the applicable Subscription Term, unless terminated earlier pursuant to the terms of this Agreement (the “Initial Term”). Unless otherwise set out in a Subscription Agreement, Your subscription will automatically renew at the end of the Initial Term for additional 12-month periods (each a “Renewal Term” and together with the Initial Term the “Term”).

10.2. Account Suspension. Intellijoint may suspend Your account at any time for a breach of Your obligations under this Agreement including, without limitation, overdue payment, usage outside the Territories, violation of any licenses or license restrictions, failure to obtain consents for User Content, or misuse of the Services. Any suspension of the Services by Intellijoint under this section shall not relieve You of Your obligations under this Agreement. Intellijoint will not be liable to You nor to any third party for any suspension of the Services resulting from the suspension of Your account.

10.3. Termination. Either party may terminate this Agreement at any time by giving thirty (30) days notice or by using the Services to cancel the subscription.

10.4. Effect of Termination. Upon expiration or other termination of the Service for any reason, Your right to access and use the Service shall terminate.

10.5. User Content. Upon termination You will be entitled to extract User Content stored using the Services for a period of thirty (30) days following termination (the “Extraction Grace Period”). Following the Extraction Grace Period, Intellijoint shall have the right to delete all User Content at any time and terminate all access to the Services. You acknowledge and agree that archived versions of the Services may include archived copies of User Content which may be retained by automated systems that will be deleted after a reasonable period of time if the purpose for which the User Content was collected is no longer valid.

11. REGULATORY

11.1. Client Responsible. All regulatory authorizations, clearances, certifications, and related compliance matters associated with the use of the Services are managed and maintained via Intellijoint or its authorized distributors under the Subscription Agreement.

11.2. Reporting. You must promptly direct all regulatory, clinical governance, reporting, safety, or compliance-related questions or concerns promptly to the Client.

12. GENERAL PROVISIONS

12.1. Survival. The provisions that by their nature are intended to survive the termination or expiration of this Agreement shall continue to be in effect after the termination or expiration of the Agreement.

12.2. Assignment. Neither Party may assign or transfer this Agreement, in whole or in part, without the prior written consent of the other Party, except that either Party may assign this Agreement without consent (i) to an Affiliate, or (ii) in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets or business to which this Agreement relates, provided that the assignee agrees in writing to be bound by the terms of this Agreement. Any attempted assignment in violation of this Section shall be null and void. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the Parties, their successors, and permitted assigns.

12.3. Language. This Agreement has been prepared and executed in English, and the English version shall prevail in case of any discrepancy in translation.

12.4. Conflict. Any terms and conditions provided by or on behalf of You that are in addition to or inconsistent with the terms and conditions of this Agreement (including, without limitation, standard purchasing terms or conditions, delivery slips, packing instructions or purchase orders), shall be deemed null and void. In the event of any conflict between these Terms of Service and a Subscription Agreement, the terms of the Subscription Agreement shall govern to the extent of the conflict for that Subscription Agreement only. Any negotiated and fully executed version of this Agreement will take precedence over any standard forms of this Agreement for the term set out in the negotiated documents.

12.5. Notice. Except as otherwise provided herein, all notices shall be in writing and deemed given upon: (i) personal delivery; (ii) the second business day after mailing; or (iii) the first business day after sending by email. Notices shall be sent to the parties as established by each Account or as updated from time-to-time by the parties.

12.6. Force Majure. Neither party will be responsible for failure of performance due to causes beyond its control. Such causes include, without limitation, accidents, acts of God, labour disputes, health pandemic, actions of any government agency, shortage of materials, acts of terrorism or the availability of the Internet.

12.7. Waiver and Amendment. Any term of this Agreement may be amended and the observance of any term of this Agreement may be waived only with the written consent of both parties.

12.8. Relationship of The Parties. The parties are independent contractors. Nothing in this Agreement shall be construed to create a partnership, joint venture or agency relationship.

12.9. Governing Law. If the Customer is located in Canada, this Agreement shall be governed by and construed in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable therein, without regard to conflict of law principles. If the Customer is located in the United States, this Agreement shall be governed by and construed in accordance with the laws of the State of New York and the federal laws of the United States applicable therein, without regard to conflict of law principles. For Customers located in any other jurisdiction, unless otherwise agreed in writing, this Agreement shall be governed by and construed in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable therein, without regard to conflict of law principles. The United Nations Convention on Contracts for the International Sale of Goods (CISG), the Sale of Goods Act (Ontario), the Uniform Commercial Code (U.S.), and any other laws relating to the sale of goods shall not apply to this Agreement. Each Party irrevocably submits to the exclusive jurisdiction of the courts located in the applicable governing jurisdiction for the resolution of any disputes arising out of or in connection with this Agreement, except that Intellijoint may seek injunctive or equitable relief in any jurisdiction to protect its intellectual property or Confidential Information. Each Party irrevocably waives any right it may have to a trial by jury in any legal proceeding arising out of or related to this Agreement.