Last modified: MARCH 16, 2023

‍

RetinAI Discovery CORE End User License Agreement (US)

‍

This End User License Agreement for RetinAI DISCOVERY Services (the “EULA” or the “Agreement”) is made between RetinAI US Inc., a Delaware corporation, located at 6 Liberty Square, #2498, Boston, MA 02109, Licensor of the RetinAI Software and Services (“RetinAI” or “Licensor”) and you (“You,” “End User,” or “Licensee”).

This EULA covers the use of the RetinAI DISCOVERY Services, meaning RetinAI Discovery CORE for hospitals, researchers and private clinics for research use only, that are hosted on Amazon Web Services (AWS) primary data centers in Europe.

RetinAI® Discovery is a platform providing medical image and data management solutions to collect, organize and structure the information generated routinely in a clinic or during a clinical study, providing additional imaging insights from data obtained in a clinic, extended but not limited to imaging biomarkers and insights for different types of diseases and conditions.

Researchers and clinicians can track changes in volumes and data, and obtain measurements of these imaging biomarkers over time, saving valuable effort in assessing disease progression in a single working environment.

If You are the Licensee, You represent and warrant that Licensee and all End Users shall accept and comply with the terms of this EULA.

If You are an End User who has not entered into the Service Agreement, You accept and agree to be bound by the terms of this EULA, by accessing, installing, copying, downloading, or using the software or Services.

If You are accepting the terms of this EULA on behalf of another person or an organization or a company or other legal entity, You represent and warrant that You have full authority to bind that person, organization, company, or other legal entity to this Agreement, and that You will make this EULA available to the Licensee and its respective authorized End Users accordingly.

You also acknowledge that the Services are not intended for consumers or private use, but for research use only by healthcare and research professionals, and that all End Users have to be 18 years or older. The Services may be subject to export control laws and regulations, and You represent that You are not a citizen of an embargoed country or prohibited end user under applicable export and anti-terrorism laws, regulations and lists.

If You do not agree to the terms of this EULA,

(1) do not download, install, copy, access, or use the Services or any software; and

(2) promptly uninstall and delete all copies of the components for the software or Service, as the case may be, from your systems.

1. Intellectual Property Rights

The software and Services, their structure, organization and code are valuable trade secrets of RetinAI and RETINAI MEDICAL AG, and are protected by intellectual property and copyright law and international treaty provisions. Furthermore, the Third-Party Software and Third-Party Services used, are protected by intellectual property and copyright law and international treaty provisions, and may be subject to additional terms and conditions.

All intellectual property rights to the Services, and Third-Party Software and Third-Party Services used (e.g. AWS and Sentry Services), including the rights pertaining to know-how and the relevant Documentation, remain in the ownership of the respective owner(s) who retain title and full ownership rights thereto.

Some Services also make use of Open Source Software and may be subject to additional license terms that are hereby incorporated in this Agreement by reference. You can get a complete list of these Open Source Software License Terms from RetinAI upon request to support@retinai.com.

Except as the license use rights expressly stated in your Agreement, this EULA does not grant the Licensee any intellectual property rights in the Software or Services or in any parts thereof.

2. Subscription License

The software and Services are owned by RETINAI MEDICAL AG and licensed by RetinAI and are copyright-protected. The Licensee acquires a subscription license only, and neither Licensee nor the End User will own any rights to the software or Services in any way.

RetinAI grants the Licensee a non-exclusive and non-transferable subscription license to use the Service, to the extent the Licensee lawfully acquires it according to a valid Service Agreement; provided that the Licensee has paid the agreed license or subscription fees and adheres to the terms of this Agreement.

Licensee and its authorized End Users may access and use the Service up to the level of use specified in the Service Agreement, and for the sole purpose of supporting such agreed use. The terms of this EULA apply to each and every access to and use of the Service.

In case of a Trial Version or Test Version of the Service, Licensee may use the specified Service only, and restricted to the timeframe the Licensee was explicitly authorized to evaluate, use or test such Service.

3. License Restrictions

The Licensee and any End User may not:

• disclose to any third party any

1. benchmark or performance tests of the Services,
2. Aggregate Data,
3. Enrichment Data,
4. Deliverables, and/or
5. RetinAI DISCOVERY materials or Documentation, without RetinAI’s prior written consent;

• access the Services to build or market a competitor to the RetinAI DISCOVERY platform or a competitive service of the Services;
• access the Services to build a product or service using similar ideas, features, functions or graphics of the Services;
• access the Service to copy any features, functions, or graphics of RetinAI DISCOVERY;
• use, copy, modify, or distribute the Service except as provided herein;
• reverse assemble, reverse compile, or otherwise translate the Service;
• modify or create any derivative works of any Service or Documentation;
• decompile, disassemble, reverse engineer, or otherwise attempt to derive the source code for any part of the Service; or
• redistribute, sell, rent, lease, sublicense the Service; or
• encumber, abuse or use the Service inappropriately or for any purpose not agreed; and
• engage, directly or indirectly, any other third-party business organization for the purpose of inspecting, installing, using or changing the Service or Software in a manner that endangers RetinAI’s trade secrets or is substantially and directly competitive with RetinAI.

As between the parties, RETINAI MEDICAL AG owns all right, title, and interest in and to the RetinAI DISCOVERY Service, Aggregate Data, and Enrichment Data, as well as any deliverables and/or output that are agreed upon with the Licensee in an associated Service Agreement. 

Neither RetinAI, RETINAI MEDICAL AG, its Affiliates, resellers, or distributors are obligated to provide, nor is Licensee acquiring, any right of any kind with respect to the source code for the Services or any part thereof. Licensee acknowledges RETINAI MEDICAL AG’s ownership and intellectual property rights in the Services, source code and software, and will not take any action to jeopardize, limit or interfere in any manner with RetinAI’s, RETINAI MEDICAL AG’s or any third party’s rights related to the Services.

All rights not expressly granted to Licensee are reserved by RetinAI, RETINAI MEDICAL AG, and its licensors.

4. User Management

The Service as described in this Agreement is provided to the Licensee. Authorized End Users of the Licensee can use the Service according to the terms and conditions of this Agreement.

According to the subscription the Licensee has signed up to, RetinAI will provide the Licensee with the adequate access log-ins to the Discovery Services.

Once the Licensee account is created, the Licensee can invite its authorized End Users to the Service. The Licensee is responsible for the End Users. The Licensee must explain to its End Users that all Authorized Users with access to the Discovery Services have the same rights and may change or delete the information uploaded to the Service.

If an accidental deletion happens on the Licensee’s side, RetinAI cannot warrant any back-up.  

The Licensee must ensure to back-up and archive its Licensee Data and content in its own systems regularly.

Upon the establishment of a subscription or License, one or more End User names and passwords may be generated in connection with such subscription (“Credentials”). The Credentials are used to authenticate the End User and thereby allow access to the Services, including to any of the Licensee Data stored as part of the Services. The Licensee is solely responsible for maintaining the confidentiality of the Credentials and may not transfer or share the Credentials with any third parties. The Licensee acknowledges and agrees that RetinAI and its licensors and suppliers may rely on the Credentials as the sole test to control whether End Users accessing and using the Services on your behalf are authorized to do so. The Licensee is fully liable for any act or omission of any End Users that access or use the Services with the Credentials or otherwise through its account.

Licensee will: (a) notify RetinAI immediately of any unauthorized use of any Credentials or account or any other known or suspected breach of security; (b) not impersonate another user or provide false identity information to gain access to or use the Service; and (c) be solely responsible for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership and right to use all data submitted by the Licensee in the course of receiving the Services.

5. Host Provider

You acknowledge that the RetinAI DISCOVERY Services are hosted on the Amazon AWS Platform and are subject to the terms and conditions of Amazon as Third Party Provider, found at: https://aws.amazon.com/agreement/.

6. Service Restrictions

Although the platform is accessible globally, this does not mean that all Services or Service features are available in Your Territory, or that user-generated content available via the Services is legally permitted in Your Territory. Services are not available in all languages.

We may block access to or suspend certain Services (or certain service features or content) in certain Territories and/or countries, e.g. in embargoed countries or where we suspect misuse. It is Your responsibility to make sure Your use of the Services is legally permitted where You use them. You shall not send or upload any personal, health or medical data, unless You have confirmed the data was obtained lawfully and with the appropriate consent of the data subjects.

We may create reasonable technical limits on Your content, such as limits on file size, processing capacity, and other technical limits.

RetinAI reserves the right to momentarily interrupt the Service for testing, security fixes, maintenance, traffic performance enhancement or other purposes. RetinAI’s goal is to schedule planned maintenance of its technical platform during non-peak usage hours, but cannot warrant that this will always be the case.

7. Maintenance

In general, during maintenance periods, access and use of the Service may be temporarily suspended or degraded.

Complex maintenance operations will be carried out preferably on low level activity periods (night hours or weekends), and information on the planned date and the predicted duration of the operation will be communicated to Licensee at least seven (7) days before commencement of the operation, wherever reasonably possible.

8. Data and Content

8.1 Data

As between the Parties, the Licensee Data collected, used, disclosed, issued, processed, hosted, safeguarded or stored by RetinAI and/or the third party provider (e.g. AWS) on Licensee behalf and at Licensee request, is and shall remain Licensee’s sole property. RetinAI or the third party Service Provider is nonetheless authorized to access the Licensee Data in order to: maintain and improve use of the Service; internally monitor and enhance and improve the Service; analyze Licensee’s use of the Service, in terms of volume and history; analyze and communicate statistics to its various Licensees about overall use of the Service; create and use Aggregate Data and Enrichment Data, provided the information (i) is aggregated with RetinAI’s other Licensees’ data and (ii) and is made anonymous so that no Licensee or person may be directly or indirectly identified or identifiable.

RetinAI will not collect, use, or disclose special categories of personal data, including protected health information (“PHI”), other than for the purposes of this Agreement and as permitted and required by the applicable law, be it the Swiss data protection law, the GDPR, or even the Health Insurance Portability and Accountability Act of 1996, as amended ("HIPAA") as a business associate of a covered entity, according to the respective BAA.

You agree to comply with the laws and regulations applicable to the collection, use, processing and disclosure of personal data, including PHI, in the country where they are collected. To this end, You shall be responsible for carrying out all mandatory reporting and/or consent requirements. If RetinAI makes Enrichment Data available to You, You may only use that Enrichment Data in connection with Your authorized use of the RetinAI DISCOVERY Service on behalf of the User.

You agree, unless a separate data processing agreement has been signed by the Licensee and RetinAI, the Service shall not be used to process sensitive or special categories of personal data, especially personal data of a medical nature or pertaining to health conditions (i.e. PHI), unless you have collected the data subject’s consent for such processing.

You acknowledge that the Licensee Data, including personal data and PHI, that You upload and transfer to RetinAI when using the Service may, depending on the geographical location of users, cross borders as they are routed to the servers that host the Service and store the data. You undertake to inform the relevant personal data owners and data subjects in compliance with applicable laws, and to obtain any required prior consent.

RetinAI agrees to use appropriate safeguards, and comply with HIPAA regarding PHI, to prevent unauthorized use or disclosure of PHI, subject to a separate BAA.

8.2 Content

Licensee shall be solely liable (i) for any Licensee Data, information, or content, including if such content is provided by a third party or by RetinAI as part of a service functionality or template such as an SMTP relay or via the routing of an entire infrastructure (hereinafter collectively referred to as “Content”); and (ii) for the Content’s compliance with the applicable laws and regulations.

You acknowledge and warrant that the Content, whether in whole or in part, shall in no event: (a) infringe, misappropriate, or violate any right of any third party whatsoever, including any Intellectual Property Right;
(b) contain any virus or program designed to cause damage, intercept, or misappropriate any system, data, or personal data, including PHI, in a fraudulent manner; (c) contain any unlawful, bullying, harassing, libelous, abusive, threatening, harmful, vulgar, obscene, or otherwise objectionable material of any kind or nature or any material that encourages conduct that could constitute a criminal offense, give rise to civil liability, or otherwise violate any applicable law or regulation; (d) collect, store, process, or upload any personal or patient data in violation of applicable law or regulation, e.g. without having valid consent to do so; (e) be false, misleading, or inaccurate; or (f) use the Services in violation of any law, including any regulation enacted in any applicable jurisdiction.

You undertake not to use the Service in a manner that may lead to any civil or criminal action whatsoever, and shall indemnify and hold RetinAI, its officers, directors, employees, and agents, harmless from any action on such grounds.

You acknowledge that RetinAI has the right, but not the obligation, to monitor the Service and any data submitted to the Service. Any use of the Services in breach of the foregoing that in RetinAI’s sole judgment threatens the security, integrity, or availability of the Services may result in deletion or suspension of accounts, removing content, or denying routing of certain data and e-mails or other communications that RetinAI reasonably believes are necessary to prevent unlawful activity in connection with the Service.

However, RetinAI will use commercially reasonable efforts available, at its discretion, and under the circumstances to provide Licensee with notice and, where available, an opportunity to remedy such violation or threat prior to any such suspension.

You expressly acknowledge and agree that neither RetinAI nor any third party provider (e.g. AWS) shall be liable for any loss or destruction of the Content, including the Licensee Data, and that You shall be responsible for ensuring that You have proper backups thereof.

‍

8.3 Electronic Submission Acceptance

You acknowledge and agree without reservation that by using Service features that require your review and submission online (e.g. eCRFs) that such submission process shall represent a valid agreement that is legally binding in the same way as a traditional handwritten signature would be. You also acknowledge that using such an online submission process under any user profile other than your own is not acceptable.

9. Compliance

You shall use the Services only in accordance with the RetinAI Service Agreement, applicable laws, government regulations, and this EULA, and will comply with applicable data protection and patient confidentiality terms applicable to your use of our Service. You remain fully responsible for Your compliance with such terms.

Licensee shall not use any Service to knowingly: (i) collect, use, process, or disclose personal data or PHI in violation of applicable laws and regulations; (ii) send, use, or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortuous material, including material harmful to children; (iii) store or transmit any data or material in violation of third-party rights; (iv) send, use, or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (v) interfere with or disrupt the integrity or performance of the Services or the data contained therein; (vi) commit any act that is detrimental to the good name and standing of RetinAI; or (vii) attempt to gain unauthorized access to a Service or its related systems or networks.

Licensee shall indemnify and hold RetinAI, its licensors, and each such party's service providers harmless from and against any and all third party claims, costs, damages, losses, liabilities and expenses (including attorneys' reasonable fees and costs) to the extent arising out of or in connection with a claim resulting from breach of the appropriate use described herein, or a claim alleging that the Licensee Data infringes a copyright, a patent, or a trademark of, or a claim alleging harm to the rights of a third party, provided in any such case that RetinAI (a) promptly gives notice of the claim to Licensee; and (b) gives Licensee sole control of the defense and settlement of the claim (provided that Licensee may not settle such claim unless such settlement unconditionally releases RetinAI of all liability and does not adversely affect RetinAI’s business or Service).

You represent and warrant to RetinAI that:

(i) You and/or the Licensee have all right, title, and interest in and to the Licensee Data necessary for its use by RetinAI hereunder or otherwise in connection with RetinAI DISCOVERY Service;

(ii) You will not use the RetinAI DISCOVERY Service, any outputs, or insights generated from use of RetinAI DISCOVERY Service, or any deliverables resulting from the Services in a manner or in connection with any activity that would violate any law, rule or regulation, including those relating to privacy, patient confidentiality or data protection;

(iii) You and/or Licensee have obtained all necessary consents and permissions required for the collection and its use of the Licensee Data within the Services;

(iv)  You and/or Licensee are in compliance with all contractual obligations required for the use of any Licensee Third Party Applications used hereunder;

(v) You are in compliance with these Terms including, but not limited to, the RetinAI DISCOVERY Service Agreement with RetinAI, the instructions from the Licensee and applicable laws; and that

(vi) the Licensee Data – including the access to, storage, reproduction, transfer, and use thereof as contemplated hereunder – does not and will not (a) infringe upon, violate, or misappropriate the Intellectual Property Rights of any third-party, (b) slander, defame, or libel any person, or (c) violate any applicable laws, rules, or regulations.

You are responsible for all activity that occurs via Your Service account. Please notify Licensee Support at support@retinai.com immediately if You become aware of any unauthorized use of Your Service account. You may not (a) share Your account information (except with an authorized account administrator) or (b) use another person’s account. Your account administrator may use Your account information to manage Your use and access to the Services.

Some internet service providers (“ISP”) may suspend the routing of emails from certain addresses if they detect or suspect any dishonest or illegal behavior (“blacklisting”). If Your account is blacklisted by an ISP, RetinAI shall use commercially reasonable efforts to attempt to reestablish communication with such ISP as soon as possible. You agree to pay for services RetinAI may be required to perform for this purpose.

10. Export Rules

Licensee agrees that the Service or any part thereof will not be accessed from, transferred, or exported into any country or used in any manner prohibited by the United States, EU or Swiss Export Administration Acts or any other applicable export laws, restrictions, or regulations (collectively the “Export Laws”).

In addition, if the Service or any part thereof is identified as an export controlled item under the Export Laws, Licensee represents and warrants not to be a citizen, or otherwise located within, an embargoed nation (eg., US, EU or Swiss Export Administration Regulation Website), and not otherwise to be prohibited under the Export Laws from accessing the Service. All rights to use the Service are granted on condition that such rights are forfeited if You or Licensee fail to comply with these Terms.

11. Warranty, IP Indemnification and Liability

11.1 Limited Warranty

Provided that Licensee has paid the applicable license Fee, RetinAI warrants during the subscription period, that (i) the Service will perform substantially in accordance with the relevant Documentation under normal use and circumstances (and that there will be no material diminishment of the Service as it exists on the Effective Date of the License Schedule for such Services); and (ii) it will use industry best practices to ensure that the Services provided to Licensee do not contain any disabling devices, viruses, Trojan horses, trap doors, back doors, Easter eggs, time bombs, cancelbots, or other computer programming routines designed to damage, detrimentally interfere with, surreptitiously intercept or expropriate any other software or data.

RetinAI’s sole obligations under the warranty set forth in this Section 11.1, shall be for RetinAI to correct or by-pass the non-conformity or, if RetinAI is unable to correct or by-pass the non-conformity within ninety (90) days after Licensee’s written notice, for Licensee to terminate the applicable subscription and receive a refund of prepaid unused fees.

No oral or written information or advice given by RetinAI, its suppliers and resellers or employees outside of a written agreement shall create a warranty for RetinAI or in any way increase the scope of any warranty provided herein.

RetinAI and its suppliers provide no additional remedies or warranties, whether express or implied for the Service. The Service is provided “as is” with express disclaimer of any further warranty.

RetinAI reserves the right to make changes, modifications, and enhancements to the Services from time to time. In the event the change or modification is to documented functionality, and is material to the function or operation of the Services (a “Material Change”), RetinAI shall use reasonable commercial efforts to provide Licensee with prior prompt written notice of any Material Change prior to implementation of such Material Change (unless such is required to rectify an urgent system issue) which shall be communicated directly to Licensee by email or otherwise through RetinAI normal communication channels such as via RetinAI’s release information portal. If You do not agree with any changes made to the Service by RetinAI, you may terminate the Service.

Except as set forth in section 11 of this Agreement RetinAI disclaims all other warranties and representations, whether expressed, implied, statutory, or otherwise, including the warranties of merchantability, fitness for a particular purpose, title, quiet enjoyment, accuracy, and non-infringement of a third-party’s rights. Also, there is no warranty of non-infringement of third-party intellectual property rights and title for the Third-Party Software or Third-Party Services and Open Source components of the Services.

Where some jurisdictions do not allow the exclusion of certain implied warranties, the exclusion of RetinAI’s warranty in this limited warranty section shall apply to the fullest extent permitted by applicable law.

RetinAI's Services may be subject to limitations, delays, and other problems external to RetinAI and inherent in the use of the internet and electronic communications. Notwithstanding the foregoing, RetinAI shall use reasonable and industry best practices standard technical means to reduce and limit the impacts of such problems, but RetinAI disclaims any and all responsibility for delays, delivery failures, or other damage resulting from such problems.

‍

11.2 Indemnification

Subject to section 11.3 below, RetinAI will defend, at its own expense, and hold Licensee harmless against any legal action brought against Licensee based on a claim that the Service or any software component infringes an Intellectual Property Right of a third party, subject to the provisions herein..

Any and all claims with respect to any of the Open Source Software, Third-Party Software or Service components shall be subject to their respective license agreements, and RetinAI disclaims any and all liability with respect to those software programs or components, including but not limited to, any claims of Intellectual Property Right infringement.

Should the Service or any part thereof become, or in RetinAI's opinion be likely to become, the subject of any such infringement claim, Licensee shall permit RetinAI, at RetinAI's option and expense, to (i) procure for Licensee the right to continue using the Service, or (ii) replace or modify the Service so that it becomes non-infringing and maintains the same functionality or (iii) terminate the right to use the Service, upon which termination Licensee agrees to promptly destroy all copies of the Service and certify the same to RetinAI, whereupon RetinAI will refund Licensee’s Fees for the Service pro-rata up to one-hundred (100%) percent of the total amount of the Licensee’s paid Fees for the Services in the prior twelve (12) months.

However, all such defense and payments of final judgment are subject to the conditions that Licensee must: (i) notify RetinAI promptly in writing of such claim, (ii) permit RetinAI to have sole control of the defense, compromise or settlement of such claim, including any appeals, and (iii) reasonably cooperate with RetinAI in the defense or settlement of such claim. RetinAI will pay those costs, damages or reasonable attorney’s fees incurred by Licensee in connection with such action or claim, but shall only pay Licensee’s legal fees which were incurred by Licensee after Licensee gives RetinAI notice of the claim and before RetinAI assumes control of the defense.

RetinAI shall have no obligation or liability for any claim pursuant to this Section to the extent arising from: (i) the combinations, operation, or use of the Service supplied under this Agreement with any product, device, or software not supplied by RetinAI to the extent the combination creates the infringement; (ii) the unauthorized alteration or modification by Licensee of the Service, or (iii) RetinAI’s compliance with Licensee's designs, specifications, requests, or instructions pursuant to an engagement with RetinAI relating to the Service to the extent the claim of infringement is based on the foregoing.

THE FOREGOING IS RETINAI’S SOLE OBLIGATION AND LICENSEE’S EXCLUSIVE REMEDY WITH RESPECT TO INTELLECTUAL PROPERTY INDEMNIFICATION.

‍

11.3 Limitation of Liability

IN ANY CASE, THE PARTIES AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, RetinAI’S ENTIRE LIABILITY AND INDEMNITY UNDER ANY PROVISION OF THIS AGREEMENT FOR ANY CLAIM OR LEGAL ACTION IRRESPECTIVE OF ITS NATURE, SHALL NOT EXCEED IN AGGREGATE THE SUM OF THE FEES PAID TO LICENSOR FOR THE RESPECTIVE SERVICE GIVING RISE TO SUCH CLAIMS OR DAMAGES IN THE LAST TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE CLAIM MADE, NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY, WITH THE EXCEPTION OF DEATH OR PERSONAL INJURY CAUSED BY THE NEGLIGENCE OF RetinAI AND TO THE EXTENT APPLICABLE LAW PROHIBITS THE LIMITATION OF DAMAGES IN SUCH CASES.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL RetinAI BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY ARISING OUT OF OR THE INABILITY TO USE THE SERVICE EVEN IF ADVISED OF THE POSSIBILITY THEREOF, AND REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED.

12. Appropriate Use

No Illegal, Harmful, or Offensive Use, or Content

You may not use, or encourage, promote, facilitate or instruct others to use the Services or RetinAI DISCOVERY platform for any illegal, harmful, fraudulent, infringing or offensive use,or to transmit, store, display, distribute, or otherwise make available content that is illegal, harmful, fraudulent, infringing, or offensive. Prohibited activities or content include:

• Illegal, Harmful, or Fraudulent Activities. Any activities that are illegal, that violate the rights of others, or that may be harmful to others, RetinAI’s operations or reputation, including disseminating, promoting, or facilitating child pornography, offering or disseminating fraudulent goods, services, schemes, or promotions, make-money-fast schemes, ponzi and pyramid schemes, phishing, or pharming.
• Infringing Content. Content that infringes or misappropriates the intellectual property or proprietary rights of others.
• Offensive Content. Content that is defamatory, obscene, abusive, invasive of privacy, or otherwise objectionable, including content that constitutes child pornography, relates to bestiality, or depicts non-consensual sex acts.
• Harmful Content. Content or other computer technology that may damage, interfere with, surreptitiously intercept, or expropriate any system, program, or data, including viruses, Trojan horses, worms, time bombs, or cancelbots.

No Security Violations

You may not use the Services to violate the security or integrity of any network, computer, communications system, software application, network, or computing device (each, a “System”). Prohibited activities include:

• Unauthorized Access. Accessing or using any System without permission, including attempting to probe, scan, or test the vulnerability of a System, or to breach any security or authentication measures used by a System.
• Interception. Monitoring of data or traffic on a System without permission.
• Falsification of Origin. Forging TCP-IP packet headers, email headers, or any part of a message describing its origin or route. The legitimate use of aliases and anonymous remailers is not prohibited by this provision.

No Network Abuse

You may not make network connections to any users, hosts, or networks unless You have permission to communicate with them. Prohibited activities include:

• Monitoring or Crawling. Monitoring or crawling of a System that impairs or disrupts the System being monitored or crawled.
• Denial of Service (DoS). Inundating a target with communications requests so the target either cannot respond to legitimate traffic or responds so slowly that it becomes ineffective.
• Intentional Interference. Interfering with the proper functioning of any System, including any deliberate attempt to overload a system by mail bombing, news bombing, broadcast attacks, or flooding techniques.
• Operation of certain Network Services. Operating network services like open proxies, open mail relays, or open recursive domain name servers.
• Avoiding System Restrictions. Using manual or electronic means to avoid any use limitations placed on a System, such as access and storage restrictions.

‍

No Email or Other Message Abuse

You will not distribute, publish, send, or facilitate the sending of unsolicited mass email or other messages, promotions, advertising, or solicitations (like “spam”), including commercial advertising and informational announcements. You will not alter or obscure mail headers or assume a sender’s identity without the sender’s explicit permission. You will not collect replies to messages sent from another internet service provider if those messages violate these Terms or the acceptable use policy of that provider.

Our Monitoring and Enforcement

We reserve the right, but do not assume the obligation, to investigate any violation of these Terms or misuse of the Services or RetinAI DISCOVERY platform. We may:

• investigate violations of these Terms or misuse of the Services or RetinAI DISCOVERY platform; or
• remove, disable access to, or modify any content or resource that violates these Terms or any other agreement we have with you for use of the Services or the RetinAI DISCOVERY platform.

We may report any activity that we suspect violates any law or regulation to appropriate law enforcement officials, regulators, or other appropriate third parties. Our reporting may include disclosing appropriate Licensee information. We also may cooperate with appropriate law enforcement agencies, regulators, or other appropriate third parties to help with the investigation and prosecution of illegal conduct by providing network and systems information related to alleged violations of these Terms.

‍

Reporting Violations of these Terms

If You become aware of any violation of these Terms, You will immediately notify RetinAI and provide RetinAI with assistance, as requested, to stop or remedy the violation. To report any violation of these Terms, immediately contact support@retinai.com.

‍

13. Data Protection and Security

RetinAI does not own any Licensee Data. Licensee, not RetinAI, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use all Licensee Data. RetinAI shall not be responsible or liable for correctness, completeness, deletion, destruction, damage, or loss of Licensee Data.

RetinAI’s use of Licensee Data shall be limited to the purpose of providing the Service to the Licensee and for RetinAI to meet its obligations thereunder.

After termination, Licensee shall ensure extraction or backup of all Licensee Data. RetinAI shall have no obligation to retain Licensee Data and may fully delete Licensee Data after 90 (ninety) days after termination hereof.

You acknowledge that any Licensee Data, including Documents and personal data, including PHI, of Users of the Services, may be stored on servers set up in the EU and the United States of America in order to prevent a platform failure. These servers are operated by Amazon under the terms and conditions of the AWS platform found at: https://aws.amazon.com/legal/.

Please note that Amazon commits to adherence to the EU Model Clauses for their AWS online service. The AWS privacy policy is accessible at: https://aws.amazon.com/privacy/.

RetinAI will not access, view, or listen to any of the Licensee Data or content, except as reasonably necessary to perform and improve the Services. Actions reasonably necessary to perform and improve the Services may include, but are not limited to: (a) responding to support requests and ensuring encryption or other appropriate technical measures; (b) detecting, preventing, or otherwise addressing fraud, security, unlawful, or technical issues; (c) creating anonymized Aggregate Data or Enrichment Data; (d) when required by law (such as when RetinAI receives a valid subpoena or search warrant); (e) when RetinAI, in its discretion, deems it is necessary to protect the rights, property, or personal safety of the company, RetinAI employees, users, or the public; and (f) for enforcing these terms and our contractual rights and obligations.

Licensee is responsible to check compliance with their applicable data protection policies to ensure it is acceptable to create users or share any data outside of their entity or clinic via the RetinAI platform, and collect all necessary consents, if any.

If you require an Art. 28 Processor Agreement under the European GDPR, please download the Data Processing Addendum for EMEA Discovery Services (from https://www.retinai.com/dpa) and send the completed form for final review and signature to RetinAI discovery-dpa@retinai.com

If you are a covered entity under HIPAA, please contact RetinAI to discuss an appropriate Business Associate Agreement, if available.

To the extent personal data or PHI shall be processed, the parties record their intention that the Licensee shall be the data controller and RetinAI shall be a data processor and in any such case:

‍

14. Mutual Confidentiality 

Each party acknowledges and agrees that any and all proprietary information labeled as "confidential" or which a reasonable person would know to be confidential constitutes proprietary information, including but not limited to: business plans, financial reports, Licensee lists and other Licensee Data or Licensee information, descriptions of manufacturing processes, and product development and marketing plans emanating from the other party's business in any form shall be “Confidential Information,” and each party agrees that it will not, during or after the term hereof, permit the duplication, use, or disclosure of any such Confidential Information to any person (other than an employee, agent, or representative of the other party who must have such information for the performance of its obligations hereunder or in the execution of the duties of his or her employment), unless such duplication, use, or disclosure is specifically authorized by the other party in writing.  Licensee agrees that RetinAI shall expressly be entitled to disclose Confidential Information provided by Licensee to RetinAI, RetinAI’s employees, agents, or representatives as well as to its parent companies and RetinAI Affiliates. Such aforesaid disclosure shall always be confined to the extent that it is reasonably required in order to fulfill RetinAI’s obligations hereunder.

Confidential Information does not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to or lawfully in the possession of the Receiving Party or its Representatives, as established by documentary evidence, at the time of disclosure by the Disclosing Party of its Affiliates hereunder, (iii) is acquired by the Receiving Party from a third-party without breach of any obligation owed to the Disclosing Party, or (iv) was or is independently developed by the Receiving Party.

Neither party shall be in breach of this RetinAI DISCOVERY Agreement by reason only of disclosing Confidential Information or Licensee Data which the party is required to disclose by laws or regulations or upon lawful request of any Authority. A party that is required to disclose Confidential Information in these circumstances shall give the other party as much prior written notice of the disclosure as possible (provided that it is not prohibited from doing so) to allow the other party an opportunity to take such steps as are available to it to control or prevent the disclosure. Each party shall be entitled to disclose Confidential Information or Licensee Data to an Authority without notifying the other party where the Authority has requested or directed that the other party is not notified or informed of the disclosure.

‍

15. Term and Termination

• The RetinAI DISCOVERY Services Agreement shall be effective for the term of the Service Subscription and as set out in the Service Agreement. These Terms shall be effective upon Your activation of the User account and/or the defined effective date of the Service Agreement.
• Either party may terminate the account, if the other party breaches any material term of the RetinAI DISCOVERY Service Agreement or these EULA terms and fails to cure such breach within thirty (30) days after delivery of notice of such breach.
• In addition to any other rights granted to RetinAI herein, RetinAI reserves the right to suspend or terminate Your account and access to the Service, if Your account becomes delinquent or if RetinAI detects any forbidden or dangerous user activity under the account.
• Upon termination of the Licensee subscription, You must immediately uninstall and delete any component or access to the platform and the Service and destroy all accompanying Documentation and all copies thereof (including copies stored in computer memory).

‍

16. Governing Law and Legal Venue 

This Agreement is construed under the laws of Switzerland, excluding provisions on conflict of laws and also expressly excluding the U.N. Convention of Contracts for the Sale of International Goods. If any provision hereof is found to be void or unenforceable, the remaining provisions of this Agreement shall remain in full force and effect. In the event there is a dispute arising out of or in relation with this Agreement, the legal venue shall be the Commercial Courts of Bern, Switzerland. Each party hereby waives opposition to jurisdiction in such courts.

‍

17. DEFINITIONS

The following terms used in this Agreement shall have the following meaning:

• “Affiliate” means an entity owned by, owing to or under common ownership with either party, whereby ownership shall be defined as holding a financial interest of at least fifty-one (51%) percent of shares or capital;
• “Aggregate Data” means aggregated information about population groups, demographics within geographies with no Patient Data nor the possibility to trace back to the Patient. It allows healthcare professionals to identify common characteristics, statistics and or distributions that might support understanding disease behavior or the course of the disease and about the most effective ways to treat them;
• “Authorities” means any official public authorities including regulatory and data protection authorities in any affected jurisdiction;
• “Documentation” means any published documentation provided by RetinAI in any form, related to the Service including any specification, user manuals, system manuals, operating manuals, programming manuals, physical planning guides and set up or installation guides, if available;
• “End User” means any person, program, process, product, or hardware which uses any functionality of the Program; it shall also mean Licensee’s employees, representatives, consultants, contractors or agents who are authorized to use the Program under a valid License and have been supplied user identifications and passwords by Licensee (or by RetinAI at Licensee’s request);
• “Enrichment Data” means aggregated external information combined with Aggregated Data to provide larger, more meaningful insights about population groups or demographics within geographies;
• “EU Model Clauses” means the standard contractual clauses annexed to the EU Commission Implementing Decision 2021/914 of 4 June 2021 on standard contractual clauses for the transfer of personal data to third countries pursuant to Regulation (EU) 2016/679 of the European Parliament and of the Council;
• “Fees” means the Fees and charges specified in the applicable License Agreement, payable by Licensee to RetinAI or the respective Affiliate in respect of the License and/or the respective service subscription;
• “GDPR” means Regulation (EU) 2016/679 of 27 April 2016 on the protection of natural persons (data subjects) with regard to the processing of personal data and on the free movement of such data (and repealing Directive 95/46/EC).
• “HIPAA” means the Health Insurance Portability and Accountability Act of 1996, which includes the Privacy Rule and the Security Rule;
• “Intellectual Property Rights” means unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world;
• “Licensee” means Licensee authorized to use the Service under a valid and paid subscription license under an agreed Service Agreement for Licensee internal business use and not for distribution or resale;
• "Licensee Data" means any data, information or material, including personal data and PHI, and/or any content that Licensee or Licensee’s Users, employees, subscribers or partners may disclose or submit to RetinAI or upload to the Service in the course of using the Service, in particular the content of examinations, diagnostics, notices, communications, visits, scans and other uploaded by the Licensee through the Service;
• “Open Source License Terms” means the license terms applicable to Open Source Software components included in the RetinAI Software that can be made available to Licensee upon request;
• ‍

‍

18. Definitions

The following terms used in this Agreement shall have the following meaning:

• “Affiliate” means an entity owned by, owing to or under common ownership with either party, whereby ownership shall be defined as holding a financial interest of at least fifty-one (51%) percent of shares or capital;
• “Aggregate Data” means aggregated information about population groups, demographics within geographies with no Patient Data nor the possibility to trace back to the Patient. It allows healthcare professionals to identify common characteristics, statistics and or distributions that might support understanding disease behavior or the course of the disease and about the most effective ways to treat them;
• “Authorities” means any official public authorities including regulatory and data protection authorities in any affected jurisdiction;
• “Documentation” means any published documentation provided by RetinAI in any form, related to the Service including any specification, user manuals, system manuals, operating manuals, programming manuals, physical planning guides and set up or installation guides, if available;
• “End User” means any person, program, process, product, or hardware which uses any functionality of the Program; it shall also mean Licensee’s employees, representatives, consultants, contractors or agents who are authorized to use the Program under a valid License and have been supplied user identifications and passwords by Licensee (or by RetinAI at Licensee’s request);
• “Enrichment Data” means aggregated external information combined with Aggregated Data to provide larger, more meaningful insights about population groups or demographics within geographies; 
• “EU Model Clauses” means the standard contractual clauses annexed to the EU Commission Implementing Decision 2021/914 of 4 June 2021 on standard contractual clauses for the transfer of personal data to third countries pursuant to Regulation (EU) 2016/679 of the European Parliament and of the Council;
• “Fees” means the Fees and charges specified in the applicable License Agreement, payable by Licensee to RetinAI or the respective Affiliate in respect of the License and/or the respective service subscription;
• “GDPR” means Regulation (EU) 2016/679 of 27 April 2016 on the protection of natural persons (data subjects) with regard to the processing of personal data and on the free movement of such data (and repealing Directive 95/46/EC).
• “HIPAA” means the Health Insurance Portability and Accountability Act of 1996, which includes the Privacy Rule and the Security Rule;
• “Intellectual Property Rights” means unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world;
• “Licensee” means Licensee authorized to use the Service under a valid and paid subscription license under an agreed Service Agreement for Licensee internal business use and not for distribution or resale;
• "Licensee Data" means any data, information or material, including personal data and PHI, and/or any content that Licensee or Licensee’s Users, employees, subscribers or partners may disclose or submit to RetinAI or upload to the Service in the course of using the Service, in particular the content of examinations, diagnostics, notices, communications, visits, scans and other uploaded by the Licensee through the Service;
• “Open Source License Terms” means the license terms applicable to Open Source Software components included in the RetinAI Software that can be made available to Licensee upon request;
• “Open Source Software” means Third-Party Software available without charge for use, modification or distribution as licensed under a separate open source software license;
• “RetinAI DISCOVERY Service(s)” or “Service(s)” means RetinAI's online Services (including Service Provider services) and Software provided on the RetinAI Discovery platform as described in the Service Agreement and in the relevant product data sheet(s);
• RETINAI MEDICAL AG means the parent company of RetinAI US Inc., located at FREIBURGSTRASSE 3, 3010 BERN, SWITZERLAND;
• “Service Agreement” means an individually agreed and duly signed commercial agreement between the Licensee and RetinAI that expressly includes this EULA by reference and contains the commercial details of the Software or Service subscriptions. The License Agreement may be a commercial agreement in itself or an integrated part thereof;
• “Service Provider” means the Licensor’s subcontractors for the RetinAI Services, such as AWS and Sentry;
• “Software” means the RetinAI software components as supplied by RetinAI under a Service Agreement, and associated media, printed materials, and online or electronic Documentation;
• “Subscription” means the time-limited license use rights for the Software and Services granted to the Licensee under the Service Agreement;
• “Third-Party Software” or “Third-Party Services” means services or components provided by third parties, such as the Service Providers’ services as well as Open Source Software etc., including any upgrades, modified versions, updates, additions, and copies or documentation thereof;
• “Trial Version” or “Test Version” means a version of the RetinAI Program, so identified, to be used only to review and evaluate the Program for a specific time period as determined by RetinAI, such as, for example, the Early Adopter Program.
• “Open Source Software” means Third-Party Software available without charge for use, modification or distribution as licensed under a separate open source software license;
• “RetinAI DISCOVERY Service(s)” or “Service(s)” means RetinAI's online Services (including Service Provider services) and Software provided on the RetinAI Discovery platform as described in the Service Agreement and in the relevant product data sheet(s);
• “RetinAI” means the company RETINAI MEDICAL AG located at FREIBURGSTRASSE 3, 3010 BERN, SWITZERLAND;
• “Service Agreement” means an individually agreed and duly signed commercial agreement between the Licensee and RetinAI that expressly includes this EULA by reference and contains the commercial details of the Software or Service subscriptions. The License Agreement may be a commercial agreement in itself or an integrated part thereof;
• “Service Provider” means the Licensor’s subcontractors for the RetinAI Services, such as AWS and Sentry;
• “Software” means the RetinAI software components as supplied by RetinAI under a Service Agreement, and associated media, printed materials, and online or electronic Documentation;
• “Subscription” means the time-limited license use rights for the Software and Services granted to the Licensee under the Service Agreement;
• “Third-Party Software” or “Third-Party Services” means services or components provided by third parties, such as the Service Providers’ services as well as Open Source Software etc., including any upgrades, modified versions, updates, additions, and copies or documentation thereof;
• “Trial Version” or “Test Version” means a version of the RetinAI Program, so identified, to be used only to review and evaluate the Program for a specific time period as determined by RetinAI, such as, for example, the Early Adopter Program.

19. List of parties

Licensee entity details (Name, Address, Country, Email)

On behalf of the Licensee:

Name:  

Position:

Address:

Signature:

Licensor entity details (Name, Address, Country, Email)

RETINAI MEDICAL AG, Freiburgstrasse 3, 3010, Bern - Switzerland - info@retinai.com 

On behalf of the Licensor:

Name:            Carlos Ciller 

Position: CEO

Address: Freiburgstrasse 3, 3010 Bern, Switzerland

Signature:

Name:            Stefanos Apostolopoulos

Position: CTO

Address: Freiburgstrasse 3, 3010 Bern, Switzerland

Signature:

‍