INTUITIVE LEAP COMMUNITY END USER LICENSE AGREEMENT.
PLEASE SCROLL DOWN AND READ ALL OF THE FOLLOWING TERMS AND CONDITIONS OF THIS INTUITIVE LEAP COMMUNITY END USER LICENSE AGREEMENT CAREFULLY. THIS INTUITIVE LEAP COMMUNITY END USER LICENSE AGREEMENT (“AGREEMENT”) IS A LEGAL CONTRACT BETWEEN YOU AND INTUITIVE LEAP, LLC. (“INTUITIVE”, “WE”, “US”, OR “OUR”).
By accessing or using the Platform (defined below), clicking on a button or taking any other action to signify your acceptance of this Agreement, or completing our account registration process, you are bound to this Agreement and have the authority to enter into this Agreement personally. “You”, “Your”, or “User” refers to the individual or legal entity in which the individual is using the Platform on behalf of, as applicable, identified as the end user when you accept this Agreement or register to use the Platform. If User is a legal entity, the individual identifying such User represents and warrants that he/she has authority to bind such entity to this Agreement and that such entity is responsible for the acts and omissions of its employees, contractors, agents, representatives, and other users who gain access to the Platform in connection with their relationship with User.
YOUR ACCESS TO OR USE OF THE PLATFORM IS SUBJECT TO LIMITATIONS OF LIABILITY IN SECTION 5 OF THIS AGREEMENT, LIMITING YOUR REMEDY AGAINST INTUITIVE. PLEASE CAREFULLY REVIEW SECTION 5 FOR MORE INFORMATION. INTUITIVE MAY REVISE AND UPDATE THIS AGREEMENT FROM TIME TO TIME WITHOUT PRIOR NOTICE TO YOU AND WILL POST THE UPDATED AGREEMENT TO THE PLATFORM. ANY CHANGES TO THIS AGREEMENT BY INTUITIVE WILL APPLY IMMEDIATELY UPON POSTING TO THE MAXIMUM EXTENT PERMITTED BY LAW.
1. General.
1.1 Scope. Intuitive developed and owns a web-based, crowdsourced artificial intelligence platform that enables users to contribute, share, and access medical device repair data and certain artificial intelligence generated insights within a broader community for the purpose of streamlining information related to the repair and maintenance of medical devices (the “Platform”). Subject to your compliance with the terms and conditions herein, including payment obligations (if applicable), Intuitive hereby grants you a limited, non-exclusive, revocable, non-transferable, and non-sublicensable right to access and use the Platform, for your personal or your internal business purposes, pursuant to Intuitive’s applicable policies, procedures, and documentation for the Platform. Nothing in this Agreement is intended to, or may be construed as, conferring by implication, estoppel or otherwise, any license or other grant of right to use any patent, copyright, trademark, service mark, or other intellectual property of Intuitive or any third party, except as expressly provided in this Agreement. All rights not otherwise expressly granted by this Agreement are reserved to Intuitive. Intuitive reserves the right to modify the Platform, in its sole discretion, at any time. You are responsible for acquiring, installing, and maintaining Internet, software, and equipment necessary to properly access and utilize the Platform.
1.2 Registration. To access or use the Platform, you may be required to (a) provide Intuitive with your first name, mailing address, title, name of the organization you are using the Platform on behalf of, other contact information, and (b) create login credentials to use the Platform. Intuitive may also request additional information from you from time to time. You represent and warrant to Intuitive that you will provide accurate, current, and complete registration information. You are responsible for keeping your registration information up to date, and for all actions taken on the Platform using your associated log-in credentials. You will keep your credentials and passwords confidential and are strictly responsible for all use of the Platform using your login credentials.
1.3 Restrictions. You shall not, directly or indirectly, nor permit any third party to: (a) remove, obscure, or modify any trademark legend or copyright notice, author attribution, or other notice placed on or contained within the Platform, (b) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Platform, or any documentation or materials related to, or provided with, the Platform, (c) use the Platform for illegal, fraudulent, or harmful purposes, including, using the Platform for discriminatory or malicious activities, (d) attempt to gain access to other user accounts or data of other Intuitive clients, (e) access the Platform through any technology or means other than through your user account provided by Intuitive to you, (f) use the Platform to disseminate, store, or transmit viruses, trojans, bugs, malicious code, or malware, (g) use the Platform to knowingly infringe or misappropriate the intellectual property rights belonging to a third party, (h) use, access, or otherwise exploit the Platform to build or support, and/or assist a third party in building or supporting products or services competitive to the Platform or derivatives of the Platform, (i) use the Platform in violation of this Agreement or any applicable law, regulation, or rule, (j) harass or interfere with another user, including any other user’s use and enjoyment of the Platform, or (k) publish or disclose to a third party any performance or benchmark tests or analyses, the results of audits or ethical hacks, or other non-public information relating to the Platform or the use thereof, except as may be authorized by Intuitive in writing.
1.4 Third-Party Items. Certain content, data, imagery, processes, third-party websites linked to the Platform, or other items provided with, or needed to access or use the Platform may be subject to third-party terms, requirements, or restrictions (“Third-Party Items”). The Third-Party Items are not subject to this Agreement, except for this Section, the disclaimer of warranties, and the limitations of liability. Instead, each Third-Party Item is provided under the terms that accompanies such Third-Party Item. Nothing in this document limits your rights under, or grants you rights that supersede, the terms and conditions of any applicable agreement for a Third-Party Item. Intuitive does not own and is not responsible for the Third-Party Item or the results arising from use or purchase of a Third-Party Item. Nothing in the Platform, including, without limitation, any links to other websites, should be construed as an endorsement by Intuitive of any products, services, offerings, information, or other aspects of any other individuals or entities. Your choice to access, use, or select any Third-Party Item is at your own risk, and you agree to comply with all terms and conditions (including privacy policies) on or relating to such Third-Party Item. Intuitive reserves the right to remove any Third-Party Items from the Platform at any time. Intuitive makes no representations or warranties with respect to Third-Party Items.
2. Fees and Payment. Intuitive, in its sole discretion, may offer free or paid versions of the Platform, with or without third-party advertisements, at any time. Details regarding pricing, subscription models, and payment methods will be provided on the Platform or electronically to the email you provide to Intuitive. You acknowledge and agree that any fees paid to Intuitive under this Agreement (a) shall be made in United States Dollars and are non-cancellable and non-refundable and (b) shall be exclusive of any sales, use, and other taxes or duties, however designated, and you will be solely responsible for paying such taxes or duties.
3. Proprietary Rights
3.1 User Content. As a user of the Platform, you may choose to contribute content, data, or other information, including, but not limited to, medical device information, repair experiences, troubleshooting tips, completed surveys or binary rating votes, or other relevant data, to Intuitive and/or the Platform (“User Content”). In connection with User Content, you affirm, represent, and warrant that you own or have the necessary licenses, rights, consents, and permissions to use and authorize Intuitive to use all User Content, the User Content will not violate, infringe, or misappropriate the rights of any third party, and the User Content will not be defamatory, libelous, vulgar, profane, or obscene. You understand that any User Content you provide to Intuitive or the Platform may be viewed and used by other users and will be part of the collective resource made available through the Platform. Any User Content that you submit, provide, or contribute to Intuitive or the Platform shall be owned exclusively by Intuitive, and Intuitive may use, display, share, and distribute User Content to, among other things, provide the Platform, perform its obligations herein, maintain and improve the Platform, create usage or statistical data, or for any other Intuitive business or commercial purpose.
3.2 Ownership. Except for your limited right to access and use the Platform as expressly described in this Agreement, Intuitive owns and reserves all other rights, title, and interest in and to the Platform, including the “look and feel” of the Platform with all software, ideas, processes, data, text, media, and other content available or arising from the Platform. The Platform is being made available on a strictly confidential and limited use basis. This Agreement is not an agreement of sale, and no ownership rights to the Platform or any portion of the Platform are transferred to you. Any derivative works, modifications, or enhancements relating to the Platform or any component thereof (whether created alone or jointly) will be solely and exclusively owned by Intuitive. You hereby assign and agree to assign to Intuitive any rights, title, and interest in and to any feedback, suggestions, ideas, derivative works, modifications, enhancements, or improvements to the Platform that you provide or develop. You will execute and deliver any additional documents deemed reasonably necessary or appropriate to perfect, maintain, protect, or enforce Intuitive’s rights described above and the intent of this Section.
3.3 Artificial Intelligence. You acknowledge and understand that any User Content submitted by you to the Platform may be utilized by artificial intelligence and machine learning technologies (“AI” and “ML”). The Platform may include recommendations and analysis through AI and ML which rely on statistics, probabilities, and data that may not be accurate, appropriate or reliable, all decisions are solely made by you, and you should not solely rely on information presented by AI or ML offerings within the Platform as accurate.
4. Confidential Information. All confidential information will be held in confidence, and the receiving Party will take all steps reasonably necessary to preserve the confidentiality of the confidential information of the disclosing Party. The disclosing Party’s confidential information will not be used or disclosed by the receiving Party for any purpose except (a) as necessary to exercise rights or perform obligations under this Agreement or (b) as required by law, provided, that, the other Party is given a reasonable opportunity to obtain a protective order (if applicable). Intuitive may disclose this Agreement to its actual or potential investors, creditors, professional advisors, or attorneys who are subject to a duty of confidentiality. Intuitive’s confidential information includes the Platform (and the data that is provided as part of the Platform).
5. Disclaimer and Limitations
5.1 Disclaimer. YOU ARE SOLELY RESPONSIBLE FOR THE RESULTS OBTAINED FROM YOUR USE OF THE PLATFORM OR ANY THIRD-PARTY ITEMS LINKED FROM THE PLATFORM. TO THE EXTENT PERMITTED BY LAW, THE PLATFORM IS PROVIDED “AS IS” AND INTUITIVE MAKES NO REPRESENTATIONS OR WARRANTIES, ORAL OR WRITTEN, EXPRESS OR IMPLIED, ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INTERFERENCE, ACCURACY, OR NON-INFRINGEMENT. TO THE EXTENT PERMITTED BY LAW, INTUITIVE MAKES NO REPRESENTATIONS OR WARRANTIES, NOR WILL INTUITIVE HAVE ANY LIABILITY WITH RESPECT TO THIRD-PARTY ITEMS OR THE ACCURACY OF ANY DATA OR CONTENT THAT ARISES FROM THE USE OF THE PLATFORM OR THIRD-PARTY ITEMS. AS BETWEEN YOU AND INTUITIVE, YOU ACCEPT SOLE RESPONSIBILITY FOR YOUR USE OF ANY ARTIFICIAL INTELLIGENCE OR MACHINE LEARNING FUNCTIONALITIES OR FEATURES OF THE PLATFORM. THE PLATFORM MAY GENERATE ARTIFICIAL INTELLIGENCE CONTENT (E.G., OUTPUTS, INSIGHTS, MODELS, OR PREDICTIONS) RELYING ON THE USER CONTENT YOU AND OTHER USERS CONTRIBUTE, AND YOU ACKNOWLEDGE THAT THE ACCURACY OF SUCH ARTIFICIAL INTELLIGENCE CONTENT IS NOT GUARANTEED. THE PLATFORM IS NOT A MEDICAL DEVICE. INTUITIVE DOES NOT, NOR DOES IT INTEND TO, ENGAGE IN THE PERFORMANCE OR DELIVERY OF MEDICAL OR HEALTH CARE SERVICES OR DIAGNOSIS. INTUITIVE SHALL NOT BE LIABLE IN ANY MANNER FOR ANY DAMAGES OR OTHER CONSEQUENCES ARISING FROM YOUR CARE OF ANY THIRD PARTIES.
5.2 Damage Limitation. IN NO EVENT WILL INTUITIVE BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION ANY LOSS OF DATA, LOSS OF BUSINESS, OR LOSS OF USE), WHETHER BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, ARISING FROM OR RELATING TO THIS AGREEMENT, THE PLATFORM, OR INTUITIVE’S INTELLECTUAL PROPERTY, EVEN IF INTUITIVE HAS BEEN INFORMED OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, INTUITIVE’S MAXIMUM AGGREGATE LIABILITY FOR ANY DAMAGES ARISING FROM OR RELATING TO THIS AGREEMENT, THE PLATFORM, OR INTUITIVE’S INTELLECTUAL PROPERTY SHALL NOT EXCEED THE AMOUNT PAID BY YOU TO INTUITIVE FOR THE PLATFORM DURING THE MONTH IMMEDIATELY PRECEDING THE DATE LIABILITY FIRST AROSE (OR $10 IF NO FEES APPLICABLE DURING SUCH PERIOD). INDIVIDUALS IN SOME STATES MAY BE PROTECTED BY CONSUMER PROTECTION OR OTHER LAWS THAT DO NOT PERMIT THE DISCLAIMERS AND LIMITATIONS ABOVE, AND IN SUCH CASE THESE DISCLAIMERS AND LIMITATIONS WILL ONLY APPLY TO THE EXTENT PERMITTED.
6. Indemnification. YOU SHALL INDEMNIFY AND HOLD INTUITIVE AND ITS AFFILIATES, LICENSORS, OFFICERS, EMPLOYEES, AND AGENTS HARMLESS AGAINST ANY AND ALL LIABILITIES ARISING OUT OF OR RELATED TO (A) YOUR USE OF A THIRD-PARTY ITEM (INCLUDING, BUT NOT LIMITED TO, YOUR RELATIONSHIP WITH THE MANUFACTURER OR PROVIDER OF SUCH THIRD-PARTY ITEM), (B) YOUR USER CONTENT (EXCEPT FOR LIABILITIES RELATED TO INTUITIVE’S FRAUD OR WILLFUL MISCONDUCT), (C) YOUR USE OF THE PLATFORM, AND (D) YOUR BREACH OF THIS AGREEMENT. INTUITIVE RESERVES THE RIGHT TO ASSUME THE SOLE CONTROL OF THE DEFENSE AND SETTLEMENT OF ANY THIRD-PARTY CLAIM, ACTION, SUIT, OR PROCEEDING FOR WHICH YOU ARE OBLIGED TO INDEMNIFY. YOU WILL COOPERATE WITH INTUITIVE WITH RESPECT TO SUCH DEFENSE AND SETTLEMENT.
7. Suspension; Term; Termination
7.1 Suspension. Intuitive reserves the right to suspend your access to the Platform, at any time, if we reasonably believe (a) you are in breach of this Agreement, (b) your access to or use of the Platform violates any law or regulation or is disrupting other users’ access to or use, or (c) there is a risk to Intuitive in connection with you or your employer.
7.2 Term; Termination. This Agreement shall apply for as long as you access or use the Platform. Intuitive may terminate this Agreement or stop offering the Platform at any time. Upon termination, you agree (a) Intuitive has no obligation to return any User Content to you, (b) to immediately stop using the Platform, (c) that the rights provided under this Agreement to you are revoked in entirety, (d) Intuitive shall not be liable to you, or any third party, for compensation, reimbursement, or damages for termination of access to the Platform, and (e) you will remain liable for any previous use of the Platform, unless prohibited by applicable law. Applicable provisions of this Agreement, including disclaimers, indemnitees, and limitation of liabilities, shall survive any termination of this Agreement.
8. Supplemental Terms. Intuitive may offer new, customized, supplemental, or additional features, functions, or services related to the Platform or other offerings (collectively, “New Offerings”) that are subject to an addendum or supplemental terms (“Supplemental Terms”). Supplemental Terms will be made known to you, and your access, use, or selection of the applicable New Offerings represents your agreement to be bound to such Supplemental Terms. Supplemental Terms, if any, are hereby incorporated into this Agreement, and take precedence if there is a conflict.
9. Miscellaneous. The relationship between the Parties under this Agreement is that of independent contractors and not partners, joint venturers, or agents. There are no third-party beneficiaries to this Agreement. Intuitive may use your name and trademarks as a reference both publicly and privately in Intuitive’s marketing and promotional materials, including, but not limited to, press releases, website references, and email communications. You may not assign this Agreement or the rights herein without the prior written approval of Intuitive. Intuitive may monitor your use of the Platform and use or exploit User Content in an aggregate or anonymous manner, to compile statistical and performance information related to the efficacy, provision and operation of the Platform or to develop and commercialize new products or services. Anonymizing data will include obfuscating or masking personally identifiable images or data in accordance with industry standards. Intuitive retains all intellectual property rights in such aggregated and/or anonymous information. This Agreement states the entire understanding between the Parties with respect to its subject matter, and supersedes all prior proposals, marketing materials, negotiations, and other written or oral communications between the Parties with respect to the subject matter of this Agreement. No waiver of any breach of this Agreement, will be effective unless in writing and signed by an authorized representative of both Parties. If any portion of any provision of this Agreement is held to be illegal, invalid, or unenforceable, in whole or in part, then such unenforceable portion of the provision will be deemed severed from this Agreement, the validity and enforceability of the remaining portion of the provision and the other provisions of this Agreement will not be affected or impaired, and this Agreement will be amended in order to effect, to the maximum extent allowable by law, the original intent of such provision. This Agreement will be construed and enforced in accordance with the laws of the State of Texas, excluding choice of law and disputes will be resolved exclusively in the federal or state courts located in Houston, Texas. Except with respect to your payment obligations (if any), neither Party will be liable for, nor will either Party be considered in breach of this Agreement due to any failure to perform its obligations under this Agreement as a result of a cause beyond its control, including any act of God or a public enemy, act of any military, civil or regulatory authority, change in any law or regulation, pandemic, fire, flood, earthquake, storm or other like event, disruption or outage of communication, labor problem, or unavailability of data which could not have been prevented by the non-performing Party with reasonable care.