Proscia Pathology Cloud End User Agreement

PROSCIA TERMS OF SERVICE

PLEASE CAREFULLY READ THESE TERMS OF SERVICE (HEREAFTER, THE “ AGREEMENT”). THIS AGREEMENT IS A LEGALLY BINDING AGREEMENT BETWEEN PROSCIA INC. (“PROSCIA”) AND THE INDIVIDUAL ACCEPTING THIS AGREEMENT OR, if an individual is accepting this agreement on behalf of the LEGAL ENTITY IDENTIFIED IN AN ORDER FORM (AS DEFINED BELOW), then such legal entity (“USER”). THIS AGREEMENT GOVERNS THE ACCESS AND USE OF PROSCIA’S DIGITAL PATHOLOGY PLATFORM KNOWN AS “PATHOLOGY CLOUD” AND SUCH OTHER TECHNOLOGY PLATFORMS AS MAY BE DESIGNATED IN AN ORDER FORM (COLLECTIVELY “ SERVICE”). USE OF AND ACCESS TO THE SERVICE BY USER IS CONDITIONED UPON ACCEPTANCE OF THIS AGREEMENT by clicking “ ACCEPT” or similar attestation upon initial registration to access the service in accordance with proscia’s order process.

IF AN INDIVIDUAL is ACCEPTING THIS AGREEMENT ON BEHALF OF THE LEGAL ENTITY IDENTIFIED IN AN ORDER FORM, THE INDIVIDUAL REPRESENTS AND WARRANTS THAT HE/SHE IS ACCEPTING THIS AGREEMENT ON BEHALF OF THE LEGAL ENTITY IDENTIFIED IN THE ORDER FORM AND HAS THE RIGHT, POWER AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF SUCH LEGAL ENTITY and such legal entity REPRESENTS AND WARRANTS THAT THE INDIVIDUAL DESIGNATED ON THE ORDER FORM TO ACCEPT THIS AGREEMENT ON ITS BEHALF HAS THE LEGAL AUTHORITY TO ENTER INTO THIS AGREEMENT.

I. Service access; restrictions

A. Scope. The Service is offered by the Proscia in two versions: “free-tier” and “fee-based/enterprise”. Both versions are included under the term “Service”. Any differences in policy between the two versions are explicitly described in the body of this Agreement. By accepting the terms of this Agreement, the User accepts the policies regarding the version of the Service in use by the User, unless otherwise expressed agreement in writing between Proscia and the User.

B. Registration For Access. To access the Service, User must register through the Proscia website and/or such other process designated by Proscia (e.g., email) for submission of an order processing form under this Agreement (“ Order Form”). User agrees to provide accurate, current and complete information when registering and to contact Proscia at info@proscia.com with any updates to User’s information. User may upgrade from “free-tier” access to the Service to “fee-based/enterprise” access to the Service by contacting Proscia at info@proscia.com. To the extent applicable, the Order Form may include, among other terms, the fees and payment terms for “fee-based/enterprise” access to the Service, subscription term, the name of the legal entity entering into this Agreement, the number of individuals who are authorized to access the Service on behalf of an enterprise User (“ Authorized Users”), and the contact information of the individual authorized to accept this Agreement on behalf of a legal entity, in each case if applicable. User is responsible for maintaining the confidentiality of all login and account information available to User for the use of the Service, including without limitation, the credentials of its Authorized Users. User shall be fully responsible for any and all activities that occur under the Users’ login and/or account, including without limitation, the actions of its Authorized Users.

C. Service Access. Subject to the terms of this Agreement, Proscia grants User a limited, revocable, non-exclusive, non-sublicenseable, non-transferable, non-assignable right to remotely access, view and use the Service. User acknowledges and agrees that (i) Proscia is not obligated to make the Service available as a standard Proscia service; (ii) Proscia’s future plans concerning the Service are subject to change at any time without notice; (iii) Proscia shall have no obligations to execute such plans or, except as otherwise expressly provided herein, to provide the Service to User; and (iv) Proscia shall have no liability as a result of any such change.

D. Restrictions. User shall not (and shall cause Authorized Users to not): (i) copy, modify, adapt, translate or otherwise create derivative works of or improvements to the Service or the software available via such Service; (ii) reverse engineer, decompile or disassemble or otherwise attempt to discover the source code of such software or determine how such Service is provided; (iii) rent, lease, sell, assign or otherwise transfer rights in or to the Service; (iv) remove any proprietary or confidentiality notices or labels associated with the Service; (v) use, post, transmit or introduce any device, software or routine which interferes or attempts to interfere with the operation of the web portal or the delivery of the Service; (vi) use the Service in any manner that violates any applicable law or rights of third parties; (vii) access, tamper with or use non-public areas of the Service or shared areas of the Service to which User has not been invited; or (viii) access or search the Service by any means other than Proscia’s publicly supported interfaces (e.g., scraping).

E. No Other Rights. No rights or licenses are granted or conveyed except access rights as expressly set forth in this Section I, whether expressly, by implication, estoppel, reliance or otherwise, all of which are specifically excluded and disclaimed. Without limiting the generality of the foregoing, this Agreement does not grant to User a license under any intellectual property to use, reproduce, distribute, publicly display, or create derivative works of, the Service or any software.

II. FEES

User accessing the Service on “fee-based/enterprise” shall pay to Proscia the fees set forth on the applicable Order Form (“ Fees”). Fees shall be paid to Proscia on terms set forth in the Order Form. Fees are non-refundable.

III. TERM AND TERMINATION

Except as otherwise stated in an Order Form, this Agreement is effective upon acceptance by User and shall remain in effect until terminated by Proscia as set forth below. Proscia shall have the right to terminate this Agreement at any time upon written notice to User. Upon termination of this Agreement, User shall return to Proscia all copies of the Service documentation and all Confidential Information and, if requested by Proscia, shall so certify in writing. In addition to any other remedies available to Proscia herein or available at law or in equity, Proscia reserves the right to suspend or terminate User’s access to the Service if User breaches any terms of this Agreement. Sections II (to the extent Fees have accrued and are unpaid), III, IV.A, IV.B.1, IV.B.3, IV.C, V, VI, VII, VIII, and X shall survive the expiration or termination of this Agreement for any reason.

IV. CONFIDENTIAL INFORMATION AND Intellectual Property

A. Confidential Information. User agrees to maintain the confidentiality of any confidential or proprietary information of Proscia received by the User while this Agreement is in effect, or prior to entering into this Agreement, that User should know is considered confidential or proprietary by Proscia based on the circumstances surrounding the disclosure, including, without limitation, non-public technical and business information (“ Confidential Information”). The Service and underlying software and documentation are copyrighted and shall be deemed Proscia’s Confidential Information. This section shall not apply to any information that is or becomes publicly available through no breach of this Agreement by User or is independently developed by User without access to or use of the Confidential Information of Proscia. The foregoing confidentiality obligations will not restrict User from disclosing Confidential Information of Proscia pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided that the User gives reasonable notice to Proscia to enable Proscia to seek a protective order or otherwise limit such disclosure. User shall protect the secrecy of and avoid disclosure and unauthorized use of Proscia’s Confidential Information with no less than reasonable care. User agrees to take all reasonable steps (including without limitation by instruction or agreement) to insure that its employees, officers, and agents or independent contractors who are permitted access to the Confidential Information fulfill User’s obligations hereunder to guard against and prevent disclosure of Confidential Information in accordance with the terms of this Agreement. User further agrees that User will provide access to the Confidential Information only to its employees, officers, agents and independent contractors who have a need-to-know such Confidential Information. User acknowledges that disclosure of Confidential Information could cause irreparable harm to Proscia and, as an essential term and condition to use of the Service, agrees not to disclose Confidential Information to any person or entity without the express prior written consent of Proscia.

B. Intellectual Property.

1. Propriety Material. Except for the User Content (as defined below), Proscia and its affiliates and licensors own all right, title and interest in and to the Service and all analytics, algorithms, and derivative images and other content derived from the use of the Service, and all intellectual property rights embodied therein (collectively, the “Proprietary Material”). To the extent any right, title or interest in or to any Proprietary Material vests in User, User hereby assigns all right, title and interest in and to the Proprietary Material.

2. De-Identified Data . User shall only transfer data and materials (including User Content) to the Service that qualify as De-Identified Data. For purposes of this Agreement, “De-Identified Data” means de-identified information (i) created in accordance with at least one of the de-identification specifications set forth in 45 C.F.R. § 164.514(b) and (ii) from which all personal identifiers have been removed such that there is no reasonable basis to believe nor is there any actual knowledge that such information can be used to identify an individual. User acknowledges and agrees that (1) Proscia is not a Business Associate or subcontractor of a Business Associate (as those terms are defined in the Health Insurance Portability and Accountability Act of 1996 (“HIPAA ”)), (2) the Service is not, and is not required to be, compliant with HIPAA, the Health Information Technology for Economic and Clinical Health Act (Title XIII of the American Recovery and Reinvestment Act of 2009) (“ HITECH”), or similar state laws, and related amendments and regulations (collectively, “ Privacy Laws”), and (3) User is solely responsible for compliance with applicable Privacy Laws. User shall not submit, collect or use any “personal health information” as defined in 45 CFR §160.103 (“ PHI”), with or to the Service. In the event that User transfers data or materials (including User Content) to the Service that do not qualify as De-Identified Data or that otherwise contain PHI (collectively, “Unauthorized Data”), (a) Proscia shall have the right, but not the obligation, to delete any Unauthorized Data, (b) Proscia shall not be liable for any dissemination of Unauthorized Data to or by User or other users of the Service, and (c) User shall indemnify and hold Proscia harmless for any losses incurred by Proscia as a result of User’s transfer of Unauthorized Data to the Service. User acknowledges and agrees that Proscia is not responsible for monitoring the Service for Unauthorized Data and that Proscia shall have no liability under this Agreement for Unauthorized Data received from User, in each case notwithstanding anything to the contrary herein.

3. Feedback. User may provide to Proscia error reports, suggestions, feedback, oral and written reports, information, ideas, concepts, and know-how in connection with use of the Service (collectively, “Feedback”). Feedback does not include User Content, which is subject to the license grant to Proscia set forth in Section IV.C below. To the extent User provides any Feedback, User hereby assigns, transfers and conveys to Proscia, or its designee, all worldwide right, title and interest in and to any and all Feedback, including any ideas, inventions, discoveries, original works of authorship, findings, conclusions, concepts and improvements in such Feedback and the Feedback may be used by Proscia for all business purposes, without any accounting or any payment to User.

C. User Content. User may from time to time transfer whole slide images, other digital images, and associated reports, files, and data to the Service (“ User Content”). User hereby grants Proscia a non-exclusive, perpetual, royalty-free, assignable, transferrable, sublicenseable license to use, reproduce, distribute, publish, display and create derivative works of User Content in connection with the Service and Proscia’s business (or the business of any successor to Proscia). User represents that it has the rights to grant the foregoing license and that it has complied with all applicable laws. As between Proscia and User, subject to the foregoing license and Section IV.B.2, User owns all right, title and interest in and to all User Content. Without limiting the foregoing, nothing in this Agreement shall prohibit or restrict Proscia from using data provided by User or otherwise gathered in relation to User’s use of the Service including, without limitation, as aggregated with other data and/or to produce publicly available whitepapers, reports, and industry-wide statistics, provided that no such use shall expressly identify User as the source of such data. Under no circumstances will Proscia become liable for any payment to User for any User Content or any other information that User provides, whether concerning the Service or otherwise.

D. Copyright Infringement. Proscia expects User to respect the intellectual property rights of others. Proscia will process and investigate notices of alleged copyright infringement and will take appropriate actions under the Digital Millennium Copyright Act (“DCMA”) and other applicable intellectual property laws. Upon receipt of notices complying with the DCMA, Proscia will act to remove or disable access to any material or activity found to be infringing or found to be the subject of infringing activity and will act to remove or disable access to any reference or link to any material or activity that is found to be infringing. If User believes that a work protected by a United States copyright has been used on the Service without authorization, User may notify Proscia at info@proscia.com and provide the following information: (i) physical or electronic signature of the person authorized to act on behalf of the copyright owner; (ii) identification of the copyrighted work claimed to have been infringed; (iii) a detailed description of the material that User claims is infringing the copyrighted work, together with information sufficient to enable Proscia to locate it; (iv) User’s name, mailing address, telephone number and e-mail address; (v) a statement by User that it believes in good faith that the disputed use is not authorized by the copyright owner, its agent or the law; and (vi) a statement by User that the information in the notice is accurate and, under penalty of perjury, that User is the owner of the copyright allegedly infringed or is authorized to act on behalf of the owner of such copyright.

V. PRIVACY POLICY

For information on Proscia’s data collection practices with respect to any personally identifiable information collected by Proscia, please read the Proscia Privacy Policy, located athttps://proscia.com/privacy (the “ Privacy Policy”). User acknowledges that the use of any personally identifiable information collected by Proscia in connection with the Service will be in accordance with the Privacy Policy.

VI. DISCLAIMER OF WARRANTIES

USER ACKNOWLEDGES AND AGREES THAT THE SERVICE IS PROVIDED AS-IS AND WITHOUT ANY WARRANTIES EITHER EXPRESSED OR IMPLIED INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE OR NON-INFRINGEMENT. proscia HAS NO LIABILITY FOR CLINICAL, OPERATIONAL, BUSINESS, OR ANY OTHER DECISIONS MADE BY USER, USER AFFILIATES, AUTHORIZED USERS, OR PATIENTS ON THE BASIS OF THE SERVICE. USER FURTHER ACKNOWLEDGES AND AGREES THAT WITH RESPECT TO SERVICE, THE PROVISIONS OF THIS AGREEMENT SUPERSEDE ANY AND ALL WARRANTY PROVISIONS AND INDEMNIFICATION PROVISIONS RELATED TO THE SERVICE, UNLESS ANY OTHER PROVISIONS ARE AGREED UPON IN ANOTHER WRITTEN AGREEMENT COVERING THE SERVICE THAT EXPRESSLY SUPERSEDES THIS AGREEMENT. User acknowledges and agrees that the Service IS not, AND IS NOT REQUIRED TO BE, COMPLIANT WITH PRIVACY LAWS. User Further acknowledges and agrees that Proscia has no liability under this Agreement for UNAUTHORIZED DATA received from User, notwithstanding anything to the contrary herein.

VII. LIMITATION OF LIABILITY

UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT OR OTHERWISE) SHALL PROSCIA OR ITS officers, directors, employees, agents, affiliates, subsidiaries, suppliers, licensors or third party partners BE LIABLE TO USER OR ANY THIRD PARTY FOR Any (A) INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA OR BUSINESS INTERRUPTION OR (B) DIRECT DAMAGES, COSTS, LOSSES OR LIABILITIES IN EXCESS OF THE FEES PAID TO PROSCIA IN THE ONE (1) MONTH PRECEDING THE DATE OF THE EVENT GIVING RISE TO THE CLAIM. THESE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

VIII. INDEMNIFICATION

User agrees to indemnify, defend and hold harmless Proscia and its officers, directors, employees, agents, affiliates, subsidiaries, suppliers, licensors and third party partners from and against all claims, losses, expenses, damages and costs, including reasonable attorneys’ fees, arising out of User’s (i) breach of this Agreement; (ii) violation of any rights of third parties; and (iii) violation of any law or regulation.

IX. REVISIONS TO this Agreement

Proscia reserves the right, in its sole discretion, to modify this Agreement at any time without prior notice to User. Proscia will post the modified version of this Agreement on the Service and any modifications are effective immediately upon posting. User’s continued use of the Service following any modification to this Agreement will be conclusively deemed to signify User’s acceptance of the modification.

X. MISCELLANEOUS

A. Press. User consents to Proscia's use of User's name on the Proscia website for purposes of identifying User as a subscriber to the Service. To the extent Proscia wishes to use User’s name in a press release or otherwise use User's name, Proscia will request approval from User on a case by case basis, including a copy of any proposed press release prior to public release.

B. Authority. The execution and delivery of this Agreement, and the performance of the functions contemplated hereby, have each been duly and validly authorized by all necessary corporate action as applicable. This Agreement constitutes a valid and legally binding agreement of User enforceable against User in accordance with its terms.

C. Governing Law. This Agreement will be governed by the laws of the Commonwealth of Pennsylvania, without regard to conflict of laws principles. Except as provided in Section X.D of this Agreement, all litigation and other proceedings initiated in connection with the Service will be venued exclusively in the state or federal courts with jurisdiction over Philadelphia County, Pennsylvania.

D. Dispute Resolution. In the event of any controversy, dispute or claim arising out of or related to this Agreement, the controversy, dispute or claim shall be resolved exclusively by binding arbitration in accordance with the then-current Commercial Rules of the American Arbitration Association. Arbitration shall be conducted in Philadelphia, Pennsylvania. All parties to the arbitration must be individually named and there shall be no right for any claims to be arbitrated on a class action or consolidated basis (including any claims alleged to be brought in a representative capacity on behalf of the general public or other persons). However, Proscia will have the right to petition any court of competent jurisdiction for claims relating to Proscia’s intellectual property rights or the entry of injunctions and orders for specific performance relating to User’s unauthorized use of the Service.

E. Entire Agreement. This Agreement, including any Order Forms, constitutes the entire understanding between parties with respect to the subject matter expressed herein.

F. Severability. If any provision of this Agreement is held to be invalid, illegal or unenforceable under applicable law, then the invalid, illegal or unenforceable provision shall be deemed superseded by a valid, legal and enforceable provision that most closely matches the intent of the original provision and the remainder of this Agreement shall continue in effect.

G. Relationship of Parties. User agrees that no joint venture, partnership, employment or agency relationship exists between User and Proscia as a result of this Agreement.

H. Assignment of Agreement. User may not sublicense, lease, assign or otherwise transfer, in whole or in part, this Agreement without the prior written consent of Proscia. The sale of all, or substantially all, of User’s assets, change of control, merger or other transfer by operation of law shall be deemed to be a prohibited assignment for which User shall be obligated to receive consent from Proscia.

I. No Conflicts. The execution, delivery and performance of this Agreement by User, its compliance with the terms hereof and the performance of the functions contemplated hereby will not violate, conflict with, result in a breach of, give rise to any right of termination, cancellation or acceleration, constitute a default under, be prohibited by or require any additional approval under (i) User’s organizational documents (if applicable); (ii) any material instrument or agreement to which it is a party or by which it is bound; or (iii) any law, rule, regulation, ordinance, order, injunction or decree applicable to it the effect of which violation or breach could have a material adverse effect upon User’s ability to comply with its obligations under this Agreement.

This Agreement was last updated on April 19, 2017.