Data Processing Agreement (DPA)

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Data Processing Agreement (DPA)


This Data Processing Agreement (DPA) is based on the EU SCC 2021 for data processing according to Art. 28 GDPR and forms part of the “Main Agreement” (including the agreements entitled “RetinAI End User License Agreement (EULA)” dated as of XX.XX.2022 and the agreed Subscription Agreement), as amended or updated from time to time.

As the Main Contract is governed by subject to Swiss law, the Parties agree that the applicable law for the Data Protection Addendum shall also be Swiss law, provided it remains to be deemed adequate by the EU. If Swiss law is no longer deemed adequate or if the applicable law mandatorily has to be an EU member state law, this Data Processing Addendum shall be governed by the laws of France instead. Furthermore, the term ’member state’ shall not be interpreted in such a way as to exclude data subjects in Switzerland from the possibility of suing for their rights in their place of habitual residence (Switzerland), and any references to the GDPR shall be deemed to include a reference to the Swiss Data protection law (DSG) mutatis mutandis, where applicable to the data processing. The Parties agree that the following clauses shall also protect the data of legal entities until the revised Swiss DSG enters into force. This Data Protection Addendum is subject to parallel supervision: The Swiss EDOEB, insofar as the data processing is governed by the Swiss DSG; and the competent EU authority insofar as the data transfer is governed by the GDPR (the legal criteria for the selection of the competent authority must be observed).

 

SECTION I

Clause 1 - Purpose and scope

  1. The purpose of these Standard Contractual Clauses (the Clauses) is to ensure compliance with Article 28(3) and (4) of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation, GDPR).
  2. The controllers and processors listed in Annex I have agreed to these Clauses in order to ensure compliance with Article 28(3) and (4) of Regulation (EU) 2016/679.
  3. These Clauses apply to the processing of personal data as specified in Annex II.
  4. Annexes I to IV are an integral part of the Clauses.
  5. These Clauses are without prejudice to obligations to which the controller is subject by virtue of Regulation (EU) 2016/679.
  6. These Clauses do not by themselves ensure compliance with obligations related to international transfers in accordance with Chapter V of Regulation (EU) 2016/679 and/or Regulation (EU) 2018/1725.

Clause 2 - Invariability of the Clauses

  1. The Parties undertake not to modify the Clauses, except for adding information to the Annexes or updating information in them.
  2. This does not prevent the Parties from including the standard contractual clauses laid down in these Clauses in a broader contract, or from adding other clauses or additional safeguards provided that they do not directly or indirectly contradict the Clauses or detract from the fundamental rights or freedoms of data subjects.

Clause 3 - Interpretation

  1. Where these Clauses use the terms defined in Regulation (EU) 2016/679, those terms shall have the same meaning as in that Regulation. 
  2. These Clauses shall be read and interpreted in the light of the provisions of Regulation (EU) 2016/679. 
  3. These Clauses shall not be interpreted in a way that runs counter to the rights and obligations provided for in Regulation (EU) 2016/679 or in a way that prejudices the fundamental rights or freedoms of the data subjects.

Clause 4 - Hierarchy

In the event of a contradiction between these Clauses and the provisions of related agreements between the Parties existing at the time when these Clauses are agreed or entered into thereafter, these Clauses shall prevail.

Clause 5 - Docking clause

  1. Any entity that is not a Party to these Clauses may, with the agreement of all the Parties, accede to these Clauses at any time as a controller or a processor by completing the Annexes and signing Annex I. 
  2. Once the Annexes in (a) are completed and signed, the acceding entity shall be treated as a Party to these Clauses and have the rights and obligations of a controller or a processor, in accordance with its designation in Annex I. 
  3. The acceding entity shall have no rights or obligations resulting from these Clauses from the period prior to becoming a Party.

SECTION II

OBLIGATIONS OF THE PARTIES

Clause 6 - Description of processing(s)

The details of the processing operations, in particular the categories of personal data and the purposes of processing for which the personal data is processed on behalf of the controller, are specified in Annex II.

Clause 7 - Obligations of the Parties

7.1. Instructions

  1. The processor shall process personal data only on documented instructions from the controller, unless required to do so by Union or Member State law or the law of the adequate country to which the processor is subject. In this case, the processor shall inform the controller of that legal requirement before processing, unless the law prohibits this on important grounds of public interest. Subsequent instructions may also be given by the controller throughout the duration of the processing of personal data. These instructions shall always be documented. 
  2. The processor shall immediately inform the controller if, in the processor’s opinion, instructions given by the controller infringe Regulation (EU) 2016/679 / Regulation (EU) 2018/1725 or the applicable Union or Member State or adequate country data protection provisions.

7.2. Purpose limitation

The processor shall process the personal data only for the specific purpose(s) of the processing, as set out in Annex II, unless it receives further instructions from the controller.

7.3. Duration of the processing of personal data

Processing by the processor shall only take place for the duration specified in Annex II.

7.4. Security of processing

  1. The processor shall at least implement the technical and organisational measures specified in Annex III to ensure the security of the personal data. This includes protecting the data against a breach of security leading to accidental or unlawful destruction, loss, alteration, unauthorised disclosure or access to the data (personal data breach). In assessing the appropriate level of security, the Parties shall take due account of the state of the art, the costs of implementation, the nature, scope, context and purposes of processing and the risks involved for the data subjects.
  2. The processor shall grant access to the personal data undergoing processing to members of its personnel only to the extent strictly necessary for implementing, managing and monitoring of the contract. The processor shall ensure that persons authorised to process the personal data received have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.

7.5. Sensitive data

If the processing involves personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, genetic data or biometric data for the purpose of uniquely identifying a natural person, data concerning health or a person’s sex life or sexual orientation, or data relating to criminal convictions and offences (“sensitive data”), the processor shall apply specific restrictions and/or additional safeguards[CK7] [CK8] .

7.6. Documentation and compliance

  1. The Parties shall be able to demonstrate compliance with these Clauses.
  2. The processor shall deal promptly and adequately with inquiries from the controller about the processing of data in accordance with these Clauses.
  3. The processor shall make available to the controller all information necessary to demonstrate compliance with the obligations that are set out in these Clauses and stem directly from Regulation (EU) 2016/679. At the controller’s request, the processor shall also permit and contribute to audits of the processing activities covered by these Clauses, at reasonable intervals or if there are indications of non-compliance. In deciding on a review or an audit, the controller may take into account relevant certifications held by the processor.
  4. The controller may choose to conduct the audit by itself or mandate an independent auditor. Audits may also include inspections at the premises or physical facilities of the processor and shall, where appropriate, be carried out with reasonable notice. 
  5. The Parties shall make the information referred to in this Clause, including the results of any audits, available to the competent supervisory authority/ies on request.

7.7. Use of sub-processors

  1. GENERAL WRITTEN AUTHORISATION: The processor has the controller’s general authorisation for the engagement of sub-processors from an agreed list. The processor shall specifically inform in writing the controller of any intended changes of that list through the addition or replacement of sub-processors at least [SPECIFY TIME PERIOD] in advance, thereby giving the controller sufficient time to be able to object to such changes prior to the engagement of the concerned sub-processor(s). The processor shall provide the controller with the information necessary to enable the controller to exercise the right to object.
  2. Where the processor engages a sub-processor for carrying out specific processing activities (on behalf of the controller), it shall do so by way of a contract which imposes on the sub-processor, in substance, the same data protection obligations as the ones imposed on the data processor in accordance with these Clauses. The processor shall ensure that the sub-processor complies with the obligations to which the processor is subject pursuant to these Clauses and to Regulation (EU) 2016/679. 
  3. At the controller’s request, the processor shall provide a copy of such a sub-processor agreement and any subsequent amendments to the controller. To the extent necessary to protect business secret or other confidential information, including personal data, the processor may redact the text of the agreement prior to sharing the copy.
  4. The processor shall remain fully responsible to the controller for the performance of the sub-processor’s obligations in accordance with its contract with the processor. The processor shall notify the controller of any failure by the sub- processor to fulfil its contractual obligations.
  5. The processor shall agree a third party beneficiary clause with the sub-processor whereby - in the event the processor has factually disappeared, ceased to exist in law or has become insolvent - the controller shall have the right to terminate the sub-processor contract and to instruct the sub-processor to erase or return the personal data.

7.8. International transfers

  1. Any transfer of data to a third country or an international organisation by the processor shall be done only on the basis of documented instructions from the controller or in order to fulfil a specific requirement under Union or Member State law or adequate country law to which the processor is subject and shall take place in compliance with Chapter V of Regulation (EU) 2016/679.
  2. The controller agrees that where the processor engages a sub-processor in accordance with Clause 7.7. for carrying out specific processing activities (on behalf of the controller) and those processing activities involve a transfer of personal data within the meaning of Chapter V of Regulation (EU) 2016/679, the processor and the sub-processor can ensure compliance with Chapter V of Regulation (EU) 2016/679 by using standard contractual clauses [CK3] adopted by the Commission in accordance with of Article 46(2) of Regulation (EU) 2016/679, provided the conditions for the use of those standard contractual clauses are met.

Clause 8 - Assistance to the controller

  1. The processor shall promptly notify the controller of any request it has received from the data subject. It shall not respond to the request itself, unless authorised to do so by the controller. 
  2. The processor shall assist the controller in fulfilling its obligations to respond to data subjects’ requests to exercise their rights, taking into account the nature of the processing. In fulfilling its obligations in accordance with (a) and (b), the processor shall comply with the controller’s instructions.
  3. In addition to the processor’s obligation to assist the controller pursuant to Clause 8(b), the processor shall furthermore assist the controller in ensuring compliance with the following obligations, taking into account the nature of the data processing and the information available to the processor:
  1. the obligation to carry out an assessment of the impact of the envisaged processing operations on the protection of personal data (a ‘data protection impact assessment’) where a type of processing is likely to result in a high risk to the rights and freedoms of natural persons;
  2. the obligation to consult the competent supervisory authority/ies prior to processing where a data protection impact assessment indicates that the processing would result in a high risk in the absence of measures taken by the controller to mitigate the risk; 
  3. the obligation to ensure that personal data is accurate and up to date, by informing the controller without delay if the processor becomes aware that the personal data it is processing is inaccurate or has become outdated; 
  4. the obligations in Article 32 of Regulation (EU) 2016/679/.
  1. The Parties shall set out in Annex III the appropriate technical and organisational measures by which the processor is required to assist the controller in the application of this Clause as well as the scope and the extent of the assistance required.

Clause 9 - Notification of personal data breach

In the event of a personal data breach, the processor shall cooperate with and assist the controller for the controller to comply with its obligations under Articles 33 and 34 of Regulation (EU) 2016/679, where applicable, taking into account the nature of processing and the information available to the processor.

9.1 Data breach concerning data processed by the controller

In the event of a personal data breach concerning data processed by the controller, the processor shall assist the controller:

  1. in notifying the personal data breach to the competent supervisory authority/ies, without undue delay after the controller has become aware of it, where relevant/(unless the personal data breach is unlikely to result in a risk to the rights and freedoms of natural persons); 
  2. in obtaining the following information which, pursuant to Article 33(3) of Regulation (EU) 2016/679/, shall be stated in the controller’s notification, and must at least include:
  1. the nature of the personal data including where possible, the categories and approximate number of data subjects concerned and the categories and approximate number of personal data records concerned; 
  2. the likely consequences of the personal data breach;
  3. the measures taken or proposed to be taken by the controller to address the personal data breach, including, where appropriate, measures to mitigate its possible adverse effects.
    Where, and insofar as, it is not possible to provide all this information at the same time, the initial notification shall contain the information then available and further information shall, as it becomes available, subsequently be provided without undue delay.
  1. in complying, pursuant to Article 34 of Regulation (EU) 2016/679, with the obligation to communicate without undue delay the personal data breach to the data subject, when the personal data breach is likely to result in a high risk to the rights and freedoms of natural persons.

9.2 Data breach concerning data processed by the processor 

In the event of a personal data breach concerning data processed by the processor, the processor shall notify the controller without undue delay after the processor having become aware of the breach. Such notification shall contain, at least:

  1. a description of the nature of the breach (including, where possible, the categories and approximate number of data subjects and data records concerned);
  2. the details of a contact point where more information concerning the personal data breach can be obtained; 
  3. its likely consequences and the measures taken or proposed to be taken to address the breach, including to mitigate its possible adverse effects;

Where, and insofar as, it is not possible to provide all this information at the same time, the initial notification shall contain the information then available and further information shall, as it becomes available, subsequently be provided without undue delay.
The Parties shall set out in Annex III all other elements to be provided by the processor when assisting the controller in the compliance with the controller’s obligations under Articles 33 and 34 of Regulation (EU) 2016/679.

SECTION III

FINAL PROVISIONS

Clause 10 - Non-compliance with the Clauses and termination

  1. Without prejudice to any provisions of Regulation (EU) 2016/679, in the event that the processor is in breach of its obligations under these Clauses, the controller may instruct the processor to suspend the processing of personal data until the latter complies with these Clauses or the contract is terminated. The processor shall promptly inform the controller in case it is unable to comply with these Clauses, for whatever reason.
  2. The controller shall be entitled to terminate the contract insofar as it concerns processing of personal data in accordance with these Clauses if:
  1. the processing of personal data by the processor has been suspended by the controller pursuant to point (a) and if compliance with these Clauses is not restored within a reasonable time and in any event within one month following suspension;
  2. the processor is in substantial or persistent breach of these Clauses or its obligations under Regulation (EU) 2016/679; 
  3. the processor fails to comply with a binding decision of a competent court or the competent supervisory authority/ies regarding its obligations pursuant to these Clauses or to Regulation (EU) 2016/679.
  1. The processor shall be entitled to terminate the contract insofar as it concerns processing of personal data under these Clauses where, after having informed the controller that its instructions infringe applicable legal requirements in accordance with Clause 7.1 (b), the controller insists on compliance with the instructions.
  2. Following termination of the contract, the processor shall, at the choice of the controller, delete all personal data processed on behalf of the controller and certify to the controller that it has done so, or, return all the personal data to the controller and delete existing copies unless Union or Member State law[CK6]  or law of an adequate country to which the processor is subject to, requires storage of the personal data. Until the data is deleted or returned, the processor shall continue to ensure compliance with these Clauses.

Clause 11 – Liability and Indemnity

Nothing in the Main Agreement or in this DPA shall limit or change the responsibility the Data Controller has under the GDPR.

Art. 82 GDPR shall apply to all parties of the DPA.

To the extent permitted by applicable law and regulations, the parties to the Main Agreement limit their liability and indemnity towards each other in accordance with the agreed liability and indemnity stipulations of the Main Agreement.

 

ANNEX I

List of parties

Controller(s): [Identity and contact details of the controller(s), and, where applicable, of the controller’s data protection officer]

1.

Name: ..........................................................................................................................................

Address: .......................................................................................................................................

Contact person’s name, position and contact details: ..........................................................

.......................................................................................................................................................

Signature and accession date: .................................................................................................

2.

................................................................................................................................

Processor(s): [Identity and contact details of the processor(s) and, where applicable, of the processor’s data protection officer]

1.

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

Data Protection Officer: Marc Stadelmann, PhD - marc.stadelmann@retinai.com

Name: ..........................................................................................................................................

Address: .......................................................................................................................................

Contact person’s name, position and contact details: ..........................................................

.......................................................................................................................................................

Signature and accession date: .................................................................................................

2.

................................................................................................................................

This DPA is subject to parallel supervision: The Swiss EDOEB, insofar as the data processing and transfer is governed by the Swiss DSG; and the competent EU authority insofar as the data processing and transfer is governed by the GDPR (the legal criteria for the selection of the competent authority must be observed).

ANNEX II

Description of the processing

 

Categories of data subjects whose personal data is processed

The categories of data subjects comprise:

  1. health care employees including contingent workers, consultants, contractors
  2. patients, including prospects institutional client and/or counterparty representatives
  3. authorized signatories
  4. professional advisers, agents, experts
  5. third party vendors

[For Switzerland, personal data includes legal entities; therefore, please insert legal entity details that will be processed if any]

................................................................................................................................

Categories of personal data processed

User Data: Name, group, email, password, Phone → End Users

 

Patient Data: Identity (name, age, sex, coded or deidentified), visit dates, images, AI results, demographics. 

 

Application logs: File status, Access Logs, Error reports

................................................................................................................................

Sensitive data processed (if applicable) and applied restrictions or safeguards that fully take into consideration the nature of the data and the risks involved, such as for instance strict purpose limitation, access restrictions (including access only for staff having followed specialised training), keeping a record of access to the data, restrictions for onward transfers or additional security measures.[CK8] 

................................................................................................................................

Nature of the processing 

..Processing, collecting, storing, and safeguarding Controller’s personal data and Customer data as agreed in the Main Contract..............................................................................................................................

Purpose(s) for which the personal data is processed on behalf of the controller

Performance of the Main Contract: The data processing is subject to the agreed purpose and scope of the Main Agreement................................................................................................................................

Duration of the processing

The data processing is agreed for the duration of the Main Agreement or as agreed therein................................................................................................................................

................................................................................................................................

For processing by (sub-) processors, also specify subject matter, nature and duration of the processing:

The contractually agreed services may be performed by the following pre-approved subcontractors:

 

Name of the subcontractor / third party provider           Description of the individual services

Amazon Web Services (AWS)                                           Cloud Hosting and Platform Services

 

Processor has concluded EU Standard Contractual Clauses with the subcontractors that are sub-processors to the extent required, in order to ensure appropriate data protection and information security measures. The applicable data processing agreement with AWS can be shared with Controller upon request.

 

 

ANNEX III

Technical and organisational measures including technical and organisational measures to ensure the security of the data

EXPLANATORY NOTE:

The technical and organisational measures need to be described concretely and not in a generic manner. 

Notwithstanding any additional measures agreed to in the Main Contract, RetinAI has implemented and will maintain for both Corporate and Customer Data (‘Data’) the following security measures, which in conjunction with the security commitments in this Data Processing Agreement (‘DPA’) (including the GDPR Terms), are RetinAI’s only responsibility with respect to the security of that data.

Domain

Practices

Organisation of Information Security

Security Ownership. RetinAI has appointed one or more security officers responsible for coordinating and monitoring the security rules and procedures.

Security Roles and Responsibilities. RetinAI personnel with access to Data are subject to confidentiality obligations.

Risk Management Program. RetinAI performed a risk assessment before processing the Data or launching the corresponding service.

RetinAI retains its security documents pursuant to its retention requirements after they are no longer in effect.

Asset Management

Asset Inventory. RetinAI maintains an inventory of all assets on which Data is stored. Access to the inventories of such assets is restricted to RetinAI personnel authorized in writing to have such access.

Asset Handling

  • RetinAI classifies Data to help identify it and to allow for access to it to be appropriately restricted.
  • RetinAI imposes restrictions on printing Data and has procedures for disposing of printed materials that contain Data.
  • RetinAI personnel must obtain RetinAI authorization prior to storing Data on portable devices, remotely accessing Data, or processing Data outside RetinAI’s facilities.

Human Resources Security

Security Training. RetinAI informs its personnel about relevant security procedures and their respective roles. RetinAI also informs its personnel of possible consequences of breaching the security rules and procedures. RetinAI will only use anonymous data in training.

Physical and Environmental Security

Physical Access to Facilities. RetinAI limits access to facilities where information systems that process Data are located to identified authorized individuals.

Protection from Disruptions. RetinAI uses a variety of industry standard systems to protect against loss of Data due to power supply failure or line interference.

Component Disposal. RetinAI uses industry standard processes to delete Data when it is no longer needed.

Communications and Operations Management

Operational Policy. RetinAI maintains security documents describing its security measures and the relevant procedures and responsibilities of its personnel who have access to Data.

Data Recovery Procedures

  • On an ongoing basis, but in no case less frequently than once a week (unless no updates have occurred during that period), RetinAI maintains multiple backups of Data from which such data can be recovered.
  • RetinAI stores backups of Data and data recovery procedures in a different place from where the primary computer equipment processing the Data is located.
  • RetinAI has specific procedures in place governing access to backups of Data.
  • RetinAI logs data restoration efforts, including: the person responsible, the description of the restored Data and, where applicable, which Data (if any) had to be input manually in the data recovery process.

Malicious Software. RetinAI has anti-malware controls to help avoid malicious software gaining unauthorized access to Data, including malicious software originating from public networks.

Data Beyond Boundaries

  • RetinAI encrypts Data that is transmitted over public networks.
  • RetinAI restricts access to Data in media leaving its facilities.

Event Logging. RetinAI logs access and use information systems containing Data: including registering the access ID, time, authorization granted or denied, and relevant activity.

Access Control

Access Policy. RetinAI maintains a record of security privileges of individuals having access to Data.

Access Authorization

  • RetinAI maintains and updates a record of personnel authorized to access RetinAI systems that contain Data.
  • RetinAI deactivates authentication credentials that have not been used for a period of time not to exceed six months.
  • RetinAI identifies those personnel who may grant, alter or cancel authorized access to Data and resources. 
  • RetinAI ensures the individuals have separate identifiers/logins.

 Need to Know

  • Technical support personnel are only permitted to have access to Data when needed. 
  • RetinAI restricts access to Data to only those individuals who require such access to perform their job function.

Integrity and Confidentiality

  • RetinAI instructs RetinAI personnel to disable administrative sessions when leaving premises RetinAI controls or when computers are otherwise left unattended.
  • RetinAI stores passwords in a way that makes them unintelligible while they are in force.

Authentication

  • RetinAI uses industry standard practices to identify and authenticate users who attempt to access information systems.
  • Where authentication mechanisms are based on passwords, RetinAI requires that the passwords are renewed regularly.
  • Where authentication mechanisms are based on passwords, RetinAI requires the password to be at least eight characters long.
  • RetinAI ensures that deactivated or expired identifiers are not granted to other individuals.
  • RetinAI monitors repeated attempts to gain access to the information system using an invalid password.
  • RetinAI maintains industry standard procedures to deactivate passwords that have been corrupted or inadvertently disclosed.
  • RetinAI uses industry standard password protection practices, including practices designed to maintain the confidentiality and integrity of passwords when they are assigned and distributed, and during storage.

Network Design. RetinAI has controls to avoid individuals assuming access rights they have not been assigned to gain access to Data they are not authorized to access.

Information Security Incident Management

Incident Response Process

  • RetinAI maintains a record of security breaches with a description of the breach, the time period, the consequences of the breach, the source of the reporting, and the main mitigation and recovery actions.
  • For each breach that is a Security Incident, notification by RetinAI will be made without undue delay.

Service Monitoring

  • RetinAI operation personnel verify logs on a regular basis to propose remediation efforts if necessary.

Business Continuity Management

  • RetinAI maintains emergency and contingency plans for the facilities in which RetinAI information systems that process Data are located.
  • RetinAI’s redundant storage and its procedures for recovering data are designed to attempt to reconstruct Data in its original or last-replicated state from before the time it was lost or destroyed.

Latest Update 22.09.2022

RetinAI Medical AG, Freiburgstrasse 3, 3010, Bern - All rights reserved ©

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RetinAI Discovery®
End User License Agreement (EULA)

This End User License Agreement for RetinAI Discovery Services (the “EULA”or the “Agreement”) is made between RetinAI MEDICAL AG, 3 FREIBURGSTRASSE, 3010BERN, SWITZERLAND, Licensor of the RetinAI Software and Services (“RetinAI” or “Licensor”) and You (the “EndUser” or “Licensee”).

This EULA covers the use of the RetinAI Discovery Services, meaning Retinai Discovery CORE for hospitals and clinics and RetinAI Discovery Research for healthcare providers and clinical & pharmaceutical institutions on RetinAI cloud services that are hosted on Amazon Web Services (AWS) primary data centers in Europe. The software may also be installed on a private cloud or on premise upon prior written agreement for such an especially tailored subscription.

Retinai Discovery® is a platform providing medical image and data management solutions to collect, organize and structure the information generated routinely in aclinic 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 EndUser 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 EndUsers accordingly.

You also acknowledge that the Services are or 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 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, andThird-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 or 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 theLicensee 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 TrialVersion or Test Version of theService, Licensee may use the specified Service only, and restricted to the timeframe the Licensee was explicitly authorized to evaluate, use or test suchService.


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 orDocumentation, 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 theServices;

●     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 theService; or

●     redistribute, sell, rent, lease, sublicense the Service; or

●     encumber, abuse or use theService 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 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, 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’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 or any third party’s rights related to the Services.

All rights not expressly granted to Licensee are reserved by RetinAI 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 theService 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 guarantee 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 theEnd User and thereby allow access to the Services, including to any of theLicensee 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 theServices 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 theLicensee 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 YourTerritory, 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 whereYou 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 guarantee 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

1.     Data

As between the Parties, the Licensee Data used, 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 ServiceProvider 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 or use personal or Patient Data other than for the purpose of this Agreement.

You agree to comply with the laws and regulations applicable to the processing of personal data 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, unless you have collected the data subject’s consent for such processing.

You acknowledge that the Licensee Data, including personal data, 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 accordingly, and to obtain any required prior consent.

2.      Content

Licensee shall be solely liable (i) for any LicenseeData, 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 anSMTP 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 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 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 theService.

However, RetinAI will use commercially reasonable efforts available, at its discretion, and under the circumstances to provideLicensee 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.


9.      Compliance

You will use the Services only in accordance with the RetinAI Service Agreement, applicable laws, government regulations, and thisEULA, 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, process or disclose personal or patient data 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 inviolation 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;

(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 theLicensee Data within the Services;

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

(v) You are in compliance with these Terms of Service 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 theIntellectual 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 viaYour 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 Export Administration Act 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 (cf. US 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 ifYou or Licensee fail to comply with these Terms.


11.     Warranty, IP Indemnification and Liability

1.     Limited Warranty

Provided that Licensee has paid the applicable license Fee, RetinAI warrants during the subscription period, that (i) theService 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 LicenseSchedule 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, 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, forLicensee to terminate the applicable subscription and receive a refund of prepaid unused fees.

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

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 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 or otherwise, including the warranties of merchantability or fitness fora particular purpose. 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.

2.      IP 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, and RetinAI will pay any final judgment against Licensee in any such action attributable to any such claim or incurred by Licensee through settlement of such claim.

Any and all claims with respect to any of the OpenSource 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 in fringement 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 payLicensee’s legal fees which were incurred by Licensee after Licensee gave RetinAI notice of the claim and before RetinAI assumed 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 withLicensee'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.

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 FORTHE 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 PROHIBIT THE LIMITATION OF DAMAGES IN SUCH CASES.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, INNO 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 FraudulentActivities. 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 misappropriate 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 SecurityViolations

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. ForgingTCP-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 NetworkServices. 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 aSystem, such as access and storage restrictions.

 

No E-Mail or OtherMessage Abuse

You will not distribute, publish, send, or facilitate the sending of unsolicited mass e-mail 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 andEnforcement

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

●     investigate violations of theseTerms 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 ofViolations 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 theseTerms, 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 LicenseeData.

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 retainLicensee Data and may fully delete Licensee Data after 90 (ninety) days after termination hereof.

You acknowledge that any Licensee Data, includingDocuments and personal data 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 theEU 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 theServices 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.

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

If the Licensee and RetinAI have signed a separateProcessor Agreement according to Art. 28 GDPR for the processing of personal data under any User accounts, the DPA shall apply to all processing of personal data under the contractual relationship of the parties.


14.    Mutual Confidentiality 

Each party acknowledges and agrees that any and all proprietary information labelled 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 “ConfidentialInformation,” and each party agrees that it will not, during or after the term hereof , permit the duplication, use, or disclosure of any such ConfidentialInformation 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 byLicensee 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 theDisclosing Party of its Affiliates hereunder, (iii) is acquired by theReceiving Party from a third-party without breach of any obligation owed to theDisclosing Party, or (iv) was or is independently developed by the ReceivingParty.

Neither party shall be in breach of this RetinAI DISCOVERY Agreement by reason only of disclosing Confidential Information orLicensee 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 discloseConfidential 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 ServicesAgreement shall be effective for the term of the Service Subscription and asset 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 ServiceAgreement.

●     Either party may terminate the account, if the other party breaches any material term of the RetinAI DISCOVERYService 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 terminateYour 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 LegalVenue 

This Agreement is construed under the laws ofSwitzerland, 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 Berne, Switzerland. Each party hereby waives opposition to jurisdiction in such court.


17.     Definitions

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

●     “Affiliate” means an entity owned by, owning 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 behaviour 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 byLicensee (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 Decision2010/87/EU dated February 5, 2010 for the Transfer of Personal Data toProcessors established in Third Countries under the EU Directive 95/46/EC;

●     “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).

●     “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 content thatLicensee or Licensee’s Users, employees, subscribers or partners may disclose or submit to RetinAI or upload to the Service in the course of using theService, in particular the content of examinations, diagnostics, notices, communications, visits, scans and other uploaded by the Licensee through theService;

●     “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” meansThird-Party Software available without charge for use, modification or distribution as licensed under a separate open source software licence;

●     “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);

●     “Service Agreement” means an individually agreed and duly signed commercial agreement between the Licensee and a RetinAI that expressly includes this EULA by reference and contains the commercial details of the Software or Service subscriptions. The LicenseAgreement may be a commercial agreement in itself or an integrated part thereof;

●     “Service Provider” means theLicensor’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 license use rights for the Software and Services granted to the Licensee under theService 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 “TestVersion” 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, e.g. as part of an early adopter program.

Latest Update 31.08,2022

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