Terms of Service

Pursuant to the terms and conditions outlined in these Terms of Service, KEBORMED hereby grants CLIENT ORGANIZATION a non-exclusive, non-transferable, revocable license to access and utilize the free tier of the Prototyping Portal solely for purposes of developing Prototypes for CLIENT ORGANIZATION or their END CUSTOMERS.

This license, commencing as of the Effective Date and continuing for the duration of the Term (as defined below), must be exercised by CLIENT ORGANIZATION in conformity with all provisions of these Terms of Service, including but not limited to any data storage limitations, acceptable use policies, and other applicable restrictions detailed therein.

Any rights not granted herein are strictly reserved by KEBORMED. CLIENT ORGANIZATION shall not, and shall not permit an END CUSTOMER or third party to:

1. use the free tier of the Prototyping Portal, except in compliance with performance of these Terms of Service;
2. use: (i) any protected health information that is subject to federal regulations issued pursuant to the Health Insurance Portability and Accountability Act ("HIPAA") as codified at 45 C.F.R. parts 160 and 164; (ii) nonpublic personal information; (iii) personal data and (iv) other personally identifiable information (“Sensitive Data”) on the Platform. For guidance on how to de-identify personal health information so that it is no longer personal health information for purposes of the HIPAA Privacy Rule, see https://www.hhs.gov/hipaa/for-professionals/privacy/special-topics/de-identification/index.html;
3. use the free tier of the Prototyping Portal other than to develop Prototypes for CLIENT ORGANIZATION or END CUSTOMERS of CLIENT ORGANIZATION;
4. use the free tier of the Prototyping Portal outside the United States or enter any data in the Platform generated outside the United States.
5. use the free tier of the Prototyping Portal to make any medical or clinical decisions;
6. use the free tier of the Prototyping Portal to control device parameters or the delivery of care in any way;
7. Use the free tier of the Prototyping Portal in a clinical study or use any data generated by using the free tier of the Prototyping Portal as evidence supporting an application or submission to the FDA or any other regulatory authority for the approval of a medical device or pharmaceutical; provided, however, that CLIENT ORGANIZATION or an END CUSTOMER of CLIENT ORGANIZATION may use data generated by using the free tier of the Prototyping Portal to support an application for a grant from a governmental or non-profit organization.
8. enter any information obtained from a human being into the free tier of the Prototyping Portal without obtaining any informed consent required under applicable law;
9. reverse engineer, disassemble, decompile, decode or otherwise attempt to derive or gain access to the source code of anything related to the Platform, or induce or assist any person to do so; or bypass, breach or disable any security device, copy control or digital rights management tool, or other protection, used by the Platform, or induce or assist any person to do so;
10. re-license or sublicense, lease, loan or otherwise distribute use of the Platform to any third party;
11. remove, modify or obscure any copyright, trademark or other proprietary notices contained in the Platform;
12. fraudulently obtain access to the free tier of the Prototyping Portal by impersonating another individual, entity, or otherwise presenting false information; or
13. share, distribute, or otherwise provide their credentials or access rights to any individual or entity not expressly registered and authorized to use the services under these Terms of Use.

Any violation of this provision may result in immediate termination of access and any other remedies available to KEBORMED under applicable law.

KEBORMED shall retain ownership of all intellectual property rights associated with the Platform, all ancillary documentation and technology associated therewith, and any enhancements or modifications thereof. CLIENT ORGANIZATION shall not use the trademarks or trade names of KEBORMED without express consent.

KEBORMED expressly reserves the right to monitor and audit CLIENT ORGANIZATION, along with any of its authorized users, with respect to their usage of the Platform. Such monitoring and auditing shall be conducted for purposes including, but not limited to, ensuring compliance with the terms set forth in these Terms of Service. KEBORMED may conduct these audits directly or may engage a duly authorized third party to do so.

In order to use the Platform, CLIENT ORGANIZATION must register by agreeing to these Terms of Service and signing into the Super Admin or System Admin Accounts created for CLIENT ORGANIZATION by KEBORMED. Super Admin and System Admin Users will also be allowed to create multiple User accounts on their own to access the dedicated instance deployed by KEBORMED for CLIENT ORGANIZATION:

• other super admin accounts for the general management of the System Admin Portal (as defined below)(the “Super Admin Accounts”);
• other system administrator accounts (the "System Admin Accounts") for designated administrators (the "System Admin Users") for business management of the System Admin Portal;
• Customer Support accounts to provide customer support to tenant users (the “Customer Support Users”).

The System Admin User can also access the administrative portal of the free tier of the Prototyping Portal (“the System Admin Portal”) to create a tenant organization representing the END CUSTOMER. When a tenant organization is created, an administrative user for the tenant organization (“Tenant Admin”) who can access the tenant administrative portal (“Tenant Admin Portal”) is also created automatically. The Tenant Admin user can access the Tenant Admin Portal to create other Tenant Admin users, Test Physician users (as defined below), and Test Patient users (as defined below). A Test Physician can access the HCP portal of the free tier of the Prototyping Portal on the dedicated instance deployed by KEBORMED for CLIENT ORGANIZATION, a separate portal designed for test physician user access (“HCP Portal”).

The CLIENT ORGANIZATION Account is subject to the following limitations:

If CLIENT ORGANIZATION desires to exceed the limits listed in the table above, CLIENT ORGANIZATION must enter into a separate agreement with KEBORMED.

A “Test Patient” is a person designated to play the role of a test patient for demonstration purposes. A Test Patient must be established under a fictitious name. No PHI or information which could be used to identify an actual person may be entered in the free tier of the Prototyping Portal. A Test Patient may enter actual information into the free tier of the Prototyping Portal (such as information from a sensor attached to the Test Patient); provided, however, that the information must meet the de-identification requirements of the HIPAA Privacy Rule and may be used for demonstration purposes only and not for the purpose of treating or diagnosing a disease or making any clinical decisions. CLIENT ORGANIZATION shall be responsible for obtaining any informed consent required under applicable law. A “Test Physician” is a person designated to play the role of a healthcare provider for demonstration purposes. A Test Physician is not required to be a physician or a licensed healthcare provider. A Test Physician may use information entered in the free tier of the Prototyping Portal solely for demonstration purposes and may not offer medical advice or make any clinical determinations based upon information entered in the free tier of the Prototyping Portal.

KEBORMED employs and upholds industry standard safeguards and controls to ward off, detect, and rectify any unauthorized entry, access, or utilization of the Platform. CLIENT ORGANIZATION recognizes and concurs that, despite these security precautions, such measures may not entirely block unauthorized electronic intruders from accessing the Platform via the Internet or other electronic means. Apart from maintaining safeguards aligned with industry standards, which aim to obstruct unauthorized electronic intrusion, KEBORMED shall not bear liability and expressly renounces responsibility to CLIENT ORGANIZATION concerning any actions undertaken by an unauthorized electronic intruder.

Occasionally, KEBORMED will need to conduct maintenance on its system, including routine tasks to ensure the ongoing functionality of the Platform, as well as system upgrades, updates, or enhancements. KEBORMED will make commercially reasonable efforts to carry out this maintenance at times that minimize the impact of any system downtime on the CLIENT ORGANIZATION. When possible, KEBORMED will notify CLIENT ORGANIZATION in advance of scheduled maintenance by either posting a message on its website or emailing the designated Administrator with details of the maintenance schedule and expected duration.

In conformity with, and supplementary to, the obligations articulated in these Terms of Service, CLIENT ORGANIZATION shall adhere to the following responsibilities:

1. Assume full responsibility for the operation, support, and maintenance of CLIENT ORGANIZATION's necessary systems, encompassing both hardware and software, requisite for accessing the free tier of the Prototyping Portal;
2. Procure and sustain the requisite communication platforms, inclusive of high-speed Internet connections, to ensure seamless connectivity between the CLIENT ORGANIZATION’s systems and those of KEBORMED;
3. Methodically assign, document, and regulate the issuance and utilization of all authorized users;
4. Be responsible for maintaining the confidentiality and security of all login information, credentials, and other security-related aspects of their Account. CLIENT ORGANIZATION shall employ reasonable care, diligence, and best practices to prevent unauthorized or fraudulent access to their Account, and shall promptly notify KEBORMED of any known or suspected unauthorized use or breach of security;
5. Utilize the free tier of the Prototyping Portal exclusively in harmony with the terms delineated in these Terms of Service; and
6. Adhere scrupulously to all pertinent legal and regulatory mandates, as well as KEBORMED's stipulated policies with regard to use of the Platform, and KEBORMED’S Acceptable Use Policy included in Exhibit A of these Terms of Service.

KEBORMED shall extend access to the CLIENT ORGANIZATION to the free tier of the Prototyping Portal at no charge. KEBORMED shall grant such access subject to, and in full compliance with, the conditions, limitations, and qualifications expressly set forth in these Terms of Service.

KEBORMED’s Privacy Policy (available Privacy Policy) applies to the collection, use and disclosure of any personal information CLIENT ORGANIZATION may provide to KEBORMED in the process of registering and using an Account. The parties shall comply with any laws and regulations pertaining to the privacy protection of personal information. Each party shall reasonably cooperate with the other party's specific requests as necessary to facilitate such party's compliance with any applicable privacy laws and regulations.

CLIENT ORGANIZATION shall bear sole responsibility for any and all data submitted or transferred to KEBORMED or collected by KEBORMED on behalf of CLIENT ORGANIZATION pursuant to these Terms of Service, including personal information of CLIENT ORGANIZATION’s personnel who create Accounts on the Platform ("CLIENT ORGANIZATION Data").

CLIENT ORGANIZATION acknowledges that KEBORMED strictly prohibits use of any Sensitive Data on the free tier of the Prototyping Portal and agrees to only use fictitious data or data which has been de-identified in accordance with the HIPAA Privacy Rule.

CLIENT ORGANIZATION hereby represents and warrants that it will process and transfer all CLIENT ORGANIZATION Data to KEBORMED in compliance with applicable data privacy laws.

CLIENT ORGANIZATION shall not enter data originating from outside the United States in the free tier of the Prototyping Portal.

CLIENT ORGANIZATION acknowledges that compliance with these provisions is essential for KEBORMED to meet its obligations under these Terms of Service. Any suspected or known violations of this section by CLIENT ORGANIZATION must be reported to KEBORMED immediately, with full cooperation in rectifying the issue.

To the extent, if any, that data entered in the Platform is deemed to be personal information for purposes of the California Consumer Privacy Act, both parties agree that CLIENT ORGANIZATION acts as the data controller, and KEBORMED acts as the data processor. KEBORMED shall process CLIENT ORGANIZATION Data on behalf of CLIENT ORGANIZATION, in alignment with the KEBORMED Privacy Policy. KEBORMED reserves the right to engage sub-processors for the purpose of processing CLIENT ORGANIZATION Data on behalf of KEBORMED, consistent with applicable laws and regulations.

To the extent, if any, that rights are granted to data subjects under applicable privacy laws, KEBORMED will exert commercially reasonable efforts to assist CLIENT ORGANIZATION in meeting its obligations to address requests from data subjects seeking to exercise their rights under applicable data privacy laws concerning their information within CLIENT ORGANIZATION Data. This assistance will be provided to the extent that it is legally permissible and technically feasible under the given circumstances.

CLIENT ORGANIZATION or END CUSTOMERS of CLIENT ORGANIZATION shall own all data which CLIENT ORGANIZATION inputs into the Platform.

CLIENT ORGANIZATION grants KEBORMED a non-exclusive, transferable, assignable, irrevocable, royalty-free, worldwide, perpetual license to create aggregated and anonymized CLIENT ORGANIZATION Data ("Aggregated Data") and to use such Aggregated Data, and all modifications thereto and derivatives thereof, for monitoring the performance of the free tier of the Prototyping Portal; and making improvements and developing new functionality for the Prototyping Portal.

In the course carrying out the obligations of KEBORMED and CLIENT ORGANIZATION contemplated by these Terms of Service (the "Business Relationship"), it is anticipated that either KEBORMED or CLIENT ORGANIZATION may disclose or deliver to the other party certain of the disclosing party's Confidential Information (as defined below) for the purpose of enabling the recipient to engage in the Business Relationship. The provisions of this Section 7 have been entered into in order to assure the confidentiality of each party's Confidential Information in accordance with the terms of these Terms of Service. As used in these Terms of Service, the party disclosing Confidential Information is referred to as the "Disclosing Party" and the party receiving such Confidential Information is referred to as the "Recipient."

Notwithstanding the previous paragraph, CLIENT ORGANIZATION shall not disclose any confidential information of END CUSTOMERS of CLIENT ORGANIZATION unless agreed to in writing by KEBORMED.

As used in these Terms of Service, the term "Confidential Information" shall mean all trade secrets and confidential or proprietary information of whatever type and for whatever purpose, including but not limited to business and technical information and non-public corporate, financial, legal and employee information, corporate plans, strategies, forecasts and competitive analysis, customer, vendor and supplier names and prospective customer, vendor and supplier names, investor information, and information concerning patents, trade secrets or inventions of the Disclosing Party, and all such information that the Disclosing Party discloses to the Recipient which the Recipient reasonably should expect to be or contain such trade secret and confidential or proprietary information of the Disclosing Party. The term "Confidential Information" shall also include memoranda, notes, reports, documents, and other media containing Confidential Information, as well as any copies and extracts of Confidential Information and any studies and data containing Confidential Information prepared by or for the benefit of the Recipient. Such information or material will be deemed Confidential Information provided it: (a) is not, at the time of disclosure in the public domain; (b) does not come into the public domain after disclosure, except through the failure of the Recipient to comply with the terms hereof; (c) was already in the possession of or lawfully known to the Recipient prior to its disclosure as demonstrated by the Recipient; (d) is not independently developed by Recipient without reference to the Confidential Information; (e) has not been obtained lawfully by the Recipient from an independent third party having an unrestricted right to disclose such information as demonstrated by the Recipient; or (f) is required to be disclosed in response to a valid order of a court or other governmental body of the United States or any political subdivision thereof, and provided, in such case, that the Recipient shall promptly notify the Disclosing Party of such order prior to making any such disclosure and Recipient shall have made a reasonable effort to obtain a protective order requiring that the Confidential Information so disclosed be used only for purposes for which the order was issued.

The Recipient shall hold in strict confidence, and shall not disclose to any person either inside or outside of its organization (if the Recipient is an organization and except as otherwise provided for in these Terms of Service), any Confidential Information. The Recipient shall use such Confidential Information only for the purposes contemplated by these Terms of Service and shall not use or exploit such Confidential Information, either directly or indirectly, for its own benefit, for the benefit of another, or to compete with the Disclosing Party without the prior written consent of the Disclosing Party. The Recipient shall disclose Confidential Information received by it under these Terms of Service only to persons who have a need to know such Confidential Information in order for the Recipient to engage in the Business Relationship between KEBORMED and CLIENT ORGANIZATION, and who are bound with respect to the Confidential Information by the confidentiality, non-use, and non-disclosure obligations of these Terms of Use or a similar agreement providing not less than the same level of protection with respect to the Confidential Information (collectively, "Representatives").

The Disclosing Party is and shall remain the exclusive owner of its Confidential Information, including, without limitation, all patent, copyright, trade secret, trademark, domain name and other intellectual property rights therein. No license or conveyance of any such rights to the Recipient is granted or implied under these Terms of Service.

Notwithstanding the other provisions of this Section 7, CLIENT ORGANIZATION may at its sole discretion and option provide KEBORMED with input, comments or suggestions regarding KEBORMED’s business, technology or Platform such as feedback on current and proposed features and functionality of the KEBORMED Platform (“Feedback”), in which instance KEBORMED may in its sole discretion retain and freely use, incorporate in the Platform and/or or otherwise exploit such Feedback without restriction, compensation or attribution to the source of the Feedback.

The Parties' obligations with respect to the treatment of all Confidential Information shall survive for a period of five (5) years from the date of disclosure.

The provisions of these Terms of Service are necessary for the protection of the business of the Disclosing Party and are considered by the Recipient to be reasonable for such purpose. The Recipient agrees that any breach of these Terms of Service may cause the Disclosing Party substantial and irreparable damages and, therefore, in the event of any such breach, in addition to other remedies, which may be available, the Disclosing Party shall have the right to seek specific performance and other injunctive and equitable relief. The Recipient shall notify the Disclosing party immediately, and cooperate with the Disclosing Party at the Disclosing Party's reasonable request, upon the Recipient's discovery of any loss or compromise of any of the Confidential Information.

THE FREE TIER OF THE PROTOTYPING PORTAL IS PROVIDED “AS IS” AND WITH NO WARRANTY OF ANY KIND EXPRESS OR IMPLIED AND WITHOUT ANY REGULATORY SUPPORT. KEBORMED EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. KEBORMED DOES NOT WARRANT THAT USE OF THE FREE TIER OF THE PROTOTYPING PORTAL WILL BE ERROR FREE OR UNINTERUPTED.

CLIENT ORGANIZATION agrees to indemnify, defend and hold harmless KEBORMED and its representatives from and against any third-party claims, liabilities, damages, losses and expenses, including, without limitation, reasonable legal fees, arising out of or in connection with any of the following acts or omissions by CLIENT ORGANIZATION:

1. misuse of the Platform or use of the Platform for a purpose that is not permitted;
2. use of Sensitive Data on the free tier of the Prototyping Portal;
3. use of the free tier of the Prototyping Portal outside of the United States;
4. use of the free tier of the Prototyping Portal to make any medical or clinical decisions;
5. use of the free tier of the Prototyping Portal in a clinical study or use of any data generated by using the free tier of the Prototyping Portal as evidence supporting an application or submission to the FDA or any other regulatory authority for the approval of a medical device or pharmaceutical product;
6. fraud, willful misconduct, or gross negligence;
7. violation of legal and regulatory requirements applicable to CLIENT ORGANIZATION;
8. breach of these Terms of Service; or
9. any violation of the rights of another person or entity, including without limitation, any intellectual property rights.

CLIENT ORGANIZATION ACKNOWLEDGES THAT THE FREE TIER OF THE PROTOTYPING PORTAL IS PROVIDED FREE OF CHARGE “AS IS” WITHOUT ANY EXPRESS OR IMPLIED WARRANTY OF ANY KIND, INCLUDING WARRANTIES OF MERCHANTABILITY OF FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT SHALL KEBORMED BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, BUSINESS INTERRUPTION, OR LOSS OF INFORMATION) ARISING OUT OF THE USE OF OR INABILITY TO USE THE FREE TIER OF THE PROTOTYPING PORTAL, EVEN IF KEBORMED HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

These Terms of Service shall commence on the Effective Date and will remain in full force and effect until and unless terminated as set forth herein ("Term").

Subject to Section 11.3, KEBORMED may terminate these Terms of Service:

1. or without cause by providing CLIENT ORGANIZATION with no less than thirty (30) days' notice;
2. if CLIENT ORGANIZATION does not respond within thirty (30) days to a request from KEBORMED to affirm the continuation of the term of this Agreement (for example in the event that CLIENT ORGANIZATION has ceased using the free tier of the Prototyping Portal or KEBORMED desires the CLIENT ORGANIZATION to affirm its agreement to revisions to these Terms of Service); or
3. immediately upon notice if CLIENT ORGANIZATION materially breaches any of its obligations hereunder and fails to cure such breach within seven (7) days following written notice.

Notwithstanding the foregoing, KEBORMED may suspend or terminate these Terms of Service and the rights granted hereunder, without prejudice to enforcement of any other legal right or remedy: (a) immediately if CLIENT ORGANIZATION infringes the restrictions on use in Section 3.2, or any intellectual property rights of KEBORMED; or (b) if KEBORMED has reason to believe that CLIENT ORGANIZATION is using the Platform for any improper or unlawful purpose, or that CLIENT ORGANIZATIONS’s use of the Platform violates any Platform policy, or applicable laws or regulations.

Upon termination of these Terms of Service, subject to Section 13.11:

1. all rights of CLIENT ORGANIZATION under these Terms of Service will terminate; and
2. KEBORMED's obligations relating to the Platform will terminate.

CLIENT ORGANIZATIONS and the Users on its dedicated instance of the Prototyping Portal are encouraged to actively utilize their accounts to benefit from the features of the free tier of the Prototyping Portal. To ensure the efficient use of our resources and maintain the quality of service for all users:

1. Accounts that remain inactive, i.e., have not been logged into or have not had any recorded activity, for a consecutive period of three (3) months will be considered dormant.
2. Dormant accounts will receive an email notification to the registered email address, notifying the account holder of the impending deactivation. The account holder will have thirty (30) days from the date of the notification to log in and reactivate their account.
3. If no action is taken within the provided timeframe, the account will be deactivated. Once deactivated, the account data, settings, and any other related information may be deleted and may not be recoverable.
4. Account holders wishing to reactivate a deactivated account may be required to sign up again and may not have access to their previous data.

All notices to KEBORMED shall be sent to the coordinates listed here:
KeborMed Inc.
815 Superior Ave. East
Suite 1618
Cleveland, Ohio 44114
kinetiqx@kebormed.com

All notices to CLIENT ORGANIZATION shall be given by e-mail to the email address provided by CLIENT ORGANIZATION upon creation of the initial Super Admin and System Admin accounts by KEBORMED.

KEBORMED and CLIENT ORGANIZATION may refer to their relationship for marketing and promotional activities. However, any independent press releases or announcements to the general public concerning this relationship specifically must not be made without obtaining the mutual, written consent of both KEBOMED and CLIENT ORGANIZATION.

In no event shall KEBORMED be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services; it being understood that KEBORMED shall use reasonable efforts which are consistent with accepted practices in the industry to resume performance as soon as practicable under the circumstances.

If any provision of these Terms of Service is deemed illegal, invalid or unenforceable, the parties will endeavor to replace it by another provision that will as closely as possible reflect their original intention. The validity, legality, and enforceability of the remaining provisions will not in any way be affected or impaired.

Each party shall take such action (including the execution, acknowledgement and delivery of documents) as may reasonably be requested by the other party for the implementation or continuing performance of these Terms of Service.

The parties are independent contractors and no other relationship is intended. Nothing herein shall be deemed to constitute either party as an agent, representative or employee of the other party, or both parties as joint venturers or partners for any purpose. Neither party shall act in a manner that expresses or implies a relationship other than that of independent contractor. Each party shall act solely as an independent contractor and shall not be responsible for the acts or omissions of the other party. Neither party will have the authority or right to represent nor obligate the other party in any way except as expressly authorized by these Terms of Use.

The laws of the State of Delaware, USA shall govern the validity, performance and enforcement of these Terms of Service without regard for its conflicts of laws principles, and excluding the Uniform Computer Information Transaction Act (UCIT A) as may be enacted, amended, or modified by the various states.

A waiver by either party of a breach or default of any provision of these Terms of Service by the other party must be in writing to be effective and shall not be interpreted as a waiver of any subsequent breach of the same or any other provision. Additionally, any delay or omission by either party to exercise or avail itself of any right, power, or privilege shall not operate as a waiver of such right, power, or privilege.

CLIENT ORGANIZATION may not assign these Terms of Service, in whole or in part, by operation of law or otherwise without KEBORMED's prior written consent, and any such purported assignment shall be void.

CLIENT ORGANIZATION acknowledges that its breach of any confidentiality or proprietary rights provision of these Terms of Service may cause KEBORMED irreparable damage, which monetary damages would be inadequate to remedy. Consequently, KEBORMED may seek injunctive or other equitable relief to enforce these Terms of Service and prevent any and all acts in violation of those provisions. The exercise by either party of any remedy under these Terms of Service will be without prejudice to its other remedies under these Terms of Service or otherwise.

Sections 7, 8, 9, 10 and 13 shall survive the expiration or termination of these Terms of Service.

These Terms of Service are effective as of October 2023.