Exo Works Terms of Use

IN THE ABSENCE OF A DIRECT AGREEMENT BETWEEN YOU AND EXO, THE FOLLOWING TERMS OF USE SHALL APPLY.

EXO IMAGING, INC. (“EXO”) TERMS AND CONDITIONS OF USE

PLEASE READ CAREFULLY THESE TERMS AND CONDITIONS OF USE (“AGREEMENT”). THIS AGREEMENT CONTAINS ALL OF YOUR RIGHTS AND OBLIGATIONS AS A CUSTOMER AND USER OF EXO PRODUCTS AS DEFINED HEREIN. BY EITHER ACCEPTING THIS AGREEMENT OR OTHERWISE COMMENCING USE OF EXO PRODUCTS, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND, AND AGREE TO BE LEGALLY BOUND BY AND BECOME A PARTY TO THIS AGREEMENT, INCLUDING WITHOUT LIMITATION EXO’S DATA PRIVACY AND PROCESSING ADDENDUM SET FORTH HEREIN. THIS AGREEMENT IS EFFECTIVE AS OF THE DATE THAT YOU ACCEPT OR OTHERWISE COMMENCE USE OF EXO PRODUCTS (THE “EFFECTIVE DATE”). IF YOU DO NOT AGREE TO BE LEGALLY BOUND BY AND BECOME A PARTY TO THIS AGREEMENT, DO NOT COMMENCE USE OF EXO PRODUCTS.]

THIS AGREEMENT IS IN LIEU OF, AND REPLACES ANY AND ALL TERMS AND CONDITIONS SET FORTH IN ANY DOCUMENTS ISSUED BY CUSTOMER, INCLUDING, WITHOUT LIMITATION, PURCHASE ORDERS AND SPECIFICATIONS. ANY ADDITIONAL, DIFFERENT, OR CONFLICTING TERMS AND CONDITIONS ON ANY SUCH DOCUMENT ISSUED BY CUSTOMER AT ANY TIME ARE HEREBY OBJECTED TO BY EXO, AND ANY SUCH DOCUMENT SHALL BE WHOLLY INAPPLICABLE TO ANY SALE MADE HEREUNDER AND SHALL NOT BE BINDING IN ANY WAY ON EXO.

For purposes of this Agreement, Exo Imaging, Inc., will be referred to as “Exo” and you, or the entity on whose behalf you are acting, will be referred to as “Customer” or “You.” Exo and Customer may be referred to individually as a “Party,” and collectively as “Parties.” 

RECITALS

A. Exo designs portable ultrasound imaging probes (“Exo Devices”) and workflow software, including web-based services made available by Exo on a subscription basis (“Exo Works Subscription Services”) (collectively, “Exo Products”) for viewing, analyzing, archiving, and billing ultrasound images for various medical diagnostic purposes. Exo is not a medical or other health care provider.

B. Customer is a licensed physician or other medical practitioner in good standing and trained to use ultrasound, or is purchasing on behalf of a licensed physician or medical practitioner in good standing who is trained to use ultrasound.

C. Exo desires to sell Exo Devices and provide Exo Works Subscription Services to Customer and Customer desires to purchase such Exo Devices and/or subscribe to Exo Works Subscription Services.

D. In consideration of the mutual promises contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:

1. Exo Devices (If Applicable)

a. Exo’s ultrasound imaging probes (“Exo Devices”) are used by Customer and Customer-authorized, ultrasound imaging-qualified end users (“End Users”) to conduct ultrasound imaging and, when connected to a Customer- or an End User-supplied display device (such as smartphone or tablet), enables the ability to view and process an ultrasound image. Access and use of Exo Devices is restricted to Customer and its designated End Users only.

b. Unless otherwise specified, Exo will package and pack all Exo Devices in a manner that is (i) in accordance with good commercial practice, and (ii) acceptable to common carriers for shipment for the particular goods. Shipping dates, delivery dates and Exo Device quantity availability as described on the Order Confirmation or any other document are estimates only and are based upon prompt receipt from Customer of all necessary information. Exo is not liable for any failure to deliver where or when estimated. If, for whatever reason, Exo experiences shortages of its Exo Devices, it may allocate Exo Devices among its customers at its discretion. Unless otherwise agreed in writing by the Parties, all sales are made EXW Exo’s facility per INCOTERMS 2010. Exo will use reasonable discretion for selection of shipment mode but will consider Customer’s request for shipping mode in good faith including any related change in pricing due to Customer’s desired shipment mode. Exo shall not be liable for any delays, loss or damage in transit. Exo's liability for delivery shall cease and title and all risk of loss or damage shall pass to Customer upon delivery to carrier, regardless of any provision for payment of freight or insurance or the form of shipping documents. Exo Devices held by Exo for Customer shall be at Customer’s risk and expense. Claims against Exo for shortages shall be deemed waived if not made within five business days after receipt of the shipment.

c. No orders may be cancelled or modified in anyway without Exo’s prior written consent to each cancellation or change. Customer shall be deemed to accept the Exo Devices upon receipt unless it notifies Exo in writing of any Nonconforming Products (as defined below) within five (5) business days of receipt and furnishes such written evidence or other documentation as reasonably required by Exo. “Nonconforming Product” means that the Exo Device shipped is different than identified in on the Order Confirmation. No delivered Exo Device may be returned by Customer for any or no reason without the prior written approval of Exo. All Exo Devices must be returned to Exo within 30 days of Customer receiving such Exo’s approval and solely in accordance with Exo’s Return Materials Authorization Policy (the “RMA Policy”). All returns shall be in the original packaging or equivalent. Any Exo Device returned to Exo without prior authorization for its return or proper packaging may be refused. If Customer timely notifies Exo of and timely returns a Nonconforming Product, Exo shall, in its sole discretion, (i) replace such Nonconforming Product with conforming Exo Device, or (ii) credit or refund the price for such Nonconforming Product, together with any reasonable shipping and handling expenses incurred by Customer in connection therewith. If Exo elects to replace the Nonconforming Product, the replacement will be shipped EXW Exo’s facility per INCOTERMS 2010 and risk of loss shall transfer to Customer upon delivery to carrier. Customer acknowledges and agrees that the remedies set forth in this Section are Customer’s exclusive remedies for the delivery of Nonconforming Products.

2. Exo Software and Subscription Services

a. Exo Device Embedded Software

i. Any software (including firmware) included or embedded in, or provided in connection with, an Exo Device, is subject to license and not sale. All such software is protected by copyright law and international treaty provisions, and all right, title and interest in or to such software are expressly reserved to Exo and its licensors. Subject to Customer’s ongoing compliance with the terms and conditions of this Agreement (including timely payment of all applicable fees), Exo grants to Customer a non-exclusive, non-transferable license to use such software solely in the authorized operation of the Exo Device and in accordance with the documentation applicable to the Exo Device for which it is provided.

ii. Customer may not (and may not permit anyone else to) (i) remove or use such software separately from the Exo Device in which it is embedded or for which it is provided; or (ii) port, reverse compile, decompile, disassemble, or reverse engineer such software. All proprietary notices incorporated in or affixed to the software shall be retained by Customer on all copies thereof and shall not be altered, removed, or obliterated.

b. Exo Works Subscription Services

i. Customer acknowledges that the use of all features of Exo Devices requires access and use of Exo’s web-based services made available by Exo on a subscription basis (“Exo Works Subscription Services”). Exo Works Subscription Services are available also as a standalone, web-based service made available by Exo on a subscription basis for use in conjunction with images collected by third party ultrasound imaging probes.

ii. Exo Works Subscription Services are subject to license and not sale. Exo Works Subscription Services are protected by copyright law and international treaty provisions, and all right, title and interest in or to such Exo Works Subscription Services are expressly reserved to Exo and its licensors. Subject to Customer’s ongoing compliance with the terms and conditions of this Agreement (including timely payment of all applicable fees), Exo grants Customer a non-exclusive, non-transferable right, during the subscription term set forth on the Order Confirmation (“Subscription Term”) to access and use the Exo Works Subscription Services set forth on the Order Confirmation.

iii. Customer acknowledges and agrees that Customer shall have no access to the Exo Works Subscription Services following the Subscription Term, except for limited access provided for a period of fifteen (15) days to Customer’s designated administrative end users solely for purposes of permitting Customer to retrieve any of its data or images stored on the Exo Works Subscription Services. Customer understands that Exo may irrevocably delete any such data or images after the end of such fifteen (15) days period.

iv. Customer shall not, directly or indirectly, and shall not authorize any person, to the maximum extent permitted by applicable law, to decompile, disassemble, reverse engineer or attempt to reconstruct or discover any elements of; translate, adapt, or modify; sell, sublicense, transfer any rights in, use for the benefit of, or allow access to, unauthorized persons to; transmit unlawful, infringing or harmful data or code to or from; or otherwise use except as expressly permitted hereunder; the Exo Works Subscription Services (including without limitation all technology constituting or used to provide the Exo Works Subscription Services).

v. Except for the services set forth on the Order Confirmation, Exo is not responsible for, and Customer agrees that it has no expectation of receiving, any training, implementation, integration or similar product related services, unless the Parties have agreed otherwise in a separate written agreement.

vi. If the Parties have entered into a separate support agreement with respect to provision of technical support by Exo, then that agreement shall apply. If no such agreement has been entered into, then Exo agrees to respond to Customer’s basic technical support inquiries via email or phone (but not onsite support), and provide Customer reasonable technical support, maintenance, and generally available updates.

vii. Exo reserves the right to modify or delete any features of the Exo Works Subscription Services in any manner, without advance notice to the Customer, that does not have an adverse impact on the Exo Works Subscription Service, or may be necessary to meet any applicable legal, regulatory, or industry-standard requirements or demands. Exo shall employ best efforts to notify Customer as soon as practicable in advance of changes to the Exo Works Subscription Services that have an adverse impact on the Exo Works Subscription Services.

viii. (For Exo Works Enterprise Version Only): Certain Exo Works Subscription Services, including Exo Works Enterprise, may be utilized independently of Exo Devices. With respect to Exo Works Enterprise, the following additional terms and conditions shall apply. In the event of a conflict between this subsection and any other subsection in this Agreement, this subsection shall apply: (i) Exo will deliver all Exo Works Enterprise software, documentation and updates to Customer by electronic transfer or download; (ii) Exo will provide Maintenance as defined and more fully set forth in Addendum A to this Agreement (“Terms and Conditions of Maintenance”); (iii) Maintenance will be performed in a professional manner by qualified personnel and having the certifications, skills and qualifications necessary to perform such services in a timely, competent, and professional manner and in accordance generally accepted industry standards.

3. Prices and Taxes

a. Except as otherwise specified by Exo in writing, prices for Exo Devices sold and Exo Works Subscription Services provided will be as set forth on the Order Confirmation document, or, if no such prices set forth on the Order Confirmation then as set forth in the last written quotation signed by Exo and provided to Customer. Listed prices may include, without limitation, one-time amounts (such as purchase price of Exo Device(s) and fees for installation and integration services (if applicable)), as well as recurring fees (including, without limitation, for subscription to Exo Works Subscription Services). All recurring amounts listed are for the current Subscription Term, and Exo reserves the right to increase fees for subsequent periods. Unless otherwise stated on the face hereof, stated prices do not include any customs duties, sales, use, value added, excise, goods and services, federal, state, local or other similar taxes. All such duties or taxes shall be paid by Customer, or, in lieu thereof, Customer shall provide Exo with an appropriate exemption certificate.

b. Customer is solely responsible for securing, at its own cost, all hardware and all internet access and connectivity required to access and use Exo Devices and Exo Works Subscription Services (including costs relating to transmitting data and images to and from Exo Works Subscription Services). The prices listed on Exo’s quotation or Order Confirmation do not include costs of obtaining and maintaining internet access and connectivity.

4. Payment and Remedies

a. Unless otherwise stated on the Order Confirmation, ALL PAYMENTS SHALL BE MADE IN UNITED STATES DOLLARS WITHIN THIRTY (30) DAYS OF THE DATE OF INVOICE. Notwithstanding the foregoing, if in Exo’s judgment the financial condition of Customer does not justify production or shipment of Exo Devices on the foregoing terms of payment, Exo may require full or partial payment in advance. Exo reserves the right to subject all shipments and provision of services hereunder to credit approval or review by Exo. Customer shall provide such credit information, references, and assurances as are requested by Seller at any time. Any amounts not paid when due shall accrue interest at the rate of 2% per month, or the highest rate allowed by applicable law, whichever is lower. Customer agrees to pay all costs of collection, including costs of litigation and reasonable attorneys’ fees.

b. Customer acknowledges and agrees that Exo may remove Customer’s access to Exo Works Subscription Services in the event any amounts are not paid when due (except that in such event Exo will continue to provide limited access to Exo Works Subscription Services for fifteen (15) days solely for purposes of permitting Customer to retrieve any of its data or images stored on Exo Works Subscription Services).

c. Exo may accept partial payment in an amount less than the full amount of any invoice, but such acceptance shall not constitute a waiver of Exo’s right to collect the balance or accord and satisfaction notwithstanding Exo’s endorsement of a check or other instrument. If Customer has a good faith dispute regarding payment for a particular Exo Device or Exo Works Subscription Services, such dispute shall not entitle Customer to withhold payment to Exo for any other Exo Device or portion of Exo Works Subscription Services.

d. Each individual shipment may be invoiced and paid as a separate and independent transaction. Exo reserves a purchase money security interest in Exo Devices sold to Customer, and in the proceeds thereof, until payment is made in full by Customer, which security interest constitutes a purchase money security interest under the California Uniform Commercial Code Customer will pay all invoiced amounts in full, without any set-off against any amounts allegedly owed by Exo or any of its affiliated companies to Exo.

e. If Customer fails to pay any sum when due, fails to accept any delivery of conforming Exo Device, returns an Exo Device without advance authorization of Exo, or otherwise fails to abide by this Agreement’s terms and conditions, in addition to any other remedies allowed by law, Exo may suspend deliveries while Customer is in breach, or cancel all further deliveries, and Customer shall remain liable for the amounts due, including without limitation the stated price of the Exo Device(s) not accepted or returned without authorization.

f. The dollar value of the discounts or other reductions in price pursuant to this Agreement, if any, and any other items and services not paid for by Customer and received by Customer under this Agreement are “discounts and other reductions in price” under Section 1128B(b)(3)(A) of the Social Security Act (42 U.S.C.§ 1320-a-7b(b)(3)(A)), as amended. It is the intent of the Parties to comply with the Anti-Kickback Law Discount Safe Harbor (42 C.F.R.§ 1001.952(h) as amended). The Discount Safe Harbor requires that certain discounts be reported and or passed on to Federal and State health care programs, such as Medicare and Medicaid. Customer understands and agrees it must properly disclose the discounts or reductions in price, and reflect such discounts or reductions in price in the costs claimed or charges made, under any Federal or State health care program which provides cost or charge-based reimbursement to Customer for the items and services covered by this Agreement. Customer shall be solely responsible for determining whether the savings or discounts it receives must be reported or passed on to payors.

5. Ownership and Reservation of IP Rights

a. Exo owns all right, title and interest in and to:

i. the Exo Works Subscription Services and the technology, software, firmware, hardware, products, processes, algorithms, user interfaces, documentation, user manuals and know-how related to the Exo Works Subscription Services and Exo Devices;

ii. any data and content generated through the use or execution of the Exo Works Subscription Services to the extent such data or content does not include Protected Health Information (“PHI”) as that term is defined in HIPAA;

iii. any and all Exo Confidential Information (as defined below);

iv. Anonymized Data (as defined in the Data Privacy and Processing Addendum);

v.the Exo Devices, subject to Subsection 5(e) (Customer Property), and the technology, software, firmware, hardware, products, processes, algorithms, user interfaces, documentation, user manuals and know-how related to the Exo Devices; and

vi. any and all Intellectual Property Rights (as defined herein) embodied in this Section 5(a)(i)-(v) (collectively, “Exo Property”). “Intellectual Property Rights” shall mean patents, inventions, utility models, trademarks, service marks, trade and service names, copyrights, database rights and design rights (whether or not any of them are registered, and including applications for registration of any of them), rights in know-how, moral rights, trade secrets and rights of confidence and all rights or forms of protection of a similar nature or having similar or equivalent effect to any of them which may exist anywhere in the world.

b. Exo shall own any and all developments, inventions and work product created under any professional services provided by Exo to Customer, including but not limited to training materials, implementation guides and customizations of the Subscription Service.

c. Exo shall have a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into the Exo Works Subscription Services and Exo Devices any suggestions, enhancement requests, recommendations or other feedback provided by Customers and End Users relating to the Exo Works Subscription Services and Exo Devices.

d. Customer shall not use any trade name, trademark, service mark, logo or commercial symbol, or any other proprietary rights of Exo in any manner without Exo’s prior written authorization. Exo may use Customer’s name and logo on the Exo web site and in Exo’s collateral marketing materials, provided that Customer has approved in writing the form of any such use, such approval not to be unreasonably withheld.

e. Customer retains ownership of all data and images it transmits to the Exo Works Subscription Services. Following receipt of Exo Devices and payment of the Exo Device fees pursuant to the terms of this Agreement and the applicable Sale Confirmation, Customer owns all right, title and interest in and to the Exo Devices. Subject to the aforementioned sentence, Customer Data (as defined in the Data Privacy and Processing Addendum) and Exo Devices are, collectively, “Customer Property”.

f. Except as expressly set forth herein, the sale of an Exo Device or Exo Works Subscription Services by Exo does not transfer any of Exo’s Intellectual Property Rights or convey any license, expressly or by implication, estoppel or otherwise, to any of Exo’s intellectual property. No other title, rights or licenses to the Exo Device, Exo software or Exo Works Subscription Services, or any Intellectual Property Rights in, to, or embodied by any of the foregoing are granted under these terms. The rights and licenses granted herein are personal to Customer, and are not transferable to any subsequent purchaser of any Exo Device. All rights not expressly granted to Customer herein are expressly reserved by Exo.

6. System Monitoring

a. Exo expressly reserves the right to monitor any and all use of the Exo Works Subscription Services, including certain performance characteristics of the Exo Device. See Exo Privacy Policy for more details.

b. Exo may gather system data for the purpose of optimizing the Exo Works Subscription Services. This information includes, but is not limited to, data regarding memory usage, connection speed and efficiency, as well as temperature, battery and other Exo Device characteristics.

c. Exo shall have no obligation to monitor Customer Data, but reserves the right to monitor the Exo Works Subscription Services for purposes of verifying compliance with the terms of this Agreement.

7. Customer Responsibilities and Acknowledgements

a. CUSTOMER IS SOLELY RESPONSIBLE FOR ALL ITS (AND ITS END USERS’) CLINICAL AND MEDICAL TREATMENT AND DIAGNOSTIC DECISIONS.

b. CUSTOMER IS SOLELY RESPONSIBLE FOR ALL ITS (AND ITS END USERS’) DECISIONS TO USE EXO DEVICES OR EXO WORKS SUBSCRIPTION SERVICES FOR ANY MEDICAL PROCEDURES OR OTHER PURPOSES.

c. Customer is solely responsible for maintaining the Exo Device (including cleaning and disinfecting) in accordance with all written instructions and labelling, and implementing safety measures to guard against the possibility of injury or damage in the event of a failure or malfunction of an Exo Device.

d. Customer is solely responsible for securing, at its own cost, all hardware and all internet access and connectivity required to access and use Exo Devices and Exo Works Subscription Services (including costs relating to transmitting data and images to and from Exo Works Subscription Services). Customer shall be solely responsible, and under no circumstances will Exo or any of its licensors or suppliers be responsible, for any loss, damage or liability arising out of any Customer equipment, including any delays, inaccuracies, errors, malfunctions, security failures or other incident attributable to Customer equipment.

e. Customer is solely responsible for, and under no circumstances will Exo or any of its licensors or suppliers be responsible, for any loss, damage or liability arising out of any Customer Data, including any mistakes or inaccuracies contained in the Customer Data, the use (or misuse or misappropriation) or subject matter of the Customer Data, or Customer Data while it resides in or is stored on Customer Equipment.

f. Customer is solely responsible for uploading Customer Data for storage in accordance with the Exo documentation and for any loss of Customer Data resulting from Customer’s failure to so upload.

g. Customer shall use Exo Products only for clinical diagnostic purposes in the diagnosis or treatment of a disease or condition, and not for any other purposes (including entertainment or recreational purposes).

h. Customer agrees and acknowledges that Exo cannot and does not provide medical advice. Exo has not recommended and does not recommend that Exo Products, whether hardware or software, be used for any particular purpose.

i. Customer agrees and acknowledges that all semiconductor products experience failure rates, which may vary according to use conditions and other circumstances.

j. Customer further agrees and acknowledges that it will:

i. establish and maintain industry standard information, physical and administrative security protocols, including virus protection, for all Customer equipment;

ii. prevent unauthorized access to Exo Works Subscription Service and Exo Devices and interception of transmission of Customer Data from the Exo Device to any connected Customer equipment.

k. Customer shall not, and shall not allow or assist any End User or other entity to:

i. use the Exo Device in a manner inconsistent with its labelling;

ii. rent, lease, sublicense, assign, distribute, transfer, copy, reproduce, download, display, modify or timeshare or otherwise make Exo Works Subscription Services or any portion thereof available to any third party other than End Users as contemplated by this Agreement and the applicable Order Confirmation;

iii. use the Exo Devices or Exo Works Subscription Services to send or store infringing or unlawful material or material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs;

iv. modify, copy or create derivative works based on Exo Products, provided that Customer may print, annotate or export Customer Data, but only to the extent expressly permitted in the Exo documentation and only for purposes of providing medical care to the individual patient associated with such Customer Data;

v. translate, reverse engineer, decompile, disassemble, or otherwise attempt to discover any source code or underlying ideas of any Exo Products, or modify any Exo Products, except to the extent (but only to such extent) that applicable law prohibits such restrictions;

vi. access or use the Exo Products to develop or create competing products or services or copy any features or user interface of the Exo Works Subscription Services or otherwise use such Exo Works Subscription Services as a component of or a base for products or services prepared for commercial sale, sublicense, lease, access or distribution;

vii. attempt to repair an Exo Device;

viii. disable any security devices or codes on an Exo Device or Exo Works Subscription Services;

ix. alter, remove, or obscure any proprietary rights notices on Exo Products or related documentation;

x. use the Exo Works Subscription Service, for purposes of benchmarking or other comparative analysis intended for publication without Exo’s prior written consent.

8. Warranties and Disclaimers

a. Exo warrants that:

i. for a period of one year from delivery the delivered Exo Devices will (i) be free from material defects in workmanship, material, and manufacture; (ii) materially conform to Exo’s specifications; and (iii) comply with all applicable laws and regulations; and

ii. during the Subscription Period (i) the Exo Works Subscription Services and the software embedded in Exo Devices will materially conform to Exo’s specifications, and (ii) the Exo Works Subscription Services will be operational for 95% of the time.

b. EXCEPT FOR THE FOREGOING WARRANTIES, EXO MAKES NO WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS, OR OTHER WARRANTIES THAT MIGHT ARISE FROM COURSE OF DEALING OR CUSTOM OF TRADE.

c. All warranties cover only defects arising under normal use in compliance with Exo’s specifications and do not include malfunctions or failures resulting from misuse, abuse, neglect, alteration, modification, or improper installation, repairs by anyone other than Exo, or failure to implement or adhere to Exo’s instructions or fixes for avoiding the defect. All warranties are subject to Customer’s timely payment of purchase price or subscription fee with respect to the defective Exo product. All warranties are provided to Customer only, and not to any third party, and Customer may not pass through any Exo warranty to any third party. No agent, employee or representative of Exo has any authority to bind Exo to any affirmation, representation or warranty relating the Exo products other than as specifically provided herein. The warranties set forth in this Section allocate risks of Exo product defect between Customer and Exo, and both Customer and Exo acknowledge and agree that the price of the Exo products reflects such risk allocation.

d. The foregoing warranties are provided subject to the following conditions: (1) if Exo Device becomes defective during the warranty period, Customer shall notify Exo promptly in writing of any claims; (2) if Exo advises Customer to return Exo Device for repair or replacement, Customer will follow Exo’s instructions with respect to the return of such Exo Device, including without limitation the RMA Policy; (3) if Exo Device alleged by Customer to be defective or returned to Exo for repair as provided in this Section is either (i) not under warranty, or (ii) determined not to be defective, or (iii) defective due to any cause or condition not covered under the warranty provided herein, Customer agrees to reimburse Exo for all reasonable expenses incurred in the shipping, handling, and inspection of such Exo Device; (4) Exo Devices will be accepted by Exo for warranty claim verification only when returned by Customer in a condition which allows for suitable testing by Exo; (5) Exo will bear the costs of shipping defective Exo Device to Exo in accordance with the foregoing; and (6) if Exo elects to replace the allegedly defective Exo Device, the replacement will be shipped EXW Exo’s facility per INCOTERMS 2010 and risk of loss shall transfer to Customer upon delivery to carrier. In addition, if Customer claims that the Exo Works Subscription Services were not operational as warranted, Customer will provide documentary evidence of the unavailability.

e. If Exo verifies the warranty claim with respect to an Exo Device (other than a warranty claim primarily with respect to the software or Exo Works Subscription Services), then Exo will, within a reasonable period following Exo’s receipt of the Exo Device subject to the warranty claim, at its expense and sole option: (1) repair the defect in the Exo Device; (2) replace the non-conforming Exo Device with an Exo Device of similar or better functional performance; or (3) credit or refund the purchase price for such Exo Device. If Exo verifies the warranty claim with respect to software or the Exo Works Subscription Services (including without limitation that the Exo Works Subscription Services were not operational), then Exo will, at its expense and sole option: (1) fix or repair the issue causing the warranty claim; or (2) credit or refund the amounts paid for such defective software or Exo Works Subscription Services corresponding to the period the issue occurred.

f. Exo shall have no obligation to Customer under the warranty, or otherwise, if:

i. the failure of Exo Works Subscription Services to materially conform to Exo’s specifications can be attributable to Customer equipment, third party software or hardware or Customer Data; or

ii. the failure of Exo Works Subscription Services to materially conform to Exo’s specifications can be attributable to causes that are not the responsibility of Exo.

g. Customer acknowledges and agrees that the remedies set forth in this Section are Customer’s sole and exclusive remedies for defective or allegedly defective Exo Products.

9. Limitation of Liability and Release

a. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EXO BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND BASED ON ANY CLAIM OR LEGAL THEORY, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF DATA, LOST OPPORTUNITY, LOST SAVINGS, LOST PROFITS, LOSS OF USE, BUSINESS INTERRUPTION OR COST OF SUBSTITUTE SERVICES OR TECHNOLOGY, EVEN IF INFORMED OF THE POSSIBILITY OF ANY SUCH DAMAGES IN ADVANCE.

b. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EXO’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS AND CONDITIONS, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), INDEMNIFICATION OBLIGATION, OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO EXO FOR THE INDIVIDUAL PRODUCT(S) THAT IS/ARE THE SUBJECT OF THE ALLEGED CLAIM AND DIRECTLY CAUSED THE ALLEGED DAMAGE. No action against Exo for breach hereof shall be commenced more than one (1) year after the accrual of the cause of action.

c. CUSTOMER ACCEPTS ALL LIABILITY FOR USE OF EXO PRODUCTS IN LIFE SUPPORT DEVICES OR SYSTEMS OR IN ANY OTHER CRITICAL APPLICATIONS. EXO PRODUCTS ARE NOT AUTHORIZED FOR USE AS CRITICAL COMPONENTS IN LIFE SUPPORT DEVICES OR SYSTEMS OR OTHER CRITICAL APPLICATIONS. Life support devices or systems are those which are intended to support or sustain life and whose failure to perform can be reasonably expected to result in a significant injury to the user. Critical components are those whose failure to perform can be reasonably expected to cause failure of a life support device or system or affect its safety or effectiveness. Critical applications are those applications in which failure of an Exo Device or Exo Works Subscription Services could result directly or indirectly in death, personal injury, or severe property or environmental damage.

d. CUSTOMER HEREBY RELEASES EXO FROM ANY CLAIMS ARISING FROM OR RELATED TO THE CONDUCT OF THE CUSTOMER’S BUSINESS OR FOR ACTS OR OMISSIONS OF CUSTOMER OR ITS END USERS IN THE PROVISION OF MEDICAL CARE, AND THAT ANY RELIANCE UPON ANY OF EXO’S PRODUCTS HEREUNDER SHALL NOT DIMINISH THE CUSTOMER'S RESPONSIBILITY FOR MEDICAL CARE.

10. Indemnity

a. Exo will, at its sole option, defend or settle any legal action asserted against Customer by a third party to the extent based on a claim that any Exo Device or Exo Works Subscription Services directly infringes any U.S. patent, copyright or trade secret of such third party. Exo will pay any damages finally awarded against Customer to the third party in any such action that are directly attributable to such claims, if resulting from (i) a final, non-appealable judgment of a court of competent jurisdiction, or (ii) any settlement of such claims that Exo approved. Exo shall not be responsible for any settlement made or expense incurred without Exo’s prior written consent. Notwithstanding anything else in this Agreement, Exo has no obligation to indemnify or defend claims arising from or relating to: (i) modification of any Exo Device or Exo Works Subscription Services by anyone other than Exo or the use of any Exo Device or Exo Works Subscription Services where such use is contrary to its specification or instructions for use; (ii) combination of any Exo Device or Exo Works Subscription Services with anything other than other Exo Devices or Exo Works Subscription Services; (iii) implementation or compliance with, in whole or in part, any industry standard or specification (such as Wi-Fi, Bluetooth, PCI-E, HTML, ACPI, or EUFI) promulgated by any recognized industry trade group, consortium or standard setting organization (such as IEEE, 3GPP, IETF, W3C, and USB-IF), or any intellectual property rights related thereto; (iv) Customer’s continued use of any Exo Device or Exo Works Subscription Services after Customer was notified of infringement or after Exo informed Customer of a modification or workaround that would have avoided infringement; or (v) any claim by a third party after Customer has first asserted a claim of infringement or misappropriation against such third party. Customer will have the burden of proving that (i) the defense and indemnity obligations are required under this Section, and (ii) the exclusions set forth in this Section are inapplicable. Except as expressly provided in this Section, Exo has no obligation or liability to Customer for any actual or alleged infringement related to any Exo Device or Exo Works Subscription Services. The foregoing indemnity is limited to Customer. Customer may not assign, transfer or pass through this indemnity to any third party.

b. In the event any Exo product is, or Exo determines it is likely to become, the subject of a claim for which Customer is entitled to defense and indemnity under this Section, Exo may in its sole discretion: (i) procure a license for Customer (at no expense to Customer) to continue using the Exo product; (ii) replace the Exo product with a similarly functioning non-infringing Exo product; (iii) modify the Exo product so long as there is no material loss of functionality; or (iv) refund or credit Customer the purchase price for the Exo Device, less appropriate depreciation, in which case Customer will promptly ship the Exo Device back to Exo.

c. Customer shall, at its sole option, defend or settle any legal action asserted against Exo (including its licensors, and suppliers, and their respective directors, officers, shareholders, employees, contractors and agents) by a third party to the extent based on a claim of or arising from: (i) any gross negligence or willful misconduct by Customer; (ii) any failure by Customer to procure appropriate consents or authorizations, including from patients; (iii) any failure by Customer to comply with this Agreement, the Data Privacy and Processing Addendum, or applicable Order Confirmation; (iv) Customer’s use or misuse of any Exo Products; (v) Customer’s or Customer’s patients’ data (whether properly or improperly obtained and/or transmitted); (v) Customer equipment, including, without limitation, any failure or malfunction caused by non-Exo equipment connected to any of Exo’s Devices or Exo Works Subscription Services; (vi) Customer’s failure to comply with any applicable law to which it may be subject in the use of any Exo Products; (vii) the consequences of Customer’s utilization of any Exo Products in respect of any third party; and (viii) any allegation that Customer equipment or data infringes any patent, copyright or trade secret of such third party.

d. Should Customer purchase or use an Exo Product for any critical application, Customer shall indemnify and hold Exo harmless against all claims, costs, damages and expenses and reasonable attorneys’ fees arising out of, directly or indirectly, any claim of product liability, personal injury, or death arising in any way out of use of the Exo Product (whether an Exo Device or Exo Subscription Services) in a life support device or system or other critical application.

e. The Party having the benefit of the indemnification obligation under this Section (“Indemnitee”) shall:

i. give the Party having the indemnification obligation (“Indemnitor”) prompt notice of any claim;

ii. allow the Indemnitor to have sole control over the defense and settlement of the claim, provided, however, that the Indemnitee shall have the option, at its sole discretion, to participate in the defense of any such claim using attorneys selected by it, the costs and expenses of which shall be the responsibility of Indemnitee; and

iii. provide all assistance reasonably requested by Indemnitor, at Indemnitor’s expense, in the defense and settlement of the claim.

iv. The Indemnitor will not consent to the entry of any judgment or enter into any settlement with respect to a claim without the Indemnitee’s prior written consent (not to be unreasonably withheld or delayed) unless:

v. the judgment or proposed settlement involves only the payment of monetary damages by the Indemnitor, and does not impose injunctive or other equitable relief upon or otherwise adversely affect the Indemnitee;

vi. there are no additional claims pending against the Indemnitee, and no adverse impact on existing claims, as a result of the judgment or proposed settlement; and

vii. the Indemnitee will have no liability with respect to such judgment or proposed settlement and will not otherwise be materially and adversely affected by the terms of such settlement.

11. Product Discontinuance

Exo reserves the right to discontinue production of any Exo Product at any time without notice except for that quantity of Exo Product for which Exo has received and acknowledged an Order Confirmation and has scheduled such Exo Product for shipment within six (6) months of the date of such acknowledgment.

12. Force Majeure

Exo shall not be liable for any delay in performance directly or indirectly caused by or resulting from acts of God, fire, flood, epidemics, pandemics, accident, riot, war, government intervention or restrictions, embargoes, strikes, labor difficulties, equipment failure, internet or telecommunications failures, cyberattacks, late delivery by suppliers or other difficulties which are beyond the reasonable control of Exo. QUANTITIES OF EXO PRODUCT ARE SUBJECT TO AVAILABILITY. In the event of production difficulties or Exo Product shortages, Exo may allocate sales and deliveries at its sole discretion.

13. Confidential Information

a. The Parties, including its respective affiliates, employees, agents and subcontractors, shall comply with the terms of any nondisclosure agreement between the Parties ( “NDA”) with respect to confidential and proprietary information belonging to one Party (“Disclosing Party”), and disclosed to the other Party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure (“Confidential Information”). Confidential Information may include, without limitation, patient information, information concerning research, development, design details and specifications, financial information, procurement requirements, engineering and manufacturing information, customer lists, business forecasts, sales information and marketing plans, internal business processes, product designs.

b. If no NDA exists or if the NDA has expired or is no longer in full force and effect, then each Party shall only use the other Party’s Confidential Information for the purposes of this Agreement and shall keep such information in strict confidence.

c. The Receiving Party shall restrict disclosure of the Disclosing Party’s Confidential Information solely to its employees, attorneys, accountants, contractors and other representatives with a need to know, not disclose it to any third parties, except End Users as permitted hereunder, and use no less than reasonable care in its obligations.

d. Confidential Information will not, however, include any information that:

i. was publicly known and made generally available in the public domain prior to the time of disclosure by the Disclosing Party;

ii. becomes publicly known and made generally available after disclosure by the Disclosing Party to the Receiving Party through no action or inaction of the Receiving Party;

iii. is already in the possession of the Receiving Party at the time of disclosure by the Disclosing Party, as shown by the Receiving Party’s files and records;

iv. is obtained by the Receiving Party from a third party without a breach of the third party’s obligations of confidentiality; or

v. is independently developed by the Receiving Party without use of or reference to the Disclosing Party's Confidential Information, as shown by documents and other competent evidence in the Receiving Party’s possession.

e. A Receiving Party may disclose the Disclosing Party’s Confidential Information if required by law so long as the Receiving Party gives the Disclosing Party prompt written notice of the requirement prior to the disclosure and assistance in obtaining an order protecting the information from public disclosure.

f. Neither Party will reverse engineer, disassemble, or decompile any prototypes, software, or other tangible objects that embody the other Party’s Confidential Information and that are provided to the Party in accordance with this Agreement.

14. Export Compliance

Customer is responsible for complying with all applicable export control laws and regulations with respect to the reexport, shipment, transfer, or use of Exo Products. Customer will not provide Exo Devices to entities or individuals that are prohibited from receiving such Exo Devices under applicable laws, including the laws of the United States. A current list of such prohibited entities under U.S. law is available at the following link: https://bit.ly/3g8LWCy. Customer will not export, reexport, or transfer Exo Devices as follows, unless it has authorization to do so under any applicable export control and sanctions laws of the United States: (a) to the Crimea Region, Cuba, Iran, North Korea, Sudan, Syria, or any other country sanctioned or embargoed under U.S. law, or any nationals of such countries; (b) for military end-uses or military end-users restricted under United States laws; and (c) for uses in connection with chemical, biological, or nuclear weapons, or missiles capable of delivering such weapons.

15. Resale

Customer acknowledges that the Exo Devices may be authorized by federal or applicable state law for use only by licensed medical professionals. Customer agrees not to resell Exo Devices, directly or indirectly, to any third party without Exo’s prior written authorization.

16. Waiver

The failure of Exo to enforce at any time any of the provisions of this Agreement, to exercise any election or option provided herein or to require at any time the performance by Customer of any of the provisions herein will not in any way be construed to be a waiver of such provisions.

17. Assignments

Customer may not assign its rights or obligations hereunder without the express prior written consent of Exo, and any attempted assignment without such consent shall be null and void. Exo shall be entitled at any time to assign its rights or obligations hereunder to any third party without Customer’s prior written consent.

18. Applicable Law

The terms and conditions of this Agreement shall be governed by the laws of the State of California. The Parties hereby acknowledge and agree that the provisions of the Sale of Goods (United Nations Conventions) Act, Chapter 283A, as amended or replaced, are expressly excluded and shall not apply hereto or Exo’s sale of the Exo Device to Customer. The Parties hereby waive any objection to the exclusive jurisdiction and venue of the state and federal courts in San Francisco, California.

19. Term and Termination

a. This Agreement commences on the Effective Date and shall remain in effect until terminated in accordance with Section 19(c) below.

b. Customer’s access to Exo Works Subscription Services shall commence on the start date specified in the relevant Order Confirmation and continue for the Subscription Term specified on such Order Confirmation. At the expiration of each Subscription Term, the Subscription Term for all Exo Works Subscription Services will automatically renew for the same period as the renewing Subscription Term, unless either Party elects to not renew by notifying the other Party in writing at least 30 days before such renewal (or at anytime before the renewal date, if the expiring Order Confirmation provides for a month-to-month subscription). Except as otherwise specified in a written notice sent to Customer at least 60 days prior to a renewal (or 30 days, if the expiring Order Confirmation provides for a month-to-month subscription), Exo’s per-unit pricing for any renewal Subscription Term shall not increase by more than five percent (5%) over the renewing Subscription Term. Any introductory or temporary discount offered in a previous Subscription Term does not apply for a renewal Subscription Term. For the avoidance of doubt, the foregoing caps on price increases shall not apply to renewals in which a Customer is transitioning from a month-to-month subscription to a longer subscription.

c. Either Party may terminate this Agreement and/or any Order Confirmation by providing written notice to the other Party in the event the other Party materially breaches any of its duties, obligations or responsibilities under this Agreement and fails to: (i) cure such breach within thirty (30) days after receipt by the breaching Party of written notice specifying the breach, or (ii) if the breaching Party is incapable of curing such breach within thirty (30) days, provide the other Party with an acceptable plan for curing such breach within ten (10) days after receipt of such notice and thereafter curing such breach in accordance with such plan. In addition, a Party may terminate this Agreement by providing written notice to the other Party if there is no Order Confirmation in effect for more than thirty (30) days, continuously.

d. If the Agreement is terminated by Exo as a result of a material breach by Customer, Customer shall remain liable for the payment for the entire Exo Works Subscription Services fee, as applicable, for the then current Subscription Term, as the case may be, and any unpaid amounts still due and owing for Exo Devices.

e. Expiration or termination of one Order Confirmation shall not affect any other Order Confirmation. In the event of termination of this Agreement, Customer shall have no access to the Exo Works Subscription Services following the Subscription Term, except for limited access provided for a period of fifteen (15) days to Customer’s designated administrative end users solely for purposes of permitting Customer to retrieve any of its data or images stored on the Exo Works Subscription Services. After such 15 days period, Exo shall have no obligation to maintain or provide any Customer Data and may thereafter, unless legally prohibited, irrevocably delete all Customer Data in its possession.

f. The following provisions shall survive the termination or expiration of this Agreement for any reason and shall remain in effect after any such termination or expiration: Sections 3 (Prices and Taxes), 4 (Payment and Remedies), 5 (Ownership and Reservation of IP Rights), 7 (Customer Responsibilities and Acknowledgements), 8 (Warranties and Disclaimers), 9 (Limitations of Liability and Release), 10 (Indemnity), 12, (Force Majeure), 13 (Confidentiality), 14 (Export Compliance), 15 (Resale), 16 (Waiver), 17 (Assignments), 18 (Applicable Law), 19 (Term and Termination), 20 (Notices), and 21 (Miscellaneous). Termination or expiration of this Agreement shall not affect any obligation accrued or arising prior to such termination or expiration.

20. Notices

a. Notices must be in writing, addressed and delivered by at least one of the following methods: personally; by certified mail return receipt requested; by facsimile transmission with a confirming copy sent the same day by first class mail; or by a nationally recognized overnight courier service.

b. Each notice shall be deemed given upon receipt of such notice by the other Party.

c. All notices shall be sent to the Parties at the addresses set forth in the Order Confirmation.

21. Miscellaneous

a. This Agreement’s terms and conditions, including those on the Order Confirmation, constitute the entire agreement with regard to this sale and expressly supersede and replace any prior or contemporaneous agreements, written or oral, relating to said sale.

b. This Agreement’s terms and conditions (but not the Data Processing and Privacy Addendum) may only be amended or modified in a writing which specifically states that it amends these terms and conditions and is signed by an authorized representative of each Party.

c. If a Party waives any term or provision or the other Party’s breach of this Agreement, such waiver shall not be effective unless it is in writing and signed by the Party against whom such waiver is asserted.

d. This Agreement’s terms and conditions shall be binding upon the heirs, successors, and assigns of the Parties hereto.

e. If any provision of this Agreement is adjudged to be unenforceable in whole or in part, such adjudication shall not affect the validity of the remainder hereof.

f. Each provision of this Agreement’s terms and conditions is severable from every other provision and constitutes a separate, distinct and binding covenant.

g. Headings are inserted solely for convenience of reference, shall not constitute a part of this Agreement’s terms and conditions or otherwise affect the interpretation hereof.

h. The Parties are independent contractors. Nothing in this Agreement shall be construed to create a joint venture, partnership, franchise, or an agency relationship between the Parties.

i. Each Party represents and warrants to the other Party that it has the full right, power and authority to enter into this Agreement, to perform its obligations hereunder; and this Agreement has been duly executed by it and is legally binding upon it, enforceable in accordance with its terms, and does not conflict with any agreement, instrument or understanding, oral or written, to which it is a Party or by which it may be bound, nor violate any material law having jurisdiction over it.

Data Privacy and Processing Addendum

1. Definitions

a. “CCPA” means California Civil Code Sec. 1798.100 et seq. (also known as the California Consumer Privacy Act of 2018).

b. “Controller” means the natural or legal person, public authority, agency or other body which, alone or jointly with others, determines the purposes and means of the Processing of Personal Data.

c. “Data Protection Laws” means all applicable worldwide legislation, rule or regulation relating to data protection and privacy which applies to the respective Party in the role of Processing Personal Data in question under this Agreement, including without limitation HIPAA as amended by the HITECH Act, European Data Protection Laws, the CCPA and the data protection and privacy laws of Australia and Singapore; in each case as amended, repealed, consolidated or replaced from time to time.

d. “Data Subject” means the individual to whom Personal Data relates.

e. “European Data Protection Laws” means data protection laws applicable in Europe, including: (i) Regulation 2016/679 of the European Parliament and of the Council on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation) (“GDPR”); (ii) Directive 2002/58/EC concerning the processing of personal data and the protection of privacy in the electronic communications sector; and (iii) applicable national implementations of (i) and (ii); or (iii) in respect of the United Kingdom, any applicable national legislation that replaces or converts in domestic law the GDPR or any other law relating to data and privacy as a consequence of the United Kingdom leaving the European Union; and (iv) Swiss Federal Data Protection Act on 19 June 1992 and its Ordinance; in each case, as may be amended, superseded or replaced.

f. “Instructions” means the written, documented instructions issued by a Controller to a Processor, and directing the same to perform a specific or general action with regard to Personal Data (including, but not limited to, depersonalizing, blocking, deletion, making available).

g. “Personal Data” means any information relating to an identified or identifiable individual where such information is contained within Customer Data (as defined below) and is protected similarly as personal data, personal information or personally identifiable information under applicable Data Protection Laws.

h. “Personal Data Breach” means a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Personal Data transmitted, stored or otherwise Processed by us and/or our Sub-Processors in connection with the provision of Exo Works Subscription Services. “Personal Data Breach will not include unsuccessful attempts or activities that do not compromise the security of Personal Data, including unsuccessful log-in attempts, pings, port scans, denial of service attacks, and other network attacks on firewalls or networked systems.

i. “Processing” means any operation or set of operations which is performed on Personal Data, encompassing the collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction or erasure of Personal Data. The terms “Process”, “Processes” and “Processed” shall be construed accordingly.

j. “Processor” means a natural or legal person, public authority, agency or other body which Processes Personal Data on behalf of the Controller.

k. “Sub-Processor” means any Processor engaged by Exo to assist in fulfilling Exo’s obligations with respect to the provision of Exo Works Subscription Services under the Agreement. Sub-Processors may include third parties but will exclude any Exo employee or consultant.

2. Customer Obligations and Responsibilities

a. As between the Parties, the data, images, imaging studies and content that Customer or an End User inputs, transmits, uploads, transfers, submits, discloses or otherwise provides to the Exo Works Subscription Service shall remain exclusive property of Customer (collectively, the “Customer Data”). Notwithstanding anything in this Agreement or in any Business Associate Agreement between the Parties to the contrary, and notwithstanding any termination or expiration of this Agreement, Customer Data that has been fully and permanently de-identified in accordance with HIPAA (“Anonymized Data”) shall be excluded from the foregoing definition of Customer Data.

b. Customer acknowledges and agrees that Exo does not require any specific data, including Personal Data, from Customer or End User, that Customer and End User each controls the content of any Customer Data that is inputted, transmitted, uploaded, transferred, submitted, disclosed, processed, collected, stored, replicated or in any other way accessed or used through the use of the Exo Works Subscription Services, and that Exo has no obligation to monitor the content of any Customer Data.

c. Within the scope of this Agreement and in Customer’s use of an Exo Device or Exo Works Subscription Services, Customer shall be responsible for complying with all requirements that apply to it under applicable Data Protection Laws with respect to its Processing of Personal Data and any Instructions Customer issues to Exo. In particular, Customer shall be responsible for procuring any necessary consents and making any notifications under applicable Data Protection Laws with respect to the provision of the Customer Data to Exo through the Exo Works Subscription Services and the processing of such Customer Data by Exo through the Exo Works Subscription Services. Upon request of Exo, Customer shall provide Exo with documentation to support such consent.

d. In particular but without prejudice to the generality of the foregoing, Customer acknowledges and agrees that Customer will be solely responsible for: (i) the accuracy, quality, and legality of Customer Data and the means by which Customer acquired Personal Data; (ii) complying with all necessary transparency and lawfulness requirements under applicable Data Protection Laws for the collection and use of the Personal Data, including obtaining any necessary consents and authorizations (particularly for use by Customer for marketing purposes); (iii) ensuring Customer has the right to transfer, or provide access to, the Personal Data to Exo for Processing in accordance with the terms of this Agreement; (iv) ensuring that your Instructions to Exp regarding the Processing of Personal Data comply with applicable laws, including Data Protection Laws; and (v) complying with all laws (including Data Protection Laws) applicable to any emails or other content created, sent or managed through the Subscription Services, including those relating to obtaining consents (where required) to send emails, the content of the emails and its email deployment practices. Upon request of Exo, Customer shall provide Exo with documentation to support any such consents and authorizations.

e. Customer shall inform Exo without undue delay if it is not able to comply with its responsibilities under this Section or applicable Data Protection Laws.

3. Exo Obligations and Responsibilities

1. Exo acknowledges that in the performance of the Exo Works Subscription Services, Exo may have access to Customer Data. Exo shall only use and disclose Customer Data in accordance with applicable Data Protection Laws and the terms of the Business Associate Agreement (“BAA”) attached hereto as Annex 1 (Business Associate Agreement).

f. Exo will only Process Personal Data for the purposes described in this Data Privacy and Processing Addendum or as otherwise agreed within the scope of your lawful Instructions, except where and to the extent otherwise required by applicable law. Exo is not responsible for compliance with any Data Protection Laws applicable to Customer or Customer’s industry that are not generally applicable to Exo.

g. If Exo becomes aware that it cannot Process Personal Data in accordance with Customer’s Instructions due to a legal requirement under any applicable law, Exo will (i) promptly notify Customer of that legal requirement to the extent permitted by the applicable law; and (ii) where necessary, cease all Processing (other than merely storing and maintaining the security of the affected Personal Data) until such time as Customer issues new Instructions with which Exo is able to comply. If this provision is invoked, Exo will not be liable to Customer under the Agreement for any failure to perform the applicable Exo Works Subscription Services until such time as Customer issues new lawful Instructions with regard to the Processing.

h. Exo will implement and maintain appropriate technical and organizational measures to protect Personal Data from Personal Data Breaches (“Security Measures”). Notwithstanding any provision to the contrary, Exo may modify or update the Security Measures at its discretion provided that such modification or update does not result in a material degradation in the protection offered by the Security Measures.

i. Exo will ensure that any personnel whom it authorizes to Process Personal Data on Exo’s behalf is subject to appropriate confidentiality obligations (whether a contractual or statutory duty) with respect to that Personal Data.

j. Exo will notify Customer without undue delay after Exo becomes aware of any Personal Data Breach and will provide timely information relating to the Personal Data Breach as it becomes known or reasonably requested by Customer. At Customer’s request, Exo will promptly provide Customer with such reasonable assistance as necessary to enable Customer to notify relevant Personal Data Breaches to competent authorities and/or affected Data Subjects, if Customer is required to do so under Data Protection Laws.

k. Exo will delete or return all Customer Data, including Personal Data (including copies thereof) Processed pursuant to this Data Processing and Privacy Addendum, on termination or expiration of Customer’s Exo Works Subscription Service in accordance with the procedures and timeframes set out in the Agreement, save that this requirement shall not apply to the extent Exo is required by applicable law to retain some or all of the Customer Data, or to Customer Data it has archived on back-up systems, which data Exo will securely isolate and protect from any further Processing and delete in accordance with its deletion practices. Customer may request the deletion of Customer’s Exo Works Subscription Service account after expiration or termination of Customer’s subscription by sending a request to Exo. Customer may retrieve Customer Data from Customer’s account in accordance with Exo’s Terms and Conditions of Use.

4. Sub-Processors

a. Customer agrees that Exo may engage Sub-Processors to Process Personal Data on Customer’s behalf. Exo has currently appointed, as Sub-Processors, the third parties listed in Annex 2 to this Data Processing and Privacy Addendum.

b. Where Exo engages Sub-Processors, Exo will impose data protection terms on the Sub-Processors that provide at least the same level of protection for Personal Data as those in this Data Processing and Privacy Addendum, to the extent applicable to the nature of the services provided by such Sub-Processors. Exo will remain responsible for each Sub-Processor’s compliance with the obligations of this Data Processing and Privacy Addendum and for any acts or omissions of such Sub-Processor that cause Exo to breach any of its obligations under this Data Processing and Privacy Addendum.

5. Data Transfers

Customer acknowledges and agrees that Exo may access and Process Personal Data on a global basis as necessary to provide Exo Works Subscription Services in accordance with the Agreement, and in particular that Personal Data will be transferred to and Processed by Exo Imaging, Inc. in the United States and to other jurisdictions where Exo and Sub-Processors have operations. Exo will ensure such transfers are made in compliance with the requirements of Data Protection Laws.

6. General Provisions

a. Notwithstanding anything else to the contrary in the Agreement, Exo reserves the right to make any updates and changes to this Data Processing and Privacy Addendum and the terms of Section 21(b) of the Agreement shall not apply.

b. If any individual provisions of this Data Processing and Privacy Addendum are determined to be invalid or unenforceable, the validity and enforceability of the other provisions of this Data Processing and Privacy Addendum will not be affected.

c. Each Party and each of their Affiliates’ liability, taken in aggregate, arising out of or related to this Addendum A (Data Privacy and Processing), whether in contract, tort or under any other theory of liability, will be subject to the limitations and exclusions of liability set out in Section 9 “Limitation of Liability and Release” of the Agreement and any reference in such section to the liability of a Party means aggregate liability of that Party and all of its Affiliates under the Agreement (including this Addendum A (Data Privacy and Processing)).

d. This Addendum A (Data Privacy and Processing) will be governed by and construed in accordance with Section 18 “Applicable Law,” unless required otherwise by Data Protection Laws.

Addendum B
Service Level Agreement (“SLA”)

Exo Works Subscription Services Availability. Exo will use commercially reasonable efforts to make Exo Works Subscription Services generally available twenty-four (24) hours a day, seven (7) days a week, and will provide Availability of Exo Works Subscription Services of at least 99% (“Availability Commitment”).

“Availability” or “Available” means the time during each calendar month that Exo Works Subscription Services is available for use by you.

“Downtime” means the time that Exo Works Subscription Services are not Available but excluding Excused Unavailability.

“Excused Unavailability” means: (i) scheduled maintenance (currently 12:00am US CST Sunday to 4:00am US CST Sunday, or such other alternative time outside of 8 am through 8 pm US CST Monday through Friday, upon notice to you); (ii) unavailability caused by acts or omissions of you or its agents or caused by any breach by you of the Agreement or this SLA; (iii) unavailability caused by network unavailability or bandwidth limitations outside of the Exo network; (iv) issues arising from bugs or other problems in the software, firmware or hardware of Exo suppliers; (v) hacks, malicious introduction of viruses, disabling devices, and other forms of attacks that disrupt access to Exo Works Subscription Services; (vi) power outages or other telecommunications or Internet failures; and (vii) events outside of Exo’s control. In the case of subsections (iv) and (v), such events shall be included in the calculation of Excused Unavailability if the outage could not have been prevented by reasonable and customary precautions in the hosting industry.

Availability will be calculated as follows: (total minutes in any calendar month – total minutes of Downtime) divided by (the total minutes in such calendar month).

If Exo fails to meet the Availability Commitment for two (2) consecutive calendar months or fails to meet the Availability Commitment for any three (3) calendar months within any twelve (12) month period, then by notice given within thirty (30) days after the end of the month which triggered your right of termination, you may terminate Exo Works Subscription Services effective thirty (30) days after receipt of the notice, and receive a refund of any pre-paid fees for periods after the effective date of termination. The provisions of this SLA state your sole and exclusive remedy for any service level deficiencies of any kind.

Exo will use commercially reasonable efforts to provide Exo Works Subscription Services support to you comprised of (i) on-line access to the Exo support portal generally available twenty-four (24) hours a day, seven (7) days a week (subject to circumstances outside of Exo control); (ii) Exo telephone/email support (currently 8 am through 8 pm US CST Monday through Friday); and (iii) access to your Customer Success Manager. Exo will use commercially reasonable efforts to respond to your inability to access Exo Works Subscription Services or a component of Exo Works Subscription Services, which had previously performed as expected (“Problem”) within one (1) business day of the Problem being reported by you to the Exo support team through one of the three methods identified above.

Addendum C
Terms and Conditions for Maintenance

This Addendum C, Terms and Conditions for Maintenance, further specifies Maintenance services to be provided by Exo to Customer regarding Exo Works Enterprise (only) licensed by Exo to Customer (“Maintenance”).

1. Definitions. Capitalized terms used herein will have the same meaning as set forth in the Agreement unless otherwise defined herein. The following terms will have the meanings set forth below:

a. “Major Release” means an update that adds substantial additional functionality, features, and value to the Exo Works Enterprise.

b. “Minor Release” means all updates to Exo Works Enterprise other than Major Releases, including those that support new releases of operating systems and devices.

c. “Severity Levels” means the four severity levels defined below:

d. “Severity 1”: A type of error that: (1) renders the entire or any part of Exo Works Enterprise inoperative or (2) causes Exo Works Enterprise to fail catastrophically. No workaround exists, or the available workaround is unacceptable due to its operational impact on Customer's business.

e. “Severity 2”: A type of error that significantly degrades the performance of Exo Works Enterprise or materially restricts Customer's use of Exo Works Enterprise.

f. “Severity 3”: A type of error that causes only a minor impact on the use of Exo Works Enterprise.

g. “Severity 4”: Proposed enhancements or usage questions.

h. “Workaround” means a change in the procedures followed or data supplied to avoid an error without materially impairing the performance of the Exo Works Enterprise.

2. Maintenance. Maintenance services are as defined in the Agreement and this Addendum C and include the following:

a. Supported versions. Exo will provide Maintenance for the then-current Major Release of Exo Works Enterprise and the one prior Major Release. Exo will provide the same level of support and error correction services for all supported versions of Exo Works Enterprise.

b. Updates and error correction. Exo will notify Customer of all errors in Exo Works Enterprise or documentation of which Exo becomes aware and will provide available information bulletins and access to any Internet data files or information relating to such errors. Maintenance includes provision of all available updates to Exo Works Enterprise at no additional charge to Customer.

c. Technical Support Contacts. Customer will designate support contacts who may communicate with Exo's support organization regarding support issues. Customer may change their support contacts from time to time upon notice to Exo. Exo will provide Customer's support contacts with any user IDs, passwords, access procedures, and other such information to enable the support contacts to access Exo's telephone and electronic support systems.

d. Telephone and Web Support Services. Exo will respond to timely requests for technical support services upon notification at Help@exo.inc. An Exo technical support specialist will respond to the request during the hours of 8:00 a.m. U.S. Central time to 8:00 p.m. U.S. Central time, Monday through Friday.