CLEERLY SOFTWARE AND SERVICES TERMS & CONDITIONS

Last Modified: October 17, 2023

Acceptance of these Terms & Conditions

The following terms and conditions (“Terms & Conditions”), together with any applicable documents incorporated herein by reference, govern access to and use of the Cleerly Software and/or Services, each as defined herein. Please read the Terms & Conditions carefully before you begin using Cleerly Software and/or Services, as the Terms & Conditions constitute a binding agreement between you (“You”) and Cleerly, Inc. (“Cleerly,” “we,” or “us”). By using the Cleerly Software and/or Services, you accept and agree to be bound and abide by these Terms & Conditions. If you do not want to agree to these Terms & Conditions, do not access or use the Cleerly Software and/or Services.

“Cleerly Software” means Cleerly’s web-based software applications that are commonly referred to as “Cleerly Labs” and/or “Cleerly Ischemia”. Cleerly Labs software includes any additional version updates and are accessible via a web browser and intended to be used by trained medical professionals as an interactive tool for viewing and analyzing cardiac computed tomography (“CT”) data for determining the presence and extent of coronary plaques and stenosis in patients who underwent Coronary Computed Tomography Angiography (“CCTA”) for evaluation of coronary artery disease (“CAD”) or suspected CAD. Cleerly Labs software processes CT images obtained using any CT scanner and provides tools for the measurement and visualization of coronary arteries. Cleerly Ischemia software processes CT images obtained using any CT scanner and provides tools designed to estimate the likely presence and/or likely absence of ischemia.

“Services” means Cleerly’s proprietary service which includes analysis of CCTAs and allowing you to access and analyze CCTAs to identify and assess anatomical and functional significance of coronary disease, through the Cleerly Software and any other online user interface software programs that are accessible via a web browser and that Cleerly may make available to you subject to these Terms & Conditions.

Changes to these Terms & Conditions

We may update, revise, or otherwise change the Terms & Conditions from time to time in our sole discretion. All changes to these Terms & Conditions are effective immediately when we post them. Your continued use of the Cleerly Software and/or Services following the posting of revised Terms & Conditions means that you accept and agree to the changes. If you disagree with any of the Terms & Conditions as updated or revised, your sole and exclusive remedy is to discontinue your use of the Cleerly Software and/or Services.

We may update the content on the Cleerly Software and/or Services from time to time, but the content (including information, statistics, and other data) on the Cleerly Software and/or Services are not necessarily complete or up-to-date.

Accessing the Cleerly Software and/or Services

You must have compatible computing and/or mobile devices, access to the Internet, and certain necessary software in order to use the Services. Fees and data charges may apply to your use of the mobile services and/or the Internet. You are responsible for making all necessary arrangements for you to have access to the Cleerly Software and/or Services.

We reserve the right to update, revise, or otherwise change Cleerly Software and/or Services in our sole discretion without notice. We will not be liable if for any reason all or any part of the Cleerly Software and/or Services is unavailable at any time or for any period. From time to time, we may restrict access to some parts of the Cleerly Software and/or Services to users.

License Grant; Permitted Uses

You may use the Cleerly Software and/or Services for your internal business purposes only pursuant to the terms and conditions herein and/or any Master Services Agreement. Subject to and conditioned on your strict compliance with the terms and conditions herein and/or any Master Services Agreement, we hereby grant you a limited, revocable, non-exclusive, non- transferable, and non-sublicensable license solely for your internal business purposes to access and use the Cleerly Software and/or Services.

Intellectual Property Rights

The Cleerly Software and/or Services are protected by patents, copyright, trade secrets, and/or other intellectual property laws. The Services, Cleerly Software, any back-end software by way of the Services only, technology, and all other materials provided or made available by Cleerly, including but not limited to all manuals, reports, records, programs, results, displays, videos, documentation, data created using the Services based on your content and that are delivered to you are the exclusive property of Company.

CLEERLY, CLEERLY LAB, CLEERLY LABS, CLEERLY ISCHEMIA, CLEERLYLAB, CLEERLY CORONARY, SEEING MORE OF WHAT MATTERS, Cleerly’s logos, and all related names, logos, product and service names, designs, and slogans are trademarks of Cleerly or its affiliates or licensors. You must not use such marks without the prior written permission of Cleerly. Other names, logos, product and service names, designs, and slogans on the Cleerly Software and/or Services are the trademarks of their respective owners.

All rights not expressly granted are reserved by Cleerly.

Reliance on Information Posted

The information presented on or through the Cleerly Software and/or Services is made available solely for general information purposes. Any reliance you place on such information is strictly at your own risk. We disclaim all liability and responsibility arising from any reliance placed on such information by you or any other user of the Cleerly Software and/or Services or by anyone who may be informed of any of its contents.

The information on the Cleerly Software and/or Services is not intended to be a substitute for professional medical advice, diagnosis, or treatment. The information may not be relevant or applicable to all situations and decisions to apply any information must be made in light of individual facts and specific circumstances. Always seek the advice of a physician or other qualified health professional with any questions you may have regarding a medical condition, and never disregard professional medical advice or delay in seeking it because of something you have read on the Cleerly Software and/or Services. Medical professionals may use the Cleerly Software and/or Services in conjunction with, and not as a replacement for, their best clinical judgment. Cleerly is not responsible nor liable for any advice, course of treatment, or diagnosis based on the information on the Cleerly Software and/or Services.

Prohibited Uses

You may use the Cleerly Software and/or Services only for lawful purposes and in accordance with these Terms & Conditions. Additionally, you agree that you will not, and will not attempt to:

  • use any “page scrape”, “robot”, “spider”, or other automatic script, algorithm, or methodology, or any similar or equivalent manual process, to access, acquire, copy, or monitor any portion of the Cleerly Software and/or Services;
  • interfere with, or attempt to interfere with, the proper working of the Cleerly Software and/or Services;
  • introduce any viruses, worms, or other material that is malicious or technologically harmful;
  • attempt to gain unauthorized access to, interfere with, damage, or disrupt any parts of the Cleerly Software and/or Services or any systems connected to the Cleerly Software and/or Services;
  • provide any information to us that is false, misleading, fraudulent, or inaccurate. Information Collected on or through the Cleerly Software and/or Services;
  • impersonate any person or entity or otherwise misrepresent your affiliation with a person or entity;
  • use the Cleerly Software and/or Services to violate any local, state, national or international law;
  • reverse engineer, disassemble, decompile, or translate any software or other components of the Cleerly Software and/or Services;
  • distribute, input, upload, transmit, or otherwise run or propagate any virus, application, Trojan horse, or any other harmful computer code that could damage or alter a computer, portable device, computer network, communication network, data, or our Services, or any other system, device, or property;
  • access or use the Cleerly Software and/or Services in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any third party;
  • license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Cleerly Software and/or Services or related materials in any way;
  • use or access the Cleerly Software and/or Services to create or develop competing products or services or for any other purpose that is to Cleerly’s detriment or commercial disadvantage;
  • take any action or use the Cleerly Software and/or Services in any manner which could damage, destroy, disrupt, disable, impair, overburden, interfere with, or otherwise impede or harm in any manner our Services or any content, in whole or in part;
  • disrupt, interfere with, violate the security of, or attempt to gain unauthorized access to Cleerly Software and/or Services or any computer network;
  • bypass, breach, avoid, remove, deactivate, impair, descramble, or otherwise circumvent any security device, protection, or technological measure implemented by Cleerly or any of our service providers to protect our Services;
  • remove, delete, alter, or obscure any trademarks, specifications, warranties, or disclaimers, or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Cleerly Software and/or Services or any content made available to you on or through our Services;
  • use any manual process or automated device to monitor or copy any content made available on or through the Cleerly Software and/or Services for any unauthorized purpose except as permitted by this section;
  • copy, duplicate, download, store in a retrieval system, publish, transmit or otherwise reproduce, transfer, distribute, store, disseminate, aggregate, use as a component of or as the basis for a database or otherwise use in any form or by any means any data, text, reports, or other materials related to Cleerly or third-party content from the Services;
  • otherwise use the Cleerly Software and/or Services in any manner that exceeds the scope of use granted above;
  • modify, adapt, alter, copy, mimic, or translate the Cleerly Software; or
  • encourage or enable any other individual to do any of the foregoing.
Information Collected on or through the Website or the Cleerly Software

To access Cleerly Software and/or Services, you may be asked to provide certain registration details or other information. It is a condition of your use of Cleerly Software and/or Services that all the information you provide to us is correct, current, and complete. You agree that all information you provide to register for Cleerly Software and/or Services, is governed by our Privacy Policy, which is incorporated herein by reference. By using the Cleerly Software and/or Services, you consent to all actions taken by us with respect to your information subject to our compliance with the Privacy Policy.

Submissions over the Internet may not be secure. Please consider this fact before providing any information to Cleerly by or through the Cleerly Software and/or Services.

Third-Party Links from the Cleerly Software and/or Services

Links from the Cleerly Software to third-party websites (“Linked Sites”) are provided for your convenience only. The Linked Sites may not be under our control, and therefore, we are not responsible for the information, products or services described thereon, or for the content of any Linked Site, including, without limitation, any link contained in a Linked Site, or any changes or updates to a Linked Site. If you decide to access any third-party websites, you do so entirely at your own risk and subject to the terms and conditions of use for such websites; we are not liable to you in any way, either directly or indirectly, for any content, errors, damage, or loss caused by or in connection with use of or reliance on information contained in or provided to Linked Sites. Linked Sites may contain information about uses of our products that have not been approved or cleared by the U.S. Food and Drug Administration. Cleerly does not endorse off-label use of our products.

Termination

The Terms & Conditions will remain in full force and effect as long as you continue to access or use the Cleerly Software and/or Services. You may terminate the Terms & Conditions at any time by discontinuing use of the Cleerly Software and/or Services. Your permission to use Cleerly Software and/or Services automatically terminates if you violate these Terms & Conditions.

Cleerly may terminate or suspend any of the rights granted by these Terms & Conditions and your access to and use of the Cleerly Software and/or Services with or without prior notice, for any reason, and any time. The following provisions survive the expiration or termination of these Terms & Conditions for any reason whatsoever: Intellectual Property Rights, Reliance on Information Posted, Prohibited Uses, Third-Party Links from the Cleerly Software and/or Services, Disclaimer of Warranties and Limitation of Liability, Indemnification, Release, No Waiver, Remedies, Governing Law and Jurisdiction; Miscellaneous.

Disclaimer of Warranties and Limitation of Liability

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE CLEERLY SOFTWARE AND/OR SERVICES, INCLUDING ANY BACK-END SOFTWARE RELATED TO THE SERVICES, ARE PROVIDED OR MADE ACCESSIBLE SOLELY ON AN “AS IS,” AND “AS AVAILABLE” BASIS, WITHOUT WARRANTY OF ANY KIND, AND WE MAKE NO (AND HEREBY DISCLAIMS ALL) WARRANTIES, REPRESENTATIONS, OR CONDITIONS, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF SATISFACTORY QUALITY, COURSE OF DEALING, TRADE USAGE OR PRACTICE, MERCHANTABILITY, TITLE, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE USE, MISUSE, OR INABILITY TO USE THE CLEERLY SOFTWARE AND/OR SERVICES (IN WHOLE OR IN PART) OR ANY OTHER PRODUCTS OR SERVICES PROVIDED TO YOU BY US. WE DO NOT WARRANT THAT ANY OR ALL ERRORS CAN BE CORRECTED, OR THAT OPERATION OF THE CLEERLY SOFTWARE AND/OR SERVICES SHALL BE UNINTERRUPTED OR ERROR-FREE. IN NO EVENT SHALL WE HAVE ANY LIABILITY WHATSOEVER RELATED TO PATIENT CARE, PATIENT OUTCOMES OR MEDICAL MALPRACTICE. SOME STATES AND JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR CONDITIONS OR LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY IN THEIR ENTIRETY.

TO THE MAXIMUM EXTENT LEGALLY PERMITTED UNDER APPLICABLE LAW, WE AND OUR SUPPLIERS SHALL NOT BE LIABLE TO YOU FOR ANY SPECIAL, INDIRECT, EXEMPLARY, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY NATURE INCLUDING, BUT NOT LIMITED TO DAMAGES OR COSTS DUE TO LOSS OF PROFITS, DATA, REVENUE, GOODWILL, PRODUCTION OR USE, BUSINESS INTERRUPTION, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR PERSONAL OR PROPERTY DAMAGE ARISING OUT OF OR IN CONNECTION WITH OUR PERFORMANCE HEREUNDER OR THE USE, MISUSE, OR INABILITY TO USE THE CLEERLY SOFTWARE AND/OR SERVICES, INCLUDING ANY BACK-END SOFTWARE RELATED TO THE SERVICES, OR OTHER PRODUCTS OR SERVICES HEREUNDER, REGARDLESS OF THE CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, EVEN IF WE HAVE BEEN NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGES. SOME STATES AND JURISDICTIONS DO NOT ALLOW FOR THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION AND EXCLUSION MAY NOT APPLY IN ITS ENTIRETY.

TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, THE MAXIMUM AGGREGATE LIABILITY OF US FOR ALL CLAIMS ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT, WHETHER ARISING UNDER OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY, SHALL NOT EXCEED THE GREATER OF $100 OR THE TOTAL AMOUNT OF THE FEES ACTUALLY PAID BY YOU TO US IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM. IN NO EVENT SHALL OUR SUBCONTRACTORS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT.

Indemnification

You agree to defend, indemnify, and hold harmless Cleerly, and its officers, directors, employees, agents, and customers (“Related Persons”) from and against all liabilities, costs, damages, and expenses (including, without limitation, attorneys’ fees) suffered or incurred by Cleerly and its Related Persons in connection with any claim, suit, demand, or other legal action (each, a “Claim”) brought by a third party against Cleerly or any of its Related Persons, to the extent such Claim arises from or relates to any breach by you of these Terms & Conditions.

Release

To the fullest extent permitted by applicable law, you release Cleerly and the other Related Persons from responsibility, liability, claims, demands, and/or damages (actual and consequential) of every kind and nature, known and unknown (including, but not limited to, claims of negligence), arising out of or related to disputes between users and the acts or omissions of third parties. If you are a California resident, you hereby waive any rights you may have under California Civil Code § 1542 as well as any other statute or common law principles that would otherwise limit the coverage of this release to include only those claims which you may know or suspect to exist in your favor at the time of agreeing to this release.

No Waiver

No waiver by Cleerly of any term or condition set forth in these Terms & Conditions shall be deemed a further or continuing waiver of such term or condition or a waiver of any other term or condition, and any failure by Cleerly to assert a right or provision under these Terms & Conditions shall not constitute a waiver of such right or provision.

Remedies

You agree that any violation, or threatened violation, by you of these Terms & Conditions constitutes an unlawful and unfair business practice that will cause us irreparable and unquantifiable harm. You also agree that monetary damages would be inadequate for such harm and consent to our obtaining any injunctive or equitable relief that we deem necessary or appropriate. These remedies are in addition to any other remedies we may have at law or in equity.

Governing Law and Jurisdiction

All matters relating to the Cleerly Software and/or Services and these Terms & Conditions, and any dispute or claim related thereto, shall be governed by and construed in accordance with the laws of the State of Delaware without giving effect to any conflict of law principles. Any legal suit, action, or proceeding related to these Terms & Conditions or the Cleerly Software and/or Services shall be instituted exclusively in the federal or state courts located in the State of Delaware, although we retain the right to bring any suit, action, or proceeding against you for breach of these Terms & Conditions in your state of residence. You explicitly waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts.

Miscellaneous

No waiver by Cleerly of any term in these Terms & Conditions shall be deemed a continuing waiver of such term or a waiver of any other term, and any failure of Cleerly to assert a right under these Terms & Conditions shall not constitute a waiver of such right. If any provision of these Terms & Conditions is held by a court to be invalid, illegal, or unenforceable for any reason, such provision shall be eliminated or limited to the minimum extent such that the remaining provisions of these Terms & Conditions will continue in full force and effect. These Terms & Conditions, our Privacy Policy, and each of the following, as applicable: the Business Associate Agreement, and/or the Master Services Agreement, constitute the sole and entire agreement between you and Cleerly regarding the Cleerly Software and/or Services and supersede all prior and contemporaneous understandings and agreements regarding the Cleerly Software and/or Services.

For any questions or inquiries, please contact legal@cleerlyhealth.com.

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