IKOSA – Terms of Service

PLEASE READ THESE TERMS OF SERVICE (“AGREEMENT”) CAREFULLY.

THIS AGREEMENT IS A LEGALLY BINDING AGREEMENT BETWEEN KOLAIDO GMBH, WITH LEGAL SEAT AT FLUGHAFENSTRASSE 11, 9423 ALTENRHEIN, SWITZERLAND (“KOLAIDO”) AND THE INDIVIDUAL ACCEPTING THIS AGREEMENT OR A LEGAL ENTITY IF THE INDIVIDUAL IS ACCEPTING THIS AGREEMENT ON BEHALF OF A LEGAL ENTITY, IDENTIFIED IN AN ORDER FORM (THE “USER”). THIS AGREEMENT REGULATES THE ACCESS AND USE OF KOLAIDO’S IMAGE DATA MANAGEMENT AND IMAGE ANALYSIS PLATFORM KNOWN AS “IKOSA” (THE “SERVICE”). ACCESS AND USE OF THE SERVICE BY THE USER ARE CONDITIONED UPON ACCEPTANCE OF THIS AGREEMENT BY TICKING THE BOX NEXT TO “AGREE” OR SIMILAR CONFIRMATION UPON INITIAL REGISTRATION TO ACCESS THE SERVICE AND ANY PROCESS DURING THE USE OF THE SERVICE IN ACCORDANCE WITH KOLAIDO’S ORDER PROCESS.

IF AN INDIVIDUAL IS ACCEPTING THIS AGREEMENT ON BEHALF OF A LEGAL ENTITY, THE INDIVIDUAL CONFIRMS THAT SHE/HE HAS THE LEGAL RIGHT AND CAPACITY TO ACCEPT THIS AGREEMENT ON BEHALF OF THE LEGAL ENTITY. THE USER CONFIRMS THAT SHE/HE HAS THE LEGAL RIGHT AND CAPACITY TO ENTER INTO THIS AGREEMENT IN HER/HIS JURISDICTION.

I. ACCESS TO THE SERVICE

1. Scope: The Service is offered by KOLAIDO in one “free” and several different “fee-based” versions. All versions are summarized under the term “Service”. Any differences in policy between the versions are explicitly described in this Agreement. By accepting the terms of this Agreement, the User accepts the policies regarding the version of the Service in use by the User.

2. Registration: To access the Service, the User must register through any of KOLAIDO’s websites (e.g. www.kolaido.com, www.ikosa.ai, app.ikosa.ai) and/or any other process provided by KOLAIDO (e.g. e-mail) for submission of an order processing form under this Agreement (“Order Form”). The User can upgrade from “free” to “fee-based” access to the Service by using the adequate online Order Forms.

3. Responsibility: The User: (a) agrees to provide accurate and complete information when registering and to inform KOLAIDO of any changes to the information provided immediately; (b) is responsible for maintaining the privacy of all login and account information for the use of the Service and must not disclose her/his credentials; (c) must not use the Service for any illegal or unauthorized purpose; (d) is fully responsible for any activities that are taken under her/his account.

4. Right to Access and Use: KOLAIDO grants the User a limited, non-exclusive, non-sublicensable, non-transferable, revocable right to access and use the Service in the version ordered by the User through the Order Form. This right is temporally limited according to the Subscription Period as defined below.

5. Availability and Changes: KOLAIDO makes every effort to provide a high-quality service to the User. Due to maintenance, server downtime or any other issues, KOLAIDO may stop providing the Service temporarily at any time. KOLAIDO assures to do its best to limit the impact of those cuts and will inform the User when deemed necessary. The User acknowledges and agrees that KOLAIDO does not provide a guarantee for the availability of the Service. KOLAIDO shall have no liability as a result of any unavailability or any change of the Service.

6. Compatibility: KOLAIDO makes every effort to provide the Service in a way that it can be used with currently available standard hardware and software with appropriate security settings. By upgrading from “free” to “fee-based” access to the Service, the User confirms that she/he/it has tested the free version sufficiently for compatibility and accepts that no extraordinary termination of this Agreement/the Service is possible.

II. RESTRICTIONS AND LIMITATIONS

1. Restrictions: The User shall not: (a) transfer rights of the Service; (b) create derivative works of the Service; (c) attempt to discover the source code of the Service or to find out how the Service is provided; (d) use any kind of software that attempts to interfere with the operation of the Service; (e) use the Service in any way that violates any applicable law, rights of KOLAIDO, the Service itself or any third parties.

Further, the User shall not: (a) use or attempt to use another User’s account without authorization from that User and KOLAIDO; (b) use the Service in any manner that could interfere with, disrupt, negatively affect or inhibit other Users from fully experiencing the Service or that could damage, disable, overburden or impair the functioning of the Service in any manner; (c) reverse engineer any aspect of the Service, bypass or circumvent measures employed to prevent or limit access to any part of the Service; (d) attempt to circumvent any content-filtering techniques employed or attempt to access any feature or area of the Service that she/he/it is not authorized to access; (e) develop or use any third-party applications that interact with the Service without prior written consent of KOLAIDO, including any scripts designed to scrape or extract data from the Service; (f) use the Service for any illegal or unauthorized purpose, or engage in, encourage or promote any activity that violates this Agreement.

In addition, the User shall not violate any applicable law, contract, intellectual property or other third-party right or commit a tort, and she/he is solely responsible for her/his/its conduct while accessing or using the Service.

2. Limitations: No rights or licenses are granted except the access rights as defined in section I.4. All other rights are specifically excluded and denied. Removed content may continue to be stored by KOLAIDO, including, without limitation, in order to comply with certain legal obligations. The Service is not a redundant backup service and the User agrees that she/he/it will not solely rely on the Service for the purpose of content backup and storage. KOLAIDO will not be liable to the User for any modification, suspension, or discontinuation of the Service, or the loss of any content.

3. Use of Generated Data: At the sole discretion of KOLAIDO, a time-limited and/or feature-limited trial of the “fee-based” version of the Service may be offered to the User. This trial facilitates the evaluation of the Service by the User beyond the “free” version and may be provided free of charge. Any data (e.g. computational models, image analysis results, etc.) generated within this trial period is not permitted to be used in any other scope other than the internal evaluation of the User or the represented legal entity towards a decision to purchase the “fee-based” Service.

4. Citation: Any use and naming of the Service in published material of any form requires a citation of KOLAIDO and the Service. In the context of scientific research, the User agrees to follow Good Scientific Practice for citing software and associated applications. The style of the respective publication media shall be applied accordingly.

III. VALIDITY OF THIS AGREEMENT

1. Effectiveness of Agreement: This Agreement is effective upon acceptance by the User and shall remain in effect until the termination as defined below.

2. Termination by the User: The User who is using the “free” access to the Service and wants to stop using the Service has the right to terminate this Agreement for any reason at any time. The User who is using the “fee-based” access to the Service and wants to stop using the Service has the right to terminate this Agreement by the end of the current Subscription Period considering the applicable notice period. The notice of termination has to be provided by the User through the means KOLAIDO designates, which may include account settings in the Service (e.g. account deletion) or by contacting KOLAIDO by written notice including e-mail.

3. Termination by KOLAIDO: KOLAIDO has the right to terminate this Agreement with the User who is using the “free” access to the Service for any reason at any time. KOLAIDO has the right to terminate this Agreement with the User who is using “fee-based” access to the Service at the end of the Subscription Period as defined below.

4. Termination due to Violation: If the User breaches any terms of the Agreement, KOLAIDO has the right for extraordinary termination of this Agreement and/or to suspend or terminate the User’s access to the Service temporarily or permanently. In the case that the User is using “fee-based” access to the Service, the User loses her/his/its right for refunds.

5. Survival: Sections V, VI, VII, IX, X, and XIII shall survive the termination or expiration of this Agreement for any reason.

IV. SUBSCRIPTION

1. Subscription and Subscription Period: The User subscribes for the usage of a specific version of the different available versions of the Service (“Subscription”) either during registration (“free” version) or by using an adequate Order Form, in which the User confirms the purchase of the Subscription. This subscribed version of the Service is provided by KOLAIDO to the User for a specific duration (“Subscription Period”). Except as otherwise specified in the Order Form, the Subscription Period for each Subscription is 1 (one) year, starting from the day defined in section IV.2.

2. Start of Subscription Period: The Subscription Period of the “free” version starts when the User accepts this Agreement for the first time. The Subscription Period of a “fee-based” version starts when the payment of the applicable Fees defined in the Order Form is received and/or KOLAIDO subsequently unlocks the specific “fee-based” version.

3. Rescission: By upgrading from “free” to a “fee-based” version of the Service, the User confirms that she/he/it has evaluated the “free” version sufficiently for her/his purpose of the operation and waives any right of rescission.

4. Termination and Renewal: The User has the right to terminate the Subscription at the end of the Subscription Period with a notice period of six weeks. This notice of non-renewal has to be provided by the User through the means KOLAIDO designates, which may include account settings in the Service or by contacting KOLAIDO by written notice including e-mail. If the Service is not terminated in consideration of this notice period, the Subscription is renewed tacitly for another Subscription Period, unless automatic renewal has been waived upon explicit agreement. All renewals are subject to the applicable Service continuing to be offered and will be charged at the then-current rates.

5. Upgrade and Downgrade: The User has the right to switch from the Subscription of “fee-based” version A to version B of the Service using an adequate Order Form or by written notice: (a) at any time, if the Fees for version B are higher than for version A (“Upgrade”); (b) within a notice period of six weeks at the end of the Subscription Period, if the Fees for Version B are less than for version A (“Downgrade”). In case of a Downgrade, at the end of the Subscription Period of version A, the Service has to be used by the User in a way that is in accordance with version B (number of users, used storage, etc.), otherwise, the Subscription for version A of the Service is renewed and the Fees for version A apply.

6. Add-ons: The User may subscribe for special premium features (“Add-ons”) within the Service for the duration of the current Subscription (“Add-on Subscription”). The duration of the Add-on Subscription is coupled with the Subscription Period of the Service and the same conditions apply.

7. Fair Use Policy: KOLAIDO does not charge separately for network traffic costs incurred as a result of using the Service, and assigns each account a specific download network quota, calculated as twice the defined storage within the Order Form for a reference period of two months. KOLAIDO reserves the right to limit and/or suspend the User’s access to the Service should network traffic exceed the assigned quota for a significant period of time. Before suspending the User’s account, KOLAIDO will reach out to notify the User of the excessive use, and offer an upgrade of the KOLAIDO’s data plan to increase the network quota.

V. BILLING AND PAYMENT

1. Fee: Access and use of the Service in the “free” version are free of charge. The User accessing the Service as a “fee-based” version and/or using fee-based Add-ons shall pay to KOLAIDO the fees defined on the applicable Order Form (“Fees”) on terms defined within this Agreement or in the Order Form. All Fees have to be paid upfront and are non-refundable. If not otherwise specified in the Order Form, Fees are based on the Subscription and Subscription Period and become due upfront for the use of a “fee-based” version of the Service for each Subscription Period as a recurring payment.

2. Automatic Payment: If the Subscription for a “fee-based” version is renewed, KOLAIDO automatically charges the Fees for the new Subscription through the payment method provided by the User during initial payment or updated afterwards, up to two weeks before the new Subscription starts.

3. Default in Payment and Payment Reminder: In case of default in payment, the User must pay all costs incurred by KOLAIDO due to the default in payment. This also applies for unsuccessful direct debit procedures that are the fault of the User (e.g. due to insufficient funds). KOLAIDO may also invoice reasonable charges for issuing payment reminders. In case of default in payment, KOLAIDO reserves the right to suspend the User’s access to the Service temporarily until complete payment is received.

4. Change of Fee: The User acknowledges that KOLAIDO has the right to change the Fees for Subscriptions or Add-on Subscriptions for any reason at any time, especially for index adjustment. The changed Fees only affect new or renewed Subscriptions or Add-on Subscriptions. KOLAIDO will inform the User if she/he/it will be affected before potential renewals. During the Subscription Period, the Fees of the Subscriptions or Add-on Subscriptions currently used by the User are not changed.

5. Electronic Invoice: The User agrees that the invoice for a “fee-based” version is provided in electronic form.

6. Transaction Fees: The User acknowledges that her/his/its credit card issuer may charge (foreign) transaction or cross-border fees (“Transaction Fees”) in addition to the total price stated in the Order Form. The User has to pay these Transaction Fees.

VI. CONTENT, DATA, COMMUNICATION

1. Content: The User is solely responsible for the content that she/he/it submits to the Service. The User must not upload any content protected by copyright or other intellectual property rights without prior approval of the copyright or intellectual property owner. The User must not upload any content that: (a) is unlawful, libelous, defamatory, obscene, pornographic, indecent, lewd, suggestive, harassing, threatening, invasive of privacy or publicity rights, abusive, inflammatory or fraudulent; (b) would constitute, encourage or provide instructions for a criminal offence, violate the rights of any party or otherwise create liability or violate any local, state, national or international law; (c) may infringe any patent, trademark, trade secret, copyright or another intellectual or proprietary right of any party; (d) contains any private or personal information of a third party without such third party’s consent; (e) contains any viruses, corrupted data or other harmful, disruptive or destructive files or content; or (f) is, in the sole judgment of KOLAIDO, objectionable or that restricts or inhibits any other person from using the Service, or that may expose KOLAIDO or others to any harm or liability of any type.

The User represents and warrants that: (a) she/he/it owns the content uploaded by her/him/it or otherwise has the right to grant the rights and licenses set forth in this Agreement and (b) she/he/it agrees to pay for all royalties, fees, and any other monies owed by reason of content she/he/it uploaded.

2. De-Identified Data and Privacy: Except for her/his/its own user account and organization profile data, the User shall only transfer completely De-Identified data to the Service. “De-Identified Data” means de-identified information (e.g. images, filenames, metadata, text, etc.) from which all personal identifiers have been removed such that there is no possibility that any transferred information can be used to identify individuals. The User shall not submit any “personal health information” to the Service. The User acknowledges and agrees that (a) KOLAIDO is not, and is not required to be, compliant with any medical device, in-vitro diagnostics, healthcare or pharma regulations, nor with similar or related laws and regulations; (b) the User is responsible for compliance with applicable Privacy Laws, e.g. the User confirms to be the “controller” defined in the Swiss Federal Data Protection Act (FADP).

The User hereby takes notice, that KOLAIDO is entitled to process, deliver or transmit personal data relating to the User as far as this is either necessary or appropriate for KOLAIDO to fulfil tasks assigned by the User to KOLAIDO, or as far as this is based on legal provisions. Data collected or provided may include personal data of the User which is subject to specific legislation relating to the processing, storage, transfer and use of such data. KOLAIDO will comply with all relevant laws relating to the protection and use of personal data and data privacy. KOLAIDO further will take all technical and organizational measures to prevent unauthorized or unlawful processing or accidental loss or destruction of, or damage to, or disclosure of such data. In compliance with applicable data security laws (including but not limited to: FADP and EU-GDPR) personal data relating to the User will be processed and used for legal purposes only.

3. Unauthorized Data: In the case that the User transfers data to the Service that do not qualify as De-Identified Data, that contain otherwise personal (health) information, that shows/describes illegal or otherwise objectionable material (e. g. pornography, violence, etc.) or that contains data subject to copyright infringement (“Unauthorized Data”), (a) KOLAIDO shall have the right, but not the obligation, to delete any Unauthorized Data and (b) KOLAIDO shall not be liable for any dissemination of Unauthorized Data. The User confirms that KOLAIDO is not responsible for monitoring the Service for Unauthorized Data and that KOLAIDO shall have no liability under this Agreement for Unauthorized Data received from the User.

4. Communication: The User agrees to communication by electronic media, particularly e-mail, even in non-encrypted form. If another form of correspondence is desired, the User has to expressly notify KOLAIDO thereof.

VII. FEEDBACK

The User may provide to KOLAIDO feedback, suggestions and ideas for improvements regarding the use of the Service in written or oral form (“Feedback”). The User hereby transfers to KOLAIDO all worldwide rights to make use of this Feedback for all business purposes without any accounting or any payment to the User.

VIII. PRIVACY POLICY

Please read the Privacy Policy for all information regarding the use of personally identifiable information. The User acknowledges that the use of any personally identifiable information collected by KOLAIDO will be in accordance with the Privacy Policy.

IX. WARRANTY AND LIMITATION OF LIABILITY

1. Warranty: The User, including its representative in case of a legal entity, and KOLAIDO represent and warrant that they have the legal power and authority to enter into this Agreement and any Subscription and/or Add-on Subscription.

2. Limitation of Liability: The User acknowledges and agrees that the Service is provided on an “as is” and “as available” basis and without warranties of any kind, either expressed or implied, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, title, and non-infringement. KOLAIDO does not represent or warrant that the Service is accurate, complete, reliable, current or error-free as well as that the Service or servers are free of viruses, other harmful components, or safe from hacker attacks. The User assumes the entire risk as to the quality and performance of the Service. KOLAIDO makes every reasonable effort to provide the Service in high quality. The User has the obligation of checking all evaluations, analysis results, documents, or other data provided by the Service, their fitness for a particular purpose and is responsible for further use.

KOLAIDO’S OR ANY OF KOLAIDO’S OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, LICENSORS OR PARTNERS LIABILITY IS LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW TO THE USER OR ANY THIRD PARTY FOR ANY DIRECT OR INDIRECT DAMAGES (E.G. LOST DATA, LOST PROFIT, LOST REVENUES, ETC.), WHICH MAY RESULT OUT OF OR IN CONNECTION WITH THE SERVICE, SUBSCRIPTIONS, OR ADD-ON SUBSCRIPTIONS.

2.1. The liability of KOLAIDO and each of their respective officers, directors, employees, agents, licensors or partners irrespective of the legal ground, is – in cases of slight negligence – limited in total for each individual claim/single case of damage to the amount paid, if any, by the User for the Service add-ons etc. in the current Subscription Period.

2.2. An individual claim/single case of damage shall be: either the sum of all damage claims asserted by all damaged persons/beneficiaries resulting from one and the same action, i.e. one single act; or: the sum of all claims asserted by one and the same claimant/beneficiary based on different actions but in a legal or economic context therewith; or: the sum of all claims in connection with a uniform damage resulting from one or more actions. For each individual claim/single case of damage, KOLAIDO only provides for one single payment (limited with the above-mentioned amount) with respect to all consequences of the wrongful act, also in case of more than one person being liable to pay compensation.

2.3. The above limitation of liability also applies in case that KOLAIDO becomes liable towards any other person than the User, for example, in case that the contractual relationship with the User includes third persons into the scope of protection; this limitation of liability especially applies with respect to companies, in which the User holds either directly or indirectly participation, or which are either direct or indirect shareholders of the User, or which are under joint control with the User, or which are in any other form associated with the User.

2.4. The limitation of liability according to Clauses 2.1 til 2.3, respectively, do not apply in cases of personal injuries.

3. Unauthorized Access: Although KOLAIDO takes precautions to protect its network from unauthorized access by third parties, KOLAIDO cannot be held liable for such unauthorized access.

X. INDEMNIFICATION BY THE USER

1. To the fullest extent permitted by applicable law, the User will indemnify, defend, and hold harmless KOLAIDO and its officers, directors, employees, agents, licensors or partners (individually and collectively, the “Indemnified Parties”) against all claims and proceedings (including any settlements made with the consent of the KOLAIDO and the User and reasonable legal and expert costs and expenses incurred by KOLAIDO) made or brought (whether successfully or otherwise) by whoever arising out of or related to (a) the User’s access to or use of the Service; (b) her/his/its content; (c) her/his/its violation this Agreement; (d) her/his/its violation, misappropriation or infringement of any rights of another person (including intellectual property rights or privacy rights); (e) the violation of any laws or regulations or (f) her/his/its conduct in connection with the Service.

2. The User agrees to promptly notify Indemnified Parties of any third party claims against her/him/it, to cooperate with Indemnified Parties in defending such claims and pay all fees, costs and expenses associated with defending such claims (including any settlements made with the consent of KOLAIDO and the User and reasonable legal and expert costs and expenses). The User also agrees that the Indemnified Parties may have at KOLAIDO’s discretion control of the defence or settlement of any third party claims.

XI. LAPSE / PRECLUSIVE PERIOD / TERMINATION

1. Unless the law stipulates a shorter term of lapse or preclusion, all claims against KOLAIDO shall lapse within six months as of the date at which the User becomes aware of the damage and the damaging party, or of the incident that otherwise gives rise to a claim, but at the latest after the expiry of two years as of the conduct (infringement) causing the damage (giving rise to a claim).

2. KOLAIDO reserves the right, in its sole discretion, to terminate the User’s right to access or use the Service, whereby KOLAIDO will notify the User in advance with a suitable notice period.

XII. REVISIONS TO THIS AGREEMENT

1. KOLAIDO reserves the right to alter this Agreement at any time without prior notice to the User. In the case of a modified version of this Agreement, KOLAIDO will notify the User via e-mail or through the Service. All modifications become immediately effective with the publication.

2. The User has to accept the new version of this Agreement for further use of the Service. Continued use of the Service by the User after any modification to this Agreement will be considered as an acceptance of the modification by the User.

XIII. MISCELLANEOUS

1. Swiss law is exclusively applicable without giving regard to its conflict rules principles, the UN-purchase laws (CISG, Vienna UN Sales Convention) shall be excluded. The place of performance and exclusive legal venue shall be Altenrhein, Switzerland.

2. If any provision of this Agreement is held to be invalid, illegal or unenforceable, the legality, validity and enforceability of the remaining provisions of this Agreement shall not be affected or impaired thereby, and the invalid, illegal or unenforceable provision shall be deemed superseded by a valid, legal and enforceable provision that most closely matches the intent of the original provision. The same procedure shall apply in the event of contractual omissions.

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