Theator Terms of Service

Theator Inc. and its affiliates (“Theator”, “us“, “our“, or “we“) is the creator and owner of a real-world dataset software product comprised of two general modules for surgeons: (1) content management software; and (2) a visual operative report with analytics (collectively “Product“), available through Theator’s website (“Site“). These Terms of Service (“Terms“) govern your access and use of our Site and any services available thereon, including but not limited to the Product, Content, Derivative Works and Reports (all as defined below) (collectively, “Services“). Our Privacy Notice (“Privacy Notice“) governs our collection, processing and transfer of any Personal Data (as such term is defined in the Privacy Notice). “You” means an individual using the Services independent or in the context of an agreement we have entered with a hospital or institution with which you are affiliated (“Institution” and “Customer Agreement“, respectively)

Please read these Terms carefully. By clicking on the button marked “I agree” you signify your assent to these Terms. Changes may be made to these Terms from time to time. If you do not agree to any of these Terms, please do not click the button marked “I agree” and do not use the Services.

In the event of a conflict between these terms and Customer Agreement we have entered with an Institution with which you are affiliated, the provisions of such Customer Agreement shall prevail.

Use of Services

The Product houses and analyzes video data from surgical operations and is intended to be utilized by surgeons to review and analyze prior surgeries for educational purposes. The Product does not provide real-time feedback to the surgeon during surgery and is not intended for use in making treatment decisions for patients.

Theator allows you to access the Site and use the Services subject to these Terms. Theator may, at its sole discretion and at any time, modify or discontinue providing the Site or Services or any part thereof without notice.

Use of the Services is void where prohibited by law. By using the Services, you represent and warrant that (a) any and all registration information you submit is truthful and accurate; (b) you will maintain the accuracy of such information; (c) you are 18 years of age or older and have the ability to form a binding contract; and (d) your use of the Services does not violate any applicable law or regulation or any obligation you may have to a third party and you shall comply with applicable law throughout your use of the Site and/or Services.

Once you have registered an account you will be able to upload User Content (as defined below), which will be processed by the Services (the results of such processing, “Derivative Works“). The Services shall provide you with information in respect of the videos and data provided by you through the Services (“Reports“). Reports may include a video clip with highlights of videos uploaded by you as well as statistics and analytics related to videos and data uploaded. In your account you will be able to view any historical User Content uploaded by you and associated Reports. In addition, you may be able to search for Content, including videos and (medical) information regarding surgeries and procedures.

Account Registration

In order to use the Services, you will need to have a registered account. To complete the registration process, you must provide all registration information as requested by us. We may indicate that the provision of some information is optional but your agreement to provide such information may assist us in providing you with (improved) Services. Theator may refuse to open an account for any reason, at its sole discretion.

If you are using the Services in the context of a Customer Agreement we have entered with an Institution with which you are affiliated, your account may be opened by a user with an “Administrator” type account. If you are an Administrator, you represent and warrant that you received any necessary consents and have the full right and power to provide Theator with any Personal Data that you provide for registration purposes and that you are fully and solely responsible for ensuring that the Personal Data provided relates only to individuals associated with the applicable Institution.

You agree to notify us immediately of any unauthorized use of your account or password. You are fully and solely responsible for the security of your computer system and/or mobile device and all activity on your account, even if such activities were not committed by you. To the fullest extent permitted by applicable law, Theator will not be liable for any losses or damage arising from unauthorized use of the Services, and you agree to indemnify and hold Theator harmless for any unauthorized, improper or illegal use of your account, and any charges and taxes incurred, unless you have notified us via e-mail at contact@theator.io that your account has been compromised and have requested that we block access to it, which we will do as soon as reasonably practicable. We do not police for and cannot guarantee that we will learn of or prevent any inappropriate use of the Services.

Termination of Account

You agree that Theator may, for any reason, at its sole discretion and without notice, terminate your account, and may remove any Content (as defined below) associated with your account from the Services and take any other corrective action it deems appropriate. Grounds for such termination may include (i) extended periods of inactivity, (ii) violation of the letter or spirit of these Terms, (iii) fraudulent, harassing or abusive behavior, (iv) behavior that is illegal or harmful to other users or the business interests of Theator; or (v) termination, suspension, or expiration of the Customer Agreement between us and the Institution for any reason. If your account is terminated, you may not rejoin Theator again without our express permission.

Upon termination of your account, you shall not have any further access to any Content (including User Content) that may be available through your account.

We reserve the right to investigate suspected violations of these Terms or illegal and inappropriate behavior through the Services. We will fully cooperate with any law enforcement authorities or court order requesting or directing us to disclose the identity, behavior or Content of anyone believed to have violated these Terms or to have engaged in illegal behavior in connection with the Services.

You may request termination of your Theator account at any time and for any reason by sending an email to contact@theator.io. Following such request, Theator shall close your account as soon as reasonably practicable. Any suspension, cancellation or termination of your account shall not affect your obligations under these Terms (including but not limited to ownership, indemnification, any representations and warranties made by you, and limitation of liability), which by their sense and context are intended to survive such suspension, cancellation or termination.

Content

Certain types of content may be made available through the Services. “Content” as used in these Terms means, collectively, all content on or made available through the Services, including any images, pictures, videos, information, documents and modifications or derivatives of the foregoing. Theator allows you to upload certain content, including but not limited to videos and medical information, comments, and annotations, on or through the Services, referred to herein as “User Content“.

You may be permitted to add comments or annotations to certain Content such as videos available through the Services. Such comments or annotations are considered User Content and may be visible to other users on a de-identified basis or, in the case of users affiliated with the same institution, on an identified basis. Visibility permissions to users within an Institution will be determined by the administrator of the Institution.

You may be permitted to communicate with other users associated with the same Institution, including by chat. This can be done either on a named basis or using aliases. In the event that another user comments on a video you uploaded, you will receive a notification thereof and will be able to respond.

Content comes from a variety of sources. You understand that Theator is not responsible for the accuracy, usefulness, safety, appropriateness of, or infringement of any intellectual property rights of or relating to this Content (including but not limited to the User Content). Although users must agree to these Terms, it is possible that other users (including unauthorized users) may post or transmit offensive or obscene materials and that you may be involuntarily exposed to such offensive or obscene materials. You hereby waive any legal or equitable rights or remedies you have or may have against us with respect thereto.

Theator may choose at its sole discretion to monitor User Content for inappropriate or illegal behavior, including through automatic means; provided, however, that Theator reserves the right to treat User Content as content stored at the direction of users for which Theator will not exercise editorial control except when violations are directly brought to Theator’s attention.

THEATOR DOES NOT ENDORSE ANY CONTENT (INCLUDING, WITHOUT LIMITATION, ANY USER CONTENT) OR ANY OPINION, RECOMMENDATION, OR ADVICE EXPRESSED IN ANY CONTENT AND EXPRESSLY DISCLAIMS ANY AND ALL LIABILITY IN CONNECTION WITH THE CONTENT AND/OR USER CONTENT.

WE DISCLAIM ALL LIABILITY, REGARDLESS OF THE FORM OF ACTION, FOR THE ACTS OR OMISSIONS OF ANY AND ALL USERS (INCLUDING UNAUTHORIZED USERS), WHETHER SUCH ACTS OR OMISSIONS OCCUR DURING THE USE OF THE SERVICE OR OTHERWISE.

User Content Restrictions

Theator has no obligation to accept, display, or maintain any User Content. Moreover, Theator reserves the right to remove and permanently delete any User Content uploaded by you without notice and for any reason.

You are and shall remain at all times fully and solely responsible for any User Content you upload to the Services. You represent and warrant that any User Content that you upload (i) complies with applicable law; (ii) does not infringe or violate any third party intellectual property, privacy, publicity, or moral rights; (iii) you own the User Content you have all necessary rights, licenses, and authorities to submit such User Content; and (iv) any User Content uploaded by you is and shall be accurate. Any User Content posted or submitted through the Services shall not be considered confidential and may be disseminated by Theator without compensation to you.

Without limiting the foregoing, you agree that you will not transmit, submit or upload any User Content or act in any way that: (1) restricts or inhibits use of the Services; (2) violates the legal rights of others, including defaming, abuse, stalking, or threatening users; (3) infringes (or results in the infringement of) the intellectual property rights, moral rights, publicity, privacy, or other rights of any third party; (4) is (or you reasonably believe or should reasonably believe to be) stolen, illegal, counterfeit, fraudulent, pirated, violent or unauthorized, or in furtherance of any illegal, counterfeiting, fraudulent, pirating, unauthorized, or violent activity, or that involves (or you reasonably believe or should reasonably believe to involve) any stolen, illegal, counterfeit, fraudulent, pirated, or unauthorized material; (5) does not comply with all applicable laws, rules and regulations; (6) imposes an unreasonably or disproportionately large load on our infrastructure; (7) identifies or may identify (directly or indirectly) any other individual, including any patient; or (8) posts, stores, or transmits anything that contains or contains links to the following: (a) material that we determine to be offensive (including material promoting or glorifying hate, violence, bigotry, or any entity (past or present) principally dedicated to such causes or items associated with such an entity), (b) material that is racially or ethnically insensitive, material that is defamatory, harassing or threatening, (c) pornography or obscene material, (d) any virus, worm, trojan horse, or other harmful or disruptive component, or (e) anything that would violate any law or regulation or is otherwise inappropriate or offensive.

It is possible for others to obtain Personal Data about you due to your use of the Services, including through any User Content such as comments that you make available through your account. Anyone receiving or viewing User Content may use information you provided through such User Content (such as your contact details or location) for purposes other than what you intended. We are not responsible for the use of any Personal Data that you disclose on the Services or through any User Content by any third party. By making any information available through the Services you acknowledge that you understand and have agreed to such risks.

Use Restrictions

You may not do or attempt to do or facilitate a third party in doing any of the following: (1) decipher, decompile, disassemble, or reverse-engineer any of the software and/or code, if and as applicable, used to provide the Services without our prior written authorization, including framing or mirroring any part of the Services; (2) circumvent, disable, or otherwise interfere with security-related features of the Services or features that prevent or restrict use or copying of any content; (3) use the Services or content thereon in connection with any commercial endeavors in any manner, except for the purposes specifically set forth in these Terms; (4) use any robot, spider, site search or retrieval application, or any other manual or automatic device or process to retrieve, index, data-mine, or in any way reproduce or circumvent the navigational structure or presentation of the Services; (5) use or access another user’s account or password without permission; or (6) use the Services or Content in any manner not permitted by these Terms.

Intellectual Property

Theator, or its licensors, as the case may be, own the Services, Derivatives Works and all Content available on the Services, including all worldwide intellectual property rights in the Services, and the trademarks, service marks, and logos contained therein registered and unregistered. Except as expressly permitted herein, you may not copy, further develop, reproduce, republish, modify, alter download, post, broadcast, transmit or otherwise use the Services and/or the Derivatives Works. You will not remove, alter or conceal any copyright, trademark, service mark or other proprietary rights notices incorporated in the Services, if any. All trademarks are trademarks or registered trademarks of their respective owners. Nothing in these Terms grants you any right to use any trademark, service mark, logo, or trade name of Theator or any third party. If you provide Theator with any feedback regarding any content on the Services, Theator may use all such feedback without restriction and shall not be subject to any non-disclosure or non-use obligations in respect of such feedback.

Subject to these Terms, Theator grants you a limited, revocable, non-exclusive right to use the Services, the Derivative Works and the Reports available through the Services for your own personal use as a surgeon or medical service provider.

You own the User Content you upload to the Services and all intellectual property rights related thereto, including any comments or annotations. By submitting, posting, or uploading any User Content, you grant Theator and its successors and assignees a worldwide, non-exclusive, royalty-free, perpetual, sub-licensable and transferable license under any intellectual property, moral or privacy rights to use, copy, distribute, transmit, modify, prepare derivative works of, retain, publicly display, and publicly perform such User Content on, through or in connection with the Services in any media formats and through any media channels, including without limitation, for improving the Services.

Copyright

The policy of Theator is not to infringe upon or violate the intellectual property rights or other rights of any third party, and Theator will refuse to use and remove any User Content in connection with the Services that infringes the rights of any third party. Under the Digital Millennium Copyright Act of 1998 (the “DMCA“), Theator will remove any Content (including without limitation any User Content) if properly notified of that such material infringes third party rights, and may do so at its sole discretion, without prior notice to users at any time. The policy of Theator is to terminate the accounts of repeat infringers in appropriate circumstances.

You are in the best position to judge whether User Content is in violation of intellectual property or personal rights of any third-party. You accept full responsibility for avoiding infringement of the intellectual property or personal rights of others in connection with User Content. Theator will remove any Content (including without limitation any User Content) if properly notified of that such material infringes third party rights, and may do so at its sole discretion, without prior notice to users at any time.

If you believe that something appearing on the Services infringes your copyright, you may send us a notice requesting that it be removed, or access to it blocked. If you believe that such a notice has been wrongly filed against you, the DMCA lets you send us a counter-notice. Notices and counter-notices must meet the DMCA’s requirements. We suggest that you consult your legal advisor before filing a notice or counter-notice. Be aware that there can be substantial penalties for false claims. Send notices and counter-notices to us by contacting us at contact@theator.io.

Data Retention

You must create backups of your data, and Theator shall have no responsibility or liability in respect of any loss of or damage to any data.

Disclaimers and Disclaimer of Warranty

All information and Content provided through the Services is for informational purposes only and Theator provides no guarantees with respect thereto. Your use of the Services is at your sole discretion and risk. The Services and Content thereon, are provided on an AS IS and AS AVAILABLE basis without warranties of any kind. We do not represent or warrant that the Services or any Content will be of good quality or useful for your needs.

WE EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, RELATING TO THE SERVICES, CONTENT THEREOF (INCLUDING USER CONTENT AND REPORTS), INCLUDING WITHOUT LIMITATION THE WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF PROPRIETARY RIGHTS, COURSE OF DEALING OR COURSE OF PERFORMANCE. WE DISCLAIM ANY WARRANTIES, EXPRESS OR IMPLIED, (I) REGARDING THE SECURITY, ACCURACY, RELIABILITY, TIMELINESS AND PERFORMANCE OF THE SERVICES; (II) THAT THE SERVICES WILL BE ERROR-FREE OR THAT ANY ERRORS WILL BE CORRECTED; OR (III) REGARDING THE PERFORMANCE OF OR ACCURACY, QUALITY, CURRENCY, COMPLETENESS OR USEFULNESS OF ANY INFORMATION PROVIDED BY THE SERVICES, INCLUDING BUT NOT LIMITED DERIVATIVE WORKS AND REPORTS.

YOU ACKNOWLEDGE THAT NEITHER THEATOR NOT THE SERVICES OR ANY MATERIALS AND/OR CONTENT PROVIDED AS PART OF THE SERVICES SHOULD BE CONSIDERED AS MEDICAL OR PROFESSIONAL ADVICE AND YOU ARE AND SHALL AT ALL TIMES BE SOLELY RESPONSIBLE FOR ANY ACTIONS YOU MAY TAKE IN CONNECTION WITH USE OF THE SITE AND/OR SERVICES AND ANY INFORMATION AVAILABLE THROUGH THE SITE AND/OR SERVICES, INCLUDING BUT NOT LIMITED THE DERIVATIVE WORKS AND THE REPORTS. THEATOR MAKES NO WARRANTY THAT THE REPORTS PROVIDED SHALL BE USEFUL TO YOU OR IMPROVE FUTURE PERFORMANCE. You are solely responsible for any action you may take based on the Reports and in making any decision you should take into account the possibility that information provided by the Reports may not represent an accurate assessment.

No advice or information, whether oral or written, obtained by you from us, shall create any warranty not expressly stated in these Terms. If you choose to rely on such information, you do so solely at your own risk. Some states or jurisdictions do not allow the exclusion of certain warranties. Accordingly, some of the above exclusions may not apply to you. Check your local laws for any restrictions or limitations regarding the exclusion of implied warranties.

Limitation of Liability

In addition to the foregoing, we assume no responsibility for any error, omission, interruption, deletion, defect, delay in operation or transmission, communications line failure, theft or destruction or unauthorized access to, or alteration of, any Content or Services. We are not responsible for any problems or technical malfunction of any telephone network or lines, computer online systems or equipment, servers or providers, software, damage to users or to any person’s device related to or resulting from use of the Services or the uploading of videos in connection therewith. Under no circumstances shall we be responsible for any loss or damage, including personal injury or death, resulting from use of the Services, from any Content, or from the conduct of any users of the Services, whether online or offline.

IN NO EVENT SHALL WE OR ANY OF OUR OFFICERS, DIRECTORS, EMPLOYEES, ASSIGNEES, OR AGENTS BE LIABLE TO YOU FOR ANY DAMAGES WHATSOEVER, INCLUDING WITHOUT LIMITATION INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF THE SITE, SERVICES OR ANY CONTENT, INCLUDING BUT NOT LIMITED TO THE QUALITY, ACCURACY, OR UTILITY OF THE SERVICES PROVIDED AS PART OF OR THROUGH THE SERVICES, WHETHER THE DAMAGES ARE FORESEEABLE AND WHETHER OR NOT WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION AND IN NO EVENT SHALL OUR CUMULATIVE LIABILITY TO YOU EXCEED THE AMOUNT YOU HAVE PAID US IN THE TWELVE MONTHS PRECEDING THE APPLICABLE CLAIM. IF YOU HAVE NOT MADE ANY PAYMENTS TO THEATOR FOR THE USE OF THE SERVICES, THEN THEATOR SHALL NOT HAVE ANY LIABILITY TOWARDS YOU.

Indemnification

You agree to indemnify, defend, and hold harmless Theator and each of its employees, directors, officers, subcontractors and agents of each, against any and all claims, damages, or costs or expenses (including court costs and attorneys’ fees) that arise directly or indirectly from: (a) breach of these Terms by you or anyone using your computer and/or mobile device, account (whether authorized or unauthorized); (b) any claim, loss or damage experienced from your use or attempted use of the Services, including any videos or information uploaded to the Services; (c) your violation of any law or regulation including but not limited to any privacy and/or data protection laws and regulations or your obligations, representations, or warranties hereunder; (d) your infringement of any right of any third party; and (e) any other matter for which you are responsible hereunder or under applicable law.

Miscellaneous

These Terms shall be governed by the laws of the State of California exclusive of its choice of law rules, and without regard to the United Nations Convention on the International Sales of Goods and the competent courts in the State of California shall have exclusive jurisdiction to hear any disputes arising hereunder. In the event that any provision of these Terms is held to be unenforceable, such provision shall be replaced with an enforceable provision which most closely achieves the effect of the original provision, and the remaining terms of these Terms shall remain in full force and effect. Nothing in these Terms creates any agency, employment, joint venture, or partnership relationship between you and Theator or enables you to act on behalf of Theator. Except as may be expressly stated in these Terms, these Terms constitute the entire agreement between us and you pertaining to the subject matter hereof, and any and all other agreements existing between us relating thereto are hereby canceled. We may assign and/or transfer our rights and obligations hereunder to any third party without prior notice. You shall not assign and/or transfer any of your rights or obligations hereunder, and any assignment in violation of the foregoing shall be void. No waiver of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. If we are required to provide notice to you hereunder, we may provide such notice to the contact details you provided upon registration.

Last updated: May 2020