STRATX® TERMS OF SERVICE
Last modified: February 11, 2022
Welcome to the StratX® Lung Analysis Platform, an offering from Pulmonx International Sarl (“Pulmonx” or “Company”). These legally binding terms of service, as may be amended by us from time to time (“Terms”), apply to the portal hosted at https://www.PulmonxStratX.com and associated web pages (the “Website”) and the StratX® Lung Analysis Platform made available therein (collectively, the “Platform”).
StratX® is a cloud-based quantitative computed tomography (“CT”) analysis service that supports patient selection and treatment targeting using Pulmonx products by providing information on emphysema destruction, fissure completeness and lobar volumes and procedural success based on post-treatment scans. The Platform allows Pulmonx customers to Upload fully de-identified/pseudonymised lung CT scans for patients that a customer wishes to be assessed for potential use of the Zephyr Valve or other Pulmonx products, or for post-implantation revisions (“Scans”). Pulmonx then generates a report, including associated data and information, unique to that Scan which contains, among other things, tabulated data on fissure completeness by lobe, destruction score by lobe, and inspiratory lobar volume and valve occlusion status by airway (the “Report”). You and Pulmonx may access Scans that you Upload and Reports generated from such Scans to facilitate treatment discussions (including with Pulmonx representatives). Pulmonx may also share de-identified/pseudonymised Scans and Reports within our organization and with our contractors and vendors as appropriate.
These Terms govern your use of the Platform. By accepting these Terms you are entering into a legally binding contract with us. Capitalized terms not otherwise defined are defined in Section VII below.
II. GENERAL TERMS
By accepting these Terms, you acknowledge and agree that: (a) your access is subject to certain restrictions and that you will adhere to these restrictions and not misuse or abuse the Platform; (b) we may monitor and collect data in connection with your access to and use of the Platform, including by placing cookies or tracking pixels on your browser, for any purpose permitted by our StratX® privacy notice, available online at https://www.PulmonxStratX.com/privacy (the “Privacy Notice”); and (c) you will comply with Laws and all contracts applicable to the Platform and any Scan or Report. Except as otherwise agreed between you and us, we are not obligated to provide you any support for the Platform, and we may stop providing support to you at any time.
In addition to the other terms and conditions in these Terms, you agree not to do the following: (a) use the Platform for purposes prohibited by Law or expose us or other Customers to legal liability; (b) override, bypass or circumvent any security feature or access controls; (c) use the Platform or Reports for any purpose other than for diagnostic or treatment purposes; (d) disrupt or interfere with the Platform or our systems, servers or networks; (e) use or access the Platform to build or support, and/or assist a third party in building or supporting, products or services competitive to the Platform; or (f) upload any identifiable information relating to any other person, including a patient, to the Platform. You acknowledge that you are responsible for making all clinical healthcare decisions regarding the use of the Platform and Reports, and you understand that Pulmonx is not making any clinical diagnosis or recommendations through the provision of the Platform. Violation of these Terms will be grounds for immediate termination of your Customer account, in our sole discretion, in addition to any other remedies that may be available to us at law.
Pulmonx has a registration process for a person to be added as a Customer (“Registration”). Registration is required to access the Platform. If you are completing the Registration process on behalf of an entity, you acknowledge and represent that you are authorized to accept these Terms on such entity’s behalf. You acknowledge that we may require additional information from you once you are already a Customer. You agree that we can use, store, and share information submitted by you in connection with your Registration to contact you and as otherwise permitted in these Terms. You acknowledge that if you are accessing the Platform on behalf of a company or other organization and share the contact information of that organization’s employees or independent contractors with us, we may contact them in accordance with these Terms.
Except for users within an authorized organization sharing such organization’s Customer credentials, you will not share your password with any other person.
IV. UPLOADING SCANS
After Registration, you may Upload Scans to the Platform for patients you are considering as potential candidates for treatment with Pulmonx products or for post-implantation revisions. You are required to ensure that all Scans are fully de-identified, meeting requirements for pseudonymisation in accordance with relevant Law, including the GDPR and applicable local privacy law, and do not contain individually identifiable personal information or health information.
We respect the intellectual property and privacy rights of others and require that all Scans be accurate, not in violation of Law, and not in violation of the intellectual property or privacy rights of any person. You acknowledge and agree that you will only Upload to the Platform Scans that: (a) are fully de-identified, meeting requirements for pseudonymisation in accordance with relevant Law, including the GDPR and applicable local privacy law, and do not contain individually identifiable personal information or health information, (b) are not false, erroneous, or misleading, (c) relate to patients who are potentially appropriate candidates for Pulmonx Products or for post-implantation revisions, and (d) do not infringe or misappropriate the intellectual property rights of any person.
By Uploading any Scan to the Platform, you agree that such Scan does not and will not violate the preceding sentence and that such Scan can be Uploaded to the Platform. If you Upload any Scan that you do not solely, exclusively own, if requested by Pulmonx, you must make available to us the terms under which such Scan are licensed to you and the terms under which such Scan may be further sublicensed to us. You accept and agree to accept full responsibility for obtaining all permissions, consents, authorizations, and rights necessary for Uploading and using any Scan that you Upload to the Platform.
You acknowledge and agree that it is your obligation to inform affected third parties of the use, processing, or transfer of Scans Uploaded by you and to ensure that such third parties have given their consent to such use, processing, and transfer as required by all applicable data protection legislation necessary for us and our suppliers to provide the Platform, Reports, and related services.
V. ACCESSING SCANS AND REPORTS
After Registration, you may access your Scans and any associated Reports via the Platform. You will promptly notify us, and cease all use of such Scans or Reports, if you become aware that any Scans or Reports incorporate any (a) individually identifiable personal information or health information of any person other than the User (including a patient), (b) defamatory materials, (c) false, erroneous, or misleading materials, (d) anything that infringes or misappropriates the intellectual property rights of any person, (e) anything else that is otherwise prohibited by Law, these Terms or any other agreement between you and us.
You grant us a non-exclusive, perpetual, irrevocable, worldwide, royalty-free license (or sublicense, as applicable) to use, reproduce, modify, distribute, and display any Scan that you Upload in order to generate Reports and facilitate treatment discussions (including with Pulmonx salesforce representatives), and to share Scans and Reports within our organization and with our contractors and vendors as deemed appropriate by Pulmonx including for research and development purposes.
VI. LIMITATION OF LIABILITY
To the fullest extent permitted by Law, we and our affiliates will not be liable to you or any third person as a result of your use of the Platform for any liability of any type or nature in excess of $50, including liability for negligence, or any special, incidental, indirect, punitive or consequential damages or loss of use, profit, revenue or data. You will fully defend, indemnify and hold us harmless from any third party claims arising from your use of the Platform, including providing or accessing Scans or Reports. We do not agree to indemnify you.
Neither we nor any of our affiliates make any warranty of any kind, express or implied, including as to the Platform, Scans, Reports or results to be attained from any Report, and we and our affiliates disclaim all express or implied warranties, including but not limited to, merchantability, availability, fitness for a particular purpose, title and non-infringement. Your use of the Platform, Scans, or Reports is at your sole risk. The Platform, Reports and all portions thereof are provided “as is” and “as available.”
For purposes of these Terms, “we” means Pulmonx or any third party administering or maintaining the Platform on our behalf. “You” means any person who accesses the Website or Platform, or who is otherwise subject to these Terms. If you are accessing or using the Platform on behalf of a company or other organization, all references to “you” also mean that organization. If you are accessing or using the Platform in your individual capacity, all references to “you” reference you as an individual. “Customer” means any person who has authorized access to the Platform, under all applicable Terms and requirements. “Law” means all laws, regulations, frameworks and standards applicable to your use of the Platform, Scans or Reports, including the General Data Protection Regulation ((EU) 2016/679), as amended and any national implementing or supplemental laws and regulations (collectively, “GDPR”) and any similar laws in the applicable jurisdiction and any other applicable privacy or ethical standards. “Including” means “including, without limitation and without limiting the foregoing.” “Upload” means to make a Scan available on the Platform, whether via upload or any other method.
From time to time, we may change these Terms or anything else associated with the Platform in our sole discretion. If we change the Terms, we will make the updated Terms available to you on the Website. You must review and accept such revised Terms before being permitted to continue using the Platform. We may modify or release subsequent versions of the Platform and require that you use those subsequent versions. Any ideas, suggestions, and feedback about the Platform that you provide to us are entirely voluntary, and you agree that we may use such ideas, suggestions, and feedback without compensation or obligation to you.
We may suspend or terminate these Terms or your Customer account at any time for any reason. Even after termination or during suspension, many of your obligations under these Terms continue. Those provisions of these Terms which by their nature must survive termination or suspension will continue in force upon any termination or suspension. If we do not act to enforce a breach of these Terms, that does not mean we have waived any right to enforce these Terms.
These Terms will be governed by the laws of Switzerland (excluding its conflicts of laws rules and principles). We reserve the right to apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction. You waive the right to seek any equitable remedies to restrain the operation of the Platform. The Website will provide contact information for our designated agent for notifications under these Terms or delivery of service of process. In the event of a dispute arising from your use of the Platform, you and we agree that we will first contact each other in an attempt to informally resolve the dispute. If the dispute is not resolved, then either you or we may submit the dispute to binding arbitration. You and we will mutually agree on a qualified arbitrator who will conduct the arbitration solely by telephone, online, or based on written submissions without any personal appearances by any parties or witnesses unless mutually agreed. Any judgment on the award rendered by the arbitrator will be binding on both you and us, final and unappealable and may be entered in any court of competent jurisdiction. The prevailing party will be entitled to recover its fees and costs incurred in connection with the arbitration, including reasonable legal costs. You acknowledge and accept these dispute resolution measures, and waive all right to litigate any disputes arising from these Terms in court, including waiver of any right to a jury trial or to participate in a class action suit against us.
These Terms, including any documents incorporated into these Terms by reference, constitute the entire agreement between you and us regarding the subject matter of these Terms and supersede all prior agreements and understandings, whether written or oral, with respect to the subject matter of these Terms. If any provision of these Terms is found to be illegal, void, or unenforceable, the unenforceable provision will be modified so as to render it enforceable to the maximum extent possible in order to effect the intention of the provision; if a term cannot be so modified, it will be severed and the remaining provisions of these Terms will not be affected in any way.
You may not assign or delegate any of your rights or obligations under these Terms, including in connection with a change of control, without our prior written consent, which we may withhold, delay or condition in our sole discretion. Any purported assignment or delegation without our consent will be ineffective. We may freely assign or delegate all rights and obligations under these Terms, fully or partially without notice to you. Nothing in these Terms will be construed as creating a partnership or joint venture of any kind between you and us, and neither you nor we will have the authority or power to bind the other party or to contract in the name of or create a liability against the other party in any way or for any purpose.