Service Terms and Conditions

By executing an account agreement (the “Account Agreement”) to use the Systems (as defined below), you (“Customer”) agree to be bound by (1) these Service Terms and Conditions with Strive Orthopedics, Inc.  (“Strive”), and (2) the Strive MedTech Provider Portal Terms of Service, which are made available to Customer as part of the Provider Portal (and may be updated from time to time), each of which are a part of this Account Agreement, and incorporated herein.  A courtesy copy of the Strive MedTech Provider Portal Terms of Service in effect as of the date hereof has been provided to Customer in connection with this Account Agreement.

Strive has developed and markets various systems consisting of hardware, software, and services, including patient monitors and sensors, a HIPPA compliant database, a provider access portal, and patient applications for use on mobile devices (the “Systems”).  The Account Agreement, of which these Service Terms and Conditions are a part of, sets forth the terms governing Customer’s use of the Strive Systems.   

1.	Termination of Access to the Systems.  Strive may terminate Customer’s access to the Systems, effective upon written notice to Customer (in such case, a "Defaulting Party"), if the Defaulting Party (a) materially breaches this Account Agreement, and such breach is incapable of cure, or with respect to a material breach capable of cure, the Defaulting Party does not cure such breach within thirty (30) days after receipt of written notice of such breach; (b) becomes insolvent; (c) admits its inability to pay its debts generally as they become due; (d) becomes subject to any bankruptcy proceeding which is not dismissed or vacated within sixty (60) days after filing; (e) is dissolved or liquidated; (f) makes a general assignment for the benefit of creditors; (g) has a receiver, trustee, custodian, or similar agent appointed by court order to take charge of or sell any material portion of its property or business; or (h) violates any of the Strive MedTech Provider Portal Terms of Service, including but not limited to any attempt to connect any sensor or sensor package to the Portal, or any other device that is, or can be used, for the purpose of directly or indirectly transmitting patient sensor data to the Portal, without the express written consent of Strive.

Upon expiration or termination of the Account Agreement for any reason, Strive shall terminate Customer’s access to the Systems and shall provide Customer a digital copy of all of Customer’s records stored on the Systems.  Effective at the date of termination, all additional shipments of any physical hardware shall cease.  Moreover, each party shall return to the other party or destroy, at the other party's discretion, all documents and tangible materials (and any copies, physical or electronic) containing, reflecting, incorporating or based on the other party's Confidential Information and certify in writing that it has done so, provided that this shall not require the return or destruction of Confidential Information contained in a party’s back-up systems or required to be maintained in accordance with applicable law.  Notwithstanding the foregoing, Strive may retain Protected Health Information which has been de-identified in accordance with 45 C.F.R. §  164.514(a)-(c). 

2.	Taxes. Customer shall be responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental entity on any amounts payable by Customer hereunder except for any taxes imposed on, or with respect to, Strive's income, revenues, gross receipts, personnel, or real or personal property or other assets.

3.	Intellectual Property.  All intellectual property rights relating to data, other than Protected Health Information (“PHI”), as defined in 45 C.F.R. §  160.103, derived from the Systems provided to the Customer by Strive and all documents, work product and other materials that are delivered to Customer under the Account Agreement or prepared by or on behalf of Strive in the course of the Account Agreement (collectively, the "Deliverables") shall be owned exclusively by Strive, subject to (i) applicable rules under the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) and other Privacy Laws, and (ii) Customer’s right to access such data pursuant to the Account Agreement and as otherwise agreed upon by Strive and the Customer.  For clarity, and notwithstanding any term or provision of this Account Agreement to the contrary, (a) all patient information and data, including protected health information (as that term is defined under HIPAA), shall be and remain the sole property of Customer, (b) PHI may be de-identified in accordance with 45 C.F.R. §  164.514(a)-(c) and stored on Strive servers and used by Strive for medical research and analysis, and (c) Strive may use PHI for Data Aggregation services related to the Health Care Operation of Customer.  

All inventions (whether patentable or not), trademarks, service marks, trade secrets, know-how, and other confidential information, trade dress, trade names, logos, corporate names and domain names, together with all of the goodwill associated therewith, derivative works and all other rights (collectively, "Intellectual Property Rights") in all documents, data, know-how, methodologies, software, and other materials provided by or used by Strive iin connection with the Account Agreement and developed or acquired by the Strive prior to or independently of this Account Agreement (collectively, "Pre-Existing Materials") shall be owned exclusively by Strive and its licensors. 

4.	Confidential Information. All non-public, confidential or proprietary information of either party ("Confidential Information"), including, but not limited to, information about such party's business affairs, products, services, methodologies, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, disclosed by one party (the "Disclosing Party") to the other party (the "Receiving Party"), whether disclosed orally or disclosed or accessed in written, electronic, or other form or media, or otherwise learned by the Receiving Party in connection with this Account Agreement, and whether or not marked, designated, or otherwise identified as "confidential," is confidential, solely for use in performing this Account Agreement and may not be disclosed or copied unless authorized by the Disclosing Party in writing. The Receiving Party shall protect and safeguard the confidentiality of the Disclosing Party's Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care. Confidential Information does not include any information that: (a) is or becomes generally available to the public other than as a result of the Receiving Party's breach of this Account Agreement; (b) is obtained by the Receiving Party on a non-confidential basis from a third-party that was not legally or contractually restricted from disclosing such information; (c) the Receiving Party establishes by documentary evidence, was in its possession prior to the Disclosing Party's disclosure hereunder; (d) was or is independently developed by the Receiving Party without using any of the Disclosing Party's Confidential Information; or (e) is required to be disclosed under applicable federal, state or local law, regulation or a valid order issued by a court or governmental agency of competent jurisdiction.

The Receiving Party shall be responsible for any breach of this section caused by any of its employees, contractors, agents, or representatives. Each party's obligations under this section will survive termination or expiration of this Account Agreement for a period of five (5) years, except for Confidential Information that constitutes a trade secret under any applicable law, in which case, such obligations shall survive for as long as such Confidential Information remains a trade secret under such law.

Each party shall comply with HIPAA and other state or federal health information privacy and security laws (collectively, “Privacy Laws”) in effect as of the Start Date or as amended from time to time.  Upon request, the parties shall amend this Account Agreement to conform with any new or revised Privacy Laws in order to ensure that Customer is at all times in conformance with all Privacy Laws.  

5.	Representations and Warranties; Limitation of Liability.  EXCEPT FOR THE EXPRESS WARRANTIES IN THIS ACCOUNT AGREEMENT, (A) EACH PARTY HEREBY DISCLAIMS ALL WARRANTIES, EITHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE UNDER THIS ACCOUNT AGREEMENT, AND (B) STRIVE SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND TITLE.

IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR: (A) ANY LOSS OF USE, REVENUE, OR PROFIT OR LOSS OF DATA OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; OR (B) DIRECT DAMAGES OF MORE THAN THE AGGREGATE AMOUNTS PAID OR PAYABLE TO STRIVE IN THE THREE-MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.  

6.	Indemnification.  Each party ("Indemnifying Party") shall indemnify, defend, and hold harmless the other party and its officers, directors, managers, employees, agents, affiliates, successors, and permitted assigns ("Indemnified Party") against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys' fees and costs, incurred by Indemnified Party in a final non-appealable judgment (collectively, "Losses"), relating to/arising out of or resulting from any claim of a third party arising out of or occurring in connection with: (a) bodily injury, death of any person or damage to real or tangible, personal property resulting from Indemnifying Party's willful, fraudulent or negligent acts or omissions; or (b) Indemnifying Party's gross negligence, willful misconduct, or material breach of this Account Agreement, including but not limited to material breach of any representation or warranty made by Indemnifying Party in this Account Agreement.

7.	Force Majeure. No party shall be liable or responsible to the other party, nor be deemed to have defaulted under or breached this Account Agreement, for any failure or delay in fulfilling or performing any term of this Account Agreement (except for any obligations to make payments to the other party hereunder), when and to the extent such failure or delay is caused by or results from events outside of the party's reasonable control ("Force Majeure Events"), including but not limited to: (a) acts of God, including pandemic; (b) flood, fire, earthquake, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest; (d) government order or law; (e) actions, embargoes, or blockades in effect on or after the date of this Account Agreement; (f) action by any governmental authority; (g) national or regional emergency; (h) strikes, labor stoppages or slowdowns or other industrial disturbances; and (i) shortage of adequate power or transportation facilities. The affected party shall resume performance under this Account Agreement as soon as reasonably practicable after the Force Majeure Event has been resolved or terminated.

8.	Miscellaneous.
Independent Contractors. The parties are independent contractors, and nothing contained in this Account Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment, or fiduciary relationship between them. Neither party shall be authorized to contract for or bind the other party in any manner whatsoever.

No Publicity. Neither party shall issue or release any announcement, statement, press release, or other publicity or marketing materials relating to this Account Agreement, or otherwise use the other party's trademarks, service marks, trade names, logos, symbols, or brand names, in each case, without the prior written consent of the other party, which each party may withhold in its sole discretion. 

No Third-Party Beneficiaries. This Account Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever, under or by reason of this Account Agreement.

Severability. No invalidity, illegality, or unenforceability of any provision herein in any jurisdiction, shall affect any other term or provision of this Account Agreement or invalidate or render such provision unenforceable in any other jurisdiction. If any provision is determined to be invalid, illegal, or unenforceable, the parties hereto shall negotiate in good faith to modify this Account Agreement so as to effect the original intent of the parties as closely as possible.

Governing Law: Submission to Jurisdiction. This Account Agreement shall be governed by and construed in accordance with the internal laws of the State of Wisconsin without giving effect to any choice or conflict of law provision or rule that would cause the application of laws of any other jurisdiction. Any legal suit, action or proceeding arising out of or related to this Account Agreement or the Systems provided hereunder shall be instituted exclusively in the state or federal courts in Green Bay or Brown County, Wisconsin, and each party irrevocably: (a) submits to the exclusive jurisdiction of such courts; and (b) waives any objection to such courts based on venue or inconvenience; and (c) waives any right to trial by jury. 

Equitable Relief; Cumulative Remedies. Each party acknowledges that a breach of Section 3 (Intellectual Property Rights) or Section 4 (Confidentiality) may cause the non-breaching party irreparable damages, for which an award of damages would not be adequate compensation. In the event of such breach or threatened breach, the non-breaching party will be entitled to seek equitable relief. Except as expressly set forth in this Account Agreement, the right and remedies under this Account Agreement are cumulative and in addition to any other rights or remedies available at law or in equity or otherwise.

Compliance with Laws, Regulations, and Accreditation.  The parties believe and intend that this Account Agreement complies with all relevant federal and state laws as well as relevant regulations and accreditation standards, including but not limited to, Federal Health Care Program (as defined under 42 U.S.C. § 1320a-7b(f)) fraud and abuse laws (including the Anti-Kickback Statute) and the Stark Law, and all of the rules and regulations promulgated pursuant to, and all of the cases or opinions interpreting, such statutes and laws (collectively, “Laws”).  

Exclusion from State or Federal Health Care Programs.  Each party represents and warrants to the other party that it and its agents and representatives are not: excluded from participation in any Federal Health Care Program; debarred, suspended or otherwise excluded from participating in any other federal or state procurement or nonprocurement program or activity; or designated a Specially Designated National or Blocked Person by the Office of Foreign Asset Control of the U.S. Department of Treasury. Each party represents and warrants that to its knowledge there are no pending or threatened governmental investigations that may lead to such exclusion.  Strive shall notify Customer in writing upon the commencement of any such exclusion or investigation of Strive or its agents or representatives immediately upon receiving first notice of such exclusion or investigation.  Customer shall have the right to terminate this Account Agreement immediately upon learning of any such exclusion and Strive shall keep Customer informed of the status of any such investigation.

No Inducement to Refer.  Neither party is obligated or required to refer any patients to the other party, or any affiliate of the other party, to obtain or receive any medical diagnosis, care or treatment from such other party or its affiliates, or to purchase any health care related services or products from such other party or its affiliates.  None of the parties are entering into this Account Agreement with an expectation that any unlawful patient referrals will occur or other business will be generated between the parties or their representatives.

Nondiscrimination.  Neither party shall discriminate against any of its or the other party’s workers, employees, or applicants, or any member of the public, because of race, creed, color, religion, age, sex, handicap, national origin or other classification protected under applicable federal, state or local laws.