NEUROPACE® nSIGHT Platform
TERMS OF USE

Last Revision: June 29, 2023

Welcome to the nSight Platform!

We aspire to support patients and the clinicians treating patients with the RNS® System by summarizing relevant information about the patients from different sources and making the summaries available through reports on this website. One of the sources is the RNS® System itself. Other sources may be subjective, and include assessments of patient outcomes collected or observed throughout the patient’s course of treatment and patient-(or caregiver-) reported data, such as from a seizure diary or log. We hope that this website will allow you as a clinician to more easily manage RNS System patients. However, NeuroPace does not intend that this website or any of the reports available through it take the place of your determining how best to treat patients with the RNS System. Thus, in agreeing to use the website, you understand and acknowledge that neither the website nor any of the reports are intended for any of the following:

• To actively monitor any patient (the reports rely on retrospective data)
• To modify the data available to you via any clinician-user interface of the RNS System (e.g., the RNS® Tablet and your account on the PDMS (Patient Data Management System))
• To control the functions of the RNS System or any parameter defining a patient’s treatment with the RNS System
• To substitute or minimize the need for you to interpret or analyze the information available from the RNS System (e.g., PDMS) or otherwise to independently review the basis for anything that is presented on the platform or any of the reports

The information available on the nSight website and the reports comprise individually identifiable health information of the RNS System patient or patients concerned. For example, you can access screens that display the names of the patients who are being treated with the RNS System at the epilepsy center with which you are affiliated. You will also be able to select, view and print reports comprising individually identifiable health information for patients who have designated you or your epilepsy center as being able to have access to it. Note that patients that are in active, blinded clinical studies are excluded.

The website is only intended to be used by clinicians who are treating / managing the care of patients with the RNS System. It is not intended for use by anyone else, including patients, their caregivers, or any other third party.

You agree that by accessing, registering or otherwise using our Services (defined below), you are agreeing to personally enter into a contract with NeuroPace, Inc. (also referred to as “we” and “us”) and you are indicating that you are at least eighteen years of age, and you understand and agree to be bound by the terms contained in this contract (“Terms of Use” or simply “Terms”). If you do not agree to the Terms, do not use the Services. If you wish to cancel this contract, you can do so at any time by telling us so and by no longer accessing or using the Services.

These Terms constitute the entire agreement between you and NeuroPace with respect to the Services, and govern your use of the Services, superseding any prior agreements between you and NeuroPace with respect to the Services.

Registered users of our Services are “RNS Clinicians” and these Terms apply to all RNS Clinicians. NeuroPace will automatically create an account for you on the platform when we establish an account for you on the PDMS, including the same profile information we have about you from your PDMS account. For information about what we will do with your profile information, please review our nSight Platform Privacy Policy (www.neuropace.com/nSightPrivacy), and NeuroPace’s Privacy Statement at www.neuropace.com/privacy.

1. Our Services

These terms apply to your use of nsight.neuropace.com, emails or other communications we send to you branded with nSight Platform, any nSight Platform-branded “apps”, as well as any other services that state that they are offered under these Terms (“Services”).

THE SERVICES DO NOT PROVIDE MEDICAL OR PROFESSIONAL SERVICES ADVICE. The Services are designed to help health care professionals more easily manage patients receiving treatment with the RNS System in the epilepsy clinic. Nothing comprising the Services is intended to constitute medical advice, instruction for medical diagnosis, instruction for treatment or a substitute for advice, diagnosis, or treatment when any of those things is indicated or required for a patient. Information provided through the Services should be considered retrospective or hypothetical, and should not be considered complete; nor should it be relied upon as a course of treatment for any particular individual. Information received from the Services should not be relied upon for medical decisions. While NeuroPace is the manufacturer of, and provides technical support for the RNS System medical device, NeuroPace does not, through the Services or otherwise, directly or indirectly practice medicine, render medical advice, or provide medical services. After reviewing the Services and before taking any action related to any content comprising the Services, you are expected to make a reasonable investigation into, and consider the potential consequences of, any such action. If you use any information you obtain through the Services, you use such information at your own risk.

In addition to relying on information from the RNS System, the Services are and may in the future be configured to rely on other sources of data, including subjective data relating to observation of patients, technical support data, and patient self-reported information (as may be asked for and collected in a seizure diary or seizure log by the patient or his or her caregiver). NeuroPace makes no representations as to the accuracy or relevance of any of these other sources of data. NeuroPace is not and will not be responsible for any damage or harm resulting from any use of, or reliance upon, the information provided as the Services. By using the Services, you agree not to attempt to impose liability on, or seek any legal remedy from, NeuroPace with respect to your use of the information provided as the Services.

We respect the privacy of our users. For details, see the nSight Platform Privacy Policy (www.neuropace.com/nSightPrivacy), and/or NeuroPace Privacy Statement (www.neuropace.com/privacy). By using the Services, you consent to allow NeuroPace to monitor your use of the same, including but not limited to which types of reports you access for which patients or groups of patients, how frequently you use the Services. NeuroPace may use this data about your use of the Services in accordance with the nSight Platform Privacy Policy and/or NeuroPace Privacy Statement. Under no circumstances, however, will NeuroPace (1) disclose the individually identifiable health information of a patient to an RNS Clinician who is not one of the patient’s treating physicians or who the patient otherwise has consented to have access to the information; or (2) sell information we have about you to a third party, except in connection with a sale of our business.

2. Changes to Terms

We reserve the right, at our sole discretion, to change or modify portions of these Terms at any time. If the Terms are materially changed, we will post the changes on this page, and will indicate at the top of this page the date these Terms were last revised. We will also notify you, through the Services user interface, in an email notification, or through other reasonable means, of any such changes. Any such changes to the Terms will become effective no earlier than fourteen (14) days after they are posted, except that some changes (such as addressing new functions of the Services or changes made for legal reasons) will be effective immediately. Your continued use of the Services after the date any such changes become effective constitutes your unequivocal acceptance of, and agreement to be bound by, the new Terms of Service (including any and all changes to the Terms).

In addition, when using certain Services, you will be subject to any additional terms applicable to such Services that may be posted on the Services, the nSight Platform Privacy Policy (www.neuropace.com/nSightPrivacy), or the NeuroPace Privacy Statement (www.neuropace.com/privacy). All such terms are hereby incorporated by reference into these Terms.

3. Your Account

Registration Obligations

While NeuroPace may allow you to use the same login credentials (e.g., username and password) for the Services as you use for your PDMS account, you acknowledge and agree that the nSight Platform and the Services are distinct from the RNS System and thus your registration for and use of the Services is unrelated to your use of your PDMS account. If you choose to use the Services, you agree to provide and maintain true, accurate, current, and complete information about yourself when prompted by NeuroPace on a registration form or similar communication from time to time. We will handle the data we collect or otherwise have by reason of your registering for the Services in accordance with the nSight Platform Privacy Policy and the NeuroPace Privacy Statement.

Account Information

You acknowledge and agree that you are responsible for maintaining the confidentiality of your account, including the username and password you use to access your account, and you are fully responsible for any and all activities that occur through use of your unique login credentials. You agree to: (a) notify us immediately of any unauthorized use of your login credentials or your account or any other breach of privacy or security incident concerning your account or the Services; and (b) ensure that you log out from your account at the end of each session of accessing the Services. NeuroPace will not be liable for any loss or damage arising from your failure to comply with the foregoing best practices and reporting requirements.

Notices

We may provide you with notices about the Services or your use of the Services through the Services user interface, email, or regular mail. The Services may also provide notice to you of changes to these Terms or the nSight Platform Privacy Policy by displaying such notice or a link to such notice generally on the nSight Platform website.

4. Modifications to the Services; Use and Data Storage; Intellectual Property Rights

Modifications to the Services

NeuroPace reserves the right to modify or discontinue the Services (in whole or in part), temporarily or permanently, with or without notice to you. You agree that NeuroPace will not be liable to you, or to any third party for, any modification, suspension, or discontinuance of the Services.

Use and Data Storage

You understand that NeuroPace may establish and enforce policies and procedures that apply to the Services generally, for what NeuroPace deems to be best practices or required for compliance with applicable laws or ethical obligations.

5. Content and Trademarks

You acknowledge and agree that the Services may contain content or features that are protected by copyright, patent, trademark, trade secret and/or other proprietary rights or laws. Except as may be expressly authorized by NeuroPace, you agree not to modify, copy, frame, scrape, lease, loan, sell, distribute or create derivative works based on the Services, provided that you can create copies of the available reports and use those copies consistent with any applicable laws that apply to such use and provided further that you retain and do not redact any NeuroPace product names or trademarks, service names or service marks, and logos used and displayed on or with the Services.

“NeuroPace” and “RNS” are trademarks of NeuroPace, Inc. Except as described above with respect to copies of any available reports, NeuroPace’s provision of the Services and these Terms should not be construed as granting, expressly or by implication, any license or other right to use any of NeuroPace’s trademarks or service marks. All goodwill generated from the use of NeuroPace’s trademarks or service marks will inure to the exclusive benefit of NeuroPace.

6. Disclaimer of Warranties; Limitations of Liability; Indemnification

Disclaimer of Warranties – “As Is” and “As Available” Services

YOU AGREE THAT (A) YOU USE THE SERVICES AT YOUR OWN RISK; AND (B) NEUROPACE IS PROVIDING THE SERVICES ON AN “AS IS” AND “AS AVAILABLE” BASIS. NEUROPACE EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABLITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. NEUROPACE MAKES NO WARRANTY THAT (i) THE SERVICES WILL MEET YOUR REQUIREMENTS; (ii) THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE; (iii) THAT THE RESULTS (INCLUDING ANY REPORTS) THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE.

THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN YOU AND NEUROPACE.

IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE YOUR RIGHTS WITH RESPECT TO CALIFORNIA CIVIL CODE SECTION 1542, WHICH SAYS “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AN THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.”

IF YOU ARE DISSASTIFIED WITH ANY PORTION OF THE SERVICES, OR WITH THESE TERMS OF SERVICE, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE SERVICES.

Limitation of Liability

To the maximum extent permitted by law, you acknowledge and agree that NeuroPace, with respect to the Services, will not be liable for any direct, indirect, incidental, special, consequential, or exemplary damages or damages for lost profits, damages for loss of goodwill, use, data, or other intangible assets, (even if NeuroPace has been advised of the possibility of such damages) whether based on contract, tort, negligence, strict liability, or otherwise.

Indemnification

You agree to indemnify and hold harmless NeuroPace and its officers, directors, employees, subcontractors and agents, and any partners NeuroPace may use in providing the Services, from any and all losses, damages, expenses (including reasonable attorneys’ fees), claims, actions of any kind, and/or injury (including death), arising out of or relating to your use of the Services, your violation of these Terms, or your violation of any rights of another.

7. Termination

You agree that NeuroPace, in its sole discretion and for any reason may suspend or terminate your account or use of the Services and remove or delete from storage any reports delivered to you or which you request, including the reason that you fail to use the Services or if NeuroPace believes you have failed to comply with any of these Terms with respect to the same. As noted above, NeuroPace may discontinue the Services in its sole discretion at any time without notice. You agree that NeuroPace will not be liable either to you or to any third party for any termination of the Services or your ability to use the same.

8. Governing Law

The Services and these Terms of Service are governed by the laws of the State of California without regard to its conflict of law provisions. With respect to any disputes, claims, or controversies arising out of or relating to these Terms, or the breach, termination, enforcement, interpretation, or validity of these Terms or the Services (collectively “Disputes”) which are not subject to arbitration as set forth below, you agree to submit to the personal jurisdiction of the state and federal courts located within Santa Clara county, California, and you waive any objection to jurisdiction and venue in such courts.

9. Dispute Resolution

Mandatory Arbitration of Disputes

You and NeuroPace each agree that all Disputes will be resolved solely by binding, individual arbitration, and not in a class, representative, or consolidated action or proceeding. You and NeuroPace agree that the US Federal Arbitration Act governs the interpretation and enforcement of these Terms, and that you and NeuroPace are each waiving the right to a trial by jury and/or to participate in a class action. This arbitration provision shall survive termination of the Services and/or these Terms.

Exceptions and Opting Out

As limited exceptions to “Mandatory Arbitration of Disputes,” above: (i) you may seek to resolve a Dispute in small claims court if it qualifies; and (ii) we each retain the right to seek injunctive or other equitable relief from a court to prevent (or enjoin) the infringement or misappropriation of our respective intellectual property rights. In addition, you will retain the right to opt out of arbitration entirely and litigate any Dispute if you provide us with written notice of your desire to do so by email at legal-notices@neuropace.com, within thirty (30) days following the date you first agree to these Terms.

Conducting Arbitration and Arbitration Rules

The arbitration will be conducted by the American Arbitration Association (“AAA“) under its Consumer Arbitration Rules (“AAA Rules“) then in effect, except as modified by these Terms. The AAA Rules are available at www.adr.org, or by calling 1-800-778-7879. A party who wishes to start arbitration must submit a written Demand for Arbitration to AAA, and give notice to the other party as specified in the AAA Rules. The AAA provides a form Demand for Arbitration at www.adr.org.

If your claim is for U.S. $10,000.00, or less, you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic or video-conference hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds U.S. $10,000.00, the right to a hearing will be determined by the AAA Rules. Any arbitration hearings will take place in the county (or parish) where you live, unless we both agree to a different location. You and NeuroPace both agree that the arbitrator shall have exclusive authority to decide all issues relating to the interpretation, applicability, enforceability, and scope of this arbitration agreement.

Arbitration Costs

Payment of all filing, administration, and arbitrator fees will be governed by the AAA Rules.

Class Action Waiver

YOU AND NEUROPACE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR OUR INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, if the parties’ dispute is resolved through arbitration, the arbitrator may not consolidate another person’s claims with your claims, and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable, then the entirety of this Section, “Dispute Resolution,” shall be null and void.

Effect of Changes on Arbitration

Notwithstanding the provisions of Section 2, “Changes to Terms,” above, if we change any of the terms of this Section, “Dispute Resolution,” after the date you first accepted these Terms (or accepted any subsequent changes to these Terms), you may reject any such change by sending us written notice (including by email to legal-notices@neuropace.com, within thirty (30) days of the date such change became effective, as indicated in the “Last Revision” date above, or in the date of our email or other communication to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and NeuroPace in accordance with the terms of this Section, “Dispute Resolution,” as of the date you first accepted these Terms (or accepted any subsequent changes to these Terms).

10. Miscellaneous

NeuroPace’s failure to exercise or enforce any right it has hereunder or other provision of these Terms will not constitute a waiver of such right or provision. If any of these Terms is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the relevant provision(s), and the other provisions of the Terms shall remain in full force and effect. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Services or these Terms must be filed within one (1) year after such claim or cause of action arises, or be forever barred. A printed version of this agreement and of any notice given in electronic form will be admissible in judicial or administrative proceedings based upon or relating to this agreement to the same extent and subject to the same conditions as any other business documents and records originally generated and maintained in printed form. You may not assign these Terms without the prior written consent of NeuroPace, but NeuroPace may assign or transfer these Terms, in whole or in part, without restriction. The section titles in these Terms are for convenience only and have no legal or contractual effect.

Software used or available in connection with the Services and the transmission of data may be subject to United States export controls. The Services may not be downloaded or otherwise exported or re-exported in violation of U.S. export laws. Using the Services or downloading anything in connection with such use is at your sole risk.

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Please contact NeuroPace Customer Service (customerservice@neuropace.com or 866.726.3876) with any questions regarding these Terms of Service. Please contact privacy@neuropace.com to report any breach of privacy or a security incident with respect to the Services or your use thereof.