GLOBAL TERMS OF SERVICE

LAST UPDATED: November 20, 2025

PLEASE READ THESE TERMS OF SERVICE CAREFULLY. BY CLICKING “ACCEPTED AND AGREED TO”, “I ACCEPT”, OR ANY EQUIVALENT WORDING, THE USER AGREES TO THESE TERMS OF SERVICE.

These Terms of Service (“TOS”) are a binding legal agreement between the User and OTO that govern the right to use the services, websites, applications, and proprietary hardware and software solutions provided by OTO.

Capitalized terms used in these TOS shall have the meanings set forth in Section 1.2, unless otherwise defined herein.

When used in these TOS, “OTO” means, as applicable, the Service Entity of the OTO Group that is contracting with the User for the OTO Technology or related Services (the “Service Entity”) and, solely with respect to ownership and licensing of the OTO Technology, OTO.Coach. The applicable Service Entity for a given User is the one identified on the applicable invoice, order form, subscription confirmation or other commercial agreement (each an “Applicable Document”) between such User and OTO.

If there is no Applicable Document, then the following Service Entities shall be applicable:

Type of User Applicable Service Entity (Default)
End User OTO Fertility
Professionals
  • For medical professionals: OTO Fertility
  • For coaches and trainers: OTO Training
  • For other qualified professionals: OTO Fertility
Facilities
  • For fertility or reproductive health clinics: OTO Fertility
  • For gyms, training centres, or sports facilities: OTO Training
Collaborators
  • For Persons in the fertility or reproductive health industry: OTO Fertility
  • For Persons in the gym, training, or sports industry: OTO Training

User acknowledges that any representations, warranties, covenants, or undertakings made in or in connection with these TOS are made solely by the applicable Service Entity and, unless expressly stated otherwise in writing, no other Person of the OTO Group shall have any responsibility or liability in respect of such representations, warranties, covenants, or undertakings. Further, User agrees that it is not relying on, and has no recourse against, any Person of the OTO Group other than the Service Entity it is contracting with. A default, breach, or claim under these TOS by one Person within the OTO Group shall not constitute, or be deemed to constitute, a default, breach, or claim against any other Person within the OTO Group.

If a User is accepting these TOS as an individual acting on behalf of a business, company, Facility, Collaborator or other legal entity (each, an “Entity”), then: (a) such User (the “Agent”) represents and warrants that they have the authority to bind the Entity to these TOS; (b) upon such acceptance, both the Entity and the Agent shall be deemed “Users” under these TOS; (c) the Entity shall be responsible for any act or omission of its employees, contractors, or third-party agents using the OTO Technology or providing Services through the OTO Technology on its behalf, and any breach of these TOS by its employees, contractors, or third-party agents shall also be deemed to be a breach by the Entity; (d) the Entity represents and warrants that it has the right, power and authority to perform its obligations and grant the rights and authorizations in these TOS; and (e) notwithstanding anything to the contrary herein, the Agent (i) makes the representations and warranties in these TOS solely with respect to themselves as an individual User and (ii) shall not be personally liable for any acts, omissions, breaches or obligations of the Entity under these TOS.

As the provider of the OTO Technology, OTO does not own, control, or manage any Facility, Professional or Collaborator, and OTO is not a party to the contracts entered into directly between Facilities and End Users or between Collaborators and End Users. OTO DOES NOT PROVIDE MEDICAL ADVICE, DIAGNOSIS, TREATMENT OR OTHER PROFESSIONAL SERVICES, NOR IS OTO A LICENSED MEDICAL, HEALTH, WELLNESS, FITNESS, REPRODUCTIVITY OR OTHER PROFESSIONAL PRACTITIONER. WHILE OTO TECHNOLOGY SUPPORTS AND INFORMS CERTAIN FERTILITY, HEALTH OR TRAINING-RELATED CARE, OTO DOES NOT MAKE PROFESSIONAL DECISIONS NOR DOES IT GUARANTEE ANY SPECIFIC OUTCOMES OR RESULTS. Clinical and professional decisions remain the sole responsibility of Professionals, including but not limited to the interpretation, use, or disregard of any information, alert, or recommendation provided by the OTO Technology. OTO shall not be liable for any adverse outcomes or damages resulting from a Professional's actions or omissions. Users acknowledge that the OTO Technology is intended as a support tool only and should not be relied upon as a substitute for professional judgment.

TABLE OF CONTENTS

  • 1. GENERAL USER TERMS
  • 2. COLLABORATOR SPECIFIC TERMS

  1. GENERAL USER TERMS

    1. Scope of Application. The terms in this Section 1 apply to all Users of the OTO Technology, for any purpose whatsoever, including, without limitation, End Users, Professionals, Facilities, Collaborators, and their respective Agents, Representatives, or employees and contractors accessing or using the OTO Technology and Services.
    2. Definitions.

      “Access Credentials” means any username, ID number, password, security key or token, PIN, or other security code or method used to verify a User’s identity and authorize access to any component of the OTO Technology.

      “Action” means any claim, action, cause of action, demand, lawsuit, arbitration, inquiry, audit, notice of violation, proceeding, litigation, citation, summons, subpoena, or investigation of any nature, civil, criminal, administrative, investigative, regulatory, or other, whether at law, in equity, or otherwise.

      “Anonymize” refers to removal of Personal Information, Personal Health Information, and/or any information reasonably likely to identify a Person, provided such revised data does not include and is not subject to any key, code, or other mechanism that could be used to restore such identifying information.

      “Background IP” includes, without limitation: (i) all proprietary information and IP Rights owned, conceived, created, or developed independently by a party or its licensors prior to the Effective Date (as defined below); (ii) a party’s toolsets, which include reusable software components developed by that party; and (iii) all other proprietary information and intellectual property developed, conceived or acquired by such party in relation to: processes (including work processes); marketing strategies; technical platforms and products; architectures; system designs; hardware; software; templates; methodologies; techniques; development tools; or utilities and content including, but not limited to, software configurations, templates, algorithms, formulas, discoveries, data, databases, models, displays and manuals incorporated into or used in the creation of the party’s IP Rights.

      “Collaborator” means an organization that has entered into a written collaboration agreement with OTO to provide the Services and deploy the OTO Technology and support its integration and distribution within a network of Facilities.

      “Collaborator Data” means information, data, and other content, in any form or medium, that is collected, downloaded, or otherwise received by OTO, directly or indirectly, from the Collaborator, Facilities, Professionals, or End Users by or through the OTO Technology, including Personal Information and Personal Health Information of individual End Users. For the avoidance of doubt, Collaborator Data does not include Resultant Data.

      “Collaborator Systems” means the Collaborator’s information technology infrastructure, including computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly or indirectly by the Collaborator, its Facilities, Professionals, or through the use of third-party services.

      “Documentation” means User manuals, technical manuals, and any other materials provided by OTO, in printed, electronic, or other form, that describe the installation, operation, use, or technical specifications of the OTO Technology, any and all other information, data, documents, materials, works and other content, devices, methods, processes, and other technologies, and inventions, including any deliverables, technical or functional descriptions, requirements, plans, or reports, that are provided or used by OTO in connection with the OTO Technology or otherwise comprise or relate to the OTO Technology.

      “End User” means an individual end user using the OTO Technology or receiving the Services, but excluding Professionals, Facilities, and Collaborators.

      “Facility” means an organization that organizes, facilitates or oversees the provision of the Services and OTO Technology by Professionals.

      “Governmental Authority” means any federal, provincial, territorial, municipal, or foreign government or political subdivision thereof, or any agency or instrumentality of such government or political subdivision, or any self-regulated organization or other non-governmental regulatory authority or quasi-governmental authority (to the extent that the rules, regulations, or orders of such organization or authority have the force of law), or any arbitrator, court, or tribunal of competent jurisdiction.

      “Intellectual Property” means all data, information, materials, concepts, know-how, formulae, inventions, improvements, industrial designs, processes, patterns, machines, manufactures, compositions of matter, compilations of information or data, technology, technical information, software, code of all types, layouts, interfaces, applications, tools, databases and database layouts, works (including without limitation all literary, artistic, pictorial, graphic, musical, dramatic and audio-visual works) and all compilations thereof, developments, trade secrets, domain names, prototypes, specifications and all other intellectual property, whether or not registrable or the subject of applications for registration.

      “IP Rights” means any and all registered and unregistered intellectual property rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection in any part of the world.

      “Losses” mean all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable legal fees, disbursements, and charges, and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.

      “OTO Group” means OTO.Coach, Inc., a Canadian corporation (“OTO.Coach”), and its affiliated limited partnerships and other affiliates, which currently include, without limitation: OTO GP Inc., (“OTO GP”), OTO US Fertility LP (“OTO Fertility”); OTO US Health LP (“OTO Health”); and OTO Training LP (“OTO Training”).

      “OTO Technology” means proprietary hardware and software solutions designed to support health and which may include, without limitation: (a) a proprietary software application for adaptive health recommendations (“OTO Software”), (b) OTO-approved supplements (“Supplements”); (c) a wearable physiological monitoring device that captures and monitors an End User’s physiological readings and related health data (“OTO Hardware”); (d) a professional dashboard for Facilities and Professionals to manage and monitor End Users’ engagement and subscription activity (“OTO Dashboard”); and (e) an administrative portal for Collaborators to review payments, place orders, and manage End Users’ subscriptions with OTO (“Admin Portal”).

      “Person” means an individual, corporation, company, partnership, Governmental Authority, unincorporated organization, trust, association, or any other entity.

      “Personal Health Information” means any recorded information about an identifiable individual that is related to the individual’s health or the provision of health services to the individual.

      “Personal Information” means any information that relates to an individual person and identifies or can be used to identify, locate, or contact that individual alone or when combined with other personal or identifying information that is or can be associated with that specific individual.

      “Process” means to take any action or perform any operation or set of operations that OTO’s Technology is capable of taking or performing on any data, information, or other content, including to collect, receive, input, upload, download, record, reproduce, store, organize, compile, combine, log, catalog, cross-reference, manage, maintain, copy, adapt, alter, translate, or make other derivative works or improvements, process, retrieve, output, consult, use, perform, display, disseminate, transmit, submit, post, transfer, disclose, or otherwise provide or make available, or block, erase, or destroy, and “Processing” and “Processed” have correlative meanings.

      “Professional” means an individual who provides or supports the provision of Services to End Users through or in connection with the OTO Technology, including, without limitation: (a) licensed medical professionals or clinic physicians in a fertility or healthcare context (“Medical Professionals”); (b) coaches, trainers, or other wellness or performance professionals in a training or fitness context (“Coaches and Trainers”); and (c) any other qualified professional or practitioner engaged by an Facility to support End Users (“Other Qualified Professionals”).

      “Representative” means, with respect to a party, that party’s employees, officers, directors, consultants, agents, independent contractors, service providers, sublicensees, subcontractors, and legal advisors.

      “Resultant Data” means (i) non-personally identifying data and information collected, compiled and aggregated by OTO Technology that is related to Users’ usages of the OTO Technology, including to compile statistical and performance information related to the provision and operation of the OTO Technology, and (ii) any data derived by OTO Technology while Processing Collaborator Data that is either de-identified or Anonymized from Collaborator Data such that it no longer meets the definition of Collaborator Data.

      “Services” means health, wellness, fitness, fertility, training, coaching, and other professional services provided by Professionals to End Users through or in connection with the OTO Technology.

      “Taxes” means any commodity tax, including sales, use, excise, value-added, goods and services tax, provincial or state sales tax, consumption, or other similar tax, including penalties and interest, imposed, levied, or assessed by any Governmental Authority.

      “Third-Party Materials” means materials and information, in any form or medium, including any open-source or other software, documents, data, content, specifications, products, equipment, or components of or relating to the OTO Technology that are not proprietary to OTO.

      “User” means, collectively, End Users, Professionals, Facilities and Collaborators.

    3. Usage Rights. Subject to and conditional upon User's strict compliance with all terms and conditions set forth in these TOS, OTO grants the User a revocable, non-exclusive, non-transferable, non-sublicensable, limited right to access and use the OTO Technology solely to the extent necessary to utilize the features and functionalities of the OTO Technology as described in the Documentation and as intended by these TOS. User must ensure that all access to and use of the OTO Technology are (i) consistent with the Documentation; and (ii) solely for purposes expressly permitted under these TOS. The rights granted in this Section constitute the general usage terms applicable to all Users. Additional rights and permissions may be granted to specific types of Users through other provisions of these TOS or through separate written agreements with OTO. These general usage terms extend only to the usage of the OTO Technology in accordance with these TOS and do not convey any additional rights or permissions beyond what is explicitly stated herein or elsewhere in these TOS. Commercial use of the OTO Technology is permitted only for Collaborators and any Collaborator’s authorized Facilities and their respective Professionals, in each case provided that such use is in accordance with any written agreements with OTO. Any and all other commercial use is prohibited.
    4. Use Restrictions. User shall not, directly or indirectly:
      1. use (including making any copies of) the OTO Technology beyond the scope of the rights it is granted;
      2. provide any unauthorized person with access to or use of the OTO Technology;
      3. except as expressly set forth in these TOS, copy the OTO Technology, in whole or in part;
      4. modify, correct, translate, adapt, enhance, further develop, or otherwise create derivative works, enhancements or improvements, whether or not patentable, of the OTO Technology or any part thereof;
      5. combine the OTO Technology or any part thereof with, or incorporate the OTO Technology or any part thereof in, any other programs;
      6. reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the OTO Technology or any part thereof;
      7. reverse engineer, disassemble or decompile the OTO Hardware;
      8. remove, delete, efface, alter, obscure, translate, combine, supplement, or otherwise change any trademarks or any copyright, trademark, patent, or other Intellectual Property or IP Rights or other symbols, notices, marks, or serial numbers on or relating to any copy provided on or with the OTO Technology, OTO Hardware or Documentation, including any copy thereof;
      9. other than as permitted in these TOS or any written agreement with OTO, rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the OTO Technology, or any features or functionality of the OTO Technology, to any third party for any reason, whether or not over a network or on a hosted basis, including in connection with the internet or any web hosting, wide area network (WAN), virtual private network (VPN), virtualization, time-sharing, service bureau, software as a service (SaaS), cloud, or other technology or service;
      10. use the OTO Technology in, or in association with, the design, construction, maintenance, or operation of any hazardous environments or systems, or applications, any safety response systems or other safety-critical applications, or any other use or application in which the use or failure of could lead to personal injury or severe physical or property damage including:
        1. safety-critical applications, including medical or life-support systems, vehicle operation applications, or any police, fire, or other safety response systems; and
        2. military or aerospace applications, weapons systems, or environments;
      11. use the OTO Hardware in or around liquids (e.g. while swimming or exposed to rain) or use the OTO Hardware after it has come into contact with liquids;
      12. bypass or breach any security device or protection used by OTO, or access or use the OTO Technology other than through the use of its own then-valid Access Credentials;
      13. rely on or use the OTO Technology as a substitute for medical advice;
      14. access or use the OTO Technology in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property held by OTO, or other right of any third party (including by any unauthorized access to, misappropriation, use, alteration, destruction, or disclosure of the data of any other OTO customer), or that violates any applicable law;
      15. access or use the OTO Technology for purposes of: (i) competitive analysis of the OTO Technology; (ii) the development, provision, or use of a competing software service or product; or (iii) any other purpose that is to OTO’s detriment or commercial disadvantage; or
      16. use (or allow the use of) the OTO Technology in a manner contrary to requirements, specifications, or guidelines in any Documentation.
    5. Responsibility. Each User shall be responsible for its use of the OTO Technology. Facilities and Collaborators shall be responsible for any unauthorized access to or use of the OTO Technology by any person to whom they have provided access, whether such access was permitted or in violation of these TOS.
    6. Account. Users must register an account to access and use certain features of the OTO Technology. No End User may register unless they are at least 18 years of age (or if they are in a jurisdiction where the minimum age to enter into a contract of this nature is higher, then such minimum age). User represents and warrants that User is not a Person barred from using the OTO Technology under the laws of the United States, its place of residence, or any other applicable jurisdiction. User must provide accurate, current, and complete information during registration and keep its account information up to date. User may not transfer or share its account with anyone else. User is responsible for maintaining the confidentiality and security of its Access Credentials and may not disclose its Access Credentials to any third party. User is responsible and liable for activities conducted through its account and must immediately notify OTO if User suspects that its Access Credentials have been lost or stolen, or if User’s account is otherwise compromised.
    7. Fees and Payments. OTO may charge fees (and applicable Taxes), including subscription fees, to End Users, Facilities and Collaborators for the right to use and/or distribute the OTO Technology (including the OTO Software), as well as for the purchase of any OTO Hardware and/or Supplements (the “Fees”). Any applicable Fees and acceptable payment methods shall be disclosed to Users before purchase or in separate written agreements, invoices or order forms. Except as otherwise provided, Fees are non-refundable. OTO reserves the right to change its Fees at any time, and will provide Users notice of any changes before they become effective. Fee changes will not affect purchases made prior to the effective date of the change, provided that recurring or subscription-based Fees may be modified upon thirty (30) days' prior written notice to the User.
    8. Currency. All Fees and amounts in these TOS are in United States Dollars (USD).
    9. OTO Hardware Warranty. Users (in particular, End Users), may be granted the option to purchase the OTO Hardware. The OTO Hardware must be used according to all Documentation provided by OTO to ensure compliance and maintain the integrity of the data collected. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, OTO MAKES NO WARRANTIES OF ANY KIND REGARDING THE OTO HARDWARE, AND OTO WARRANTS ONLY THAT THE OTO HARDWARE WILL BE FREE FROM DEFECTS IN MATERIAL AND WORKMANSHIP UNDER NORMAL USE AND SERVICE FOR A PERIOD OF ONE (1) YEAR FROM THE DATE OF DELIVERY TO THE END USER. In the event of a defect, OTO will, at its sole discretion, either repair or replace the defective OTO Hardware within a reasonable timeframe. This warranty does not cover any damage or defect resulting from: (i) misuse; (ii) unauthorized modifications; (iii) improper maintenance; (iv) accidents; (v) normal wear and tear; or (vi) external causes beyond OTO's reasonable control, whether by the Collaborator, End Users or any third party. OTO shall provide ongoing technical support for the OTO Hardware as necessary to ensure its proper functioning and integration.
    10. Collection and Use of Information. User acknowledges that OTO may, directly or indirectly through the services of third parties, collect and store data and information (including User’s Personal Information) about the User. OTO’s collection, use, and disclosure of Personal Information are governed by OTO’s privacy policy (“Privacy Policy”). OTO reserves the right to Anonymize and aggregate Personal Information for its legitimate business purposes, as also described in the Privacy Policy. In conjunction with the uses stipulated in the Privacy Policy, and for greater certainty, User agrees that OTO may use such information to verify User’s compliance with the terms of these TOS and to enforce OTO’s rights, including all IP Rights in and to the OTO Technology.
    11. Term. These TOS shall become effective on the date the User accepts them by clicking “accepted and agreed to”, “I accept”, or any equivalent wording (the “Effective Date”) and shall remain in effect until termination by either the User or OTO in accordance with Section 1.12 or upon expiration of these TOS (the “Term”).
    12. Termination.
      1. Termination by OTO. OTO reserves the right to terminate these TOS, or suspend or terminate any User's access to any component of the OTO Technology, at any time and for any reason, upon thirty (30) days' written notice, or immediately without notice in the event of (i) User's breach of any term or condition of these TOS, (ii) if required by law or regulatory authority, (iii) if OTO reasonably determines that continued access by User poses a security risk or could result in harm to OTO, the OTO Technology, or other Users, or (iv) in the event of any actual or suspected unauthorized use of the OTO Technology or Access Credentials.
      2. Termination by End Users. End Users may terminate these TOS at any time by logging into their account settings and cancelling their subscription, provided all outstanding Fees or other amounts have been paid to OTO. Facilities and Professionals may terminate these TOS by ceasing all use of the OTO Technology, provided all outstanding Fees or other amounts have been paid to OTO.
      3. Effect of Termination. Upon termination: (i) End User's data will be handled in accordance with OTO's Privacy Policy, provided that OTO may retain and continue to use any Anonymized Data derived from End User's data in accordance with these TOS; (ii) OTO reserves the right to retain certain information as required by law or for legitimate business purposes; (iii) all rights granted to User under these TOS will immediately cease; (iv) User must promptly discontinue all use of the OTO Technology and destroy all copies of any associated Documentation in its possession or control; (v) User shall immediately pay any outstanding Fees or amounts; (vi) if User has purchased a OTO Hardware, User may retain the OTO Hardware but will no longer have access to the OTO Technology features that integrate with the OTO Hardware; and (vii) OTO will not be liable to User or any third party for any termination or suspension of access to the OTO Technology.
      4. Survival. The provisions of these TOS that by their nature should survive termination or expiration, including but not limited to confidentiality obligations, disclaimers, indemnities, limitations of liability, and payment obligations, will remain in effect.
      5. For Collaborators. This Section 1.12 does not apply to Collaborators, who shall adhere to the termination provisions outlined in their separate written agreement with OTO.
    13. Intellectual Property.
      1. Ownership. User acknowledges and agrees that all right, title, and interest in and to the OTO Technology and Documentation, including all associated IP Rights (other than licences granted by OTO.Coach to other Persons in the OTO Group), are owned by OTO.Coach, and, with respect to Third-Party Materials, the applicable third-party licensors own all right, title, and interest, including all IP Rights, in and to the Third-Party Materials. User does not acquire any ownership interest in the OTO Technology or Documentation under these TOS, or any other rights thereto, other than to use the same in accordance with the usage rights granted under these TOS and subject to all terms, conditions, and restrictions under these TOS. For clarity, OTO.Coach does not itself provide the OTO Technology or the Services to Users and is not the Service Entity under these TOS. Any rights granted to User to access or use the OTO Technology are granted by the applicable Service Entity pursuant to these TOS under license from OTO.Coach.
      2. Protection. User shall safeguard all OTO Technology (including all copies thereof) from infringement, misappropriation, theft, misuse, or unauthorized access. User shall promptly notify OTO if User becomes aware of any actual or suspected infringement, misappropriation or other violation of OTO's IP Rights in the OTO Technology and Documentation and fully cooperate with OTO, at OTO's sole expense, in any legal action taken by OTO to enforce its IP Rights.
      3. Background IP. Notwithstanding anything else contained in this TOS, the User and OTO will each retain ownership of their respective Background IP. Any derivatives, enhancements or improvements to OTO's Background IP, whether made by OTO or User, shall be owned exclusively by OTO.
      4. Feedback. User may, from time to time, provide suggestions, comments, feedback, ideas, or other information about the OTO's Technology or the Documentation ("Feedback"). User hereby irrevocably assigns to OTO all right, title, and interest (including all IP Rights) in and to the Feedback and agrees that OTO shall have the unrestricted right to use, modify, exploit, implement, and commercialize such Feedback in any manner and for any purpose, without any obligation of confidentiality, attribution, or compensation to User. User represents and warrants that its Feedback will not infringe any third party's IP Rights or confidentiality obligations.
    14. OTO’s Role. OTO does not and cannot control the conduct of Professionals, Facilities, or Collaborators. User acknowledges and agrees that OTO administers its standards and policies (such as basic requirements for Facilities and Professionals), including decisions about whether and how to apply them to a particular situation, at its sole discretion.
    15. Modifications and Updates. OTO reserves the right to update, modify, or discontinue any part of the OTO Technology in its sole discretion, provided that OTO will use commercially reasonable efforts to ensure such changes do not materially degrade the core functionality of the OTO Technology as it is used under these TOS. Any such updates or modifications will be made available to the User as part of the ongoing license, subject to the same terms and conditions.
    16. Governing Law. These TOS and all related matters are governed by, and construed in accordance with, the laws of the State of Delaware and the federal laws of the United States, without giving effect to any choice or conflict of law provision or rule.
    17. BINDING ARBITRATION. ANY CONTROVERSY, CLAIM OR DISPUTE ARISING OUT OF OR RELATING TO THESE TOS OR THE BREACH THEREOF SHALL BE SETTLED SOLELY AND EXCLUSIVELY BY BINDING ARBITRATION IN THE CITY OF WILMINGTON, STATE OF DELAWARE, ADMINISTERED BY JAMS. SUCH ARBITRATION SHALL BE CONDUCTED IN ACCORDANCE WITH THE THEN PREVAILING JAMS STREAMLINED ARBITRATION RULES & PROCEDURES, WITH THE FOLLOWING EXCEPTIONS TO SUCH RULES IF IN CONFLICT: (I) ONE ARBITRATOR SHALL BE CHOSEN BY JAMS; (II) EACH PARTY TO THE ARBITRATION WILL PAY AN EQUAL SHARE OF THE EXPENSES AND FEES OF THE ARBITRATOR, TOGETHER WITH OTHER EXPENSES OF THE ARBITRATION INCURRED OR APPROVED BY THE ARBITRATOR; AND (III) ARBITRATION MAY PROCEED IN THE ABSENCE OF ANY PARTY IF WRITTEN NOTICE (PURSUANT TO THE JAMS' RULES AND REGULATIONS) OF THE PROCEEDINGS HAS BEEN GIVEN TO SUCH PARTY. EACH PARTY SHALL BEAR ITS OWN ATTORNEYS' FEES AND EXPENSES. THE PARTIES AGREE TO ABIDE BY ALL DECISIONS AND AWARDS RENDERED IN SUCH PROCEEDINGS AND ACKNOWLEDGE THAT SUCH DECISIONS AND AWARDS RENDERED BY THE ARBITRATOR SHALL BE FINAL AND CONCLUSIVE. ALL SUCH CONTROVERSIES, CLAIMS OR DISPUTES SHALL BE SETTLED IN THIS MANNER IN LIEU OF ANY ACTION AT LAW OR EQUITY. IF FOR ANY REASON THIS ARBITRATION CLAUSE BECOMES NOT APPLICABLE, THEN EACH PARTY, (I) TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY AND CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION AS TO ANY ISSUE RELATING HERETO IN ANY ACTION, PROCEEDING, OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THESE TOS OR ANY OTHER MATTER INVOLVING THE PARTIES, AND (II) SUBMITS TO THE EXCLUSIVE JURISDICTION AND VENUE OF THE COURTS LOCATED IN THE CITY OF WILMINGTON, IN THE STATE OF DELAWARE, AND EACH PARTY AGREES NOT TO INSTITUTE ANY SUCH ACTION OR PROCEEDING IN ANY OTHER COURT IN ANY OTHER JURISDICTION. EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT IN THE COURTS REFERRED TO IN THIS SECTION 1.17 THE PROVISIONS ENUMERATED IN THIS SECTION 1.17 DO NOT HINDER THE RIGHTS OF EITHER PARTY TO SEEK INJUNCTIVE OR EQUITABLE RELIEF IN ANY JURISDICTION TO LIMIT IMMEDIATE, SERIOUS AND IRREPARABLE INJURY. NOTWITHSTANDING THE FOREGOING, THIS SECTION 1.17 DOES NOT APPLY TO COLLABORATORS, WHO SHALL ADHERE TO THE DISPUTE RESOLUTION PROCESS OUTLINED IN THEIR WRITTEN AGREEMENT WITH OTO.
    18. Subcontractors. OTO may, from time to time, in its discretion, engage third parties to develop aspects of the OTO Technology or perform its obligations under these TOS or any agreement involving the User (each, a “Subcontractor”). OTO remains responsible for the performance of its Subcontractors.
    19. Entire Agreement. These TOS and all other documents that are incorporated by reference herein (including any schedules), and, if you are a Collaborator, any written agreement signed and executed with OTO, constitute the sole and entire agreement between User and OTO, overriding any previous understandings or agreements.
    20. Assignment. User shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under these TOS, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without OTO’s prior written consent, which consent OTO may give or withhold in its sole discretion. No delegation or other transfer will relieve User of any of its obligations or performance under these TOS. Any purported assignment, delegation, or transfer in violation of this Section 1.20 is void. OTO may freely assign or otherwise transfer all or any of its rights, or delegate or otherwise transfer all or any of its obligations or performance under these TOS without User’s consent. These TOS are binding upon and enure to the benefit of the parties hereto and their respective permitted successors and assigns.
    21. Amendments and Modifications. OTO may modify these TOS at any time. Any material change to these TOS will be posted as revised TOS and OTO will update the “LAST UPDATED” date at the top of these TOS. OTO will also provide User with notice of any material changes by email, notifications through the mobile application, messaging service, or any other contact method made available by OTO and selected by User at least 30 days before the date they become effective. If User disagrees with the revised TOS, User may terminate this agreement immediately as provided in these TOS. If User does not terminate this agreement before the date the revised TOS become effective, User’s continued access to or use of the OTO Technology will constitute acceptance of the revised TOS.
    22. Waiver. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in these TOS, no failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from these TOS shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
    23. Severability. If any term or provision of these TOS is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of these TOS or invalidate or render unenforceable such term or provision in any other jurisdiction.
    24. WARRANTY DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 1.9 REGARDING HARDWARE WARRANTY, THE OTO TECHNOLOGY (INCLUDING WITHOUT LIMITATION, ANY INFORMATION PREPARED, SUGGESTED OR MADE AVAILABLE THROUGH THE OTO TECHNOLOGY), HARDWARE AND DOCUMENTATION ARE PROVIDED TO THE USER “AS IS” AND WITH ALL FAULTS AND DEFECTS, WITHOUT CONDITION OR WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, OTO, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL CONDITIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE OTO TECHNOLOGY (INCLUDING WITHOUT LIMITATION, ANY INFORMATION PREPARED, SUGGESTED OR MADE AVAILABLE THROUGH THE OTO TECHNOLOGY), HARDWARE AND DOCUMENTATION, INCLUDING ALL IMPLIED CONDITIONS AND WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET POSSESSION AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, OTO PROVIDES NO CONDITION, WARRANTY, OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE OTO TECHNOLOGY (INCLUDING WITHOUT LIMITATION, ANY INFORMATION PREPARED, SUGGESTED OR MADE AVAILABLE THROUGH THE OTO TECHNOLOGY) OR HARDWARE WILL MEET THE USER’S REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS, OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR FREE OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED. USER EXPRESSLY ACKNOWLEDGES THAT THE USE OF THE OTO TECHNOLOGY (INCLUDING WITHOUT LIMITATION, ANY INFORMATION PREPARED, SUGGESTED OR MADE AVAILABLE THROUGH THE OTO TECHNOLOGY), HARDWARE AND DOCUMENTATION IS AT THE SOLE RISK OF USER. ALL THIRD-PARTY MATERIALS ARE PROVIDED “AS IS” AND ANY REPRESENTATIONS OR WARRANTIES RELATED TO ANY THIRD-PARTY MATERIALS ARE STRICTLY BETWEEN THE USER AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF SUCH THIRD-PARTY MATERIALS. NOTWITHSTANDING THE FOREGOING, NOTHING IN THIS SECTION SHALL EXCLUDE OR LIMIT ANY WARRANTY, CONDITION, OR RIGHT THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW, INCLUDING CONSUMER PROTECTION LAWS.
    25. LIMITATION OF LIABILITY. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW: IN NO EVENT WILL ANY PERSON IN THE OTO GROUP BE LIABLE TO THE USER OR ANY THIRD PARTY FOR ANY: (A) USE, INTERRUPTION, DELAY, OR INABILITY TO USE THE OTO TECHNOLOGY OR HARDWARE; LOST REVENUES OR PROFITS; DELAYS, INTERRUPTION, OR LOSS OF SERVICES, BUSINESS, OR GOODWILL; LOSS OR CORRUPTION OF DATA; LOSS RESULTING FROM SYSTEM OR SYSTEM SERVICE FAILURE, MALFUNCTION, OR SHUTDOWN; FAILURE TO ACCURATELY TRANSFER, READ, OR TRANSMIT DATA OR INFORMATION; FAILURE TO UPDATE OR PROVIDE CORRECT DATA OR INFORMATION; SYSTEM INCOMPATIBILITY OR PROVISION OF INCORRECT COMPATIBILITY INFORMATION; BREACHES IN SYSTEM SECURITY; OR PERSONAL INJURY OR DEATH RESULTING FROM OR RELATED TO USE OF THE OTO TECHNOLOGY (INCLUDING WITHOUT LIMITATION, ANY INFORMATION PREPARED, SUGGESTED OR MADE AVAILABLE THROUGH THE OTO TECHNOLOGY), HARDWARE OR DOCUMENTATION; OR (B) CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES, IN EACH CASE WHETHER ARISING OUT OF OR IN CONNECTION WITH THESE TOS, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT OTO WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL THE OTO GROUP’S COLLECTIVE AGGREGATE LIABILITY UNDER OR IN CONNECTION WITH THESE TOS OR THEIR SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, EXCEED $500 USD FOR END USERS AND PROFESSIONALS, $5,000 USD FOR FACILITIES, AND $10,000 USD FOR COLLABORATORS (COLLECTIVELY, THE “LIABILITY CAP”). FOR CLARITY, WHILE THE LIABILITY CAP APPLIES TO THE OTO GROUP AS A WHOLE, THIS IN NO WAY SUGGESTS OR IS INTENDED TO IMPLY THAT YOU HAVE A CLAIM AGAINST A MEMBER OF THE OTO GROUP THAT IS NOT THE SERVICE ENTITY. OTO.COACH AND ALL OTHER MEMBERS OF THE OTO GROUP (OTHER THAN THE SERVICE ENTITY) SHALL HAVE NO LIABILITY TO USER UNDER OR IN CONNECTION WITH THESE TOS. USER AGREES THAT IT WILL NOT, AND THAT IT HAS NO RIGHT TO, BRING ANY CLAIM, ACTION, OR PROCEEDING ARISING OUT OF OR RELATING TO THESE TOS, THE OTO TECHNOLOGY, OR THE SERVICES AGAINST ANY MEMBER OF THE OTO GROUP OTHER THAN THE APPLICABLE SERVICE ENTITY, AND THAT ANY SUCH CLAIM MUST BE BROUGHT SOLELY AGAINST THAT SERVICE ENTITY. NOTWITHSTANDING THE FOREGOING, NOTHING IN THIS SECTION SHALL EXCLUDE OR LIMIT LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW (INCLUDING, WHERE APPLICABLE, LIABILITY FOR GROSS NEGLIGENCE OR WILLFUL MISCONDUCT).
    26. Indemnification. To the maximum extent permitted by applicable law, User agrees to release, defend (at OTO’s option), indemnify, and hold harmless OTO (including its affiliates, partners, and personnel) from and against any and all claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with:
      1. the User’s breach of these TOS (including any supplemental or additional terms applicable to a product or feature), or any applicable OTO legal terms, policies, or standards;
      2. the User’s improper use of the OTO Technology;
      3. any interactions between the User and third parties through or in connection with the OTO Technology, including without limitation any injuries, losses, or damages (whether direct, indirect, incidental, or consequential) arising from such interactions or related participation;
      4. the User’s failure, or OTO’s failure at the direction of the User, to accurately report, collect, or remit applicable Taxes; or
      5. the User’s violation of any applicable laws, regulations, or third-party rights, including intellectual property or privacy rights.
      This indemnification obligation applies regardless of any alleged negligence or fault on the part of OTO, to the fullest extent permitted by law.

  2. COLLABORATOR SPECIFIC TERMS

    1. Scope of Application. The terms in this Section 2 apply solely to Collaborators.
    2. Collaborator Obligations. The Collaborator will, at all times during the Term:
      1. set up, maintain, and operate in good repair all Collaborator Systems on or through which the OTO Technology is integrated, accessed or used;
      2. ensure that its participating Facilities are aware of and accept these TOS prior to the time such Facilities access the OTO Technology;
      3. ensure that all required End User notices and consents are validly obtained and maintained for OTO to collect, process, and use End User's Personal Information and Personal Health Information as necessary for the provision of the OTO Technology, in accordance with applicable laws;
      4. provide OTO with such access to Collaborator Systems as is necessary for OTO to perform and deliver the OTO Technology; and
      5. provide all cooperation and assistance as OTO may reasonably request to enable OTO to exercise its rights and perform its obligations in connection with these TOS or any other written agreement signed with OTO.
    3. Service and System Control. Except as otherwise expressly provided in this TOS, as between the Collaborator and OTO:
      1. OTO has and will retain sole control over the operation, provision, maintenance, and management of the OTO Technology;
      2. OTO will provide all required user interface and development necessary for the Collaborator, its Facilities, Professionals, and End Users to properly access the OTO Technology; and
      3. the Collaborator has and will retain sole control over the operation, maintenance, and management of, and all access to and use of, the Collaborator Systems, and sole responsibility for all access to and use of the OTO Technology by Facilities, Professionals, End Users, or any other Person by or through the Collaborator Systems, including any:
        1. results obtained from any use of the OTO Technology; and
        2. conclusions, decisions, or actions based on such use.
    4. Restrictions. The Collaborator will not, and will not permit any Agent, Representatives, Facilities, Professionals, End Users, or any other Person to access or use the OTO Technology except as expressly permitted by these TOS and, in the case of Third-Party Materials, the applicable third-party licence agreement.
    5. Corrective Action and Notice. If the Collaborator becomes aware of any actual or threatened activity prohibited by these TOS, the Collaborator will, and will cause its Facilities, Professionals and/or End Users or Representatives to, immediately:
      1. take all reasonable and lawful measures within their respective control that are necessary to stop the activity or threatened activity and to mitigate its effects (including, where applicable, by discontinuing and preventing any unauthorized access to the OTO Technology, and permanently erasing from their systems and destroying any data to which any of them have gained unauthorized access); and
      2. promptly notify OTO of any such actual or threatened activity.
    6. No Responsibility for Collaborator Failure or Delay. OTO is not responsible or liable for any delay (or failure of performance) caused in whole or in part by the Collaborator's, its participating Facilities' or Professionals' delay in performing, or failure to perform, any of its obligations under these TOS or any other written agreement with OTO.
    7. Collaborator Data Responsibilities. The Collaborator, as applicable in the circumstances, will retain sole control and responsibility for:
      1. all Collaborator Data (including the collection, use, and disclosure of all Personal Information and Personal Health Information of the individual End Users) collected and stored on Collaborator Systems, in accordance with applicable laws, particularly privacy and data protection laws;
      2. all information, instructions, and materials provided by or on behalf of Representatives in connection with the OTO Technology;
      3. the security and use of Access Credentials of the Representatives of the Collaborator and Facilities or Professionals; and
      4. all access to and use of the OTO Technology directly or indirectly by or through the Collaborator Systems or Access Credentials, with or without the Collaborator's knowledge or consent, including all results obtained from, and all conclusions, decisions, and actions based on, such access or use.
    8. Consent to Use Collaborator Data. The Collaborator hereby grants all such rights and permissions in or relating to Collaborator Data as are necessary to OTO and their respective Subcontractors, to perform their obligations under these TOS, including to Process relevant data.
    9. Collaborator Security Responsibilities. The Collaborator will employ all physical, administrative, and technical controls, screening, and security procedures and other safeguards necessary to:
      1. securely administer the distribution and use of all Access Credentials and protect against any unauthorized access to, or use of, the OTO Technology; and
      2. control the content and use of Collaborator Data, including the uploading or other provision of Collaborator Data for Processing by the OTO Technology.
    10. OTO Data Security and Breach Protocols.
      1. OTO will employ data security measures over Collaborator Data in accordance with applicable law, as well as OTO's data privacy and security policy as amended from time to time at the sole discretion of OTO.
      2. OTO maintains a data breach plan in accordance with all laws and will implement the procedures required under such laws on the occurrence of a breach relating to Collaborator Data.
    11. OTO Permitted Secondary Data Uses.
      1. The Collaborator hereby authorizes OTO to:
        1. Anonymize Collaborator Data and combine it with data from other customers into a master aggregate dataset managed by OTO; and
        2. use such Anonymized Collaborator Data as a component of such new aggregate dataset for any legal business purpose, including without limitation for distribution to third parties.
      2. The Collaborator hereby acknowledges that:
        1. OTO may combine any Anonymized data, including Anonymized Collaborator Data, and use such combined Anonymized data (including subsets of data) to aggregate such data into Resultant Data, in accordance with applicable privacy laws and regulations;
        2. OTO is the exclusive owner of all such Resultant Data, and OTO may use such Resultant Data for any of its desired and legitimate internal business purposes, even after these TOS expire or have been terminated; and
        3. OTO may, among other things, use Resultant Data for improving the OTO Technology, including to improve the predictive decision-making and algorithms of the OTO Technology.
      3. With respect to OTO's secondary uses of Resultant Data, OTO represents that:
        1. Resultant Data will not personally identify the Collaborator Representatives, Facilities or Professionals, or any individual End Users;
        2. it will be legally responsible for the creation and use of any Resultant Data, including the proper anonymization and/or de-identification of all Collaborator Data to produce Resultant Data in accordance with de-identification standards and other applicable privacy laws; and
        3. it will implement technical safeguards and business processes that prohibit or prevent (i) re-identification of de-identified data, or (ii) reversal of Anonymized Collaborator Data, and will make no attempt to achieve such re-identification or reversal.
    12. Additional Collaborator Representations, Warranties, and Covenants. The Collaborator represents, warrants, and covenants to OTO that:
      1. the Collaborator owns or otherwise has, and will have, the necessary rights and consents in and relating to the Collaborator Data so that, as received by OTO and Processed in accordance with these TOS, they do not and will not infringe, misappropriate, or otherwise violate any IP Rights, any privacy or other rights of any third party, or any applicable law.
      2. The Collaborator's Representatives have and will collect and use Collaborator Data in compliance with all laws, including but not limited to laws related to the collection and use of Personal Information and Personal Health Information.
    13. OTO IP Indemnity.
      1. Subject to the conditions, limitations, and caps set forth in these TOS, OTO will indemnify, defend, and hold harmless the Collaborator and the Collaborator's Representatives (each, a "Collaborator Indemnitee") from and against any and all Losses incurred by such Collaborator Indemnitee arising out of or relating to any Action by a third party (other than an affiliate of a Collaborator Indemnitee) to the extent, and only to the extent, that such Losses arise directly and solely from any allegation in such Action that the Collaborator Representatives' use of the OTO Technology (excluding Collaborator Data, Third-Party Materials, and any modifications or combinations thereof) in strict compliance with these TOS infringes an IP Right of a third party. However, the foregoing obligation does not apply to any Action or Losses arising out of or relating to any:
        1. access to, or use of, the OTO Technology or Documentation in combination with any hardware, system, software, network, or other materials or service not authorized in writing by OTO;
        2. modification of the OTO Technology other than: (i) by or on behalf of OTO; or (ii) with OTO's written approval in accordance with OTO's written specifications; or
        3. failure to timely implement any modifications, upgrades, replacements, or enhancements made available to the Collaborator by or on behalf of OTO.
      2. Mitigation. If any component of the OTO Technology is, or in OTO's opinion is likely to be, alleged to infringe, misappropriate, or otherwise violate any third-party IP Right, or if any User's use of the OTO Technology is enjoined or threatened to be enjoined, OTO may, at its option and sole cost and expense:
        1. obtain the right for the Collaborator Representatives to continue to use the OTO Technology as contemplated by these TOS;
        2. modify or replace the OTO Technology, in whole or in part, to seek to make it (as so modified or replaced) non-infringing, while providing materially equivalent features and functionality, in which case such modifications or replacements will constitute OTO Technology, as applicable, under these TOS; or
        3. by written notice to the Collaborator, terminate these TOS with respect to all or part of the OTO Technology, and require the Collaborator Representatives to immediately cease any use of the OTO Technology or any specified part or feature thereof.
    14. Conflict Between Terms. In the event of any conflict or inconsistency between these TOS and a separate written agreement entered into between Collaborator and OTO (including any schedules or exhibits thereto), the separate written agreement shall govern and control with respect to the subject matter therein. The TOS shall continue to apply to Collaborators to the extent not inconsistent with such separate written agreement.