Last Updated: March 12, 2023
BY DOWNLOADING, INSTALLING, OR OTHERWISE ACCESSING OR USING THE INSTRUMENTOR SERVICES, YOU AGREE THAT YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT AGREE, YOU MAY NOT USE THE INSTRUMENTOR SERVICES.
1.1 License Agreement. Please note that, in some cases, the terms of this Agreement may not apply to a particular user’s use of the Instrumentor Services. Instrumentor enters into contracts with some entities (each a “Licensee”) pursuant to which the entity purchases the right for its employees and contractors to access and use the Instrumentor Services (each “License Agreement”). If you are an employee or contractor of such a Licensee then your use of the Instrumentor Services is governed by the terms of the License Agreement signed by the Licensee and not by the terms of this Agreement. This is the case even though you are required to click “I agree” to the terms of this Agreement when you access Instrumentor Services. If you are not an employee or contractor of a Licensee, your use of the Instrumentor Services is governed by the terms of this Agreement.
1.2 License Only. Instrumentor Services are licensed, not sold, to you and you may use the Instrumentor Services only as set forth in this Agreement.
1.3 Limited License. Subject to your complete and ongoing compliance with this Agreement, Instrumentor grants you a limited, non-exclusive, non-transferable, non-sublicensable, and revocable license to: (a) download, install, and use one object code copy of the Remote App made available to you by Instrumentor on a mobile device that you own or control; and (b) access and use the Instrumentor Services \ through an Internet location where you can access and use the Instrumentor Services using a supported browser (“Instrumentor Portal”), or through such other mechanism that Instrumentor may make available in its discretion. This license is solely for your individual, non-commercial use.
1.4 License Restrictions. Solely to the extent such a restriction is permissible under applicable law, you may not: (a) record, store, reproduce, or otherwise save any audio-video feed of a medical procedure that is transmitted by the Instrumentor Services or any other content made available on the Instrumentor Services in or on any medium (“Content”), whether permanently or temporarily; (b) charge anyone a fee or other consideration for viewing or otherwise accessing Content; (c) resell, gift, give, or otherwise transfer access to the Instrumentor Services to any other party; (d) enable or permit any other person to use the User’s Log-In Credentials (as defined in Section 4) or User Account (as defined in Section 4); (e) reverse engineer, decompile, or otherwise attempt to discover any source code or underlying ideas or algorithms of any portion of the Instrumentor Services except to the extent permitted by applicable law; (f) provide, lease, lend, use for timesharing, or otherwise use or allow others to use any portion of the Instrumentor Services for the benefit of any third party; (g) remove any proprietary notices or labels from the Instrumentor Services; (h) use the Instrumentor Services for any illegal purpose or in violation any local, state, national, or international law, including applicable export control laws or regulations administered by the U.S. Commerce Department, OFAC, or any other government agency; (i) interfere with security-related features of the Instrumentor Services including by disabling or circumventing features that prevent or limit use or copying of any Content; (j) upload or otherwise disseminate any virus, adware, spyware, worm, or other malicious code through the Instrumentor Services; (k) interfere with or disrupt any network, equipment, or server connected to or used to provide the Instrumentor Services; (l) allow Users to access and use the Instrumentor Services from outside of the United States; (m) interfere with any user’s enjoyment of the Instrumentor Services; (n) perform any fraudulent activity including impersonating any person or entity, claiming a false affiliation, or accessing any other Instrumentor Services account without permission; or (o) permit anyone else to do any of the foregoing.
1.5 Updates and Upgrades. This Agreement will govern any software upgrades or updates, modifications, or bug fixes to the Instrumentor Services that Instrumentor provides free of additional charge to its customers using the Services (collectively “Updates”) and any additions, enhancements, new modules, and other upgrades that include new features and substantial increases in functionality to the Instrumentor Services which Instrumentor provides for an additional fee (“Upgrade”), unless such Update or Upgrade is accompanied by a separate license or agreement (in which case you agree that the terms of that license or agreement will govern such Update or Upgrade).
1.6 Ownership; Proprietary Rights. As between you and Instrumentor and subject to your limited rights under this Agreement, Instrumentor owns all right, title and interest in and to: (a) any and all of the following and any tangible embodiments thereof: (i) works of authorship, including computer programs, whether in source code or in executable code form, architecture, and documentation; (ii) inventions (whether or not patentable), discoveries, and improvements; (iii) proprietary and confidential information, trade secrets and know-how; (iv) databases, data compilations and collections, and technical data; (v) methods and processes; (vi) devices, prototypes, designs, and schematics; and (vii) any other forms of technology used by Instrumentor to provide the Instrumentor Services and any parts or components thereof (“Instrumentor Technology”); (b) all Updates; (c) all Upgrades; and (d) all intellectual property rights in and to (a) – (c). Subject to the limited rights expressly granted under this Agreement, Instrumentor, its licensors, and its suppliers reserve all of their right, title, and interest in and to the Instrumentor Services, including all of their related intellectual property rights. No rights are granted to you hereunder other than as expressly set forth herein. If you provide any feedback to Instrumentor concerning the functionality or performance of the Instrumentor Services (including identifying potential errors and improvements), you hereby assign to Instrumentor all right, title, and interest in and to such feedback, and Instrumentor is free to use such feedback without payment or restriction. As between you and Instrumentor, the Instrumentor Technology and all intellectual property rights therein and related thereto are owned by Instrumentor and its licensors and are protected by intellectual property and other laws. Except as expressly authorized by Instrumentor, you may not make use of the Instrumentor Technology. Instrumentor reserves all rights not granted expressly in this Agreement.
You must be at least 18 years old to use the Instrumentor Services. By agreeing to this Agreement, you represent and warrant that: (a) you are at least 18 years old; (b) you have not previously been suspended or removed from the Instrumentor Services; and (c) your registration and your use of the Instrumentor Services is in compliance with any and all applicable laws and regulations.
In order for you to use the Instrumentor Services, you must become a registered user on the Instrumentor Services portal or via Remote App. To register you will be required to provide Instrumentor with some information including your name and email address (“User Data”). Instrumentor will use the User Data to set up your user account (“User Account”). Once Instrumentor establishes your User Account, it will email you at the email address you provided and request that you verify the identity of the email address. Your email address and password constitute your log-in credentials (“Log-in Credentials”). You agree to provide the required User Data to Licensee (if applicable) and to ensure that the User Data you provide is accurate and that you will keep it accurate and up-to-date at all times. You are responsible for maintaining the confidentiality of your Log-in Credentials and you accept responsibility for all activities that occur under your User Account. If you believe that your User Account is no longer secure, then you must immediately notify us at support@instrumentor.io. You agree and consent to Instrumentor storing and using the User Data that you provide in connection with your User Account in order to provide you with the Instrumentor Services and for such other purposes as are described in the Instrumentor Privacy Policy ("Privacy Policy"), which is incorporated into this Agreement by reference and can be found at https://www.instrumentor.io/privacy/).
Instrumentor may permit users to access and use the Remote App and Instrumentor Services on an evaluation basis (“Evaluation Services”). If you are accessing and using the Instrumentor Services for evaluation purposes, such use will be governed by this Agreement, as modified by this Section 4. Notwithstanding any other terms to the contrary, you may only use the Evaluation Services for your internal demonstration, testing, or evaluation purposes and not for any production purposes. Any use of the Instrumentor service on an evaluation basis will be limited to use in connection with the specific event(s) for which Instrumentor issues you access credentials(s) for a period of 30 days, beginning on the date Instrumentor or you set up a User Account and Instrumentor authorizes your use thereof. Evaluation Services may have a limited term, and Instrumentor may “time-out” and disable the Evaluation Services, or otherwise discontinue your access and use of the Evaluation Services, at any time without prior notice. You will not attempt to defeat or circumvent any duration mechanism for Evaluation Services and will not use any Evaluation Services beyond the prescribed term. NOTWITHSTANDING ANY TERMS TO THE CONTRARY IN THIS AGREEMENT, INSTRUMENTOR DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, FOR EVALUATION SERVICES. THE EVALUATION SERVICES ARE PROVIDED ON AN “AS IS” BASIS AND AT YOUR OWN RISK AND YOU HEREBY RELEASE INSTRUMENTOR FROM ANY AND ALL LIABILITY ASSOCIATED WITH THE EVALUATION SERVICES.
The Instrumentor Services contain, or rely upon, certain open source software (OSS) components, originating from the open source software communities, which are subject to additional restrictions. Any OSS in the Instrumentor Services is distributed in accordance with the OSS component’s license terms and conditions. In the event of a conflict between the applicable OSS component’s license and the other portions of this Agreement, the OSS component’s license will take precedence (but solely with respect to the OSS component(s) to which the license relates). By installing or using any of the Instrumentor Services, you agree to be bound by the additional terms and conditions of all applicable OSS components. If you do not agree to be bound to such OSS component terms and conditions, you must immediately discontinue use of the Instrumentor Services and remove all copies from your system. Required OSS notices are available at: https://www.instrumentor.io/oss.
You acknowledge that the Instrumentor Services are intended to passively display information and stream audio and video of medical procedures for remote sharing and viewing in order to facilitate use of certain medical equipment and surgical training. The Instrumentor Services are neither intended to provide medical advice, diagnosis, treatment, cure, or prevention of any disease nor intended to be used as a tool to accomplish any of the foregoing. You acknowledge and agree that the Instrumentor Services are merely a conduit (a) of information related to procedures, and (b) for the use of medical devices in connection with performing procedures on patients and the provision of healthcare to patients by independent third party healthcare providers (collectively, “Healthcare Provider(s)”). The Healthcare Providers are solely responsible for and will have complete authority, responsibility, supervision, and control over (i) the procedures displayed via the Instrumentor Services, and (ii) the provision of all medical services, advice, instructions, treatment decisions, and other professional health care services performed. All diagnoses, treatments, procedures, and other professional health care services will be provided and performed exclusively by or under the supervision of Healthcare Providers as they, in their sole discretion, deem appropriate. You further acknowledge and agree that Instrumentor does not provide or endorse any medical advice on or through the Instrumentor Services and no information obtained through the Instrumentor Services can be so construed or used. Instrumentor will not have, nor will it have the ability to exercise, any control, authority, or supervision over the provision of any medical services, other professional health care services, or the procedures themselves. When using the Instrumentor Services, information may be transmitted over a medium that may be beyond the control and jurisdiction of Instrumentor, its licensors, and its suppliers. Accordingly, Instrumentor assumes no liability for, or relating to, the delay, failure, interruption, or corruption of any data or other information transmitted in connection with the Instrumentor Services that is reasonably determined to be beyond Instrumentor’s control.
You acknowledge that each Healthcare Provider end user is solely responsible for obtaining the necessary consent of any patient to allow the Healthcare Provider to record and distribute for the educational and value added services purposes described herein the surgery depicted in any video content (“User Content”) that Healthcare Provider provides in connection with use of the Instrumentor Services. Additionally, you are instructed NOT to include information that would be considered protected health information (“PHI”) under the Health Insurance Portability and Accountability Act (“HIPAA”) in any User Content. You agree that, in accordance with Section 12 of this Agreement, you will defend and indemnify the Instrumentor Entities from and against every claim brought by a third party, and any related liability, damage, loss, and expense, including reasonable attorneys’ fees and costs, arising out of or connected with your failure to comply with this section.
Instrumentor collects and monitors User Content and information that the Instrumentor Services generates, or records, regarding your usage of, and the performance of, the Instrumentor Services, but explicitly excludes any information about a hospital, other medical facility, or any patients including, but not limited to, any information that would be considered PHI under HIPAA (“User Content and Usage Data”) in order to: (a) facilitate delivery of the Instrumentor Services; (b) track usage for billing purposes; (c) provide support for the Instrumentor Services; (d) monitor the performance, integrity, and stability of the Instrumentor Services infrastructure; (e) prevent or address technical issues with the Instrumentor Services; and (f) develop and improve our products and services, and your experience. You hereby consent to our gathering and use of the User Content and Usage Data as described herein and agree that you will not interfere with that collection and use. As between you and Instrumentor, Instrumentor shall own all User Content and Usage Data, the know-how and analytical results generated in the processing of the User Content and Usage Data, any and all Updates or Upgrades, or any other Instrumentor products or services, in each case, that are created as a result of Instrumentor’s use of the User Content and Usage Data.
8.1 Email. Instrumentor may send you emails to the email address in your User Data. These emails may include operational messages about your use of the Instrumentor Services such as to inform you that a procedure is shared with you to which you are invited to view via the Instrumentor Portal or to apprise you of problems we are experiencing with the Instrumentor Services (“Operational Emails”). By using the Instrumentor Services, you consent to receiving certain electronic communications from us as further described in our Privacy Policy.
9.1 General. Certain features in the Instrumentor Services may require you to pay fees. Before you pay any fees, you will have an opportunity to review and accept the fees that you will be charged. All fees are in U.S. Dollars and, except as expressly set forth herein, are non-refundable.
9.2 Price. Instrumentor reserves the right to determine pricing for the Instrumentor Services (including any parts thereof) and for any other features or functionality made available through the Instrumentor Services. Instrumentor will use reasonable efforts to keep pricing information up to date. We may change the fees for the Instrumentor Services and for other features or functionalities made available through the Instrumentor Services.
9.3 Authorization. By providing a credit card or other payment method that Instrumentor accepts, you represent and warrant that (a) you are authorized to use the designated payment method, and (b) you authorize Instrumentor (or our third-party payment processor, Stripe) to charge you fees for any purchases you make in the Remote App or in connection with the Instrumentor Services to the payment method you provide. The protection, security, collection, maintenance, and processing of your information by third-party payment processors including Stripe is subject to the terms and conditions of each such company’s privacy policies including Stripe’s privacy policy (available at http://stripe.com/privacy). If you pay any fees with a credit card, Instrumentor may seek pre-authorization of your credit card account prior to your purchase to verify that the credit card is valid and has the necessary funds or credit available to cover your purchase. Instrumentor may cancel any purchase you make or may suspend or terminate access to the Instrumentor Services, including fee-based portions of the service, if you fail to timely pay any fees due to Instrumentor. In addition to such fees, you may be charged additional fees or charges that are incidental to any chargeback or collection of any unpaid amount due to Instrumentor, including collection fees. You must resolve any payment method problems and pay any unpaid fees and charges before we fulfill your purchase or reinstate access to the Instrumentor Services.
Instrumentor reserves the right, in its sole discretion, to change, modify, add, or remove portions of this Agreement at any time by making such modified Agreement available to you through the Instrumentor Services.
11.1 Term. This Agreement is effective beginning when you accept this Agreement or first download, install, access, or use the Remote App or the Instrumentor Services, and ending when terminated as described in Section 11.2.
11.2 Termination of the Agreement. If you violate any provision of this Agreement, your authorization to use the Instrumentor Services, including the Remote App will be terminated. In addition, Instrumentor may, at its sole discretion, terminate this Agreement or your User Account, or suspend or terminate your access to the Instrumentor Services, at any time for any reason or no reason, with or without notice. You may terminate your User Account at any time by contacting Instrumentor at support@instrumentor.io.
11.3 Effect of Termination. Upon termination of this Agreement: (a) your license rights to the Remote App and usage of the Instrumentor Services will terminate and you must immediately cease all use of both; (b) you will no longer be authorized to access your User Account or the Instrumentor Services; and (c) Sections 1.6, 7, 11.3, 12, 13, 14, and 15 will survive any such termination.
To the fullest extent permitted by law, you are responsible for your use of the Instrumentor Services, including the Remote App, and you will defend and indemnify Instrumentor and its officers, directors, employees, consultants, affiliates, subsidiaries and agents (together, the “Instrumentor Entities”) from and against every claim brought by a third party, and any related liability, damage, loss, and expense, including reasonable attorneys’ fees and costs, arising out of or connected with: (a) your unauthorized use of, or misuse of, the Remote App and Instrumentor Services; (b) your violation of any portion of this Agreement, any representation, warranty, or agreement referenced in this Agreement, or any applicable law or regulation; (c) your violation of any third party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; or (d) any dispute or issue between you and any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of those claims.
THE INSTRUMENTOR SERVICES, AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE INSTRUMENTOR SERVICES, ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. INSTRUMENTOR DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE INSTRUMENTOR SERVICES AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THEM, INCLUDING: (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (B) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. INSTRUMENTOR DOES NOT WARRANT THAT THE INSTRUMENTOR SERVICES OR ANY PORTION THEREOF, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE INSTRUMENTOR SERVICES, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND INSTRUMENTOR DOES NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM INSTRUMENTOR ENTITIES OR OUTSIDE OF THIS AGREMENT WILL CREATE ANY WARRANTY REGARDING ANY OF THE INSTRUMENTOR ENTITIES, OR THE INSTRUMENTOR SERVICES THAT IS NOT EXPRESSLY STATED IN THISAGREEMENT. WE ARE NOT RESPONSIBLE FOR ANY DAMAGE THAT MAY RESULT FROM THE INSTRUMENTOR SERVICES, MATERIALS, CONTENT, OR YOUR DEALING WITH ANY OTHER INSTRUMENTOR SERVICES USER. YOU UNDERSTAND AND AGREE THAT YOU USE ANY PORTION OF THE INSTRUMENTOR SERVICES AT YOUR OWN DISCRETION AND RISK, AND THAT WE ARE NOT RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE INSTRUMENTOR SERVICES) OR ANY LOSS OF DATA.
THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN THIS SECTION APPLY TO THE FULLEST EXTENT PERMITTED BY LAW.
TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE INSTRUMENTOR ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE INSTRUMENTOR SERVICES OR ANY MATERIALS OR CONTENT ON THE INSTRUMENTOR SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY INSTRUMENTOR ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.
TO THE FULLEST EXTENT PERMITTED BY LAW, THE AGGREGATE LIABILITY OF THE INSTRUMENTOR ENTITIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF, OR ANY INABILITY TO USE, ANY PORTION OF THE INSTRUMENTOR SERVICE, OR OTHERWISE UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF: (A) THE AMOUNT YOU HAVE PAID TO INSTRUMENTOR FOR ACCESS TO AND USE OF INSTRUMENTOR SERVICES IN THE 12 MONTHS PRIOR TO THE EVENT OR CIRCUMSTANCE GIVING RISE TO CLAIM; OR (B) $100.
15.1 General Terms. Except as set forth in Section 1.1, this Agreement, together with the Privacy Policy and any other agreements expressly incorporated by reference into this Agreement, are the entire and exclusive understanding and agreement between you and Instrumentor regarding your use of the Instrumentor Services. You may not assign or transfer this Agreement or your rights under this Agreement, in whole or in part, by operation of law or otherwise, without our prior written consent. We may assign this Agreement at any time without notice or consent. The failure to require performance of any provision will not affect our right to require performance at any other time after that, nor will a waiver by us of any breach or default of this Agreement, or any provision of this Agreement, be a waiver of any subsequent breach or default or a waiver of the provision itself. Throughout this Agreement the use of the word “including” means “including but not limited to”. If any part of this Agreement is held to be invalid or unenforceable, the unenforceable part will be given effect to the greatest extent possible, and the remaining parts will remain in full force and effect.
15.2 Governing Law. This Agreement is governed by the laws of the Commonwealth of Massachusetts without regard to conflict of law principles. You and Instrumentor submit to the personal and exclusive jurisdiction of the state courts and federal courts located within Worcester County, Massachusetts for resolution of any lawsuit or court proceeding permitted under this Agreement. We operate the Instrumentor Services from the United States and we make no representation that Materials included in the Instrumentor Services are appropriate or available for use in other locations.
15.3 Privacy Policy. Please read the Instrumentor Privacy Policy (available at https://www.instrumentor.io/privacy/ ) carefully for information relating to our collection, use, storage, disclosure of your personal information.
15.4 Additional Terms. Your use of the Instrumentor service is subject to all additional terms, policies, rules, or guidelines applicable to the Instrumentor Services or certain features of the Instrumentor Services that we may post on or link to from our websites and the Instrumentor Services (the “Additional Terms”). All Additional Terms are incorporated by this reference into, and made a part of, this Agreement.
15.5 Contact Information. The Instrumentor Services are offered by Instrumentor Solutions Inc., located at 46 Rockwood Lane, Needham, MA 02494. You may contact us by sending correspondence to that address or by emailing us at support@instrumentor.io .
15.6 Notice to California Residents. If you are a California resident, under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (800) 952-5210 in order to resolve a complaint regarding the Instrumentor Services or to receive further information regarding use of the Instrumentor Services
15.7 No Support. Under this Agreement, we are under no obligation to provide support for the Instrumentor Services. In instances where we may offer support, the support will be subject to published policies.
15.8 International Use. Users may only access and use the Instrumentor Services from locations in the United States. Instrumentor makes no representation that the Instrumentor Services are appropriate or available for use outside of the United States. Access to the Instrumentor Services from countries or territories or by individuals where such access is illegal is prohibited.
15.9 Notice Regarding Apple. This Section 15.9 only applies to the extent you are using our Remote App on an iOS device. You acknowledge that this Agreement is between you and Instrumentor only, not with Apple Inc. (“Apple”), and that Apple is not responsible for the Remote App, the Instrumentor service or the content thereof. Apple has no obligation to furnish any maintenance and support services with respect to the Remote App or Instrumentor service. If the Remote App fails to conform to any applicable warranty, you may notify Apple and Apple will refund any applicable purchase price for the Remote App to you; and, to the maximum extent permitted by applicable law, Apple has no other warranty obligation with respect to the Remote App. Apple is not responsible for addressing any claims by you or any third party relating to the Remote App or the Instrumentor service or your use of the Remote App or the Instrumentor service, including: (a) product liability claims; (b) any claim that the Remote App or the Instrumentor service fails to conform to any applicable legal or regulatory requirement; or (c) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement and discharge of any third party claim that the Remote App or the Instrumentor service and/or your use of the Remote App or the Instrumentor service infringe a third party’s intellectual property right. You agree to comply with any applicable third party terms when using the Remote App and Instrumentor service. Apple and Apple’s subsidiaries are third party beneficiaries of this Agreement, and upon your acceptance of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third party beneficiary of this Agreement. You hereby represent and warrant that: (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.