Tenon Medical, Inc. Terms of Use

Last Updated: January 10, 2022

Welcome, and thank you for your interest in Tenon Medical, Inc. (“Tenon Medical,” “we,” or “us”) and our website at www.tenonmed.com (the “Website”). These Terms of Use are a legally binding contract between you and Tenon Medical regarding your use of the Website.

PLEASE READ THE FOLLOWING TERMS CAREFULLY:

BY ACCESSING OR USING THE WEBSITE, YOU AGREE THAT YOU HAVE READ AND UNDERSTOOD, AND, AS A CONDITION TO YOUR ACCESS OR USE OF THE WEBSITE, YOU AGREE TO BE BOUND BY, THE FOLLOWING TERMS AND CONDITIONS, INCLUDING TENON MEDICAL’S PRIVACY POLICY (TOGETHER, THESE “TERMS”). IF YOU ARE NOT ELIGIBLE, OR DO NOT AGREE TO THE TERMS, THEN YOU DO NOT HAVE OUR PERMISSION TO USE THE WEBSITE. YOUR USE OF THE WEBSITE, AND TENON MEDICAL’S PROVISION OF THE WEBSITE TO YOU, CONSTITUTES AN AGREEMENT BY TENON MEDICAL AND BY YOU TO BE BOUND BY THESE TERMS.

Arbitration NOTICE. Except for certain kinds of disputes described in Section 13, you agree that disputes arising under these Terms will be resolved by binding, individual arbitration, and BY ACCEPTING THESE TERMS, YOU AND TENON MEDICAL ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN ANY CLASS ACTION OR REPRESENTATIVE PROCEEDING.

Tenon Medical Website Overview.

WE DO NOT PROVIDE MEDICAL ADVICE.
Our Website may contain information relating to various medical, health and fitness conditions and their treatment. The information provided on the Website is FOR INFORMATION PURPOSES ONLY and is not meant to be a substitute for the advice provided by your own physician or other medical professionals. You should not use the information contained on the Website for diagnosing a medical, health or fitness condition or disease. You should always consult your own physician and medical advisors.

Use of our Website does not create a doctor-patient relationship. No information contained on the Website is intended to be used for medical diagnosis or treatment. You acknowledge and agree that none of the information or content provided through or on the Website has the ability to diagnose, prescribe, or perform any tasks that constitute the practice of medicine. If you have any questions regarding your health or a medical condition, including whether a product or solution is appropriate for you or the result of using any product described on our Website, you should always seek the advice of your physician or other qualified healthcare professional. If you experience a medical emergency, seek immediate assistance from a qualified healthcare professional or call 911. You should never delay obtaining medical advice or disregard any medical advice because of something you have or have not read on our Website or from any materials accessed through our Website.

[This Website provides information about Catamaran Sacroiliac Joint Fixation System, which has been cleared by the U.S. Food and Drug Administration (“FDA”) for as a prescription-only medical device, available for commercial use only in the United States. This device has not been authorized by any foreign regulatory authority for commercial use outside of the United States. For additional information regarding the FDA-cleared indication(s), safety, and Instructions for Use, contact Tenon Medical at 408-649-5760 or info@tenonmed.com.

Forward Looking Statements. Certain portions of this Website may include forward-looking statements that involve risks and uncertainties that could cause actual results or experience that differ materially from historical results or those anticipated. Actual future results may differ materially depending on a variety of factors, including technological advances in the medical field, foreign currency exchange rates, product demand and market acceptance, the impact of competitive products and pricing, the effect of economic conditions, and other risks detailed in our filings with the Securities and Exchange Commission. All forward-looking statements are based on estimates and assumptions made by management of the company as the date of publication.

Eligibility. You must be at least 18 years old to use the Website. By agreeing to these Terms, you represent and warrant to us that: (a) you are at least 18 years old; (b) you have not previously been prohibited from accessing the Website; and (c) your use of the Website is in compliance with any and all applicable laws and regulations. If you are an entity, organization, or company, the individual accepting these Terms on your behalf represents and warrants that they have authority to bind you to these Terms and you agree to be bound by these Terms.

Licenses

Limited License. Subject to your complete and ongoing compliance with these Terms, Tenon Medical grants you, solely for your personal use, a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to access and use the Website.

License Restrictions. Except and solely to the extent such a restriction is impermissible under applicable law, you may not: (a) reproduce, distribute, or create derivative works of the Website or materials made available on or through the Website; (b) make modifications to the Website; or (c) interfere with or circumvent any feature of the Website, including any security mechanism. If you are prohibited under applicable law from using the Website, then you may not use it.

Ownership; Proprietary Rights. The Website is owned and operated by Tenon Medical. The visual interfaces, graphics, design, information, data, computer code, products, and all other elements of the Website provided by Tenon Medical (“Materials”) are protected by intellectual property and other laws. All Materials made available through the Website are the property of Tenon Medical or its third-party licensors. Except as expressly authorized by Tenon Medical, you may not make use of the Materials. There are no implied licenses in these Terms and Tenon Medical reserves all rights to the Materials not granted expressly in these Terms.

Linked Websites. The Website may contain links to third-party websites. Linked websites are not under Tenon Medical’s control, and Tenon Medical is not responsible for their content. Please be sure to review the terms of use and privacy policy of any third-party websites before accessing such content.

Email. We may send you emails concerning our products, as well as those of third parties. You may opt out of promotional emails by following the unsubscribe instructions in the promotional email itself.

Prohibited Conduct. BY USING THE WEBSITE, YOU AGREE NOT TO:
use the Website for any illegal purpose or in violation of any local, state, national, or international law;

violate, encourage others to violate, or provide instructions on how to violate, any right of a third party;

interfere with security-related features of the Website, including by: (i) disabling or circumventing features that prevent or limit use, printing or copying of any content; or (ii) reverse engineering or otherwise attempting to discover any portion of the Website except to the extent that the activity is expressly permitted by applicable law;

interfere with the operation of the Website or any user’s enjoyment of the Website, including by: (i) disseminating any virus, adware, spyware, worm, or other malicious code; or (ii) interfering with or disrupting any network, equipment, or server connected to or used to provide the Website;

sell or otherwise transfer the access granted under these Terms or any Materials (as defined in Section 4) or any right or ability to view, access, or use any Materials; or
attempt to do any of the acts described in this Section 6 or assist or permit any person in engaging in any of the acts described in this Section 6.

Respect of Third-Party Rights. Tenon Medical respects the intellectual property rights of others, takes the protection of intellectual property rights very seriously, and asks users of the Website to do the same. Infringing activity will not be tolerated on or through the Website.

Modification of Terms. We may, from time to time, change these Terms, in our sole discretion. Please check these Terms periodically for changes. Revisions will be effective immediately after posting or notice to you of the revisions unless otherwise stated. Except as expressly permitted in this Section 8, these Terms may be amended only by a written agreement signed by authorized representatives of the parties to these Terms.

Term, Termination, and Modification of the Website

Term. These Terms are effective beginning when you access or use the Website, and ending when terminated as described in Section 9.2.

Termination. If you violate any provision of these Terms, then your authorization to access the Website and these Terms automatically terminate. In addition, Tenon Medical may, at its sole discretion, terminate these Terms, or suspend or terminate your access to the Website, at any time for any reason or no reason, with or without notice, and without any liability to you arising from such termination.

Effect of Termination. Upon termination of these Terms: (a) your license rights will terminate and you must immediately cease all use of the Website; (b) you will no longer be authorized to access the Website; and (c) and Sections 4, 9.3, 10, 11, 12, 13, and 14 will survive.

Modification of the Website. Tenon Medical reserves the right to modify or discontinue all or any portion of the Website at any time (including by limiting or discontinuing certain features of the Website), temporarily or permanently, without notice to you. Tenon Medical will have no liability for any change to the Website, or any suspension or termination of your access to or use of the Website.

Indemnity. To the fullest extent permitted by law, you are responsible for your use of the Website, and you will defend and indemnify Tenon Medical, its affiliates and their respective shareholders, directors, managers, members, officers, employees, consultants, and agents (together, the “Tenon Medical Entities”) from and against every claim brought by a third party, and any related liability, damage, loss, and expense, including attorneys’ fees and costs, arising out of or connected with: (1) your unauthorized use of, or misuse of, the Website; (2) your violation of any portion of these Terms, any representation, warranty, or agreement referenced in these Terms, or any applicable law or regulation; (3) your violation of any third-party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; or (4) 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.

Disclaimers; No Warranties by Tenon Medical

THE WEBSITE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE WEBSITE ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. TENON MEDICAL DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE WEBSITE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE WEBSITE, 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. TENON MEDICAL DOES NOT WARRANT THAT THE WEBSITE OR ANY PORTION OF THE WEBSITE, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE WEBSITE, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND TENON MEDICAL DOES NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED.

NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE WEBSITE OR TENON MEDICAL ENTITIES OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE WEBSITE WILL CREATE ANY WARRANTY REGARDING ANY OF THE TENON MEDICAL ENTITIES OR THE WEBSITE THAT IS NOT EXPRESSLY STATED IN THESE TERMS. WE ARE NOT RESPONSIBLE FOR ANY DAMAGE THAT MAY RESULT FROM YOUR ACCESSING THE WEBSITE. YOU UNDERSTAND AND AGREE THAT YOU USE THE WEBSITE 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 WEBSITE) OR ANY LOSS OF DATA.

THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN THIS SECTION 11 APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. Tenon Medical does not disclaim any warranty or other right that Tenon Medical is prohibited from disclaiming under applicable law.

Limitation of Liability

TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE TENON MEDICAL 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 WEBSITE OR ANY MATERIALS OR CONTENT ON THE WEBSITE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY TENON MEDICAL ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.

EXCEPT AS PROVIDED IN SECTIONS 13.5 AND 13.6 AND TO THE FULLEST EXTENT PERMITTED BY LAW, THE AGGREGATE LIABILITY OF THE TENON MEDICAL ENTITIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE ACCESS, USE OF OR ANY INABILITY TO ACCESS OR USE ANY PORTION OF THE WEBSITE OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO US$100.
EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 12 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

Dispute Resolution and Arbitration

Generally. Except as described in Section 13.2 and 13.3, you and Tenon Medical agree that every dispute arising in connection with these Terms, the Website, or communications from us will be resolved through binding arbitration. Arbitration uses a neutral arbitrator instead of a judge or jury, is less formal than a court proceeding, may allow for more limited discovery than in court, and is subject to very limited review by courts. This agreement to arbitrate disputes includes all claims whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. Any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement will be resolved by the arbitrator.

YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND TENON MEDICAL ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.

Exceptions. Although we are agreeing to arbitrate most disputes between us, nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law in aid of arbitration; or (d) to file suit in a court of law to address an intellectual property infringement claim.

Opt-Out. If you do not wish to resolve disputes by binding arbitration, you may opt out of the provisions of this Section 13 within 30 days after the date that you agree to these Terms by sending a letter to Tenon Medical, Inc., Attention: Legal Department – Arbitration Opt-Out, 104 Cooper Court, Los Gatos, CA 95032 that specifies: Tenon Medical, Inc. and a statement that you wish to opt out of arbitration (“Opt-Out Notice”). Once Tenon Medical receives your Opt-Out Notice, this Section 13 will be void and any action arising out of these Terms will be resolved as set forth in Section 14.2. The remaining provisions of these Terms will not be affected by your Opt-Out Notice.

Arbitrator. This arbitration agreement, and any arbitration between us, is subject the Federal Arbitration Act and will be administered by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (collectively, “AAA Rules”) as modified by these Terms. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at +1-800-778-7879, or by contacting Tenon Medical.

Commencing Arbitration. Before initiating arbitration, a party must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if that other party has not provided a current physical address, then by electronic mail (“Notice of Arbitration”). Tenon Medical’s address for Notice is: Tenon Medical, Inc., 104 Cooper Court, Los Gatos, CA 95032. The Notice of Arbitration must: (a) identify the name or account number of the party making the claim; (b) describe the nature and basis of the claim or dispute; and (c) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice of Arbitration is received, you or Tenon Medical may commence an arbitration proceeding. If you commence arbitration in accordance with these Terms, Tenon Medical will reimburse you for your payment of the filing fee, unless your claim is for more than US$10,000 or if the Company has received 25 or more similar demands for arbitration, in which case the payment of any fees will be decided by the AAA Rules. If the arbitrator finds that either the substance of the claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules and the other party may seek reimbursement for any fees paid to AAA.

Arbitration Proceedings. Any arbitration hearing will take place in the county and state of your residence unless we agree otherwise or, if the claim is for US$10,000 or less (and does not seek injunctive relief), you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a telephonic or video hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of your residence. During the arbitration, the amount of any settlement offer made by you or Tenon Medical must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based.

Arbitration Relief. Except as provided in Section 13.8, the arbitrator can award any relief that would be available if the claims had been brough in a court of competent jurisdiction. If the arbitrator awards you an amount higher than the last written settlement amount offered by Tenon Medical before an arbitrator was selected, Tenon Medical will pay to you the higher of: (a) the amount awarded by the arbitrator and (b) US$10,000. The arbitrator’s award shall be final and binding on all parties , except (1) for judicial review expressly permitted by law or (2) if the arbitrator’s award includes an award of injunctive relief against a party, in which case that party shall have the right to seek judicial review of the injunctive relief in a court of competent jurisdiction that shall not be bound by the arbitrator’s application or conclusions of law. Judgment on the award may be entered in any court having jurisdiction.

No Class Actions. YOU AND TENON MEDICAL AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Tenon Medical agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.

Modifications to this Arbitration Provision. If Tenon Medical makes any substantive change to this arbitration provision, you may reject the change by sending us written notice within 30 days of the change to Tenon Medical’s address for Notice of Arbitration, in which case your account with Tenon Medical will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.

Enforceability. If Section 13.8 or the entirety of this Section 13 is found to be unenforceable, or if Tenon Medical receives an Opt-Out Notice from you, then the entirety of this Section 13 will be null and void and, in that case, the exclusive jurisdiction and venue described in Section 14.2 will govern any action arising out of or related to these Terms.

Miscellaneous

General Terms. These Terms, including the Privacy Policy and any other agreements expressly incorporated by reference into these Terms, are the entire and exclusive understanding and agreement between you and Tenon Medical regarding your use of the Website. You may not assign or transfer these Terms or your rights under these Terms, in whole or in part, by operation of law or otherwise, without our prior written consent. We may assign these Terms and all rights granted under these Terms, 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 these Terms, or any provision of these Terms, be a waiver of any subsequent breach or default or a waiver of the provision itself. Use of Section headers in these Terms is for convenience only and will not have any impact on the interpretation of any provision. Throughout these Terms the use of the word “including” means “including but not limited to.” If any part of these Terms is held to be invalid or unenforceable, then the unenforceable part will be given effect to the greatest extent possible, and the remaining parts will remain in full force and effect.

Governing Law. These Terms are governed by the laws of the State of California without regard to conflict of law principles. You and Tenon Medical submit to the personal and exclusive jurisdiction of the state courts and federal courts located within Santa Clara, California for resolution of any lawsuit or court proceeding permitted under these Terms.

Privacy Policy. Please read the Tenon Medical Privacy Policy (the “Privacy Policy”) carefully for information relating to our collection, use, storage, and disclosure of your personal information. The Tenon Medical Privacy Policy is incorporated by this reference into, and made a part of, these Terms.

Additional Terms. Your use of the Website is subject to all additional terms, policies, rules, or guidelines applicable to the Website or certain features of the Website that we may post on or link to from the Website (the “Additional Terms”). All Additional Terms are incorporated by this reference into, and made a part of, these Terms.

Consent to Electronic Communications. By using the Website, you consent to receiving certain electronic communications from us as further described in our Privacy Policy. Please read our Privacy Policy to learn more about our electronic communications practices. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that those communications be in writing.

Contact Information. The Website is offered by Tenon Medical, Inc., located at 104 Cooper Court, Los Gatos, CA 95032 United States. You may contact us by sending correspondence to that address or by emailing us at info@tenonmed.com.

Notice to California Residents. If you are a California resident, then 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 +1-800-952-5210 in order to resolve a complaint regarding the Website or to receive further information regarding use of the Website.

No Support. We are under no obligation to provide support for the Website. In instances where we may offer support, the support will be subject to published policies.

International Use. The Website is intended for visitors located within the United States. We make no representation that the Website is appropriate or available for use outside of the United States. Access to the Website from countries or territories or by individuals where such access is illegal is prohibited.