EPITOMYZE TERMS OF SERVICE
YOU ACKNOWLEDGE AND AGREE THAT BY CLICKING ON THE “CREATE ACCOUNT” LINK, OR ACCESSING OR USING THE SERVICE OR THE APP, YOU ARE AGREEING TO BE BOUND BY THESE TERMS. If you are agreeing to these Terms on behalf of a company or other legal entity, you represent that you have the authority to bind such entity. You must also be eighteen (18) years old to agree to these Terms. If you do not have such authority, are not eighteen, or if you do not agree with these Terms, you may not use the Service or the App. These Terms are effective between you and Epitomyze as of the date you click on the “CREATE ACCOUNT” link or begin to use the Service or the App.
Epitomyze reserves the right, at its sole discretion, to modify, discontinue or terminate the Service and/or the App or to modify these Terms, at any time. These Terms can be viewed any time at www.epitomyze.com. If we modify these Terms, we will provide you with notice of the modification. By continuing to access or use the Service or the App after we have given notice of a modification to the Terms, you agree to be bound by the modified Terms. If the modified Terms are not acceptable to you, you agree to immediately stop using the Service and the App.
2. Term and Termination
The term of your subscription to the Service will commence as of the date you activate your account and continue either on a month-to-month basis or for the term specified on your invoice.
You may terminate your subscription to the paid Service at any time by giving us thirty (30) days’ written notice by email to www.epitomyze.com. Despite your termination, any fees that you have paid for the remainder of your subscription term will not be refunded.
Epitomyze, in its sole discretion, has the right to suspend or terminate your use of the Service and the App and may refuse any future use of the Service and the App by you. Epitomyze will use all reasonable efforts to contact you directly to warn you prior to any such suspension or termination. Should Epitomyze terminate your subscription to the Service, Epitomyze will provide you with notice of the effective date of termination. In advance of the termination or expiry of your subscription to the Service, you must create a copy of any Content you will require post
termination. Subject to any retention requirements that Epitomyze may have at law, your Content will be permanently deleted within ninety (90) days of the termination or expiration of your subscription to the Service, whether the termination is by you or by Epitomyze.
3. Rights and Restrictions
App, Website & Service. The App, the Website and the Service (and all copies thereof) are proprietary to and the property of Epitomyze. All applicable rights in all copyrights, trademarks, trade secrets, trade names, patents and other intellectual property rights in or associated with the App, the Website and the Service are and will remain in Epitomyze and you shall have no such intellectual property rights in the App, the Website and the Service. You may not copy or reproduce any software or documentation provided by Epitomyze, without Epitomyze’s prior written consent, except as is reasonably needed to perform your obligations under this Agreement. Each copy of software or documentation made by you must contain Epitomyze’s proprietary and copyright notices in the same form as on the original. You shall not remove or deface any portion of any legend provided on any part of such material. You agree to secure and protect all such material and all copies thereof in a manner consistent with the maintenance of Epitomyze’s rights therein and to take appropriate actions by instruction or agreement with any of your employees or agents permitted access thereto to satisfy your obligations hereunder. You shall not reverse engineer, alter, modify, disassemble or decompile any such material, or any part thereof, without Epitomyze’s prior written consent. The Website contains certain copyrighted and trademarked material, including written material, software, compilations of individual data, links trademarks, and other proprietary information of Epitomyze and our licensors. Except for any information which is in the public domain, you may not copy, modify, publish, transmit, distribute, perform, display, publicly disclose, sublicense, sell, assign, lease, loan, or otherwise transfer any such proprietary materials or information without our express written consent in each case. You may not: (i) copy, adapt, change, alter or otherwise modify or create derivative works based on the Website, the Service or the App; (ii) decompile, disassemble, or otherwise reverse engineer the Website, the Service or the App; (iii) sell, rent, lease, provide, disclose, sublicense, distribute, repackage, transfer, or assign the Website, the Service or App in whole or in part; (iv) use the Service or App to provide hosting, outsourcing or subscription service; or, (v) use the Service or App to access, transmit, receive or store any information or Media for which you either do not have the right or permission to access, transmit, receive or store or which is derogatory, defamatory, obscene or offensive. You will take appropriate steps to protect Content that may be lost, harmed or destroyed when using the Website, the Service or the App, including protection of the secrecy of your login information. Epitomyze will not, under any circumstances, be responsible for any such losses or damages. Subject to these Terms, you are hereby granted a non-exclusive, non-transferable license to: (i) access and use the Website and the Service; and (ii) download, install, access and use the App on the mobile device of each Member. If you are a company or other legal entity, you may have the number of Members permitted by Epitomyze access and use the Service or download and install the App. All such Members will also be governed by these Terms. Your use of the Service may be subject to additional terms and conditions as set out on the applicable invoice or online purchasing system, including the level of Service to which you have subscribed, pricing, payment terms, and the duration of the term of the subscription. [Your use of the App is also subject to the Usage Rules set forth in the Apple Inc. (“Apple”) App Store Terms of Service.] Any feedback, ideas, modifications, suggestions, improvements, data collected or reports created by you related to the App and the Website, whether provided directly to Epitomyze or not (collectively “Supportive Information”), shall be the sole and exclusive property of Epitomyze, subject only to the foregoing license grant and as otherwise agreed by the Parties. Epitomyze may disclose or use Supportive Information for any purposes whatsoever, in its sole discretion, without any attribution or obligation to Participant or patient.
Media. With EpitomyzeTM, you will capture and store images and constituent data and metadata (“Raw Data”) using the App and the Website. Raw Data will be processed using the Epitomyze application to generate images and to compare images, in each case, derived from but not fully including the Raw Data (“Images” and, together with the Raw Data, “Media”). By agreeing to use the App and the Website, you and each Member agrees that each Member is acting as the agent of Epitomyze solely for purposes of creating Media, and assigns any and all ownership rights in the Media to Epitomyze. Epitomyze, as owner of all right, title and interest in and to the Media hereby grants to you and the patient appearing in the relevant Image(s) an irrevocable, non-exclusive, fully-paid, non-transferable, perpetual license to the Images, solely for the following purposes: medical treatment for the patient; inclusion in such patient’s medical files; educational lectures and presentations for health care professionals; scientific publications such as journals or books; patient education materials; broadcast, print or internet media for educational or public interest purposes and marketing.
Additional Information. By uploading and displaying any information, photos, text, links, content or other data or information uploaded, downloaded, used, transferred, processed or shared using the Service or the App, including, without limitation, individually identifiable personal health information (“PHI”) but excluding any Media (collectively, “Additional Information” and, together with the Media, “Content”), you hereby grant, and you represent and warrant that you have the right to grant, to Epitomyze an irrevocable, non-exclusive, fully-paid, worldwide sub- licenseable right and license to host, access and use the Additional Information in order to provide the Service and App as contemplated by these Terms and otherwise in accordance with HIPAA and applicable law. You acknowledge and agree that you are solely responsible for all Additional Information. Accordingly, you represent and warrant that: (i) you are either the sole and exclusive owner of all Additional Information or you have all rights, licenses, consents and releases that are sufficient and necessary to use the Content with the Service and the App and to grant to Epitomyze the rights as contemplated in these Terms; and (ii) neither the Additional Information nor your posting, uploading, publication, submission or transmittal of the Additional Information or Epitomyze’s use of the Additional Information with the Service and App will: (a) infringe, misappropriate or violate a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy, or (b) result in the violation of any applicable law or regulation, including, but not limited to, the Health Insurance Portability and Accountability Act (“HIPAA”) or any other applicable State, or Federal privacy laws (collectively, the “Privacy Laws”). You retain the sole responsibility for your compliance with all applicable laws, including Privacy Laws.
Location of Content. You are advised that THE CONTENT IS ACTUALLY HOSTED IN THE UNITED STATES OF AMERICA BY EPITOMYZE’S THIRD PARTY HOSTING PROVIDER, AMAZON WEB SERVICES.
Usage and Location Data. Epitomyze collects, compiles and analyzes aggregate, anonymous data from the Service and the App regarding: (i) how the Service and the App are used, the results of their use, and how they perform (“Usage Data”); and (ii) if you agree to share your GPS location with Epitomyze, your location (“Location Data”). Collectively, Usage Data and Location Data are referred to as Compiled Data. Epitomyze uses Compiled Data to build features and improve the functionality and feature set of the Service and the App. Epitomyze also uses Compiled Data to perform statistical analysis of the data gathered by users of the Service and App, such as, but not limited to, geographic and demographic data. You agree that Epitomyze: (i) may collect, compile and modify Compiled Data derived from your use of the Service and the App; and (ii) has a royalty-free worldwide, irrevocable, perpetual right and license to use Compiled Data for the purposes set out in this paragraph. You also agree that Epitomyze may reuse all general knowledge, know-how, work and technologies acquired during provision of the Service and the App. Epitomyze shall have exclusive ownership of any Compiled Data and the exclusive right to use the same for any purpose. Moreover, Epitomyze shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into the Service or the App any suggestions, enhancement requests, recommendations or other feedback provided by you relating to the Service or the App.
Prohibited Content. Below is a partial list of the kind of Content that is illegal or prohibited on the Service. Posting of any of this Content by you may, in our sole discretion, result in termination of your Account. In addition, we reserve the right to investigate and take appropriate legal action, in our sole discretion, against anyone who violates this provision, including without limitation, removing the offending Content from the Service and reporting such violators to the appropriate legal authorities. Prohibited Content includes, but is not limited to, Content which, in our sole judgment: is patently offensive to the community to which such Content is transmitted or displayed by an Account Holder or Member transmits it, such as Content that promotes racism, bigotry, hatred or physical harm of any kind against any group or individual; harasses or advocates harassment of another person; involves the transmission of “junk mail,” “chain letters,” “spam,” or any other unsolicited mass mailing, e-mailing, or other communication; includes any information that (1) you know is false or misleading, (2) promotes illegal activities or conduct that is abusive, or (3) is threatening, obscene, defamatory, or libelous; constitutes or includes any illegal or unauthorized copy of another person's copyrighted or copyrightable work, including, but not limited to Content which otherwise violates the terms hereof; displays pornographic or sexually explicit material of any kind; includes material that exploits people under the age of 18 in a sexual or violent manner; or provides instructional information about illegal activities. Even though all of the above Content is strictly prohibited, there is a small chance that you might become exposed to such items while using the Service. If so, neither we, nor any of our officers, directors, employees, shareholders, advertisers, or corporate partners will in any way be responsible for any damages (to or from any party) related to any such exposure. Please see below for further limitations on our liability.
4. Protection of Content
5. Terms of Accounts
In order to create an Account, each Account Holder must have a valid credit card. Fees for use of the Service (“Service Fees”) are billed monthly or annually in advance according to our Service Fee Schedule. The applicable Service Fee will be selected by the Account Holder at the time the Account is created, and will be based on the plan selected.
If you are an Account Holder, you understand that your Account is personal to you, and may be accessed only by you and the Members registered under your Account. You may not transfer, provide access to, or otherwise make available your Account, including your Registration Information (as defined below) to any other person or entity, including, without limitation, your co-workers or employees, unless such person or entity is a Member registered under your Account. Any distribution by you of your Registration Information may result in cancellation of your Account without refund and in additional charges based on unauthorized use. From time to time the Service may change, without prior notice.
During the Account registration process you will, as the Account Holder, define for each permitted Member, a unique Member ID, and create a password (collectively, your “Registration Information”). Because any activities that occur while logged in under your Registration Information are your responsibility, it is important for you to keep your Registration Information secure. You must notify us immediately if you believe that someone has used any of your Registration Information without your authorization. See below for more information on your responsibilities with regard to the security and privacy of your Account and/or your Registration Information.
Service Fees exclude all applicable taxes and telecommunication charges, unless expressly stated otherwise. To the extent permissible under applicable law, each Account Holder is responsible for any applicable taxes, whether or not they are listed on any receipt or statement. Each Account Holder agrees to pay, using a valid credit card (or other form of payment that we may accept from time to time), the applicable Service Fee and taxes (if any) set forth on the Service Fee Schedule. We reserve the right, upon prior notice to the applicable Account Holder, to change the amount of any Service Fees and to institute new Service Fees, effective at the end of the current month, or the applicable Account Holder's current subscription period (if any). All authorized charges will be billed to the Account Holder's designated credit card account (or other payment method) on the terms described in the Service Fee Schedule. If payment cannot be charged to an Account Holder's credit card or any payment is returned to us for any reason, we reserve the right, in our sole and absolute discretion, to either suspend or terminate access to the unpaid-for Account.
At the beginning of each subscription period, we will automatically charge each Account Holder's credit card at the then-current Service Fee rate using the credit card information we have on file for such Account. Unless an Account Holder provides us with prior notice that such Account is being cancelled, we may automatically charge each month's Service Fee in advance without further authorization from the Account Holder. Please note that even if you provide us with notice that you are terminating your Account, it will not affect charges submitted before we can reasonably act to terminate such Account and stop such automatic charges.
Fees, if any, will be set out on an invoice from Epitomyze. There will be no refunds or credits for partial periods of service or periods of inactivity. All fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and you are responsible for payment of all such taxes, levies, or duties.
7. HIPAA Compliance
In addition to the obligations in this Agreement, each of us has specific legal obligations under HIPAA. HIPAA Business Associate Addendum: If you are a Covered Entity as defined in HIPAA, then the Epitomyze Business Associate Addendum (“BAA”) will also apply to your use of the Service and the App.
PLEASE NOTE THAT THE TERMS OF THIS AGREEMENT RELATE ONLY TO THE USE OF THE SERVICE BY ACCOUNT HOLDERS AND MEMBERS IN THE TRANSMISSION, UPLOADING AND STORAGE OF ELECTRONIC PATIENT HEALTH INFORMATION OR “EPHI” (AS DEFINED IN HIPAA) TO OR ON THE SERVICE. YOU ARE RESPONSIBLE FOR ALL SUCH EPHI TO THE EXTENT THAT IT IS STORED ON OR SENT THROUGH ANY ELECTRONIC MEDIA THAT IS OUTSIDE OF OUR CONTROL (INCLUDING, BUT NOT LIMITED TO, ANY COMPUTER EQUIPMENT OR INTERNET CONNECTION USED BY AN ACCOUNT HOLDER OR MEMBER TO ACCESS THE SERVICE). SPECIFICALLY, EPITOMYZE WILL NOT BE RESPONSIBLE FOR (1) ANY ADMINISTRATIVE, TECHNICAL, OR PHYSICAL SAFEGUARDS WITH REGARD TO THE ELECTRONIC MEDIA USED TO STORE OR TRANSMIT EPHI OTHER THAN THE ELECTRONIC MEDIA THAT IS IN OUR SOLE CONTROL, OR (2) ANY UNAUTHORIZED USE OR DISCLOSURE OF ANY SUCH INFORMATION WHILE NOT IN OUR SOLE CONTROL.
We are not responsible for any incorrect or inaccurate Content Posted to or on the Service, whether caused by Account Holders, Members, our corporate partners, or by any of the equipment or programming associated with or utilized in the operation of the Service.
WE ARE NOT RESPONSIBLE FOR THE CONDUCT, WHETHER ONLINE OR OFFLINE, OF ANY ACCOUNT HOLDER OR MEMBER. UNDER NO CIRCUMSTANCES W ILL W E BE RESPONSIBLE FOR ANY LOSS OR DAMAGE, INCLUDING PERSONAL INJURY OR DEA TH, RESULTING FROM ANYONE'S USE OF THE SERVICE, ANY CONTENT POSTED ON OR TO THE SERVICE OR TRANSMITTED TO ANY ACCOUNT HOLDER, MEMBER, OR THIRD PARTY, WHETHER ONLINE OR OFFLINE.
We assume no responsibility for any error, omission, interruption, deletion, defect, delay in operation or transmission, communications line failure, theft or destruction or unauthorized access to, or alteration of, user or Member communications. We are not responsible for any problems or technical malfunction of any telephone network or lines, computer online systems, servers or providers, computer equipment, software, failure of e-mail on account of technical problems or traffic congestion on the Internet or at any website or combination thereof. We are not responsible for any injury or damage to any computer equipment belonging to any user of the Service, any Account Holder, any Member, or any other person related to or resulting from use of the Service, viewing or downloading any Content on or from the Service, or otherwise in any way in connection with the Service. THE SERVICE IS PROVIDED “AS-IS” AND, EXCEPT AS OTHERWISE PROHIBITED BY APPLICABLE LAW, WE EXPRESSLY DISCLAIM ANY WARRANTY OF ANY KIND, INCLUDING, BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. WE CANNOT GUARANTEE AND DO NOT PROMISE ANY SPECIFIC RESULTS FROM USE OF THE SERVICE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US, OR FROM OR THROUGH THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN.
YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT THE USE OF THE SERVICE AND THE APP ARE AT YOUR SOLE RISK AND THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICE AND APP ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND. EPITOMYZE HEREBY DISCLAIMS ALL REPRESENTATIONS, COVENANTS, WARRANTIES OR C O N D I T I O N S , E XP R E S S , I M P L I E D O R S T A T U T O R Y I N C L U D I N G , B U T N O T L I M I T E D T O , T H E I M P L I E D W A R R A N T I E S A N D / O R CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. EPITOMYZE DOES NOT WARRANT THAT THE USE OF THE SERVICE OR THE APP WILL BE UNINTERRUPTED OR ERROR-FREE, THAT THE SERVICE OR THE APP WILL MEET YOUR REQUIREMENTS, OR THAT REPORTED FAULTS ARE OR WILL BE CORRECTABLE.
EPITOMYZE SHALL HAVE NO LIABILITY FOR DIAGNOSTIC USE OF THE SERVICE, APP OR CONTENT. NEITHER THE SERVICE, NOR THE APP, NOR ANYTHING CONTAINED IN THESE TERMS OR EPITOMYZE’S WEBSITES, CONSTITUTE MEDICAL OR LEGAL ADVICE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.
9. Limitation of Damages
NOTWITHSTANDING ANY OTHER TERM OF THIS AGREEMENT TO THE CONTRARY, TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL EPITOMYZE (OR ITS EMPLOYEES, AGENTS, SUPPLIERS OR LICENSORS) BE LIABLE TO YOU, OR ANY THIRD P ARTY CLAIMING THROUGH YOU, FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, HOWSOEVER CAUSED (INCLUDING DAMAGES FOR LOSS OF PROFITS, LOSS OF PRODUCTION, LOSS OF INCOME, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMA TION, INCREASED COSTS OF OPERA TION, LITIGA TION COSTS, AND THE LIKE), WHETHER BASED UPON A CLAIM OR ACTION IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, IN CONNECTION WITH THE SUPPLY, USE, OR PERFORMANCE OF THE SERVICE OR THE APP, REGARDLESS OF WHETHER EPITOMYZE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR THEY ARE FORESEEABLE.
EPITOMYZE’S AGGREGATE LIABILITY TO YOU OR ANY THIRD PARTY CLAIMING THROUGH YOU, WHETHER FOR NEGLIGENCE, BREACH OF CONTRACT, MISREPRESENTATION, OR OTHERWISE WILL, IN RESPECT OF A SINGLE OCCURRENCE OR A SERIES OF OCCURRENCES, BE LIMITED TO DIRECT DAMAGES AND WILL IN NO CIRCUMSTANCES EXCEED THE FEES PAID TO EPITOMYZE BY THE YOU IN RESPECT OF THE SERVICE AND THE APP.
Government Restricted Rights Legend. Software distributed to or on behalf of the United States of America, its agencies or instrumentalities (“U.S. Government”) is provided with Restricted Rights. Use, duplication, or disclosure of Software by the U.S. Government is subject to the restrictions in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013, or subparagraphs (c) (1) and (2) of the Commercial Computer Software – Restricted Rights at 48CFR52.227-19, as amended or applicable, or such other applicable rules and regulations.
Governing Law. This Agreement will be governed by, interpreted, and construed in accordance with the laws of the State of New York, without regard to the conflicts of laws rules thereof. Each party irrevocably submits to the jurisdiction of the federal and state courts sitting in the Borough of Manhattan, the City of New York. Each of the parties hereto waives, to the extent they legally may do so, (a) their right to object to the laying of venue in the aforementioned courts and (b) to their right to trial by jury.
Relationship of Parties. The parties are not agents or legal representatives of each other. The parties to this Agreement are independent contractors. No relationship of partner, joint venturer, principal to agent, master to servant, employer to employee, or franchisor to franchisee is established hereby between the parties. Neither party has the authority to bind the other or incur any obligation on its behalf.
Survival. Although this Agreement may be terminated by you or us at any time and for any reason, the terms of the following sections of this Agreement will survive any such termination, and you and we will continue to be bound by such terms indefinitely: Sections 2, 3, 4, 5, 7, 8, 9 and 10.
No Waiver; Unenforceability. Our failure to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. The waiver by either party of any default or breach of these Terms will not constitute a waiver of any other or subsequent default or breach. Except for actions for breach of Epitomyze’s proprietary rights in the Service or the App, no action, regardless of form, arising out of these Terms may be brought by either party more than one (1) year after the cause of action has arisen. If one or more provisions of these Terms are held to be unenforceable under applicable laws, such provisions will be modified to the minimum extent necessary to comply with applicable law and the intent of the parties. The section titles in this Agreement are for convenience only and have no legal or contractual effect.
Assignment. You may not assign any of your rights or obligations hereunder, whether by operation of law or otherwise.
[Apple Terms. You acknowledge that these Terms are concluded between you and Epitomyze only and are not with Apple. Apple and any Apple subsidiaries are third party beneficiaries of these Terms. Upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third party beneficiary. Apple and Apple subsidiaries shall have no liability under these Terms.]
Notices. All legal notices to Epitomyze shall be sent to firstname.lastname@example.org. Legal notices to you will be sent via email, the Service, the App or posted on Epitomyze’s website. Questions regarding the Service or the App can be directed to email@example.com. [Apple is not responsible for addressing any questions, comments, complaints or claims regarding the Service or the App.] “ImageStore” and “ImageStore for Healthcare” are trademarks of Epitomyze, Inc.