Your acceptance of this Agreement creates a legally binding contract between you and the Company. If you do not agree with any aspect of this Agreement, then do not create a Services account or otherwise use the Services.
If you are viewing this on your mobile device, you can also view this Agreement via a web browser on your computer at https://www.asepha.ai/tos/.
Note for Children. Use of the Services by anyone under the age of 18 is prohibited. By using the Services, you represent and warrant that are you at least 18 years of age.
The Company's Privacy Policy, at https://www.asepha.ai/privacy/ (the “Privacy Policy”), describes the collection, use and disclosure of data and information by the Company in connection with the Services. The Privacy Policy, as may be updated by the Company from time to time in accordance with its terms, is hereby incorporated into this Agreement, and you hereby agree to the collection, use and disclose practices set forth therein.
You understand and agree that the Services are not intended to store personal information and/or protected health information of any patient or other third party (“Protected Information”). Protected Information is subject to the Health Insurance Portability and Accountability Act (“HIPAA”) and other laws, rules and regulations. You hereby represent, warrant and covenant to Company that you have removed and will remove any and all Protected Information from any data or information you input into or otherwise provide to the Services.
1. How the Services Work. In addition to other functionalities that we may make available over time through the Services, the Services allow users to quickly reference de-identified clinical documents such as treatment guidelines, drug monographs, insurance coverage, laws, and regulations. Functionality available through the Services may allow users to share their preferred and/or uploaded documents with other users of the Services to optimize organization
2. Representations and Warranties; User Responsibilities.
2.1. You represent, warrant and covenant that, in connection with this Agreement or the Services, you will not and will not attempt to: (i) violate any laws, third party rights or our community guidelines and other policies; (ii) re-join or attempt to use the Services if the Company has banned or suspended you; (iii) defraud the Company or another user; or (iv) use another user's account or allow another person to use your user account. Any illegal activities undertaken in connection with the Services may be referred to the authorities.
2.2. By using the Services, you hereby expressly agree that you are solely responsible for ensuring: (i) the protection and maintenance of the hardware and software on which you use the Services (“Equipment”); (ii) adequate safeguards are in place to protect the Equipment and the physical location in which the Services are used; (iii) that the Equipment is protected from theft, damage, corruption, alteration, unauthorized access, virus, malware etc.; (iv) that the Services are not accessed by any unauthorized individual; (v) compliance with applicable data privacy laws relating to your use of the Services, including Personal Information Protection and Electronic Documents Act (PIPEDA), Personal Health Information Protection Act (PHIPA), Health Insurance Portability and Accountability Act (HIPAA), the Health Information Technology for Economic and Clinical Health Act, Title XIII of the American Recovery and Reinvestment Act of 2009, and related regulations.
2.3. The Services and Company Materials (as defined in Section 4), and any information contained or entered therein, in no way replaces or substitutes your professional judgment or skill. You accept all risks arising from, and are solely responsible for, your professional, advisory, analytical and technical services including patient examination, diagnosis, prescription, treatment and personal injury or loss of life. Neither Company nor its third-party service providers assume any responsibility for your actions. Without limiting the foregoing, you acknowledge and agree that any output generated using the artificial intelligence or machine learning functionality available on the Services may be incorrect, harmful, or biased, and you will not rely on or substitute such examples or output for your own professional judgment.
2.4 The Services and any Company Materials made available through the Services are a non-device clinical decision support software application within the meaning of Section 2.2 of the Health Canada Software as a Medical Device (SaMD), and Section 520(o)(1)(E) of the Food, Drug and Cosmetic Act, 21 U.S.C. Sec. 360j(o)(1), and the regulations and guidance issued by Health Canada and the U.S. Food and Drug Administration to implement that provision. By accessing or using the Services and Company Materials, you agree to only use the Services and Company Materials in this manner and solely for this purpose. The artificial intelligence or machine learning functionality available on the Services are intended for use only by healthcare providers and are not intended for use by the general public. If you are not a healthcare provider, you are not authorized to and will not access or use Asepha’s search functionality. If you access or use Asepha, you attest that you are a healthcare provider and agree that the application is: (1) not intended to acquire, process, or analyze a medical image or a signal from an in vitro diagnostic device or a pattern or signal from a signal acquisition system; (2) intended for the purpose of displaying, analyzing, or printing medical information about a patient or other medical information; (3) intended for the purpose of supporting or providing recommendations to a health care professional about prevention, diagnosis, or treatment of a disease or condition; and (4) intended for the purpose of enabling such health care professional to independently review the basis for such recommendations that such software presents so that it is not the intent that such health care professional rely primarily on any of such recommendations to make a clinical diagnosis or treatment decision regarding an individual patient.
3. Ownership; Proprietary Rights. As between you and the Company, the Company owns all worldwide right, title and interest, including all intellectual property and other proprietary rights, in and to the Services, all content, text, information, data and other content displayed or made available through the Services, and all usage and other data generated or collected in connection with the use thereof (the “Company Materials”). Except for as expressly set forth herein, you agree not to license, distribute, copy, modify, publicly perform or display, transmit, publish, edit, adapt, create derivative works from, or otherwise make any unauthorized use of the Company Materials. You agree not to reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, algorithm or programs underlying the Company Materials. The Company reserves the right to modify or discontinue the Services or any version(s) thereof at any time in its sole discretion, with or without notice.
4. Third Party Sites. The Services may include advertisements or other links that allow you to access web sites or other online services that are owned and operated by third parties. You acknowledge and agree that the Company is not responsible and shall have no liability for the content of such third-party sites and services, products or services made available through them, or your use of or interaction with them.
5. Prohibited Uses. As a condition of your use of the Services, you will not use the Services for any purpose that is unlawful or prohibited by this Agreement. You may not use the Services in any manner that in our sole discretion could damage, disable, overburden, impair or interfere with any other party's use of it. You may not obtain or attempt to obtain any materials or information through any means not intentionally made available through the Services. You agree not to scrape or otherwise use automated means to access or gather information from the Services and agree not to bypass any robot exclusion measures we may put into place. In addition, you agree not to use false or misleading information in connection with your user account and acknowledge that we reserve the right to disable any user account with a profile which we believe (in our sole discretion) is false or misleading (including a profile that impersonates a third party).
6. Additional Terms. When you use certain features or materials on the Services, or participate in a particular promotion, event or contest through the Services, such use or participation may be subject to additional terms and conditions posted on the Services. Such additional terms and conditions are hereby incorporated within this Agreement, and you agree to comply with such additional terms and conditions with respect to such use or participation.
7. Termination. You may terminate this Agreement at any time, for any reason or for no reason, by deleting your Services account by contacting us at support@asepha.ai. You agree that the Company, in its sole discretion and for any or no reason, may terminate this Agreement, your account or your use of the Services, at any time and without notice. The Company may also in its sole discretion and at any time discontinue providing the Services, or any part thereof, with or without notice. You agree that the Company shall not be liable to you or any third-party for any such termination. Sections 2, 4, 5, and 9 through 18 will survive any termination of this Agreement.
8. Disclaimers; No Warranties. THE SERVICES AND ANY CONTENT, INFORMATION OR OTHER MATERIALS MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE SERVICES ARE PROVIDED “AS IS” AND WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, THE COMPANY AND ITS LICENSORS, SERVICE PROVIDERS AND PARTNERS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS. THE COMPANY AND ITS LICENSORS, SERVICE PROVIDERS AND PARTNERS DO NOT WARRANT THAT THE FEATURES AND FUNCTIONALITY OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SERVICES OR THE SERVERS THAT MAKE AVAILABLE THE FEATURES AND FUNCTIONALITY THEREOF ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. CERTAIN PROVINCIAL LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE FOREGOING DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
9. Indemnification. You agree to indemnify and hold the Company and its affiliated companies, and each of their officers, directors and employees, harmless from any claims, losses, damages, liabilities, costs and expenses, including reasonable attorney's fees, (any of the foregoing, a “Claim”) arising out of or relating to your use or misuse of the Services, including without limitation any use of answers generated using the artificial intelligence or machine learning functionality available on the Services, your provision of professional, advisory, analytical and technical services including patient examination, diagnosis, prescription, treatment and personal injury or loss of life, breach of this Agreement, or infringement, misappropriation or violation of the intellectual property or other rights of any other person or entity, provided that the foregoing does not obligate you to the extent the Claim arises out of the Company's willful misconduct or gross negligence. The Company reserves the right, at our own expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us, and you agree to cooperate with our defense of these claims.
10. Limitation of Liability and Damages. UNDER NO CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, SHALL THE COMPANY OR ITS AFFILIATES, CONTRACTORS, EMPLOYEES, OFFICERS, DIRECTORS, AGENTS, OR THIRD PARTY PARTNERS, LICENSORS OR SERVICE PROVIDERS, BE LIABLE TO YOU FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES THAT ARISE OUT OF OR RELATE TO THE SERVICES, INCLUDING YOUR USE THEREOF, OR ANY OTHER INTERACTIONS WITH THE COMPANY, EVEN IF THE COMPANY OR A COMPANY AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU, IN WHICH CASE THE COMPANY'S LIABILITY WILL BE LIMITED TO THE EXTENT PERMITTED BY LAW. IN NO EVENT SHALL THE TOTAL LIABILITY OF COMPANY OR ITS AFFILIATES, CONTRACTORS, EMPLOYEES, OFFICERS, DIRECTORS, AGENTS, OR THIRD-PARTY PARTNERS, LICENSORS OR SERVICE PROVIDERS TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT OR YOUR USE OF THE SERVICES EXCEED ONE HUNDRED U.S. DOLLARS.
11. Arbitration
11.1. Agreement to Arbitrate. This Section 11 is referred to herein as the “Arbitration Agreement.” The parties agree that any and all controversies, claims, or disputes between you and Company arising out of, relating to, or resulting from this Agreement, shall be subject to binding arbitration pursuant to the terms and conditions of this Arbitration Agreement, and not any court action (other than a small claims court action to the extent the claim qualifies). The Commercial Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement.
11.2. Class Action Waiver. THE PARTIES AGREE THAT EACH PARTY MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH PARTIES AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON'S OR PARTY'S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY'S INDIVIDUAL CLAIM(S).
11.3. Procedures. Arbitration will be conducted by a neutral arbitrator in accordance with the Canadian Arbitration and Mediation Rules of the International Centre for Dispute Resolution Canada (ICDR Canada), as modified by this Arbitration Agreement. If there is any inconsistency between the Canadian Arbitration and Mediation Rules and this Arbitration Agreement, the terms of this Arbitration Agreement will control unless the arbitrator determines that the application of the inconsistent Arbitration Agreement terms would not result in a fundamentally fair arbitration. The arbitrator must also follow the provisions of this Agreement as a court would, including without limitation, the limitation of liability provisions in Section 15. You may visit https://www.icdr.org/icdrcanada for information on the Canadian Arbitration and Mediation Rules and
www.adr.org/onlinefiling for information on how to file a claim against the Company.
11.4. Venue. The arbitration shall be held in the county in which you reside or at another mutually agreed location. If the value of the relief sought is $10,000 or less, you or Company may elect to have the arbitration conducted by telephone or based solely on written submissions, which election shall be binding on each party, but subject to the arbitrator's discretion to require an in-person hearing if the circumstances warrant. Attendance at any in-person hearing may be made by telephone by either or both parties unless the arbitrator requires otherwise.
11.5. Governing Law. The arbitrator will decide the substance of all claims in accordance with the laws of the Province of Ontario, without regard to its conflicts of laws rules, and will honor all claims of privilege recognized by law. The arbitrator shall not be bound by rulings in prior arbitrations involving different users of the Services but is bound by rulings in prior arbitrations involving you to the extent required by applicable law.
11.6. Costs of Arbitration. Payment of all filing, administration, and arbitrator fees (collectively, the “Arbitration Fees“) will be governed by the Canadian Arbitration and Mediation Rules. Each party will be responsible for all other fees it incurs in connection with the arbitration, including without limitation, all attorney fees.
11.7. Confidentiality. All aspects of the arbitration proceeding, and any ruling, decision or award by the arbitrator, will be strictly confidential for the benefit of all parties.
11.8. Severability. If a court decides that any term or provision of this Arbitration Agreement other than Section 11.2 is invalid or unenforceable, the parties agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Arbitration Agreement shall be enforceable as so modified. If a court decides that any of the provisions of Section 11.2 is invalid or unenforceable, then the entirety of this Arbitration Agreement shall be null and void. The remainder of this Agreement will continue to apply.
12. Miscellaneous. The Company may make modifications, deletions and/or additions to this Agreement (“Changes”) at any time. Changes will be effective: (i) thirty (30) days after the Company provides notice of the Changes, whether such notice is provided through the Services user interface, is sent to the e-mail address associated with your account or otherwise; or (ii) when you opt-in or otherwise expressly agree to the Changes or a version of this Agreement incorporating the Changes, whichever comes first. Under this Agreement, you consent to receive communications from the Company electronically. This Agreement shall be governed by and construed in accordance with the laws of the Province of Ontario, without giving effect to any principles of conflicts of law. You agree that any action at law or in equity arising out of or relating to this Agreement or the Services that is not subject to arbitration under Section 11 shall be filed only in the provincial or federal courts in Ontario (or a small claims court of competent jurisdiction) and you hereby consent and submit to the personal jurisdiction of such courts for the purposes of litigating any such action. The failure of any party at any time to require performance of any provision of this Agreement shall in no manner affect such party's right at a later time to enforce the same. A waiver of any breach of any provision of this Agreement shall not be construed as a continuing waiver of other breaches of the same or other provisions of this Agreement. If any provision of this Agreement shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from this Agreement and shall not affect the validity and enforceability of any remaining provisions. This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by the Company without restriction. This is the entire agreement between us relating to the subject matter herein and shall not be modified except in a writing, signed by both parties, or by a change to this Agreement made by the Company as set forth herein.
13. More Information; Complaints. The services hereunder are offered by Asepha Inc., which can be contacted via info@asepha.ai. If you are an Ontario resident, you may reach the Ministry of Public and Business Service Delivery from Consumer Protection Ontario via mail at PO Box 450, Toronto, ON M7A2J6 or telephone at (416) 326-6203 or (800) 889-9768. Hearing impaired users can reach the Ministry of Public and Business Service Delivery at TTY (416) 229-6086 or TTY (877) 666-6545.
