Please read these Terms of Service (the “Agreement”) carefully. Your use of the Service (as defined below) constitutes your consent to this Agreement.
This Agreement is between you and Icahn School of Medicine at Mount Sinai (the “School” or “we” or “us”) concerning your use of (including any access to) the OCTAID app (together with any materials and services available therein, and successor app(s) thereto, the “App”); and the octaidapp.com site currently located at https://dev.octaidapp.com (together with any materials and services available therein, and successor site(s) thereto, the “Site”). The App and Site are collectively called the “Service” in this Agreement.
The Service is intended for use only by physicians and other medical professionals (including nurses and technicians), medical students, and medical industry professionals (including representatives of medical-related companies); it is not intended for patients. By using the Service, you affirm that you are a medical professional, medical student or industry professional; that you are not a patient; and that you are of legal age to enter into this Agreement.
In addition, if you are an individual accessing or using the Service on behalf of, or for the benefit of, any corporation, partnership or other entity with which you are associated, including any hospital, medical practice or medical school (an “Organization”), then you are agreeing to this Agreement on behalf of yourself and such Organization, and you represent and warrant that you have the legal authority to bind such Organization to this Agreement. References to “you” and “your” in this Agreement will refer to both the individual using the Service and to any such Organization.
This Agreement contains a mandatory arbitration provision that, as further set forth in Section 19 below, requires the use of arbitration on an individual basis to resolve disputes, rather than jury trials or any other court proceedings, or class actions of any kind.
1. Changes. We may change this Agreement from time to time by notifying you of such changes by any reasonable means, including by posting a revised Agreement through the Service. Any such changes will not apply to any dispute between you and us arising prior to the date on which we posted the revised Agreement incorporating such changes, or otherwise notified you of such changes.
Your use of the Service following any changes to this Agreement will constitute your acceptance of such changes. The “Last Updated” legend above indicates when this Agreement was last changed. We may, at any time and without liability, modify or discontinue all or part of the Service (including access to the Service via any third-party links); charge, modify or waive any fees required to use the Service; or offer opportunities to some or all Service users.
3. Jurisdictional Issues. The Service is controlled or operated (or both) from the United States, and is not intended to subject School to any non-U.S. jurisdiction or law. The Service may not be appropriate or available for use in some non-U.S. jurisdictions. Any use of the Service is at your own risk, and you must comply with all applicable laws, rules and regulations in doing so. We may limit the Service’s availability at any time, in whole or in part, to any person, geographic area or jurisdiction that we choose.
4. Service is Only for General Educational Purposes. Your use of the Service is at your own risk. The Service may make available information regarding health-related issues. Such information (a) is not, and is not intended as a substitute for, professional medical advice, diagnosis or treatment; (b) should not be construed as the provision of advice or recommendations; and (c) should not be relied upon as the basis for any decision or action, including the diagnosis or treatment of any health problem. School is not responsible for the accuracy or reliability of any such information. Such information is not exhaustive and should not be considered complete or up-to-date. It is your responsibility to evaluate the accuracy, completeness and usefulness of any information available through the Service.
5. No Patient-Physician Relationship. Health professionals should be aware that the Service, and communications that are facilitated by the Service, do not take the place of patient communications, and are not intended or designed to be part of a patient’s medical records. As described above, the Service is intended solely for physicians and other medical professionals and students; it is not intended for patients. The relationship between you and us is not a physician-patient or similar relationship. If you are a patient, you must not use the Service, and instead you should seek the advice of your physician or other qualified health providers with any questions you may have regarding any medical condition, and you should never disregard professional medical advice or delay seeking it because of any information available through the Service; call 911 or go to your nearest emergency room in the event of an emergency situation.
6. Rules of Conduct. In connection with the Service, you must not:
You are responsible for obtaining, maintaining and paying for all hardware and all telecommunications and other services needed to use the Service.
7. Registration; User Names and Passwords. You may need to register to use all or part of the Service. We may reject, or require that you change, any user name, password or other information that you provide to us in registering. Your user name and password are for your personal use only and should be kept confidential; you, and not School, are responsible for any use or misuse of your user name or password, and you must promptly notify us of any confidentiality breach or unauthorized use of your user name or password, or your Service account.
8. Submissions. The Service may enable you to communicate certain questions and provide certain other information to School, which may include text as well as images and other material (each, a “Submission”). Submissions also include responses to surveys and other ideas, proposals, suggestions, feedback and other material that you may make available in connection with the Service. You hereby acknowledge and agree that Submissions are not confidential, that your provision of any Submission is gratuitous, unsolicited and without restriction, and does not create any physician-patient relationship or otherwise place School under any fiduciary or other obligation. School is not responsible for the security of any Submission, and School is not obligated to respond to any Submission. Any response to a Submission constitutes only general educational information, and is not intended to address any specific person, case or circumstance, notwithstanding any details included in such Submission. Any such response will be deemed to be included within the Service for purposes of this Agreement.
YOU MUST ENSURE THAT YOUR SUBMISSIONS EXCLUDE ANY PERSONAL HEALTH INFORMATION. YOU MUST INCLUDE YOUR NAME AND INSTITUTIONAL E-MAIL ADDRESS WITH EACH SUBMISSION, BUT MUST ENSURE THAT YOUR SUBMISSIONS EXCLUDE ANY OTHER PERSONALLY IDENTIFIABLE INFORMATION. YOU ARE SOLELY RESPONSIBLE (AND WE ARE NOT RESPONSIBLE)
FOR COMPLYING WITH THE HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT (HIPAA) AND ANY OTHER APPLICABLE LAW, REGULATION, RULE OR POLICY IN CONNECTION WITH YOUR SUBMISSIONS AND ANY RESPONSES TO YOUR SUBMISSIONS.
9. License. For purposes of clarity, you retain ownership of your Submissions. For each Submission, you hereby grant to us a worldwide, royalty-free, fully paid-up, non-exclusive, perpetual, irrevocable, transferable and fully sublicensable (through multiple tiers) license, without additional consideration to you or any third party, to reproduce, distribute, perform and display (publicly or otherwise), create derivative works of, adapt, modify and otherwise use, analyze and exploit such Submission, in any format or media now known or hereafter developed, and for any purpose (including promotional purposes, such as testimonials).
You represent and warrant that you have all rights necessary to grant the licenses granted in this section, and that your Submissions, and your provision thereof through and in connection with the Service, are complete and accurate, and are not fraudulent, tortious or otherwise in violation of any applicable law or any right of any third party, including any privacy rights. You further irrevocably waive any “moral rights” or other rights with respect to attribution of authorship or integrity of materials regarding each Submission that you may have under any applicable law under any legal theory.
10. Monitoring. We may (but have no obligation to) monitor, evaluate, alter or delete Submissions, or analyze your access to or use of the Service. We may disclose information regarding your access to and use of the Service, and the circumstances surrounding such access and use, to anyone for any reason or purpose.
11. Your Limited Rights. Subject to your compliance with this Agreement, and solely for so long as you are permitted by School to use the Site, you may view and download a copy of any portion of the Site to which we provide you access under this Agreement, on any device that you own or control, solely for your personal, non-commercial use. The App is licensed (not sold) to end users. Subject to your compliance with this Agreement, and solely for so long as you are permitted by School to use the App, we hereby permit you, on a limited, non-exclusive, revocable, non-transferable, non-sublicensable basis, to install and use the App on a mobile device that you own or control, solely for your personal, non-commercial use. If you fail to comply with any of the terms or conditions of this Agreement, you must immediately cease using the Site and the App, and remove (that is, uninstall and delete) the App from your mobile device, and delete any copies of the Site.
12. School’s Proprietary Rights. We and our suppliers own the Service, which is protected by proprietary rights and laws. All trade names, trademarks, service marks and logos on the Service not owned by us are the property of their respective owners. You may not use our trade names, trademarks, service marks or logos in connection with any product or service that is not ours, or in any manner that is likely to cause confusion. Nothing contained on the Service should be construed as granting any right to use any trade names, trademarks, service marks or logos without the express prior written consent of the owner.
13. Third Party Materials; Links. Certain Service functionality may make available access to information, products, services and other materials made available by third parties, including Submissions (“Third Party Materials”), or allow for the routing or transmission of such Third Party Materials, including via links. By using such functionality, you are directing us to access, route and transmit to you the applicable Third Party Materials.
We neither control nor endorse, nor are we responsible for, any Third Party Materials, including the accuracy, validity, timeliness, completeness, reliability, integrity, quality, legality, usefulness or safety of Third Party Materials, or any intellectual property rights therein. Certain Third Party Materials may, among other things, be inaccurate, misleading or deceptive. Nothing in this Agreement shall be deemed to be a representation or warranty by School with respect to any Third Party Materials. We have no obligation to monitor Third Party Materials, and we may block or disable access to any Third Party Materials (in whole or part) through the Service at any time. In addition, the availability of any Third Party Materials through the Service does not imply our endorsement of, or our affiliation with, any provider of such Third Party Materials, nor does such availability create any legal relationship between you and any such provider.
YOUR USE OF THIRD PARTY MATERIALS IS AT YOUR OWN RISK AND IS SUBJECT TO ANY ADDITIONAL TERMS, CONDITIONS AND POLICIES APPLICABLE TO SUCH THIRD PARTY MATERIALS (SUCH AS TERMS OF SERVICE OR PRIVACY POLICIES OF THE PROVIDERS OF SUCH THIRD PARTY MATERIALS).
14. DISCLAIMER OF WARRANTIES.TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW: (A) THE SERVICE AND ANY THIRD PARTY MATERIALS ARE MADE AVAILABLE TO YOU ON AN “AS IS,” “WHERE IS” AND “WHERE AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY; AND (B) SCHOOL DISCLAIMS ALL WARRANTIES WITH RESPECT TO THE SERVICE AND ANY THIRD PARTY MATERIALS, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND TITLE. ALL DISCLAIMERS OF ANY KIND (INCLUDING IN THIS SECTION AND ELSEWHERE IN THIS AGREEMENT) ARE MADE FOR THE BENEFIT OF BOTH SCHOOL AND ITS AFFILIATES AND THEIR RESPECTIVE SHAREHOLDERS, TRUSTEES, DIRECTORS, OFFICERS, EMPLOYEES, FACULTY, STUDENTS, AFFILIATES, AGENTS, REPRESENTATIVES, LICENSORS, SUPPLIERS AND SERVICE PROVIDERS (COLLECTIVELY, THE “AFFILIATED ENTITIES”), AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS.
While we try to maintain the timeliness, integrity and security of the Service, we do not guarantee that the Service is or will remain updated, complete, correct or secure, or that access to the Service will be uninterrupted. The Service may include inaccuracies, errors and materials that violate or conflict with this Agreement. Additionally, third parties may make unauthorized alterations to the Service. If you become aware of any such alteration, contact us at email@example.com with a description of such alteration and its location on the Service.
15. LIMITATION OF LIABILITY. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW: (A) SCHOOL WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES OF ANY KIND, UNDER ANY CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHER THEORY, INCLUDING DAMAGES FOR LOSS OF PROFITS, USE OR DATA, LOSS OF OTHER INTANGIBLES, LOSS OF SECURITY OF SUBMISSIONS (INCLUDING UNAUTHORIZED INTERCEPTION BY THIRD PARTIES OF ANY SUBMISSIONS), EVEN IF ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES; (B) WITHOUT LIMITING THE FOREGOING, SCHOOL WILL NOT BE LIABLE FOR DAMAGES OF ANY KIND RESULTING FROM YOUR USE OF OR INABILITY TO USE THE SERVICE OR FROM ANY THIRD PARTY MATERIALS, INCLUDING (I) WITH RESPECT TO ANY DECISION OR ACTION TAKEN, OR NOT TAKEN, IN RELIANCE ON ANY INFORMATION OR OTHER MATERIAL AVAILABLE IN CONNECTION WITH THE SERVICE, (II) WITH RESPECT TO ANY PERSONAL OR HEALTH INFORMATION TRANSMITTED IN CONNECTION WITH THE SERVICE, AND (III) FROM ANY VIRUS THAT MAY BE TRANSMITTED IN CONNECTION WITH THE SERVICE; (C) YOUR SOLE AND EXCLUSIVE REMEDY FOR DISSATISFACTION WITH THE SERVICE OR ANY THIRD PARTY MATERIALS IS TO STOP USING THE SERVICE; AND (D) THE MAXIMUM AGGREGATE LIABILITY OF SCHOOL FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, SHALL BE THE GREATER OF (1) THE TOTAL AMOUNT, IF ANY, PAID BY YOU TO SCHOOL TO USE THE SERVICE, AND (2) TEN U.S. DOLLARS ($10). ALL LIMITATIONS OF LIABILITY OF ANY KIND (INCLUDING IN THIS SECTION AND ELSEWHERE IN THIS AGREEMENT) ARE MADE FOR THE BENEFIT OF BOTH SCHOOL AND THE AFFILIATED ENTITIES, AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS.
16. Indemnity. To the fullest extent permitted under applicable law, you agree to defend, indemnify and hold harmless School and the Affiliated Entities, and their respective successors and assigns, from and against all claims, liabilities, damages, judgments, awards, losses, costs, expenses and fees (including attorneys’ fees) arising out of or relating to (a) your use of, or activities in connection with, the Service, including any personal injury or death in connection with your use of any information or other material available through the Service, including any response to any Submission; and (b) any violation or alleged violation of this Agreement by you.
17. Termination. This Agreement will continue until terminated. School may terminate or suspend your use of the Service at any time and without prior notice. Immediately upon any such termination or suspension, your right to use the Service will end, and School may deactivate or delete your user name, password and account, and all associated materials, without any obligation to provide further access to those materials. Sections 2–10 and 11–23 will survive the term of this Agreement.
18. Governing Law; Arbitration. The terms of this Agreement are governed by the laws of the United States (including federal arbitration law) and the State of New York, U.S.A., without regard to its principles of conflicts of law, and regardless of your location.
EXCEPT FOR DISPUTES THAT QUALIFY FOR SMALL CLAIMS COURT, ALL DISPUTES ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY ASPECT OF THE RELATIONSHIP BETWEEN YOU AND SCHOOL, WHETHER BASED IN CONTRACT, TORT, STATUTE, FRAUD, MISREPRESENTATION OR ANY OTHER LEGAL THEORY, WILL BE RESOLVED THROUGH FINAL AND BINDING ARBITRATION BEFORE A NEUTRAL ARBITRATOR INSTEAD OF IN A COURT BY A JUDGE OR JURY AND YOU AGREE THAT SCHOOL AND YOU ARE EACH WAIVING THE RIGHT TO TRIAL BY A JURY. SUCH DISPUTES INCLUDE, WITHOUT LIMITATION, DISPUTES ARISING OUT OF OR RELATING TO INTERPRETATION OR APPLICATION OF THIS ARBITRATION PROVISION, INCLUDING THE ENFORCEABILITY, REVOCABILITY OR VALIDITY OF THE ARBITRATION PROVISION OR ANY PORTION OF THE ARBITRATION PROVISION. ALL SUCH MATTERS SHALL BE DECIDED BY AN ARBITRATOR AND NOT BY A COURT OR JUDGE.
YOU AGREE THAT ANY ARBITRATION UNDER THIS AGREEMENT WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED AND YOU ARE AGREEING TO GIVE UP THE ABILITY TO PARTICIPATE IN A CLASS ACTION.
The arbitration will be administered by the American Arbitration Association under its Consumer Arbitration Rules, as amended by this Agreement. The Consumer Arbitration Rules are available online at https://www.adr.org/aaa/ShowPropertynodeId=/UCM/ADRSTAGE2021425&revision=latestreleased. The arbitrator will conduct hearings, if any, by teleconference or videoconference, rather than by personal appearances, unless the arbitrator determines upon request by you or by us that an in-person hearing is appropriate. Any in-person appearances will be held at a location which is reasonably convenient to both parties with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, such determination should be made by the AAA or by the arbitrator.The arbitrator’s decision will follow the terms of this Agreement and will be final and binding.The arbitrator will have authority to award temporary, interim or permanent injunctive relief or relief providing for specific performance of this Agreement, but only to the extent necessary to provide relief warranted by the individual claim before the arbitrator. The award rendered by the arbitrator may be confirmed and enforced in any court having jurisdiction thereof. Notwithstanding any of the foregoing, nothing in this Agreement will preclude you from bringing issues to the attention of federal, state or local agencies and, if the law allows, they can seek relief against us for you.
20. Information or Complaints. If you have a question or complaint regarding the Service, please contact us at:
Please note that e-mails may not be secure, so you should not include personal health information or other sensitive information in any e-mail.
21. Export Controls. You are responsible for complying with U.S. export controls and for any violation of those controls, including any U.S. embargoes or other federal rules and regulations restricting exports. You represent, warrant and covenant that you are not (a) located in, or a resident or national of, any country subject to a U.S. government embargo or other restriction, or that has been designated by the U.S. government as a “terrorist supporting” country; or (b) on any U.S. government list of restricted end users.
22. Miscellaneous. This Agreement does not create any partnership, joint venture, employer-employee, agency or franchisor-franchisee relationship between you and School. If any term of this Agreement is found to be unenforceable for any reason, that term will be considered separable from this Agreement and will not affect the enforceability of any other term. You may not assign, transfer or sublicense any of your rights or obligations under this Agreement. We may assign, transfer or sublicense any or all of our rights or obligations under this Agreement without restriction. Neither party’s waiver of any breach under this Agreement will be considered a waiver of any earlier or later breach. Any headings in this Agreement are for convenience only. The term “including” and its variations will be interpreted as if followed by the phrase “without limitation.” This Agreement, including any incorporated terms, is the entire agreement between you and School relating to its subject matter, and supersedes any earlier or contemporaneous agreements or understandings between you and School relating to that subject matter. Notices to you may be made by posting to the Service or by e-mail, or by regular mail. School will not be responsible for any failure to fulfill any obligation due to any cause beyond its control.
23. Apple-Specific Terms. In addition to your agreement with the foregoing terms and conditions, and notwithstanding anything to the contrary herein, the following provisions apply with respect to your use of any version of the App compatible with the iOS operating system of Apple Inc. (“Apple”). Apple is not a party to this Agreement and does not own and is not responsible for the App. Apple is not providing any warranty for the App except, if applicable, to refund the purchase price for it. Apple is not responsible for maintenance or other support services for the App and shall not be responsible for any other claims, losses, liabilities, damages, costs or expenses with respect to the App, including any third-party product liability claims, claims that the App fails to conform to any applicable legal or regulatory requirement, claims arising under consumer protection or similar legislation, and claims with respect to intellectual property infringement. Any inquiries or complaints relating to the use of the App, including those pertaining to intellectual property rights, must be directed to School in accordance with the “Information or Complaints” section above. The license you have been granted herein is limited to a non-transferable license to use the App on an Apple-branded product that runs Apple’s iOS operating system and is owned or controlled by you, or as otherwise permitted by the Usage Rules set forth in Apple’s App Store Terms of Service, except that the App may also be accessed and used by other accounts associated with you via Apple’s Family Sharing or volume purchasing programs. In addition, you must comply with the terms of any third-party agreement applicable to you when using the App, such as your wireless data service agreement. Apple and Apple’s subsidiaries are third-party beneficiaries of this Agreement and, upon your acceptance of the terms and conditions of this Agreement, will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third-party beneficiary thereof; notwithstanding the foregoing, School’s right to enter into, rescind or terminate any variation, waiver or settlement under this Agreement is not subject to the consent of any third party.