ANATOMAGE TERMS OF USE
Last Updated Date: June 1, 2019
THIS TERMS OF USE AGREEMENT APPLIES TO HEALTHCARE PROVIDERS. THIS AGREEMENT DOES NOT APPLY TO PATIENTS.
Welcome to Anatomage! Our website and mobile application (collectively, the "
Platform") is designed to enable doctors,
physicians, and other healthcare providers (each, a "
Provider") to upload and share Medical Images, images and photos of patients
("
Medical Images") with other Providers who are colleagues, in order to exchange feedback, interpretations,
and notes related to the substance of the Medical Images. Depending on the type of Account, the Platform may
also allow for Providers to share Medical Images with their patients who are the subject of the Medical Images.
This Terms of Use Agreement ("
Terms of Use") forms a binding agreement between you and Anatomage, Inc.,
and governs your use of the Platform as a Provider and the online services enabled via our Platform as well as
the services we provide via the Platform (collectively, the "
Services"). Please read these Terms of Use carefully.
THIS PLATFORM OF ANATOMAGE, INC. ("
ANATOMAGE", "
WE" OR "
US") AND THE INFORMATION ON IT
(OTHER THAN MEDICAL IMAGES AND THE INFORMATION PROVIDED BY PHYSICIANS) ARE CONTROLLED BY ANATOMAGE.
THESE TERMS OF USE APPLY TO ALL INTERNET USERS VISITING THE PLATFORM BY ACCESS OR USING THE WEBSITE IN ANY WAY,
INCLUDING USING THE SERVICES AND RESOURCES AVAILABLE OR ENABLED VIA THE PLATFORM. BY CLICKING ON THE
"I ACCEPT" BUTTON, COMPLETING THE REGISTRATION PROCESS, AND/OR BROWSING THE WEBSITE OR DOWNLOADING
ANATOMAGE’S MOBILE APPLICATION (THE "
APPLICATION"), YOU REPRESENT THAT (1) YOU HAVE READ, UNDERSTAND,
AND AGREE TO BE BOUND BY THE TERMS OF USE, (2) YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT
WITH ANATOMAGE, AND (3) YOU HAVE THE AUTHORITY TO ENTER INTO THE TERMS OF USE.
IF YOU DO NOT
AGREE TO BE BOUND BY THE TERMS OF USE, YOU MAY NOT ACCESS OR USE THIS PLATFORM OR THE SERVICES.
PLEASE BE AWARE THAT SECTION 12 OF THESE TERMS, BELOW, CONTAINS PROVISIONS GOVERNING
HOW CLAIMS THAT YOU AND WE HAVE AGAINST EACH OTHER ARE RESOLVED, INCLUDING, WITHOUT
LIMITATION, ANY CLAIMS THAT AROSE OR WERE ASSERTED PRIOR TO THE EFFECTIVE DATE OF THIS AGREEMENT.
IN PARTICULAR, IT CONTAINS AN ARBITRATION AGREEMENT WHICH WILL, WITH LIMITED EXCEPTIONS,
REQUIRE DISPUTES BETWEEN US TO BE SUBMITTED TO BINDING AND FINAL ARBITRATION.
(1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS,
NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING; AND
(2) YOU ARE WAIVING YOUR RIGHT TO SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL ON YOUR CLAIMS.
ANY DISPUTE OR CLAIM RELATING IN ANY WAY TO YOUR USE OF THE SITE WILL BE GOVERNED AND INTERPRETED BY AND
UNDER THE LAWS OF THE STATE OF CALIFORNIA, CONSISTENT WITH THE FEDERAL ARBITRATION ACT,
WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANY
OTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE
OF GOODS IS EXPRESSLY EXCLUDED FROM THIS AGREEMENT.
Your use of, and participation in,
certain Services may be subject to additional terms ("
Supplemental Terms") and such Supplemental
Terms will either be listed in the Terms of Use or will be presented to you for your acceptance
when you sign up to use the supplemental Service. If the Terms of Use are inconsistent with
the Supplemental Terms, the Supplemental Terms shall control with respect to such Service.
The Terms of Use and any applicable Supplemental Terms are referred to herein as the "
Terms."
PLEASE NOTE THAT THE TERMS ARE SUBJECT TO CHANGE BY ANATOMAGE IN ITS SOLE DISCRETION AT ANY TIME.
When changes are made, Anatomage will make a new copy of the Terms of Use available on the Platform
and any new Supplemental Terms will be made available from within, or through, the affected Service
on the Platform. We will also update the "Last Updated" date at the top of the Terms of Use.
Anatomage may require you to provide consent to the updated Terms in a specified manner before
further use of the Platform, the Application and/or the Services is permitted.
If you do not agree to any change(s) after receiving a notice of such change(s),
you shall stop using the Platform and/ or the Services. Otherwise, your continued use of the
Platform and/or Services constitutes your
acceptance of such change(s). PLEASE REGULARLY CHECK THE PLATFORM TO VIEW THE THENCURRENT TERMS.
YOU UNDERSTAND THAT THE SERVICES ARE NOT – AND ARE NOT INTENDED TO BE USED AS –
A MEDICAL RECORDS REPOSITORY. PROVIDERS ARE SOLELY RESPONSIBLE FOR MEETING
THE MEDICAL RECORDS RETENTION REQUIREMENTS APPLICABLE TO YOU.
1.
Services
1.1
Use of Services. Providers can use the Platform to share
Medical Images and to facilitate online communications to consult with other Providers
in order to assist in the treatment of their patients. Further, for Providers who have
Prime Accounts, Providers may share Medical Images with their patients.
1.2
Consents. You shall obtain all consents
and permissions necessary for the collection, use and disclosure of your patients’ or other
third parties’ personal data uploaded to the Platform and/or Services.
1.3
Not Intended as Medical Advice.
ANATOMAGE MERELY ACTS AS A VENUE TO CONNECT PROVIDERS WITH EACH OTHER AND WITH THEIR PATIENTS, AND TO SHARE MEDICAL
IMAGES WITH SUCH PROVIDERS AND PATIENTS. ANATOMAGE DOES NOT PROVIDE MEDICAL ADVICE OF ANY KIND OR MAKE CLINICAL,
MEDICAL, OR OTHER PROFESSIONAL DECISIONS, NOR IS THE SERVICE INTENDED AS A SUBSTITUTE FOR ACTUAL MEDICAL CARE.
YOU ARE SOLELY RESPONSIBLE FOR THE CONDUCT AND CONTENT OF YOUR CONSULTATIONS WITH OTHER PROVIDERS,
AND YOUR TREATMENT DECISIONS RELATING TO YOUR PATIENTS, AND ANATOMAGE SHALL NOT CONTROL, DIRECT, INFLUENCE,
OR OTHERWISE INTERFERE WITH YOUR PROFESSIONAL JUDGMENT.
1.4
Intended Use of Anatomage Cloud 3D.
Anatomage Cloud 3D is a software application used for the display and 3D visualization of medical image files
from scanning devices, such as CT and MRI. It is intended for use by radiologists, clinicians,
referring physicians and other qualified individuals to retrieve, process, render, review, assist in diagnosis,
utilizing web user interface. Additionally, Anatomage Cloud 3D is a preoperative software application used
for the planning and evaluation of dental implants and surgical treatments. This device is not indicated
for mammography use. You agree that you will NOT use Anatomage Cloud 3D beyond the intended use.
2.
Use of the Services and Anatomage Properties. The Platform, the Services,
and the information and content available on the Platform and the Services (as these terms are defined herein
(collectively, the "
Anatomage Properties") are protected by copyright laws throughout the world.
Subject to the Agreement, Anatomage grants you a limited license to reproduce portions of Anatomage Properties
for the sole purpose of using the Services for your personal or internal business purposes.
Unless otherwise specified by Anatomage in a separate license, your right to use any and all Anatomage Properties
is subject to the Agreement.
2.1.
Application License.
Subject to your compliance with the Terms, Anatomage grants you a limited non-exclusive, non-transferable,
non-sublicensable, revocable license to download, install and use a copy of the Application on a
single mobile device or computer that you own or control and to run such copy of the Application solely
for your own personal or internal business purposes. Furthermore, with respect to any Application accessed
through or downloaded from the Apple App Store (an "
App Store Sourced Application"), you will only use the
App Store Sourced Application (a) on an Apple-branded product that runs the iOS
(Apple’s proprietary operating system) and (b) as permitted by the "
Usage Rules"
set forth in the Apple App Store Terms of Service. Notwithstanding the first sentence in this section,
with respect to any Application access through or downloaded from the Google Play store
(a "
Google Play Sourced Application"), you may have additional license rights with respect to use
of the Application on a shared basis within your designated family group.
2.2.
Updates.
You understand that Anatomage Properties are evolving. As a result,
Anatomage may require you to accept updates to Anatomage Properties that you have installed
on your computer or mobile device. You acknowledge and agree that Anatomage may update Anatomage
Properties with or without notifying you. You may need to update third-party software from time
to time in order to use Anatomage Properties.
2.3.
Certain Restrictions.
The rights granted to you in the Terms are subject to the following restrictions:
(a) you shall not frame or utilize framing techniques to enclose any trademark, logo,
or other Anatomage Properties (including images, text, page layout or form) of Anatomage;
(b) you shall not use any metatags or other "hidden text" using Anatomage’s name or trademarks;
(c) you shall not use any manual or automated software, devices or other processes
(including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like)
to "scrape" or download data from any web pages contained in the Platform
(except that we grant the operators of public search engines revocable permission to use spiders
to copy materials from the Platform for the sole purpose of and solely to the extent necessary
for creating publicly available searchable indices of the materials, but not caches or archives of such materials);
(d) you shall not access Anatomage Properties in order to build a similar or competitive website,
application or service. Anatomage maintains the right to terminate account and will not return any payment
if you take any harmful action against Anatomage including but not limited to attempting to reverse engineer
Anatomage intellectual property or build a competitive product.; and (e) except as expressly stated herein,
no part of Anatomage Properties may be copied, reproduced, distributed, republished, downloaded, displayed,
posted or transmitted in any form or by any means. Any future release, update or other addition to Anatomage
Properties shall be subject to the Terms. Anatomage, its suppliers and service providers reserve
all rights not granted in the Terms.
3.
Registration.
3.1.
Registering Your Account.
In order to access certain features of Anatomage Properties you may be required to become a Registered User.
For purposes of the Terms, a "
Registered User" is a User who has registered an account on the Platform ("
Account").
There are two types of Accounts: (1) accounts that are made available to Providers at no charge ("
Free Accounts"),
and (2) accounts that are made available to Providers or their employers on a subscription basis ("
Prime Account").
3.1.a)
Free Accounts.
Providers who register for a Free Account may send Medical Images to other Providers who are Registered Users and colleagues,
but may not send such Medical Images to patients. Providers who have access to the same Medical Images may consult
with other Providers in order to assist in the treatment of their patients. Further, for Providers who have
Prime Accounts, Providers may share Medical Images with their patients. However, unlike Prime Accounts,
access to the Medical Images uploaded by Providers under Free Accounts expire sixty (60) days following
the last Action taken with respect to the applicable Medical Images ("
Access Period"). An "
Action" means:
(1) the upload of a Medical Image to the Platform by a Provider; (2) the sharing of a Medical Image with another Provider;
(3) the viewing of a Medical Image by any Provider who has access to such Medical Image; and
(4) the transmission of a discussion message through the Platform by a Provider regarding a Medical Image.
Following the Access Period, the expired Medical Image is automatically sent to a "Trash"
folder within the Account of the Provider who uploaded the Medical Image. Such Medical Image
will exist in the "Trash" folder for a period of ten (10) days ("
Temporary Deletion Period").
During the Temporary Deletion Period, the Provider who initially uploaded the Medical Image
may not access the Medical Image, unless the Provider upgrades to a Prime Account during the
Temporary Deletion Period, at which point Provider’s access to such Medical Image will be restored.
If, following the Temporary Deletion Period, the Provider has not upgraded to a Prime Account,
then the Medical Image will be deleted permanently from the Platform and Services.
3.1.b)
Prime Accounts.
3.1.b)i)Providers who register for a Prime Account may
(a) take all Actions with respect to Medical Images, (b) send Medical Images to other Providers
who are Registered Users and colleagues, and (c) send such Medical Images to Provider’s patients.
Providers who have access to the same Medical Images may consult with other Providers in order to
assist in the treatment of their patients. Patients who have access to their Medical Images may
view such Medical Images shared by their Provider and share such Medical Images with another Provider,
but may not upload, download, or discuss any Medical Images with a Provider through the Platform.
Access to the Medical Images under Prime Accounts do not expire during the term of these Terms;
however, Anatomage reserves the right to move Medical Images to the "Trash" and permanently
delete such Medical Images if (1) the Registered User exceeds his or her Account size; or
(2) the Registered User cancels his or her Prime Account or downgrades to a Free Account.
Where a Registered User begins to exceed his or her Account size, the oldest Medical
Images will be automatically moved to the "Trash" folder so that new Medical Images may be
added to the Registered User’s Account. Registered Users will have the right to purchase additional
storage capacity for such Registered User’s Account at any time upon making the applicable payments.
3.1.b)ii)The account holder shall pay Anatomage directly for use of the Platform.
When a Prime subscription purchase is made on Anatomage Cloud, the user agrees to a
continuous subscription with automatic recurring payments and that cancelling takes effect
on the next subscription period without proration or any refund.
It is the users responsibility
to manage their account if they chose to cancel the subscription.
Cancelling a Prime subscription means that the account will be automatically downgraded to the
free Basic level after the end of the current Prime subscription period. Your subscription will
remain active at the Prime level through the end of the subscription period you’ve already paid for.
A user cancels their Prime subscription via their Anatomage Cloud account settings.
An email or phone request to cancel your Prime subscription is not valid cancellation.
Please follow these steps to cancel your Prime subscription:
1. Login at
https://anatomagecloud.com/Login
2. Click your name in the top right corner of the Library page to access Account Settings
3. Click Manage Subscription
4. Click Cancel Subscription
Cancelling a Prime subscription does not entitle the user to a refund on any payments
that have already occurred.
For monthly Prime subscriptions, we do not offer refunds whether on the first purchase
or on any automatically recurring payments that the user has agreed to.
For annual Prime subscriptions, refund requests will be evaluated (but not guaranteed)
only if the user completes both (1) and (2) below:
(1) the user cancels the annual Prime subscription within 14 days from the start of
a subscription period through their Anatomage Cloud account settings
(2) the user sends an email with the reason for refund request to
cloudadmin@anatomage.com
within 14 days from the start of a subscription period
At most a partial refund may be issued,
where the user will still pay for at least one month of Prime service at the monthly Prime subscription rate.
Should you cancel or send your request for refund after 14 days from the start of a subscription period,
your payment is non-refundable and your Prime service will continue until the end of the annual subscription period.
3.2.
Registration Data.
In registering an Account on the Platform, regardless of the type of Account, you agree to (1) provide true, accurate,
current and complete information about yourself as prompted by the registration form (the "
Registration Data"); and
(2) maintain and promptly update the Registration Data to keep it true, accurate, current and complete.
You represent that you are (1) of legal age to form a binding contract; and (2) not a person barred from
using Anatomage Properties under the laws of the United States, your place of residence or any other applicable jurisdiction.
You are responsible for all activities that occur under your Account. You may not share your Account or
password with anyone, and you agree to notify Anatomage immediately of any unauthorized use of your
password or any other breach of security. If you provide any information that is untrue, inaccurate,
not current or incomplete, or Anatomage has reasonable grounds to suspect that such information is untrue,
inaccurate, not current or incomplete, Anatomage has the right to suspend or terminate your Account
and refuse any and all current or future use of Anatomage Properties (or any portion thereof).
You agree not to create an Account or use Anatomage Properties if you have been previously removed by Anatomage,
or if you have been previously banned from any of Anatomage Properties.
4. Responsibility for Content.
4.1. Types of Content.
You acknowledge that all information, data, materials, photos, videos and other content,
including Medical Images ("
Content"), and Anatomage Properties, is the sole responsibility
of the party from whom such Content originated. This means that you, and not Anatomage,
are entirely responsible for all Content, including the Medical Images, that you upload,
post, e-mail, transmit or otherwise make available ("
Make Available") through Anatomage Properties ("
Your Content").
4.2. No Obligation to Pre-Screen Content.
You acknowledge that Anatomage has no obligation to pre-screen Content although Anatomage reserves
the right in its sole discretion to pre-screen, refuse or remove any Content.
By entering into the Terms, you hereby provide your irrevocable consent to such monitoring.
In the event that Anatomage pre-screens, refuses or removes any Content, you acknowledge that
Anatomage will do so for Anatomage’s benefit, not yours. Without limiting the foregoing,
Anatomage shall have the right to remove any Content that violates the Terms or is otherwise objectionable.
4.3 Storage.
Unless expressly agreed to by Anatomage in writing elsewhere or as required
by applicable law, Anatomage has no obligation to store any of Your Content.
5. Ownership.
5.1. Anatomage Properties.
Except with respect to Your Content, you agree that
Anatomage and its suppliers own all rights, title and interest in Anatomage Properties.
5.2. License to Your Content.
Subject to any applicable account settings that you select, you grant Anatomage a fully paid,
royalty-free, worldwide, royalty-free, non-exclusive and sublicensable right and license
to use, reproduce, publicly perform, and publicly display, Your Content (in whole or in part)
for the purposes of operating and providing our Services to you. You warrant that the holder
of any worldwide intellectual property right, in Your Content. You agree that you, not Anatomage,
are responsible for all of Your Content that you Make Available on or in Anatomage Properties.
5.3. Feedback.
You agree that submission of any ideas, suggestions, documents, and/or proposals to Anatomage through
its suggestion, feedback, wiki, forum or similar pages ("
Feedback") is at your own risk and that Anatomage
has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback.
You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant
to Anatomage a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully
sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format,
create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any
and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance
of Anatomage Properties.
6. User Conduct.
6.1.
You are responsible for your use of the Services, and for any use of the Services made using your Account.
You hereby represent and warrant that Your Content does not violate our Acceptable Use Policy
(defined in Section 6.2). Because you alone are responsible for Your Content, you may
expose yourself to liability if, for example, Your Content violates the Acceptable Use Policy.
6.2.
Acceptable Use Policy.
This Section 6.2 constitutes our Acceptable Use Policy. You agree that you will only Make Available Medical
Images that are professional and created and used in the ordinary course of practicing medicine,
and not for any other purpose. You further agree that Your Content that you Make Available,
including comments related to Medical Images, will be professional, and made only in the ordinary
course of practicing medicine. You further agree that When you use the Services, you agree that
you will not, under any circumstances:
6.2.a)
Make Available any Content that, in Anatomage’s sole discretion, (i) is unlawful, tortious,
defamatory, vulgar, obscene, libelous, or racially, ethnically or otherwise objectionable;
(ii) violates, or encourages any conduct that would violate, any applicable law or regulation
or would give rise to civil liability; (iii) promotes discrimination, bigotry, racism, hatred,
harassment or harm against any individual or group; (iv) is violent or threatening, or promotes
violence or actions that are threatening to any other person; or (v) promotes illegal or harmful
activities; Harm minors in any way;
6.2.b)
Impersonate any person or entity, including, but not limited to, Anatomage personnel, or
falsely state or otherwise misrepresent your affiliation with a person or entity;
6.2.c)
Make Available any Content that you do not have a right to Make Available under any law
or under contractual or fiduciary relationships (such as inside information, proprietary and
confidential information learned or disclosed as part of employment relationships or under nondisclosure
agreements);
6.2.d)
Make Available any Content that infringes the rights of any person or entity, including
without limitation, any patent, trademark, trade secret, copyright, privacy, publicity or other
proprietary or contractual rights;
6.2.e)
Intentionally or unintentionally violate any applicable local, state, national or international
law or regulation, or any order of a court;
6.2.f)
Register for more than one Account or register for an Account on behalf of an individual
other than yourself;
6.2.g)
Stalk or otherwise harass any other user of the Anatomage Properties; or
6.2.h)
Advocate, encourage or assist any third party in doing any of the foregoing activities in
this section.
7. Interactions with Other Users.
7.1. User Responsibility.
You are solely responsible for your interactions with other Providers and/or your patients; provided,
however, that Anatomage reserves the right, but has no obligation, to intercede in such disputes.
You agree that Anatomage will not be responsible for any liability incurred as the result of such interactions.
7.2. Release.
You acknowledge that Anatomage merely provides a means for Providers to share Medical Images with other Providers
who are colleagues, and in the case of Prime Accounts, with patients, in order to exchange feedback,
thoughts and interpretations related to those Medical Images. Anatomage does not have any control or
authority over any Providers or patients, and is not responsible for any of their actions and inactions.
You hereby release Anatomage and its successors from claims, demands, any and all losses, damages, rights,
and actions of any kind, including personal injuries, death, and property damage, that is either directly or
indirectly related to or arises from your use of Anatomage Properties. If you are a California resident,
you hereby waive California Civil Code Section 1542, which states, "A general release does not extend to
claims which the creditor or releasing party does not know or suspect to exist in his favor at the time
of executing the release, which, if known by him must have materially affected his settlement with the
debtor or the released party." The foregoing release does not apply to any claims, demands, or any losses,
damages, rights and actions of any kind, including personal injuries, death or property damage for any
unconscionable commercial practice by a Anatomage or for such party’s fraud, deception, false, promise,
misrepresentation or concealment, suppression or omission of any material fact in connection with the
Platform or any Services provided hereunder.
8. Indemnification.
You agree to indemnify and hold Anatomage and its respective parents, subsidiaries, affiliates, officers,
employees, agents, partners and licensors (collectively, the "
Anatomage Parties") harmless
from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees)
relating to or arising out of your Medical Images, including your failure to obtain any necessary
consents or rights in order to grant Anatomage the rights purportedly granted by you herein.
Anatomage reserves the right, at its own cost, to assume the exclusive defense and control of any
matter otherwise subject to indemnification by you, in which event you will fully cooperate with
Anatomage in asserting any available defenses. This provision does not require you to indemnify
any of the Anatomage Parties for such party’s fraud, deception, false promise, misrepresentation or concealment,
suppression or omission of any material fact in connection with the Platform or any Services provided hereunder.
You agree that the provisions in this section will survive any termination of your Account, the Terms or your
access to Anatomage Properties.
9. Disclaimer of Warranties and Conditions.
9.1.
As Is.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF
ANATOMAGE PROPERTIES IS AT YOUR SOLE RISK, AND ANATOMAGE PROPERTIES ARE PROVIDED ON AN "AS IS"
AND "AS AVAILABLE" BASIS, WITH ALL FAULTS. ANATOMAGE PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES,
REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO,
THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND
NONINFRINGEMENT ARISING FROM USE OF THE PLATFORM.
9.1.a)
ANATOMAGE PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION
THAT: (1) ANATOMAGE PROPERTIES WILL MEET YOUR REQUIREMENTS; (2) YOUR USE
OF ANATOMAGE PROPERTIES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERRORFREE;
OR (3) THE RESULTS THAT MAY BE OBTAINED FROM USE OF COMPANY
PROPERTIES WILL BE ACCURATE OR RELIABLE.
9.1.b)
ANY CONTENT DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH
ANATOMAGE PROPERTIES IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE
SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY, INCLUDING, BUT NOT
LIMITED TO, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS
ANATOMAGE PROPERTIES, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING
SUCH CONTENT.
9.1.c)
THE SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER
DISRUPTIONS. ANATOMAGE MAKES NO WARRANTY, REPRESENTATION OR CONDITION
WITH RESPECT TO SERVICES, INCLUDING BUT NOT LIMITED TO, THE QUALITY,
EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF SERVICES.
9.1.d)
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM
COMPANY OR THROUGH ANATOMAGE PROPERTIES WILL CREATE ANY WARRANTY NOT
EXPRESSLY MADE HEREIN.
9.1.e)
FROM TIME TO TIME, ANATOMAGE MAY OFFER NEW "BETA" FEATURES OR
TOOLS WITH WHICH ITS USERS MAY EXPERIMENT. SUCH FEATURES OR TOOLS ARE
OFFERED SOLELY FOR EXPERIMENTAL PURPOSES AND WITHOUT ANY WARRANTY OF
ANY KIND, AND MAY BE MODIFIED OR DISCONTINUED AT COMPANY’S SOLE
DISCRETION. THE PROVISIONS OF THIS SECTION APPLY WITH FULL FORCE TO SUCH
FEATURES OR TOOLS.
9.2.
No Liability for Conduct of Providers.
YOU ACKNOWLEDGE AND AGREE THAT
ANATOMAGE PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD
ANATOMAGE PARTIES LIABLE, FOR THE CONDUCT OF PROVIDERS, AND THAT THE RISK
OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU.
10. Limitation of Liability.
10.1.
Disclaimer of Certain Damages.
YOU UNDERSTAND AND AGREE THAT IN NO EVENT SHALL ANATOMAGE PARTIES BE LIABLE FOR ANY LOSS OF PROFITS,
REVENUE OR DATA, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF
OR IN CONNECTION WITH ANATOMAGE PROPERTIES, OR DAMAGES OR COSTS DUE TO LOSS OF PRODUCTION
OR USE, BUSINESS INTERRUPTION, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, WHETHER OR NOT
ANATOMAGE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION
WITH THE TERMS, OR FROM ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF
ANATOMAGE PROPERTIES, ON ANY THEORY OF LIABILITY, RESULTING FROM: (1) THE USE OR INABILITY
TO USE ANATOMAGE PROPERTIES; (2) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES
RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES
RECEIVED FOR TRANSACTIONS ENTERED INTO THROUGH ANATOMAGE PROPERTIES; (3) UNAUTHORIZED
ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (4) STATEMENTS OR CONDUCT OF ANY
THIRD PARTY ON ANATOMAGE PROPERTIES; OR (5) ANY OTHER MATTER RELATED TO ANATOMAGE PROPERTIES,
WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY
OR ANY OTHER LEGAL THEORY. THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF
AN ANATOMAGE PARTY FOR (A) DEATH OR PERSONAL INJURY CAUSED BY AN ANATOMAGE PARTY’S NEGLIGENCE;
OR FOR (B) ANY INJURY CAUSED BY AN ANATOMAGE PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
10.2.
Cap on Liability.
Anatomage is not liable for any incidental, indirect, special, or consequential damages
arising out of or in connection with the Services provided by Anatomage, including without
limitation loss of use of the any products, including inability to achieve a particular result.
Anatomage’s total liability arising out of or in connection with any event or series of connected
events occurring in connection with the Services shall not exceed the amount of fees paid for use of the Services.
These provisions allocate the risks under use of the Services. Anatomage’s pricing reflects this allocation of risk
and the limitation of liability specified herein.
10.3.
Basis of the Bargain.
THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE
FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN ANATOMAGE AND
YOU.
11.
Term and Termination.
11.1.
Term.
The Terms commence on the date when you accept them (as described in the
preamble above) and remain in full force and effect while you use Anatomage Properties, unless
terminated earlier in accordance with the Terms.
11.2.
Termination of Services by Us.
We may terminate and/or suspend the Services, your
Account and/or these Terms in the event you breach any terms herein, or if required to do so by
applicable law.
11.3.
Termination of Services by You.
If you want to terminate the Services provided by Anatomage, you may do so by (a) notifying Anatomage at any
time and (b) closing your Account for all of the Services that you use. Your notice should be sent, in writing,
to
cloudadmin@anatomage.com
11.4.
Effect of Termination.
Termination of any Service includes removal of access to such Service and barring of further use of the Service.
Termination of all Services also includes deletion of your password and all related information, files and
Content associated with or inside your Account (or any part thereof), including Your Content, unless
we are required to retain a copy of such Content in accordance with applicable law. Upon termination of
any Service, your right to use such Service will automatically terminate immediately.
You understand that any termination of Services may involve deletion of Your Content associated therewith from our
live databases. Anatomage will not have any liability whatsoever to you for any suspension or termination,
including for deletion of Your Content. All provisions of the Terms which by their nature should survive,
shall survive termination of Services, including without limitation, ownership provisions, warranty disclaimers,
and limitation of liability.
12.
Dispute Resolution. Please read the following arbitration agreement in this Section
("Arbitration Agreement") carefully. It requires you to arbitrate disputes with Anatomage and limits the manner
in which you can seek relief from us.
12.1.
Applicability of Arbitration Agreement.
You agree that any dispute or claim relating in any way to your access or use of the Platform, to any products sold or
distributed through the Platform, or to any aspect of your relationship with Anatomage, will be resolved by binding arbitration,
rather than in court, except that (1) you may assert claims in small claims court if your claims qualify; and (2)
you or Anatomage may seek equitable relief in court for infringement or other misuse of intellectual property rights
(such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents).
This Arbitration Agreement shall apply, without limitation, to all claims that arose or were asserted before
the Effective Date of this Agreement or any prior version of this Agreement.
12.2.
Arbitration Rules and Forum.
The Federal Arbitration Act governs the interpretation and
enforcement of this Arbitration Agreement. To begin an arbitration proceeding, you must send a
letter requesting arbitration and describing your claim to Anatomage, 303 Almaden Boulevard,
Suite 700, San Jose, California. The arbitration will be conducted by JAMS, an established
alternative dispute resolution provider. Disputes involving claims and counterclaims under
$250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’s most current
version of the Streamlined Arbitration Rules and procedures available
at
http://www.jamsadr.com/
rules-streamlined-arbitration/; all other claims shall be subject to JAMS’s most current version of
the Comprehensive Arbitration Rules and Procedures, available at
http://www.jamsadr.com/rulescomprehensive-arbitration/.
JAMS’s rules are also available at
www.jamsadr.com or by calling
JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative
arbitral forum.
12.3.
Authority of Arbitrator.
The arbitrator shall have exclusive authority to (a) determine the scope and enforceability of
this Arbitration Agreement and (b) resolve any dispute related to the interpretation, applicability,
enforceability or formation of this Arbitration Agreement including, but
not limited to any claim that all or any part of this Arbitration Agreement is void or voidable.
The arbitration will decide the rights and liabilities, if any, of you and Anatomage.
The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties.
The arbitrator shall have the authority to grant motions dispositive of all or part of any claim.
The arbitrator shall have the authority to award monetary damages and to grant any nonmonetary
remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and the Agreement
(including the Arbitration Agreement). The arbitrator shall issue a written award and statement of decision
describing the essential findings and conclusions on which the award is based, including the calculation of
any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a
judge in a court of law would have. The award of the arbitrator is final and binding upon you and us.
12.4.
Waiver of Jury Trial.
YOU AND ANATOMAGE HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE
A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Anatomage are instead electing that all claims and disputes
shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 12.1 above.
An arbitrator can award on an individual basis the same damages and relief as a court and must follow this
Agreement as a court would. However, there is no judge or jury in arbitration, and court review of an
arbitration award is subject to very limited review.
12.5.
Waiver of Class or Other Non-Individualized Relief.
ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL
BASIS AND NOT ON A CLASS OR COLLECTIVE BASIS, ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE
THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER.
If a decision is issued stating that applicable law precludes enforcement of any of this subsection’s
limitations as to a given claim for relief, than then claim must be severed from the arbitration and
brought into the State or Federal Courts located in Santa Clara County, California. All other claims s
hall be arbitrated.
12.6.
Severability.
Except as provided in subsection 12.5, if any part or parts of this Arbitration Agreement are found under
the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect
and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.
12.7.
Survival of Agreement.
This Arbitration Agreement will survive the termination of your
relationship with Anatomage.
13.
General Provisions.
13.1.
Electronic Communications.
The communications between you and Anatomage use electronic means, whether you visit Anatomage Properties
or send Anatomage e-mails, or whether Anatomage posts notices on Anatomage Properties or communicates
with you via email. For contractual purposes, you (1) consent to receive communications from Anatomage
in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures,
and other communications that Anatomage provides to you electronically satisfy any legal requirement
that such communications would satisfy if it were to be in writing. The foregoing does not affect
your statutory rights.
13.2.
Assignment.
The Terms, and your rights and obligations hereunder, may not be assigned, subcontracted,
delegated or otherwise transferred by you without Anatomage’s prior written consent, and any
attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will
be null and void. Anatomage may freely assign these Terms including its rights herein, in whole
or in part, without your prior consent.
13.3.
Force Majeure.
Anatomage shall not be liable for any delay or failure to perform
resulting from causes outside its reasonable control, including, but not limited to, acts of God,
war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or
shortages of transportation facilities, fuel, energy, labor or materials.
13.4.
Questions, Complaints, Claims.
If you have any questions, complaints or claims with
respect to Anatomage Properties, please contact us at: Anatomage, 303 Almaden Boulevard,
Suite 700, San Jose, California. We will do our best to address your concerns. If you feel that
your concerns have been addressed incompletely, we invite you to let us know for further
investigation.
13.5.
Exclusive Venue.
To the extent the parties are permitted under this Agreement to initiate
litigation in a court, both you and Anatomage agree that all claims and disputes arising out of or
relating to the Agreement will be litigated exclusively in the state or federal courts located in Santa
Clara County, California.
13.6.
Governing Law.
THE TERMS AND ANY ACTION RELATED THERETO WILL BE GOVERNED AND INTERPRETED BY AND UNDER
THE LAWS OF THE STATE OF CALIFORNIA, CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT
TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION.
THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS DOES NOT APPLY TO THESE TERMS.
13.7.
Notice.
Where Anatomage requires that you provide an e-mail address, you are
responsible for providing Anatomage with your most current e-mail address. In the event that the
last e-mail address you provided to Anatomage is not valid, or for any reason is not capable of
delivering to you any notices required/ permitted by the Terms, Anatomage’s dispatch of the email
containing such notice will nonetheless constitute effective notice. You may give notice to
Anatomage at the following address: Anatomage, 303 Almaden Boulevard, Suite 700, San Jose,
California. Such notice shall be deemed given when received by Anatomage by letter delivered
by nationally recognized overnight delivery service or first class postage prepaid mail at the
above address.
13.8.
Waiver.
Any waiver or failure to enforce any provision of the Terms on one occasion will
not be deemed a waiver of any other provision or of such provision on any other occasion.
13.9.
Severability.
If any portion of this Agreement is held invalid or unenforceable, that
portion shall be construed in a manner to reflect, as nearly as possible, the original intention of
the parties, and the remaining portions shall remain in full force and effect.
13.10.
Accessing and Downloading the Application from iTunes.
The following applies to
any App Store Sourced Application accessed through or downloaded from the Apple App Store:
13.10.a)
You acknowledge and agree that (i) the Agreement is concluded between you and
Anatomage only, and not Apple, and (ii) Anatomage, not Apple, is solely responsible for the App
Store Sourced Application and content thereof. Your use of the App Store Sourced Application
must comply with the App Store Terms of Service.
13.10.b) You acknowledge that Apple has no obligation
whatsoever to furnish any maintenance
and support services with respect to the App Store Sourced Application.
13.10.c)
In the event of any failure of the App Store Sourced Application to conform to any
applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App
Store Sourced Application to you and to the maximum extent permitted by applicable law, Apple
will have no other warranty obligation whatsoever with respect to the App Store Sourced
Application. As between Anatomage and Apple, any other claims, losses, liabilities, damages,
costs or expenses attributable to any failure to conform to any warranty will be the sole
responsibility of Anatomage.
13.10.d)
You and Anatomage acknowledge that, as between Anatomage and Apple, Apple is not
responsible for addressing any claims you have or any claims of any third party relating to the
App Store Sourced Application or your possession and use of the App Store Sourced Application,
including, but not limited to: (i) product liability claims; (ii) any claim that the App Store Sourced
Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims
arising under consumer protection or similar legislation.
13.10.e)
You and Anatomage acknowledge that, in the event of any third-party claim that the App
Store Sourced Application or your possession and use of that App Store Sourced Application
infringes that third party’s intellectual property rights, as between Anatomage and Apple,
Anatomage, not Apple, will be solely responsible for the investigation, defense, settlement and
discharge of any such intellectual property infringement claim to the extent required by the
Agreement.
13.10.f)
You and Anatomage acknowledge and agree that Apple, and Apple’s subsidiaries, are
third-party beneficiaries of the Agreement as related to your license of the App Store Sourced
Application, and that, upon your acceptance of the terms and conditions of the Agreement, Apple
will have the right (and will be deemed to have accepted the right) to enforce the Agreement as
related to your license of the App Store Sourced Application against you as a third-party
beneficiary thereof.
13.10.g)
Without limiting any other terms of the Agreement, you must comply with all applicable
third-party terms of agreement when using the App Store Sourced Application.
13.11.
Consumer Complaints.
In accordance with California Civil Code §1789.3, you may
report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the
California Department of Consumer Affairs by contacting them in writing at 400 R Street,
Sacramento, CA 95814, or by telephone at (800) 952-5210.
13.12.
Entire Agreement.
The Terms are the final, complete and exclusive agreement of the
parties with respect to the subject matter hereof and supersedes and merges all prior discussions
between the parties with respect to such subject matter.