Terms of Conditions and Use
Last Updated: 12 October 2021
These Terms and Conditions of Use (collectively, the “Terms“) constitute a legal agreement between you and OXOS Medical, Inc., together with its affiliates and subsidiaries (collectively, “OXOS,” “Company,” “us“, “our” or “we“). These Terms apply to any services offered by OXOS (collectively, the “Services“) to healthcare providers (“Providers“), their patients (“Patients“), as well as individuals authorized by OXOS to use the Platform (as defined below) to deliver our offerings to you (users of the Platform, including, without limitation, Providers and Patients, each a “User” and collectively the “Users“). By using the Platform, including, without limitation, through accessing or using websites owned or operated by the Company, including the Company’s website located at www.oxos.com (collectively, “Site” or “Sites“), or receiving Services, including through use of the OXOS Device(s), or by downloading, installing, accessing or using any application supplied by us (collectively “App” or “Apps“), you hereby expressly acknowledge and agree to be bound by these Terms, which include and incorporate by reference our Privacy Notice available at oxos.com/privacy as well as the Provider Acknowledgement that all users of our Apps and the OXOS Device(s) must agree to, as provided within the App under “Help”, and any future amendments and additions to these Terms as published from time to time on the Site. The Sites, the Services, and the Apps will be collectively referred to herein as the “Platform.”
We reserve the right to modify these Terms at any time, effective upon posting of an updated version of these Terms on the Site or App. You are responsible for regularly reviewing these Terms. Continued use of the Platform after any such changes shall constitute your consent to such changes.
IMPORTANT: PLEASE READ. WE ARE NOT A MEDICAL OR OTHER HEALTH CARE PROVIDER. WE ONLY PROVIDE A TOOL TO SUPPORT THE PROVISION OF MEDICAL OR HEALTH RELATED SERVICES BY HEALTHCARE PROVIDERS, AND AS SUCH, WE SHALL HAVE NO RESPONSIBILITY OR LIABILITY FOR ANY PROVISION OR LACK OF PROVISION OF ANY MEDICAL OR HEALTH RELATED SERVICES.
FURTHER, THE PLATFORM, SITES, SERVICES AND APPS ARE NOT INTENDED FOR USE BY ANYONE UNDER THE AGE OF 18, AND PERSONS UNDER SUCH AGE ARE STRICTLY PROHIBITED FROM USING THE PLATFORM.
1. The Platform
1.1. Users. Only authorized Users with an OXOS account to use the Platform (an “Account“) can access and use all of the features and benefits of the Platform. The Platform allows Users to utilize a cloud-based x-ray image acquisition and sharing platform for patient care, research, education or other authorized uses. By using the Platform, you agree to provide (i) true, accurate, current and complete information as prompted by the App, and (ii) maintain and properly update your information to keep it true, accurate, current and complete. If you provide information that is untrue, inaccurate, not current or incomplete, you may not receive the full benefit of the Platform. If we have reasonable grounds to suspect that you have, or will violate these Terms, as determined in our sole discretion, we have the right to suspend or terminate your Account and refuse any and all current or future use of the Platform (or any portion thereof).
1.2. How To Use the Platform.
1.2.1. Use of the Platform. The Platform gives Users the ability to utilize a cloud-based x-ray image acquisition and sharing platform for patient care, research, education or other authorized use. Notwithstanding anything herein to the contrary, any health care that a Patient receives from a Provider shall be between such Patient and the Provider and we shall have no responsibility for such health care. In addition, we shall not be responsible for any inaccuracies, misrepresentations, misdiagnosis, treatment or other acts or omissions of the Providers.
1.2.2. License. The Platform is intended for your use in accordance with these Terms. You agree that you will not (i) copy, display or distribute any part of the Platform (including, without limitation, any Site, App or Service), in any medium, without our prior written consent, or (ii) use the Platform in whole or part, or any benefit thereof, for any purpose inconsistent with these terms, including, but not limited to, selling, bartering, disposing or otherwise transferring any benefit obtained through the Platform. You further agree that you will not use any automated devices, such as web crawlers, spiders, robots or data mining techniques to catalog, download, store or otherwise reproduce, store or distribute content available on the Platform, or to manipulate the Platform, or otherwise exceed the limited access granted to you by us. You agree you will not take any action to interfere with, interrupt, destroy or limit the functionality of the Platform or any computer software or hardware or telecommunications equipment. You agree you will not distribute or transmit any content or software or other computer files that contain a computer virus or other harmful component.
2. License Grant, Restrictions and Copyright Policy
2.1. Licenses Granted by Us to Our Content and User Content
2.1.1. Subject to your compliance with these Terms, we grant you a limited, non-exclusive, non-transferable license: (i) to view, download and print any text, graphics, images, audio, video, information or other materials (collectively, “Content“) that we make available through the Platform, including any Content licensed from a third party, solely for your own use, or other authorized Users as provided by the Platform and these Terms. You have no right to sublicense the license rights granted in this section.
2.1.2.You will not use, copy, adapt, modify, prepare derivative works based upon, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the Platform, except as expressly permitted in these Terms. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by us or our licensors, except for the licenses and rights expressly granted in these Terms.
2.2. Prohibitions. By downloading, accessing, or using the Platform (or any part thereof), you shall not:
- license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Platform in any way;
- modify or make derivative works based upon the Platform (or any part thereof);
- “frame” or “mirror” the Sites or any part of the Platform on any other server or wireless or Internet-based device;
- create Internet links to the Site (or any other component of the Platform) to aid in any unauthorized use of the Platform;
- reverse engineer or access the Platform in order to (i) build a competitive product or service, (ii) build a product using similar ideas, features, functions or graphics of the Platform (or any part thereof), or (iii) copy any ideas, features, functions or graphics of the Platform (or any part thereof);
- launch an automated program or script, including, but not limited to, web spiders, web crawlers, web robots, web ants, web indexers, bots, viruses or worms, or any program which may make multiple server requests per second, or unduly burdens or hinders the operation and/or performance of the Platform;
- send spam or otherwise duplicative or unsolicited messages in violation of applicable laws;
- send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violative of third party privacy rights;
- send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs;
- interfere with or disrupt the integrity or performance of the Platform or the data contained therein; or
- attempt to gain unauthorized access to the Platform (or any part thereof) or its related systems or networks.
We will have the right to investigate and prosecute violations of any of the above to the fullest extent of the law. We may involve and cooperate with law enforcement authorities in prosecuting Users who violate these Terms. You acknowledge that we have no obligation to monitor your access to or use of the Platform, or to review or edit any Content, but have the right to do so for the purpose of operating the Platform, to ensure your compliance with these Terms, or to comply with applicable law or the order or requirement of a court, administrative agency or other governmental body. We reserve the right, at any time and without prior notice, to remove or disable access to any Content that we, at our sole discretion, consider to be in violation of these Terms or otherwise harmful to the Platform.
2.3. Copyright Policy
We respect copyright law and expect our Users to do the same. We may, in our sole discretion, terminate Users who infringe or are believed to be infringing the rights of copyright holders.
3. Representations and Warranties; Covenants
3.1 Representations and Warranties. By using the Platform, you expressly represent and warrant that you are legally entitled to agree to these Terms. If you reside in a jurisdiction that restricts the use of the Platform (or any part thereof) because of age, or restricts the ability to enter into agreements such as this one due to age, you must abide by such age limits and you must not use the Platform. Without limiting the foregoing, the Platform is not available to children (persons under the age of 18). By using the Platform, you represent and warrant that you are at least 18 years old. By using the Platform, you represent and warrant that you have the right, authority and capacity to enter into these Terms and to abide by the terms and conditions of these Terms. You may not authorize others to use the Platform under your Account and you may not assign or otherwise transfer your Account to any other person or entity. When using the Platform, you agree to comply with all applicable laws from your home nation, the country, state and city in which you reside, as well as in which you are present while using the Platform. You may only access and use the Platform using authorized means.
- By using the Platform, you covenant and agree that:
- you will only use the Platform for lawful purposes;
- you will not impair the proper operation of the Platform;
- you will not try to harm us, or any other user or the Platform in any way;
- you will not copy, or distribute the Platform (or any part thereof) or other content without our written permission;
- you will only use the Platform for your own uses and will not resell it to a third party;
- you will keep secure and confidential your Account password or any identification we provide you which allows access to the Platform;
- you will provide us with proof of identity as we may request from time to time;
- you may receive communications from us or an affiliate via SMS messaging and standard messaging charges will apply.
4. Intellectual Property Ownership
As between you and us, we (and our licensors, where applicable) shall own all right, title and interest, including all related intellectual property rights, in and to the Platform (and any part thereof) and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you or any other party relating to the Platform. These Terms do not convey to you any rights of ownership in or related to the Platform, or any intellectual property rights owned by us. Our name, logo, and names associated with the Platform are our trademarks or those of our licensors, and no right or license is granted to use them except as otherwise specifically set forth in these Terms.
By using the Platform, you agree to defend, indemnify and hold us and our licensors, and each such party’s parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of, in connection with, or related to: (a) your violation or breach of these Terms or any applicable law or regulation, whether or not referenced herein; (b) your violation of any rights of any third party, or (c) your use or misuse of the Platform.
6. Disclaimer of Warranties
WE MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE PLATFORM OR ANY HEALTHCARE SERVICE YOU MAY PROVIDE AS A PROVIDER, OR RECEIVE AS A PATIENT FROM A PROVIDER. WE DO NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE PLATFORM WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, APP, SYSTEM OR DATA, (B) THE PLATFORM OR YOUR PROVIDER WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE, (D) ERRORS OR DEFECTS IN THE PLATFORM WILL BE CORRECTED, OR (F) THE PLATFORM OR THE SERVER(S) THAT MAKE THE PLATFORM AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE PLATFORM IS PROVIDED TO YOU STRICTLY ON AN “AS IS” BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY US. WE MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, SAFETY, TIMELINESS, QUALITY, SUITABILITY OR AVAILABILITY OF THE PLATFORM. YOU ACKNOWLEDGE AND AGREE THAT THE ENTIRE RISK ARISING OUT OF YOUR USE OF THE PLATFORM, AND ANY HEALTHCARE SERVICES RENDERED BY ANY PROVIDERS OR RECEIVED BY YOU REMAIN SOLELY WITH YOU, TO THE MAXIMUM EXTENT PERMITTED BY LAW.
7. Internet Delays
THE PLATFORM MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. WE ARE NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
8. Limitation of Liability
EXCEPT AS OTHERWISE PROVIDED HEREIN, IN NO EVENT SHALL WE AND/OR OUR LICENSORS BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING PERSONAL INJURY, LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE). WE AND/OR OUR LICENSORS SHALL NOT BE LIABLE FOR ANY LOSS, DAMAGE OR INJURY WHICH MAY BE INCURRED BY YOU, INCLUDING BY NOT LIMITED TO LOSS, DAMAGE OR INJURY ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE PLATFORM OR ANY HEALTHCARE SERVICES, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE PLATFORM, ANY RELIANCE PLACED BY YOU ON THE COMPLETENESS, ACCURACY OR EXISTENCE OF ANY PROVIDER’S HEALTHCARE SERVICES, OR AS A RESULT OF ANY RELATIONSHIP OR TRANSACTION BETWEEN YOU AND ANY PROVIDER, OR, IF YOU ARE A PROVIDER, YOU AND ANY PATIENT, EVEN IF WE AND/OR OUR LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ALTHOUGH WE MAY PROVIDE PROVIDERS ACCESS TO THE PLATFORM, WE WILL NOT ASSESS THE SUITABILITY OR ABILITY OF SUCH PROVIDERS AND YOU EXPRESSLY WAIVE AND RELEASE US FROM ANY AND ALL ANY LIABILITY, CLAIMS OR DAMAGES ARISING FROM OR IN ANY WAY RELATED TO THE HEALTHCARE SERVICES RENDERED OR NOT RENDERED BY ANY PROVIDER. WE WILL NOT BE A PARTY TO DISPUTES, OR NEGOTIATIONS OF DISPUTES BETWEEN PATIENTS AND PROVIDERS. RESPONSIBILITY FOR THE DECISIONS YOU MAKE REGARDING HEALTHCARE SERVICES PROVIDED BY PROVIDERS RESTS SOLELY WITH YOU. THE LIMITATIONS IN THIS SECTION WILL APPLY TO THE EXTENT PERMITTED BY APPLICABLE LAW.
9. Additional Terms
If you have downloaded any software, including any version of any App provided by us, from the Apple iTunes Application Store, the following additional terms apply to such software: Your use of any such software will be subject to the EULA provided when you downloaded the software from the Apple iTunes Application Store (“Apple EULA“) to the extent that such terms do not conflict with these Terms. Further, you agree and acknowledge that Apple is not responsible for the software and its content. In addition, your use of such software downloaded from such location is limited to a non-transferable license to use the software on any Apple branded products running iOS (including but not limited to iPad, iPhone, and iPod touch) (“iOS Devices“) or Mac OS X (“Mac Computers“), as applicable (collectively “Apple Device(s)“) that you own or control and as permitted by the Usage Rules set forth in the App Store Terms of Service. Moreover, we hereby inform you and you acknowledge and agree that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the software. Apple has no warranty obligation with respect to the software and any claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty set forth in these Terms is the responsibility of OXOS. Please note that OXOS has disclaimed all warranties to the extent permitted (see Section 6 above) and limits the extent of their liability (see Section 8 above). Apple is not responsible for addressing any claims relating to the software or your possession and/or use of the software, including, but not limited to: (i) product liability claims; (ii) any claim that the software fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. Apple is not responsible for any third-party infringement claims that the software or your possession and use of the software infringe a third party’s intellectual property rights. Third Party Beneficiary: OXOS and you acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of these Terms with respect to any such software, and that 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 thereof as set forth herein.
OXOS makes no representation as to any third-party services and OXOS has disclaimed all warranties to the extent permitted (see Section 6 above) and limits the extent of their liability (see Section 8 above).
We may give notice by means of a general notice on the Platform (including any App or Site), electronic mail to your email address on record in our account information, or by written communication sent by first class mail or pre-paid post to your address on record in our account information. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by email).
You may give notice to us (such notice shall be deemed given when received by us) at any time by any of the following: letter delivered by nationally recognized overnight delivery service or first-class postage prepaid mail to us at the following address:
OXOS Medical, Inc.
Attention: Legal Department
1230 Peachtree Street NE
Atlanta, GA 30309
These Terms and your Account may not be assigned by you without our prior written approval but may be assigned without your consent by us to (i) a parent or subsidiary, (ii) an acquirer of assets, or (iii) a successor by merger. Any purported assignment by you in violation of this section shall be void.
12. Export Control
You agree to comply fully with all U.S. and foreign export laws and regulations to ensure that neither the Platform nor any technical data related thereto nor any direct product thereof is exported or re-exported directly or indirectly in violation of, or used for any purposes prohibited by, such laws and regulations. By using the Platform, you represent and warrant that: (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
13. Dispute Resolution
13.1. Arbitration. Any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof or the use of the Platform (collectively, “Disputes“) will be settled by binding arbitration, except that each party retains the right to bring an individual action in small claims court and the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights. YOU ACKNOWLEDGE AND AGREE THAT YOU ARE WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING. Further, unless otherwise agreed in writing, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of any class or representative proceeding. If this specific paragraph is held unenforceable, then the entirety of this “Dispute Resolution” section will be deemed void. Except as provided in the preceding sentence, this “Dispute Resolution” section will survive any termination of these Terms.
13.2. Arbitration Rules and Governing Law. The arbitration will be administered by the American Arbitration Association (“AAA“) in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “AAA Rules“) then in effect, except as modified by this “Dispute Resolution” section. The Federal Arbitration Act will govern the interpretation and enforcement of this Section.
13.3. Arbitration Location and Procedure. Unless otherwise agreed, the arbitration will be conducted in the county where you reside. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of documents you and we submit to the arbitrator, unless you request a hearing or the arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
13.4. Arbitrator’s Decision. The arbitrator will render an award within the time frame specified in the AAA Rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator’s award damages must be consistent with the terms of the “Limitation of Liability” in Section 8 above as to the types and the amounts of damages for which a party may be held liable.
13.5. Fees. Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules.
13.6. Changes. Notwithstanding the provisions of the modification-related provisions above, if we change this “Dispute Resolution” section after the date you first accepted these Terms (or accepted any subsequent changes to these Terms), you may reject any such change by sending us written notice within 30 days of the date such change became effective, as indicated in the “Last Updated Date” above. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and us in accordance with the provisions of this “Dispute Resolution” section as of the date you first accepted these Terms (or accepted any subsequent changes to these Terms).
No joint venture, partnership, employment, or agency relationship exists between you, us or any Provider as a result of these Terms or your use of the Platform. If any provision of these Terms is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced to the fullest extent under law. Our failure to enforce any right or provision in these Terms shall not constitute a waiver of such right or provision.
15. Governing Law
These Terms are governed by the laws of the State of Georgia, U.S.A. without giving effect to any principles of conflict of law.