Terms of Use

Introduction

Biograph International, Inc. (“Biograph,” “we,” or “us”) owns and operates the Biograph website located at www.Biograph.com (the “Website”) the Biograph mobile application (the “Application” and, together with the Website, the “Platform”). Your access and use of the Platform, any part thereof, or anything associated therewith, including its content (“Content”), any products or services provided through the Platform or otherwise by Biograph, and any affiliated website, software or application owned or operated by Biograph (collectively, including the Platform and the Content, the “Service”) are governed by the terms and conditions set forth in these Terms of Use (“Terms of Use”).

Please read these Terms of Use carefully because they set forth the important terms you will need to know about the Service. In these Terms of Use, the terms “you” and “yours” refer to the person using the Service, or in the case of a use of the Service by or on behalf of a minor, “you” and “yours” refer to and include both (i) the parent or legal guardian who provides consent to the use of the Service by such minor or uses the Service on behalf of such minor, and (ii) the minor for whom consent is being provided or on whose behalf the Service is being utilized.

IF YOU HAVE A MEDICAL EMERGENCY, IMMEDIATELY CALL YOUR DOCTOR OR DIAL 911.

THE SERVICE MIGHT NOT BE APPROPRIATE FOR ALL MEDICAL CONDITIONS OR CONCERNS.

THESE TERMS OF USE ARE SUBJECT TO CHANGE AS PROVIDED HEREIN.

Acceptance of Terms of Use

Your access to and use of the Service is subject to these Terms of Use as well as all applicable laws and regulations. If you do not accept and agree to be bound by any of these Terms of Use, you are not authorized to access or otherwise use the Service or any information or Content provided through the Service. The Service is continually under development, and Biograph reserves the right to revise or remove any part of these Terms of Use in its sole discretion at any time and without prior notice to you. Any changes to these Terms of Use are effective upon posting to the Platform. Unless otherwise indicated, any new Content added to the Service is also subject to these Terms of Use upon posting to the Platform. If you disagree with these Terms of Use, your sole remedy is to discontinue your use of the Service. Your continued use after a change to these Terms of Use has been posted constitutes your acceptance of the Terms of Use as modified by such changes.

Your Relationship with Biograph

Biograph is a technology company that makes available to individuals who register as users of the Service (“Users”) certain products and services designed for use in tracking and managing users’ health and wellness and relationships with their healthcare providers. In connection with the Service, Biograph also provides certain technological and other administrative support for Biograph Providers of California, a California medical group (the “Medical Group”) that employs or contracts with physicians and allied health professionals (“Providers”).

Biograph acts solely as a technology platform to provide you with products and services offered through the Service, including connecting you with the Medical Group and the Providers. We do not control or interfere with the practice of medicine by the Medical Group or any Providers, each of whom is solely responsible for the medical care and treatment he or she provides to you. By accepting these Terms of Use, you acknowledge and agree that Biograph is not a healthcare provider and that by using the Service, you are not entering into a doctor-patient or other health care provider-patient relationship with Biograph. By using the Service, you may, however, be entering into a doctor-patient or other health care provider-patient relationship with the Medical Group and/or one or more Providers.

By accepting the Terms of Use, you understand that, the Medical Group and/or Providers may send you messages, reports, and emails via the Service regarding your diagnosis and/or treatment. You further understand and agree that it is your responsibility to monitor and respond to these messages, reports, and emails and that neither Biograph nor the Medical Group or any Provider will be responsible in any way and you will not hold Biograph, Medical Group or any Provider liable for any loss, injury, or claims of any kind resulting from your failure to read or respond to these messages or for your failure to comply with any treatment recommendations or instructions from the Medical Group or your Provider(s).

While you are not establishing a doctor-patient or other health care provider-patient relationship with Biograph, by using the Service, you are establishing a direct customer relationship with Biograph to use the products and services made available through the Service. In connection with such relationship, you may provide to us, or cause to be provided to us on your behalf, personal information, including health information, that is subject to use by us in accordance with our Privacy Policy. Please refer to the “Privacy Policy” section and the “Protected Health Information” section below for additional information.

Limited Use and Availability

Our Service is currently only available to individuals who are located in California and who meet certain age or parental/guardian use and/or consent requirements. The Service is not intended for direct use by children under 13 years of age under any circumstances. In order to use the Service, you must be located in California. In addition, you must be at least 18 years of age or such older age of majority as required under the applicable laws in the state in which you are located when utilizing the Service. If you are between the ages of 13 and 18, you may still use the Service, but you must have a parent or legal guardian provide valid and verifiable consent to your use of the Service and accept these Terms of Use and acknowledge our Privacy Policy, in each case as required by the Service or as otherwise required by Biograph from time to time. If we determine at any time that the consent provided is invalid or inadequate, we may suspend or terminate your access to or use of the Service. If you are under the age of 13, the Service may still be utilized by your parent or legal guardian on your behalf, but you may not use the Service directly. If we determine at any time that a child under the age of 13 has created an account through the Service, we terminate such child’s user account and remove all information regarding such child from our systems. By using the Service, you are representing and warranting to us that you satisfy at least one of the following: (a) you are at least 18 years of age or such older age of majority as required under the applicable laws in the State of California, (b) you are at least 13 years of age and your parent or legal guardian has provided us with valid and verifiable consent to your use of the Service, (c) you are the parent or legal guardian of a minor child and are using the Service on such minor child’s behalf with full capacity and legal authority to do so. Our Service is subject to state regulations and may change from time to time due to changes in applicable regulatory requirements.

In some cases, the Service may not be the most appropriate way for you to track or manage your health and wellness, or provide information to, communicate with or seek medical care and treatment from a healthcare provider. For example, certain medical conditions may require an in-person procedure or a healthcare provider other than your Provider, or your Provider may determine that your diagnosis and/or treatment require an in-person office visit or are otherwise not appropriately addressed through use of the Service. In such a case, you may receive notification that you will be unable to use the Service for the particular issue you submitted and providing additional information regarding next steps.

Consent to Use of Telehealth Services

Telehealth involves the delivery of healthcare services using electronic communications, information technology or other means between a healthcare provider and a patient who are not in the same physical location. While the provision of health care services using telehealth may offer certain potential benefits, there are also potential risks associated with the use of telehealth. In order to use the Service, you will be required to review and agree to a Patient Agreement and Consent (the “Patient Consent”) that will be provided to you by the Medical Group. You agree that the Patient Consent is entered into with the Medical Group, but that Biograph is a third party beneficiary of the Patient Consent and has the right to enforce it against you.

Duty to Provide Information, Access, and Connectivity

You are responsible for providing and maintaining, at your own risk, option and expense, appropriate software and hardware capabilities (consistent with any technical, quality or other requirements described in the Service) to enable use of the Service. You also have a duty to provide truthful, accurate and complete information in any forms or other communications you submit to or through the Service. Biograph reserves the right to change the access configuration, including any software, hardware or other requirements of the Service at any time without prior notice.

Privacy Policy

Biograph understands the importance of confidentiality and privacy regarding your health information. Please see our Privacy Policy via this link for a description of how we may collect, use and disclose your personal information.

Protected Health Information

Biograph is not a “covered entity” under the Health Insurance Portability and Accountability Act of 1996, Public Law 104-191, and its related regulations and amendments from time to time (collectively, “HIPAA”), however, the Medical Group may be a “covered entity” and, solely in its role providing administrative services to the Medical Group, Biograph may be a “business associate” of the Medical Group. Therefore, the Medical Group and, solely in its role as a business associate, Biograph, may be subject to certain provisions of HIPAA with respect to “protected health information,” as defined under HIPAA, that you provide to the Medical Group (“PHI”). PHI does not include information that has been de-identified in accordance with HIPAA, and does not include information that you submit to Biograph for purposes other than connecting you with the Medical Group or Providers.

Under HIPAA, a “covered entity” is required to provide their patients a Notice of Privacy Practices that describes how the covered entity uses and discloses PHI. As a result, if the Medical Group determines that it is a covered entity under HIPAA, the Medical Group will adopt and separately provide to you a HIPAA Notice of Privacy Practices that describes how the Medical Group may use or disclose your PHI (the “Medical Group Notice of Privacy Practices”).

HIPAA also requires a covered entity to obtain a patient authorization that satisfies certain requirements in order for the covered entity or its business associates to use or disclose PHI in certain ways. In order to ensure that the Medical Group and Biograph are able to effectively provide their respective services to you and that you are able to utilize the full functionality of the Service, the Medical Group and/or Biograph may need to use or disclose your PHI in ways that would require the Medical Group to obtain an authorization under HIPAA. As a result, if the Medical Group determines that it is a covered entity under HIPAA, the Medical Group will obtain from you a patient authorization (a “Patient Authorization”) that authorizes the Medical Group and Biograph to use and disclose your PHI in certain ways that are described in the Patient Authorization.

By using the Service, you are agreeing that any information, including any medical or health information, that you submit to Biograph for purposes of your direct customer relationship with Biograph and not the provision of medical care and treatment by the Medical Group, is not considered PHI, and will only be subject to our Privacy Policy and not the protections afforded under HIPAA.

THE SERVICE PROVIDES YOU ELECTRONIC ACCESS TO CERTAIN INFORMATION FROM YOUR MEDICAL RECORDS CREATED AND MAINTAINED BY MEDICAL GROUP AS PART OF YOUR CARE. THIS INFORMATION MAY INCLUDE, AMONG OTHER THINGS, YOUR LAB AND GENETIC TEST RESULTS, DIAGNOSES AND TREATMENT PLANS, AND OTHER HEALTH INFORMATION, AND IS ACCESSIBLE AND VISIBLE THROUGH THE APPLICATION AND CERTAIN OTHER COMPONENTS OF THE SERVICE. IF SOMEONE ACCESSES YOUR COMPUTER OR OTHER DEVICE, THEY MAY BE ABLE TO ACCESS THE APPLICATION OR OTHER PARTS OF THE SERVICE THROUGH WHICH YOUR INFORMATION, INCLUDING HEALTH INFORMATION, MAY BE VISIBLE. BY USING THE SERVICE, YOU ARE AGREEING TO ALLOW INFORMATION FROM YOUR MEDICAL RECORDS, INCLUDING HEALTH INFORMATION, TO BE CONTAINED IN AND ACCESSIBLE THROUGH THE PLATFORM. IT IS YOUR RESPONSIBILITY TO SECURE YOUR MOBILE DEVICES AND PREVENT UNAUTHORIZED ACCESS TO THE APPLICATION THROUGH YOUR MOBILE OR OTHER DEVICE.

Registration; User Accounts, Passwords, and Security

You are obligated to register and set up an account in the Platform in order to access the Service, and the Service is available only to Users who have registered and have been granted accounts with usernames and passwords. You agree to accurately maintain and update any information about yourself that you have provided to Biograph and/or the Medical Group or its Providers. If you do not keep such information current, or fail to submit truthful, accurate and complete information, or Biograph has reasonable grounds to suspect as much, Biograph has the right to suspend or terminate your account and your use of the Service. You also agree to immediately notify Biograph of any unauthorized use of your username, password or any other breach of security that you become aware of involving or relating to the Service by emailing Biograph at info@biograph.com. In addition, you agree to keep confidential your username and password and to exit from your User account at the end of each session. Biograph explicitly disclaims liability for any and all losses and damages arising from your failure to comply with this section. You may not use anyone else’s account at any time.

When establishing an account, you will be required to provide a username and password that will be used as your login for your account. To help protect the privacy of data you transmit through the Service, where personally identifiable information is requested, we also use technology designed to encrypt the information that you input before it is sent to us using Secure Sockets Layer (SSL) technology or similar encryption technology. In addition, Biograph takes steps to protect the User data we collect against unauthorized access. However, you should keep in mind that the Service and our services are run on software, hardware, and networks, any component of which may, from time to time, require maintenance or experience problems or breaches of security beyond our control. In addition, persons with access to your computer, phone, or other mobile or other devices may be able to access the Service and information about you contained in the Service. It is your responsibility to secure and prevent unauthorized physical access to your computer, phone and other devices, and to protect the confidentiality of your username and password.

You must exercise caution, good sense, and sound judgment in using the Service. You are prohibited from violating, or attempting to violate, the security of the Service. Any such violations may result in criminal and/or civil penalties against you. Biograph may investigate any alleged or suspected violations and if a criminal violation is suspected, Biograph will cooperate with law enforcement agencies in their investigations.

Ownership of Information Submitted via the Service

Subject to the limitations described below, any information you transmit to Biograph via the Service, whether by direct entry, submission, email or otherwise, including data, questions, comments, forum communications, or suggestions (collectively, “Submissions”), will, to the extent permitted under applicable law, be treated as non-confidential and non-proprietary and will become the property of Biograph. You hereby irrevocably assign (and agree to assign) to Biograph, free and clear of any restriction or encumbrances, all of your rights, title and interest in and to the Submission, including, without limitation, all copyrights, rights in patents, rights in trade secrets, and all rights incidental, subsidiary, ancillary, or allied thereto (including, without limitation, all derivative rights) in and to the Submission. To the extent the assignment granted above fails for any reason, you hereby grant to Biograph an exclusive, perpetual, irrevocable, royalty-free, worldwide license under your intellectual property rights, with the right to sublicense to third parties the right, to make, access, practice, sell, offer for sale, export, import, copy, use, modify, prepare derivative works from, distribute, publicly display, publicly perform, and otherwise exploit in any manner those Submissions with respect to which the foregoing assignment shall have failed. You agree to execute any documents and take any other actions as may reasonably be necessary, or as Biograph may reasonably request, to evidence, perfect, maintain and enforce Biograph’s ownership of or license to any such Submissions. In addition to the foregoing, Biograph shall have the right, in its sole discretion, to edit, duplicate, or alter the Submission in any manner for any purpose that Biograph deems necessary or desirable, and you irrevocably waive any and all so-called moral rights you may have in the Submission. You further agree that you shall have no right of approval and no claim to compensation in connection with the Submission.

Certain Submissions you make may contain health information, which may be subject to HIPAA or related state-specific privacy laws and regulations. With respect to any such health information that is PHI, Biograph’s rights under this section with respect to the use or disclosure of such PHI will be limited as and to the extent required under HIPAA or an applicable Patient Authorization.

Acknowledgement of Highly Confidential Information

YOU ACKNOWLEDGE AND AGREE THAT, IN PERMITTING YOU TO UTILIZE THE SERVICE, BIOGRAPH IS ENTRUSTING YOU WITH SENSITIVE OR COMPETITIVE CONFIDENTIAL COMPETITIVE INFORMATION REGARDING, REFLECTING OR OTHERWISE RELATING TO BIOGRAPH’S RESEARCH AND DEVELOPMENT, PRODUCT DEVELOPMENT PLANS, AND MARKETING AND OTHER BUSINESS STRATEGIES, INCLUDING ANY AND ALL INTELLECTUAL PROPERTY OF BIOGRAPH (COLLECTIVELY, “CONFIDENTIAL INFORMATION”). YOU AGREE THAT ALL INFORMATION RELATING TO THE SERVICE FURNISHED TO, ACCESSED BY OR OTHERWISE LEARNED BY YOU CONSTITUTES CONFIDENTIAL INFORMATION PURSUANT TO THE AGREEMENT AND MAY BE USED BY YOU SOLELY TO ACCESS THE SERVICE IN ACCORDANCE WITH THIS AGREEMENT. YOU AGREE THAT YOU WILL NOT USE CONFIDENTIAL INFORMATION IN ANY WAY, FOR YOUR OWN ACCOUNT OR THE ACCOUNT OF ANY THIRD PARTY. YOU AGREE NOT TO DISCLOSE ANY CONFIDENTIAL INFORMATION TO ANY OTHER PERSON OR ENTITY WITHOUT BIOGRAPH’S PRIOR WRITTEN APPROVAL. YOU AGREES TO INFORM BIOGRAPH PROMPTLY OF ANY ACTUAL OR SUSPECTED UNAUTHORIZED DISCLOSURE OR USE OF CONFIDENTIAL INFORMATION IN VIOLATION OF THESE TERMS OF USE.

Prohibited Use

Any use or attempted use of the Service (i) for any unlawful, unauthorized, fraudulent or malicious purpose, (ii) that could damage, disable, overburden, or impair any server, or the network(s) connected to any server, (iii) that could interfere with any other party’s use and enjoyment of the Service, (iv) to gain unauthorized access to any other accounts, computer systems, or networks connected to any server or systems through hacking, password mining or any other means, (v) to access systems, data, or information not intended by Biograph to be made accessible to a user, (vi) to obtain any materials, or information through any means not intentionally made available by Biograph, (vii) to reverse engineer, disassemble or decompile any section or technology on the Service, or (viii) any use other than the business purpose for which it was intended, is prohibited.

In addition, in connection with your use of the Service, you agree you will not: (a) upload or transmit any message, information, data, text, software or images, or other content that is unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libelous, or otherwise objectionable, or that may invade another’s right of privacy or publicity; (b) create a false identity for the purpose of misleading others or impersonate any person or entity, including, without limitation, any Biograph representative, or falsely state or otherwise misrepresent your affiliation with a person or entity; (c) upload or transmit any material that you do not have a right to reproduce, display or transmit under any law or under contractual or fiduciary relationships (such as nondisclosure agreements); (d) upload files that contain viruses, trojan horses, worms, time bombs, cancel-bots, corrupted files, spyware or any other similar software or programs that may damage the operation of another’s computer or property of another; (e) delete any author attributions, legal notices or proprietary designations or labels that you upload to any communication feature; (f) use the Service’s communication features in a manner that adversely affects the availability of its resources to other users (e.g., excessive shouting, use of all caps, or flooding continuous posting of repetitive text); (g) upload or transmit any unsolicited advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” “phishing” or any other form of solicitation, commercial or otherwise; (h) violate any applicable local, state, national or international law; (i) upload or transmit any material that infringes any patent, trademark, service mark, trade secret, copyright or other proprietary rights of any party; (j) delete or revise any material posted by any other person or entity; (k) manipulate or otherwise display the Service by using framing, mirroring or similar navigational technology; (l) probe, scan, test the vulnerability of or breach the authentication measures of, the Service or any related networks or systems; (m) register, subscribe, attempt to register, attempt to subscribe, unsubscribe, or attempt to unsubscribe, any party for any services or any contests, promotions or sweepstakes if you are not expressly authorized by such party to do so; (n) harvest or otherwise collect information about others, including email addresses; (o) use any robot, spider, scraper, or other automated or manual means to access the Service, or copy any content or information on the Service; or (p) assist or permit any person in engaging in any of these activities.

Biograph reserves the right to take whatever lawful actions it may deem appropriate in response to actual or suspected violations of the foregoing, including, without limitation, the suspension or termination of a User's access and/or account. Biograph may cooperate with legal authorities and/or third parties in the investigation of any suspected or alleged crime or civil wrong.

Except as may be provided in the Privacy Policy, Biograph reserves the right at all times to disclose any information as Biograph deems necessary to satisfy any applicable law, regulation, legal process or governmental request, or to edit, refuse to post or to remove any information or materials, in whole or in part, in Biograph’s sole discretion.

Right to Monitor

Biograph reserves the right to monitor general use of the Service at any time as it deems appropriate and to remove any materials that, in Biograph’s sole discretion, may be illegal, may subject Biograph to liability, may violate these Terms of Use, or are, in the sole discretion of Biograph, inconsistent with Biograph’s purpose for the Service.

Third-Party Goods and Services

Parties other than Biograph, including Medical Group and Providers (collectively, “Third-Parties”) provide services or sell products through the Service, and Biograph may also make available to you for purchase certain services, devices, items or products manufactured, distributed or sold by Third-Parties (“Third-Party Goods and Services”). Your use of any Third-Party Goods and any interactions with Third-Parties, including payment and delivery of goods or services, and any other terms, conditions, warranties or representations associated with such use or interactions, are solely between you and such Third-Parties. You should make whatever investigation you feel necessary or appropriate before proceeding with any online or offline transaction involving Third-Parties or any Third-Party Goods and Services. You are solely responsible for, and shall exercise caution, discretion, common sense and judgment in, using the Service and disclosing personal information.

You agree that Biograph shall not be responsible or liable for any loss or damage of any sort incurred as the result of your use of any Third-Party Goods and Services or your interactions with any Third-Parties. In the event of any dispute between you and any Third-Party, any other User or any other entity or individual, you understand and agree that Biograph is under no obligation to become involved in such dispute, and you hereby release and indemnify Biograph, its affiliates and their respective contractors, and its directors, officers, employees, representatives, proprietors, partners, shareholders, servants, principals, agents, predecessors, successors, assigns, accountants, and attorneys (collectively, “Biograph Parties”) from any and all claims, demands and/or damages (actual or consequential) of every kind or nature, known or unknown, suspected and unsuspected, disclosed or undisclosed, arising out of or in any way related to such disputes or the Service or the features and services therein. If you are a California resident, you waive California Civil Code Section 1542, which states: “A general release does not extend to claims which the creditor 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.”

Certain of Biograph’s shareholders, directors, officers, employees or agents (collectively, “Biograph Owners and Personnel”) have a financial interest in the Medical Group and/or are also Providers, and may profit from your use of the Medical Group and its products and services. Biograph and certain Biograph Owners and Personnel may also have a financial interest in other Third-Parties, and/or may profit from the sale of Third-Party Goods and Services to you.

Termination

Biograph may terminate your use of the Service or any of our features or services at any time and for any reason without notice, including, for example, for conduct violating these Terms of Use, if our agreement with your Provider terminates or if we discontinue the Service. Upon any such termination, you must destroy all Content obtained from the Service and all copies thereof. The provisions of these Terms of Use concerning Service security, prohibited activities, copyrights, trademarks, user submissions, disclaimer, limitation of liability, indemnity and jurisdictional issues shall survive any such termination. You agree that if your use of the Service is terminated pursuant to these Terms of Use, you will not attempt to use the Service under any name, real or assumed, and further agree that if you violate this restriction after being terminated, you will indemnify and hold all Biograph Parties harmless from any and all liability that any such Biograph Parties may incur with respect thereto.

Except as otherwise provided in the Privacy Policy or as required by applicable law, we have no obligation, whether before or after the termination of your use of the Service, to return or otherwise provide to you or any third party on your behalf any Content, any information you provide to us, any information your Providers provided to us about or relating to you, or any other information that we may have that relates to you.

Disclaimers

Content and other information contained on the Service is provided by Biograph as a convenience. Users relying on Content or other information from the Service do so at their own risk.

THE SERVICE IS PROVIDED ON AN “AS IS” OR “AS AVAILABLE” BASIS. ANY ACCESS TO OR USE OF THE SERVICE IS VOLUNTARY AND AT THE SOLE RISK OF THE USER. BIOGRAPH TO THE FULLEST EXTENT PERMITTED BY LAW, DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTIES’ RIGHTS, SATISFACTORY QUALITY AND FITNESS FOR PARTICULAR PURPOSE WITH REGARD TO THE SERVICE, AND WITH RESPECT TO ANY INFORMATION, CONTENT, PRODUCT, SERVICE, MERCHANDISE OR OTHER MATERIAL PROVIDED ON OR THROUGH THE SERVICE OR THE PLATFORM (INCLUDING ANY CONSULTATIONS OR OTHER SERVICES YOU MAY RECEIVE FROM THE MEDICAL GROUP OR ITS PROVIDERS). BIOGRAPH DOES NOT WARRANT OR GUARANTEE THE ACCURACY, COMPLETENESS, RELIABILITY, TIMELINESS OR USEFULNESS OF THE SERVICE. BIOGRAPH DOES NOT WARRANT THAT THE SERVICE WILL FUNCTION WITHOUT DELAYS, DISRUPTIONS, INTERFERENCES, IMPERFECTIONS, OR ANY ADVERSE INCIDENT.

Limitation of Liability

IN NO EVENT SHALL BIOGRAPH BE LIABLE TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY DAMAGES (INCLUDING, WITHOUT LIMITATION, INCIDENTAL AND CONSEQUENTIAL DAMAGES, PERSONAL INJURY OR WRONGFUL DEATH, LOST PROFITS, OR DAMAGES RESULTING FROM LOST OR CORRUPTED DATA OR BUSINESS INTERRUPTION) RESULTING FROM THE USE OF OR INABILITY TO USE THE SERVICE, INCLUDING ANY INFORMATION MADE AVAILABLE THROUGH THE SERVICE OR ANY SERVICES PERFORMED BY THE MEDICAL GROUP OR ITS PROVIDER(S) (INCLUDING CLAIMS OF MEDICAL MALPRACTICE), WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT BIOGRAPH ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BIOGRAPH SHALL BE LIABLE ONLY TO THE EXTENT OF ACTUAL DAMAGES INCURRED BY YOU, NOT TO EXCEED U.S. $1,000.

BIOGRAPH SHALL NOT BE LIABLE FOR ANY PERSONAL INJURY, INCLUDING DEATH, CAUSED BY YOUR USE, MISUSE OR INABILITY TO USE THE PLATFORM, THE CONTENT OR THE SERVICE. ANY CLAIMS ARISING IN CONNECTION WITH YOUR USE OF THE PLATFORM, SERVICE OR CONTENT MUST BE BROUGHT WITHIN ONE (1) YEAR OF THE DATE OF THE EVENT GIVING RISE TO SUCH ACTION OCCURRED. YOU UNDERSTAND AND AGREE THAT YOUR USE OF THE PLATFORM, SERVICE OR CONTENT IS PREDICATED UPON YOUR WAIVER OF ANY RIGHT TO PARTICIPATE IN A CLASS ACTION SUIT FOR ANY LOSSES OR DAMAGES RESULTING FROM YOUR USE OF THE PLATFORM, SERVICE OR CONTENT.

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. TO THE EXTENT THAT WE MAY NOT DISCLAIM ANY IMPLIED WARRANTY OR LIMIT ITS LIABILITIES, THE SCOPE AND DURATION OF SUCH WARRANTY AND THE EXTENT OF OUR LIABILITY WILL BE THE MINIMUM PERMITTED UNDER APPLICABLE LAW.

Indemnification

You agree to defend, indemnify, and hold the Biograph Parties harmless from and against any and all suits, actions, claims, proceedings, damages, settlements, judgments, injuries, liabilities, obligations, losses, risks, costs, and expenses (including, without limitation, attorneys’ fees and litigation expenses) relating to or arising from the Service, your use of the Service, your fraud, violation of law, or willful misconduct, any breach by you of these Terms of Use or your violation of any rights of any other person or entity. We reserve the right to control the defense of any claim by a third-party for which we are entitled to indemnification, and you agree to provide us with such cooperation as is reasonably requested by us.

Notices

Any notices to you from Biograph regarding the Service or these Terms of Use may be made by email, a detailed posting notice on the Service, or regular mail, in the sole discretion of Biograph.

Electronic Communications

When you access or use the Service or send emails to us, the Medical Group or its Providers, you are communicating with us, the Medical Group and its Providers electronically. You consent to receive communications from us, the Medical Group and its Providers electronically. We will communicate with you via email or through the Service. You agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing. You further agree that any notices provided by us electronically are deemed to be given and received on the date we transmit any such electronic communication as described in these Terms of Use.

Entire Agreement

These Terms of Use and any other agreements Biograph may post on the Service or that you and Biograph may execute from to time constitute the entire agreement between Biograph and you in connection with your use of the Service and supersede any prior agreements between Biograph and you regarding use of the Service, including prior versions of these Terms of Use.

Binding Arbitration / Class Waiver

You and Biograph agree that all disputes, controversies and claims related to these Terms of Use, the Platform, the Content, any other part of the Service and/or any other item or service provided by Biograph (each a “Claim”), shall be finally and exclusively resolved by binding arbitration as described in this Section, which may be initiated by either party by sending a written notice requesting arbitration to the other party. Any election to arbitrate by one party shall be final and binding on the other.

YOU EXPRESSLY AGREES THAT ANY LEGAL CLAIM, DISPUTE OR OTHER CONTROVERSY BETWEEN YOU AND BIOGRAPH ARISING OUT OF OR OTHERWISE RELATING IN ANY WAY TO BIOGRAPH, THE PLATFORM, THE CONTENT OR ANY OTHER PART OF THE SERVICE, OR ANY OTHER BIOGRAPH GOODS OR SERVICES, INCLUDING CONTROVERSIES RELATING TO THE APPLICABILITY, ENFORCEABILITY OR VALIDITY OF ANY PROVISION OF THESE TERMS OF USE (COLLECTIVELY “DISPUTES”), SHALL BE RESOLVED IN CONFIDENTIAL BINDING ARBITRATION CONDUCTED BEFORE ONE COMMERCIAL ARBITRATOR FROM THE AMERICAN ARBITRATION ASSOCIATION (“AAA”), RATHER THAN IN A COURT, AS DESCRIBED HEREIN. THE ARBITRATION WILL BE GOVERNED BY THE AAA'S COMMERCIAL ARBITRATION RULES AND, IF THE ARBITRATOR DEEMS THEM APPLICABLE, THE SUPPLEMENTARY PROCEDURES FOR CONSUMER RELATED DISPUTES (COLLECTIVELY “RULES AND PROCEDURES”). YOU ACKNOWLEDGE THAT YOU ARE VOLUNTARILY AND KNOWINGLY FORFEITING YOUR RIGHT TO A TRIAL BY JURY AND TO OTHERWISE PROCEED IN A LAWSUIT IN STATE OR FEDERAL COURT.

Payment of arbitration costs will be governed by the AAA’s fee schedule, unless you are able to show that your portion will be prohibitive as compared to litigation costs, in which case Biograph will pay as much of your arbitration costs as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive as compared to litigation costs. Biograph also reserves the right in its sole and exclusive discretion to assume responsibility for all arbitration costs imposed by the AAA. Each party agrees to pay its own attorneys’ fees and expenses unless there is a governing statutory provision that requires the prevailing party to be paid attorneys’ fees and expenses.

The arbitration shall be conducted in San Francisco, California, except that, in the event San Francisco, California is not within 100 miles of your residence, the arbitration may be conducted within 100 miles of your residence, unless the parties agree otherwise in writing. The arbitrator’s award shall be final and binding on all parties and may be entered as a judgment in any court of competent jurisdiction.

For more information on AAA, its Rules and Procedures, and how to file an arbitration claim, you may call AAA at 800-778-7879 or visit the AAA website at www.adr.org.

Notwithstanding anything to the contrary herein, to the extent the Dispute arises from: (a) a violation of either party’s intellectual property rights in any manner; (b) any claim related to, or arising from, allegations of theft, piracy, unauthorized use or a violation of the Computer Fraud and Abuse Act; and/or (c) any claim for equitable relief; then you and Biograph agree that a party may seek injunctive remedies (or an equivalent type of urgent legal relief) in a state or federal court in San Francisco, California, and both parties consent to exclusive jurisdiction and venue in such courts. In addition to the foregoing, either party may assert an individual action in small claims court for Claims that are within the scope of such court’s jurisdiction in lieu of arbitration.

To the fullest extent permissible under applicable law, all Disputes shall be resolved by binding confidential arbitration on an individual basis. You expressly agree that no other Disputes shall be consolidated or joined with your Dispute, whether through class arbitration proceedings or otherwise.

THE PARTIES AGREE THAT THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE ARBITRATED ON A CLASS-ACTION BASIS OR TO UTILIZE CLASS ACTION PROCEDURES, THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY OR AS A PRIVATE ATTORNEY GENERAL, AND NO ARBITRATION SHALL BE JOINED WITH ANY OTHER ARBITRATION.

Governing Law; Venue; Severability of Provisions

This Service is controlled and operated by Biograph from our offices within California. Those who choose to access the Service from other locations do so on their own initiative and are responsible for compliance with local laws, if and to the extent applicable. Access to the Service from jurisdictions where the contents of the Service are illegal or penalized is prohibited.

The validity, interpretation, construction and performance of these Terms of Use will be governed by the laws of the State of California, without regard to any conflicts of law provisions.

All parts of these Terms of Use apply to the maximum extent permitted by law. Our failure to enforce any provision of these Terms of Use will not constitute a waiver of such right. We both agree that if we cannot enforce a part of this contract as written, then that part will be replaced with terms that most closely match the intent of the part we cannot enforce to the extent permitted by law. The invalidity of part of these Terms of Use will not affect the validity and enforceability of the remaining provisions. The section headings are for convenience and do not have any force or effect.

No Agency Relationship

Neither these Terms of Use, nor any Content, materials or features of the Service create any partnership, joint venture, employment, or other agency relationship between us and you.  You may not enter into any contract on our behalf or bind us in any way.

Remedies

You agree that any violation, or threatened violation, by you of these Terms of Use constitutes an unlawful and unfair business practice that will cause us irreparable and unquantifiable harm. You also agree that monetary damages would be inadequate for such harm and consent to our obtaining any injunctive or equitable relief that we deem necessary or appropriate. These remedies are in addition to any other remedies we may have at law or in equity.

Assignment

You may not assign any of your rights under these Terms of Use, and any such attempt will be null and void. Biograph may, in its sole discretion, transfer, without further consent or notification, all contractual rights and obligations pursuant to these Terms of Use to any affiliate of Biograph or to another third party in the event that some or all of the business of Biograph is transferred to such other third party by way of merger, sale of its assets or otherwise.

Third Party Beneficiaries

Any use of third-party software provided in connection with the Service, or any third-party product or service accessed or used in connection with the Service, will be governed by the applicable third-party’s license or terms of use, and not by these Terms of Use. In addition to these Terms of Use, your use of the Service must comply with all applicable third-party terms of agreement.

Except for the foregoing or as otherwise specifically set forth in these Terms of Use, including with respect to the indemnification obligations contained herein in favor of the Biograph Parties, we hereby expressly agree that there is no intent by either party to create or establish third-party beneficiary status rights or their equivalent in any other referenced individual, subcontractor or third party, including, without limitation, any Provider, and, except as specifically set forth in these Terms of Use, that no third party shall have any right to enforce any right or enjoy any benefit that is created or established under these Terms of Use.

Contacting Us

If you have any questions or concerns about these Terms of Use, please contact us at info@biograph.com. We will attempt to respond to your questions or concerns promptly after we receive them.

These Terms of Use were last updated on January 9, 2020.