Effective Date: March 9, 2022
Aifred Health Inc.
304-1600 RUE NOTRE-DAME O
MONTRÉAL QC H3J 1M1
These Terms are effective upon your acceptance, including by downloading our mobile application (the “Mobile App”), if applicable (the “Effective Date”) and continue in full force until terminated by either party in accordance with these Terms (the “Services Terms”).
Arbitration Notice – Not applicable to (1) consumers in the province of Québec, Canada; and (2) to study subjects participating in clinical trials conducted by the U.S. Department of Veterans Affairs (“VA”). This section is also not applicable to VA, the parties agree that the terms and conditions of any Cooperative Research and Development Agreement (“CRADA”) entered into by and between the U.S. Department of Veterans Affairs and Aifred control and supersede any terms listed in this section. To the full extent permitted by applicable laws, except for certain kinds of disputes described below under Section 20 you agree that disputes arising under these Terms will be resolved by binding, individual arbitration, and by accepting these Terms, you and Aifred each waive the right to a trial by jury or to participate in any class action or representative proceeding. You agree to give up your right to go to court to assert or defend your rights under these Terms (except for matters that may be taken to small claims court). Your rights will be determined by a neutral arbitrator in accordance and not a judge or jury.
“Admin” means an administrative user of a Health Institution which manages the Services, such as the configurations, parameters, user provisioning, and other administrative functionalities within the Services.
“Applicable Laws” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, other requirements or rule of law of any federal, provincial, territorial, local, or foreign government or political subdivision thereof, or any arbitrator, court, or tribunal of competent jurisdiction applicable to these Terms, including the performance of the Services.
“Beta Services” means the Services provided to you as part of a Clinical Study, or otherwise indicated as beta, trial, early access or early testing.
“Clinicians means a health professional who is authorized to use the Services based on a service agreement with us.
“Clinical Study” means the use of our Services as part of clinical studies, such as those which seek to analyze the performance of our Services or the compliance of our Services against regulatory requirements, and which are carried to term with Clinicians (as defined below).
"Confidential Information" means all information, regardless of format, disclosed by a Party (the "Disclosing Party") to the other Party (the "Receiving Party"), whether directly or indirectly, of a business, financial, scientific, or technical nature, and includes, without limitation, all information relating to technologies, designs, inventions, concepts, methods, processes, techniques, know-how, trade secrets, creative works, patents or patent applications, models, drawings, data, prototypes, blueprints, business plans, pending projects, plans, studies, research and development, customer lists, customer information, vendor lists, financial statements, strategy, marketing and development plans, information relating to prices, costs and profits, information relating to current, future or eventual agreements, as well as any other information that a reasonable business person would regard as confidential. Confidential Information shall also include all documents prepared by the Receiving Party which contain, reflect or are based upon, in whole or in part, Confidential Information. Without limiting the generality of the foregoing, our Confidential Information includes the Services and any underlying technologies.
“End Users” means, for the avoidance of doubts, any End Users, regardless of whether this End User is an Admin, a Clinician, a Patient, or a combination of the foregoing. However, if an End User is more than one type of End Users, then this End User has to comply with all provisions within these Terms applicable to the types of End Users applicable.
“Health Institution” means an entity who has entered into an agreement with us to provide you with our Services, including as part of the Beta Services. Clinicians are associated or partner with Health Institutions, or may have single professional practices. A Health Institution includes hospitals, clinics, and professional practices, even for solo practitioners.
“Intellectual Property” means any and all intellectual property, including without limitation, works, inventions (whether patentable or not), discoveries, improvements, trade secrets, know-how, scientific formulae, data, information, images, reports, results, analysis, software, models, research and development information, technical information, prototypes, specifications, patterns, drawings, algorithms, products, compositions, processes and protocols, methods, tests, devices, computer programs, trademarks and any and all proprietary rights provided under patent law, copyright law, trademark law, design patent or industrial design law, semiconductor chip or mask work law, or any other statutory provision or civil or common law principles applicable to the protection of intangible proprietary information or rights, including trade secret law, which may provide a right in any of the foregoing as well as any and all Mobile Apps, registrations or other evidence of a right in any of the foregoing.
“Intended Purposes” means for the purpose of collecting health and wellness information about Patients (or to provide such information) in the context of a professional relationship with a Clinician to create, maintain and adjust a treatment plan for depression symptoms, or other health and wellness conditions as we decide to add to the Services from time to time, in the United States or Canada, where the Services are subject to appropriate regulatory authorizations, in accordance with these Terms and Applicable Laws.
“Patients” means any End User invited by a Health Institution (including a Clinician or an Admin) to access and use the Services for the Intended Purposes.
“Services” means our Mobile App, our web application, and any related services, such as technical support, and any user-facing interfaces, services, and functionalities which are provided by Aifred.
You are provided with access to the Services on the conditions set forth in these Terms. You represent and warrant that (a) if you are a Patient, you have been invited to access the Services in accordance with these Terms; (b) you will not use and access the Services as an emergency communication channel; (c) you are at least 14 years old, and (d) you have not previously been suspended or removed from the Services. You agree and understand that our Services may not be available in all languages or regions.
You agree that End Users’ accounts are provisioned and managed by Health Institutions. Admins may personalize the Services, including by requesting different data points or information from Patients, or by removing or suspending accesses to End Users. We are not responsible for how Health Institutions decide to manage the Services. Please reach out to your Clinician for additional questions.
When you register to use our Services, you will be provided with a unique code to retrieve your account in case that you lose access to your account. It is your responsibility to keep this code, and any passwords, confidential. If you lose this code or if your password is compromised by your fault, we will not be responsible. You are responsible for any actions performed in your account. If you believe your account is no longer secure, please reach out to us by email at email@example.com or by phone at [1-855-339-6888].
Subject to your complete and ongoing compliance with these Terms, Aifred grants you, for the Services Term, solely for your personal or professional use for the Intended Purposes, a limited, non-exclusive, non-transferable, non-sublicensable and revocable license to: (a) install and use one object code copy of the Mobile App associated with the Services obtained from a legitimate marketplace on a mobile device that you own or control (or that is owned or controlled by a Health Institution) (the “Mobile App Licence”) and (b) access and use the Services.
You agree and understand that the Beta Services are still in development.
· The Beta Services may contain bugs, errors and security issues.
· Certain Beta Services may require the processing of personal data to leverage predictive algorithms which may be in training or in development. Beta Services can use algorithms in training which may still contain bias and inaccuracies.
· Certain functionalities may not be fully available, or unusual performance issues, such as delay loading certain pages, may occur.
If we provide you with access to our Beta Services, you agree that your use of the Beta Services, and access to such Beta Services, does not allow you to release any material associated with the Beta Services publicly. The Beta Services are our Confidential Information unless we indicate otherwise.
Not applicable to (1) consumers in the province of Québec, Canada; and (2) study subjects participating in clinical trials conducted by VA. This section is also not applicable to VA, the parties agree that the terms and conditions of any CRADA entered into by and between VA and Aifred control and supersede any terms listed in this section.
To the full extent permitted under Applicable Laws, and notwithstanding anything to the contrary herein, as between the End User and Aifred, you agree and understand that we have no liability whatsoever resulting from your use of the Beta Services. We disclaim any and all representations and warranties applicable to Beta Services, including regarding reliability, fitness for use, merchantability, title and infringement.
The section below is not applicable to (1) consumers in the province of Québec, Canada; and (2) study subjects participating in clinical trials conducted by VA. This section is also not applicable to VA, the parties agree that the terms and conditions of any CRADA entered into by and between VA and Aifred control and supersede any terms listed in this section.
Health Institutions can invite Patients to the Services by e-mail, including by sharing personal data with us. You represent and warrant that you have obtained the consents necessary to share such personal data with us, or that you are authorized to do so under Applicable Laws. If you breach this warranty, you agree that you will indemnify, defend and hold us harmless from any third party claims, damages, allegations, losses, expenses and costs, including reasonable attorney’s costs (the “Losses”) resulting from this breach of the Terms.
Clinicians are solely responsible for ensuring that the Services are adequate for their medical and professional obligations, and for the treatments required by the Patients. The Services are intended to support your choices and management of treatments for Patients by providing you with information on Patients. The Services are not intended to replace medical judgment and opinions, and the Clinician is solely responsible for:
· Determining which Patient should be invited to use the Services given their health and wellness conditions.
· Ensuring that Patients have provided adequate consents for the use of our Services as part of their treatments, including for predictive algorithms, where applicable.
· Providing transparency notices describing how the Patient’s personal data is processed by the Clinician and responding to any Patients’ requests regarding their personal data, such as requests for modifying such personal data.
· Determining which clinical surveys, questionnaires or scales (the “Clinical Surveys”) are appropriate for a Patient, including by determining the frequency at which a Patient should complete a Medical Survey.
· Validating that the Clinical Surveys are adapted for use given generally accepted medical practices, scientific evolution and technological development.
· Interpreting the results of any Clinical Surveys and ensuring follow-ups and subsequent actions when reviewing the results of the Clinical Surveys.
· Determining the appropriate treatment to address Patients’ depression symptoms and other medical and psychological situations and following up on such treatments to ensure that they remain appropriate over time.
· Making any professional determination or analysis regarding the drugs taken by the Patient, including by determining if such drugs are appropriate, where applicable.
YOU AGREE AND UNDERSTAND THAT THE SERVICES MAY NOT BE USED AS MEDICAL RECORDS. THE INFORMATION AVAILABLE WITHIN THE SERVICES MAY BE DELETED, MODIFIED OR UNAVAILABLE AT ANY MOMENT. AIFRED HAS NO LIABILITY WHATSOEVER RESULTING FROM LOSSES OF DATA OR MEDICAL INFORMATION, INCLUDING FOR THE UNAVAILABILITY OF SUCH PATIENT INFORMATION. YOU ARE SOLELY RESPONSIBLE FOR EXTRACTING AND SAFEGUARDING ANY INFORMATION OF MEDICAL VALUE.
Our Services may include the use of artificial intelligence, such as machine learning algorithms, which process Patients’ responses to Clinical Surveys’ results, along with other attributes relating to Patients (the “AI Capabilities”). The Clinician is solely responsible for determining if the AI Capabilities are appropriate, and for providing more information to the Patient on the use of the AI Capabilities as part of the Patient’s treatment.
The AI Capabilities are only available for supporting Clinicians’ decision making and professional analysis. We are not liable for any decisions, interpretations, treatments or otherwise for any determination which a Clinician makes based on the outputs of our AI Capabilities. It is strictly forbidden to use our AI Capabilities for automated decision making, to replace professional judgments, or otherwise in violation of the Intended Purposes.
You agree and understand that AI Capabilities may not be objective, and are entirely dependent on the quality, accuracy, completeness, and reliability of the information which is provided as part of the Services. While we deploy efforts to avoid any bias and discrimination, predictive algorithms are trained on datasets which may contain known or unknown biases.
The Clinician agrees and understands that the Services contain functionalities allowing Patients to control how their personal data is collected, used and disclosed to third parties, including Clinicians. Patients also have the right to withdraw their consent to the use of the Services as part of their treatments, and to request that we delete their accounts. If Patients decide to exercise their rights regarding their personal data, we may have to comply with such requests under Applicable Laws. If the Clinician believes that the Patient’s settings within the Services are not appropriate for the treatment, or that the Patient’s use of the Services is not appropriate for the intended outcomes, the Clinician is solely responsible for making adjustments to the treatment. Aifred is authorized to respond to any request by Patient regarding their personal data, including modification and deletion, if required under Applicable Laws. If Patients do not consent to the use of the Services for processing their personal data, then the Clinician will not use the Services for this purpose.
The Services include messaging capabilities between the Clinician and the Patient. The Clinician may not receive a notification that a message has been received, and Aifred does not warrant the reliability of the communications for high-risk activities, such as for emergency communications. If you have a medical emergency, or if you need to communicate important information to your Clinician or a Patient, you are required to use usual means of communication, such as secure e-mails and phone lines for emergencies.
IT IS YOUR RESPONSIBILITY, AS THE PATIENT, TO SEEK THE ADVICE OF QUALIFIED HEALTH CARE PROFESSIONALS FOR ANY QUESTIONS OR CONCERNS THAT YOU MAY HAVE REGARDING ANY MEDICAL OR MENTAL HEALTH ISSUES. DO NOT DISREGARD PROFESSIONAL MEDICAL ADVICE OR DELAY IN SEEKING IT BECAUSE OF SOMETHING YOU HAVE READ OR SEEN AS PART OF OUR SERVICES. THE SERVICES ARE NOT INTENDED TO REPLACE MEDICAL AND PROFESSIONAL ADVICE.
By using the Services, you agree not to: (a) use the Services for any illegal purposes or in violation of applicable laws; (b) harass, threaten, demean, embarrass or otherwise harm any other user of the Services; (c) violate, or encourage others to violate, any right of a third party, including by infringing Patients’ rights to privacy or misappropriate the intellectual property of another party; (d) interfering with security-related features of the Services, including by disabling or circumventing features that prevent or limit use or copying of any content or by reverse engineering or otherwise by attempting to discover the source code of any portion of the Services except to the extent that the activity is expressly permitted by applicable law; (e) interfere with the operation of the Services or any users’ enjoyment of the Services, including by (i) uploading or otherwise disseminating any virus, adware, spyware, worm, or other malicious code; (ii) making any unsolicited offer or advertisement to another user of the Services; (iii) collecting personal information about another user or third party without being authorized to do so under applicable laws; (f) perform any fraudulent activity including impersonating any person or entity, claiming a false affiliation, accessing any other service account without permission, or falsifying your age or date of birth; (g) sell or otherwise transfer the accessed granted to you under these Terms, unless permitted under an agreement between Aifred and your institution; (h) attempt to do any of the foregoing acts, assist or permit any person in engaging in any of the foregoing facts.
This section below is not applicable to study subjects participating in clinical trials conducted by VA. This section is not applicable to VA, the parties agree that the terms and conditions of any CRADA entered into by and between VA and Aifred control and supersede any terms listed in this section.
You grant Aifred a worldwide, non-exclusive, irrevocable, royalty-free, fully paid right and license (with the right to sublicense) to host, store, transfer, display, perform, reproduce, modify and use the User Content (a) to provide you with the Services; (b) to comply with Applicable Laws; (c) for the Intended Purposes and (d) to create de-identified and aggregated data which do not specifically identify you (the “Aggregated Data”). Notwithstanding anything to the contrary, we own all right, title and interest in the Aggregated Data, including any derivative works thereof.
You agree and understand that we do not control the User Content which End Users upload to the Services, including the accuracy, reliability, completeness, and integrity of the User Content, or the consequences thereof. To the full extent permitted under Applicable Laws, we disclaim any and all liability regarding User Content.
If you provide us with any User Content, you represent and warrant that (a) you are the creator and owner of the user data, or that you have the necessary licenses, rights, consents, and permissions to authorize Aifred and the other End Users of the Services to use, distribute, modify, reproduce, translate, aggregate, and copy the User Content as intended herein; (b) the User Content and the use of the User Content contemplated under these Terms, does not and will not (i) infringe, violate, or misappropriate any third party Intellectual Property; (ii) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person, or (ii) cause Aifred to violate Applicable Laws; (c) your user data will not be deemed by a reasonable person to be objectionable, profane, indecent, pornographic, harassing, threatening, embarrassing, hateful, or otherwise inappropriate given the intended uses of the Services.
This section is not applicable to VA, the parties agree that the terms and conditions of any CRADA entered into by and between VA and Aifred control and supersede any terms listed in this section.
All rights, title, and interests in and to the Services (including the Mobile App, the Aggregated Data, the AI Capabilities and any underlying technologies) are and will remain the exclusive property of Aifred and its licensors. Except as expressly permitted by these Terms, or as required for the Intended Purposes, you may not make any derivative works of our Intellectual Property, including the Services, our Mobile Apps, and AI Capabilities. The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services, and all other elements of the Services provided by Aifred are our Intellectual Property. We reserve all rights not granted herein.
If you provide us with any feedback, suggestion or recommendations regarding our Services (the “Feedback”), you agree that we own all rights, title and interests into such Feedback. You hereby waive any moral rights into such Feedback, or where not permitted under applicable laws, you hereby assign your moral rights into such Feedback to Aifred, and Aifred accepts the receipt of such moral rights in the Feedback.
You agree that our Services, and the personal data of other End Users (in particular Patients’ files) are Confidential Information. You agree not to disclose or use this Confidential Information except as required for the Intended Purposes, including to perform the Services
This section is not applicable to (1) consumers in the province of Québec, Canada; and (2) study subjects participating in clinical trials conducted by VA. This section is not applicable to the VA. The terms and conditions of any CRADA entered into by and between VA and Aifred shall supersede any terms listed in this section.
YOU AGREE TO DEFEND, INDEMNIFY, AND HOLD HARMLESS AIFRED, ITS AFFILIATES, SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS AND OTHER REPRESENTATIVES, FROM AND AGAINST ANY LOSSES ARISING OUT OF WITH MATERIAL BREACH OF ANY FUNDAMENTAL OBLIGATION UNDER THESE TERMS, INCLUDING, IN PARTICULAR, THE USE OF THE SERVICES FOR PURPOSES OTHER THAN THE PERMITTED PURPOSES, A BREACH OF CLINICIANS’ OBLIGATIONS OR A BREACH OF OUR ACCEPTABLE USE POLICY.
This section is not applicable to study subjects participating in clinical trials conducted by VA. This section is not applicable to VA. The terms and conditions of any CRADA entered into by and between VA and Aifred shall supersede any terms listed in this section.
We can amend these Terms, in whole or in part, at any time. We will inform you of any material changes at least 30 days before they enter into effect. These changes will be applicable if you continue to use the Services after we modify the Terms and provided you with a notice, or if you accept them by downloading a new release or versions of the Mobile App. You can terminate your use of the Services at any time. We may make immaterial modifications in the Terms from time to time, in which cases, and unless we are prevented to do so under applicable laws, these modifications are effective upon publication.
If you do not agree the modifications, you can uninstall the Mobile App, and reach out to us at firstname.lastname@example.org to request the suppression of your account. You can also reach out to your Clinician to make this request.
Our Services may contain access to other websites, Mobile Apps, services, and products which are not covered by these Terms (the “External Services”). They are not part of our Services, and they are subject to other terms and conditions to which you must agree to. We provide you wich access to this content for your convenience, but you are responsible for verifying that you agree with the terms and conditions thereof. You understand that we have no control over this third-party content and we are not liable for it. You agree that our Customers may also include integration partners, such as through a Mobile App programming interface (“API”), and that such integration partners are also third-party services which are not included in our Services. We disclaim all liability regarding the External Services.
You agree and understand that these Terms, including this Section 15 is between you and Aifred, and not with Apple or any other App Store or marketplace from which you purchased or downloaded the Mobile App from (each a “Marketplace”). The Marketplace has additional terms and conditions which may apply to your purchase or use of the Mobile App (the “Usage Rules”). When you use our Mobile App, you represent and warrant that you will comply with any third-party terms and conditions applicable to your use of the Mobile App, such as those of Marketplace, internet service providers and cellular providers, and including the Usage Rules. If our Terms are in conflict with those of the Usage Rules, then the Usage Rules will prevail and these Terms will apply to the full extent possible under the Usage Rules.
We are solely responsible for our Services and the content thereof.
The additional notices and conditions below are applicable to your use of the Mobile App:
a) We may issue updates, new releases or upgrades for our Mobile App from time to time (the “Updates”). Updates are provided at our sole discretion or as required by Applicable Laws, and may include bug fixes, security updates, new features and enhancements to existing features. If we provide you with an Update, it is your responsibility to update your Mobile App. We may not support previous versions of our Mobile App, and we have no liability or responsibility for supporting and maintaining them, including for security patches. It’s important that you install the Updates to ensure that you are using a secured version of our Mobile App.
b) You agree that we are solely responsible for providing any maintenance and support services with respect to the Mobile App, in accordance with these Terms or Applicable Laws. Marketplaces are not responsible for the maintenance and support of our Services.
c) We are solely responsible for any warranties set forth in these Terms, whether express or implied by law, to the extent not effectively disclaimed. To the maximum extent permitted by Applicable Laws, the Marketplaces will have no other warranty obligation whatsoever with respect to the Mobile App, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty is our sole responsibility.
d) You acknowledge that we, and not the Marketplaces, are responsible for addressing any claims by you or third parties relating to the Mobile App, or your possession or use, including, but not limited to: (a) product liability claims; (b) any claim that the Mobile App fails to conform to any applicable legal or regulatory requirement; and (c) claims arising under consumer protection, privacy, or similar legislation.
e) The terms and conditions of any CRADA entered into by and between VA and Aifred shall supersede any terms listed in this section. This section is not applicable to the U.S. Department of Veterans Affairs. In the event of any third-party claim that the Mobile App or your possession and use of the Mobile App infringes a third party’s Intellectual Property, we, and not the Marketplaces, will be solely responsible for the investigation, defence, settlement and discharge of any such claim.
f) You represent and warrant that (a) 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 (b) you are not listed on any U.S. Government list of prohibited or restricted parties.
This section is not applicable to study subjects participating in clinical trials conducted by VA. This section is not applicable VA. The terms and conditions of any CRADA entered into by and between VA and Aifred shall supersede any terms listed in this section.
This Section 17 is not applicable to (1) consumers in the province of Québec, Canada; and (2) to study subjects participating in clinical trials conducted by VA. This section is not applicable to VA. The terms and conditions of any CRADA entered into by and between VA and Aifred shall supersede any terms listed in this section.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAWS AND EXCEPT AS SET FORTH IN THESE TERMS, AIFRED DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, SECURED, OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES. EXCEPT AS PROVIDED IN THESE TERMS, THE SERVICES ARE PROVIDED "AS IS", “AS AVAILABLE” AND “WHERE IS”. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, YOU AGREE THAT THE SERVICES ARE PROVIDED TO YOU WITHOUT ANY REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER IMPLIED, EXPRESS OR STATUTORY AND WE HEREBY DISCLAIM ANY AND ALL WARRANTIES, INCLUDING, WITHOUT LIMITATION, FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, TITLE AND NON-INFRINGEMENT. YOU AGREE TO WAIVE AND DISCLAIM ANY SUCH WARRANTIES.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAWS, AND EXCEPT AS SET FORTH IN THESE TERMS, WE ARE NOT RESPONSIBLE OR LIABLE FOR THE ACCURACY, INTEGRITY, COMPLETENESS OR RELIABILITY OF ANY DATA INPUTS IN THE SERVICES. WE ARE NOT RESPONSIBLE FOR ANY DECISION THAT YOU MAKE BASED ON YOUR USE OF THE SERVICES. WE HAVE NO LIABILITY WHATSOEVER FOR LOST OF CONFIDENTIALITY CAUSED BY END USERS’ LOSS OF THEIR CREDENTIALS, POOR PASSWORD PRACTICES AND NEGLIGENCE.
YOU AGREE TO INDEMNIFY AND HOLD US HARMLESS FROM ANY DAMAGES RESULTING FROM YOUR BREACH OF THESE TERMS, INCLUDING, WITHOUT LIMITATION, ANY REASONABLE ATTORNEY COSTS AND EXPENSES.
This Section 18 is not applicable to (1) consumers in the province of Québec, Canada; and (2) to study subjects participating in clinical trials conducted by VA. This section is not applicable to VA. The terms and conditions of any CRADA entered into by and between VA and Aifred shall supersede any terms listed in this section.
TO THE FULL EXTENT ALLOWED BY APPLICABLE LAWS, WE ARE NOT RESPONSIBLE FOR ANY INDIRECT, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, WHETHER BASED IN CONTRACT, DELICT OR TORT (INCLUDING NEGLIGENCE) OR STRICT LIABILITY, AND NEITHER ARE OUR LICENSORS, EMPLOYEES, DEVELOPERS, DIRECTORS OR ADMINISTRATORS. FOR THE AVOIDANCE OF DOUBTS, THE FOREGOING SHALL INCLUDE LOSS OF REVENUE OR PROFITS, LOSS OF BUSINESS OR GOODWILL, LOSS OR CORRUPTION OF, OR UNAUTHORIZED ACCESS TO, OR DISCLOSURE OF INFORMATION OR DATA OR OTHER FINANCIAL LOSS ARISING OUT OF OR IN CONNECTION WITH THE USE, PERFORMANCE, FAILURE OR INTERRUPTION OF THE SERVICES, WHETHER FORESEEABLE OR NOT. SUCH LIMITATIONS SHALL FIND APPLICATION EVEN IF ANY REMEDY HEREIN SHALL FAIL ITS ESSENTIAL PURPOSE, AND EVEN IF YOU HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. AS BETWEEN AIFRED AND END USERS, OUR MAXIMUM AGGREGATED LIABILITY TO YOU FOR ANY OTHER DAMAGES IS LIMITED TO TWENTY DOLLARS ($20).
Aifred will not be held liable for delays in or failure of performance hereunder due to causes beyond its reasonable control, including, cyberattacks, epidemic, pandemic (including any additional consequences or situations arising from the outbreak of coronavirus COVID-19), acts of God or public enemy, acts of government in either its sovereign or contractual capacity, flood, earthquake, and civil disobedience.
EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 18 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
The terms and conditions of any CRADA entered into by and between VA and Aifred shall supersede any terms listed in this section. This section is not applicable to VA.
We may terminate your right to use the Services at any time, with or without notice to you, in accordance with our obligations towards our Customers. If you are in breach of these Terms, we may also suspend your access and use of the Services for as long as we deem necessary, unless we are prevented to do so by an agreement with a Health Institution. Sections 11, 12, 14 ,17, 18, 20, 21 and 22 will survive the Service Term.
This Section 20 is not applicable to consumers in the province of Québec, Canada, and is only applicable to the full extent permitted by Applicable Laws. If this Section 20 is not applicable under Applicable Laws, Section 21 applies by default, unless this Section 21 is not applicable.
This section is not applicable to study subjects participating in clinical trials conducted by VA. This section is not applicable to VA. The terms and conditions of any CRADA entered into by and between VA and Aifred shall supersede any terms listed in this section.
Generally. In the interest of resolving disputes between you and Aifred in the most expedient and cost-effective manner, and except as described below, you and Aifred agree that every dispute arising in connection with these Terms will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief than a court can award. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND AIFRED ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
Exceptions. Despite the foregoing, nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, provincial, or local agency if that action is available; (c) seek injunctive relief in a court of law in aid of arbitration; or (d) file suit in a court of law to address an intellectual property infringement claim.
Opt-Out. If you do not wish to resolve disputes by binding arbitration, you may opt-out of the provisions of this Section 20 within 30 days after the date that you agree to these Terms by providing a notification to this effect to Aifred at the address or e-mail address set forth above, stating that you would like to opt-out of arbitration (the “Opt-Out Notice”). Once we receive this notice, this Section 20 will not be applicable to you, and any actions arising out of these Terms will be resolved in courts as set forth under Section 21.
Arbitrator. Any arbitration between you and Aifred will be settled under the Arbitration Rules of the ADR Institute of Canada, Inc. (“ADRIC”), under a sole arbitrator chosen by Aifred. You will have 10 days to object to the choice of arbitrator, and select a different arbitrator. The arbitration will occur in (a) Montreal, Québec, Canada; (b) through online dispute resolution services or (c) in your jurisdiction, if Applicable Laws do not allow another choice of jurisdiction. Aifred will reimburse you for the fees associated with the arbitration if (a) your claims is of less than $10,000 and (b) your claim is granted by the arbitrator, and a decision is rendered against Aifred.
No Class Actions. YOU AND AIFRED AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both of you and Aifred agree otherwise, the arbitrator may not consolidate more than one person’s claims and may not otherwise preside over any form of a representative or class proceeding.
Modifications to this Arbitration Provision. If Aifred makes any future change to this arbitration provision, you may reject the change by sending us written notice within 30 days of the change in which case your account with Aifred will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected, will survive.
Enforceability. If this Section is found to be unenforceable, or if Aifred receives an Opt-Out Notice from you, then the entirety of this Section 20 will be null and void and, in that case, exclusive jurisdiction and venue described in Section 13 will govern any action arising out of or related to these Terms.
This Section 21 is not applicable to (1) consumers in the province of Québec, Canada; and (2) to study subjects participating in clinical trials conducted by VA. This section is not applicable to VA. The terms and conditions of any CRADA entered into by and between VA and Aifred shall supersede any terms listed in this section.
To the extent permitted by Applicable Laws, these Terms shall be governed by and construed by the laws of the Province of Québec, Canada and the laws of Canada applicable therein. Except as set forth herein, the parties hereby submit and attorn to the jurisdiction of the Courts of the district of Montreal, Province of Québec. You agree to renunciate irrevocably to your rights to participate in a class action lawsuit against Aifred, or to a trial with a jury against Aifred, and, for the avoidance of doubts, to submit any lawsuits or claims individually.
This paragraph is not applicable to consumers in the province of Québec, Canada. This section is not applicable to VA. The terms and conditions of any CRADA entered into by and between VA and Aifred shall supersede any terms listed in this section.
If a provision of these Terms is held by a court of competent jurisdiction to be contrary to the law, inapplicable or excessive, such provision shall be changed and interpreted to best accomplish the objectives of the original provision to the fullest extent allowed by law and the remaining provisions of these Terms shall remain in full force and effect. No waiver of any provisions of these Terms o shall be effective unless agreed to in writing.
You may not assign, transfer, delegate or sub-license any of its rights or obligations hereunder (whether by operation of law or otherwise) without our prior consent. We may assign, transfer, delegate or sub-license these Terms or any parts thereof without your consent and with or without notice to you. Any unauthorized assignment, transfer, delegation or sub-license shall be considered null and void. These Terms describe the entire understanding and agreement between you and us, and supersedes all oral and written agreements or understandings we might have had regarding the subject matter of these Terms.