Last Updated: June 20th, 2019
These DermEngine Terms of Service (the “Agreement”) sets forth the terms and conditions that apply to your access and use of the internet website located at https://www.dermengine.com and the DermEngine mobile software application (collectively, the “Site”), each owned and operated by MetaOptima Technology Inc. (“MetaOptima”, “we”, “our” or “us”), and the services available thereon, including without limitation the services that are described below (the “Services”).
BY ACCESSING OR USING THE SITE OR SERVICES YOU ARE INDICATING YOUR ACCEPTANCE TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT ACCEPT THIS AGREEMENT, YOU MUST NOT ACCESS OR USE THE SITE OR SERVICES. IF YOU ARE DISSATISFIED WITH THIS AGREEMENT OR ANY RULES, POLICIES, GUIDELINES OR PRACTICES APPLICABLE TO THE SITE OR SERVICES, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE SITE AND SERVICES.
THE SERVICES ARE NOT AND SHALL NOT BE CONSTRUED AS MEDICAL ADVICE OR HEALTHCARE SERVICES. WHILE THE SERVICES CONNECT PATIENTS AND HEALTH PROFESSIONALS (AS DEFINED BELOW) WITH ONE ANOTHER, THE HEALTH PROFESSIONALS ARE SOLELY RESPONSIBLE FOR AND HAVE COMPLETE CONTROL, AUTHORITY AND SUPERVISION OVER ALL HEALTHCARE SERVICES PROVIDED TO PATIENTS ON THE SITE AND SERVICES, INCLUDING BUT NOT LIMITED TO MEDICAL ADVICE, DIAGNOSIS, TREATMENT AND ANY MEDICAL PROCEDURES PERFORMED. METAOPTIMA DOES NOT SUPERVISE OR HAVE ANY CONTROL OVER THE PROVISION OF HEALTH CARE SERVICES BY THE HEALTH PROFESSIONALS, THE MATERIALS, TOOLS OR METHODS USED BY A HEALTH PROFESSIONAL, THE TREATMENT PROVIDED BY A HEALTH PROFESSIONAL OR THE CONDUCT OF A HEALTH PROFESSIONAL. AS A HEALTH PROFESSIONAL, IT IS UP TO YOU TO OBTAIN FROM A PATIENT ANY OF PATIENT’S UP-TO-DATE MEDICAL RECORDS WHICH MAY BE REQUIRED IN CONNECTION WITH YOUR PERFORMANCE OF HEALTHCARE SERVICES. NEITHER METAOPTIMA NOR ITS AFFILIATES SHALL BE HELD LIABLE FOR ANY MEDICAL ADVICE OR HEALTHCARE SERVICES PROVIDED BY YOU.
IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” WILL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
By accepting this Agreement, you agree to be bound by the terms and conditions of this Agreement, as well as MetaOptima’s Privacy Policy located at metaoptima.com (the “Privacy Policy”), as it may be amended from time to time in the future.
MetaOptima may update this Agreement or the Privacy Policy at any time by providing notification to you through the Site or Services, and such revisions shall take effect upon your next use of the Site or Services.. Your continued use of the Site and/or Services will be deemed irrevocable acceptance of any such revisions. Before you continue, you should print or save a local copy of this Agreement and the Privacy Policy for your records.
The Services
Amongst other things, the Services facilitate:
The Services also includes MetaOptima’s Visual Search service (the “Visual Search Service”), which utilizes advanced deep learning algorithms to retrieve visually similar images to your current Patient case from a bank of thousands of pathology-labeled dermoscopic images, and provides you with statistics relating to the top diagnoses and risk of malignancy of these similar images. If you access or use the Visual Search Service, you agree to the Visual Search Terms and Conditions included in this Agreement below.
The Site is intended to be used solely by Health Professionals.
Smart Features/Artificial Intelligence
When reviewing patients’ cases, you have the opportunity to utilize tools powered by artificial intelligence to support clinical decisions for an enhanced level of care. In order for DermEngine’s algorithms to become “smarter” over time to fulfill this mission of improved care, they must be continuously trained. To support this intrinsic need, every time a doctor uses one of our artificial intelligence-powered tools the system has the opportunity to “learn” and become better for you and other patients around the world. Any images and data used for these algorithms have been de-identified, which means that all identifiable information such as name, date of birth, health ID number, email have been removed.
If a patient does not wish to have the DermEngine system use their de-identified information to tailor its features and enhance smart tools that may be used by medical professionals, they have the opportunity to opt out at any time. In that case, smart features can be disabled and users will not have access to these services.
It is the responsibility of the medical professional to explain to the patient that their data is de-identified and that the algorithms are trained automatically to ensure all information remains anonymous and secure. No employees or third parties having any access to the patients’ data at any point of the learning process. When given the opportunity to learn, DermEngine’s algorithms have the capacity to continuously improve over time to help other patients and doctors around the world for enhanced care outcomes.
If a patient reconsiders their choice, they can opt back in and allow DermEngine users to access the platform's smart features. It is the sole discretion of your patients to opt out and/or in, and as a result you agree that this may dictate your access to the extent of use for DermEngine's intelligent tools.
Ability to Enter into this Agreement
In order to enter into this Agreement, you must have reached the legal age of majority in your jurisdiction of residence, and be fully able and competent to enter into the terms, conditions, obligations, affirmations, representations and warranties set forth in this Agreement, and to abide by and comply with this Agreement. It is your responsibility to ensure that you are legally eligible to enter into this Agreement under any laws applicable to you. If you accept this Agreement, you represent that you have the capacity to be bound by it.
Representations and Warranties
You hereby represent, warrant and covenant to MetaOptima that you are licensed or accredited by the applicable regulatory authority in the province, territory, state or country where you practice to practice and provide Diagnostic Services and any other healthcare services and medical advice that you provide through or in connection with the Site or Services.
Intellectual Property Rights
All material available on the Site and all material and services provided by or through MetaOptima, its affiliates, subsidiaries, employees, agents, licensors or other commercial partners including, but not limited to, software, all informational text, software documentation, design of and “look and feel”, layout, photographs, graphics, audio, video, messages, interactive and instant messaging, design and functions, files, documents, images, or other materials, whether publicly posted or privately transmitted as well as all derivative works thereof (collectively, the “Materials”), are owned by us or our licensors or service providers, and are protected by copyright, trademark, trade secret and other intellectual property laws.
Subject to your compliance with all of the terms and conditions of this Agreement, during the term of this Agreement, MetaOptima grants to you a non-transferable, non-sublicensable, non-exclusive, revocable, limited-purpose right to access and use the Materials that we make available to you. You are not permitted to download, copy or otherwise store any Materials.
If MetaOptima, in its sole discretion and without notice, considers that there is an immediate security or operational risk to the Services or any of its, your or a third party system, then MetaOptima may immediately suspend access to or use of the Services. The suspension of use and access is not a breach of this Agreement. You acknowledge that the preservation of security, confidentiality and data is paramount. MetaOptima has no liability to you for suspending the Services under this provision.
This section does not apply to Content; however you agree that any ideas, suggestions, concepts, processes or techniques which you provide to MetaOptima related to the Services, the Site or MetaOptima or its business (“Feedback”) are and will be MetaOptima’s exclusive property without any compensation or other consideration payable to you by MetaOptima, and you do so of your own free will and volition. MetaOptima may or may not, in its sole discretion, use or incorporate the Feedback in whatever form or derivative MetaOptima may decide into the Site, the Services, its software, services, documentation, business or other products or services, or any future versions or derivatives of the foregoing. You hereby assign all rights on a worldwide basis in perpetuity to MetaOptima in any Feedback and, as applicable, waive any moral rights.
For the purposes of this Agreement and the Privacy Policy, “personal information” is any information about an identifiable individual, as defined in our Privacy Policy.
MetaOptima retains the right to use or share any Aggregated Data generated by anyone using our Site, including our users, for the purpose of enhancing and providing the Services. “Aggregated Data” means data does not contain personal information and which has been manipulated or combined to provide generalized, anonymous information. Where you choose to utilize or connect certain services from third parties with the Services, you agree that MetaOptima may share your lead data with such designated third parties. You are still responsible for any and all personal information that is part of any Content (as defined below).
Your Profile Information and Account
If you sign up for a MetaOptima account (“Account”), you agree that MetaOptima is providing you with one user identification reference that you will use to create a username (your email address) and password (together, the “User ID”) to the extent, and only to the extent, necessary to access and use the Site and Services in accordance with this Agreement. You agree and understand that you are responsible for maintaining the confidentiality of your User ID. That User ID, together with any or other user information you provide, including but not limited to your social media profiles and location, will form your “Profile Information” and allow you to access your Account. You will provide true, accurate, current and complete information about yourself, and you agree not to misrepresent your Profile Information. You represent and warrant to MetaOptima that you have not misrepresented any Profile Information. You are responsible for any Profile Information that may be lost or unrecoverable through the use of the Site or Services.
Your right to access and use the Services is personal to you and is not transferable by you to any other person or entity. You agree not to disclose your User ID to any third party. You are solely responsible for all activities that occur under your Account or under your Profile Information. If you become aware of any unauthorized use of your Account or Profile Information, you are responsible for notifying MetaOptima immediately. It is your responsibility to update or change any Account or Profile Information, as appropriate.
In the case of any newsletter or other marketing initiatives, you can withdraw your consent to receiving those communications and unsubscribe to any MetaOptima subscriptions at any time by clicking “Unsubscribe” at the bottom of such communication or by contacting info@metaoptima.com. Doing so may have a material impact on our ability to provide any Services to you, and we are not responsible if you do so.
Payments
When you are selected by a Patient to provide Diagnostic Services or other healthcare services using the Services (a “Consultation”), you and the Patient are entering into a business relationship directly with each other.
MetaOptima and its third party service providers (including Stripe) will facilitate and process the payment of applicable fees for a Consultation by a Patient on your behalf on behalf of a Health Professional. The Patient is responsible for paying all fees or charges plus all applicable taxes (collectively, “Fees”) for the Consultation. Included in the Fees is a handling charge, currently equal to 20% of the Fees (unless otherwise agreed to by MetaOptima), retained by MetaOptima in connection with our provision of the Services and facilitation of payments.
Unless otherwise agreed to by MetaOptima, the Fees are billed in advance and are non-refundable. We reserve the right to modify our billing rates at any time upon thirty (30) days written notice by posting such Fee changes to the Site or through email notification to you. You will be liable to pay such modified billing rates.
METAOPTIMA DOES NOT REPRESENT, WARRANT OR GUARANTEE THAT THE HEALTHCARE SERVICES YOU PROVIDE WILL BE ELIGIBLE FOR REIMBURSEMENT OR FEE CODE BILLING UNDER ANY PUBLIC OR PRIVATE INSURANCE OR HEALTH CARE COVERAGE PLANS.
Disputes between Patients and Health Professionals
All disputes between you and a Patient are between you and such Patient and not with us. Under no circumstances do we have an obligation to resolve any dispute. Neither you nor any Patient shall have any claim against us arising from a dispute or our resolution of a dispute. You hereby release us from all claims of every kind and nature, known and unknown, arising out of or in any way connected with such disputes.
Beta Test
From time to time and at our sole discretion, we may offer the ability to try out a possible new Service that we may decide to offer in the future generally, to all customers (a “Beta Test”). You will have to sign up for the Beta Test if you wish to accept this offer. We may suspend or terminate the Beta Test at any time without notice or liability to you. There is no guarantee the Beta Test will become part of the Services. If the Beta Test becomes part of the Services, MetaOptima may charge or charge more for the Services. Notwithstanding any other provision of this Agreement, MetaOptima makes no representation or warranties, and accepts no liability of the Beta Test or your use of it.
Taxes
You take full responsibility for all taxes and fees of any nature associated with the Services, including any sales tax related to any purchase or sale of services or goods under this Agreement. When purchasing or selling services or goods under this Agreement, it is your responsibility to determine whether or not sales taxes apply to a transaction and to collect, report and remit the correct amounts to the appropriate authority. Any tools provided as Materials or in connection with the Services indicating estimated taxes due are for illustration purposes only. You take full responsibility for all taxes and fees of any nature associated with the Services, including any sales tax related to the purchase or sale of services or goods under this Agreement.
Submission of Content
The Site and the Services available thereon enable you to provide or upload content, including but not limited to messages, materials, data, text, music, sound, photos, videos, graphics, applications, code and other information or content (collectively, “Content”), to MetaOptima for the purpose of providing the Services. You acknowledge and agree that you are solely responsible for all Content you submit, provide or upload and the consequences for submitting, providing or uploading it.
MetaOptima will use Content you upload solely in connection with providing the Services to you, and for no other reason. You agree that by uploading, or otherwise providing any Content on or through the Site and/or the Services, you grant to MetaOptima a perpetual, worldwide, non-exclusive, royalty-free license to use, reproduce, process, display, all or any portion of such Content, solely in connection with providing the Services to you. This license includes the right to host, index, cache or otherwise format your Content in order to provide the Services.
You represent and warrant that you own your Content or have the necessary licenses, rights, consents and permissions to grant the license set forth herein and that its provision to MetaOptima or MetaOptima’s use thereof will not violate the copyrights, privacy rights, publicity rights, trademark rights, contract rights or any other intellectual property rights or other rights of any person or entity.
You agree that MetaOptima is not responsible for any violations of any third party intellectual property rights in any Content that you submit to MetaOptima. You agree to pay all royalties, fees and any other monies owing to any person by reason of the Content uploaded, displayed or otherwise provided by you to the Site.
Monitoring
MetaOptima may, but has no obligation to, monitor Content on the Site, or any website created using our Services. You consent to such monitoring. We may disclose any information necessary or appropriate to satisfy our legal obligations, protect MetaOptima or its customers, or operate the Site or Services properly, or improve the Site or Services. MetaOptima, in its sole discretion, may refuse to post, remove, or require you to remove, any Content, in whole or in part, alleged to be unacceptable, undesirable, inappropriate, or in violation of this Agreement, including, but not limited to the Privacy Policy.
Confidential Information
You agree to safeguard, keep secret and not to disclose to any third party, any Confidential Information acquired, learned or provided from MetaOptima during the term of this Agreement or following the expiration or termination of this Agreement. “Confidential Information” means any information marked confidential or that ought reasonably to be considered confidential under the circumstances and includes, without limitation, any business plans, customer lists, operation procedures, trade secrets, design formulas and programming code, know-how and processes, computer programs and inventions, discoveries, and improvements of any kinds.
If you use the Services to collect, store, use or disclose sensitive or personal information about identifiable individuals, you will only do so in accordance with applicable law, and furthermore take all measures to protect the privacy and legal rights of those individuals. If Patients or other users of the Site and/or Services provide you with sensitive information or personal information, you must make such Patients or users aware that the information is being collected and its intended purpose, and you must provide legally adequate privacy notice and protection for those Patients or users. If you store personal or sensitive information, you must do so securely. YOU WILL INDEMNIFY, DEFEND AND HOLD METAOPTIMA HARMLESS FOR ANY FAILURE TO COMPLY WITH THE FOREGOING, OR FOR ANY CLAIM MADE AGAINST METAOPTIMA BY ANY THIRD PARTY RELATED TO YOUR USE OF THE SERVICE IN RELATION TO PERSONAL INFORMATION OR SENSITIVE INFORMATION.
Acceptable Use and Conduct:
You agree that you will not publish or make available any Content that, or use the Site or Services in a manner that:
Visual Search Terms and Conditions
The following terms and conditions apply to your access or use of the Visual Search Service:
You agree that you will not use the images or other Materials included in the Visual Search Service (collectively, the “Visual Search Materials”) in any way other than viewing them within the Visual Search Service. The Visual Search Materials may not be copied, downloaded, reproduced, repurposed, distributed, sold or otherwise commercially exploited, made available to any other person or put to public use, including without limitation for use in performing vision science or machine learning or to train or test deep learning or artificial algorithms in any way, all of which are strictly prohibited by MetaOptima.
Except with MetaOptima’s prior written consent, the Visual Search Materials may not be used in any publications (whether in print or electronic form) or posted no or added to any public or private websites, intranets, bulletin boards, social media, chat rooms, centralized image repositories or learning management systems.
YOU HEREBY ACKNOWLEDGE AND AGREE THE VISUAL SEARCH SERVICE WILL BE USED BY YOU SOLELY FOR EDUCATIONAL AND INFORMATIONAL PURPOSES, AND YOU WILL NOT USE THE SERVICES FOR ANY OTHER PURPOSE, INCLUDING WITHOUT LIMITATION DIAGNOSTIC OR MEDICAL PURPOSES. THE VISUAL SEARCH MATERIALS: (A) ARE PROVIDED SOLELY ON THE BASIS THAT USERS WILL BE RESPONSIBLE FOR MAKING THEIR OWN ASSESSMENT OF THE MATTERS DISCUSSED THEREIN; AND (B) DO NOT CONSTITUTE PROFESSIONAL MEDICAL ADVICE, DIAGNOSES, TREATMENT OR CARE, NOR ARE THEY INTENDED TO BE A SUBSTITUTE THEREFOR. HEALTH PROFESSIONALS USING THE VISUAL SEARCH SERVICE MUST NEVER DISREGARD THEIR OWN DISCRETION AS HEALTH PROFESSIONALS OR DELAY IN SEEKING A THIRD PARTY’S PROFESSIONAL OPINION DUE TO THEIR REVIEW OF THE VISUAL SEARCH MATERIALS. THE VISUAL SEARCH MATERIALS ARE NOT EXHAUSTIVE AND DO NOT COVER ALL DISEASES, AILMENTS, PHYSICAL CONDITIONS OR THEIR TREATMENT.
Disclaimer of Warranties
YOUR USE OF THE SITE, SERVICES AND ALL CONTENT FORMING PART OF OR RELATED TO THE SITE OR SERVICES, INCLUDING ANY CONTENT YOU UPLOAD OR SUBMIT AND ANY THIRD PARTY SOFTWARE AND CONTENT, ARE AT YOUR SOLE RESPONSIBILITY AND RISK. THE SITE AND SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. METAOPTIMA EXPRESSLY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES, OR CONDITIONS OF ANY KIND WITH RESPECT TO THE SITE AND SERVICES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, COMPLETENESS, PERFORMANCE, SYSTEM INTEGRATION, QUIET ENJOYMENT, TITLE AND NON-INFRINGEMENT.
METAOPTIMA DISCLAIMS ANY WARRANTY THAT THE SITE, SERVICES OR ANY CONTENT, INCLUDING WITHOUT LIMITATION ANY THIRD PARTY SOFTWARE AND CONTENT, WILL MEET YOUR REQUIREMENTS OR BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SITE OR THE SERVERS THAT MAKES THE SITE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOU AGREE THAT FROM TIME TO TIME METAOPTIMA MAY REMOVE THE SITE OR CEASE PROVIDING THE SERVICES FOR INDEFINITE PERIODS OF TIME WITHOUT NOTICE TO YOU. YOUR ACCESS AND USE OF THE SITE AND THE SERVICES MAY BE INTERRUPTED FROM TIME TO TIME FOR ANY OF SEVERAL REASONS, INCLUDING, WITHOUT LIMITATION, THE MALFUNCTION OF EQUIPMENT, PERIODIC UPDATING, MAINTENANCE OR REPAIR OF THE SITE OR SERVICES OR OTHER ACTIONS THAT METAOPTIMA, IN ITS SOLE DISCRETION, MAY ELECT TO TAKE. METAOPTIMA MAKES NO GUARANTEE REGARDING: (A) THE AMOUNT, TIMING AND DELIVERY OF ANY CLICKS OR IMPRESSIONS WITH RESPECT TO ANY CONTENT (INCLUDING THIRD PARTY CONTENT) OR ADVERTISING ON THE SITE OR SERVICES; OR (B) THE COMPATIBILITY OF ANY SOFTWARE, HARDWARE OR CONTENT WITH THE SITE OR SERVICES.
METAOPTIMA IS NOT RESPONSIBLE FOR THE ACTS OR OMISSIONS OF, OR FOR THE FAILINGS OF, ANY THIRD-PARTY PROVIDER OF ANY CONTENT, SERVICE, NETWORK, SOFTWARE OR HARDWARE, INCLUDING BUT NOT LIMITED TO, INTERNET SERVICE PROVIDERS, HOSTING SERVICES UTILIZED BY METAOPTIMA, TELECOMMUNICATIONS PROVIDERS, CONTENT PROVIDED BY OTHER USERS, OR ANY SOFTWARE OR HARDWARE NOT PROVIDED BY METAOPTIMA.
YOU ARE SOLELY RESPONSIBLE FOR ENSURING THAT YOUR CONTENT IS COMPATIBLE WITH THE SITE AND SERVICES. METAOPTIMA DISCLAIMS ANY LIABILITY OR RESPONSIBILITY FOR ANY UNAUTHORIZED USE OF YOUR CONTENT BY THIRD PARTIES OR OTHER USERS OF THE SITE AND SERVICES AND IS NOT RESPONSIBLE FOR PROTECTING YOUR CONTENT.
ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SITE OR SERVICES IS DONE AT YOUR OWN DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR OTHER DEVICE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM METAOPTIMA OR THROUGH OR FROM THE SITE OR SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
THE SITE AND SERVICES ARE OFFERED AND CONTROLLED BY METAOPTIMA FROM ITS FACILITIES IN CANADA. METAOPTIMA MAKES NO REPRESENTATIONS THAT THE SITE OR SERVICES ARE APPROPRIATE OR AVAILABLE FOR USE IN OTHER LOCATIONS. THOSE WHO ACCESS OR USE THE SITE OR SERVICES FROM OTHER JURISDICTIONS DO SO AT THEIR OWN VOLITION AND ARE RESPONSIBLE FOR COMPLIANCE WITH LOCAL LAW.
Third Party Sites and Content
The Site may permit you to link to other websites or resources on the Internet, and other websites or resources may contain links to the Site. These other websites are not under MetaOptima’s control, and you acknowledge that MetaOptima is not responsible or liable for any third party content, including but not limited to the accuracy, integrity, quality, usefulness, legality, appropriateness, safety or intellectual property rights of or relating to such third party content or any other aspect of such websites or resources. The inclusion of any such link does not imply endorsement by MetaOptima or any association with its operators. You further acknowledge and agree that MetaOptima will not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of or reliance on any such third party content, goods or services available on or through any such website or resource. Access and use of third party sites, including the information, material, products and services on third party sites or available through third party sites, is solely at your own risk.
Exclusive Remedy and Limitation of Liability
YOU AGREE THAT, UNDER NO LEGAL THEORY, INCLUDING, BUT NOT LIMITED TO NEGLIGENCE, BREACH OF WARRANTY OR CONDITION, BREACH OF CONTRACT OR TORT, WILL METAOPTIMA OR ITS OWNERS, OFFICERS, DIRECTORS, AFFILIATES, CONTRACTORS, EMPLOYEES OR AGENTS, BE LIABLE TO YOU OR ANY THIRD PARTY ACTING ON YOUR BEHALF FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES OR DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES OR THE COST OF ANY SUBSTITUTE EQUIPMENT, FACILITIES OR SERVICES (EVEN IF METAOPTIMA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM OR RELATING TO THIS AGREEMENT OR YOUR USE OF OR YOUR INABILITY TO USE THE SITE OR SERVICES, OR FOR ANY DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT. METAOPTIMA’S TOTAL AGGREGATE LIABILITY FROM ANY AND ALL CLAIMS UNDER THIS AGREEMENT IS LIMITED TO THE TOTAL AMOUNTS YOU PAID TO METAOPTIMA IN THE ONE (1) YEAR IMMEDIATELY PRECEDING THE OCCURRENCE OF LOSS OR DAMAGE. TO THE EXTENT ANY PROVINCE, STATE OR JURISDICTION DOES NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, METAOPTIMA’S LIABILITY IN SUCH PROVINCE, STATE OR JURISDICTION WILL BE LIMITED TO THE FURTHEST EXTENT PERMITTED BY LAW. NOTWITHSTANDING THE FOREGOING OR ANYTHING ELSE HEREIN TO THE CONTRARY, METAOPTIMA WILL NOT BE LIABLE TO YOU OR ANY THIRD PARTY ACTING ON YOUR BEHALF IN ANY WAY WITH RESPECT TO A BETA TEST OR YOUR PROVISION OF AN INDIVIDUAL’S (INCLUDING YOUR OWN) PERSONAL INFORMATION TO METAOPTIMA OR THROUGH THE SERVICES. YOU FURTHER AGREE THAT THE FOREGOING LIMITATIONS WILL APPLY WITH RESPECT TO THIRD PARTY LIABILITY OF ANY KIND.
THE FOREGOING LIMITATIONS WILL ALSO APPLY WITH RESPECT TO ANY DAMAGES INCURRED BY REASON OF ANY CONTENT OR SERVICES PROVIDED ON ANY THIRD PARTY SITES OR OTHERWISE PROVIDED BY ANY THIRD PARTIES OTHER THAN METAOPTIMA AND RECEIVED BY YOU THROUGH OR ADVERTISED ON THE SITE OR RECEIVED BY YOU ON ANY THIRD PARTY SITES. YOU ALSO AGREE THAT METAOPTIMA WILL NOT BE RESPONSIBLE OR LIABLE FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS THE RESULT OF ANY INTERACTIONS OR DEALINGS WITH ADVERTISERS OR AS THE RESULT OF THE PRESENCE OF SUCH ADVERTISERS ON THE SITE.
MetaOptima will have no liability whatsoever for any damages, liabilities, losses or any other consequences that you may incur as a result of any modification, suspension or discontinuance of the Site and/or the Services.
Waiver of Jury Trial and Class Action Rights
WITH RESPECT TO ANY DISPUTE ARISING OUT OF OR RELATED TO THE SITE, SERVICES AND/OR THIS AGREEMENT: (I) YOU HEREBY EXPRESSLY GIVE UP YOUR RIGHT TO HAVE A TRIAL BY JURY; AND (II) YOU HEREBY EXPRESSLY GIVE UP YOUR RIGHT TO PARTICIPATE AS A MEMBER OF A CLASS OF CLAIMANTS, IN ANY LAWSUIT INCLUDING BUT NOT LIMITED TO CLASS ACTION LAWSUITS INVOLVING ANY SUCH DISPUTE.
Limitation of Time
You agree that you will not bring a claim under or related to this Agreement more than 12 months from when your claim first arose.
Indemnity
You agree to indemnify, defend, and hold harmless MetaOptima, and its subsidiaries, affiliates, co-branders, all third-party advertisers, technology providers, service providers or other partners, and each of their respective officers, directors, agents, shareholders, employees and representatives (together, the “Indemnified Parties”), from and against any third party claim, demand, loss, damage, cost, or liability (including, reasonable attorneys’ fees) (collectively and individually, “Claims”) incurred by or made against the Indemnified Parties in connection with any Claims arising out of or relating to this Agreement, the Site or Services, including but without limitation in relation to: (a) your use, non-use or misuse of, or connection to the Site, Services and any Content, including without limitation your Profile Information and any third party Content forming part of the Site; (b) your violation or alleged violation of this Agreement; and (c) your violation of any rights, including intellectual property rights, of a third party and otherwise as set out herein. MetaOptima reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify MetaOptima and you agree to cooperate with MetaOptima’s defense of these Claims. You agree not to settle any matter without the prior written consent of MetaOptima. MetaOptima will use reasonable efforts to notify you of any such Claims upon becoming aware of it.
Cancellation and Termination
You may cancel your Account at any time through the web interface provided as part of the Services. Cancellation must be issued via your web interface or via MetaOptima’s support addresses. This is the only way to cancel your Account and you will not be provided with a refund, in whole or in part, of any pre-paid amount. Email requests (from email accounts other than your MetaOptima email account) or phone requests to cancel your Account will not be accepted.
You will remain liable for all charges accrued on your Account up to the time of cancellation. MetaOptima is under no obligation to store your Content and may delete your Account and your Content immediately upon cancellation or may keep your Account and your Content for up to 90 days following the last day of the month of cancellation. Upon request from you, we will make available for access to you any of your Content for 90 days from the effective date of termination of the Services. Such content access requests will incur a fee.
MetaOptima reserves the right at any time, and without cost, charge or liability, to terminate this Agreement at its sole discretion for any reason, including, but not limited to, a failure to comply with the terms of this Agreement. MetaOptima reserves the right to modify, suspend or discontinue the Site and/or Services, or any portion thereof, at any time and for any reason, with or without notice.
Miscellaneous
If there is any dispute between you and MetaOptima about or involving this Agreement, the Site or Services, you hereby agree that the dispute will be governed by and construed in accordance with the laws of the Province of British Columbia, Canada, and the federal laws of Canada applicable therein without regard to its conflict of law provisions.
The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
Except for any claim involving the ownership of intellectual property, all disputes arising out of or in connection with this Agreement will be referred to and finally resolved by arbitration under the rules of the British Columbia International Commercial Arbitration Centre. The appointing authority will be the British Columbia International Commercial Arbitration Centre. The case will be adjudicated by a single arbitrator and will be administered by the British Columbia International Commercial Arbitration Centre in accordance with its rules. The place of arbitration will be Vancouver, British Columbia, Canada. The language of the arbitration will be English. Notwithstanding the foregoing, MetaOptima may seek and obtain injunctive relief in any jurisdiction in any court of competent jurisdiction and you agree that this Agreement is specifically enforceable by MetaOptima through injunctive relief and other equitable remedies without proof of monetary damages.
If any portion of this Agreement is deemed unlawful, void or unenforceable by any arbitrator or court of competent jurisdiction, this Agreement as a whole will not be deemed unlawful, void or unenforceable, but only that portion of this Agreement that is unlawful, void or unenforceable will be stricken from this Agreement.
You agree that if MetaOptima does not exercise or enforce any legal right or remedy which is contained in the Agreement (or which MetaOptima has the benefit of under any applicable law), this will not be taken to be a formal waiver of MetaOptima’s rights and that those rights or remedies will still be available to MetaOptima.
The sections of “Representations and Warranties”, “Intellectual Property Rights”, “Disputes between Patients and Health Professionals”, “Taxes”, “Submission of Content”, “Confidential Information”, “Visual Search Terms and Conditions”, “Disclaimer of Warranties”, “Third Party Sites and Content”, “Exclusive Remedy and Limitation of Liability”, “Waiver of Jury Trial and Class Action Rights”, “Limitation of Time”, “Indemnity” and “Miscellaneous” will survive any actual or purported termination or expiry of this Agreement and continue in full force and effect.
This Agreement is the entire agreement between us related to the subject matter in this Agreement. This Agreement replaces and supersedes any other prior or contemporaneous agreement, representation or discussion, oral or written, and may not be changed except in writing signed by us, regardless of whether or not the parties act under an unsigned “electronic” agreement or rely on such an unsigned agreement.
Contacting MetaOptima
You may contact MetaOptima by email at info@metaoptima.com or by mail at 1050-1185 West Georgia Street, Vancouver, BC, Canada V6E 4E6
MetaOptima Technology Inc.
Vancouver, BC, Canada
+1-778-328-1949 Email
MetaOptima Technology Australia Pty Ltd
Sydney, NSW
+612 5302 7371 Email
