dLast Updated: December 27, 2021
THE SECTIONS BELOW TITLED “BINDING ARBITRATION” AND “CLASS ACTION WAIVER” CONTAIN A BINDING ARBITRATION AGREEMENT AND CLASS ACTION WAIVER. THEY AFFECT YOUR LEGAL RIGHTS. PLEASE READ THEM.
If you accept or agree to the Agreement on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to the Agreement and, in such event, “you” and “your” will refer and apply to that company or other legal entity.
1. IMPORTANT USE INFORMATION
INDICATIONS FOR USE:
The MirrorMe3D Platform is a web-based application intended to be used as a software interface to assist in visualization and communication throughout the course of care conducted by surgeons and their team of support staff.
The Platform and the display of Medical Data on the Platform are not for diagnostic use.
The Medical Data on the MirrorMe Platform should not be relied upon if significant changes to patient’s anatomy have occurred since the Medical Data was obtained, or if any of the data is more than 6 months old, whichever first occurs.
Platform access granted to legal adults only. Should an account be needed for, or by, a minor, the responsibility of the account, both access to it and the security of the data contained therein, is maintained by the parent(s) or legal guardian(s) of the minor authorized to oversee the medical care of the minor.
THE PLATFORM IS NOT INTENDED TO ELIMINATE, REPLACE, OR SUBSTITUTE, IN WHOLE OR IN PART, THE HEALTHCARE PROVIDER’S JUDGMENT AND ANALYSIS OF THE PATIENT’S CONDITION.
The Medical Data displayed on the Platform is intended as a secondary display and is not for primary diagnostic use.
To avoid mix-ups and the possibility of patient injury, patient identification in all Case Details must be verified and confirmed prior to use.
To protect the confidentiality of patient personal information, access to Case files on the Platform should be limited to your practice (or clinic) group. If Medical Data is shared with a collaborating doctor, the information should be limited to prevent the exposure of patient personal information.
It is recommended that the file names for uploaded Medical Data, not contain the Patient’s full name, date of birth or other personal information. While this information may be included in the Patient Profile on the Platform, the Patient Profile is not shared with collaborating doctors.
DIRECTIONS FOR USE
The Platform contains fields indicated with an asterisk that must be completed in order to create an Account, a Patient Profile, a Case and to upload Medical Data. The Help Section contains instructions and guidance for best practices. The icon on the bottom right of every page can be used to contact MirrorMe3D for questions or feedback.
2. RIGHT TO ACCESS AND USE THE PLATFORM
Subject to the terms and conditions of this Agreement, MirrorMe grants you during the term of this Agreement a non-transferable, non-exclusive right, without the right to sublicense, to access and use the Platform for your internal business purposes.
You will not (and will not authorize, permit, or encourage any third party to): (i) reverse engineer, decompile, disassemble, or otherwise attempt to discern the source code or interface protocols of the Platform or Services; (iii) modify, adapt, or translate the Platform, or any portion or component thereof; (iv) make any copies of the Platform or any portion or component thereof; (v) resell, distribute, or sublicense the Platform or any portion or component thereof; (vi) remove or modify any proprietary markings or restrictive legends placed on the Platform; (vii) use the Platform or any portion or component thereof in violation of any applicable law, in order to build a competitive product or service, or for any purpose not specifically permitted in this Agreement; (viii) introduce, post, or upload to the Platform any virus, worm, “black door,” Trojan Horse, or similar harmful code; (ix) save, store, or archive any portion of the services (including, without limitation, any data contained therein) outside the Platform other than those outputs generated through the intended functionality of the Platform without the prior, written permission of MirrorMe in each instance; (x) use the Platform in connection with service bureau, timeshare, service provider or like activity whereby you operate the Platform for the benefit of a third party; or (xi) circumvent any processes, procedures, or technologies that we have put in place to safeguard the Platform.
If you violate this section, MirrorMe reserves the right in its sole discretion to immediately deny you access to the Platform, or any portion of thereof, without notice. MirrorMe reserves the right to change the availability of any feature, function, or content relating to the Platform, at any time, without notice or liability to you.
You may view all Content on the Platform for your own internal business use and not for any other use, including any commercial use, without the prior written consent of MirrorMe. We, and our licensors, retain all right, title, and interest, including all intellectual property rights, in and to the Content. You may not sell, transfer, assign, license, sublicense, or modify the Content or reproduce, display, publicly perform, make a derivative version of, distribute, or otherwise use the Content in any way for any public or commercial purpose. The use or posting of the Content on any other website, social media page, or in a networked computer environment for any purpose is expressly prohibited.
Elements of the Services, which contain proprietary software, are protected by copyright, trade dress, trademark, unfair competition, and other state and federal laws and may not be copied or imitated in whole or in part, by any means, including, but not limited to, the use of framing, embedding in any way, or mirrors to incorporate any portion of the Platform into any other product or service. None of the MirrorMe Content may be retransmitted without our express, written consent for each and every instance.
If you violate any part of this Agreement, your permission to access the Platform and Services automatically terminates and you must immediately destroy any copies you have made of the Platform.
The trademarks, service marks, and logos of MirrorMe (the “MirrorMe Trademarks”) used and displayed on the Platform are registered and unregistered trademarks or service marks of MirrorMe. Other company, product, and service names located on the Platform may be trademarks or service marks owned by others (the “Third-Party Trademarks,” and, collectively with MirrorMe Trademarks, the “Trademarks”). Nothing on the Platform should be construed as granting, by implication, estoppel, or otherwise, any license or right to use the Trademarks, without our prior written permission specific for each such use. Use of the Trademarks as part of a link to or from any website is prohibited unless establishment of such a link is approved in advance by us in writing. All goodwill generated from the use of MirrorMe Trademarks inures to our benefit.
Elements of the Platform and Services are protected by trade dress, trademark, unfair competition, and other state and federal laws and may not be copied or imitated in whole or in part, by any means, including, but not limited to, the use of framing or mirrors to incorporate any portion of the Platform into any other product or service. None of the Content may be retransmitted without our express, written consent for each and every instance.
4. USER GUIDELINES
MirrorMe3D’s Platform, functions best when its Users follow a few simple rules. By accessing and/or using the Platform and/or the Services, you agree to comply with these User guidelines (the “User Guidelines”) and that:
You will let us know about inappropriate content of which you become aware. If you find something that violates our User Guidelines, please let us know, and we’ll review it promptly.
We may from time to time add new features to the Platform or Services, substitute a new feature service for one of the existing Services, or discontinue or suspend one of the existing features or Services. Under no circumstances will MirrorMe be liable for any suspension or discontinuation of any of the Services or portion thereof, and the use of new services will be governed by this Agreement.
Some Services may have additional terms (including, without limitation, policies, guidelines, and rules) that will further govern your use of that particular Service and supplement this Agreement. If you choose to register for, access or use any such Services, you may be presented with such additional terms, which may also be found in the Additional Terms. By using those Services, you agree to comply with any such additional terms, which are incorporated by reference into this Agreement.
6. DOCTOR ACCOUNTS AND CONTENT
MirrorMe’s registration of a Healthcare Professional, such as a Doctor, as an authorized User is not to be construed or implied to be a recommendation, referral or endorsement of any particular Doctor, Organization or Institution.
Through the Platform, you may upload Patient data, images and information to their account (collectively “Medical Content”). We cannot and do not review it all--we are merely acting as a passive conduit for the display of the Medical Content to Doctors, Patients and Collaborating Doctors that use our Platform and Services. You have the right to grant access to view Medical Content to Collaborating Doctors (doctors identified by authorized Users who have received consent from their Patient to share the specific Data) or with Patients. Patients may also upload data, images and information to their account (referred to collectively as “Patient Content”). The Patient may grant access to their Patient Content to their Doctor.
You may use the Medical Content and Patient Content (collectively “Medical Data”) to view and compare images, to measure distances on images, to align two or more images in an overlay or fusion view, to measure differences between two aligned images, and any other available Platform functions or features. As may occur, measurements observed in the Platform may be different when taken directly on the Patient due. Any measurements or comparison require confirmation with actual patient conditions and authorized Doctor Users are responsible for this.
Doctors who are authorized Users may delete or download only the Medical Content which they have uploaded to the Platform. Users are expressly forbidden from downloading any medical data, images or patient confidential information that they did not upload themselves including taking screenshots of any Medical Content or other data displayed in the Platform.
7. WE DO NOT PROVIDE MEDICAL ADVICE
You acknowledge and agree that MirrorMe does not, through the Platform, the Services or otherwise, provide any form of medical care, medical opinion, medical advice, diagnosis, or treatment, and that MirrorMe does not evaluate the need to seek medical attention. MirrorMe only provides the Platform through which you can share Medical Content or Patient Content (as defined above) with Collaborating Doctors and/or with your Patients. Your use of the Platform and/or Services, including the display of medical data and all functions and features within the Platform does not constitute medical advice, a recommendation or an endorsement of any treatment plan or options.
We do not recommend or endorse any specific tests, Healthcare Providers, procedures, opinions, or other information that may appear through the Services. If you rely on any Content, you do so solely at your own risk. We encourage you to independently confirm any Content relevant to you with other sources, including the Healthcare Institution’s office, medical associations relevant to the applicable specialty, your state medical boards, and the appropriate licensing or certification authorities to verify listed credentials and education.
8. SECURITY AND PERSONAL INFORMATION
Security Protections for Your Personal Information and/or Medical Data
We have implemented a series of physical, personnel, administrative, access control, system, third party and transmission safeguards to prevent unauthorized access, to maintain data integrity and to ensure that only authorized persons who need to access your Personal Information can do so. A brief description of some of our security measures follows.
Physical Security measures include:
· Physical access to servers is restricted to MirrorMe3D personnel who have been authorized for server access
· Disaster recovery plan outlined
Personnel Security measures include:
· Background and criminal reference check for employees
· Annual HIPAA and general privacy and security training for employees
Administrative Security measures include:
· Documentation of compliance training and regularly scheduled risk assessments
· Sanctions for employee violations of company policies and practices
Access Control Security measures include:
· Restricting access to protected health data, including Personal Information, to approved personnel on need basis only
· Identity Authentication including, but not limited to, written signature, passwords, tokens, biometrics or a combination thereof
System Security measures include:
· Business associate agreements and/or other business agreements with all partners, third parties and vendors with whom we share information that require them to implement all appropriate security procedures to maintain confidentiality
· Individual confidentiality agreements with all employees and consultants who are required to come into contact with your Personal Information
· Data protection agreements, including European Commission-approved Standard Contractual Clauses with business partners where Personal Information is to be processed from the European Economic Area
Transmission Security measures include:
· Encryption of all Medical Information and Protected Health Information transmitted to and from our App and stored in our systems
While we cannot guarantee that loss, misuse, or alteration of data will not occur, we are committed to using proven safeguards and security audit procedures designed to prevent any loss, misuse or alteration of data. You will be promptly notified of any security breach which may have allowed disclosure or compromised the security and privacy of any of your Protected Health Information.
The Platform is only available for individuals aged 18 years or older. If you are under 18 years of age, please do not use the Platform.
We welcome and encourage you to provide feedback, comments, and suggestions for improvements to the Platform and our Services (“Feedback”). Although we encourage you to e-mail us, we do not want you to, and you should not, e-mail us any content that contains confidential information. With respect to any Feedback you provide, we shall be free to use and disclose any ideas, concepts, know-how, techniques, or other materials contained in your Feedback for any purpose whatsoever, including, but not limited to, the development, production and marketing of products and services that incorporate such information, without compensation or attribution to you.
11. NO WARRANTIES; LIMITATION OF LIABILITY
The Platform and our Services, including the display of Medical Data, the alignment of images, the conversion of medical data to 3D images, the overlay or fusion view of two or more images, the measure of distances in images, the measurement of differences between points on two images, the use of annotations or comments, the use of permission functions, and any other functions or features of the Platform and Services, are provided on an “as is” and “as available” basis, and neither MirrorMe nor MirrorMe’s suppliers make any warranties with respect to the same or otherwise in connection with this agreement, and MirrorMe hereby disclaims any and all express, implied, or statutory warranties, including, without limitation, any warranties of non-infringement, merchantability, fitness for a particular purpose, availability, error-free or uninterrupted operation, and any warranties arising from a course of dealing, course of performance, or usage of trade. To the extent that MirrorMe and MirrorMe’s suppliers may not as a matter of applicable law disclaim any implied warranty, the scope and duration of such warranty will be the minimum permitted under such law.
In connection with any warranty, contract, or common law tort claims: (i) we shall not be liable for any incidental or consequential damages, lost profits, or damages resulting from lost data or business interruption resulting from the use or inability to access and use the platform or any related services, even if we have been advised of the possibility of such damages; and (ii) any direct damages that you may suffer as a result of your use of the Platform or any related Services shall be limited to one hundred dollars ($100).
You will indemnify, defend, and hold MirrorMe, its affiliates, and our and their respective shareholders, members, officers, directors, employees, agents, and representatives (collectively, “MirrorMe Indemnitees”) harmless from and against any and all damages, liabilities, losses, costs, and expenses, including reasonable attorney’s fees (collectively, “Losses”) incurred by any MirrorMe Indemnitee in connection with a third-party claim, action, or proceeding (each, a “Claim”) arising from (i) your breach of this Agreement; (ii) any misuse of the Platform, and/or the Content; or (iii) your gross negligence or willful misconduct; provided, however, that the foregoing obligations shall be subject to our: (i) promptly notifying you of the Claim; (ii) providing you, at your expense, with reasonable cooperation in the defense of the Claim; and (iii) providing you with sole control over the defense and negotiations for a settlement or compromise.
13. COMPLIANCE WITH APPLICABLE LAWS
The Platform and Services are based in the United States. We make no claims concerning whether the Platform and Service may be viewed or be appropriate for use outside of the United States. If you access the Platform from outside of the United States, you do so at your own risk. Whether inside or outside of the United States, you are solely responsible for ensuring compliance with the laws of your specific jurisdiction.
14. TERMINATION OF THE AGREEMENT
We reserve the right, in our sole discretion, to restrict, suspend, or terminate the Agreement and/or your access to all or any part of the Platform, at any time and for any reason without prior notice or liability. We reserve the right to change, suspend, or discontinue all or any part of the Platform at any time without prior notice or liability.
15. BINDING ARBITRATION
In the event of a dispute arising under or relating to this Agreement, the Platform and Services (each, a “Dispute”), such dispute will be finally and exclusively resolved by binding arbitration governed by the Federal Arbitration Act (“FAA”). NEITHER PARTY SHALL HAVE THE RIGHT TO LITIGATE SUCH CLAIM IN COURT OR TO HAVE A JURY TRIAL, EXCEPT EITHER PARTY MAY BRING ITS CLAIM IN ITS LOCAL SMALL CLAIMS COURT, IF PERMITTED BY THAT SMALL CLAIMS COURT RULES AND IF WITHIN SUCH COURT’S JURISDICTION. ARBITRATION IS DIFFERENT FROM COURT, AND DISCOVERY AND APPEAL RIGHTS MAY ALSO BE LIMITED IN ARBITRATION. All disputes will be resolved before a neutral arbitrator selected jointly by the parties, whose decision will be final, except for a limited right of appeal under the FAA. The arbitration shall be commenced and conducted by JAMS pursuant to its then current Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those rules, or, where appropriate, pursuant to JAMS’ Streamlined Arbitration Rules and Procedures. All applicable JAMS’ rules and procedures are available at the JAMS website www.jamsadr.com. Each party will be responsible for paying any JAMS filing, administrative, and arbitrator fees in accordance with JAMS rules. Judgment on the arbitrator’s award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. The arbitration may be conducted in person, through the submission of documents, by phone, or online. If conducted in person, the arbitration shall take place in the United States county where you reside. The parties may litigate in court to compel arbitration, to stay a proceeding pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator. The parties shall cooperate in good faith in the voluntary and informal exchange of all non-privileged documents and other information (including electronically stored information) relevant to the Dispute immediately after commencement of the arbitration. As set forth in Section 12 below, nothing in this Agreement will prevent us from seeking injunctive relief in any court of competent jurisdiction as necessary to protect our proprietary interests.
16. CLASS ACTION WAIVER
You agree that any arbitration or proceeding shall be limited to the Dispute between us and you individually. To the full extent permitted by law, (i) no arbitration or proceeding shall be joined with any other; (ii) there is no right or authority for any Dispute to be arbitrated or resolved on a class action-basis or to utilize class action procedures; and (iii) there is no right or authority for any Dispute to be brought in a purported representative capacity on behalf of the general public or any other persons. YOU AGREE THAT YOU MAY BRING CLAIMS AGAINST US ONLY IN YOUR INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.
17. EQUITABLE RELIEF
You acknowledge and agree that in the event of a breach or threatened violation of our intellectual property rights and confidential and proprietary information by you, we will suffer irreparable harm and will therefore be entitled to injunctive relief to enforce this Agreement. We may, without waiving any other remedies under this Agreement, seek from any court having jurisdiction any interim, equitable, provisional, or injunctive relief that is necessary to protect our rights and property pending the outcome of the arbitration referenced above. You hereby irrevocably and unconditionally consent to the personal and subject matter jurisdiction of the federal and state courts in the State of New York for purposes of any such action by us.
18. CONTROLLING LAW; EXCLUSIVE FORUM
The Agreement and any action related thereto will be governed by the laws of the State of New York without regard to its conflict of laws provisions. The Parties hereby consent and agree to the exclusive jurisdiction of the state and federal courts located in the State of New York for all suits, actions, or proceedings directly or indirectly arising out of or relating to this Agreement, and waive any and all objections to such courts, including but not limited to, objections based on improper venue or inconvenient forum, and each party hereby irrevocably submits to the exclusive jurisdiction of such courts in any suits, actions, or proceedings arising out of or relating to this Agreement
If the Agreement is terminated in accordance with the termination provision in Section 15 above, such termination shall not affect the validity of the following provisions of this Agreement, which shall remain in full force and effect: “Ownership,” “Feedback,” “No Warranties; Limitation of Liability,” “Indemnification,” “Compliance with Applicable Laws,” “Termination of the Agreement,” “Binding Arbitration,” “Class Action Waiver,” “Equitable Relief,” “Controlling Law; Exclusive Forum,” and “Miscellaneous.”
Our failure to act on or enforce any provision of the Agreement shall not be construed as a waiver of that provision or any other provision in this Agreement. No waiver shall be effective against us unless made in writing, and no such waiver shall be construed as a waiver in any other or subsequent instance. Except as expressly agreed by us and you in writing, the Agreement constitutes the entire agreement between you and us with respect to the subject matter, and supersedes all previous or contemporaneous agreements, whether written or oral, between the parties with respect to the subject matter. The section headings are provided merely for convenience and shall not be given any legal import. This Agreement will inure to the benefit of our successors, assigns, licensees, and sublicensees.
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