This End User Subscription Agreement (“Agreement”, “Terms of Service”, “TOS”) governs your relationship with and obligations to BIOKINEMETRICS, Inc. in connection with the Biokinemetrics™ TELERAD™ Software Platform and Services provided by BIOKINEMETRICS (BIOK). You should carefully read this Agreement before accepting the terms and conditions of this binding Subscription Agreement before using the service or accessing the “Platform” of the TELERAD™ Software and Services on your device and accessing and using the TELERAD™ Software Platform and Services.
THIS END USER SUBSCRIPTION AND SERVICES AGREEMENT (“AGREEMENT”) SETS FORTH THE LEGAL RIGHTS AND OBLIGATIONS OF THE END USER (“YOU”) AGREEING TO THE TERMS OF THIS AGREEMENT. YOU SHOULD CAREFULLY READ THIS CLOUD AGREEMENT, WHICH DEFINES WHAT YOU CAN AND CANNOT DO WITH THE SERVICES, AS WELL AS THE CONDITIONS AND LIMITATIONS ON RIGHTS, WARRANTIES, AND REMEDIES (INCLUDING WITHOUT LIMITATION MANDATORY ARBITRATION) WITH RESPECT TO THE PLATFORM ACCESS and SERVICES.
BY ACCESSING OR USING THE SERVICES, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE AGREEING TO THE TERMS OF THIS AGREEMENT ON BEHALF OF ANOTHER PERSON OR EMPLOYER, YOU REPRESENT AND WARRANT THAT YOU HAVE FULL AUTHORITY TO BIND THE CUSTOMER TO THIS AGREEMENT AND THAT THE CUSTOMER AGREES TO BE BOUND BY THIS AGREEMENT, AND ALL REFERENCES TO “YOU” AND “YOUR” IN THIS CLOUD AGREEMENT ARE REFERRING TO YOU, the END-USER.
IF YOU DO NOT AGREE TO THIS AGREEMENT, YOU MUST NOT ACCESS OR OTHERWISE USE THE PLATFORM SERVICES.
CUSTOMER ACKNOWLEDGES AND AGREES THAT CUSTOMER HAS BEEN PROVIDED REASONABLE NOTICE OF THIS CLOUD AGREEMENT AND HAS HAD AN OPPORTUNITY TO REVIEW THIS AGREEMENT.
You understand that by using and accessing the TELERAD™ Platform Services, that you will be sending protected health information of your patients in the form of patient data and x-ray studies in a DICOM format or via messaging services to a Radiologist that you selected from the available Radiologists listed on the TELERAD™ Software Platform for the purpose of receiving a second opinion report from the selected Radiologist using the internet and cloud software Platform for a fee for each study that you submit and upload to the TELERAD™ Platform.
Thank you for choosing BIOKINEMETRICS Inc. TELERAD™ Software and Services. We provide a software that is internet-based, browser-accessed, platform (the “Platform”) that encompasses (1) a variety of services, including TELERAD™ and for some users, an additional software application that TELERAD™ Software and Services integrates with an on-premise software called ChiroSight™ (each, a separate “Service”); and (2) a software service account and accompanying documentation, and any updates to such software or documentation (collectively, “Software”). BIOKINEMETRICS Inc., along with any parent, subsidiary, affiliate, or related are referred to in these provisions as “BIOKINEMETRICS Group Companies” or simply “BIOKINEMETRICS” or “BIOK” or “us.” “TELERAD™” is the product or service name of the software located on the Platform described herein that is provided by Biokinemetrics, Inc. to you, the end user.
When you use the Platform, you enter into a binding contract with us. Each section of the agreement begins with an italicized annotation that is intended to help you navigate the agreement. The annotations do not completely summarize the agreement, though, and you should read each section carefully and in full. We’ve also bolded a few areas that talk about important legal rights, and you should be sure to read those sections carefully. These provisions in Section A apply to the Platform generally and are separate from the provisions in Section B which include additional provisions for your use of specific BIOKINEMETRICS Software or Services.
If you are an individual acting on your company’s or client’s behalf, you accept these provisions on their behalf and the term “you” will refer to you, your company, your clinic, your licensed health care provider who orders radiography second opinions or radiologist reports, or your client.
You need to agree to these terms to use our Platform and TELERAD™ Software and Services. By using the Platform, you are instructing us to share your data across our Platform for marketing, eligibility, and other purposes described in our GLOBAL PRIVACY STATEMENT consistent with applicable law. This data may include credit information and other information we obtain from third parties.
We want to be transparent about how we use personal information and about your rights in our Privacy Statement. You should only provide us with personal information of others if you have received permission to do so.
You agree that BIOKINEMETRICS may use and maintain your personal information according to BIOKINEMETRICS’s GLOBAL PRIVACY STATEMENT and any changes published by BIOKINEMETRICS.
To the extent we allow you to input personal information (as the term is defined under applicable law) about other individuals other than yourself, you represent and warrant that you have complied with all applicable laws and received the proper authority or consent to allow us to collect and process such information to operate our business, in accordance with our GLOBAL PRIVACY STATEMENT. You further agree that other than with respect to information furnished to BIOK on the Platform in connection with the preparation of a radiology report or second opinion document, any sharing of personal information or PHI among BIOKINEMETRICS Group Companies is contemplated as part of the Platform. You agree such sharing does not constitute a “sale” of information.
Change happens. When it does happen, we will update this Agreement. If the changes are material, you may need to accept the changes to use the Platform. Similarly, there may be circumstances where we need to update or discontinue the Platform.
We may modify the provisions of this Agreement at any time. We may notify you of such modifications by posting through the Platform or on our website or by other means. It is important that you review this Agreement whenever we modify it because your continued use of the Platform indicates your agreement to the modifications.
In some cases, you may need to accept changes to this Agreement to continue using the Platform. If you do not agree to these changes, you may stop using the Platform or terminate your account.
Similarly, we may update the Platform, including with tools, utilities, improvements or third party applications. You agree to receive these updates. We may further modify, suspend or discontinue the Platform at any time. You agree that we will not be liable to you or any third party for any modification, suspensions, or discontinuance of the Platform.
You can use our Platform for your own personal and lawful use or as otherwise permitted under this Agreement.
Except as set forth in these terms, you may access and use the Platform for your own internal, lawful and non-commercial purposes only.
You understand that by using and accessing the TELERAD™ Platform Services, that you will be sending protected health information of your patients in the form of patient data and x-ray studies in a DICOM format or via messaging services to a Radiologist that you selected from the available Radiologists listed on the TELERAD™ Software Platform for the purpose of receiving a second opinion report from the selected Radiologist using the internet and cloud software Platform for a fee for each study that you submit and upload to the TELERAD™ Platform. You agree to have malpractice insurance in force when using the Platform for no less than one million dollars($1,000,000.00) and you shall indemnify and hold harmless BIOK and pay for any settlement or claim that is successfully made against you or BIOK related to your submission of patient x-ray studies to a listed radiologist.
YOU shall maintain, during the term of this Agreement, and at its sole expense, for itself and its employees and agents, professional liability and malpractice insurance for the appropriate states in the minimum amount of, $1,000,000 per occurrence and $3,000,000 in the annual aggregate covering its own, its employees’, and/or agents’ negligent acts and omissions at or relating to the Professional Services provided during the term of this Agreement, or for $1,000,000 per occurrence and $ 3,000,000 in the annual aggregate covering its own, its employees’, and/or agents’ negligent acts and omissions at or relating to the Professional Services provided during the term of this Agreement when permissible by appropriate state law. Proof of insurance shall be provided to Client upon request. If professional liability insurance is maintained on a “claims made” basis, YOU shall maintain, or caused to be maintained, “tail” or “prior acts” coverage to cover claims made after the termination of any insurance obtained with respect to this Agreement.
YOU shall defend, indemnify, and hold harmless BIOK from and against any loss, expense, damage, or injury suffered or sustained by BIOK resulting from the performance by YOU of his/her duties hereunder, including, without limitation, any judgment, award, settlement, reasonable attorneys’ fees, and other costs or expenses incurred in connection with the defense of any actual or threatened action, proceeding, or claim.
YOU shall be 100% liable and hold harmless BIOK for any HIPAA breach of any patient protected health information (PHI) violation as a result of YOU sending a radiology report or PHI to the wrong clinic, party, or Client of BIOK and shall defend, indemnify, and hold harmless BIOK and its Clients from any fines or civil damages and other costs or expenses incurred in connection with the defense or timely payment of any fines or claims as a result of such HIPAA violation. YOU shall be responsible for submitting PHI to the correct Client affiliated with the requested Professional Service.
BIOK shall defend, indemnify, and hold harmless YOU from and against any loss, expense, damage, or injury suffered or sustained by YOU resulting from BIOK’s actions or omissions related to BIOK’s practice at the Center(s), including, without limitation, any judgment, award, settlement, reasonable attorneys’ fees, and other costs or expenses incurred in connection with the defense of any actual or threatened action, proceeding, or claim.
We may provide you with access to beta features in the Platform. You are free to use them, but they are provided as-is.
We may include new and/or updated pre-release and trial features in the Platform and such features are provided as-is. Your use of such features is at no additional cost during the Beta phase, but you must follow additional rules or restrictions that we may place on their use.
In addition to other terms that are defined throughout this Agreement, the following terms have the meaning set forth below:
a) “Administrator Email and Password” means a unique password and/or other login information to access the TELERAD™ Platform by the Primary Provider, which enables the Primary Provider to access and use the Software at a Clinic Site.
b) “Agreement” means this End User Subscription Agreement for Biokinemetrics™ TELERAD™ Platform for Software and Services between you and BIOKINEMETRICS.
c) “Application” means any add-on application (i.e., Software) available for use in connection with either the Biokinemetrics™ ChiroSight™ base software and TELERAD™ Software and Services.
d) “BIOKINEMETRICS” or “ChiroSight™” or “TELERAD™“ means Biokinemetrics and its agents, successors and assigns.
e) “Clinic Site” means the Primary Clinic Site and, if applicable, any other authorized location for which you purchase an Application entitling you to install and use the Software at such location.
f) “Services” means monthly managed data AND TRANSFER OF IMAGES AND REPORTS, access to the TELERAD™ software Platform, for which you must pay Monthly Service Fees to BIOKINEMETRICS, as well as selected support. “Service(s)” also refers to the various systems, facilitative processing operations, functionality, or other operational features, including but not limited to support and maintenance, or other products or promotions which may be provided or made accessible to you in or through the Software as a standalone or online-hosted offering. Services does not include paid add-on services that may be available to you for a separate or additional fee through the Software.
g) “De-Identified Data” means protected health information that has been de-identified such that it does not identify patients or Providers.
h) “Documentation” means all written, online, or electronic materials or documentation made available or provided to you by BIOKINEMETRICS regarding the Platform.
i) “Effective Date” means the date on which you access the Platform you agree to the current terms and conditions of this Agreement.
j) “Fees” means the applicable monthly fees for services utilized, if any, and support and training services as identified in the Election Agreement that is applicable to the Provider and defined in this License Agreement.
k) “Provider” means a provider of health care services, including the Primary Provider and any other Providers authorized to use the Platform upon the initial and any subsequent access of the Platform.
l) “Primary Provider” means the Provider designated in the sign up of the account to access the Platform.
m) “Primary Clinic Site” means a single location of the Primary Provider’s health care clinic or business designated in the account of the end user at which the end user provides radiology services. Any secondary sites require a separate subscription account.
n) “Radiologist(s)” means a person who is a licensed health care provider with a specialty of radiology and who is listed as a radiologist on the BIOK Telerad™ Platform to provide the services of radiology reports or second opinions or patient findings on the submitted x-ray study images.
o) “Secondary Site” means any physical address or location other than the Primary Clinic Site. It may also mean a separate business or separate Provider at the same location as the Primary Clinic Site.
p) “Software” means BIOKINEMETRICS’s Biokinemetrics™ Telerad™ Platform supplied to you by BIOKINEMETRICS pursuant to this Agreement, as that software may be updated, upgraded, or modified by BIOKINEMETRICS in BIOK’s sole discretion from time to time. “Software” also includes (unless otherwise specified herein) any Applications for the Biokinemetrics™ base software known as ChiroSight that may have been purchased by you from time to time during the term of this Agreement. Software applies to commercially used names by BIOKINEMETRICS including ChiroSight™(if applicable) and Telerad™.
q) “Subscription” or “Subscription Plan” refers to the payment of fees on a monthly, quarterly, or annual basis for a license to access and use the Software and any included Services.
r) “User” means the individual end-user that may be authorized to use the Platform at a Clinic Site upon your account sign up.
s) “User ID” means the unique user identification created for access to BIOKINEMETRICS Platform for the Primary Provider, which enables access and use the Telerad™ Platform at a Clinic Site.
t) “Updates” means Software improvements, patches, security updates, fixes, (including, e.g., security fixes or bug fixes), changes, including addition or removal of new or existing features, new required processes or steps, other components, error corrections, or other requirements for continued use of the Software, generally provided to users of your specific version of the Software, when-and-if they are made available and as may be required by BIOK for continued use of the Software. For clarity, Updates exclude Upgrades.
u)“You” or “you” means the end user or Primary Provider, whether an individual or an entity, who has executed the sign up for the Platform access and the required terms and conditions of this Agreement. “You”, “you” and “your” as used throughout this Agreement means the individual person, or the legal entity on whose behalf such person acts, that subscribes to the Platform service for Telerad™ and is identified by name during the Software account creation and registration process.
You will provide accurate, up-to-date account information and securely manage such information.
You will need to sign up for an account to use the Platform. We may need to verify your identity, and you authorize us to collect information (e.g., date of birth, address) from you to do so (collectively, with all information requested to enable your account, “Account Information”). You will provide accurate, up-to-date Account Information, and we disclaim any liability arising from your failure to do so. Such failure may further limit your ability to use the Platform and affect the Platform’s accuracy and effectiveness.
You are responsible for securely managing your Account Information, including any password(s) for the Platform. You will notify us immediately if you believe that your Account Information or device you use to access the Platform has been lost or stolen or that someone is using your account without your permission.
Upon your access to the Platform and the terms of this Agreement, (i) the Primary Provider will be assigned a User ID and password by you. You will not disclose or make available or permit or cause any other party to disclose or make available, the Administrator Email and Password or any User ID to any person other than the Primary Provider or the User to which that identifier was assigned, respectively. You will treat the Administrator Email and Password and each User ID as confidential information and will adopt and maintain reasonable and appropriate security precautions for the protection of each User ID and the Administrator Email and Password to prevent their disclosure to or use by unauthorized persons. Neither you nor any other person will not acquire any rights in any Administrator Email and Password or User ID, and such Administrator Email and Password and User ID may be revoked or changed at any time in BIOKINEMETRICS’s sole discretion. Except as may be required by law, you will not permit any third party (other than an authorized User or Provider) to have access to or use the Platform without BIOKINEMETRICS’s prior written consent, or to cause or permit any User, Provider, or third party to access or use the Platform not authorized by you. In the event a User ID or Administrator Email and Password is disclosed to or used by parties other than the authorized User or Provider to which those identifiers were assigned which such identifier is authorized to be used, you will immediately be responsible for payment for all access fees as if those unauthorized users or locations were additional Users, Providers or Clinic Sites (as applicable) authorized through the purchase of appropriate Platform access portals, and BIOKINEMETRICS will be entitled to immediately charge your credit or debit card account for such fees in the manner authorized by you for the Platform access.
You must use your BIOK TELERAD account to keep it active. This means you must sign in at least once in a one-year period and use the Service to keep your BIOK account, and associated Services, active, unless a longer period is provided in the BIOK account activity policy or in an offer for a paid portion of the Services. If you don’t sign in during this time, we will assume your BIOK account is inactive and will close it for you. If we reasonably suspect that your BIOK account is at risk of being used by a third party fraudulently (for example, as a result of an account compromise), BIOK may suspend your account. If you are having trouble accessing your BIOK account, please visit this website: www.chirosight.com
Desktop and Mobile access of our Platform may be available, but you must follow applicable third-party terms when using them.
The Platform may be available through one or more software applications from a compatible desktop computer or mobile device. You agree that you are solely responsible for any applicable changes, updates and fees as well as complying with the provisions of your agreement with your telecommunications provider and any third-party mobile app marketplace.
With respect to the applicable Software, you are only granted limited rights to access and use the Platform you have subscribed to, signed up for, or for which you have purchased a license or acquired a free trial. BIOKINEMETRICS reserves all other rights in the applicable Software not granted to you in writing in this Agreement. Conditioned upon your compliance with the terms and conditions of this Agreement (including all payment obligations), BIOKINEMETRICS grants you a personal, limited, nonexclusive, nontransferable, revocable license to use the applicable Software only for the period of use provided in the ordering and activation terms (as applicable), as set forth in this Agreement or in BIOKINEMETRICS’s then-current product discontinuation policies (as updated from time to time) and only for the purposes described by BIOKINEMETRICS for the applicable Software.
You acknowledge and agree that such Software is licensed, not sold.
You may have access to professional advice, diagnosis, patient health findings on x-ray images, and third-party radiology reports or third-party opinions. Any such findings, diagnosis, advice and services or products are not covered under this Agreement.
From time to time, we may offer specific functionality in the Platform that provides you with the opportunity to seek professional advice, for example, the ability to receive a radiologist expert, second opinion, first opinion, or recommendation or advice. BIOKINEMETRICS is not in the business of providing legal, financial, accounting, health care recommendations, healthcare second opinions, diagnostic determinations, reports, care plans, x-ray findings, insurance, or other professional service or advice, and you should consult with professionals for advice prior to making important decisions in these areas. BIOK is simply connecting you the end user with a software platform to transact a payment method between you and a radiologist for your plain film radiology services that you request from the radiologist.
The Platform may include information about or offers for third-party services or products or allow you to access or connect your account to third-party services or products. BIOKINEMETRICS does not warrant, and is not responsible for, the services and products or claims made about them, or the actions or inactions of any third party. You must review and comply with the third-party’s services and product provisions. BIOKINEMETRICS may be compensated by those third parties, which could impact whether, how and where the services and products are displayed.
You understand that by using and accessing the TELERAD™ Platform Services, that you will be sending protected health information of your patients in the form of patient data and x-ray studies in a DICOM format or via messaging services to a Radiologist that you selected from the available Radiologists listed on the TELERAD™ Software Platform for the purpose of receiving a second opinion report from the selected Radiologist using the internet and cloud software Platform for a fee for each study that you submit and upload to the TELERAD™ Platform. A “STANDARD” x-ray study is defined as 3 or fewer images or x-ray views of the same body region. A “STANDARD PLUS” x-ray study is defined as 4 or more images or x-ray views of the same body region. The fees that YOU must pay to BIOK for sending these studies to a Radiologist for a radiology second opinion report on these STANDARD or STANDARD PLUS studies from the Radiologist are defined in EXHIBIT A of this Agreement. Other types of radiology studies or radiology reports are also defined and YOUR fees to pay to BIOK for each transaction (each study) are described in EXHIBIT A.
End User (YOU) and all agents, employees, and contractors of End User (YOU) shall be prohibited from using, contracting, or utilizing any radiology professional reporting services of any contracted Radiologist that provides services on the TELERAD™ Platform for a period of 3 years after YOUR termination of the subscription of the Platform Software service. YOU agree that damages would be received by BIOK should YOU utilize the services of any radiologist contracted directly or indirectly on the BIOK TELERAD™ Platform. YOU understand and agree that BIOK has incurred considerable cost in developing the BIOK TELERAD™ platform and introducing YOU to the radiologists on the Platform and if YOU were to bypass the BIOK TELERAD™ Platform by working direct with the radiologist that it would cause damages and harm to BIOK; therefore YOU agree that the penalty for such violation of this Non-Solicitation clause shall be fourteen dollars ($14) for each patient x-ray study that was provided by the radiologist for YOU or YOUR legal business entity, plus all attorney fees and collection costs and fees payable by YOU to BIOK within 30 days of the date of the violation of this Non-Solicitation clause.
By agreeing to these Terms, you’re agreeing that, when using the Services, you will follow these rules:
If you violate these Terms, we may stop providing Services or access to the Platform to you or we may close your BIOK account. We may also block delivery of a communication (like email, requesting second opinion reports) to or from the Platform Services in an effort to enforce these Terms.
We expect you to obey the law and follow certain rules in using the Platform.
BIOK does not condone or support any activity that is illegal, violates the rights of others, harms or damages BIOK’s reputation, or could cause BIOK to be liable to a third party. At minimum, you may not use the Platform to:
We take copyright seriously at BIOK. We respect the copyrights of others and expect you to do the same. If you repeatedly infringe the copyrights of others, we may terminate your account.
BIOK may terminate your use of the Platform based on our reasonable suspicion that your activities, business or products are objectionable or promote, support or engage in any of the prohibited uses described above.
BIOK may (but has no obligation to) monitor the use of the Platform or Content and may edit or remove any Content. We may disclose any information necessary to satisfy our legal obligations, protect BIOK or its customers, or operate the Platform properly.
You may not alter, modify, or adapt the Platform, or create any derivative works from the Platform Software. This Agreement gives you no rights to source code, and you expressly agree not to disassemble, decompile, reverse engineer, reverse compile, reverse assemble, or otherwise translate or convert all or any part of the Platform Software, or attempt to reproduce or recreate the source code of all or any part of the Platform Software or design, or otherwise reduce it to a human- perceivable form. Further, you must not permit any other person to take any of the actions prohibited by this Prohibited Use Section. You are solely responsible for purchasing, maintaining, and operating the hardware on which the Platform Software is accessed and any operating systems for such hardware. Your License does not give you the right to, and you may not, reproduce, sell, lease, sublicense, rent, or otherwise transfer or dispose of all or any portion of the Platform Software. This Agreement and the License are not transferable or assignable by you, whether voluntarily or involuntarily. You represent and warrant to BIOKINEMETRICS that the Platform Software will be used solely for your internal health care practice management and business purposes at the designated Primary Clinic Site, and that you will not use the Platform Software for any purpose that is not expressly authorized by this Agreement.
Customer support for some Services is available at support@chirosight.com. Certain Services may offer separate or additional customer support, subject to the terms available or otherwise specified. Support may not be available for preview or beta versions of features or Services.
The Services may allow you to access or acquire products, services, radiologists, websites, links, content, material, games, skills, integrations, bots or applications from independent third parties (companies or people who aren’t BIOK) (“Third-Party Apps and Services”). Many of our Services also help you find, make requests to, or interact with Third-Party Apps and Services or allow you to share Your Content or Data, and you understand that by using our Services you are directing them to make Third-Party Apps and Services available to you. You should review the third-party terms and privacy policies before acquiring, using, requesting, or linking your BIOK Account to any Third-Party Apps and Services. Any third-party terms or ChiroSight interfaces do not modify any of these Terms. You are responsible for your dealings with third parties. BIOK does not license any intellectual property to you as part of any Third-Party Apps and Services and is not responsible or liable to you or others for information or services provided by any Third-Party Apps and Services. Radiologists are considered Third Parties and have non-solicitation rules associated with them that prohibit YOU from utilizing their services outside of the Telerad™ Platform.
BIOK is not responsible for any account information obtained from third parties.
When you direct BIOK to retrieve your account information from third parties, you grant BIOK a limited power of attorney to access the third party services to retrieve such account information. BIOK will be acting as your agent and will not be acting on behalf of the third party.
BIOK does not review third party account information for accuracy and is not responsible for any issues or expenses resulting from such account information, including any inaccuracy, error, delay, or non-delivery. For clarity, BIOK is not responsible for any payment processing errors or fees arising from inaccurate account information provided by third parties. Radiologists are considered Third Parties and have non-solicitation rules associated with them that prohibit YOU from utilizing their services outside of the Telerad™ Platform.
When there’s something we need to tell you about a Service you use, we’ll send you Service notifications. If you gave us your email address or phone number in connection with your BIOK account, then we may send Service notifications to you via email or via SMS (text message), including to verify your identity before registering your mobile phone number and verifying your purchases. We may also send you Service notifications by other means (for example by in-product messages).
The Services, Third-Party Apps or Integrations and Services, or material or products offered through the Services may be unavailable from time to time, may be offered for a limited time, or may vary depending on your region or device. If you change the location associated with your BIOK account, you may need to re-acquire the material or applications that were available to you and paid for in your previous region.
We strive to keep the Services up and running; however, all online services suffer occasional disruptions and outages, and BIOK is not liable for any disruption or loss you may suffer as a result. In the event of an outage, you may not be able to retrieve Your Data that you’ve stored. We recommend that you regularly backup Your images and reports Data that you store on the Services or store using Third-Party Apps and Services.
We may change these Terms at any time, and we’ll tell you when we do. Using the Services after the changes become effective means you agree to the new terms. If you don’t agree to the new terms, you must stop using the Services, close your BIOK account and, if you are a parent or guardian, help your minor child close his or her BIOK account.
Sometimes you’ll need software updates to keep using the Services. We may automatically check your version of the software and download software updates or configuration changes. You may also be required to update the software to continue using the Services. Such updates are subject to these Terms unless other terms accompany the updates, in which case, those other terms apply. BIOK isn’t obligated to make any updates available and we don’t guarantee that we will support the version of the system or device for which you purchased or licensed the software, apps, content or other products.
Additionally, there may be times when we need to remove or change features or functionality of the Service or stop providing a Service or access to Third-Party Apps and Services altogether. Except to the extent required by applicable law, we have no obligation to provide a re-download or replacement of any material, or applications previously purchased. We may release the Services or their features in a preview or beta version, which may not work correctly or in the same way the final version may work.
The Platform Software allows you the capability to send radiographic images to a radiologist for the purpose of having the radiologist provide a second opinion report of findings of those x-ray images. It is your responsibility to properly maintain such on-site backup and BIOKINEMETRICS does not assume any responsibility or liability for such on-site backup. Any data for which you utilize the Platform Data Services in connection with the Platform Software will be maintained by Off-Site HIPAA compliant Web Services and/or by one or more third party cloud technology providers selected in BIOKINEMETRICS’s sole discretion. Such back-up is not intended to allow access for revisions or data review and instead is only to be available for BIOK’s internal operations. Access to or use of that data or the Platform Data Services will be subject to any operational constraints, restrictions, interruptions, and requirements of such third-party cloud technology provider that are now in effect or that may be in effect in the future. BIOKINEMETRICS will not be liable in any way for your failure to have access to or use of that data or any loss or corruption of that data, or the failure of the cloud technology provider or any phase or portion of the World Wide Web or Internet to provide access to or enable use of that data or the Platform Data Services. BIOKINEMETRICS will access the data on the cloud storage associated under our HIPAA BAA agreement.
Unless accompanied by a separate BIOK license agreement (for example, if you are using the BIOK application ChiroSight that is governed under a separate agreement from this Agreement, then the BIOK Platform License Terms for the any software Platform provided by us to you as part of the Services is subject to these Terms.
If you comply with these Terms, we grant you the right to allow you to use one account of the software Platform for use by only one Provider as part of your use of the Platform Services. Any third-party scripts or code, linked to or referenced from the software or website, are licensed to you by the third parties that own such code, not by BIOK. Notices, if any, for the third-party code are included for your information only.
The software is licensed, not sold, and BIOK reserves all rights to the software not expressly granted by BIOK, whether by implication, estoppel, or otherwise. This license does not give you any right to, and you may not:
Some Services may be free; others may have costs associated. For those with costs, we may charge your payment method, (ie. Designated credit card) for fees or on a subscription basis. You may cancel your subscription at any time (but you may not receive a refund).
We may require payment of fees or a subscription charge for use of the Platform (or certain portions of the Platform) and you agree to pay such fees. If you registered for a trial, you may need to purchase the Platform before the trial ends in order to retain access to any content provided to, or created through, the Platform.
Payments will be billed in U.S. dollars, and your account will be charged upon purchase and when you provide your payment information, unless stated otherwise in applicable payment provisions. If your payment information is not accurate, current, and complete, we may suspend or terminate your account. If you do not notify us of updates to your payment information, we may participate in programs supported by your card provider to try to update your payment information, and you authorize us to continue billing your account with the updated information that we obtain.
You may be charged a subscription fee in advance on an annual basis or monthly basis or other recurring interval disclosed to you prior to your purchase. BIOKINEMETRICS may change the price for recurring subscription fees from time to time with notice to you. Price changes will take effect at the start of the next subscription period following the date of the price change. If you do not agree with the price change, you may unsubscribe prior to the price change going into effect.
Your payment to BIOKINEMETRICS will automatically renew at the end of the applicable subscription period but you can cancel a Platform subscription at any time. Subscription cancellations will take effect the day after the last day of the current subscription period. If you cancel in the middle of a subscription period, you will be able to continue to access and use the applicable Service until the end of your subscription period. We do not provide refunds or credits for any cancellations or partial subscription period. For example, if the subscription period is one month and you pay a fee at the beginning of that month (or 30-day period) then you cancel one day after the period began you will not receive any refund for a partial month used no matter the length.
If you purchase a Service, then these payment terms apply to your purchase, and you agree to them. The actual dollar amount and fees for services and subscription plans are listed in Exhibit A of this Agreement.
Ending or cancelling your Services. If your Services are canceled (whether by you or us), first your right to access the Services stops immediately and your license to the software related to the Services ends. Second, we’ll delete Data or Your Content associated with your Service or will otherwise disassociate it from you and your BIOK account (unless we are required by law to keep it, return it, or transfer it to you or a third party identified by you). As a result you may no longer be able to access any of the Services (or Your Content that you’ve stored on those Services). You should have a regular backup plan. Third, you may lose access to products you’ve acquired. If you have canceled your BIOK account and have no other account able to access the Services your Services may be canceled immediately.
Please note that removing TELERAD from your device may not cancel your subscription or delete your data. If you want to cancel your subscription for a Service, please follow the applicable Service termination instructions.
You may cancel a Service at any time, with or without cause. Cancelling paid Services stops future charges to continue the Service. To cancel a Service send a written statement to the BIOK account management support@chirosight.com email. You may lose access to and use of your account when you cancel the Services.
You may cancel your account and BIOK may suspend or terminate your use of the Platform. Removing TELERAD from your device may not cancel your subscription or delete your data.
This Agreement is effective until your subscription expires or you cancel your account or BIOK terminates this Agreement (or your account). BIOK may terminate this Agreement (and your account) or suspend the Platform at any time in our discretion.
Please note that removing TELERAD from your device may not cancel your subscription or delete your data. If you want to cancel your subscription for a Service, please follow the applicable Service instructions.
You must stop using the Platform once your subscription expires or you cancel your account (or if this Agreement or your account is terminated).
Upon expiration of your subscription or cancellation of your account, or BIOK’s termination of your account or this Agreement, you must immediately stop using the Platform and pay all fees for Platform used. No expiration or termination will affect your obligation to pay all fees due or that may have accrued through the effective date of expiration or termination or entitle you to any refund.
General Termination Effects: The Software shall be disabled on your computer(s) and unable to be installed and Support for the Software will be discontinued or terminated, as well as your access to and use of any Services or paid add-on services, when your Software Subscription is terminated or expires, or when BIOK decides to discontinue the Software. Your rights to use the Software, including your access to and use of any Services or Subscription, or any paid add-on service, may be terminated by BIOK immediately and without notice in accordance with the termination provisions of this Agreement, including if at any time you fail to pay any renewal fees or fail to comply with any other term or condition of this Agreement.
There are a few parts of this Agreement that will continue to apply after termination.
The following Sections will survive any termination, discontinuation or cancellation of the Platform or your account: “Your Personal Information,” “Payment and Cancellations” (with respect to fees due and unpaid), “Content and Data,” “Effect of Termination,” “Disclaimers,” “Limitation of Liability,” “Indemnity Obligations,” “Disputes,” and “General Terms (Miscellaneous)”.
When you subscribe to a paid Software Subscription Plan or any paid add-on services, you must have a valid credit card or a valid debit card with a Visa or MasterCard logo (“Card”) or sufficient funds in an acceptable U.S. checking or savings account to cover an electronic debit of the initial and monthly Subscription or service fee to obtain (and to maintain uninterrupted) the applicable Software Subscription and any paid add-on service(s). The information you provide must be accurate and complete. When you subscribe and provide payment information, your Card or bank account will be debited (initially), and will be thereafter automatically re-debited, at the then current offering price(s) or rate(s), at the beginning of each applicable monthly, quarterly, or one-year Subscription Plan term or add-on service term (either, a “Renewal Term”) to maintain the applicable Software Subscription and/or other paid add-on service. You may notify us at any time to cancel a Subscription or other paid add-on service. To help minimize the potential for unwanted Renewal Term charges, you should notify us of your desire to cancel a Subscription Plan or other paid add-on service prior to the beginning of its next Renewal Term.
You are responsible and will be liable for assuring full compliance with this Agreement by your employees and agents, including, without limitation, the Primary Provider and User to which this License or Access applies and any additional Providers (and their employees and agents) or Users of the Platform which may be authorized by BIOK purchased by you from time to time during the Term.
You are required to execute a Business Associate Agreement in the form provided to you by BIOKINEMETRICS for purposes of complying with the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) The Business Associate Agreement shall be binding between you and BIOKINEMETRICS only to the extent that BIOKINEMETRICS qualifies as a “business associate,” as that term is defined in 45 C.F.R. § 160.103. The Business Associate Agreement shall not apply to any information that does not constitute “protected health information,” as that term is defined in 45 C.F.R. § 160.103. Your failure to execute the Business Associate Agreement constitutes a breach of this Agreement and is cause for BIOKINEMETRICS to immediately terminate this Agreement and the License.
You understand and agree that BIOKINEMETRICS may, from time to time in its sole discretion and pursuant to 45 C.F.R. § 164.514, de- identify protected health information that it retrieves from the Platform Database described in this Agreement to compile reports, statistics, or other records incorporating such de-identified information on an aggregate basis (the “De-Identified Information”). This De-Identified Information may disclose to BIOK a Provider or a Provider’s patients; provided, however, at no time shall BIOKINEMETRICS make available to any third Party the identification of the Provider, or Patient name identification. BIOKINEMETRICS may sell, distribute, or otherwise use and disclose such reports, statistics or other records based on such De-Identified Information to third parties in BIOKINEMETRICS’s sole discretion without restriction. You agree not to hold BIOKINEMETRICS liable for such sale, disclosure, or distribution of those reports, statistics, or records or the use by third parties of such reports, statistics, or records. YOU ARE RESPONSIBLE FOR UNDERSTANDING HIPAA REQUIREMENTS AND BIOK DOES NOT PROVIDE LEGAL OR MEDICAL ADVICE.
BIOK does not provide medical or any other health care advice, diagnosis, or treatment. Always seek the advice of your physician or other qualified health care provider with any questions you may have regarding a medical condition, diet, fitness, or wellness program. Never disregard professional medical advice or delay in seeking it because of information you accessed on or through the Platform Services. Any advice or recommendations made by a radiologist through the Platform service contained in: 1) a radiology report, 2) second opinion, 3) message notification, or 4) verbally, or 5) by any other means shall be between YOU and the Radiologist (third party) and shall NOT be considered as advice, recommendations, or a diagnosis by BIOK. BIOK has no liability with the content of the communications, written or verbal, from the third party radiologist to YOU.
The Software and the Documentation may contain patented and/or copyrighted material, trade secrets, artist graphics, and/or other confidential or proprietary information and materials of BIOKINEMETRICS or its suppliers or licensors. The Platform Software and the Documentation is protected by some or all the following: United States patent and copyright laws and international treaty provisions and other federal, state, and other laws protecting the trade secrets or confidential or proprietary information and materials of BIOKINEMETRICS and its suppliers and licensors; and you agree to fully comply with all of those laws. BIOKINEMETRICS and its suppliers and licensors reserve all patent, copyright, trade secret, trademark, service mark, and all other confidential, proprietary, intellectual, and other rights in and to the Platform and the Documentation, and all rights and interests in and to the Platform and the Documentation will always remain BIOKINEMETRICS’s or its suppliers’ or licensors’ sole and exclusive property. You must not obscure, remove, or otherwise alter any notice of BIOKINEMETRICS’s or any of its suppliers’ or licensors’ ownership or other rights, including, without limitation, patent, or copyright notices, from any part of the Platform Software or Documentation or any output derived from the Platform Software.
Any, ideas, discoveries, inventions, patents, products, copyrightable works, or other information (collectively, “Work Product”) developed in whole or in part by BIOKINEMETRICS in connection with providing the Platform Software and any related services under this Agreement will be, and will remain, the exclusive property of BIOKINEMETRICS. Upon request, Primary Provider will execute (and will cause any other Provider or User designated by BIOKINEMETRICS to execute) all documents necessary to confirm or perfect BIOKINEMETRICS’s exclusive ownership of such Work Product.
BIOKINEMETRICS will own all right, title and interest in and to, and you hereby transfer and assign all of your right, title, and interest in and to, all De-Identified Information that BIOKINEMETRICS makes or aggregates from any such patient or health-related data, as provided above.
We don’t make any warranties about the Platform except as expressly stated in this Agreement.
The only warranties we make about the Platform are (1) stated in this Agreement, or (2) as provided under applicable laws. The Platform is otherwise provided “as-is,” and we do not make any other warranties about the Platform. Unless required by law, we do not provide implied warranties, such as the implied warranties of merchantability, fitness for a particular purpose, or non-infringement. We do not warrant that the Platform is error-free, secure, or free from any viruses or other harmful components. We also do not provide any warranties with respect to data loss or to the accuracy, reliability, or availability of the Platform, nor of any content (including any Content) or information made available in the Platform. If the exclusions for implied warranties do not apply to you, any implied warranties are limited to sixty (60) days from the date of purchase or delivery of the Platform, whichever is sooner.
BIOK, AND OUR AFFILIATES, RESELLERS, DISTRIBUTORS, AND VENDORS, MAKE NO WARRANTIES, EXPRESS OR IMPLIED, GUARANTEES OR CONDITIONS WITH RESPECT TO YOUR USE OF THE SERVICES. YOU UNDERSTAND THAT USE OF THE SERVICES IS AT YOUR OWN RISK AND THAT WE PROVIDE THE SERVICES ON AN “AS IS” BASIS “WITH ALL FAULTS” AND “AS AVAILABLE.” YOU BEAR THE ENTIRE RISK OF USING THE SERVICES. BIOK DOESN’T GUARANTEE THE ACCURACY OR TIMELINESS OF THE SERVICES. TO THE EXTENT PERMITTED UNDER YOUR LOCAL LAW, WE EXCLUDE ANY IMPLIED WARRANTIES, INCLUDING FOR MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, WORKMANLIKE EFFORT, AND NON-INFRINGEMENT. YOU MAY HAVE CERTAIN RIGHTS UNDER YOUR LOCAL LAW. NOTHING IN THESE TERMS IS INTENDED TO AFFECT THOSE RIGHTS, IF THEY ARE APPLICABLE. YOU ACKNOWLEDGE THAT COMPUTER AND TELECOMMUNICATIONS SYSTEMS ARE NOT FAULT-FREE AND OCCASIONAL PERIODS OF DOWNTIME OCCUR. WE DO NOT GUARANTEE THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE OR THAT CONTENT LOSS WON’T OCCUR, NOR DO WE GUARANTEE ANY CONNECTION TO OR TRANSMISSION FROM THE COMPUTER NETWORKS.
DISCLAIMER OF WARRANTY. The application is licensed “as is,” “with all faults,” and “as available.” You bear the entire risk as to its quality, safety, comfort, and performance. Should it prove defective, you assume the entire cost of all necessary servicing or repair. The application publisher, on behalf of itself, BIOK, wireless carriers over whose network the application is provided, and each of our respective affiliates, vendors, agents, and suppliers (“Covered Parties”), gives no express warranties, guarantees, or conditions in relation to the application. You may have additional consumer rights under your local laws that this agreement can’t change. To the extent permitted under your local laws, Covered Parties exclude any implied warranties or conditions, including those of merchantability, fitness for a particular purpose, safety, comfort, and non-infringement. If your local laws impose a warranty, guarantee or condition even though these terms do not, its duration is limited to 90 days from when you download the application.
To the extent not prohibited by law, if you have any basis for recovering damages, you can recover from the application publisher only direct damages up to the amount you paid for the application or $1.00, whichever is greater. You will not, and waive any right to, seek to recover any other damages, including lost profits and consequential, special, direct, indirect, or incidental damages, from the application publisher.
This limitation applies to:
It also applies even if:
Our liability is limited when it comes to issues you may encounter with our Platform.
Other than the rights and responsibilities described in this Agreement and as allowed by applicable law, BIOK won’t be responsible for any losses.
The total aggregate liability of BIOK and our third party providers, licensors, distributors or suppliers (“BIOK Parties”) arising out of or relating to this Agreement is limited to the greater of: (1) the fees that you paid to use the relevant Service(s) in the 12 months before the breach or (2) $100.
The BIOK Parties won’t be responsible for the following:
The above limitations apply even if the BIOK Parties have been advised of the possibility of such damages. This Agreement sets forth your exclusive remedy with respect to the Platform and its use.
If you’re legally exempt from certain responsibilities, including indemnification, then those responsibilities don’t apply to you under this Agreement. For example, the United Nations enjoys certain immunities from legal obligations and this Agreement doesn’t override those immunities.
If you have any basis for recovering damages (including breach of these Terms), you agree that your exclusive remedy is to recover, from BIOK or any affiliates, resellers, distributors, Third-Party Apps and Services providers, and vendors, direct damages up to an amount equal to your Services fee for the month during which the loss or breach occurred (or up to $10.00 if the Services are free). You can’t recover any other damages or losses, including direct, consequential, lost profits, special, indirect, incidental, or punitive. These limitations and exclusions apply even if this remedy doesn’t fully compensate you for any losses or fails of its essential purpose or if we knew or should have known about the possibility of the damages. To the maximum extent permitted by law, these limitations and exclusions apply to anything or any claims related to these Terms, the Services, or the software related to the Services.
If someone sues us because you used the Platform unlawfully or didn’t follow our rules, you will be responsible for any harm to us.
You will indemnify and hold harmless the BIOK Parties for any losses, damages, judgments, fines, costs and expenses (including legal fees) in connection with any claims arising out of or relating to your unlawful or unauthorized use of the Platform or violation of this Agreement. BIOK reserves the right, in its sole discretion and at its own expense, to assume the exclusive defense and control of any claims. You agree to reasonably cooperate as requested by BIOK in the defense of any claims.
If You Live In (or, If a Business, Your Principal Place of Business Is In) the United States. We hope we never have a dispute, but if we do, you and we agree to try for 60 days, upon receipt of a Notice of Dispute, to resolve it informally. If we can’t, you and we agree to binding individual arbitration before the American Arbitration Association (“AAA”) under the Federal Arbitration Act (“FAA”), and not to sue in court in front of a judge or jury. Instead, a neutral arbitrator will decide, and the arbitrator’s decision will be final except for a limited right of review under the FAA. Class action lawsuits, class-wide arbitrations, private attorney-general actions, requests for public injunctions, and any other proceeding or request for relief where someone acts in a representative capacity aren’t allowed. Nor is combining individual proceedings without the consent of all parties. “We,” “our,” and “us” includes BIOK and BIOK’s affiliates, products, Platforms, or Services.
Disputes Covered—Everything Except IP. The term “dispute” is as broad as it can be. It includes any claim or controversy between you and us concerning the Services, the software related to the Services, the Services’ or software’s price, your BIOK account, advertising, marketing, communications, your purchase transaction, billing, or these Terms, under any legal theory including contract, warranty, tort, statute, or regulation, except disputes relating to the enforcement or validity of your, your licensors’, our, or our licensors’ intellectual property rights.
Send a Notice of Dispute Before Arbitration. If you have a dispute that our customer service representatives can’t resolve and you wish to pursue arbitration, you must first send an individualized Notice of Dispute to BIOK, PO Box 276, Carroll, Iowa 51401 U.S.A., or submit the form electronically. The Notice of Dispute form is available by requesting a form at legal@biokinemetrics.com Complete that form in full, with all the information it requires. We’ll do the same if we have a dispute with you. This Notice of Dispute is a prerequisite to initiating any arbitration. Any applicable statute of limitations will be tolled from the date of a properly submitted individualized Notice of Dispute through the first date on which an arbitration may properly be filed under this section 15.
Arbitration Procedure. The AAA will conduct any arbitration under its Commercial Arbitration Rules (or if you are an individual and use the Services for personal or household use, or if the value of the dispute is less than $75,000 whether or not you are an individual or how you use the Services, its Consumer Arbitration Rules). For more information, see www.adr.org or call 1-800-778-7879. These Terms govern to the extent they conflict with any applicable AAA rules. To initiate an arbitration, submit the Demand for Arbitration form available by emailing a written request to support@biokinemetrics.com; and upon completion mail to the AAA and mail a copy to us. The form must contain information that is specific to you and your claim. In a dispute involving $25,000 or less, any hearing will be telephonic or by videoconference unless the arbitrator finds good cause to hold an in-person hearing instead. Any in-person hearing will take place in your county of residence (or, if a business, your principal place of business). The arbitrator may award the same damages to you individually as a court could. The arbitrator may award declaratory or injunctive relief only to you individually to satisfy your individual claim, but not relief that would affect non-parties.
The arbitrator rules on all issues except that a court has exclusive authority: (i) to decide arbitrability, as well as formation, existence, scope, validity, and enforceability of this arbitration agreement; (ii) to decide whether the parties have complied with the pre-arbitration requirements (including the individualized Notice of Dispute and Demand for Arbitration forms); (iii) to enforce the prohibition on class, representative, private attorney-general, or combined actions or proceedings, or public injunctive relief; and (iv) to enjoin an arbitration from proceeding if it does not comply with this section.
Rejecting Future Arbitration Changes. You may reject any change we make to section 15 (except address changes) by personally signing and sending us notice within 30 days of the change by U.S. Mail to: BIOK, PO Box 276, Carroll, Iowa 51401 U.S.A. If you do, the most recent version of this Arbitration section before the change you rejected will apply.
Severability. If, after exhaustion of all appeals, a court finds any part of this section for Arbitration unenforceable as to any claim or request for a remedy, then the parties agree to arbitrate all claims and remedies subject to arbitration before litigating in court any remaining claims or remedies (such as a request for a public injunction remedy, in which case the arbitrator issues an award on liability and individual relief before a court considers that request). Otherwise, if any other part of section 15 is found to be unenforceable, the remainder will remain in effect (with an arbitration award issued before any court proceeding begins). If a court voids a term of this Agreement, the other terms will not be affected.
In the event we are unable to resolve any dispute through an informal dialogue, a third-party arbitrator or small claims court will help us resolve any disputes we might have, and any disputes will be resolved on an individual basis rather than as a class action.
If you are a U.S. customer:
You and BIOK agree that, except as provided below, any dispute, claim or controversy arising out of or relating in any way to the Platform or this Agreement (a “Claim”) will be determined by binding arbitration or small claims court, instead of in courts of general jurisdiction.
Either you or BIOK can seek to have a Claim resolved in small claims court if all the requirements of the small claims court are satisfied. Either you or BIOK may seek to have a Claim resolved in small claims court in your county of residence or the small claims court in closest proximity to your residence, and you may also bring a claim in small claims court in the Superior Court of California, County of Santa Clara.
Arbitration is more informal 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 is subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. You agree that the U.S. Federal Arbitration Act governs the interpretation and enforcement of this arbitration provision, and that you and BIOK are each waiving the right to a trial by jury or to participate in a class action. This arbitration provision shall survive termination of this Agreement and/or the termination of your account.
If you elect to seek arbitration, you must first send to BIOK a written notice of your Claim (“Notice of Claim”). The Notice of Claim to BIOK should be sent in care of our registered agent Corporation Service Company, 251 Little Falls Drive, Wilmington, DE 19808. The Notice of Claim should include both the mailing address and email address you would like BIOK to use to contact you. If BIOK elects to seek arbitration, it will send, by certified mail, a written Notice of Claim to your address on file. A Notice of Claim, whether sent by you or by BIOK, must (a) describe the nature and basis of the Claim or dispute; and (b) set forth the specific amount of damages or other relief sought.
You and BIOK agree that good-faith informal efforts to resolve disputes often can result in a prompt, low-cost and mutually beneficial outcome. You and BIOK therefore agree that, after a Notice of Claim is sent but before either you or BIOK commence arbitration or file a Claim in small claims court against the other, we will personally meet, via telephone or videoconference, in a good-faith effort to confer with each other and try to resolve informally any Claim covered by this Agreement. If you are represented by counsel, your counsel may participate in the conference as well, but you agree to fully participate in the conference. Likewise, if BIOK is represented by counsel, its counsel may participate in the conference as well, but BIOK agrees to have a company representative fully participate in the conference. The statute of limitations and any filing fee deadlines shall be tolled while the parties engage in the informal dispute resolution process required by this paragraph.
If we do not reach an agreement to resolve the Claim within sixty (60) days after the Notice of Claim is received, you or BIOK may commence an arbitration proceeding by filing a Demand for Arbitration or, alternatively, by filing a Claim in small claims court. You agree that you may not commence any arbitration or file a Claim in small claims court unless you and BIOK are unable to resolve the Claim within sixty (60) days after we receive your completed Notice of Claim and you have made a good faith effort to resolve your claim directly with BIOK during that time. If a Claim qualifies for small claims court, but a party commences an arbitration proceeding, you and BIOK agree that either party may elect instead to have the Claim resolved in small claims court, and upon written notice of a party’s election, the American Arbitration Association (“AAA”) will administratively close the arbitration proceeding. Any dispute about whether a Claim qualifies for small claims court shall be resolved by that court, not by an arbitrator. In the event of any such dispute, the arbitration proceeding shall remain closed unless and until a decision by the small claims court that the Claim should proceed in arbitration. You may download or copy a form of notice and a form to initiate arbitration at www.adr.org or by calling 1-800-778-7879. The arbitration will be conducted by the AAA before a single AAA arbitrator under the AAA’s rules, which are available at www.adr.org or by calling 1-800-778-7879, except as modified by this Agreement. Unless BIOK and you agree otherwise, any arbitration hearings will take place in the county (or parish) of either your residence or of the mailing address you provided in your Notice of Claim.
The arbitrator will be either (1) a retired judge or (2) an attorney specifically licensed to practice law in the state of California or the state of your residence and will be selected by the parties from the AAA’s National Roster of Arbitrators. The arbitrator will be selected using the following procedure: (a) the AAA will send the parties a list of five candidates meeting this criteria; (b) if the parties cannot agree on an arbitrator from the list, each party shall return its list to the AAA within 10 days, striking up to two candidates, and ranking the remaining candidates in order of preference; (c) the AAA shall appoint as arbitrator the candidate with the highest aggregate ranking; and (d) if for any reason the appointment cannot be made according to this procedure, the AAA may exercise its discretion in appointing the arbitrator. The arbitrator is bound by this Agreement. Except as otherwise provided below, all issues are for the arbitrator to decide, including issues relating to the scope and enforceability of this arbitration provision.
The parties agree that an administrative conference with the AAA shall be conducted in each arbitration proceeding, and you and a BIOK company representative shall appear at the administrative conference via telephone. If you fail to appear at the administrative conference, regardless of whether your counsel attends, the AAA will administratively close the arbitration proceeding without prejudice, unless you show good cause as to why you were not able to attend the conference.
The arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based. The award shall be binding only among the parties and shall have no preclusive effect in any other arbitration or other proceeding involving a different party. BIOK will not seek to recover its attorneys’ fees and costs in arbitration from you unless the arbitrator finds that either the substance of your Claim or the relief sought in your Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)). Judgment on any award may be entered in any court having jurisdiction. This agreement to arbitrate shall not preclude any party to the arbitration from at any time seeking injunctions or other forms of equitable relief in aid of arbitration from a court of appropriate jurisdiction including whether a Demand for Arbitration is filed in violation of this Agreement.
Unless you or BIOK seek to have a Claim resolved in small claims court, the arbitrator shall determine all issues of liability on the merits of any Claim asserted by you or BIOK and may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. To the extent that you or BIOK prevail on a Claim and seek public injunctive relief (that is, injunctive relief that has the primary purpose and effect of prohibiting unlawful acts that threaten future injury to the public), the entitlement to and extent of such relief must be litigated in a civil court of competent jurisdiction and not in arbitration. The parties agree that litigation of any issues of public injunctive relief shall be stayed pending the outcome of the merits of any individual Claims in arbitration. Before a court of competent jurisdiction issues any public injunctive relief, it shall review the factual findings of the arbitration award on which any injunction would issue with no deference to the arbitrator.
Payment of all filing, administration and arbitrator fees will be governed by the AAA Rules. You are required to pay AAA’s initial filing fee, but BIOK will reimburse you for this filing fee at the conclusion of the arbitration to the extent it exceeds the fee for filing a complaint in a federal or state court in your county of residence or in Santa Clara County, California. If the arbitrator finds that either the substance of your Claim or the relief sought in your Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules and BIOK will not reimburse your initial filing fee. The parties agree that the AAA has discretion to modify the amount or timing of any administrative or arbitration fees due under the AAA Rules where it deems appropriate, provided that such modification does not increase the AAA fees to you or BIOK, and you and BIOK waive any objection to such fee modification.
You and BIOK 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, if you have elected arbitration, unless both you and BIOK agree otherwise, the arbitrator may not consolidate any other person’s Claims with your Claims and may not otherwise preside over any form of a representative or class proceeding. If BIOK believes that any Claim you have filed in arbitration or in court is inconsistent with the limitations in this paragraph, then you agree that BIOK may seek an order from a court determining whether your Claim is within the scope of the Class Action Waiver. If this Class Action Waiver is found to be unenforceable, then the entirety of this Disputes Section shall be null and void.
Except as expressly provided under these Terms, BIOK does not grant you a license or any other rights of any type under any patents, know-how, copyrights, trade secrets, trademarks or other intellectual property owned or controlled by BIOK or any related entity, including but not limited to any name, trade dress, logo or equivalents. If you give to BIOK any idea, proposal, suggestion or feedback, including without limitation ideas for new products, technologies, promotions, product names, product feedback and product improvements (“Feedback“), you give to BIOK, without charge, royalties or other obligation to you, the right to make, have made, create derivative works, use, share and commercialize your Feedback in any way and for any purpose. You will not give Feedback that is subject to a license that requires BIOK to license its software, technologies or documentation to any third party because BIOK includes your Feedback in them.
Unless required by law, BIOKINEMETRICS will not charge or otherwise collect from you state sales or use tax on the license or purchase of Software, including any subsequent purchase of an Application, or on the Fees for the Monthly Services Fees for the software as long as the Software is delivered to you electronically. You acknowledge, however, that the state, city, or other jurisdiction in which you reside, if outside of the state of Iowa, may subject the Software license or purchase and payment of the Data Services Fees to state or local sales or use tax. You are solely responsible for determining whether the Software license or purchase and the Data Services Fees subject you to sales or use tax outside the state of Iowa. Furthermore, you are responsible for the payment of such sales or use tax and any filing or related obligations under applicable state and local laws. BIOKINEMETRICS is not responsible or otherwise liable to you for any state or local sales or use tax liability that you may incur due to your transactions with BIOKINEMETRICS. By accepting access to the PLATFORM, you acknowledge your understanding of the provisions set forth in this Section and hereby agree not to hold BIOKINEMETRICS liable for any sales or use tax liability arising based on your license or purchase of the Services, your payment of the Platform access Services Fees, or any other transaction with BIOKINEMETRICS under this Agreement. Should taxes need to be assessed you agree to allow your method of payment to be charged for any taxes owed in your jurisdiction at the time of selecting the services OR after the services were provided.
The headings in this Agreement are for convenience of reference only and shall not be used to interpret or construe any of the terms of this Agreement. Words and phrases of this Agreement will be construed in the singular or the plural number, and as masculine, feminine, or neuter gender, according to the context.
By your execution of this Agreement by accessing the Platform, you warrant and represent to BIOKINEMETRICS that you have the authority to enter into and agree to the terms of this Agreement and to perform your duties and obligations hereunder (or, if you are representative of an entity, you warrant and represent that you have the authority to execute this Agreement on behalf of and bind the entity which you represent to perform its duties and obligations hereunder).
The License is only valid if you access the Platform and therefore agree to the terms of this Agreement by clicking the “Accept” box below. By clicking the “I Accept” button/box below you acknowledge you have read and agree to be bound by all the terms of this Agreement. If you do not agree to the terms of this Agreement, click “Cancel” below and the License will be invalid, and your use of the Software will be denied.
This section, and sections labeled with headers names: Termination, Warranties, Limitation of Liabilities, Access to Data, Indemnification, Binding Arbitration, and Refund Policy, and Payment (for amounts incurred before the end of these Terms and those that by their terms apply after the Terms end will survive any termination or cancellation of these Terms. We may assign these Terms, in whole or in part, at any time without notice to you. You may not assign your rights or obligations under these Terms or transfer any rights to use the Services. This is the entire agreement between you and BIOK for your use of the Services. It supersedes any prior agreements between you and BIOK regarding your use of the Services. All parts of these Terms apply to the maximum extent permitted by relevant law. If a court or arbitrator holds that we can’t enforce a part of these Terms as written, we may replace those terms with similar terms to the extent enforceable under the relevant law, but the rest of these Terms won’t change. Except for section on “Arbitration and class action waiver” these Terms are solely for your and our benefit; they aren’t for the benefit of any other person, except for BIOK’s successors and assigns.
If any provision of this Agreement is unlawful, void, or unenforceable for any reason, then that provision will be severed and the remaining provisions will remain in full force and effect.
If you have any questions about the Platform or this Agreement, please contact BIOK support at support@biokinemetrics.com
If we waive some of our rights under this Agreement, it doesn’t mean we waive our rights in other circumstances.
BIOK’s failure to act or enforce any of its rights does not constitute a waiver of any of our rights. Any waiver by BIOK of any of the provisions in the Agreement must be made in writing and signed by a duly authorized officer of BIOK.
You can’t transfer this Agreement or your right to use the Platform to someone else without our permission.
BIOK may assign this Agreement to any party at any time without notice to you. You may not assign your rights under this Agreement, by operation of law or otherwise, without our consent. Any attempts to do so without our consent will be void.
IMPORTANT NOTICE. USE LIMITATIONS: Your rights to use the Software, Services, add-on products and services (if any) are subject to the general terms above and the Additional Terms and Conditions below. The Additional Terms and Conditions BELOW shall prevail over any conflict or inconsistency with the General terms above.
Registering the Software. During or after installation, you will be required to activate and register the Software (including providing your company information and the personal information of an authorized company representative) before use. You will be asked to provide a valid Software product and/or license number or key. You agree to keep your registration and/or account profile information accurate, complete, and current and any Software license information secure and confidential. Allowing or enabling others to use your license number(s), product number(s), and validation number(s), if any, is a violation of this Agreement, grounds for immediate termination by BIOK and is strictly prohibited.
BIOK Account Creation and Sign Up or Sign In. You will be required to create or sign up for a BIOK account (and sign in) with BIOK in order to use the Platform Software and you agree to do so within the time specified by the Software, otherwise you will not be able to continue to use the Software. To help avoid unintended access to your account or profile information, the Software may be designed to automatically sign you out of your account (and require another sign in), including after periods of inactivity. When signing up or using the Software, you may be prompted to create a (one-time) private encryption key or password in connection with your account and data file(s), and you may be required to engage in multi-factor authentication, including via use of a unique security code sent to your mobile device. You understand and agree that you are responsible for any and all mobile data charges associated with this multi-factor authentication. Once created, you must take care to either memorize and/or securely store all passwords and encryption keys. If you forget or misplace an encryption key, you may lose access to your data that is encrypted with that key. BIOK is not responsible or liable for passwords or encryption keys stored insecurely, forgotten, or misplaced, or for any unauthorized access or inability to retrieve or recover access to data resulting from such unsecured, forgotten, or misplaced passwords or encryption keys.
Registration Data. Your data, including your registration information, will be collected and used as provided in this Agreement and in accordance with our privacy policies, or by accessing the Privacy link on the website for the Software. If and when you connect to the internet and use the Software, BIOK may also gather certain kinds of information which BIOK may use to improve the Software and/or develop other BIOK products, better customize your experience with the Software in future releases, and present you with improved BIOK marketing offers.
Uploaded Data; Content. You agree and acknowledge that you are solely responsible for all data and other Content you upload to the BIOK TELERAD™ Platform Services. BIOK does not control the data or other Content stored within users’ accounts and does not have any obligation to monitor such data or Content for any purpose.
You acknowledge and agree that your account may be subject to limitations on storage, and/or the quantity, size and format of the data or other Content permitted for upload to the BIOK Data Protect Services. You are solely responsible for any data or Content that may be lost or unrecoverable through your use of the BIOK Data Protect Services.
You acknowledge that BIOK and its licensees may display advertisements and other information adjacent to or included with your data or account on and through the BIOK Platform.
Receiving and Installing Software Updates. If and when you connect to the internet and use the Software, BIOK may push Updates to your computer and install such Updates automatically, with or without notice. BIOK may also include Updates and in-product messaging in any transmission or install programs you may have requested. If you fail to download and install, or fail to allow automatic download and installation of, a required Update within the timeframe required by BIOK, BIOK may immediately terminate your Subscription and your license to use the Software and may terminate your access to the Platform Software, or Services.
Support Services Fees. Only subscribers with active, paid accounts in good standing and specified Subscriptions with included or paid support plan shall have access to the support Services. If your particular Subscription plan does not include support, you will have to pay a fee to access the support Services. Availability and access to all Services, including Support Services for the Software, is subject to the then-current BIOK discontinuation policies applicable to your particular Software version.
Discontinuation Policy; Software Support End-Date; Non-Supported System Requirements, Services, or Software
Discontinuation Policy (Software End-of-Life). The BIOK Software is subject to BIOK’s discontinuation policies then in effect and BIOK reserves the right to discontinue the Software, all support for the Software, and/or all access to and use of any Services, add-on paid services, features, online tools, Third-Party Applications or other services or content accessible through the Software in accordance with BIOK’s then-current discontinuation policies or in connection with required Updates or Upgrades of the Software as part of a Subscription plan. If the Software offers Services that require a connection to an BIOK server (including internet-based Services), such as downloading financial data from a participating bank, credit union, credit card, brokerage, mutual fund accounts, online bill paying, and downloading stock/fund quotes and news, such Services will expire and will cease to be available in accordance with BIOK’s current discontinuation policy or in connection with required Updates or Upgrades (if made available to you) of the Software as part of a Subscription plan. Once an BIOK Software version or its support is discontinued, no Services, replacement download copies of the Software or future support, Upgrades or Updates, will be provided or made available by BIOK for that particular Software version. You understand and acknowledge that discontinued Software versions (i.e., Software versions for which Services, support and Updates are no longer provided) may in the future be vulnerable to crashes, failures to operate correctly, security risks, incompatibility issues, and other un-patched issues, and that BIOK is not responsible for your continued use of such Software after Discontinuation.
BIOK has the right to change or add to the terms or conditions of any service subscription rights granted to you during your then-current subscription period or term and for which consideration was already paid by you), and to change the method of delivering or accessing any Platform service and/or the fee(s) associated therewith, and to change, delete, discontinue or impose conditions on any Platform service or any feature or aspect of any Platform service.
If a person contacts BIOK and requests that he or she should be designated as the Administrator of an account that permits Administrators for any reason (including, but not limited to, due to the death or departure of the registered Administrator, a change in your ownership, etc.), but has not been designated by the current Administrator as a replacement Administrator, BIOK reserves the right to determine, in its sole discretion, and without notice to you, whether that person should be designated as the Administrator.
Disputes sometimes arise between or among multiple persons concerning the right to be designated as the Administrator (including, but not limited to, in the event of a dispute between your owners, etc.). In that instance, BIOK reserves the right to determine, in its sole judgment, and without notice to you, whom should be designated as the Administrator. However, BIOK may be unable, and is not obligated, to resolve any such disputes. If, in BIOK’s sole discretion, BIOK attempts, but concludes that it is unable, to determine whom should be designated as the Administrator, BIOK reserves all rights, including, but not limited to, the right to suspend or terminate your account and use of the Services, and/or require a court order to determine the rightful Administrator.
In determining access or whom should be Administrator, BIOK may request and review documentation from the person making the request (including, but not limited to, government-issued photo identification, proof of payment of your subscription, an affidavit, a signed permission letter from your owner, documents showing the successorship of your business or legal documents that tie the request to your business, etc.). You acknowledge and accept the foregoing Administrator access and disputes policy and procedure and hereby release BIOK from all liability and all claims for damages, or any other liability whatsoever, that may arise out of or relate to BIOK following said policy and procedure.
Third Party Services may make changes to their websites or programming interface without providing us notice and such changes may prevent or delay access to your most recent data.
You are fully responsible for verifying the identity and work authorization of your employees and independent contractors in accordance with applicable law and all of the information you, your employees and independent contractors submit through the Telerad Platform Service, including for any IRS or other penalties due to incorrect, inaccurate, incomplete or outdated information. You are responsible for verifying the accuracy, timeliness, and completeness of any personal, wage, Telerad Platform, or any other information you, your employees or independent contractors provide or directly input via the Telerad Platform Service or any other method. We are entitled to rely upon, and are not obligated to independently verify, any such information, except where required by law. We will not be liable for any penalty, interest or other liability that results from inaccurate or incomplete information you, or your employee or independent contractor may supply. You must submit information we require to provide the Telerad Platform Service, including your provider or patient information, and Telerad Platform information, Additional Client User information, and other information we may request. You assume sole responsibility for, and will ensure that your Telerad Platform information, Content, data, documents or materials used, disclosed, entered into or created using the Telerad Platform Service are accurate, reliable and complete, do not violate the Agreement, and comply with the Office of Foreign Assets Control of the U.S. Treasury and all other applicable laws or regulations.
Except as otherwise stated herein, BIOK will not be liable for any penalty, interest or other liability that results from inaccurate or incomplete information you supply. In the event that BIOK becomes aware of any tax agency information that is inaccurate, BIOK reserves the right to input the correct information. BIOK will not be liable in any way if Telerad Platform Services cannot be performed completely or accurately because of anything not reasonably within our control, including problems with the Internet or inaccurate or incomplete information you or the radiologist provide to us.
You assume full responsibility for the use of the Service to achieve your intended purposes, for the proper installation and use of the Service and for verifying results from use of the Platform service.
We, our service providers, and our business partners may automatically log personal information about you, your computer or mobile device, and your interaction over time with the Services, such as:
We use reasonable physical, technical and organizational safeguards that are designed to protect your personal information. However, despite these controls, we cannot completely ensure or warrant the security of your personal information.
From time to time we may change or update our Privacy Statement. We reserve the right to make changes or updates at any time. If we make material changes to the way we process your personal information, we will notify you by posting a notice in the BIOK Platform or on a community post; by sending you a notification; or by other means consistent with applicable law.
You can see when this Privacy Statement was last updated by checking the “last updated” date at the top of this Privacy Statement. Please review this Privacy Statement periodically to stay informed about how BIOK protects your privacy.
If you have questions or comments about this Privacy Statement or our practices, please contact us.
You can submit BIOK privacy questions to legal@chirosight.com. Our Privacy policy is located on the website at www.chirosight.com
We may use your personal information to:
We, our service providers and our third-party advertising partners may collect and use your personal information for marketing and advertising purposes to:
The Parties hereby agree that YOU allow BIOK to charge the Payment method on file (credit card) of the End User (YOU) at the time of the submission to initiate the transaction for submitting radiology images to the radiologist as described in the Agreement with the charges to the End User credit card for the fees as follows:
If you pay a monthly Subscription Fee of $19.00 each month then the Price to be paid by YOU to BIOK per X-ray Study/report:
i. 2-3 views – $14.00 (known as a Standard study in Telerad) per study/body region.
ii. 4 > views – $21.00 (known as a Standard Plus study in Telerad) per study/body region.
iii. AOMSI report $179.00 for cervical spine
If you do not subscribe to the monthly subscription plan of $19.00 a month then your Price to be paid by YOU to BIOK per X-ray Study/report:
i. 2-3 views – $20.00 (known as a Standard study in Telerad) per study/body region.
ii. 4 > views – $21.00 (known as a Standard Plus study in Telerad) per study/body region.
iii. AOMSI report $189.00 for cervical spine
A full spine image study shall be considered 3 Standard studies: Cervical, Thoracic, Lumbar. If You submit a stitched full spine image of AP and lateral views that is considered 3 separate body regions and the fee shall be $42.00. (3 studies x $14.00=$42).
All studies submitted must have a minimum of 2 views of a body region of an AP image and a lateral image except for applicable studies such as a chest study.
