Effective Date: June 1, 2018
Thank you for downloading the mobile application Bot MD developed by 5 Health Inc.
We provide Bot MD users with access to a wide array of resources which may be provided to you on a variety of media, platforms and devices now known or hereinafter developed, including mobile applications. These resources include, without limitation, websites, tools and applications, and sponsored programming which may be provided through an API (collectively, the “Services”). The “App” or “Mobile Application” refers to the Bot MD mobile application. The “Site” or “Website” refers to www.botmd.io.
Throughout the collective services, the terms “we”, “us”, “our”, “Bot MD”, “botmd.io”, and “the Company” refer to 5 Health Inc., and any of its direct and indirect subsidiaries. “You” refers to any person accessing and/or using any of the services.
The Services are not, and do not provide, medical advice, service, or care. You should not solely rely on the Services for the diagnosis or treatment of any health problem or disease. You should exercise your professional judgement and advise that any patient consult you or another qualified healthcare provider on a regular and appropriate basis.
No changes or modifications to the 5 Health Inc. domain names, brand names, or logos may be made. Use of the 5 Health Inc. domain names, brand names, or logos for purposes other than linking to the Bot MD App or Site is expressly forbidden. The domain names, brand names, and logos must not be used or associated with any obscene, scandalous, inflammatory, pornographic, indecent, profane, defamatory, or unlawful site or materials in any way, or in any manner that would adversely affect the name, reputation, and goodwill of 5 Health Inc. and its products. We retain and reserve all rights in and to 5 Health Inc. trade names, trademarks, copyrights, and all other intellectual property with respect to its domain names, brand names, and logos. 5 Health Inc. reserves the right to cancel the Permission at any time and for any reason. Upon receipt of such notification, use of the domain names, brand names, or logos must cease and the link between the web sites must terminate. Use of 5 Health Inc. trademarks, trade names, logos, copyrighted material, or any other intellectual property of 5 Health Inc. for any purpose not stated herein is expressly forbidden.
E) SYSTEMS RELIABILITY
5 Health Inc. aims to keep Bot MD Services available twenty-four (24) hours a day, seven (7) days a week, and to maintain saved information. However, 5 Health Inc. shall not be liable for lost, altered, or corrupted information or non-availability of the Services.
2. Prohibited Activities
You are prohibited from doing any act that 5 Health Inc. in its absolute discretion may deem to be inappropriate and/or would be deemed to be an unlawful act or is prohibited by any laws applicable to these services including, but not limited to:
- Any act that would constitute a breach of either the privacy (including uploading private information without the concerned individual's consent) or any other of the legal rights of individuals;
- Using these services to defame or libel 5 Health Inc., its employees, or other individuals or acting in such a way that brings into disrepute the good name of 5 Health Inc.;
- Uploading files that contain viruses that may cause damage to the property of 5 Health Inc. or the property of other individuals; and
- Posting or transmitting to these services any unauthorized material including, but not limited to, material that is in our opinion likely to cause annoyance, detrimental to or in violation of 5 Health Inc.’s or any third party’s systems or network security, libelous, defamatory, racist, obscene, threatening, pornographic, profane, or is otherwise unlawful.
B) LICENSE RESTRICTIONS
A) 5 HEALTH INC. INTELLECTUAL PROPERTY
Except with respect to your patients’ personally identifiable data and medical advice, you agree that 5 Health Inc. and its suppliers own all rights, title and interest in and to the Services and all intellectual property rights related to the Services.
5 Health Inc. related graphics, logos, service marks and trade names used on or in connection with the Services are owned by 5 Health Inc. and may not be used without permission. Other trademarks, service marks and trade names are the property of their respective owners.
You agree that submission of any ideas, suggestions, documents, and/or proposals to 5 Health Inc. through its suggestion, feedback, wiki, forum or similar pages (“Feedback”) is at your own risk and that 5 Health Inc. has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to 5 Health Inc. a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights.
D) ANALYTICS AND IMPROVEMENTS
Subject to applicable laws and regulations, you agree that 5 Health Inc. may de-identify and/or aggregate, and analyze, any data or information you provide us through the use of the Services relating to the efficacy, functions, or features of the Services, and agree that 5 Health Inc. exclusively owns such de-identified and/or aggregated data and any improvements or new products or services arising therefrom.
E) THIRD PARTY CONTENT
The Services display some content that is not the Company’s. This content is the sole responsibility of the entity that makes it available. 5 Health Inc. does not claim ownership, endorse, or take responsibility for any third-party products, information, guidelines, materials, or services that may be offered, advertised, provided, or displayed on the Services or incorporated in the content, products or services contained on, accessible from or distributed throughout the Services.
4. Confidential Information and HIPAA Privacy Rule
5 Health Inc. understands that you may have responsibilities as a Covered Entity as such term is defined in HIPAA. You and 5 Health Inc. acknowledge and agree that 5 Health Inc. will not need or have access to Protected Health Information as defined under HIPAA to perform its services under these Terms. You agree to take all reasonable steps to restrict disclosure of Protected Health Information to 5 Health Inc.. You are solely responsible for compliance with your obligations under HIPAA, the Health Information Technology for Economic and Clinical Health Act (“HITECH”), and regulations promulgated thereunder with regard to the transmittal and provision of Content to 5 Health Inc.. In the unlikely event that you inadvertently disclose Protected Health Information to 5 Health Inc., 5 Health Inc. shall notify you of such inadvertent disclosure immediately upon discovery, and the parties shall promptly arrange for the prompt return and/or destruction of such Protected Health Information. You agree that 5 Health Inc. is not your Business Associate as the term is defined under HIPAA and that the parties are not required to enter into a business associate agreement (“BAA”) for Services provided under these Terms. You and 5 Health Inc. agree to enter into a BAA during the duration of these Terms if a BAA becomes necessary to comply with HIPAA. You will maintain appropriate security with regard to all personnel, systems, and administrative processes used by you or members of your workforce to transmit, store and process your content through the use of the Services. You may grant access to your content in the Services to healthcare professionals and other workforce members at your organization in accordance with your organizational policies and HIPAA. It is your responsibility to revoke access to such workforce members when they are no longer employed by your organization or otherwise should no longer have access to such your content. You represent and warrant that you have all rights and authorizations necessary to provide, transmit, and/or transfer any such data that is made available through the Services.
5. Content Guidelines
We may allow you to comment on and participate in interactive features on our Website or otherwise through the Services, e.g. in social communities owned by 5 Health Inc. (“Communities”). We may also allow you to submit content and materials for use on our Site via our mobile application or online submission form. For example, through the Bot MD mobile application, a creator may be able to submit text, messages, notes, photographs, or videos. The things you post or submit for use on our Site and Communities are “User Content”.
A) ALL USER CONTENT SUBMITTED TO US
You agree that your User Content is accurate and complete. You also agree that:
Your User Content is created exclusively by you. This means that you did not copy it from any other source. If you did not create your User Content, anyone that created it or helped create it must give you permission to submit your User Content to us. You must obtain consent and a release from any person (or the legal guardians of any persons) depicted in your User Content before you submit it with full knowledge from these persons that we may exploit it in any manner whatsoever. Anyone you get consent from must understand that we will use the content you submit in any manner we think is appropriate.
Your User Content does not threaten or disparage others. This includes not harassing or intimidating other users. It also includes not defaming or libeling anyone. Your User Content does not use hateful language. This includes not making negative comments connected to race, national origin, or religion. You also cannot disparage someone because of their gender, age, or sexual preference.
Your User Content does not disclose confidential or personal information about others. Your User Content will only disclose personal information with the other person’s consent. This also means that your User Content does not include information you must keep confidential under contract. This also means that your User Content does not violate anyone’s privacy or publicity rights.
B) USER CONTENT SUBMITTED FOR USE ON OUR MOBILE APPLICATION
You agree that any material you submit to our Services by upload, or otherwise, including any data, questions, comments, ideas, suggestions or the like (“Mobile Application Content”) are, and will be treated as, non-confidential and non-proprietary.
You grant us an unrestricted, unconditional, unlimited, worldwide, irrevocable, perpetual, and royalty-free right and license to all or any portion of your submitted Mobile Application Content. We may use this license to use your Mobile Application Content in any manner and for any purpose. This might include hosting, caching, or storing your Mobile Application Content. We might also copy, distribute, or sell your Mobile Application Content. From time to time we might also display, perform, publish, broadcast, or transmit Mobile Application Content. You also understand that we may modify, edit, reformat, or translate your Mobile Application Content.
You represent and warrant that you own your Mobile Application Content and have the right to grant the license described above. You further represent and warrant that our use of your Mobile Application Content will not violate anyone’s intellectual property rights or other rights of any person or entity or otherwise place us in breach of any applicable laws. 5 Health Inc. is under no obligation to use the information submitted. You understand that 5 Health Inc. employs both internal and external resources which may have developed or may in the future develop ideas identical or similar to your Mobile Application Content and that 5 Health Inc. is only willing to consider the submissions of Mobile Application Content on these terms.
C) USER CONTENT POSTED ON OUR COMMUNITIES
We love to see all your comments, photos, and videos. By submitting or uploading your story, comment, photo, or video, you are authorizing 5 Health Inc. to use, publish, and otherwise reproduce, modify, and distribute Community Content with or without your name in perpetuity, worldwide in any and all 5 Health Inc. or Bot MD related media for any lawful purpose. These uses may include, but are not limited to, information, education, promotion, or advertising of Bot MD or its products via the Internet, web sites, mobile apps, and social media. If individuals other than you appear in the photo or video, you must have permission to use the photo or video from the individuals.
D) CONTENT AND LIMITATIONS ON USE
Except for third party content accessible through the App, all content contained on or accessed from the App, including text, graphics, user interfaces, visual interfaces, photographs, trademarks, logos, videos, images, applications, programs, computer code and other information (collectively, the “Content”), including, but not limited to, the design, layout, “look and feel” and arrangement of such Content, is owned by 5 Health Inc. or its licensors and is protected by copyright, trademark, and other intellectual property and unfair competition laws.
You may not reverse engineer, disassemble, decompile, or translate any software in the Content, or otherwise attempt to derive the source code of such software, except to the extent expressly permitted under applicable law, without our prior written permission. You may not engage in systematic retrieval of Content from the Services to create or compile, directly or indirectly, a collection, compilation, database, or directory without our prior written permission.
Unless expressly authorized by us, you may not use any robots, spiders, crawlers, or other automated downloading programs, algorithms or devices, or any similar or equivalent manual process, to: (i) continuously and automatically search, scrape, extract, deep link, or index any Content; (ii) harvest personal information from the Services for purposes of sending unsolicited or unauthorized material; or (iii) cause disruption to the working of the Services or any other person’s use of the Services. If the Services contains robot exclusion files or robot exclusion headers, you agree to honor them and not use any device, software, or routine to bypass them. You may not attempt to gain unauthorized access to any portion or feature of the Services, any other systems or networks connected to the Services or to any 5 Health Inc. server, or any of the products or services provided on, accessed from or distributed through the Services. You may not probe, scan, or test the vulnerability of the Services or any network connected to the Site or breach the security or authentication measures on the Services or any network connected to the Site.
E) CHANGES TO THESE GUIDELINES
From time to time, we may change these Guidelines. We will post changes here, so check back every now and then. If you continue to use the Services after we post any changes to these Guidelines, you agree to be bound by those changes. If you do not accept these changes, you must stop submitting content to this Site, our other sites and our services.
F) LEGALLY-COMPELLED DISCLOSURE OF USER INFORMATION
You agree that in the event we receive a subpoena issued by a court or from a law enforcement or government agency, we shall comply with such subpoenas without your consent or prior notice to you and may disclose your IP address, username, name, IP address, or other information in response thereto.
6. Digital Millennium Copyright Act – Copyright Infringement Notification
5 Health Inc. is committed to complying with U.S. copyright law and to respond to claims of copyright infringement. 5 Health Inc. will promptly process and investigate notices of alleged infringement and will take appropriate actions under the Digital Millennium Copyright Act, Title 17, United States Code, Section 512(c) (“DMCA”).
Pursuant to the DMCA, notifications of claimed copyright infringement should be sent to a Service Provider's Designated Agent. Notification must be submitted to the following Designated Agent for these Services in the manner described below
5 Health Inc.
201E Center St
Ste 112 PMB 3035
Anaheim, CA 92805
ATTN: Legal Department, DMCA Copyright Notices
For your complaint to be valid under the DMCA, you must provide all of the following information when providing notice of the claimed copyright infringement:
- A physical or electronic signature of a person authorized to act on behalf of the copyright owner;
- Identification of the copyrighted work claimed to have been infringed;
- Identification of the material that is claimed to be infringing or to be the subject of the infringing activity, and that is to be removed or access to which is to be disabled, as well as information reasonably sufficient to permit 5 Health Inc. to locate the material;
- Information reasonably sufficient to permit 5 Health Inc. to contact the copyright owner, such as an address, telephone number, and, if available, an electronic mail address;
- A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or law; and
- A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the copyright owner.
For more details on the information required for valid notification, see 17 U.S.C. 512(c)(3).
You should be aware that, under the DMCA, claimants who make misrepresentations concerning copyright infringement may be liable for damages incurred as a result of the removal or blocking of the material, court costs, and attorneys’ fees.
8. Disclaimer of Warranties and Limitations of Liability
A) AS IS
THE SERVICES, INCLUDING ALL CONTENT AND PRODUCTS, INCLUDED IN OR ACCESSIBLE FROM THE SERVICES, ARE PROVIDED “AS IS” AND WITHOUT WARRANTIES OR REPRESENTATIONS OF ANY KIND (EXPRESS, IMPLIED AND STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF TITLE AND NON-INFRINGEMENT AND THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE), ALL OF WHICH 5 HEALTH INC. DISCLAIMS TO THE FULLEST EXTENT PERMITTED BY LAW. YOUR USE OF THE SERVICES AND THEIR CONTENT AND PRODUCTS IS AT YOUR SOLE RISK.
5 HEALTH INC. MAKES NO WARRANTY, REPRESENTATION, OR CONDITION: (1) THAT THE SERVICES OR ANY CONTENT THEREON WILL BE APPROPRIATE FOR YOU OR YOUR PATIENTS OR MEET YOUR REQUIREMENTS OR YOUR PATIENTS’ REQUIREMENTS; OR (2) WITH RESPECT TO ANY RESULTS THAT MAY BE OBTAINED THROUGH THE SERVICES. THE SERVICES ARE NOT A REPLACEMENT FOR A PHYSICAL EXAMINATION BY YOUR OR ANOTHER TRAINED HEALTHCARE PROVIDER AND SHOULD NOT BE USED INDEPENDENTLY TO DIAGNOSE ANY MEDICAL CONDITION.
B) MEDICAL DISCLAIMERS
You fully understand, acknowledge, and agree that (i) the Bot MD Services are intended to deliver non-critical, non-emergency messages between users; (ii) the Services are dependent upon a number of factors outside the control of 5 Health Inc., including but not limited to, the operation of third party provided software, hardware and network services; (iii) the Services are not a substitute for any of your current systems of administering and safeguarding medical treatment and/or medicine; (iv) there may be occasional communication failures or delays in the delivery or receipt of properly sent Bot MD messages, and (v) the Services are not expected to perform at the same level of performance and/or reliability one might expect from medical devices used in the delivery of critical medical care environments.
To the extent permitted under applicable law, no responsibility is assumed for any injury and/or damage to persons, animals, or property as a matter of products liability, negligence or otherwise, or from any use or operation of any ideas, instructions, methods, products, or procedures contained in the Services. Medical and healthcare providers should exercise their own independent clinical judgment. No suggested test or procedure should be carried out unless, in the provider's judgment, its use is justified. Because of rapid advances in the medical sciences, we recommend that the independent verification of diagnoses, indications, and drug dosages should be made. Discussions, views, and recommendations as to medical or health care procedures, methods, products, choice of drugs, and drug dosages are the responsibility of the authors and should be checked with current medical guidelines, hospital procedures, and pharmaceutical manufacturers.
You acknowledge and agree that any advice provided to a patient as a result of information obtained or accessed through the Services will be based on your own medical judgment and 5 Health Inc. will not be liable for any review or liability that results from your advice.
C) SERVICES DISCLAIMERS
Neither 5 Health Inc. nor its suppliers or licensors makes any warranty whatsoever, including without limitation, that the operation of the Services will be uninterrupted or error-free; that any defects will be corrected; that the Services, including the servers that make it available, are free of viruses or other harmful components; or as to the accuracy, completeness, reliability, availability, suitability, quality, non-infringement, operation or result obtained from the use of any Content, product or service provided on, accessible from or distributed through the Services.
To the extent permitted under applicable law, you acknowledge and agree that 5 Health Inc. is not liable, and you agree not to seek to hold 5 Health Inc. liable, for the conduct of third parties on the Website or Services, including operators of external sites, and that the risk of injury from such third parties rests entirely with you.
You are solely responsible for all of your communications and interactions with other users of the Website or Services.
D) LIMITATIONS ON LIABILITY
TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT SHALL 5 HEALTH INC. OR ITS SUPPLIERS OR LICENSORS BE LIABLE FOR ANY DAMAGES (INCLUDING, WITHOUT LIMITATION, CONSEQUENTIAL, SPECIAL, INCIDENTAL, INDIRECT, OR SIMILAR DAMAGES, PERSONAL INJURY (INCLUDING DEATH), LOSS OF PROFITS, CORRUPTION OR LOSS OF DATA, BUSINESS INTERRUPTION, OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES) ARISING OUT OF OR IN CONNECTION WITH (1) THE USE (OR INABILITY TO USE) OR PERFORMANCE OF THE SERVICES OR ANY CONTENT’ (2) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (3) STATEMENT OR CONDUCT OF ANY THIRD PARTIES THROUGH THE SERVICES; O R(4) ANY OTHER MATTER RELATING TO THE SERVICES, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY.
You hereby release, waive, relinquish and forever discharge 5 Health Inc. from every past, present and future claim, demand and right of action of every kind and nature, known or unknown, related to your reliance on the Services to provide medical care to your patients. If you are a California resident, you hereby waive California Civil Code Section 1542, which states, “A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which, if known by him or her must have materially affected his or her settlement with the debtor.”
9. International Users
The Services are intended for use in the United States of America only. Data is controlled and stored by 5 Health Inc. and its service providers from facilities in the United States of America. 5 Health Inc. makes no representations that the Services are appropriate or available for use in other locations. Those who access or use the Services from other jurisdictions do so at their own volition, are responsible for compliance with local law, and hereby grant 5 Health Inc. consent to transfer such data to the United States.
10. Mobile Specific Terms
A) MOBILE APPLICATION
If 5 Health Inc. permits or makes available to you the ability to: (a) upload content to the services via your mobile telephone and/or tablet (“mobile device”), (b) receive and reply to messages, or to access or make posts using text messaging, (c) browse the services from your mobile device or (d) to access features through a mobile application you have downloaded and installed on your mobile device (collectively “Mobile Services”), your mobile carrier’s standard data, Internet, messaging, and other service fees and charges apply to your use of, and access to, the Mobile Services, and you are solely responsible for all such fees and charges. The Mobile Services may not be compatible with all mobile devices, carriers, and services, and 5 Health Inc. does not make any representations or warranties regarding such compatibility. You are solely responsible for ensuring that your mobile device is compatible with the type of content being provided through the Mobile Services. You understand that content delivered as part of the Mobile Services may be delivered to your device through premium mobile services and acknowledge that you are solely and exclusively responsible for any charges for such services, including, but not limited to, any roaming charges.
A) APPLICABILITY OF ARBITRATION AGREEMENT
B) ARBITRATION RULES.
C) AUTHORITY OF ARBITRATOR
If arbitration is initiated, the arbitrator will decide the rights and liabilities, if any, of you and 5 Health Inc., and the dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The award of the arbitrator is final and binding upon you and 5 Health Inc.
D) WAIVER OF JURY TRIAL
THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT (OTHER THAN A SMALL CLAIMS COURT) AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement.
E) SMALL CLAIMS COURT
Notwithstanding the foregoing, either you or 5 Health Inc. may bring an individual action in small claims court.
F) EMERGENCY INJUNCTIVE RELIEF
Notwithstanding the foregoing, either party may seek emergency injunctive relief before a state or federal court in order to maintain the status quo pending arbitration. A request for interim measures shall not be deemed a waiver of any other rights or obligations under this Arbitration Agreement.
12. General Provisions
A) ELECTRONIC COMMUNICATIONS
To the maximum extent permitted by law, you (1) consent to receive communications from 5 Health Inc. in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications that 5 Health Inc. provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights.
D) LIMITATIONS PERIOD
E) GOVERNING LAW
The Terms and any action related thereto will be governed and interpreted by and under the laws of the State of Delaware, without giving effect to any principles that provide for the application of the law of another jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
Such notice shall be deemed given when received by 5 Health Inc. by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
Any waiver or failure to enforce any provision of the Terms on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
I) EXPORT CONTROL.
You may not use, export, import, or transfer the Services except as authorized by U.S. law and any other applicable laws. In particular, but without limitation, the Services may not be exported or re-exported (a) into any United States embargoed countries; or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You acknowledge and agree that products, services or technology provided by 5 Health Inc. are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer 5 Health Inc. products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.
J) CONSUMER COMPLAINTS
In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
K) ENTIRE AGREEMENT
The Terms are the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.
Last revised: June 23, 2018