TERMS AND CONDITIONS OF USE
EFFECTIVE DATE: July 17th, 2016 (“Effective Date”)
AASM SleepTM, LLC (“AASM”, “we” or “us”) offers a telehealth platform that may be accessed through the AASM website (“Site”) and its mobile application (“App”). These Terms and Conditions of Use (these “Terms”) describe the terms and conditions on which AASM provides you with access to and use of the Site and Apps (“Platform”).
Before accessing and using the Platform, please read these Terms carefully because they constitute a legal agreement between AASM and you.
BY ACCESSING AND USING THE PLATFORM, YOU AFFIRM THAT:
- YOU HAVE READ AND UNDERSTAND THESE TERMS;
- YOU WILL COMPLY WITH THESE TERMS; AND
- YOU ARE AT LEAST THE AGE OF LEGAL MAJORITY IN YOUR PLACE OF RESIDENCE AND OTHERWISE LEGALLY COMPETENT TO ENTER INTO CONTRACTS.
IMPORTANT NOTE: These Terms contain provisions that limit our liability to you and require you to resolve any dispute with us through final and binding arbitration on an individual basis and not as part of any class or representative action. Please see “DISCLAIMER OF WARRANTIES”, “LIMITATIONS OF LIABILITY”, “WAIVER OF RIGHT TO PURSUE CLASS ACTION CLAIMS”, “LIMITATION ON TIME TO BRING AN ACTION” and “AGREEMENT TO ARBITRATE CLAIMS; JURY TRIAL WAIVER” sections below for more information.
Your affirmative act of using and/or registering for the Platform constitutes your consent to enter into agreements with AASM electronically. If you do not agree to any of these Terms, please do not use the Platform.
SUMMARY OF IMPORTANT LEGAL INFORMATION
Services Provided via Platform and Use of the Platform. The services provided via the Platform enable health care professionals to deliver care to patients using telemedicine and/or to connect individuals who are seeking sleep medicine services with participating sleep doctors and sleep practices. The Platform also provides administrative services as well as information and resources for individuals seeking general information on sleep medicine. AASM, through the Platform or otherwise, does not provide medical care or practice medicine or any other licensed profession, and AASM does not interfere with the practice of medicine or other licensed profession by sleep doctors or other health care professionals.
Your use of the Platform is subject to the terms and requirements of these Terms, including the following:
- You must be at least 13 years of age.
- If you create an account with us (an “Account”), you are responsible for all use of your Account, including use by others to whom you have provided access to your Account. You also are responsible for any use of your Account by any person that is caused by your failure to secure your user ID or password.
- You must not provide false or inaccurate registration credentials, impersonate any person or entity, and/or falsely claim an affiliation with any person or entity.
- You must not remove, circumvent, disable, damage, or otherwise interfere with any: (i) security-related features of the Platform; (ii) features of the Platform that prevent or restrict use or copying of any content accessible through the Platform; or (iii) features of the Platform that enforce limitations on use of the Platform.
- You must not intentionally interfere with, or damage operation of the Platform, or any user's enjoyment of them, by any means, including uploading or otherwise disseminating viruses, worms, or other malicious code.
- You must not attempt to gain unauthorized access to the Platform, other accounts, computer systems or networks connected to the Platform, or any part of it, through hacking, password mining or other improper or illegal means. You must not access or attempt to access other users’ Accounts.
- You must not use any robot, spider, scraper, or other automated means to access the Platform for any purpose without our express prior written permission, or bypass our robot exclusion headers or other measures we may use to prevent or restrict access to the Platform, or modify the Platform in any manner or form.
- You must not send automated queries of any sort to the systems and networks we use to provide the Platform without our express prior written permission.
No Medical Advice or Physician-Patient Relationship. ANY SERVICES PROVIDED VIA THE PLATFORM ARE PROVIDED FOR INFORMATIONAL PURPOSES ONLY AND ARE NOT, AND SHOULD NOT BE CONSIDERED TO BE, MEDICAL ADVICE. THE SERVICES DO NOT, NOR ARE THEY INTENDED TO, CREATE A PHYSICIAN-PATIENT RELATIONSHIP WITH AASM. THE INFORMATIONAL CONTENT ON THE PLATFORM IS NOT INTENDED FOR USE IN THE DIAGNOSIS OR TREATMENT OF ANY INDIVIDUAL CONDITION OR AS A SUBSTITUTE FOR A CONSULTATION WITH A LICENSED MEDICAL PROFESSIONAL. ANY CONTENT ON THE PLATFORM SHOULD NOT BE CONSIDERED COMPLETE; IS NOT EXHAUSTIVE; AND DOES NOT COVER ALL DISEASES, AILMENTS, PHYSICAL CONDITIONS, OR THEIR DIAGNOSIS OR TREATMENT. THE CONTENT OF THE PLATFORM SHOULD NOT BE USED IN PLACE OF A VISIT, CALL OR CONSULTATION WITH, OR THE ADVICE OF, YOUR PHYSICIAN OR OTHER HEALTH CARE PROVIDERS. SHOULD YOU HAVE ANY PERSONAL HEALTH CARE-RELATED QUESTIONS, CALL OR SEE YOUR PHYSICIAN OR OTHER HEALTH CARE PROVIDER PROMPTLY. TALK TO YOUR DOCTOR OR PHARMACIST BEFORE TAKING ANY PRESCRIPTION OR OVER THE COUNTER DRUGS, INCLUDING ANY HERBAL MEDICINES OR SUPPLEMENTS. NEVER DISREGARD PROFESSIONAL MEDICAL ADVICE, OR DELAY IN SEEKING IT, BECAUSE OF SOMETHING THAT YOU HAVE READ ON THE PLATFORM.
Information Presented by AASM. By creating an account on the Site or App, you are agreeing to opt-in to the receipt of newsletters and other information regarding common medical and health related topics. Although AASM endeavors to ensure the accuracy and reliability of information presented by or on behalf of AASM on the Site or App, it does not guarantee the accuracy, completeness, efficacy or timeliness of such information, and therefore, makes no representation or warranty regarding the same. Furthermore, AASM does not endorse, guarantee, warrant, or recommend any information, products or services discussed or advertised via the Platform, or linked to or from the Platform. Reliance on any information, products or services appearing on the Platform that is provided by AASM or AASM employees is solely at your own risk.
Disclaimer of Endorsement. Any listing of health care professionals and practices on the Platform is intended to provide general information to individuals who wish to locate a sleep doctor in their area. This listing contains information obtained from sources believed to be reliable but AASM has not attempted to validate or confirm the information. The listing is updated periodically, based on information submitted by the health care professionals listed therein. AASM does not endorse, guarantee, warrant or recommend any health care professional or practice, or any of the services they may provide.
Information Presented by Users and Third Parties. Any content and/or opinions uploaded or submitted by a third party, including a sleep doctor, other physician, or other health care professional, such as articles, hyperlinks, documents, spreadsheets, presentations, images, individual user profiles, comments, opinions, or other dialogue, any other content or opinions in any form and responses to questions (hereinafter “User-Posted Content”) are solely the opinions and responsibility of the person or entity submitting them and do not necessarily reflect the opinions of AASM. AASM makes no representation or warranty regarding User-Posted Content that is posted or uploaded by users of the Platform or other third parties, and AASM expressly disclaims any and all liability related thereto. By using the Platform, you agree to hold AASM harmless from any and all claims arising out of User-Posted Content. Reliance on any information, products or services appearing on the Platform, whether provided by AASM, third parties at the invitation of AASM, or other individuals is solely at your own risk.
Liability of AASM and its Licensors. THE DISCLAIMERS AND LIMITATIONS IN THIS SECTION DO NOT PURPORT TO LIMIT LIABILITY OR ALTER YOUR RIGHTS AS A CONSUMER THAT CANNOT BE EXCLUDED UNDER APPLICABLE LAW.
YOUR USE OF THE PLATFORM AND RECEIPT OF ANY SERVICES VIA THE PLATFORM IS AT YOUR OWN RISK.
EXCEPT AS EXPRESSLY PROVIDED ABOVE, THE SERVICES PROVIDED VIA THE PLATFORM ARE PROVIDED "AS IS" AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. AASM does not warrant that (a) the Platform will meet your requirements, (b) operation of the services via the Platform will be uninterrupted or virus- or error-free or (c) errors will be corrected. All warranties of any kind, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title, non-infringement, freedom from defects, uninterrupted use and all warranties implied from any course of dealing or usage of trade, are disclaimed. Any oral or written advice provided by AASM or its authorized agents does not and shall not create any warranty. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES WHICH MEANS THAT SOME OR ALL OF THE ABOVE DISCLAIMERS OR EXCLUSIONS MAY NOT APPLY TO YOU.
YOU AGREE THAT AASM IS NOT LIABLE FOR INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOSS OF USE, DATA OR PROFITS OR BUSINESS INTERRUPTION), HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, WHETHER ARISING IN ANY WAY IN CONNECTION WITH THESE TERMS AND WHETHER IN CONTRACT, STRICT LIABILITY OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE), EVEN IF AASM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. YOU ALSO AGREE THAT AASM IS NOT AND WILL NOT BE LIABLE FOR ANY OTHER CLAIM, DEMAND OR DAMAGES WHATSOEVER RESULTING FROM OR ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF THE PLATFORM AND RECEIPT OF ANY SERVICES.
IN NO EVENT SHALL AASM’S AND ITS AFFILIATES’ AGGREGATE LIABILITY TO YOU IN CONNECTION WITH THE SERVICES PROVIDED VIA THE PLATFORM FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION EXCEED THE GREATER OF ONE THOUSAND U.S. DOLLARS (US $1,000) OR THE AMOUNT YOU PAID TO USE THE PLATFORM DURING THE TWELVE MONTHS PRECEDING THE ACTION THAT GAVE RISE TO THE LIABILITY.
You acknowledge and agree that the above limitations of liability together with the other provisions in these Terms that limit liability are essential terms and that AASM would not be willing to grant you the rights set forth in these Terms but for your agreement to the above limitations of liability.
IF YOU ARE A CALIFORNIA RESIDENT, BY USING THE PLATFORM, YOU WAIVE YOUR RIGHTS WITH RESPECT TO CALIFORNIA CIVIL CODE SECTION 1542, WHICH SAYS "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH, IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR."
As we add new features, we may need to modify or supplement these Terms. We do not intend to change these Terms very often but reserve the right to do so. When we modify these Terms, we will update the Effective Date above. We also will notify you of any material change by posting notice on this webpage. Whenever possible, we will notify you in advance and will not make changes that have a material retroactive effect on your privacy rights unless we are legally required to do so.
Your continued use of the Platform after the Effective Date constitutes your acceptance of the amended Terms. The amended Terms supersede all previous versions of the Terms. We encourage you to review these Terms frequently and to print out a copy of these Terms for your records.
As a condition of use of the Platform, you warrant to AASM that you will not use the Platform in any unlawful manner or in a manner that could damage, disable, overburden, or impair the Platform, or interfere with any other party’s use and enjoyment of the Platform. AASM also retains the right to limit, suspend, discontinue or deny access to the Platform at any time, and without notice, to anyone who violates these Terms and Conditions as AASM considers appropriate or necessary in its sole discretion, including but not limited to (1) security reasons, (2) alleged or suspected breach of these Terms and Conditions, or (3) the protection of intellectual property. Your failure to comply with the provisions of copyright and trademark restrictions and member obligations may expose you to civil and/or criminal liability.
Copyright and Trademark Notices. The content of material provided by AASM on the Platform (either the Site or App) is copyrighted by AASM or used by AASM under license or other legal authority. AASM and its licensors retain all copyrights and other proprietary rights in or relating to any content, including but not limited to software, provided on the Platform. All rights are reserved and such content may not be reproduced, downloaded, modified, published, displayed, disseminated, or transferred, in any form or by any means, except with the prior written agreement of AASM or as indicated below. You may not sell, transfer, reproduce, transmit, distribute, perform or display such content for any commercial purpose whatsoever without the prior express written consent of AASM.
APPLE DEVICE ADDITIONAL TERMS
If you access an App via a mobile device or tablet branded by Apple, Inc. (“Apple”) and running Apple’s iOS (an “Apple Device”), the following terms (“Apple Device Additional Terms”) are hereby made part of these Terms:
- Conflicting Terms. If these Apple Device Additional Terms conflict with any other provision of these Terms, then the Apple Device Additional Terms shall control with respect to access and use of the Platform via an Apple Device.
- Agreement with AASM, Not Apple. You acknowledge that these Terms are an agreement between AASM and you, and not with Apple. AASM, not Apple, is solely responsible for your access of the App via your Apple Device (“iOS App”) and the content thereof. If these Terms are less restrictive with respect to an iOS App or otherwise conflict with, the Apple App Store Terms of Service (the “App Store Terms of Service”), the App Store Terms of Service shall apply to the extent of any conflict.
- Scope of License. The license granted to use an iOS App is limited to a non-transferable license to use the App on an Apple Device that you own or control and as permitted by the usage rules set forth in the App Store Terms of Service.
- Maintenance and Support. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to any iOS App. If AASM decides (in its sole discretion) to provide support and maintenance services for an iOS App, AASM is solely responsible for providing such services.
- Warranty. In the event of any failure of the an iOS App to conform to any applicable warranty provided by AASM in these Terms, you may notify Apple and Apple will refund the purchase price for the iOS App (if any) and, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the iOS App and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty is AASM’s sole responsibility. Notwithstanding the foregoing, AASM is not obligated to provide any warranty with respect to an iOS App and you acknowledge and agree that this paragraph will not have any effect on the warranty disclaimers provided in these Terms. You hereby acknowledge that AASM, not Apple, is responsible for addressing your or any third-party claims relating to an iOS App and/or use of an iOS App.
- Intellectual Property Rights. You acknowledge that, in the event of any third party claim that an iOS or your possession and use (in accordance with these Terms) of an iOS App infringes that third party’s intellectual property rights, AASM, not Apple, is solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
- Legal Compliance. 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.
- Third Party Beneficiary. You hereby acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of these Terms with respect to any iOS App, and that, upon your acceptance of these Terms, Apple has the right (and deemed to have accepted the right) to enforce the Terms against you with respect to the iOS App as a third party beneficiary thereof.
- Questions or Complaints. Please address your questions, complaints or claims with respect to an iOS App to AASM at email@example.com or 1 (888) 334-6820. AASM’s principal offices are located at 2510 N. Frontage Road, Darien, IL 60561.
LINKS TO OTHER SITES AND ADVERTISING
Any suspected violations of these Terms or misuse of the Platform should be immediately reported to firstname.lastname@example.org.
MISCELLANEOUS CONDITIONS OF USE
Additional Terms. Certain features of the Platform, such as the App, additional services, promotions, offers and research studies, may be subject to additional terms and conditions (“Additional Terms”) presented in conjunction with them. We may present Additional Terms to you through the Platform. Regardless of how they are presented to you, we require that you agree to Additional Terms before using these features of the Platform. Unless otherwise specified in Additional Terms, all Additional Terms are incorporated into these Terms. If you do not agree to Additional Terms, you will not have access to the aspect of the Platform to which they relate. These Terms and Additional Terms apply equally. If, however, any Additional Term is inconsistent with any provision of these Terms, the Additional Term will prevail but only for the service(s) to which the Additional Terms apply.
Resolution and Disputes. Prior to initiating any legal action against AASM, you will give AASM at least 60 days' advanced written notice. AASM will provide notice by mail or e-mail using the contact information on file with AASM and you must provide such notice by certified mail to 2510 N. Frontage Road, Darien, IL 60561.
These Terms shall be governed in all respects by and construed in accordance with the laws of the State of Illinois, without regard to its conflicts of law principles. Any cause of action you may have that arises out of or relates to the Platform must be commenced within one (1) year after the claim or cause of action arises or such claim or cause of action is barred.
You explicitly agree that any claims or actions that you may otherwise have against AASM under the laws of any jurisdiction outside the United States are hereby waived (including claims or actions under the laws of your own country) and that your sole location and applicable law for any dispute is in the United States according to the terms of this Section. This provision does not, however, apply if you are a consumer residing in a jurisdiction that permits you to make your claim a legally competent court of the jurisdiction where you reside.
By agreeing to these Terms, both you and we are waiving the right to a jury trial on any disputes that may arise. You agree to arbitrate all disputes between you and us. If a dispute arises between you and us relating to the Platform or these Terms, you and we agree that the dispute shall be resolved by final and binding arbitration administered by the American Arbitration Association under its rules for consumer arbitrations (“AAA Rules”). You and we agree to the following rules relating to any arbitration proceeding:
- YOU AND AASM WAIVE ANY RIGHT TO BRING SUCH CLAIMS BEFORE ANY COURT OF LAW. RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT, SUCH AS ACCESS TO DISCOVERY, MAY BE UNAVAILABLE OR LIMITED IN ARBITRATION.
- The venue for all disputes arising under these Terms shall be in Chicago, Illinois, but you and we may agree to conduct the arbitration by telephone, online and/or solely based on written submissions. You hereby waive any right to claim that such location is an inconvenient forum and covenant not to sue us in any other forum.
- The arbitrator will have the power to grant whatever relief would be available in court under law or in equity (including attorney’s fees) and any award of the arbitrator will be final and binding on each of the parties. The arbitrator will not, however, have the power to award punitive or exemplary damages, the right to which each party hereby waives.
- The arbitrator will apply applicable law and the provisions of these Terms and the failure to do so will be deemed an excess of arbitral authority and grounds for judicial review.
- Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
- Barring extraordinary circumstances, the arbitrator will issue a decision within 120 days from the date the arbitrator is appointed, which may be extended 30 days in the interests of justice.
- All arbitration proceedings will be closed to the public and confidential and all records relating thereto will be permanently sealed, except as necessary to obtain court confirmation of the arbitration award.
- The award of the arbitrator will be in writing and will not include any statement setting forth the reasons for the disposition of any claim.
Either you or we may seek an injunction at any time from any court of competent jurisdiction as necessary to protect the rights or property of you or us pending the completion of arbitration.
Payment of all filing, administration and arbitrator fees will be governed by the AAA Rules. If, however, you are able to demonstrate that the costs of arbitration will be prohibitive for you as compared to the costs of litigation, AASM will pay as much of the filing, administration and arbitrator fees as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive for you. If the arbitrator determines that the claim(s) you assert in the arbitration are frivolous, you agree to reimburse AASM for all fees associated with the arbitration that AASM paid on your behalf which you otherwise would be obligated to pay under the AAA Rules.
Indemnification. YOU ALSO AGREE TO INDEMNIFY AND HOLD HARMLESS AASM AND ITS OFFICERS, DIRECTORS, MEMBERS, AGENTS, AFFILIATES, THIRD-PARTY INFORMATION PROVIDERS, LICENSORS, AND OTHERS INVOLVED IN THE DELIVERY OF THE PLATFORM OR THE DELIVERY OF INFORMATION, PRODUCTS OR SERVICES OVER THE PLATFORM, FROM AND AGAINST ANY AND ALL LIABILITIES, EXPENSES, DAMAGES, AND COSTS, INCLUDING REASONABLE ATTORNEY’S FEES, FROM ANY CLAIM, COMPLAINT OR DAMAGE ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF THE PLATFORM, INCLUDING BUT NOT LIMITED TO ANY VIOLATION BY YOU OF THESE TERMS.
Construction. If any part of the Terms are deemed unenforceable, the unenforceable part shall be construed to reflect, as nearly as possible, the original intentions of the parties. The other provisions of the Terms shall remain in full force and effect. AASM’s failure to insist upon or enforce strict performance of any provision of the Terms shall not constitute a waiver of the provision. Neither a course of dealing or conduct between you and AASM nor any trade practices shall be deemed to modify the Terms. You and AASM agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to the interpretation or construction of these Terms.
Jurisdictional Issues; Taxes. AASM makes no representation that the services provided via the Platform are appropriate or available for use outside the U.S. You are responsible for compliance with all applicable laws. AASM reserves the right to limit the availability of the Platform and any services in any geographic area or for any person at any time. Access to the Platform from territories where their content is illegal is prohibited.
Any software offered on or through the services is subject to United States export controls. No software may be downloaded or otherwise exported or re-exported: (a) into (or to a national or resident of) Cuba, Iraq, Libya, North Korea, Iran, Syria or any other country designated by Sponsor and/or the United States Treasury's Office of Foreign Assets Control; or (b) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Table of Deny Orders. By downloading or using any software through the Platform, you represent and warrant that you are not located in, under the control of or a national or resident of any such country or on any such list.
You are solely responsible for any and all duties, taxes, levies or fees (including any sales, use or withholding taxes) imposed by any taxing authority in connection with your use of the services.
Your affirmative act of using and/or registering for the Platform and any services offered via the Platform constitutes your electronic signature to these Terms, which includes the AASM Privacy Statement, and your consent to enter into agreements with us electronically.