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Patient Terms of Use

Last Updated: April 25, 2022

1. ACCEPTANCE OF TERMS

  1. HealthSco.re, Inc. (“HealthScore”) provides access to and use of an online platform, mobile and web-based applications and other components that facilitate the analysis of, and use by medical professionals of, vital signs created from a patient’s completion of facial scans utilizing a mobile and/or web-based application in connection with healthcare for such patient (collectively, the “Platform”). Your access to or use of the Platform is subject to the terms and conditions in these Patient Term of Use (the “Patient TOU”). HealthScore may, in its sole discretion, update the Patient TOU at any time. You can access and review the most-current version of the Patient TOU at the URL for this page or by clicking on the applicable “Terms of Use” link within the Platform or as otherwise made available by HealthScore. BY CLICKING THE “I AGREE” BUTTON OR REGISTERING FOR AN ACCOUNT OR OTHERWISE ACCESSING OR USING THE PLATFORM, YOU AGREE TO BE BOUND BY THE PATIENT TOU, INCLUDING ANY UPDATES OR REVISIONS POSTED HERE OR OTHERWISE COMMUNICATED TO YOU. IF YOU DO NOT AGREE TO THESE TERMS, YOU SHOULD NOT DOWNLOAD OR INSTALL THE APP (DEFINED IN SECTION 5(a)), OR YOU SHOULD DISCONTINUE USE THEREOF AND UNINSTALL THE APP IMMEDIATELY.
  2. PLEASE REVIEW THE PATIENT TOU CAREFULLY. IT IMPOSES BINDING ARBITRATION AND A WAIVER OF CLASS ACTIONS. THE PATIENT TOU REQUIRES BINDING ARBITRATION TO RESOLVE ANY DISPUTE OR CLAIM ARISING FROM OR RELATING TO THE PATIENT TOU OR YOUR ACCESS TO OR USE OF THE PLATFORM, INCLUDING THE VALIDITY, APPLICABILITY OR INTERPRETATION OF THE PATIENT TOU (EACH, A “CLAIM”), AND YOU AGREE THAT ANY CLAIM WILL BE RESOLVED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, COLLECTIVE, CONSOLIDATED OR REPRESENTATIVE ACTION, ARBITRATION OR OTHER SIMILAR PROCESS. PLEASE REVIEW SECTION 19 CAREFULLY TO UNDERSTAND YOUR RIGHTS AND OBLIGATIONS WITH RESPECT TO THE RESOLUTION OF ANY CLAIM.
  3. DO NOT USE THE PLATFORM FOR EMERGENCY MEDICAL NEEDS UNLESS YOUR HEALTH CARE PROVIDER SPECIFICALLY DIRECTS YOU TO DO SO. OTHERWISE, FOR ASSISTANCE WITH EMERGENCY MEDICAL NEEDS, VISIT AN EMERGENCY ROOM OR CALL YOUR HEALTH CARE PROVIDER IMMEDIATELY
  4. You represent and warrant that you are: (i) over 18 years of age or the age of majority in your jurisdiction, whichever is greater, and of legal age to form a binding contract; and (ii) not a person barred from accessing or using the Platform under the laws of the applicable jurisdiction in which you reside or from which you access or use the Platform.

2. Other Agreements and terms

  1. In addition to the Patient TOU, your access to and use of the Platform are further subject to the HealthScore Privacy Policy and any usage or other policies relating to the Platform posted or otherwise made available to you by HealthScore (the Privacy Policy and any such usage or other policies, collectively, the “Additional Terms”). HealthScore reserves the right to unilaterally update the Additional Terms from time to time by posting such updated terms in the Platform.
  2. You acknowledge and agree that: (i) by accessing or using the Platform, HealthScore may receive certain information about you (the “Patient”), including personal information, and HealthScore may collect, use, disclose, store and process such information in accordance with the Patient TOU, including any Additional Terms; and (ii) technical processing and transmission of data, including Your Data (defined in Section 8(a)), associated with the Platform may require transmissions over various networks and changes to conform and adapt to technical requirements of connecting networks or devices.

3. Only a Platform; INFORMED CONSENT

  1. HealthScore is not a healthcare provider, and it does not: (i) provide or administer any medical services, including any diagnosis, treatment or advice; (ii) mediate or otherwise monitor any interactions between you and any healthcare provider or associated medical professional offering or providing services to you through access to or use of the Platform (collectively, “Medical Provider”); or (iii) have any control over or otherwise supervise any services offered or provided by a Medical Provider (collectively, “Medical Services”), including the quality or efficacy of any Medical Services. All Medical Services are provided by an independent, third-party Medical Provider, which is not affiliated with or endorsed by HealthScore.
  2. HealthScore provides only access to and use of the Platform, and data analysis of Your Data (defined in Section 8(a) below), which allows you and a Medical Provider to (i) upload certain Patient information, and (ii) view the results of such data analysis.
  3. You acknowledge and agree that a doctor-patient-relationship (“DPR”) exists between you and the Medical Provider.
  4. Telehealth is the delivery of health care services using interactive audio and video technology, where the Patient and the Medical Provider are not at the same physical location. The telehealth services you receive from a Medical Provider through your access to or use of the Platform are not intended to replace a DPR or be a permanent replacement for in-person medical services. As with any online health service, there are potential risks, which may include: (i) information transmitted may not be sufficient to allow for appropriate healthcare decision-making by the Medical Provider; (ii) delays in evaluation or treatment due to failure of electronic equipment or transmission networks; or (iii) incomplete or inaccurate diagnoses and other judgment errors.
  5. No results from your access to or use of the Platform or Medical Services can be guaranteed or assured. In some instances, the Medical Provider may determine that Medical Services are not appropriate for some or all of your treatment needs, and the Medical Provider may elect not to provide telehealth services to you.

4. Registration and Account

  1. In registering for a user account on the Platform, you agree to: (i) provide true, accurate, current and complete information about yourself as prompted by the Platform’s registration form (the “Registration Data”); (ii) allow HealthScore to obtain and the Medical Provider to provide Registration Data about you from the Medical Provider’s  practice management software; and (iii) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. If you provide any information that is untrue, inaccurate, not current or incomplete, or HealthScore reasonably suspects that you have done so, HealthScore may suspend or terminate your account.
  2. You may not share your account or password with anyone other than your designated friend or family member caregivers or other caregiver that you have selected to assist you with use of the Platform (each a “Patient-Designated Caregiver”). You are fully responsible for all activities that occur under your account, whether or not you authorized the particular use, and regardless of your knowledge of such use. Upon becoming aware of any unauthorized access to or use of your account or password or any other similar breach of security, you shall promptly notify HealthScore.
  3. If your account remains inactive for twelve months or longer, HealthScore reserves the right to suspend or terminate your account, with or without notice to you, and delete Your Data.

5. Grant of Rights

  1. HealthScore grants you a limited, non-exclusive, non-transferable, non-sublicensable, revocable right to: (i) access and view pages within the Platform; (ii) access and use any online software, application and other similar component within the Platform, to the extent that the Platform provides you with access to or use of such component, but only in the form made accessible by HealthScore within the Platform; and (iii) install, run and operate mobile and web-based applications that HealthScore makes available for accessing or using the Platform (each, an “App”) on a device that you own or control, but only in executable, machine-readable, object code form.
  2. All rights granted to you under the Patient TOU are subject to your compliance with the Patient TOU, including all Additional Terms, in all material respects and may only be exercised by you for your personal, non-commercial use or internal business purposes.

6. ACKNOWLEDGEMENTS REGARDING APPLE, INC., GOOGLE INC. AND OTHER APP STORE PROVIDERS

You acknowledge that these Patient Terms of Use are between you and HealthScore and not with Apple, Inc. (“Apple”), Google Inc. (“Google”) or any sponsor or provider of any application marketplace (each an “App Store Provider”) and that as between HealthScore and an App Store Provider, HealthScore (not the applicable App Store Provider) is solely responsible for (i) the App (including the content therein) and (ii) addressing any of your or third party claims relating to the App or your possession and/or use of the App. For the avoidance of doubt, as between an applicable App Store Provider and HealthScore, HealthScore will be solely responsible for the investigation, defense, settlement and discharge of any third party claim that the App or your possession and use of the App infringes such third party’s intellectual property rights. YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NO APP STORE PROVIDER MAKES ANY WARRANTIES OR HAS ANY OBLIGATIONS (INCLUDING, FOR THE AVOIDANCE OF DOUBT, ANY OBLIGATION TO PROVIDE MAINTENANCE OR SUPPORT SERVICES) WHATSOEVER UNDER THESE TERMS OR HAS ANY WARRANTY OBLIGATIONS WITH RESPECT TO THE APPLICATION OR THE SERVICE. If you are using the App on any iOS-based device, (i) the licenses and other rights granted to you herein are granted to you only as permitted by, and subject to, any applicable “Usage Rules” set forth in the Apple App Store Terms and Conditions, and (ii) Apple and its subsidiaries, are third party beneficiaries of these Terms and, upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third party beneficiary of these Terms. If you are using the App on any Android-based device, the licenses and other rights granted to you herein are granted to you only as permitted by and subject to any applicable Android Market Terms of Service established by Google.

7. Third-Party Components and External Materials

  1. Some components of the Platform may be provided with or have incorporated into them third-party components licensed under open source license agreements or other third-party license terms (collectively, “Third-Party Components”). Third-Party Components are subject to separate terms and conditions set forth in the respective license agreements relating to such components, including but not limited to the terms and conditions set forth in Exhibit A below.
  2. The Platform or users of the Platform may provide links or other connections to other websites or resources. HealthScore does not endorse and is not responsible for any content, advertising, products, services or other materials on or available through such sites or resources (collectively, “External Materials”). External Materials are subject to different terms of use and privacy policies. You are responsible for reviewing and complying with such terms of use and privacy policies.

8. RESPONSIBILITY FOR Data

  1. All information, data, data records, databases, text, software, images, graphics, videos, messages, scripts, tags and other materials accessible through the Platform, whether publicly posted or privately transmitted (“Data”), are the sole responsibility of the person from whom such Data originated. This means that you, and not HealthScore, are entirely responsible for all Data that you, or a Patient-Designated Caregiver on your behalf, upload, post, email, transmit or otherwise make available through the Platform (“Your Data”), and other users of the Platform, and not HealthScore, are similarly responsible for all Data they upload, post, email, transmit or otherwise make available through the Platform.
  2. HealthScore has no obligation to pre-screen any Data, although HealthScore reserves the right in its sole discretion to pre-screen, refuse or remove any Data. Without limiting the generality of the foregoing sentence, HealthScore shall have the right to remove any Data that violates the Patient TOU.
  3. You represent and warrant that: (i) you have all necessary rights and authority to grant the rights set forth in the Patient TOU with respect to Your Data; (ii) you consent to and authorize the use, disclosure and analysis of Your Data as contemplated in the Patient TOU; and (iii) Your Data does not violate any duty of confidentiality owed to another party, or the copyright, trademark, right of privacy, right of publicity or any other right of another party.
  4. HIPAA.  You acknowledge and agree that HealthScore is not a “Covered Entity,” as such term is defined under the Health Insurance Portability and Accountability Act of 1996, as amended, or its implementing regulations (collectively, “HIPAA”). HIPAA addresses the manner in which a person’s individually identifiable health information may be used or disclosed by Covered Entities and other companies that are the “Business Associate” (as such term is defined by HIPAA) of the Covered Entity, such as HealthScore. HealthScore may be a Business Associate of its Covered Entity clients.  As a Business Associate, HealthScore will use and disclosure individually identifiable health information in accordance with HIPAA and the Business Associate Agreement(s) we have in place with our Covered Entity clients. For more information regarding your rights under HIPAA, see http://www.hhs.gov/ocr/privacy/.

9. RIGHTS TO Data

  1. HealthScore does not claim ownership of Your Data. However, you hereby grant HealthScore and its service providers and licensors a worldwide, royalty-free, non-exclusive, sublicensable, transferable right and license to use, reproduce, modify, adapt, create derivative works from, perform, display, distribute, make and have made Your Data in connection with (i) providing you with access to and use of the Platform, including in connection with the provision of Medical Services; (ii) performing analysis of Your Data for the purposes contemplated in the Patient TOU and disclosing the results of such analysis to you and your Medical Providers through the Platform; and (iii) improving the Platform.
  2. To the extent you have made any portion of Your Data accessible to others through the Platform, HealthScore may continue to make that portion of Your Data accessible to others through the Platform even after: (i) termination pursuant to Section 17; or (ii) your deletion of your account or that portion of Your Data from your account.
  3. As between HealthScore and you, HealthScore owns all rights, title and interest (including all intellectual property rights) in the Platform, and all improvements, enhancements or modifications thereto, including all Data and other materials therein (except with respect to Your Data). The Platform is protected by United States and international copyright, patent, trademark, trade secret and other intellectual property laws and treaties. HealthScore reserves all rights not expressly granted to you.
  4. You acknowledge and agree that HealthScore may collect or generate Aggregate Data (defined below) in connection with providing you with access to and use of the Platform, and you hereby grant HealthScore a perpetual, irrevocable, worldwide, royalty-free, fully-paid-up, non-exclusive, sublicensable, transferable right and license to use, reproduce, modify, adapt, create derivative works from, publicly perform, publicly display, distribute, make and have made Aggregate Data (in any form and any medium, whether now known or later developed) for any lawful purpose. “Aggregate Data” means Your Data or any Data generated through your access to or use of the Platform that has been aggregated or de-identified in a manner that does not reveal any personal information about you and cannot reasonably be used identify you as the source of such data.

10. User CONDUCT

In connection with your access to or use of the Platform, you shall not (subject to the limited rights expressly granted to you in Section 5):

  1. upload, post, email, transmit or otherwise make available any Data that: (i) is illegal, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful or otherwise objectionable; (ii) you are prohibited from making available under any applicable law or contractual or fiduciary obligation, such as confidential or proprietary information learned as part of an employment relationship or under a non-disclosure agreement; (iii) infringes any copyright, patent, trademark, trade secret or other proprietary right of any party; (iv) consists of unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, commercial electronic messages or any other form of solicitation; (v) contains software viruses or any other code, files or programs designed to interrupt, destroy, limit the functionality of, make unauthorized modifications to, or perform any unauthorized actions through any software or hardware; or (vi) consists of information that you know or have reason to know is false or inaccurate;
  2. use, reproduce, modify, adapt, create derivative works from, publicly perform, publicly display, distribute, make, have made, assign, pledge, transfer or otherwise grant rights to the Platform;
  3. reverse engineer, disassemble, decompile or translate, or otherwise attempt to derive the source code, architectural framework or data records of any software within or associated with the Platform;<
  4. remove or obscure any proprietary notice that appears within the Platform;
  5. access the Platform for the purpose of developing, marketing, selling or distributing any product or service that competes with or includes features substantially similar to the Platform or any other products or services offered by HealthScore;
  6. rent, lease, lend, sell or sublicense the Platform or otherwise provide access to the Platform as part of a service bureau or similar fee-for-service purpose;
  7. impersonate any person or entity, including HealthScore personnel, or falsely state or otherwise misrepresent your affiliation with any person or entity;
  8. forge headers or otherwise manipulate identifiers to disguise the origin of any Data transmitted through the Platform;
  9. act in any manner that negatively affects the ability of other users to access or use the Platform;
  10. take any action that imposes an unreasonable or disproportionately heavy load on the Platform or its infrastructure;
  11. interfere with or disrupt the Platform or servers or networks connected to the Platform, or disobey any requirements, procedures, policies or regulations of networks connected to the Platform;
  12. frame or utilize any framing technique to enclose the Platform or any portion of the Platform (including any Data contained within the Platform);
  13. use spiders, crawlers, robots, scrapers, automated tools or any other similar means to access the Platform, or substantially download, reproduce or archive any portion of the Platform;
  14. sell, share, transfer, trade, loan or exploit for any commercial purpose any portion of the Platform, including your user account and password; or
  15. violate any applicable local, state, provincial, federal, international or other law or regulation.

11. Suggestions

If you elect to provide or make available to HealthScore any suggestions, comments, ideas, improvements or other feedback relating to the Platform (“Suggestions”), you hereby grant HealthScore a perpetual, irrevocable, worldwide, royalty-free, fully-paid-up, non-exclusive, sublicensable, transferable right and license to use, reproduce, modify, adapt, create derivative works from, publicly perform, publicly display, distribute, make or have made Suggestions in any form and any medium (whether now known or later developed), without credit or compensation to you.

12. DEALINGS WITH ADVERTISERS AND OTHER THIRD PARTIES

Your dealings with advertisers and other third parties who market, sell, buy or offer to sell or buy any goods or services within or through the Platform (each, a “Third-Party Merchant”), including payment for and delivery of such goods or services and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and the applicable Third-Party Merchant.

13.  MODIFICATIONS TO The Platform; maintenance and availability

HealthScore reserves the right to modify, suspend or discontinue the Platform or any product or service to which it connects, with or without notice, and HealthScore shall not be liable to you or to any third party for any such modification, suspension or discontinuance. HealthScore may, in its sole discretion, from time to time develop patches, bug fixes, updates, upgrades and other modifications to improve the performance of the Platform or related products or services (collectively, “Updates”). HealthScore may develop Updates that require installation by you before you continue to access or use the Platform or related products or services. Updates may also be automatically installed without providing any additional notice to you or receiving any additional consent from you. The manner in which Updates may be automatically downloaded and installed is determined by settings on your device and its operating system.  Scheduled system maintenance may take place from time to time, and during such time, Updates to the Platform or components thereof may be unavailable. Emergency maintenance may be required at other times in the event of system failure. The App or some aspects thereof may require a wireless Internet connection. You specifically acknowledge that outage and downtime may occur.

14. INDEMNIFICATION

You agree that HealthScore shall have no liability for and you shall indemnify, defend and hold HealthScore and its affiliates, and each of their officers, directors, employees, agents, partners, business associates and licensors (collectively, the “HealthScore Parties”) harmless from and against any claim, demand, loss, damage, cost, liability and expense, including reasonable attorneys’ fees, arising from or relating to: (a) Your Data; (b) your access to or use of the Platform; or (c) your violation of the Patient TOU, any law or regulation, or any rights (including intellectual property rights) of another party.

15. DISCLAIMER OF WARRANTIES

  1. YOUR USE OF THE PLATFORM IS AT YOUR SOLE RISK. THE PLATFORM IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE HEALTHSCORE PARTIES EXPRESSLY DISCLAIM: (i) ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED OR ARISING FROM STATUTE, COURSE OF DEALING, USAGE OF TRADE OR OTHERWISE, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, QUALITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT; AND (ii) ANY LOSS, DAMAGE OR OTHER LIABILITY ARISING FROM OR RELATING TO ANY ACT OR OMISSION OF A MEDICAL PROVIDER (INCLUDING ANY MEDICAL SERVICES), EXTERNAL MATERIALS, THIRD-PARTY COMPONENTS OR THIRD-PARTY MERCHANTS, OR ANY OTHER PRODUCTS OR SERVICES NOT PROVIDED BY HEALTHSCORE.
  2. THE HEALTHSCORE PARTIES MAKE NO WARRANTY OR REPRESENTATION THAT: (i) THE PLATFORM WILL MEET YOUR REQUIREMENTS; (ii) ACCESS TO THE PLATFORM WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (iii) THE INFORMATION AND ANY RESULTS THAT MAY BE OBTAINED FROM ACCESS TO OR USE OF THE PLATFORM WILL BE ACCURATE, RELIABLE, CURRENT OR COMPLETE.

16. LIMITATION OF LIABILITY

  1. THE HEALTHSCORE PARTIES SHALL NOT BE LIABLE FOR ANY LOST PROFITS OR COST OF COVER, OR INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING DAMAGES ARISING FROM OR RELATING TO ANY TYPE OR MANNER OF COMMERCIAL, BUSINESS OR FINANCIAL LOSS, EVEN IF THE HEALTHSCORE PARTIES HAD ACTUAL OR CONSTRUCTIVE KNOWLEDGE OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE. IN NO EVENT SHALL THE HEALTHSCORE PARTIES’ TOTAL LIABILITY TO YOU FOR ALL CLAIMS ARISING FROM OR RELATING TO THE PATIENT TOU OR YOUR ACCESS TO OR USE OF (OR INABILITY TO ACCESS OR USE) THE PLATFORM EXCEED $100.
  2. THE HEALTHSCORE PARTIES DISCLAIM ANY LIABILITY ARISING FROM YOUR INTERACTIONS WITH A MEDICAL PROVIDER AND ANY ACT OR OMISSION OF A MEDICAL PROVIDER, INCLUDING ANY LIABILITY ARISING FROM MEDICAL SERVICES OR ANY CONTRACT OR PAYMENT FOR SUCH SERVICES. YOU ASSUME SOLE RESPONSIBILITY FOR ASSESSING THE QUALIFICATIONS OF THE MEDICAL PROVIDER AND THE QUALITY AND EFFICACY OF ANY MEDICAL SERVICES.
  3. CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.

17. TERMINATION

  1. If you violate the Patient TOU, all rights granted to you under the Patient TOU will terminate immediately, with or without notice to you.
  2. Upon termination of the Patient TOU for any reason: (i) you must immediately uninstall any installed components of the Platform (including Apps) and cease using the Platform; (ii) HealthScore may remove and discard Your Data and delete your user account, in accordance with applicable law and client agreements; (iii) any provision that, by its terms, is intended to survive the termination of the Patient TOU will survive such termination; and (iv) all rights granted to you under the Patient TOU will immediately terminate, but all other provisions will survive termination.

18. Governing Law

The Patient TOU will be governed by and construed and enforced in accordance with the United States Federal Arbitration Act, other applicable federal laws, and the laws of the State of Texas, without regard to conflict of laws principles. The United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to the Patient TOU.

19. BINDING ARBITRATION AND CLASS ACTION WAIVER

  1. ALL CLAIMS (DEFINED IN SECTION 1(b)) WILL BE RESOLVED BY BINDING ARBITRATION RATHER THAN IN COURT, EXCEPT THAT YOU MAY ASSERT CLAIMS IN SMALL CLAIMS COURT (DEFINED FOR THE PURPOSES OF THE PATIENT TOU AS A COURT OF LIMITED JURISDICTION THAT MAY ONLY HEAR CLAIMS NOT EXCEEDING $5,000) IF YOUR CLAIMS ARE WITHIN THE COURT’S JURISDICTION. THERE IS NO JUDGE OR JURY IN ARBITRATION, AND COURT REVIEW OF AN ARBITRATION AWARD IS LIMITED.
  2. The arbitration will be conducted by the American Arbitration Association (AAA) under its then-applicable Commercial Arbitration Rules or, as appropriate, its Consumer Arbitration Rules. The AAA’s rules are available at http://www.adr.org/. The arbitrator will, among other things, have the power to rule on his or her own jurisdiction, including any objections with respect to the existence, scope, or validity of the arbitration agreement or to the arbitrability of any Claims. Payment of all filing, administration and arbitrator fees will be governed by the AAA’s rules. The arbitration will be conducted in the English language by a single independent and neutral arbitrator. For any hearing conducted in person as part of the arbitration, such hearing will be conducted in Austin, Texas or, if the Consumer Arbitration Rules apply, another location reasonably convenient to both parties with due consideration of their ability to travel and other pertinent circumstances, as determined by the arbitrator. The decision of the arbitrator on all matters relating to the Claim will be final and binding. Judgment on the arbitral award may be entered in any court of competent jurisdiction.
  3. YOU AND HEALTHSCORE EACH: (i) AGREES THAT ALL CLAIMS (DEFINED IN SECTION 1(b)) WILL BE RESOLVED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, COLLECTIVE, CONSOLIDATED OR REPRESENTATIVE ACTION, ARBITRATION OR OTHER SIMILAR PROCESS; AND (ii) EXPRESSLY WAIVES ANY RIGHT TO HAVE A CLAIM DETERMINED OR RESOLVED ON A CLASS, COLLECTIVE, CONSOLIDATED OR REPRESENTATIVE BASIS. IF FOR ANY REASON THE PROVISIONS OF THE PRECEDING SENTENCE ARE HELD TO BE INVALID OR UNENFORCEABLE IN A CASE IN WHICH CLASS, COLLECTIVE, CONSOLIDATED OR REPRESENTATIVE CLAIMS HAVE BEEN ASSERTED, THE PROVISIONS OF THIS SECTION 19 REQUIRING BINDING ARBITRATION WILL LIKEWISE BE UNENFORCEABLE AND NULL AND VOID. IF FOR ANY REASON A CLAIM PROCEEDS IN COURT RATHER THAN IN ARBITRATION, YOU AND HEALTHSCORE EACH WAIVES ANY RIGHT TO A JURY TRIAL AND AGREE THAT SUCH CLAIM WILL BE BROUGHT ONLY IN A COURT OF COMPETENT JURISDICTION IN AUSTIN, TEXAS. YOU HEREBY SUBMIT TO THE PERSONAL JURISDICTION AND VENUE OF SUCH COURTS AND WAIVE ANY OBJECTION ON THE GROUNDS OF VENUE, FORUM NON-CONVENIENS OR ANY SIMILAR GROUNDS WITH RESPECT TO ANY SUCH CLAIM.
  4. Notwithstanding anything to the contrary, you and HealthScore may seek injunctive relief and any other equitable remedies from any court of competent jurisdiction to protect our intellectual property rights, whether in aid of, pending or independently of the resolution of any dispute pursuant to the arbitration procedures set forth in this Section 19.
  5. If HealthScore implements any material change to this Section 19, such change will not apply to any Claim for which you provided written notice to HealthScore before the implementation of the change.

20. Legal Compliance

You represent and warrant that you are not: (a) located in a country that is subject to a United States Government embargo or designated by the United States Government as a “terrorist supporting” country; and (b) listed on any United States Government list of prohibited or restricted parties, including the Specially Designated Nationals List.

21. NO THIRD-PARTY BENEFICIARIES

You agree that, except for the HealthScore Parties and Apple (as set forth in Section 6), there are no third-party beneficiaries to the Patient TOU.

22. California Users And Residents

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 such unit in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, by telephone at (800) 952-5210, or as otherwise set forth at https://www.dca.ca.gov/about_us/contactus.shtml (or a successor URL).

23. GENERAL PROVISIONS

The Patient TOU (together with the Additional Terms) constitutes the entire agreement between you and HealthScore concerning your access to and use of the Platform. It supersedes all prior and contemporaneous oral or written negotiations and agreements between you and HealthScore with respect to such subject matter. In the event of any conflict between the Patient TOU and any Additional Terms, the Patient TOU will take precedence and govern. The Patient TOU may not be amended by you except in a writing executed by you and an authorized representative of HealthScore. For the purposes of the Patient TOU, the words “such as,” “include,” “includes” and “including” will be deemed to be followed by the words “without limitation.” You may not assign or delegate any right or obligation under the Patient TOU without the prior written consent of HealthScore. HealthScore may assign or delegate any right or obligation under the Patient TOU without your consent. The failure of HealthScore to exercise or enforce any right or provision of the Patient TOU will not constitute a waiver of such right or provision. If any provision of the Patient TOU is held to be invalid or unenforceable under applicable law, then such provision will be construed, limited, modified or, if necessary, severed to the extent necessary to eliminate its invalidity or unenforceability, without in any way affecting the remaining parts of the Patient TOU. Any prevention of or delay in performance by HealthScore hereunder due to any act of god, fire, casualty, flood, war, terrorism, strike, lockout, labor dispute, failure of public utilities, act or order of any governmental entity, epidemic, pandemic, public health crisis, destruction of production facilities, insurrection or any other cause beyond HealthScore’s reasonable control will excuse the performance of its obligations for a period equal to the duration of any such prevention or delay.

Exhibit A-1

Additional Terms Applicable to Third-Party Components

The terms in this Exhibit A-1 shall apply to your use of the Third-Party Component of the Platform comprised of a cloud-based, software-as-a-service affective intelligence engine that applies advanced signal processing and deep learning AI models to predict physiological and psychological affects and stores information or data that is uploaded into and stored in the engine in the form of facial blood flow information as well as the results of information and data as processed by the engine, such as heart rate and blood pressure (the “Engine Component”). Access to and use of the Engine Component is limited to the capture of blood flow information from an authorized patient’s face for analysis and measurement, and solely in conjunction with authorized use of the Platform and related services. NOTWITHSTANDING ANY PROVISION HEREIN TO THE CONTRARY, THE ENGINE COMPONENT AND RELATED SERVICES ARE PROVIDED ON AN “AS IS” BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ACCURACY OF MEASUREMENTS OR OTHER OUTPUTS, OR THAT THE ENGINE COMPONENT AND RELATED SERVICES SHALL BE FREE OF FAULT OR NTERRUPTIONS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT BY APPLICABLE LAW. THE ENGINE COMPONENT AND RELATED SERVICES MAY BE SUBJECT TO LIMITATIONS OR ISSUES INHERENT IN THE USE OF THE INTERNET AND HEALTHSCORE AND ITS LICENSORS ARE NOT RESPONSIBLE FOR ANY PROBLEMS OR OTHER DAMAGE RESULTING FROM SUCH LIMITATIONS OR ISSUES. THE ENGINE COMPONENT AND RELATED SERVICES (1) ARE NOT A SUBSTITUTE FOR THE CLINICAL JUDGMENT OF A HEALTH CARE PROFESSIONAL; (2) ARE INTENDED TO IMPROVE AWARENESS OF GENERAL WELLNESS; AND (3) DO NOT DIAGNOSE, TREAT, MITIGATE OR PREVENT ANY DISEASE, SYMPTOM, DISORDER OR ABNORMAL PHYSICAL STATE. INDIVIDUALS SHOULD CONSULT WITH A HEALTH CARE PROFESSIONAL OR EMERGENCY SERVICES IF THEY BELIEVE THEY MAY HAVE A MEDICAL ISSUE.

You may not:

  1. commit any act that may conflict with or adversely affect in any way the provision of the Engine component by HealthScore or its licensors;
  2. abuse, tamper with or fraudulently use the Engine Component or permit or assist others to abuse, tamper with or fraudulently use the Engine Component;
  3. use the Engine Component or permit or assist others to use the Engine Component: (a) in any manner that conflicts with its documentation or this Agreement, or that a reasonable person would recognize as interfering unreasonably with the Engine Component, the provision thereof, or access to or use of the Engine Component by HealthScore and/or its licensors’ other clients; (b) for any purpose or in any manner directly or indirectly in violation of applicable laws or in violation of any third party rights, including intellectual property rights and privacy rights; or (c) to falsely identify itself as a third party, such as one of HealthScore’s or its licensors’ other clients;
  4. de-compile, disassemble, reverse engineer or otherwise attempt to discover the source code or determine any design, structure, concepts or construction method of the Engine Component; or
  5. perform load or penetration tests in a production or test environment except as mutually agreed and scheduled in advance.

You acknowledge that HealthScore or its licensors may temporarily suspend your access to the Engine Component if you commit any act that materially and adversely impacts HealthScore’s or its licensors’ systems or its ability to provide services to its other clients.