CryoCaptures Terms of Service
Effective Date January 1, 2026
Contents
1. OVERVIEW; TERM AND TERMINATION
2. ACCOUNTS
12. LEGAL AND COMPLIANCE
These Terms of Service (the “Terms”) set forth your rights and responsibilities when using the CryoCaptures, Inc. (“CryoCaptures,” “us,” “we,” or “our”) websites (each a “Site”), including the CryoCaptures website located at CryoCaptures.com and c-captures.com, services, products and mobile applications provided and operated by CryoCaptures (collectively, including the Sites, the “Services”).
These Terms govern your access to, and use of, the Services. Please read these Terms carefully. The term “you”, as used in these Terms, means any person or entity who accesses or uses the Services and any person or entity who creates an Account (defined below) and accepts these Terms. These Terms give you specific legal rights. In addition, you may also have other legal rights which vary from jurisdiction to jurisdiction. The disclaimers, exclusions, limitations of liability, indemnification, waiver of jury trial, and waiver of punitive damages under these Terms will not apply to the extent prohibited by applicable law. Some jurisdictions do not allow the exclusion of implied warranties or the exclusion or limitation of incidental or consequential damages or other rights, so those provisions of these Terms may not apply to you.
THESE TERMS ARE A LEGAL AGREEMENT. BY ACCEPTING THESE TERMS BY ACCESSING AND USING THE SERVICES, YOU ARE ACCEPTING AND AGREEING TO THESE TERMS ON BEHALF OF YOURSELF OR THE ENTITY THAT YOU REPRESENT IN CONNECTION WITH THE ACCESS AND USE. YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY AND CAPACITY TO ACCEPT AND AGREE TO THESE TERMS ON BEHALF OF YOURSELF OR THE ENTITY THAT YOU REPRESENT. YOU REPRESENT THAT YOU ARE OF SUFFICIENT LEGAL AGE IN YOUR JURISDICTION OF RESIDENCE TO USE OR ACCESS THE SERVICES AND TO ENTER INTO THIS AGREEMENT. IF YOU DO NOT AGREE WITH ANY OF THE PROVISIONS OF THESE TERMS, YOU SHOULD CEASE ACCESSING OR USING THE SERVICES. YOU MAY NOT ACCESS OR USE THE SERVICES OR ACCEPT THE TERMS IF YOU ARE NOT AT LEAST EIGHTEEN (18) YEARS OLD (OR EQUIVALENT MINIMUM AGE IN THE JURISDICTION WHERE YOU RESIDE).
AS DESCRIBED BELOW, THE TERMS INCLUDE THE USE OF MANDATORY BINDING ARBITRATION, A CLASS ACTION WAIVER AND A WAIVER OF JURY TRIALS. THE TERMS ALSO LIMIT THE REMEDIES THAT MAY BE AVAILABLE TO YOU IN THE EVENT OF A DISPUTE. PLEASE READ THE TERMS CAREFULLY, AS YOU ARE ACKNOWLEDGING THEM AND ACCEPTING THEM.
1. OVERVIEW; TERM AND TERMINATION
1.1 Overview. The Services include access to the CryoCaptures public website and mobile application, including everything provided through or as part of the Services, such as all services, software, and CryoCaptures Content (defined below). To be clear, the Services do not include, and CryoCaptures does not provide, any healthcare services.
1.2. Licensing. Subject to the restrictions set forth in this Agreement, CryoCaptures grants the Customer a limited, restricted, revocable, non-exclusive, non-transferable, non-sublicensable license to use the Services, images, and image-related information that the Software shares or otherwise displays to You through the Services (“Imaging Data”). Customer may use the Services, subject to this Agreement, solely for the Customer’s internal businesses purposes, limited to training, data collection and recording, and evaluating the Services for potential use. You are solely responsible for obtaining an individual’s consent to allow our Services to collect, store, record, transcribe and process Imaging Data in any form for CryoCaptures to provide the Services to You. Customer shall comply and require that employees comply with all applicable laws, rules, and regulations, which may include the Health Insurance Portability and Accountability Act (“HIPAA”), with regard to your input and use of an individual’s Imaging Data stored by CryoCaptures under this Agreement.
1.3 Relation to Other Agreements These Terms govern your use of the Services. Certain features of the Services may be subject to additional guidelines, terms or rules, which will be posted on the Site or provided in connection with such features. All such additional terms, guidelines and rules, including the CryoCaptures Privacy Policy (collectively, the “Additional Terms”), are incorporated by reference into these Terms and you are agreeing to accept and abide by them by using the Services. These Terms are in addition to, and do not nullify, any other agreement between you and CryoCaptures, including, but not limited to, an order form, agreement, Business Associate Agreement, statement of work, or other document with terms and conditions for specified Services (collectively, “Transaction Documents”), or any Additional Terms. In the event of a conflict between any Transaction Document or Additional Terms and any provision in these Terms, the Transaction Document and/or Additional Terms will prevail, but only with respect to the portion of the Services to which such Transaction Document and/or Additional Terms apply. You agree to comply with all rules or restrictions that are posted on the Site.
1.4. Term and Effect of Termination. Subject to this Section these Terms will remain in full force and effect while you use the Services or until terminated in accordance with the provisions of these Terms. Upon termination of your rights under these Terms, your Account and right to access and use the Services will terminate immediately. You acknowledge and understand that any termination of your Account may involve deletion of your information associated with your Account, including User Content, from CryoCaptures’s databases. CryoCaptures will not have any liability whatsoever to you for any termination of your rights under these Terms, including for termination of your Account or deletion or removal of (or failure to delete or remove) your information associated with your Account, including User Content.
1.5. Eligibility. You may use the Services only if you are at least eighteen (18) years of age. If CryoCaptures becomes aware that we have unknowingly collected personal information from a child under the age of eighteen (18), we will take commercially reasonable efforts to delete such data from our system.
1.6. System Requirements. You are solely responsible for providing and maintaining, at your own risk, option, and expense, appropriate equipment, software, hardware, and other technology needed for you to access and use the Services, which must comply with any technical, quality, or other requirements we publish or otherwise make available. We may change these requirements at any time upon publication or other notice, with or without prior notice. You acknowledge that CryoCaptures is not responsible for the safeguarding, loss, or recovery of any data stored on your hardware. For example, use of the Services on a mobile device requires a compatible mobile device with at least a certain version of the applicable operating system and internet access. You are solely responsible for these requirements, including any applicable changes, updates, and fees, as well as for complying with the terms of your agreement with your mobile device, internet service, telecommunications, other service providers, and software and app licensors.
2. ACCOUNTS
2.1. Your Account. To use certain Services, you must register for a user account (“Account”) and provide certain information about yourself, as prompted by the applicable registration form. Y You shall be the sole user of Your account. You are fully responsible and liable for Your employee’s compliance with the Agreement and unauthorized use of Your account.
If You register for an account by way of a third party, such as a hospital with which You are affiliated, personal information You provided to that third party, such as name, phone number, email, and other information, You agree that we can use such personal information to create and manage your account.
You are solely responsible for Your account information and any data that You provide to CryoCaptures in connection with Your account (“Account Data”). You agree that You own or have the necessary rights, permissions and consents to all of Your Account Data and that use of the Account Data does not infringe, misappropriate, or violate any third party’s intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable laws, rules, or regulations. You agree to grant us a worldwide, non-exclusive license to access, use, export, process, copy, distribute, perform and display the Account Data in accordance with this Agreement, including to provide, maintain and support the Services, to prevent or respond to security issues, to provide support or respond to technical issues, and as required by law, as permitted by this Agreement and/or permitted otherwise by Your instructions. You are responsible for safeguarding Your account login credentials. You are also responsible for all of the activity within Your account, whether or not You authorized that activity. We will not be responsible for any damages, losses or liability if credentials or any account is not kept confidential by You, or information provided by an unauthorized third party logging into and accessing the Services. You should immediately notify us of any unauthorized access to or use of Your account. We may review activity in connection with the Services for compliance purposes, but we have no obligation to do so. We aren’t responsible for the content of any Account Data or the way You use the Services to transmit, store or process any Account Data. If we believe, however, that there is a violation of these Terms, we may suspend or block the Services or take any steps that we determine necessary, including with respect to Account Data, if we believe there is or may be a violation of any laws, rules or regulations or a risk of harm to us, the Services, any individual, other users or any third party.
2.2. Account Restrictions. You may not have more than one Account. You agree not to create an Account or use the Services if you have been previously removed by us or banned from any of the Services.
2.3. Account Termination. You may terminate your Account at any time, for any reason, by emailing privacy@cryocaptures.com. At any time, CryoCaptures may suspend or terminate your rights to use the Services (including your Account) for any reason at its sole discretion, including for any use of the Services in violation of these Terms. Upon any termination of your Account, you must cease any further use of the Services. If at any time you are not happy with the Services, your sole remedy is to cease using the Services and follow this termination process.
3. ACCEPTABLE USE POLICY
3.1. Access and Use. You may only use the Services in compliance with applicable federal, state, local, and international laws, rules, and regulations, and this Section 3 (our “Acceptable Use Policy” or “AUP”). You agree that we have the right to investigate violations of this Agreement and may also consult and cooperate with law enforcement authorities to prosecute individuals who violate the law.
In using the Services, You should refrain from any abusive, dangerous, or threatening behavior. We reserve the right to immediately suspend, block, and/or terminate Your access to or use of the Services if, in our sole discretion, such behavior is exhibited. As a condition of Your access to and/or use of the Services, You agree to:
a. Comply with the Agreement and this AUP;
b. Comply with all applicable laws, rules, and regulations;
c. Upload and use only Account Data which You own or to which You have obtained all required rights, waivers, permissions, and consents, in accordance with all applicable laws, rules, and regulations;
d. Prevent unauthorized access to or use of the Services and keep passwords and all other login information to Your account secure and confidential;
e. Promptly notify us if You become aware of or reasonably suspect any illegal or unauthorized activity or a security breach involving Your account, including any theft, loss, unauthorized access to, disclosure, or use of the Services or any information therein; and
f. Comply with all terms applicable to any third party products and services, including any You elect to use along with the Services, if any.
Further, as a condition of Your access to or use of the Platform, You will not:
a. Attempt to reverse engineer, decompile, disable, disassemble, modify, copy, translate, or disrupt the features, functionality, integrity, or performance of the Services, or sublicense, resell or timeshare the Services;
b. Attempt to gain unauthorized access to all or a portion of the Services, the networks or systems related to the Services, or any data contained therein;
c. Interfere with another’s authorized use of the Services;
d. Permit access to the Platform by any unauthorized third party;
e. Rent, lease, lend, or grant a security interest in the Services to any third party;
f. Provide the Services to third parties in any service-bureau or similar capacity, without our express prior written consent;
g. Disclose any user IDs, passwords, API keys, or other similar access credentials to any third party;
h. Modify, copy, or make derivative works based on the Services;
i. Upload to, or transmit from, the Services any data, file, software, or link that contains or redirects to a worm, virus, Trojan horse or other harmful code or a technology that unlawfully accesses or downloads content or information stored within the Services;
j. Violate any applicable laws, rules or regulations, the privacy rights of any third party or use the Services to store or transmit any information that may infringe upon or misappropriate any third party intellectual property rights;
k. Post or transmit any Account Data or other content that is fraudulent or misleading;
l. Post, upload, share or distribute any content that is unlawful, defamatory, libelous, inaccurate, or that a reasonable person could deem to be objectionable, profane, indecent, pornographic, harassing, threatening, embarrassing, hateful, or otherwise inappropriate;
m. Impersonate any person or entity or misrepresent Your affiliation with any person or entity;
n. Access, search, or use any software or other tool or method to access, search, or download any intellectual property from the Platform by any means other than our approved interfaces (e.g., scraping);
o. “Frame” or “mirror” any of CryoCaptures’ content;
p. Probe, scan, or test the vulnerability of any of our systems or networks, breach any security or authentication measures, or attempt to gain unauthorized access to the Services, systems or networks including to circumvent any software, security protections or monitoring of the Services;
q. Initiate a denial-of-service attack or a distributed denial-of-service attack, or otherwise attempt to interfere with the proper working of the Services;
r. Use the Services except for Your own individual use for training, patient care services, and evaluating the Platform for potential use in patient care services;
s. Send or share any altered, deceptive or falsely sourced information, including ‘spoofing’ or ‘phishing’;
t. Use the Services in any manner that may harm any person or entity;
u. Engage in activity that incites or encourages violence or hatred, or that discriminates;
v. Access or use the Services to build a similar or competitive product or service;
w. Without our prior written consent, publish, disclose to any third party, or otherwise disseminate any benchmarking or other test results or similar data or reports, or other information, opinions, or results generated in connection with Your use of the Services, including any comparisons of the Services with alternative services or technology; or
x. Authorize, permit, enable, induce or encourage any third party to do any of the above.
3.2. Modification. CryoCaptures reserves the right, at any time, to modify, suspend, or discontinue the Services (in whole or in part) with or without notice to you. You agree that CryoCaptures will not be liable to you or to any third party for any modification, suspension, or discontinuation of the Services or any part thereof.
3.3. No Support or Maintenance; Updates. Unless otherwise indicated, any future release, Update (defined below), or other addition to functionality of the Services shall be subject to these Terms. You acknowledge and agree that CryoCaptures will have no obligation to provide you with any support or maintenance in connection with the Services. You agree that CryoCaptures is not obligated to create or provide any corrections, updates, upgrades, bug fixes, and/or enhancements of the Services (each an “Update”). You acknowledge that portions of the Services may not properly operate if you do not install all Updates. CryoCaptures may also suspend your access to Services until you install certain Updates.
3.4. Security. CryoCaptures cares about the integrity and security of your personal information and endeavors to implement appropriate security measures. However, CryoCaptures cannot guarantee that unauthorized third parties will never be able to defeat our security measures or use your personal information for improper purposes. You acknowledge that you provide your personal information at your own risk.
4. USER ACKNOWLEDGMENTS; COMMUNICATION SERVICES.
4.1. User Acknowledgment. By accessing the Services, you acknowledge and understand the following:
(a) CryoCaptures does not provide medical or other health services, emergency medical services, medical advice, medical diagnosis or treatment. You should always seek the advice of your healthcare provider with any questions you may have regarding diagnosis, cure, treatment, mitigation, or prevention of any disease or other medical condition or impairment or the status of your health. If you think you may have a medical emergency, call your doctor or 911 immediately.
(b) Certain Services, including the Communication Services (defined below), may permit you to provide information to, receive information from, and otherwise interact with a healthcare provider. Such healthcare providers, not CryoCaptures, will be solely responsible for any healthcare services, including any medical advice, diagnosis, care and treatment that is provided or failed to be provided via the Services. Use of the Services, including access to any CryoCaptures Content, does not create a provider-patient relationship between you and CryoCaptures.
(c) The Services and information you learn from CryoCaptures are not intended to independently diagnose, prevent, or treat any condition or disease, or to be a substitute for professional medical advice, diagnosis, or treatment. You should not disregard professional medical advice or delay in seeking it because of something you have accessed on or through the Services. You should not attempt to self-diagnose a skin condition you observe based either on anything you have read on the Services or any assumptions or inferences you make as the result of any information you receive from any source including the Services.
(d) You agree that CryoCaptures is not responsible or liable for any loss or damage of any sort incurred as the result of any of your interactions with healthcare providers or other entities or individuals, whether online or offline.
(e) CryoCaptures does not recommend or endorse any specific tests, physicians, products, procedures, opinions or other information that may be mentioned in the Services. Reliance on any information provided by CryoCaptures or its employees or agents is solely at your own risk.
4.2 Communications with Healthcare Providers. As part of the Services, CryoCaptures may offer messaging services and/or image notes designed to facilitate communications with designated healthcare providers (“Communication Services”). You authorize the electronic transmission of your personally identifiable information and protected health information, as applicable. You agree to use caution when giving out any personally identifiable information in any Communication Services. CryoCaptures does not control or endorse the content, messages or information found in any Communication Services and, therefore, CryoCaptures specifically disclaims any liability with regard to the Communication Services and any actions resulting from your participation in any Communication Services.
Please note that CryoCaptures does not control the devices, computers, or the Internet over which you may choose to send confidential personal information and cannot, therefore, prevent intentional interception attempts or compromises to your information while in transit to CryoCaptures. CryoCaptures is committed to safeguarding your information in compliance with all applicable laws, but CryoCaptures does not guarantee the absolute security of Communications Services involving electronic communications or transmissions made over the Internet.
5. OWNERSHIP AND INTELLECTUAL PROPERTY.
5.1. CryoCaptures Property. CryoCaptures and its licensors exclusively own and retain all rights, title, and interest in and to, including all intellectual property rights therein and thereto the Services and all websites, mobile applications, Software, processes, algorithms, Products, designs, user interfaces, look and feel, branding, documentation, specifications, APIs, and other technology provided or used in connection with or that constitutes the Services. CryoCaptures and its licensors reserve all rights not expressly granted in this Agreement.
No right or license is granted to make any improvements, derivative works, or modification to the Services or to any of CryoCaptures’ intellectual property related to the Services (“Modifications”). To the extent a Modification is made by You or otherwise arises from Your use of or access to the Services, all rights in such Modifications are hereby assigned to CryoCaptures. In the event this assignment fails for any reason, You grant CryoCaptures a worldwide, perpetual, irrevocable, fully paid up, sublicensable (through multiple tiers), transferable license to practice or otherwise incorporate such Modification into the Services. You shall promptly disclose in writing and to reasonable detail any and all Modifications that You make, discover, or develop in the course of, as a result of, or in connection with this Agreement. You shall further, without any additional consideration, execute all documents and do all acts necessary or desirable to confirm CryoCaptures has all right, title, interest, and licenses in and to the Modifications and to enable CryoCaptures to procure, maintain, and enforce any intellectual and statutory protections on the Modifications throughout the world.
You may also provide CryoCaptures with feedback, suggestions, and information with respect to the Services (“Feedback”), and CryoCaptures may use such Feedback in any manner, including to improve the Product, Software, or Services. You hereby grant CryoCaptures a worldwide, nonexclusive, perpetual, irrevocable, transferable, royalty free, fully paid up, sublicensable license to use and exploit Feedback for any purposes and without restriction.
Customer may not sell, assign, convey, sublicense, lease, loan, use, compile, decompile, reverse engineer, reverse assemble, disassemble, or transfer the Services for any purpose whatsoever and Customer shall have no right, title, or interest in or to such Services, all of which shall be the exclusive property of CryoCaptures.
5.2. User Content. Each user owns its own User Content. By making available, uploading, transmitting or displaying your User Content on or in the Services, (i) you represent that you own or have all rights necessary to make available your User Content and that such use does not violate or infringe on any rights of any third party, and (ii) you agree that you are solely responsible for compliance with all laws pertaining to the User Content, including laws which require you to obtain the consent of a third party to use the User Content and to provide appropriate notices of third party rights. “User Content” means any and all information and content that a user submits to, or uses with, the Services, including, but not limited to information and content entered, uploaded, transmitted or stored using the Services (e.g., content in the user’s Account, photos, or messages, or content provided when using the Communication Services), other than Feedback (defined below). You shall be solely responsible for your User Content and the consequences of posting, providing or publishing it. You assume all risks associated with use of your User Content, including any reliance on its accuracy, completeness or usefulness by others, or any disclosure of your User Content that personally identifies you or any third party. You hereby represent and warrant that your User Content does not violate these Terms. You may not represent or imply to others that your User Content is in any way provided, sponsored or endorsed by CryoCaptures. CryoCaptures is not obligated to backup any User Content, and your User Content may be deleted at any time without prior notice. CryoCaptures has no responsibility or liability for the deletion or accuracy of any User Content; the failure to store, transmit, or receive transmission of User Content; or the security, privacy, storage, or transmission of other communications originating with or involving use of the Services.
5.3. User Content License; Aggregated and Anonymized Data. By accessing the Services and providing your User Content for the purposes described in these Terms, you expressly grant to CryoCaptures an irrevocable, worldwide, non-exclusive, royalty-free, fully paid up, sublicensable and transferable license to store, process, analyze, compare, index, use, reproduce, and otherwise exploit your User Content (whether such information pertains to you or another person) for any and all lawful purposes including, without limitation: (i) operating and providing the Services; (ii) making improvements and modifications to the Services; and (iii) combining your and other users’ User Content to compile and generate aggregated and anonymized data about users of the Services (“Aggregated and Anonymized Data”). No individual user will be identified or reasonably identifiable in such Aggregated and Anonymized Data and the Aggregated and Anonymized Data will not include any personally identifiable information or protected health information. You acknowledge and agree that all Aggregated and Anonymized Data will belong to CryoCaptures and may be used, exploited (including publishing, distributing, selling, licensing, and otherwise exploiting such data) and retained indefinitely by CryoCaptures.
You acknowledge and agree that CryoCaptures may use deidentified information, including deidentified Imaging Data and User Content, to develop, train, enhance, analyze, and validate algorithms, models, and other components of its artificial intelligence and machinelearning technologies. All such data will be processed in accordance with applicable laws and industry standards for deidentification and will not include information that identifies you or any individual. CryoCaptures may use, create, reproduce, modify, distribute, and otherwise exploit deidentified data for any lawful purpose, including improving the Services, conducting internal research, developing new products or features, and generating aggregated insights. You understand and agree that CryoCaptures retains all rights, title, and interest in and to any models, algorithms, analytics, or other outputs derived from such deidentified data.
5.4. Digital Millennium Copyright Act. CryoCaptures respects the intellectual property of others, and asks that its users do the same. In connection with the Services, CryoCaptures may, in its sole discretion, remove, or disable access to, material that infringes (or allegedly infringes) on the rights of others. In appropriate circumstances, CryoCaptures may deny access to or terminate users of the Services who are repeat infringers of intellectual property rights, including copyrights. If you are a copyright owner or an agent thereof and believe that any User Content infringes your copyrights, and wish to have the allegedly infringing material removed, you may submit a notification pursuant to the Digital Millennium Copyright Act by providing CryoCaptures’s copyright agent with the following information in writing (see 17 U.S.C. §512(c)(3) for further details):
(a) A physical or electronic signature of a person authorized to act on behalf of the owner of the copyright interest;v
(b) A description of the copyrighted work(s) that you claim to have been infringed;
(c) A description of the material on the Services that you claim is infringing and that you request us to remove;
(d) Sufficient information to permit us to locate such material;
(e) Your address, telephone number, and e-mail address;
(f) A statement that you have a good faith belief that disputed use of the material is not authorized by the copyright owner, its agent, or under the law; and
(g) A statement that the information in the notification is accurate, and under penalty of perjury, that you are either the owner of the copyright that has allegedly been infringed or that you are authorized to act on behalf of the copyright owner.
The designated copyright agent for CryoCaptures can be reached as follows:
By mail:
CryoCaptures, LLC
24431 Calle de la Louisa, Suite 200, Laguna Hills, CA
By email: privacy@cryocaptures.com
By phone: +1 (949) 266-0216
6. USER CONDUCT; THIRD-PARTY LINKS; OTHER USES; RELEASE.
6.1. You warrant, represent and agree that you will not contribute any User Content or otherwise use the Services in a manner that (i) infringes or violates the intellectual property rights or proprietary rights, rights of publicity or privacy or other rights of any third party; (ii) violates any law, statute, ordinance or regulation or is otherwise illegal; (iii) is harmful, fraudulent, deceptive, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous or otherwise objectionable, or that would give rise to civil liability, or constitute or encourage conduct that could constitute a criminal offense, under any applicable law or regulation; (iv) impersonates any person or entity, including, without limitation, any employee or representative of CryoCaptures, or falsifies or misrepresents yourself or your affiliation with any person or entity; (v) contains a virus, Trojan Horse, worm, time bomb or other harmful computer code, file or program; (vi) jeopardizes the security of your Account or anyone else’s Account (such as allowing someone else to log into the Services as you); (vii) attempts, in any manner, to obtain or access the password, account, products, devices, systems, or other security information from any other user or third party; (viii) violates the security of any computer network or cracks any passwords or security encryption codes; (ix) runs any form of auto-responder or “spam” on the Services or any processes that otherwise interfere with the proper working of the Services (including by placing an unreasonable load on the Services’ infrastructure); (x) copies or stores any portion of another user’s User Content that you know, or reasonably should know, cannot legally be distributed in such manner; (xi) decompiles, reverse-engineers or otherwise attempts to obtain the source code or underlying ideas or information of or relating to the Services; or (xii) denigrates or disrupts any network capacity or functionality.
6.2. Enforcement. We reserve the right (but have no obligation) to review any User Content, and to investigate and/or take appropriate action against you in our sole discretion if you violate any provision of these Terms or otherwise create liability for CryoCaptures or any other person or entity. Such action may include removing or modifying your User Content, terminating your Account, and/or reporting you to law enforcement authorities.
6.3. Third-Party Links. The Site may contain links to other websites operated by third parties and/or display advertisements for third parties (collectively, “Third-Party Links”). Such Third-Party Links are not under our control. CryoCaptures provides these Third-Party Links only as a convenience and does not review, approve, monitor, endorse, warrant or make any representations with respect to such Third-Party Links. Your use of these Third-Party Links is at your own risk.
6.4. Other Users. The Company assumes no responsibility or liability for violations by users of the Services. Each user of the Services is solely responsible for any and all of its own User Content. Because we do not control User Content, you acknowledge and agree that we are not responsible for any User Content, whether provided by you or by others. We make no guarantees regarding the accuracy, currency, suitability, or quality of any User Content. Your interactions with other users of the Services are solely between you and such users. You agree that Company will not be responsible for any loss or damage incurred as the result of any such interactions. If there is a dispute between you and any user of the Services, we are under no obligation to become involved.
7. INDEMNIFICATION.
You will defend CryoCaptures and our affiliates and our respective employees, partners, officers, directors, agents, successors and assigns (collectively, the “Indemnified Party(ies)”) from and against any and all third party claims, actions, suits, proceedings, and demands arising from or related to Your violation of this Agreement (“Claim(s)”), and will indemnify the Indemnified Parties for all reasonable attorneys’ fees incurred and damages and other costs finally awarded against any Indemnified Party in connection with or as a result of, and for amounts paid by an Indemnified Party under a settlement You approve in connection with, a Claim. We agree to provide You with notice of any Claim and allow You the right to assume the exclusive defense and control, and cooperate with any reasonable requests in assisting Your defense and settlement of such Claim. Notwithstanding the foregoing, any Indemnified Parties may choose its own counsel if it pays for the cost of such counsel and You shall not enter into any settlement without the express written consent of the applicable Indemnified Party (such consent not to be unreasonably withheld).
8. DISCLAIMERS.
OUR SERVICES ARE OFFERED AND PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS, WITHOUT WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, CRYOCAPTURES HEREBY DISCLAIMS ALL OTHER WARRANTIES IN CONNECTION WITH THIS AGREEMENT, THE SERVICES, AND ANY APPLICABLE SOW, WHETHER IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, ACCURACY, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, OR THAT THE SERVICES WILL BE AVAILABLE, COMPLETE, ADEQUATE, RELIABLE, ERROR-FREE OR UNINTERRUPTED. CRYOCAPTURES DOES NOT REVIEW, MONITOR, EVALUATE, OR ANALYZE ANY INFORMATION GENERATED FROM OR BY THE SERVICES FOR ANY MEDICAL PURPOSE. CRYOCAPTURES DOES NOT ENGAGE IN THE PRACTICE OF MEDICINE AND DOES NOT PROVIDE ANY MEDICAL ADVICE OR DIAGNOSES. IT IS YOUR RESPONSIBILITY TO DISPENSE MEDICAL ADVICE TO OR MAKE DIAGNOSES FOR YOUR PATIENTS BASED ON YOUR PROFESSIONAL JUDGMENT AND YOUR EVALUATION OF YOUR PATIENTS. PATIENT AND IMAGING DATA USED OR OTHERWISE COLLECTED AS PART OF OUR SERVICES SHOULD NOT AND IT IS NOT INTENDED TO BE USED TO PROVIDE OR OTHERWISE BE A FACTOR IN HEALTHCARE AND MEDICAL SERVICES.
YOU ALSO AGREE THAT THE SERVICES ARE NOT INTENDED TO BE USED IN A MEDICAL EMERGENCY.
9. LIMITATION ON LIABILITY.
IN NO EVENT WILL WE OR OUR LICENSORS HAVE ANY LIABILITY TO YOU OR ANY THIRD PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL OUR OR OUR LICENSORS AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT OR USE OF THE SERVICES BY YOU (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY (INCLUDING NEGLIGENCE)) EXCEED THE GREATER OF $100 OR FEES PAID BY YOU WITHIN THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY. THE FOREGOING WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW. YOU AGREE THAT THE TERMS IN THIS LIMITATION OF LIABILITY SECTION ALLOCATES THE RISKS BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO ENTER INTO THESE TERMS.. If you are a California resident, you waive California Civil Code Section 1542, which states: “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release, and that if known by him or her would have materially affected his or her settlement with the debtor or released party.”
10. FEES AND PAYMENT.
The fees CryoCaptures charges for the Services are not reimbursable by any insurance provider or other third party. Moreover, you agree that you will not seek reimbursement for any Services from any federal or state health care program or provider (e.g., Medicare, Medicaid, Tricare, etc.) in violation of applicable federal and state laws, rules, or regulations.
11. DISPUTE RESOLUTION; WAIVER OF JURY TRIAL; WAIVER OF CLASS ACTION.
11.1. Initial Dispute Resolution. CryoCaptures is available by email at privacy@cryocaptures.com to address any concerns you may have regarding your use of the Services. Most concerns may be quickly resolved in this manner. You agree to use best efforts to settle any dispute, claim, question, or disagreement directly through consultation and good faith negotiations which shall be a precondition to either party initiating a lawsuit or arbitration.
11.2. Agreement to Binding Arbitration. If the parties do not reach an agreed upon solution within a period of thirty (30) days from the time informal dispute resolution is pursued pursuant to Section 11.1 above, then either you or CryoCaptures may initiate binding arbitration. All claims arising out of or relating to these Terms (including their formation, performance and breach), the parties’ relationship with each other and/or your use of the Services shall be finally settled by binding arbitration administered on a confidential basis by JAMS. Disputes involving claims and counterclaims under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’s most current version of the Streamlined Arbitration Rules and Procedures, excluding any rules or procedures governing or permitting class actions. All other claims shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, excluding any rules or procedures governing or permitting class actions. Each party will have the right to use legal counsel in connection with arbitration at its own expense. The parties shall select a single neutral arbitrator in accordance with the JAMS Streamlined Arbitration Rules and Procedures. The arbitrator, and not any federal, state or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability or formation of these Terms, including, but not limited to, any claim that all or any part of these Terms is void or voidable. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator’s award shall be in writing and provide a statement of the essential findings and conclusions, shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction. The interpretation and enforcement of these Terms shall be subject to the Federal Arbitration Act. The JAMS rules governing the arbitration may be accessed at https://www.jamsadr.com/adr-rules-procedures. If you initiate arbitration, to the extent the filing fee for the arbitration exceeds Two Hundred and Fifty U.S. Dollars ($250) and the claim is found to be non-frivolous, CryoCaptures will pay the additional cost. If CryoCaptures is required to pay the additional cost of the filing fees, you should submit a request for payment of fees to JAMS along with your form for initiating the arbitration, and CryoCaptures will make arrangements to pay all necessary fees directly to JAMS. CryoCaptures will also be responsible for paying all other arbitration costs arising in connection with the arbitration, other than costs incurred by you for legal counsel, travel and other out-of-pocket costs and expenses not constituting fees or amounts payable to JAMS. You will not be required to pay fees and costs incurred by CryoCaptures if you do not prevail in arbitration. CryoCaptures will also pay JAMS to reimburse you for any portion of the $250 filing fee that is more than what you would otherwise have to pay to file suit in a court of law.
THIS ARBITRATION IS MANDATORY AND NOT PERMISSIVE. You understand that, absent this mandatory provision, you would have the right to sue in court and have a jury trial. You further understand that the right to discovery may be more limited in arbitration than in court.
11.3. Waiver of Jury Trial. THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO 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 Section 11. Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in court and are subject to very limited review by a court. In the event any litigation should arise between you and CryoCaptures in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, YOU AND CRYOCAPTURES WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge.
11.4. Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES ARISING OUT OF OR RELATING TO THESE TERMS, YOUR USE OF THE SERVICES, AND THE MATTERS CONTEMPLATED HEREBY MUST BE LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. In the event that this subparagraph is deemed invalid or unenforceable neither you nor CryoCaptures are entitled to arbitration and instead claims and disputes shall be resolved in a court located in Chicago, Illinois.
11.5. Venue for Litigation. To the extent that the arbitration provisions set forth in Section 11.2 do not apply, you agree that any litigation shall be filed exclusively in state or federal courts located in Orange County, CA. You and CryoCaptures expressly consent to exclusive jurisdiction in Cook County, Illinois for any litigation. In the event of litigation relating to these Terms or the Services, you agree to waive, to the maximum extent permitted by law, any right to a jury trial, except where a jury trial waiver is not permissible under applicable law.
12. LEGAL AND COMPLIANCE
The Parties to this Agreement specifically intend to comply with all applicable laws, rules, and regulations, including the federal anti-kickback statute (42 U.S.C. 1320a-7b) and the related safe harbor regulations. The Parties acknowledge and agree that the compensation set forth herein represents the fair market value of the Services provided by CryoCaptures to Customer negotiated in an arms-length transaction and has not been determined in a manner which takes into account the volume or value of any referrals or business otherwise generated between Customer and CryoCaptures. Nothing contained in this Agreement shall be construed in any manner as an obligation or inducement for the Customer to recommend the purchase of CryoCaptures’ Products, Software, Services, or those of any organizations affiliated with CryoCaptures. The Parties further agree that the Agreement does not involve the counseling or promotion of a business arrangement that violates state or federal law. With respect to this Agreement, Customer shall:
- Ensure that, to the extent applicable, their use of the Services is conducted in compliance with all applicable laws and regulations, including but not limited to: laws, regulations and guidance pertaining to state and federal anti-kickback statutes and submission of false claims to governmental or private health care payers; state and federal laws and regulations relating to the protection of individual and patient privacy; and any other laws and regulations applicable to this Agreement.
- Ensure that Customer obtains the necessary consents to use any Protected Health Information (“PHI”), as protected under HIPAA, or properly de-identifies all data such that it does not constitute PHI under HIPAA, before using such data as part of the Services or any deliverable.
- Ensure that, if required, the Customer is duly licensed and in good standing in accordance with applicable state laws to provide the Services.
Customer shall report to CryoCaptures any violations of the compliance obligations under this Agreement. Customer and CryoCaptures agree to cooperate in producing or providing access to applicable records related to the provision of the Services in the event the Department of Health and Human Services conducts any inquiry or investigation.
12.1 General Anti-Corruption Compliance Provision. Neither Party shall perform any actions that are prohibited by local and other anti- corruption laws (collectively “Anti-Corruption Laws”) that may be applicable to one or both Parties to the Agreement. Without limiting the foregoing, neither Party shall make any payments, or offer or transfer anything of value, to any government official or government employee, to any political party official or candidate for political office or to any other third party related to the transaction in a manner that would violate Anti-Corruption Laws.
12.2 Confidential Information. Each Party agrees that in connection with facilitating the relationship between CryoCaptures and Customer described in this Agreement, it may be desirable to disclose Confidential Information (as hereinafter defined in this paragraph) to the other Party and materials containing Confidential Information. “Confidential Information” includes the Product; Software; any data or information disclosed hereunder that relates to the disclosing party’s products, technology, software, research, development, customer or business activities, and all information that is or reasonably should be understood to be confidential or proprietary to and/or a trade secret of the disclosing party. Except as otherwise expressly provided in this Agreement, each Party provides Confidential Information hereunder solely for the purpose of facilitating the relationship described in this Agreement and each Party agrees: (i) not to use any Confidential Information directly or indirectly for any purpose other than the foregoing; and (ii) to limit its disclosure of Confidential Information to those employees, agents, subcontractors, and representatives who have a need to know such Confidential Information for purposes of performing this Agreement.
CryoCaptures and Customer agree that they consider the terms, conditions, and prices set forth in this Agreement to be Confidential Information. Neither Party shall disclose such terms, conditions, and pricing to any third party without the express written permission of the other Party, except as may be required by law or regulation.
Customer agrees not to discuss or demonstrate the Services to any of CryoCaptures’ competitors or any of their respective subsidiaries, or any software company in direct competition with CryoCaptures.
12.3 Data Protection. To the extent that You instruct us to create, receive, maintain, or transmit PHI for or on Your behalf, You agree to contact us to execute a copy of our Business Associate Agreement, which shall be incorporated herein and made part of this Agreement.
13. COMMUNICATIONS.
13.1. Communications. By opting in to receive text messages and calls from CryoCaptures, you consent to accept and receive communications from us, including text messages and calls to the cellular phone number you provide to us when you sign-up for an Account or update the contact information associated with your Account. You represent that you are the account holder or regular user of the cellular telephone number(s) that you provide or that you have permission from the account holder to receive the text messages and calls. Such communications may include, but are not limited to, reminders and notifications regarding your use of the Services. You acknowledge that you are not required to consent to receive texts or calls as a condition of using the Services. Text messages and calls may be prerecorded and/or generated by automatic telephone dialing systems. Standard message and data rates applied by your cell phone carrier may apply to the text messages and/or calls we send or make to you.
13.2. Opt Out. You may opt-out of text messages from CryoCaptures by replying STOP or by emailing privacy@cryocaptures.com and specifying that you want to opt-out of text messages. You may opt-out of calls by emailing privacy@cryocaptures.com and specifying you want to opt-out of calls, or by following any other applicable unsubscribe or other opt-out instructions provided to you. You acknowledge that opting out of receiving communications may impact your use of the Services.
14. GENERAL.
14.1 Governing Law; Venue. To the fullest extent permitted pursuant to applicable law, this Agreement is governed by the laws of the State of California without regard to conflict of law principles. If a lawsuit or court proceeding is permitted under this Agreement, then You and CryoCaptures agree to submit to the personal and exclusive jurisdiction of the state courts and federal courts located within Orange County, California for the purpose of litigating any dispute.
14.2 Independent Contractors. The Parties are independent contractors. This Agreement does not establish any relationship of partnership, joint venture, employment, franchise or agency between You and CryoCaptures, and neither Party nor any third party will have the power to act on the other Party’s behalf without the other Party’s prior written consent.
14.3 Assignment. No Party shall have the right to assign this Agreement, in whole or in part, or any of its rights or obligations under this Agreement, without the prior written consent of the other Party (such consent not to be unreasonably withheld), except that CryoCaptures may assign this Agreement without consent as part of a corporate reorganization, or upon a change of control, consolidation, merger, or transfer of all or substantially all of its business related to this Agreement, whether by sale of stock or assets, operation of law, or otherwise. Any attempted assignment or delegation in violation of the foregoing will be null and void.
14.4 Promotion. CryoCaptures may include Your name and logo in lists of customers, solely to identify You as a user of the Services and further provided that such customer lists shall not be presented in such a way as to indicate or imply any endorsement by or affiliation with You unless CryoCaptures obtains Your prior written consent.
14.5 Force Majeure. Except for the obligation to pay money, no Party will be liable for any failure or delay in its performance under this Agreement due to any cause beyond its reasonable control, including acts of war, acts of God, labor shortages or disputes, pandemics, governmental acts or failure or degradation of the Internet or telecommunications services. The delayed Party will give the other Party prompt notice of such cause, and will make commercially reasonable efforts to promptly correct such failure or delay in performance.
14.6 Notices. Except as otherwise set forth herein, all notices under this Agreement will be sent by email or provided by CryoCaptures by way of the Services. All notices to CryoCaptures should be sent to privacy@cryocaptures.com. Notices will be deemed to have been duly given the same day in the case of notices provided by us by way of email or the Services.
14.7 No Third Party Beneficiary. No person other than the Parties hereto will be entitled to any of the benefits of these Terms or be deemed to acquire any rights hereunder.
14.8 Severability; Waiver; Entire Agreement. If any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable, such provision shall be modified so as best to accomplish the original intent of the Parties to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect. The waiver of any breach or default of this Agreement will not constitute a waiver of any subsequent breach or default. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof, and supersedes all prior understandings and agreements.
