These Terms of Service (the “Terms of Service”) constitute a legal agreement between Aphora Health, Inc., a North Carolina corporation (“Aphora”), and you, the user of the Services (as defined below) (“You” or “User”).  Aphora offers its professional services (the “Professional Services”), access to certain features of its websites (collectively, the “Website”), its proprietary software as a service offering (together with the Website and as updated and modified from time-to-time, the “Software Services”), and certain other services as described herein and within the Software Services (all such services collectively, the “Services”) to third parties on the terms and conditions set forth herein. By using the Services, including merely visiting the Website or creating an account with Aphora (an “Account”), You are agreeing to these Terms of Service. Aphora is willing to make the Services available to You only upon the condition that You agree to or affirmatively accept these Terms of Service in their entirety.  Please read these Terms of Service carefully before engaging Aphora to provide any Services and before otherwise using any of the Services.  If You do not agree to these Terms of Service, then You must not utilize Aphora’s Services, You must leave the Website immediately, and You should not create an Account. IMPORTANT: THESE TERMS OF SERVICE CONTAIN A MANDATORY ARBITRATION PROVISION AND CLASS ACTION WAIVER THAT, AS FURTHER SET FORTH IN SECTION 10 BELOW, REQUIRE THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES.  THIS MEANS THAT YOU ARE GIVING UP THE RIGHT TO SUE IN COURT OR IN CLASS ACTIONS OF ANY KIND.

1. SERVICES
   • Aphora, through its Professional Services, the Software Services, or otherwise, may provide Users the opportunity to book, reserve, arrange the purchase of, or otherwise purchase certain travel-related and Healthcare-Related Services (as defined below) to be provided by a third party (collectively, the “Travel Services”; each such purchase, a “Booking”; and each such third party, a “Provider”). Each Booking may be effected as provided by Aphora from time to time. User acknowledges and agrees that User may authorize Aphora to effect a Booking in a live conversation, through a text message or other written communication, or through the Software Services, and User further acknowledges and agrees that its authorization of a Booking shall constitute a binding contractual commitment of User hereunder. User hereby authorizes and consents to Aphora and its agents acting on behalf of User with respect to matters related to each such Booking, including without limitation with respect to the transmission of information and data of or related to User and any Companion (as defined below). User agrees to promptly provide such further assurances and to take such additional actions as may be necessary to allow Aphora to perform the Services described above, including by way of executing consent letters, releases, and the like, or obtaining same from a Companion, and User acknowledges and understands that the Services and the Travel Services may be negatively impacted, delayed, impossible to complete, or cancelled as a result of User’s failure to do so. Booking a Travel Service may require User or a Companion to directly contract with, create an account with, register with, or otherwise engage with a Provider, and User acknowledges and understands that the Services and the Travel Services may be negatively impacted, delayed, impossible to complete, or cancelled as a result of the failure of User or a Companion to do so.

• Responsibility of Providers. The details of the Travel Services in each Booking, including without limitation with respect to the Booking’s availability, scheduling, pricing, and description, are subject to final confirmation by Aphora and the applicable Provider. For the avoidance of doubt, User acknowledges and agrees that Aphora does not provide any Travel Services and is not responsible for the provision of any Travel Services. Aphora shall not be responsible or liable for any damages or losses of any nature arising from the Travel Services, including without limitation related to or arising from any delay, mishap, inconvenience, expense, irregularity, bodily injury, illness, emotional distress, death, or loss to property occasioned by or caused in any way by the Travel Services or any Provider. Without limiting the foregoing, Aphora will not be liable for any air carrier’s cancelation penalty incurred by the purchase of a nonrefundable ticket. All airline tickets issued are subject to the carrier’s refund policy. Baggage and personal effects are at all times the sole responsibility of User. User acknowledges that the liability of each Provider, and the availability of remedies to User, may be restricted by and to the laws of the jurisdiction in which the Travel Services are performed or provided. User also acknowledges that Aphora’s liability with respect to the Travel Services and each Booking is further limited, and User’s remedies for liabilities, damages, and other losses, is disclaimed and limited as set forth below in Section 6 (DISCLAIMERS) and Section 8 (LIMITATIONS OF LIABILITY).

• Healthcare and Medical Services. For purposes of these Terms of Service, “Healthcare-Related Services” means any healthcare-related service, including without limitation any service related to the improvement of health or the prevention, diagnosis, treatment, amelioration or cure of disease, illness, injury, or other physical or mental impairment and including any and all medical and surgical services, and including without limitation the purchase or acquisition of any healthcare or medical product, medicine, supplement, or other remedy, as well as all activities related to any of the foregoing. If a Booking includes any Healthcare-Related Services, then User acknowledges and agrees that it will and must establish a direct relationship with the applicable Provider(s) of such Healthcare-Related Services, including by way of establishing a patient-physician relationship with such Provider as applicable. User acknowledges and agrees that Aphora is not providing any Healthcare-Related Services to User or any other party.  Any decision to proceed with any medical procedure or treatment will be the sole decision of User.  User acknowledges and agrees that each Provider, and not Aphora, shall be solely liable to User with respect to the Healthcare-Related Services provided to such User, including without limitation damages caused by Provider’s failure to comply with any law, regulation, professional standard or Provider’s malpractice.

 

• User Medical Records. Aphora may as part of the Services assist with the coordination and transfer of User’s applicable medical records, but User acknowledges and agrees that User is ultimately responsible for ensuring the transfer and accurate completion of all necessary medical records to and for each Provider that are necessary for each applicable Healthcare-Related Service, including the transfer and coordination between existing healthcare providers and the Providers. User acknowledges and agrees that the Services are not designed or intended to maintain, or to be used by User to manage, User’s medical records or other health or medical information, and that User is and shall be solely responsible for maintaining User’s applicable medical records and shall not rely upon the Services or otherwise upon Aphora to meet User’s, any Provider’s, or any other person’s requirements with respect to the storage, maintenance, or accuracy of those medical records. Without limiting the foregoing, User is ultimately responsible for ensuring that all Providers of Healthcare-Related Services receive all required information and records for any Healthcare-Related Services, even if transmitted through the Services or otherwise to, through, or by Aphora.

• Changes and Cancellations. Aphora reserves the right to, and each Provider may, curtail or modify details of Travel Services including but not limited to curtailment or modification of hotels, meals, transportation, or planned Healthcare-Related Services, as Aphora or such Provider deem necessary. Deviations from planned itineraries or any aspects of travel or Healthcare-Related Services may occur. If conditions make routes unsafe for navigation or in other respects, or raise sufficient doubt about safety, or if any bodily or other circumstance changes or is different than understood, or otherwise, Aphora and the Providers may modify or provide alternate services. Aphora shall also have the right, in its sole and absolute discretion, to cancel or modify a Booking in whole or in part, at any time if the Booking includes or was made as the result of a mistake or error of any kind, including, but not limited to, a mistake or error in price or description of the Travel Services, or where it appears that User has engaged in fraudulent or misleading activity in making the Booking, or due to prior disputed or suspected fraudulent payment transactions. If a Booking is canceled by Aphora, in cases where Aphora has received a valid and confirmed payment, Aphora will provide a refund, and shall have no responsibility beyond the refund of monies paid to it related to the cancelation.

• Responsibility for Fulfillment. User acknowledges and agrees that: (i) the User shall be solely responsible for fulfilling and using all Travel Services, including with respect to any Companion; and (ii) User will be responsible for any and all costs that may arise out of a late arrival, failure to meet any timeframe, failure to navigate, missed deadline, missed departure, and the like, including with respect to any Companion. Except as expressly set forth herein, User will have full responsibility for any expenses, including any non-refundable expenses, incurred by User or any Companion for a canceled Travel Service or for any additional or substitute arrangements.

• Travel Regulations, Warnings, and Required Travel Documents. You are solely responsible for obtaining and understanding current travel advisories, warnings, requirements, and restrictions, including by contacting applicable embassies and consulates. We strongly encourage you to visit the U.S. State Department’s website at travel.state.gov and the U.S. Centers for Disease Control and Prevention website at cdc.gov. You are solely responsible for obtaining any documents required for your Travel Services such as a valid passport, all visas, vaccination certificates, and any other documents which may be required, and complying with any destination specific requirements or restrictions, including with respect to any Companion. Those without proper documentation may be denied travel. In addition, you may be denied entry to the countries visited if you do not meet the country’s entry requirements.

• Travel insurance. Aphora strongly recommends that User obtain travel insurance prior to the commencement of any Travel Services. Travel insurance typically provides coverage for cancelation, interruption, baggage protection, delay, travel accidents, and unplanned or emergency medical and dental services and certain associated transportation. Aphora will have no liability for any of the foregoing.

 

• Right to Access the Software Services. Subject to these Terms of Service and to any limitations set forth on the Software Services, Aphora grants to User a nonexclusive, nontransferable, revocable, non-licensable limited right to access and use (the “Access Rights”) the Software Services, solely for the personal use of User, and solely during the Term (as defined below).  Aphora may, in its sole discretion, change or delete any part of the Software Services. The Software Services contain textual and/or graphical materials that describe the features, functions, and uses of the Software Services made available to Users, which Aphora may modify from time-to-time in its sole discretion (the “Documentation”).  Aphora may offer or limit certain features, functionality, and User rights within the Software Services on a differentiated basis among Users as described in the Software Services from time to time in Aphora’s sole discretion.

• In order for Aphora to provide certain Services, and in order to gain access to certain features and functionality of the Software Services, User may be required to register or create an Account with Aphora by submitting information requested by Aphora.  User represents that all information User provides to Aphora in such submission and at any other time during or after such registration or Account creation process (the “Registration Information” and such process, the “Registration Process”) will be true, accurate, complete, and current and that User will promptly update its Registration Information as necessary such that it is, at all times, true, accurate, complete, and current.  Aphora may use all Registration Information, subject to these Terms of Service.  You represent and warrant that all Registration Information is about You.  You may not create an Account on behalf of any person other than Yourself. You represent that you are at least the age of majority in your jurisdiction of residence and that you are a resident of the United State of America.

• Aphora may allow User to effect a Booking of Travel Services for one or more other persons to accompany User in the fulfillment of User’s Travel Services (each such person, a “Companion”). User represents, warrants, and covenants that User has full and complete authorization to provide any and all information disclosed to Aphora in connection with the Services (“Companion Data”) and that User has obtained each Companion’s consent to its disclosure of all Companion Data in connection with the Services. User acknowledges and agrees that User shall be fully and completely liable for all costs, fees, actions, and omissions of each Companion in connection with these Terms of Service, the Services, and any and all Travel Services, including without limitation with respect to each Companion’s compliance with all applicable terms of these Terms of Service.

 

• Platform Content. Aphora may provide certain information, data, and other content on or through the Software Services or otherwise, including related to travel and healthcare-related topics (the “Aphora Content”). The Software Services may from time to time include, feature, or link-to information, data, and other content or websites from third parties or otherwise referring to or describing products or services provided by third parties, or otherwise direct User to any of the above as part of the Services (collectively, the “Third Party Content” and together with the Aphora Content, the “Platform Content”), including Travel Services and Healthcare-Related Services.  User acknowledges and agrees that the arrangement, order, priority, and availability of any and all Platform Content may be influenced by the payment of fees from the providers of Third Party Content and from Providers.

 

2. OWNERSHIP OF SOFTWARE SERVICES
   • As used herein, “Analytics” means information, data, statistics, metadata, inferences, interrelationships, and/or associations generated by or from the Software Services, or regarding User’s use of the Software Services.  Aphora may create, collect, use and disclose Analytics for industry analysis, benchmarking, analytics, marketing, and other business purposes in support of the provision and improvement of the Software Services.

• Proprietary Rights; No Implied Licenses. The Website, the Software Services, including without limitation all software code thereto, the Aphora Content, Documentation, Analytics, and all content and materials that are not directly associated with a User that appear on the Website and in the Software Services, and all improvements, modifications, derivative works or innovations made thereto and all Intellectual Property Rights therein, as well as all work product that results from any of the Services (collectively, the “Aphora Materials”), are, as between the parties, the exclusive property of Aphora, even if such improvements, modifications, derivative works or innovations result from suggestions, enhancement requests, recommendations or other feedback provided by User.  Except for the Access Rights expressly granted herein, all rights in and to all of the foregoing are reserved by Aphora.  These Terms of Service do not convey to User any rights of ownership or other Intellectual Property Right in, to, or under any Aphora Materials.  No right is granted to distribute, publish, modify, adapt, translate or create derivative works of the Aphora Materials.  User shall accurately reproduce all proprietary notices, including any copyright notices, trademark notices, or confidentiality notices that are contained within the Aphora Materials.  Nothing in these Terms of Service will be deemed to grant to User any right to receive a copy of any software underlying the Website or Software Services, in either object or source code form.  Aphora shall own all Intellectual Property Rights related to any feedback, comments, or suggestions User provides to Aphora with respect to the Aphora Materials, and User hereby assigns all such Intellectual Property Rights to Aphora.  As used herein “Intellectual Property Rights” means the exclusive rights held by the owner of a copyright, patent, trademark, or trade secret, including: (a) the rights to copy, publicly perform, publicly display, distribute, adapt, translate, modify and create derivative works of copyrighted subject matter; (b) the right to exclude another from using, making, having made, selling, offering to sell, and importing patented subject matter and from practicing patented methods; (c) the rights to use and display any marks in association with businesses, products or services as an indication of ownership, origin, affiliation, endorsement, or sponsorship; and (d) the rights to apply for any of the foregoing rights, and all rights in those applications.  Intellectual Property Rights also include any and all rights associated with particular information that are granted by law and that give the owner, independent of contract, exclusive authority to control use or disclosure of the information, including enforceable privacy rights and any rights in databases recognized by applicable law.  User agrees that if User infringes Aphora’s Intellectual Property Rights or exceeds the scope of permitted use under these Terms of Service, Aphora will be irreparably injured and may terminate these Terms of Service in addition to any other remedies Aphora may be entitled to at law or in equity.

3. USER RESPONSIBILITIES AND REPRESENTATIONS
   • Access Credentials. User will safeguard the devices, computers, and networks used to access the Software Services and safeguard and keep confidential all login information, passwords, and security protocols through which User accesses and uses the Software Services (“Access Credentials”).  Aphora reserves the right, in its sole discretion and without liability to User, to take any action Aphora deems necessary or reasonable to ensure the security of the Software Services and User’s Access Credentials and account, including terminating User’s access, changing passwords, or requesting additional information to authorize activities related to User’s account. User shall be responsible for and liable for the actions and omissions of anyone that accesses or uses User’s account.

• General Restrictions on Use. User shall comply with all applicable laws in its use of the Services and agrees not to act outside the scope of the rights that are expressly granted by these Terms of Service.  User will not (a) make the Services available to anyone else; (b) commercially exploit, sell, resell, license, sublicense, rent, lease, or distribute the Services or include any Services or any derivative works thereof in a service bureau or outsourcing offering; (c) copy, modify, or make derivative works based upon the Services; (d) create internet “links” to the Software Services or “frame” or “mirror” any reports contained in, or accessible from, the Software Services on any other website, server, wireless or Internet-based device; (e) use any scraper, crawler, spider, robot or other automated means of any kind to access or copy data on the Services; (f) access the Services for purposes of monitoring its availability, performance, or functionality, or for any other benchmarking or competitive purposes; (g) decompile, disassemble, reverse engineer, or otherwise attempt to obtain or perceive the source code from which any software component underlying the Software Services are compiled or interpreted; (h) access data not intended for such User or log onto a server or an account which the User is not authorized to access; (i) allow anyone else to use or access User’s account; or (j) interfere with or disrupt the integrity or performance of the Services, the Website, or the data contained therein or disrupt any servers or networks connected to the Services, or disobey any requirements, procedures, policies or regulations of networks connected to the Services.  Compliance with the restrictions set forth in this Section is an essential basis of these Terms of Service, and User agrees to reimburse Aphora for attorneys’ fees and court costs incurred in connection with any lawsuit brought by Aphora in which a court or arbitrator finds that User has breached any provisions of this Section.

 

4. USER INPUTS
   • User Inputs. In connection with the Services, User may provide Aphora, through the Software Services, electronic messaging, email, voice or video calls, or otherwise, certain content, including without limitation data, text, writing, videos, images, photos, audio clips, graphics information, and other types of content (collectively, “User Inputs”). User hereby grants to Aphora a non-exclusive, royalty-free license, to access, use, and copy the User Inputs as necessary to provide the Services, including without limitation for troubleshooting purposes and to create the Analytics.

• Responsibility for User Inputs. User is solely responsible for the accuracy and quality of the User Inputs.  User represents, warrants, and covenants that the User Inputs are truthful, accurate, and complete. User has, and will have as required under this Agreement, the legal right, title, interest, and authority to provide Aphora with access to, use of, and license to the User Inputs and such access, use, and license will not cause a breach of any third-party agreement, violate any right of a third party, or any applicable law.  Without limiting the generality of the foregoing, User represents, warrants and covenants that at all times during the Term, it will have provided all notices, and obtained all consents, reasonably necessary for Aphora to access and use the User Inputs to provide the Services and that the User Inputs:

1. are provided to Aphora in accordance with all applicable laws, do not otherwise violate any applicable law, and could not give rise to any civil liability;
2. will not and do not infringe any intellectual property rights;
3. will not and do not violate the privacy, publicity, or other rights of third parties or any other law, statute, ordinance or regulation;
4. will not and do not misrepresent the source of the User Inputs;
5. will not and do not misrepresent User’s or any other party’s identity in any way;
6. will not and do not contain any viruses, Trojan horses, spyware, malware, worms, time bombs, cancelbots, or other disabling devices or other harmful components intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information;
7. will not and do not advocate or encourage any illegal activity; and
8. will not violate, or encourage any conduct that would violate, any applicable law or regulation or would give rise to civil liability.

• Aphora has no obligation to monitor any User Inputs.  Aphora does, however, reserve the right to monitor User Inputs and further reserves the rights to remove or refuse to accept, store, post, or display any User Input; to disclose User’s name, contact information, and other information to any third party who claims that any User Input violates any rights of a third party; and to terminate or suspend User’s access to all or part of the Services.

• User Personal and Health Information. User Inputs provided by User or otherwise collected by Aphora may include personal contact details, payment and financial information, travel-related information, and health and medical information, including information relating to User’s health, medical conditions, and treatment received from Users’ existing healthcare providers and Providers (collectively, “Personal and Health Information”). User acknowledges and agrees that Aphora is not a covered entity subject to the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), and that HIPAA’s requirements do not apply to Aphora’s collection or processing of Personal and Health Information through the Services. USER HEREBY AUTHORIZES AND CONSENTS TO:

• APHORA COLLECTING AND USING PERSONAL AND HEALTH INFORMATION AS NECESSARY TO PROVIDE THE SERVICES, INCLUDING TO COMMUNICATE WITH USER, TO EFFECT BOOKINGS, AND TO CREATE ANALYTICS;

• APHORA DISCLOSING PERSONAL AND HEALTH INFORMATION TO APHORA’S AFFILIATES AND VENDORS AND SERVICE PROVIDERS ENGAGED BY APHORA TO ASSIST IN THE PROVISION OF THE SERVICES; AND

• APHORA DISCLOSING PERSONAL AND HEALTH INFORMATION TO PROVIDERS INVOLVED IN THE PROVISION OF TRAVEL SERVICES AND HEALTHCARE-RELATED SERVICES IN CONNECTION WITH BOOKINGS MADE THROUGH THE SERVICES, AND TO SUCH OTHER THIRD PARTIES AS USER MAY DIRECT IN CONNECTION WITH APHORA’S PROVISION OF THE SERVICES.

5. FEES; PAYMENT CARD AUTHORIZATION
   • Portions of the Website and Software Services are offered free of charge. Aphora may charge a fee to obtain access to certain rights, features, or functionality of the Software Services, as set forth in the Software Services from time to time. The charges and fees for the Services, Travel Services, and other Bookings are as set forth in the Software Services or as otherwise provided by Aphora, and are subject to change from time to time. All charges and fees are nonrefundable, except as expressly set forth herein or as provided by Aphora in its sole discretion. User agrees to pay all charges and fees in accordance with the timelines and payment terms set forth in the Software Services or as otherwise communicated by Aphora from time to time. All charges and fees must be paid in U.S. dollars. User is responsible for paying all applicable Taxes (as defined below).

• User Payment Details. User may be required to enter payment card or banking details in connection with the payment of fees and charges, in order for Aphora or a third-party service provider to obtain access to certain information and data associated with such payment card and bank, or otherwise. User represents and warrants that it has the right to use any payment card or other means of payment provided to Aphora or to any third-party service provider in connection with the Services. By providing payment information, User authorizes Aphora and its third-party service providers to use and store the card as a payment method for all purchases made through the Services or otherwise authorized by User and authorizes Aphora and its third-party service providers to request, access, view, and display information, data, and other content related to the usage and purchase history of each such payment card, and otherwise as set forth on the Website.  User’s purchase and/or the entry of payment information including payment card details may be subject to additional terms of service of our third-party service providers. User agrees to provide current, complete and accurate purchase, payment card, and billing information and to promptly update such information as necessary.  Providing any untruthful or inaccurate information is a breach of these Terms of Service.  Prior to accepting any payment, we may also request additional information from User.  Verification of information may be required prior to the acknowledgment or completion of any purchase.

• Unless otherwise stated, the fees do not include any applicable sales, use, value added, or similar taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, “Taxes”).  User is responsible, and Aphora shall have no liability, for all Taxes applicable to User’s purchases hereunder.  Notwithstanding the foregoing, Aphora may, in its sole reasonable discretion, conclude it is legally required to collect and remit such Taxes to a taxing jurisdiction on behalf of User.  In such an event, even if Aphora has already charged or invoiced User for the applicable Services or Booking, Aphora may charge or invoice User for such Taxes, and User shall pay Aphora the amount of Taxes, unless User provides Aphora with a valid tax exemption certificate authorized by the appropriate taxing authority.  Aphora will utilize the billing address provided by User to determine the appropriate taxing jurisdiction.  User will make all payments to Aphora free and clear of, and without reduction for, any Taxes.

 

6. DISCLAIMERS
   • No Warranties. All Platform Content AND THE SERVICES ARE provided “AS IS” and “AS AVAILABLE”. Aphora MAKES NO REPRESENTATIONS OR WARRANTIES, WHETHER, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION REGARDING THE WEBSITE OR SERVICES, OR OTHERWISE WITH RESPECT TO THE SUBJECT MATTER OF THESE TERMS OF SERVICE AND EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING THOSE OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, AS WELL AS ANY WARRANTY ARISING FROM COURSE OF DEALING OR USAGE OF TRADE.  Aphora DOES NOT WARRANT THAT DEFECTS WILL BE CORRECTED OR THAT THE WEBSITE OR SERVICES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.  Aphora MAKES NO WARRANTY with respect to THE completeness, correctness, accuracy, reliability, or otherwise OF THE PLATFORM CONTENT AND THE SERVICES. Aphora shall not be responsible for ensuring and does not represent or warrant that: (a) any Services will meet User’s requirements; (b) the Services will be error-free or uninterrupted or that the results obtained from its use will be accurate or reliable; or (c) all deficiencies in the Services can or will be found or corrected.  Aphora will not be responsible for loss or corruption of data, in each case caused by acts within the control of User.

• NO MEDICAL ADVICE. NEITHER THE PLATFORM CONTENT NOR ANY OF THE SERVICES CONSTITUTE MEDICAL ADVICE AND ARE NOT INTENDED TO TREAT OR PREVENT ANY MEDICAL CONDITION. NEITHER THE PLATFORM CONTENT NOR ANY OF THE SERVICES ARE INTENDED TO BE A SUBSTITUTE FOR PROFESSIONAL MEDICAL ADVICE, DIAGNOSIS, AND/OR TREATMENT.  YOU ACKNOWLEDGE THAT EVEN IF INFORMATION PROVIDED TO YOU THROUGH THE SERVICES APPEARS TO BE MEDICAL ADVICE, (A) SUCH INFORMATION IS NOT MEDICAL ADVICE AND (B) UNDER NO CIRCUMSTANCES SHOULD YOU RELY ON SUCH INFORMATION.  ALL CONTENT AVAILABLE THROUGH THE SERVICES IS FOR GENERAL INFORMATIONAL PURPOSES ONLY.  USE OF THE SERVICES DOES NOT CREATE ANY PHYSICIAN-PATIENT RELATIONSHIP.

• NO RECOMMENDATIONS. The Platform Content is intended, as applicable, merely to provide information to the User and to connect User with participating third-party providers of services for User to consider and evaluate independently.  Aphora does not recommend, approve, or endorse, and Aphora makes no representation regarding, any Third Party Content or any product or service offered, provided, sold, or performed by any third party, including any such products or services purchased through the Services.

• NO LIABILTY FOR THIRD PARTY PRODUCTS AND SERVICES. To the furthest extent allowed by applicable law, Aphora is not responsible for and shall have no liability for any Third Party Content or for any product or service offered, provided, sold, or performed by any third party, including any such products or services purchased through the Services, including without limitation any and all damages or consequences that result from a third party’s negligence, willful misconduct, medical malpractice, failure to perform or provide any service, defective products or services, and otherwise and further including without limitation even with respect to User’s physical injury or death. Use of any third-party website shall be governed by terms of use or other applicable legal conditions such website.

7. INDEMNIFICATION
   • User shall indemnify, defend and hold harmless Aphora and its affiliates, and each of their respective officers, directors, employees and agents (collectively, the “Aphora Indemnified Parties”), from and against any and all damages, costs (including reasonable attorneys’ fees), and other liabilities suffered by any Aphora Indemnified Party arising from or in connection with any and all claims, demands, suits and other proceedings brought by a third party (each, a “Claim”) arising from: (a) a breach by User (or anyone using User’s account) or any Companion of these Terms of Service; (b) based on any failure or alleged failure of User (or anyone using User’s account) or any Companion to comply with any applicable law, rule, or regulation in connection with its use of the Services, any Travel Services, or any Healthcare-Related Services; and (c) any other actions or omissions of User (or anyone using User’s account) or any Companion. Aphora reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by User, in which event User shall cooperate with Aphora in asserting any available defenses.

8. LIMITATIONS OF LIABILITY
   • Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL Aphora’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS, OR PROVIDING THE SERVICES, WHETHER ARISING UNDER STATUTE, CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE GREATER OF (A) $1 OR (B) AMOUNTS ACTUALLY PAID BY USER TO Aphora DURING THE TWELVE (12) MONTHS PRIOR TO THE DATE ON WHICH SUCH CLAIM OR CAUSE OF ACTION AROSE.  THE FOREGOING LIMITATIONS ARE CUMULATIVE AND NOT PER INCIDENT AND SHALL APPLY EVEN IF THE NON-BREACHING PARTY’S REMEDIES UNDER THESE TERMS FAIL OF THEIR ESSENTIAL PURPOSE.

• Exclusion of Consequential and Related Damages. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL Aphora HAVE ANY LIABILITY TO USER OR ANY OTHER PERSON FOR ANY LOSS OF ACTUAL OR ANTICIPATED PROFITS, LOSS OF BUSINESS, LOSS OF, DAMAGE TO, OR CORRUPTION OF, DATA, LOSS OF USE, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED, WHETHER ARISING UNDER STATUTE, CONTRACT, TORT (INCLUDING NEGLIGENCE) OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR WHETHER SUCH DAMAGE WAS FORESEEABLE OR IN THE CONTEMPLATION OF THE PARTIES.

 

9. TERM; TERMINATION
   • These Terms of Service become effective upon the date on which User accepts these Terms of Service (the “Effective Date”) and shall remain in effect until the Termination Date (as defined below) (the “Term”).

• The Services will terminate, and User’s access rights to the Software Services will terminate, upon the earliest of the following (the “Termination Date”): (a) such date as set forth in the Software Services during the Registration Process or as otherwise indicated by Aphora; (b) such date as Aphora provides notice to User of such termination, for any or no reason, including without limitation its cessation of providing Services to User; or (c) such date as User provides notice to Aphora of such termination, for any or no reason, including through the Software Services or by failing to timely pay any fees.

• Effect of Termination; Survival. User’s Access Rights shall terminate immediately upon the expiration or termination of the Term.  User shall remain liable for any Fees or other costs incurred prior to such expiration or termination.  Any provisions of these Terms of Service that by their nature should continue after the Term, will continue to apply even after the Termination Date, including without limitation, Sections 1.2 (Responsibility of Providers), 2 (Ownership of Software Services), 5 (Fees; Payment Card Authorization), 6 (Disclaimers), 7 (Indemnification) 8 (Limitations of Liability), 9 (Term; Termination), and 10 (General).

 

10. GENERAL

• Force Majeure. Aphora may not be held liable for any loss or damage due to delay, cancelation, or disruption in any manner as a result of causes beyond its reasonable control, including without limitation acts of God, accidents, riots, wars, hostilities, blockages, revolutions, riots, insurrections, terrorist acts, epidemics or pandemics, quarantines, civil commotions, breakdown of communication facilities, natural catastrophes, governmental acts or omissions, changes in laws or regulations, labor strikes, fire, explosions, or sabotage.

 

• Governing Law. The Terms of Service shall be governed and construed in accordance with the laws of the United States and the State of North Carolina, without giving effect to conflicts-of-law principles thereof.  With respect to any disputes or claims not subject to arbitration, User agrees to submit to the personal jurisdiction of the state and federal courts located in or having jurisdiction over Raleigh, North Carolina, and waives any objection as to venue or forum non conveniens, with respect to any legal proceedings that may arise in connection with the Service or from a dispute as to the interpretation or breach of the Terms of Service.  The United Nations Convention on Contracts for the International Sale of Goods does not apply to these Terms of Service.

• Arbitration and Class Action Waiver. User and Aphora agree that any dispute, claim, or controversy that relates to or arises from these Terms of Service or the Services other than as set forth in this Section will be determined by mandatory binding individual (not class) arbitration.  User and Aphora further agree that the arbitrator shall have the exclusive power to rule on its own jurisdiction, including any objections with respect to the existence, scope or validity of any provision of these Terms of Service or to the arbitrability of any claim or counterclaim.  Notwithstanding the above, User and Aphora both agree that neither of us waive or limit our rights to (a) bring an individual action in a U.S. small claims court, (b) bring an individual action that relates to Intellectual Property Rights, or (c) bring an individual action seeking only temporary or preliminary individualized injunctive relief in a court of law, pending a final ruling from the arbitrator.  EXCEPT AS SET FORTH IN THE IMMEDIATELY PRECEDING SENTENCE, ALL DISPUTES, CLAIMS, AND CONTROVERSIES THAT RELATE TO THESE TERMS OR OUR SERVICES, WHETHER BASED IN CONTRACT, TORT, STATUTE, FRAUD, MISREPRESENTATION, OR ANY OTHER LEGAL THEORY, WILL BE RESOLVED THROUGH FINAL AND BINDING ARBITRATION BEFORE A NEUTRAL ARBITRATOR INSTEAD OF IN A COURT BY A JUDGE OR JURY, AND USER AGREES THAT Aphora AND USER ARE EACH WAIVING THE RIGHT TO SUE IN COURT AND TO HAVE A TRIAL BY A JURY.  USER AGREES THAT ANY ARBITRATION WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED, AND USER HEREBY AGREE THAT YOU MAY NOT AND WILL NOT PARTICIPATE IN A CLASS ACTION OR REPRESENTATIVE ACTION, AS A PLAINTIFF OR CLASS MEMBER IN ANY SUCH ACTION.  Unless both User and Aphora agree, no arbitrator or judge may consolidate more than one person’s claims or otherwise preside over any form of a representative or class proceeding.  The arbitrator may award injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim.  If a court decides that applicable law precludes enforcement of any of this paragraph’s limitations as to a particular claim for relief, then that claim (and only that claim) must be severed from the arbitration and may be brought in court.  Either User or Aphora may start arbitration proceedings.  Any arbitration between User and Aphora will take place under the Consumer Arbitration Rules of the American Arbitration Association (“AAA”) then in force (the “AAA Rules”), as modified by these Terms.  User and Aphora agree that the Federal Arbitration Act applies and governs the interpretation and enforcement of this provision (despite the choice of law provision above).  Any arbitration hearings will take place in Wilmington, Delaware.  A party who intends to seek arbitration must first send a notice of dispute to the other as set forth in Section 9.5 (a “Dispute Notice”).  The Dispute Notice must (1) describe the nature and basis of the claim or dispute; and (2) set forth the specific relief sought (“Demand”).  We agree to use good faith efforts to resolve the claim directly, but if we do not reach an agreement to do so within thirty (30) days after the Dispute Notice is received, User or Aphora may commence an arbitration proceeding.  All documents and information disclosed in the course of the arbitration shall be kept strictly confidential by the recipient and shall not be used by the recipient for any purpose other than for purposes of the arbitration or the enforcement of the arbitrator’s decision and award and shall not be disclosed except in confidence to persons who have a need to know for such purposes or as required by applicable law.

• If any provision of these Terms of Service is, for any reason, held to be invalid or unenforceable, the other provisions of these Terms of Service will remain enforceable, and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.

• Waiver; Any waiver or failure to enforce these Terms of Service on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.  Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.

• All notices (including without limitation, Dispute Notices) by Aphora to User under these Terms of Service may be made by email, registered mail or overnight delivery service to the email address or other contact information provided by User during the Registration Process or may be disseminated by a general posting on the Website or within the Services.  All notices (including without limitation, Dispute Notices) to Aphora by User under these Terms of Service shall be made by email to [email protected].  All notices shall be effective upon receipt by the party to which notice is given.  User may change its contact info for receipt of notice by updating its account contact information on the Website.

• Entire Agreement. To the maximum extent permitted by applicable law, these Terms of Service and the information submitted by User during the Registration Process constitute the entire agreement between the parties as to its subject matter, and supersede all previous and contemporaneous agreements, proposals or representations, written or oral, concerning the subject matter of these Terms of Service.  No representation, undertaking or promise shall be taken to have been given or be implied from anything said or written in negotiations between the parties prior to User’s acceptance of these Terms of Service.  User acknowledges and agrees that its agreement hereunder is not contingent upon the delivery of any future functionality or features not specified herein or dependent upon any oral or written, public or private comments made by Aphora with respect to future functionality or features for the Services.  No terms or conditions stated in any other User order documentation, including for the avoidance of doubt any terms or documentation Aphora is required to execute or agree to, shall be incorporated into or form any part of these Terms of Service, and all such terms or conditions shall be null and void.

• Aphora may, in its sole discretion, amend or modify these Terms of Service from time-to-time and continued use of the Software Services shall be evidence of User’s consent to any such amended or modified Terms of Service.

• Aphora may engage subcontractors to act on Aphora’s behalf in connection with its provision of the Services or any part of the Services.

• No Assignment. User may not assign, delegate, or otherwise transfer these Terms of Service, or such party’s rights and obligations herein or therein, without obtaining the prior written consent of Aphora, and any attempted assignment, delegation, or transfer in violation of the foregoing will be null and void. These Terms of Service will be binding upon the parties and their respective successors and permitted assigns.

• No Third Party Beneficiaries. These Terms of Service are entered into for the sole benefit of Aphora, User, and the Aphora Indemnified Parties and no other persons, including any Companion, shall have any rights or remedies by reason of these Terms of Service or shall be considered to be third party beneficiaries of these Terms of Service in any way, provided, that, it is the intent of the Aphora and User that the Aphora Indemnified Parties are express third party beneficiaries with respect to Section 7.1.

 

• The titles of the sections of these Terms of Service are for convenience of reference only and are not to be considered in construing these Terms of Service. Unless the context of these Terms of Service clearly requires otherwise: (a) references to the plural include the singular, the singular the plural, and the part the whole; (b) “or” has the inclusive meaning frequently identified with the phrase “and/or;” (c) “including” has the inclusive meaning frequently identified with the phrase “including but not limited to” or “including without limitation;” and (d) references to “hereunder,” “herein” or “hereof” relate to these Terms of Service as a whole.  Any reference in these Terms of Service to any statute, rule, regulation or agreement, including these Terms of Service, shall be deemed to include such statute, rule, regulation or agreement as it may be modified, varied, amended or supplemented from time-to-time.  The parties agree that these Terms of Service shall be fairly interpreted in accordance with their terms without any strict construction in favor of or against either party, and that ambiguities shall not be interpreted against the drafting party.

Effective January 2024