Terms of Use
GRADIENT HEALTH
ATLAS TERMS OF SERVICE
LAST UPDATED: DECEMBER 2, 2024
Welcome!
The Gradient Platform (defined below) is owned and operated by Gradient Health, Inc.
To make these Atlas Terms of Service (“Terms”) easier to read, we will sometimes refer to Gradient Health, Inc. (including our directors, officers, members, managers, employees, service providers, affiliates, successors and assigns) as “Gradient” “our“, “we“, or “us“; we will refer to you as “Customer”, “you” or a derivative of you; and we will refer to user(s) of the Service (including you) as “User(s)“. These Terms apply when you browse or use the Gradient Health website located at https://gradienthealth.io (the “Site“, a component of the “Service“), when you use the Gradient Platform (defined below) or otherwise access or receive Atlas Data (defined below), or in any way access or utilize any other components of the Service (defined below), if any and when available.
THE SERVICE AND FEES
About the Service
Gradient maintains a database of aggregated, de-identified medical imagery and related information (the “Atlas Data”), which it makes available through a web-based platform, through an SQL interface referred to as BigQuery, and/or through curated data files delivered directly by Gradient (collectively, the “Gradient Platform”). All medical imagery and related data that you download through the Gradient Platform is also considered “Atlas Data” for the purpose of these Terms. The “Service” includes the Gradient Platform, Atlas Data, and all other services, tools, technology, documentation, content, and features provided by Gradient (including anything provided free of charge during any Trial Period). Users can search, view, access, and download Atlas Data, all subject to the licenses and restrictions set forth in the Trial Use Agreement and these Terms.
About these Terms
By using the Service, you accept and agree to be bound and abide by our Trial Use Agreement and these Terms, which together create a binding legal agreement between you and Gradient. Certain features of the Service may be subject to additional guidelines, terms, or rules, which may be set forth in a separate written agreement between you and Gradient, or posted on the Site in connection with such features. All such additional terms, guidelines, and rules are incorporated by reference into these Terms. If you do not agree to our Trial Use Agreement or these Terms, you are expressly prohibited from using the Service and you must discontinue immediately.
Supplemental terms and conditions or documents that we may post on the Service from time to time are hereby expressly incorporated herein by reference. Gradient reserves the right, in its sole discretion, to modify these Terms at any time and for any reason. We will alert you about any changes by updating the “Last updated” date of these Terms, and you waive any right to receive specific notice of each such change.
The Atlas Data and information provided through the Service is not intended for distribution to or use by any person or entity in any jurisdiction or country where such distribution or use would be contrary to law or regulation or which would subject us to any registration requirement within such jurisdiction or country. Accordingly, anyone who chooses to access the Service from other locations does so on their own initiative and is solely responsible for compliance with local laws, if and to the extent local laws are applicable.
Notwithstanding anything to the contrary herein, you are explicitly prohibited from, directly or indirectly: (1) transferring the Service or any Atlas Data to, or accessing the Service or any Atlas Data from, any country that is subject to legal or commercial sanctions imposed by the United States, including without limitation, China, Russia, and North Korea; (2) in any way permitting or assisting any other person or entity to transfer the Service or any Atlas Data to, or access the Service or any Atlas Data from, any country that is subject to legal or commercial sanctions imposed by the United States, including without limitation, China, Russia, and North Korea; or (3) attempting any of the foregoing.
Electronic Communications, Transactions, and Signatures
Visiting the Service, sending us emails, and completing online forms constitute electronic communications. You consent to receive electronic communications, and you agree that all agreements, notices, disclosures, and other communications we provide to you electronically, via email and on the Service, satisfy any legal requirement that such communication be in writing.
YOU HEREBY AGREE TO THE USE OF ELECTRONIC SIGNATURES, CONTRACTS, ORDERS, AND OTHER RECORDS, AND TO ELECTRONIC DELIVERY OF NOTICES, POLICIES, AND RECORDS OF TRANSACTIONS INITIATED OR COMPLETED BY US OR VIA THE SERVICE.
You hereby waive any rights or requirements under any statutes, regulations, rules, ordinances, or other laws in any jurisdiction which require an original signature or delivery or retention of non-electronic records, or to payments or the granting of credits by any means other than electronic means.
Eligibility to Use the Service
By using the Service, you represent and warrant that you are of legal age to form a binding contract with Gradient and use the Service in accordance with these Terms. If you register and use the Service on behalf of another entity or third party, you must have the proper authority to register, use the Service, and bind the entity or third party for which you are using the Service. If you do not meet these requirements or, if for any reason, you do not agree with all of the terms and conditions contained in these Terms, you must stop using the Service immediately.
User Accounts
You must create an account (“User Account”) to access the Gradient Platform. The first time you create a User Account begins the time period for your Trial Period. You agree to keep your password confidential. You agree not to share your User Account with others or provide access to your account to any third party. You will be responsible for all use of your User Account and password.
Fees & Billing Details
You may sign up for a subscription to use the Service beyond the Trial Period by paying the Fees for the first month, as outlined on our pricing page, which may be updated from time to time (“Fees”). You understand and acknowledge that paying the Fees for the first month shall create your subscription, which is subject to all provisions of these Terms.
You agree to provide current, complete, and accurate purchase and account information for all purchases made via the Service related to your subscription. You further agree to promptly update account and payment information, including email address, payment method, and payment card expiration date, so that we can complete your transactions and contact you as needed.
We bill you through an online billing account for purchases made via the Service. Sales tax will be added to the price of purchases as we deem required. All payments shall be in U.S. dollars.
We may change prices we charge for the Service at any time. We will provide advance notice of any price changes that may impact you. Any price changes we make during the Initial Period (defined below) will not take effect until the first month after the Initial Period.
You agree to pay all charges or fees at the prices then in effect for your subscription, and you authorize us to charge your chosen payment provider for any such amounts upon beginning your subscription, adding additional authorized Users to your subscription or excessive Atlas Data downloads. If your subscription is subject to recurring charges, then you consent to our charging your payment method on a recurring basis without requiring your prior approval for each recurring charge. We reserve the right to correct any errors or mistakes in pricing, even if we have already requested or received payment. We also reserve the right to refuse any order placed through the Service. We will not be liable for any insufficient funds or other charges you may incur as a result of any attempts to charge and/or place holds on your credit card.
TERM AND TERMINATION
Term
The date you pay the Fees for the first month shall be the “Start Date” for your subscription, and your subscription shall continue for one (1) year from the Start Date (“Initial Period”). Your subscription will automatically renew on a month-to-month basis each year on the anniversary of your Start Date, subject to termination as set forth below. The time from the date Customer first accesses the Service, including for the Trial Period, until the last day Customer uses the Service shall be the “Term”.
Termination
All purchases are non-refundable. You may not cancel your subscription prior to the end of the Initial Period. After the Initial Period, you may cancel your subscription by providing Gradient with written notice, and such cancellation will take effect as of the later of: (A) thirty (30) days from the date of such written notice, or (B) the end of the then-current paid term.
Regardless of whether Gradient or Customer terminates Customer’s subscription and regardless of the reason for such termination, Customer will pay in full for the Service up to and including the last day on which the Service is provided.
In the event of any cancellation or termination of your subscription, we may restrict access to the Service, or any component of the Service, or any Atlas Data, content, or other material that you may have used in connection with the Service. The restriction of your use of the Service shall survive such termination, and you agree to be bound by those terms. We reserve all rights that are not expressly granted to you under these Terms.
Termination & Suspension Reservation of Rights
These Terms shall remain in full force and effect for as long as you use the Service. WITHOUT LIMITING ANY OTHER PROVISION OF THESE TERMS OF USE, WE RESERVE THE RIGHT TO, IN OUR SOLE DISCRETION AND WITHOUT NOTICE OR LIABILITY, DENY ACCESS TO AND USE OF THE SERVICE (INCLUDING BLOCKING CERTAIN IP ADDRESSES), TO ANY PERSON FOR ANY REASON OR FOR NO REASON, INCLUDING WITHOUT LIMITATION FOR BREACH OF ANY REPRESENTATION, WARRANTY, OR COVENANT CONTAINED IN THESE TERMS OR OF ANY APPLICABLE LAW OR REGULATION.
WE MAY TERMINATE YOUR USE OR PARTICIPATION IN THE SERVICE OR DELETE YOUR USER ACCOUNT, WITHOUT WARNING, IN OUR SOLE DISCRETION.
If we terminate or suspend your User Account for any reason, you are prohibited from registering and creating a new account under your name, a fake or borrowed name, or the name of any third party, even if you may be acting on behalf of the third party.
In addition to terminating or suspending your account, we reserve the right to take appropriate legal action, including without limitation pursuing civil, criminal, and injunctive redress.
INTELLECTUAL PROPERTY OWNERSHIP & LICENSES
“Authorized User” means any employee, contractor, or agent who is authorized by an entity Customer to use the Service under the rights granted to the entity Customer pursuant to this Agreement. For clarity, each Authorized User shall have a separate User Account.
“Technology” means the all computer programs, software, source code, object code, algorithms, underlying technical structure, ideas, know-how, processes, systems, documentation and information comprising the Gradient Platform or the Service, or otherwise developed or provided by Gradient in connection with the Gradient Platform or the Service, and all intellectual property rights related to the foregoing.
Gradient Intellectual Property; License to Use the Service.
Gradient owns and expressly retains all right, title, and interest in and to: (a) the Gradient Platform and Technology; (b) all Gradient graphics, logos, service marks, trade names, trademarks, and copyrights (in each case, whether registered or unregistered); (c) all improvements, developments, enhancements, modifications, work product, and derivative works related to any of the foregoing; and (d) all intellectual property rights related to any of the foregoing, or related to any other proprietary materials or information of Gradient. Subject to and conditioned on Customer’s payment of Fees and continued compliance with these Terms, Gradient hereby grants Customer and Customer’s Authorized Users a non-exclusive, non-transferable, non-sublicensable, limited right to use the Service and Technology (as defined above) for Customer’s internal research and development purposes during the Term.
Ownership and License to the Data.
The Atlas Data is compiled, updated, and enhanced by Gradient in order to be made available on the Gradient Platform. Gradient has invested and shall continue to invest substantial time and resources in procuring, de-identifying, arranging, and compiling the Atlas Data and materials incorporated into the Gradient Platform, and in maintaining and updating the Gradient Platform and Atlas Data. As between Gradient and Customer, Gradient and its licensors own and expressly retain all right, title, and interest in and to the Atlas Data. Subject to and conditioned on Customer’s payment of Fees and continued compliance with the terms and conditions of these Terms, Gradient hereby grants Customer a non-exclusive, non-transferable (except as set forth below), non-sublicensable right to use the Atlas Data solely for Customer’s research and development purposes.
Gradient represents to Customer that Gradient has the rights and licenses necessary for Gradient to license the Atlas Data to Customer as provided pursuant these Terms.
Notwithstanding anything to the contrary in these Terms, and provided that Customer is not in breach of these Terms including any payment obligations hereunder, Customer may transfer the Atlas Data Customer has downloaded from the Gradient Platform to its successor in interest in connection with a merger or acquisition involving Customer. Customer must notify Gradient and obtain Gradient’s prior written consent before transferring Atlas Data in connection with a merger or acquisition event, but Gradient shall not unreasonably withhold such consent.
Except for the limited rights and licenses expressly granted under these Terms, nothing in these Terms grants, by implication, waiver, estoppel, or otherwise to Customer, any Authorized User, or any third party any intellectual property rights or other right, title, or interest in or to the Gradient Platform, Atlas Data, Technology, or any confidential information of Gradient.
Use of Gradient Marks
You agree not to use any of Gradient’s trade names, trademarks, service marks, logos, and domain names (the “Marks“) to (i) imply any relationship with Gradient other than as provided for in these Terms; (ii) disparage Gradient; or (iii) display or use the Marks in any way that violates law or regulation. If you receive written approval from Gradient to use the Gradient Marks for a specified purpose, you will only use the then current Gradient Marks and your use must be in accordance with the approved specified purpose. All uses of the Gradient Marks and associated goodwill shall inure solely to the benefit of Gradient. You may not remove, obscure or alter any Gradient Marks displayed in connection with the Service. Other information, copyrights, and trademarks that are referenced in the Atlas Data or otherwise on the Service may be trademarks or copyrights of their respective owners.
We May Update the Service Periodically & We Do Not Guarantee Access to the Service at Any Given Time
We reserve the right to change, revise, update, suspend, discontinue, or otherwise modify the Service, Technology, and Atlas Data at any time or for any reason in our sole discretion without notice to you. However, we have no obligation to update the Service, Technology, or any information or Atlas Data on the Service. We cannot guarantee the Service and Technology will be available at all times. We may experience hardware, software, or other problems or need to perform maintenance related to the Service and Technology, resulting in interruptions, delays, or errors. We will not be liable if all or any part of the Service or Technology is unavailable for any reason at any time. We will not be liable to you or any third party for any modification, price change, suspension, or discontinuance of the Service. Nothing in these Terms will be construed to obligate us to maintain and support the Service or Technology, or to supply any corrections, updates, or releases in connection therewith.
The Service and Technology may automatically download and install upgrades and updates. We will make reasonable efforts to ensure that any updates to the Service do not materially reduce the level of performance, functionality, security or availability of the Service or Atlas Data, but we make no guarantees.
USER RESTRICTIONS AND RESPONSIBILITIES
Reporting PHI
Gradient takes data de-identification very seriously and makes commercially reasonable efforts to de-identify all protected health information (“PHI”) contained in the Atlas Data prior to making the Atlas Data available through the Service. If you discover any PHI in the Atlas Data, you must immediately notify us through the PHI reporting tools we provide through the Service or email us at support@gradienthealth.io and destroy any downloaded file(s) containing such PHI. We will make reasonable efforts to replace any such files with equivalent or comparable files that do not contain PHI as long as we have equivalent or comparable files available.
Use Restrictions
You shall not use the Service, Technology, or Atlas Data for any purposes beyond the scope of the access granted in this Agreement.
You shall not, at any time, directly or indirectly, and shall not permit anyone else to:
attempt to discover, identify, or re-identify any de-identified protected health information or other personally identifiable data removed from the Atlas Data or any of Gradient’s data licensors or sources of the Atlas Data;
rent, lease, lend, sell, license, sublicense, assign, distribute, publish, or transfer the Atlas Data, Service, or Technology to any third party without Gradient’s express written consent;
use the Service, Technology, or Atlas Data as part of any effort to compete with us;
decipher, decompile, disassemble, or reverse engineer any of the software comprising or in any way making up a part of the Service, Technology, or any component thereof;
engage in any automated use of the system, such as using scripts to send comments or messages, or using any data mining, robots, or similar data gathering and extraction tools;
interfere with, disrupt, or create an undue burden on the Service, Technology, or the networks or services connected to the Service, or otherwise take any action that we deem to impose or to potentially impose an unreasonable or disproportionately large load on the Service;
attempt to impersonate another user or person or use the username of another User;
sell or otherwise transfer your User Account or password;
circumvent, disable, or otherwise interfere with security-related features of the Service or Technology, including features that prevent or restrict the use or copying of any Atlas Data or enforce limitations on the use of the Service and/or the Atlas Data contained therein;
engage in unauthorized framing of or linking to the Service or Technology;
trick, defraud, or mislead us and other Users, especially in any attempt to learn sensitive account information such as User passwords;
harass, annoy, intimidate, or threaten any of our employees or agents engaged in providing any portion of the Service to you;
delete the copyright or other proprietary rights notice from any Atlas Data or other content;
copy or adapt our software, including but not limited to Flash, PHP, HTML, JavaScript, or other code;
introduce any viruses, trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful;
upload or transmit (or attempt to upload or to transmit) any material that acts as a passive or active information collection or transmission mechanism, including without limitation, clear graphics interchange formats (“gifs”), 1×1 pixels, web bugs, cookies, or other similar devices (sometimes referred to as “spyware” or “passive collection mechanisms” or “pcms”);
except as may be the result of standard search engine or Internet browser usage, use, launch, develop, or distribute any automated system, including without limitation, any spider, robot, cheat utility, scraper, or offline reader that accesses the Service, or using or launching any unauthorized script or other software;
disparage, tarnish, or otherwise harm, in our opinion, us and/or the Service, Technology, or Atlas Data;
use the Service, Technology, or Atlas Data in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or in any manner inconsistent with or in violation of any applicable law.
Unauthorized use may result in criminal and/or civil prosecution under Federal, State and local law. If you become aware of misuse of the Service, Technology, or Atlas Data, please contact us at support@gradienthealth.io.
If you print, copy, modify, download, sublicense, transfer, publish, or otherwise use or provide any other person with access to any part of the Service, Technology, or Atlas Data in breach of the Terms, your right to use the Service and Atlas Data will stop immediately and you must, at our option, return or destroy any copies of the Atlas Data you have downloaded. No right, title, or interest in or to the Service, Technology, Atlas Data, or any content on the Service is transferred to you except as expressly provided by these Terms. Any use of the Service not expressly permitted by these Terms is a breach of these Terms and may violate copyright, trademark, and other laws. We reserve all rights that are not expressly granted to you under these Terms.
Equipment
You shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Service or Technology, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). You shall also be responsible for maintaining the security of the Equipment and for all uses of the Equipment with or without your knowledge or consent.
DATA SECURITY REQUIREMENTS
Customer agrees that it shall implement, maintain, monitor, and comply with the following data security requirements in connection with the access, receipt, and use of the Atlas Data.
Definitions. As used in this Data Security Requirements section, each of the following terms shall have the corresponding meaning set forth below.
“Applications” means all externally-facing applications that receive, access, process or store Atlas Data.
“Customer Personnel” means all employees, contractors, agents, and third-party service providers employed or contracted by Customer for any purpose.
“Customer System” means all tools, technologies, hosting services, processes, information management systems, and other hardware and software used by Customer.
“Encryption” means the reversible transformation of data from the original (plaintext) to an obfuscated format (cipher text) as a mechanism for protecting the information’s confidentiality, integrity and/or authenticity. Encryption requires an encryption algorithm and one or more encryption keys.
“Encryption Standard” means the most current industry standard information encryption standards and methodologies, unless another standard is authorized in writing by Gradient.
“Personal Information” is information that: (i) directly or indirectly identifies an individual (including, for example, names, signatures, addresses, telephone numbers, email addresses, and other unique identifiers); or (ii) can be used to authenticate an individual (including, without limitation, employee identification numbers, government-issued identification numbers, passwords or PINs, user identification and account access credentials or passwords, biometric, genetic, health, or health insurance data, answers to security questions, and other personal identifiers). Personal Information includes Protected Health Information.
“Protected Health Information” shall have the same meaning as the term “protected health information” in 45 CFR §160.103.
“Security Incident” means any actual or threatened security breach in or unauthorized or suspicious access to any Customer System that would adversely affect the Atlas Data, Service, systems or access to the Customer System.
“Store” means to save, archive, back-up information, and/or perform any similar activities.
Specific Security Requirements.
Contents of the Customer Information Security Program. The Customer Information Security Program shall contain a comprehensive set of written security policies and procedures in accordance with industry best practices, which cover, at a minimum:
Customer’s commitment to information security;
Information classification, labeling, and handling – policies and procedures related to information handling must describe the permissible methods for information transmission, storage, and destruction consistent with those standards generally observed by the healthcare-services industry and consistent with applicable laws and regulations;
Acceptable use of Customer’s assets, including computing systems, networks (onsite or in the cloud), and messaging;
Information security incident management, including data breach notification and collection of evidence procedures;
Authentication rules for the format, content and usage of passwords for end users, administrators, and systems;
Access controls, including periodic reviews of access rights;
Separation of duties such that no individual, acting alone, can compromise Customer’s security controls; and
Customer Responsibilities.
Customer will designate Customer Personnel to establish, maintain, monitor and enforce the Customer Information Security Program, and to perform information security and information risk management where applicable.
Customer will notify Gradient immediately upon discovery of any Protected Health Information contained within the Atlas Data. Customer will delete any such Atlas Data containing Protected Health Information and Gradient will provide replacement Atlas Data as set forth in these Terms.
Customer will be responsible and liable for any unauthorized transmission, storage, disposal, use, publication, or disclosure of Atlas Data under its control or in its possession, and for the occurrence of any Security Incident that results in the Atlas Data being obtained, acquired, or accessed by a third party.
Physical and Environmental Security. Customer shall:
Restrict entry to portions of Customer’s premises where Atlas Data is stored, accessed, or processed solely to Customer Personnel authorized for such access;
Implement reasonable best practices for infrastructure systems, including fire extinguishing, cooling, and power, emergency systems, and employee safety;
Provide physical entry controls for all areas where Atlas Data is stored, accessed, or processed that are commensurate with the sensitivity of the Atlas Data – all Customer Personnel accessing these areas must employ one or more unique, individually identifiable entry controls (such as card keys) that provide an audit trail of each entry; and all visitors (including subcontractors) who enter these areas must be logged and escorted by Customer Personnel authorized to access such area.
Communications and Operations. Customer shall:
Encrypt all Atlas Data in transit and at rest (including any backup media containing Atlas Data);
Not Store or replicate any Atlas Data outside of Customer’s premises or contracted cloud provider without obtaining the prior written consent of Gradient;
Not transmit, transfer or provide any Atlas Data to any third party, or provide any third party with access to any Atlas Data, without obtaining the prior written consent of Gradient;
When erasing or destroying Atlas Data, employ data destruction procedures that meet or exceed the National Institute of Standards and Technology (NIST) Special Publication (SP) 800-88 (Rev.1) Guide for Media Sanitation or any successor standards;
Maintain up-to-date malware detection and prevention tools on Customer’s servers and any end user platforms, or cloud hosted environments that transmit, access, process or Store Atlas Data;
Implement regular patch management and system maintenance for all of Customer’s systems that transmit, access, process or Store Atlas Data;
Ensure that all Encryption required by this Addendum shall, at a minimum, meet the Encryption Standard.
Access Control. Customer shall:
Enforce best practices for user authentication – if passwords are used to authenticate individuals or automated processes accessing Atlas Data, such passwords will comply with the then-current best practices for password usage, creation, storage, and protection;
Ensure that user IDs are unique to individuals and are not shared;
Assign access rights based upon the sensitivity of Atlas Data, the individual’s job requirements, and the individual’s “need to know” for the specific Atlas Data;
Review the access rights of Customer Personnel at least annually to ensure need-to-know restrictions are kept current; and
Regularly review reports of user entry into Customer’s owned facilities housing Atlas Data.
Safeguards. The Customer Information Security Program shall contain administrative, technical, and physical safeguards to ensure the confidentiality of the Atlas Data (as applicable) and Confidential Information and protects against (a) any anticipated threats or hazards to the security or integrity of the Atlas Data, Confidential Information, and sensitive information; and (b) unauthorized, accidental and inadvertent (i) access or damage to, or (ii) acquisition, modification, disclosure, destruction, use or misuse of, the Atlas Data and any Confidential Information.
Security Incident Management. Customer shall:
Establish, test, and maintain a Security Incident response process that includes, among other things, processes for evidence preservation, informing and working with law enforcement agencies, government agencies and similar parties as appropriate, and performing forensic analyses;
Notify Gradient of any Security Incident involving Atlas Data, including any Security Incident at or involving Customer’s premises, systems, hardware, equipment, devices or premises computers or otherwise involving Customer Personnel or its designee(s) – Customer shall provide notification of any such Security Incident promptly, but in no event later than two (2) days (or if such Security Incident involves Confidential Information, in no event later than 24 hours following the date Customer or its designee first becomes aware of such Security Incident;
Following notification of a Security Incident, provide Gradient with updates as are reasonably necessary to keep Gradient apprised of the situation, or as otherwise reasonably requested by Gradient, until such time as Customer closes the Security Incident;
In the event of a Security Incident, coordinate any communications or notifications to government entities or agencies, law enforcement and individuals with Gradient. It is understood and agreed that Gradient shall have the exclusive right to approve Customer making any such communications or notifications, whether or not the same are required by law. In the absence of Gradient’s approval, Customer shall not make any such communications or notifications, or any other public statements regarding the Security Incident, unless otherwise required by applicable law;
For each Security Incident, provide Gradient with a comprehensive written summary not later than five (5) days following Customer’s closure of such Security Incident, that includes detailed information regarding the root cause of such Security Incident, actions taken, and plans to prevent a similar event from occurring in the future (the “Plans”); and
Upon Gradient’s request, provide reasonable proof that the Plans have been successfully implemented.
Customer agrees that it will not inform any third party of any Security Incident involving the Atlas Atlas Data without Gradient’s prior consent, other than to inform a complainant that the matter has been forwarded to legal counsel.
Compliance. Customer shall:
Establish and maintain mutually agreed upon policies and practices for records retention and data destruction applicable to the Atlas Data and any other information produced in the course of or otherwise related to Customer’s activities under these Terms;
Establish a code of ethics and require all Customer Personnel to review and acknowledge it annually (except if and to the extent prohibited by law); and
If interacting directly with individuals, develop, implement and operate in accordance with a privacy policy (which among other things, describes the types of information collected, how the information is used, stored and shared, any options for an individual to “opt out” of any usage or sharing, and how an individual may access his or her information) and disseminate or otherwise make such privacy policy available to such individuals.
THIRD-PARTY SERVICES AND FEATURES
The Service may contain links, special features, or third-party materials that are not owned or controlled by Gradient. We may refer you to certain third parties who provide independent services relating to or supporting your use of the Service, and/or certain features or functionality of the Service may require your use of, or may be compatible with or connected to, third-party services, sites, information, materials, products, applications, extensions, or services (each a “Third-Party Service”). If you use a Third-Party Service, you are subject to an agree to the third party’s terms of service (or other applicable terms and conditions) made available by the Third-Party Service, as applicable. We do not endorse or assume any responsibility for any such Third-Party Service, even if we have performed a review of the functionality of such Third-Party Service, and even if we make the Third-Party Service available to you as an enhanced feature of the Service, for example. If you access a Third-Party Service from the Service or otherwise use a Third-Party Service in connection with your use of the Service, you do so at your own risk and you understand and agree that these Terms do not apply to your use of such Third-Party Services. You expressly release Gradient from any and all liability arising from your use of a Third-Party Service.
INDEMNIFICATION, DISCLAIMERS, & LIMITATION OF LIABILITY
Indemnification
Customer agrees to defend, indemnify, and hold Gradient and our affiliates, suppliers, and licensors (and our and their employees, contractors, agents, shareholders, officers, and directors) harmless from and against any loss, damage, liability, claim, expense, cost, or demand, including reasonable attorneys’ fees and expenses arising out of Customer’s (including any employee, agent, or representative of Customer): (1) access to or use of the Service or any Atlas Data; (2) breach of these Terms or violation of applicable laws; (3) violation of the rights of a third party, including but not limited to intellectual property rights and privacy rights; (4) willful misconduct; (5) conduct of Customer’s own business, research, or commercial endeavors, including with respect to any of Customer’s own algorithms, models, inventions, technology, products, or services; or (6) any Security Incident (as defined above).
Notwithstanding the foregoing, we reserve the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us, and you agree to cooperate, at your expense, with our defense of such claims. We will use reasonable efforts to notify you of any such claim, action, or proceeding which is subject to this indemnification upon becoming aware of it.
DISCLAIMER OF WARRANTIES
THE SERVICE, ATLAS DATA, AND TECHNOLOGY ARE PROVIDED “AS IS” AND “AS AVAILABLE.” TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, GRADIENT HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, GRADIENT SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, SECURITY, ACCURACY, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE.
GRADIENT MAKES NO WARRANTY OR REPRESENTATION THAT ACCESS TO OR OPERATION OF THE SERVICE, OR ANY DATA OR RESULTS OF THE USE THEREOF, WILL MEET USER’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICE, OR BE SECURE, ACCURATE, COMPLETE, OR ERROR FREE.
USER ACKNOWLEDGES AND AGREES THAT USER ASSUMES FULL RESPONSIBILITY AND RISK OF LOSS RESULTING FROM USER’S USE OF THE SERVICE, ATLAS DATA, OR ANY COMPONENT OF THE SERVICE.
LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL GRADIENT OR ANY OF ITS AFFILIATES, SUPPLIERS, OR LICENSORS (OR OUR OR THEIR OFFICERS, DIRECTORS, SHAREHOLDERS, REPRESENTATIVES, CONTRACTORS OR EMPLOYEES) BE RESPONSIBLE OR LIABLE UNDER OR IN CONNECTION WITH THESE TERMS UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (I) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (II) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (III) LOSS OF GOODWILL OR REPUTATION; (IV) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (V) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER GRADIENT WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL GRADIENT’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS UNDER ANY LEGAL OR EQUITABLE THEORY EXCEED TWO (2) TIMES THE TOTAL AMOUNTS PAID TO GRADIENT UNDER THESE TERMS IN THE ONE (1) YEAR PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
DISPUTES
Informal Negotiation
To expedite resolution and control the cost of any dispute, controversy, or claim related to these Terms (each a “Dispute” and collectively, the “Disputes”) brought by either you or us (individually, a “Party” and collectively, the “Parties”), the Parties agree to first attempt to negotiate any Dispute (except those Disputes expressly provided below) informally for at least sixty (60) days before initiating arbitration. Such informal negotiations commence upon written notice from one Party to the other Party.
Binding Arbitration
If the Parties are unable to resolve a Dispute through informal negotiations, the Dispute will be finally and exclusively resolved by binding arbitration. YOU UNDERSTAND THAT WITHOUT THIS PROVISION, YOU WOULD HAVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL.
The arbitration shall be commenced and conducted under the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) and, where appropriate, the AAA’s Supplementary Procedures for Consumer Related Disputes (“AAA Consumer Rules”), both of which are available at the AAA website www.adr.org.
Your arbitration fees and your share of arbitrator compensation shall be governed by the AAA Consumer Rules and, where appropriate, limited by the AAA Consumer Rules.
The arbitration may be conducted in person, through the submission of documents, by phone, or online. The arbitrator will make a decision in writing, but need not provide a statement of reasons unless requested by either Party. The arbitrator must follow applicable law, and any award may be challenged if the arbitrator fails to do so. Except where otherwise required by the applicable AAA rules or applicable law, the arbitration will take place in Wake County in North Carolina.
Except as otherwise provided herein, the Parties may litigate in court to compel arbitration, stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator.
If for any reason, a Dispute proceeds in court rather than arbitration, the Dispute shall be commenced or prosecuted in the state and federal courts located in Wake County, North Carolina, and the Parties hereby consent to, and waive all defenses of lack of personal jurisdiction, and forum non conveniens with respect to venue and jurisdiction in such state and federal courts.
Application of the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transaction Act (UCITA) are excluded from these Terms of Use.
In no event shall any Dispute brought by either Party related in any way to the Service be commenced more than one (1) year after the cause of action arose. If this provision is found to be illegal or unenforceable, then neither Party will elect to arbitrate any Dispute falling within that portion of this provision found to be illegal or unenforceable and such Dispute shall be decided by a court of competent jurisdiction within the courts listed for jurisdiction above, and the Parties agree to submit to the personal jurisdiction of that court.
MISCELLANEOUS
Export Control Laws
The Service, Technology, Atlas Data, or other information provided in connection with the Service may be subject to export control laws and regulations of the United States and/or other relevant jurisdictions. You shall not, directly or indirectly, export, re-export, or release any data, information, software programs, or materials related to or resulting from the Service, to or from any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. You shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings related to the foregoing. Customer shall be responsible to comply with the restrictions contained in these Terms and all applicable laws, rules, and regulations related to the transfer of the Service, Atlas Data, or other information or materials obtained or derived from the Service across different devices and/or geographic locations by any of its Authorized Users.
Digital Millennium Copyright Act (“DMCA”) Notice & Policy
We respect the intellectual property rights of others. If you believe that any material available on or through the Service infringes upon any copyright you own or control, please immediately notify our Designated Copyright Agent using the contact information provided below (a “Notification”).
A copy of your Notification will be sent to the person who posted or stored the material addressed in the Notification. Please be advised that pursuant to federal law you may be held liable for damages if you make material misrepresentations in a Notification. Thus, if you are not sure that material located on or linked to by the Service infringes your copyright, you should consider first contacting an attorney.
All Notifications should meet the requirements of DMCA 17 U.S.C. § 512(c)(3) and include the following information:
(1) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
(2) identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works on the Service are covered by the Notification, a representative list of such works on the Service;
(3) identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material;
(4) information reasonably sufficient to permit us to contact the complaining party, such as an address, telephone number, and, if available, an email address at which the complaining party may be contacted;
(5) a statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law;
(6) a statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed upon.
Entire Agreement; Severability
These Terms and any policies or operating rules posted by us on the Service or in respect to the Service constitute the entire agreement and understanding between you and us. In the event of a conflict between these terms and any terms set forth in a separate written agreement relating to use of the Service and signed by a Customer and Gradient, the signed agreement shall control.
Our failure to exercise or enforce any right or provision of these Terms shall not operate as a waiver of such right or provision. These Terms operate to the fullest extent permissible by law. We may assign any or all of our rights and obligations to others at any time. You may not assign your rights or obligations under these Terms without Gradient’s prior written consent. We shall not be responsible or liable for any loss, damage, delay, or failure to act caused by any cause beyond our reasonable control.
If any provision or part of a provision of these Terms is determined to be unlawful, void, or unenforceable, that provision or part of the provision is deemed severable from these Terms and does not affect the validity and enforceability of any remaining provisions.
There is no joint venture, partnership, employment or agency relationship created between you and us as a result of these Terms of the Service. You agree that these Terms will not be construed against us by virtue of having drafted them. You hereby waive any and all defenses you may have based on the electronic form of these Terms and the lack of signing by the parties hereto to execute these Terms.
Submissions
You acknowledge and agree that any questions, comments, suggestions, ideas, feedback, or other information regarding the Service (“Submissions“) provided by you to us are non-confidential and shall become our sole property. We shall own exclusive rights, including all intellectual property rights, and shall be entitled to the unrestricted use and dissemination of these Submissions for any lawful purpose, commercial or otherwise, without acknowledgment or compensation to you.
You hereby waive all moral rights to any such Submissions, and you hereby warrant that any such Submissions are original with you or that you have the right to submit such Submissions. You agree there shall be no recourse against us for any alleged or actual infringement or misappropriation of any proprietary right in your Submissions.
Governing Law
These Terms and your use of the Service are governed by and construed in accordance with the laws of the State of North Carolina applicable to agreements made and to be entirely performed within the State North Carolina, without regard to its conflict of law principles.
We May Amend These Terms & Make Corrections
We may revise and update these Terms from time to time in our sole discretion. All changes become effective immediately when we post them. We will notify you of material changes to the Terms, or any changes that require your consent, by sending an email to the email address you provided to us. For this reason, you should keep your contact information current. We may not be able to provide you with email notice if you are using features of the Service that do not require you to submit any information that could be used to contact you, so please check the Site periodically for changes.
There may be information on the Service or Atlas Data that contains typographical errors, inaccuracies, or omissions, including descriptions, pricing, availability, and various other information. We reserve the right to correct any errors, inaccuracies, or omissions and to change or update the information on the Service or Atlas Data at any time, without prior notice.
CONTACT US
In order to resolve a complaint regarding the Service or to receive further information regarding use of the Service, please contact us at:
Gradient Health, Inc.
110 Corcoran Street
Fifth Floor
Durham, NC 27701
support@gradienthealth.io
