Last modified: November 15, 2020.
These terms and conditions (the “Terms and Condition”) apply to the ENTiD application, the services made available through and in connection with the ENTiD application (including consultations provided by the consult team) and the ENTiD hardware (collectively, the “ENTiD App”). If you do not agree to all of the Terms and Conditions then you do not have permission to use the ENTiD App. Unauthorized use of the ENTiD App is strictly prohibited.
All references in these Terms and Conditions to:
1. “our,” “us,” “we,” or “ENTiD” refer to ENTiD Inc.;
2. “you” and “your” refer to the person or corporate entity that is permitted to use the ENTiD App;
3. the “consult team” throughout refers to specialist physicians who are members of ENTiD’s consulting team who will be providing consultations pursuant to the referral platform offered in connection with the ENTiD App;
4. “including” means including without limitation;
5. headings are for reference only and do not define, limit or enlarge the scope or meaning of this Agreement or any of its provisions; and
6. “person” includes an individual, partnership, association, trust, unincorporated organization, society and corporation.
1. ENTiD may, in its sole discretion, modify all or part of these Terms and Conditions at any time by revising them on www.earnosethroatid.com/legal. It is your responsibility to check these Terms and Conditions periodically for changes. Your use of the ENTiD App following such changes constitutes acceptance of the modified Terms and Conditions.
All references in these Terms and Conditions to:
1. If the ENTiD App is being used in conjunction with a clinical trial then your use of the ENTiD App is also subject to a written agreement (a “Clinical Trial Agreement”) between ENTiD and the person conducting the clinical trial. Subject to your compliance with these Terms and Conditions and the Clinical Trial Agreement, ENTiD grants you a non-exclusive, terminable, non-transferable, non-sublicensable license to access and use the App for the limited purposes set out in the Clinical Trial Agreement.
2. During the term of a Clinical Trial Agreement the sole remedy you have against ENTiD is to stop using the ENTiD App.
3. If there is a conflict between a Clinical Trial Agreement and these Terms and Conditions, the terms of the Clinical Trial Agreement govern
1.These Terms and Conditions apply for as long as the agreement between the parties that references these Terms and
1. As between you and ENTiD, you own all health information or patient information that you record or upload using the ENTiD App.
2. Images that are recorded or uploaded to the ENTiD App cannot be linked to or connected to an identifiable person or patient by the ENTiD App or by ENTiD. Accordingly, such images are not personal information or health information. Any such images (including any intellectual property in the images) are owned by ENTiD. ENTiD’s ownership of the images allows ENTiD to improve the ENTiD App (including by improving the underlying algorithms and artificial intelligence) and respond to technical problems with the ENTiD App. Subject to your compliance with these Terms and Conditions, ENTiD grants you a non-exclusive, terminable, non-transferable, non-sublicensable license to access and use the images for the limited purposes set out in these Terms and Conditions.
3. ENTiD is not liable for any misuse of the ENTiD App by you which leads to the unauthorized use, access, collection, storage, transmission, retrieval or disclosure of any personal information or health information.
1. The ENTiD App is not directed to or intended for use by non-medical professionals.
2. The ENTiD App offers a prediction as to the possible medical diagnosis. This prediction is not intended to be shared with a patient or relied on to prescribe any course of medical treatment. Once the prediction is received, you, the referring physician, may then elect to refer the case out to a member or members of the consult team for additional review.
3. If a further consult has been requested, the referring physician will receive timely recommendations for treatment and follow up from the designated member of the consult team. All such communications between the consult team and the referring physician must take place through a secure communication method previously approved by ENTiD. Uploading the consultation results to an EMR is at the sole discretion of participating physicians.
4. You may not, or permit any person to:
1. Endoscope Terms
1. Permitted users of the ENTiD App must use the digital
endoscope provided by ENTiD or a third party digital endoscope approved for use by ENTiD that meets certain specifications. The endoscopes currently provided by ENTiD for use are Class I medical devices (license 10481 with Health Canada).
2. Use of the endoscope provided by, or approved by, ENTiD must be in accordance with (a) the terms outlined
here: https://www.entid.ca/support, and (b) the terms of the Clinical Trial Agreement (if applicable).
3. ENTiD intends, but is not obligated, to (a) repair or replace ENTiD-provided endoscopes that become broken or damaged through the course of proper use or through normal wear and tear or (b) replace defective ENTiD-provided endoscopes. Despite this, you are responsible for paying ENTiD the replacement cost of any endoscope that is lost, damaged or destroyed due to improper use or handling or as a result of carelessness or negligence.
2. Mobile Device Terms
1. Permitted users of the ENTiD App are required to use a
mobile device provided by ENTiD or approved for use by ENTiD in accordance with these Terms and Conditions. If a user intends to use their own mobile device then prior to the mobile device being approved for use by ENTiD, the device will need to conform to ENTiD’s mobile device management policy (including the installation of certain software and the application of certain mobile device restrictions) to ensure that the use of the device is secure.
2. As part of ENTiD’s mobile device management policy, the mobile device will not be sim-card enabled, it will permit connection to other providers electronic medical record software, it will be able to securely connect to and correspond using Alberta Health Services’ secure email and it will be subject to Alberta Health Services’ applicable policies related to secure email and mobile device use. ENTiD is not responsible for any data plans or fees, and you are solely responsible for ensuring the availability and security of Wi-Fi for the mobile device.
3. ENTiD will not replace any broken or damaged mobile devices, including those broken or damaged despite proper use or normal wear and tear. ENTiD will replace defective ENTiD-provided mobile devices provided you notify ENTiD of the defect within ten (10) days of your receipt of the mobile device.
4. ENTiD will not provide support or maintenance for any mobile devices. You are solely responsible for making any operating system, critical or security-related updates to the mobile device.
3. General Hardware Terms
1. Endoscopes and mobile devices are provided on an “as
is”, “where is” and with faults basis, and are provided without any representation or warranty (including implied warranties of fitness for a particular purpose). ENTiD does not make any representations or warranties regarding the accuracy, reliability, completeness, correctness or adequacy of endoscopes or mobile devices. ENTiD disclaims any express, implied or statutory warranties of merchantability, fitness for a particular purpose, non-infringement, as well as any warranties implied from a course of performance or a course of dealing.
2. Endoscopes and mobile devices provided by ENTiD are intended only for use by trained physicians and medical staff.
1. You will not be charged directly for your use of the endoscope or mobile device provided by ENTiD or for the ENTiD App.
2. ENTiD charges administration fees in connection with the use of the consult team as set forth under Section 9 below.
1.The ENTiD referral platform allows you to refer a case, at your request, from the ENTiD App to a member of the consult team for their opinion through an ENTiD-approved communication method (such as secure email or a portal).
2. ENTiD’s referral platform can connect you with a member of the consult team; however, ENTiD will not review, recommend or otherwise participate in the diagnosis, recommendations or opinions provided by member(s) of the consult team.
3. ENTiD will bill Alberta Health directly on your behalf using appropriate fee codes, for your use of the referral platform. By using ENTiD’s referral platform, you agree to allow ENTiD to bill Alberta Health on your behalf, and sign a Business Arrangement Agreement to facilitate this process.
4. ENTiD will provide a report of the nature and number of fee codes received and billed on a monthly basis to the Physician. This will include information on administration fees deducted.
5.Pursuant to these Terms and Conditions, you agree that you will not bill in parallel or “double bill” (using the same fee codes for the same patient on the same day) when using the ENTiD App or referral platform. These codes will be rejected automatically by AH, and this will be reflected in the monthly billing report.
1. The ENTiD App, including all intellectual property rights, is the property of ENTiD or its licensors.
2. All of the content including images, text, graphics, user interface, code, and overall design of the ENTiD App (collectively, the “Content”), and any intellectual property rights therein, is exclusively owned by ENTiD and its licensors, and is protected by intellectual property laws. Any rights not granted by ENTiD are expressly reserved. The Content and the ENTiD App source code is copyright © ENTiD Inc. 2020.
3. If you provide ENTiD feedback about the ENTiD App (including any ideas or suggestions for enhancements or improvements) (collectively the “Feedback”) then you agree that ENTiD and its suppliers and ENTiD’s respective successors, assigns and licensees may use and commercialize the Feedback in any way and for any purpose without providing any compensation or recognition to you or to any other person.
4. ENTiD™ and related logos and marks are the registered or unregistered trademarks of ENTiD and its licensors. You do not have any license or right to use any of ENTiD’s trademarks.
1. In registering to use the ENTiD App, you must provide true, accurate, current, and complete information.
2. You are entirely responsible for maintaining the confidentiality of information submitted to ENTiD, including user names and passwords, and for any activity that occurs under your account.
3. ENTiD is entitled to rely on any use of your account and any communications received by ENTiD from your account, unless you notify ENTiD promptly that the use or communications were made in error or were not authorized by you.
1. ENTiD may suspend or terminate your use of the ENTiD App on written notice to you if you do not comply with or if you breach either these Terms and Conditions or the agreement that incorporates these Terms and Conditions by reference.
2. ENTiD is constantly changing and improving the ENTiD App. ENTiD may add, remove, or change features or functionalities of the ENTiD App, and ENTiD may suspend or stop providing the ENTiD App at any time in its sole discretion.
3. On the termination or expiration of the agreement that incorporates these Terms and Conditions, any and all rights granted to you expire and terminate.
1. The ENTiD App is provided on an “as is”, “where is” and with all faults basis.
2. ENTiD does not make any representations or warranties regarding the accuracy, reliability, completeness, correctness, or adequacy of (a) the information provided by the ENTiD App, (b) the features or functionality of the ENTiD App, (c) any prediction or decision support provided through the ENTiD App or (d) any prediction or decision support provided by the consult team.
3. ENTiD disclaims any express, implied or statutory warranties of merchantability, fitness for a particular purpose, non-infringement, as well as any warranties implied from a course of performance or a course of dealing.
5. ENTID HAS TAKEN ALL REASONABLE PRECAUTIONS TO SECURE THE ENTID APP; HOWEVER, YOU ACKNOWLEDGE THAT ANY INFORMATION YOU SEND OR RECEIVE DURING YOUR USE OF THE ENTID APP OR IN CONNECTION WITH THE REFERRAL SERVICES MAY NOT BE SECURE AND MAY BE INTERRUPTED OR INTERCEPTED BY UNAUTHORIZED PARTIES.
6. You agree that ENTiD has no responsibility whatsoever for the conduct of your business or for patient care. You agree that any use or reliance on the ENTiD App or any prediction or decision support provided by ENTiD does not diminish your responsibility for patient care. The ENTiD App and ENTiD’s consult team require you to exercise independent clinical judgment in the delivery of patient care. You retain professional and administrative responsibility for patient care. Any information provided by the ENTiD App is for informational purposes only. Such information (including the Content) is not intended to be a substitute for professional medical advice, diagnosis or treatment.
7. If you elect to refer a case to the consult team, ENTiD has no responsibility whatsoever for any diagnosis provided by the consult team. Such diagnoses are beyond the scope of the ENTiD App and are provided to the referring physician pursuant to the consult team member’s license to practice medicine.
1. “Confidential Information” means all non-public information, in any form and on any medium, disclosed by a party (the “disclosing party”) to the other party (the “receiving party”), regardless of the form of disclosure and whether or not the disclosure is marked as “confidential”. In the case of ENTiD, its Confidential Information includes non-public information about the ENTiD App and about the operation and use of the ENTiD App, non-public user manuals and information that is to be treated as confidential pursuant to the terms of the agreement that incorporates these Terms and Conditions by reference.
2. Information will not be considered to be Confidential Information to the extent that the information is: (i) already known to the receiving party free of any restriction at the time it is obtained from the disclosing party, (ii) subsequently learned by the receiving party from an independent third party free of any restriction and without breach of this Agreement, breach of any agreement with such third party or breach of any other confidentiality obligation, (iii) or becomes publicly available through no wrongful act of the receiving party or (iv) independently developed by the receiving party without reference to any of the disclosing party’s Confidential Information.
3. The receiving party will: (i) use the disclosing party’s Confidential Information only during the term and only to the extent necessary to perform the receiving party’s obligations and exercise the receiving party’s rights under this Agreement, (ii) disclose the disclosing party’s Confidential Information only to the receiving party’s personnel, and then only to the extent that such disclosure is necessary to perform the receiving party’s obligations or exercise the receiving party’s rights under this Agreement, (iii) both during and indefinitely after the term maintain the strict confidentiality of the disclosing party’s Confidential Information using the same degree of care as the receiving party affords to its own confidential information of a similar nature which it desires not to be published or disseminated, and in no event less than reasonable administrative, technical and physical safeguards, to prevent the unauthorized use or disclosure of the disclosing party’s Confidential Information and (iv) ensure that its personnel and other persons to whom the receiving party discloses the disclosing party’s Confidential Information strictly comply with the requirements and restrictions set forth in items (i)-(iii) above.
4. The receiving party may disclose the disclosing party’s Confidential Information: (i) to the extent such disclosure is required by a valid order of a court or governmental body of competent jurisdiction and authority or by applicable law, provided that before making any such disclosure the receiving party gives reasonable notice to the disclosing party of the potential disclosure and reasonably assists the disclosing party in seeking a protective order preventing or limiting the potential disclosure or use of the disclosing party’s Confidential Information, unless such prior disclosure is prohibited by the order or applicable law and (ii) to its legal, accounting and tax advisors to the extent that such disclosure is required for a bona fide legal, accounting or tax purpose.
5. Upon expiration or termination of this Agreement or at any time upon request by the disclosing party, the receiving party will: (i) promptly deliver to the disclosing party all originals and copies, in whatever form or medium, of all the disclosing party’s Confidential Information and all documents, records, data and materials, in whatever form or medium, containing such Confidential Information in the receiving party’s possession, power or control, and the receiving party will delete all of the disclosing party’s Confidential Information from all of the receiving party’s computer systems, retrieval systems and databases, unless this Agreement expressly authorizes the receiving party to retain the Confidential Information and (ii) request that all persons to whom it has provided any of the disclosing party’s Confidential Information comply with this section.
1.ENTID IS NOT LIABLE FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, SPECIAL, PUNITIVE OR INCIDENTAL DAMAGES WHATSOEVER, INCLUDING (i) CLAIMS FOR PERSONAL INJURY OR DEATH CAUSED BY (A) USE OR MISUSE OF THE ENTID APP OR ITS CONTENT OR (B) ANY PREDICTIONS OR DESIGN SUPPORT PROVIDED BY ENTID OR THE CONSULT TEAM, (ii) YOUR USE OF THE ENTID APP AND ANY PREDICTIONS OR DECISION SUPPORT PROVIDED BY ENTID OR BY THE CONSULT TEAM, (iii) YOUR USE OF ANY RESULTS OR OUTCOMES FROM THE ENTID APP OR FROM THE CONSULT TEAM, (iv) YOUR PROVISION OF PATIENT CARE, HEALTH CARE OR MEDICAL CARE OR (v) CLAIMS FOR LOST PROFITS RESULTING FROM DELAYED OR LOST DATA OR OTHER BUSINESS INTERRUPTION. THIS LIMITATION OF LIABILITY APPLIES REGARDLESS OF THE BASIS OF LIABILITY, WHETHER BASED ON CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE, AND IT APPLIES EVEN IF ANY SUCH LOSS OR DAMAGE WAS REASONABLY FORSEEABLE.
1. You shall indemnify, defend and hold ENTiD and its directors, officers, employees, licensors, consultants, consult team and agents harmless from and against any and all claims, demands or actions, and any resulting loss, liability, costs and expenses (including reasonable attorneys’ fees and costs), due to, arising out of, or in connection with (i) personal injury or death caused by you, (ii) your use of the ENTiD App and any predictions or decision support provided by ENTiD or by the consult team, (iii) your use of any results or outcomes from the ENTiD App or from the consult team, (iv) your negligence or wilful misconduct and (v) your provision of patient care, health care or medical care.
2. Subject to Sections 16(c) and 16(d), ENTiD shall defend you against a claim brought against you by an unaffiliated third party in a court of competent jurisdiction in Canada to the extent that the claim is based on an allegation that your use of the ENTiD in accordance with these Terms and Conditions infringes or misappropriates a patent or copyright under the laws of Canada that is owned by such unaffiliated third party. ENTiD will indemnify you against any final judgments rendered in favour of such third party.
3. Subject to Section 16(d), if a third party claim as set out in Section 16(b) prohibits you from continuing to use the ENTiD App in accordance with these Terms and Conditions, or if at any time the ENTiD App is, or in ENTiD’s opinion is likely to become, the subject of a third party allegation or claim of infringement or misappropriation of third party intellectual property rights, then ENTiD may, in its discretion, (i) obtain for you the right to use the ENTiD App in accordance with these Terms and Conditions, (ii) modify the ENTiD App to make it non-infringing or (iii) terminate the agreement to which these Terms and Conditions are incorporated by reference.
4. ENTiD’s defence and indemnification obligations in Section 16(b) are conditioned on and subject to you: (i) promptly notifying ENTiD of such third party claim, (ii) giving ENTiD sole control of the defence and settlement of each such third party claim and (iii) upon request by ENTiD, fully cooperating with ENTiD regarding the defence and settlement of the third party claim.
5. ENTiD’s defence and indemnification obligations in Section 16(b) do not apply any actual or alleged infringement or misappropriation arising from, connected with, or relating to: (i) the use of the ENTiD App in combination with any software, services, technology, hardware or other materials not provided by ENTiD or expressly approved under these Terms and Conditions, (ii) any use of the ENTiD App in breach of these Terms and Conditions or (iii) any wrongful act or omission by you or by any person for whom you are responsible, including any breach of these Terms and Conditions by you.
6. Sections 16(b)-(e) state your sole remedies, and ENTiD’s entire responsibility and liability, for any claims, actions, proceedings, liability, loss or expenses arising from, connected with, or relating to any actual or alleged infringement or misappropriation of any third party intellectual property rights.
1. Any controversy or claim arising out of or relating to these Terms and Conditions, or the breach of these Terms and Conditions, will be determined by final and binding arbitration administered by ICDR Canada in accordance with its Canadian Arbitration Rules. The number of arbitrators will be one. The place of arbitration will be Calgary, Alberta. The language of the arbitration will be English.
2. This Agreement is governed by, and construed in accordance with, the laws of the Province of Alberta, and the federal laws of Canada applicable in the Province of Alberta, without giving effect to any choice or conflict of law provision, principle or rule (whether of the Province of Alberta or any other jurisdiction). The parties agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
9. Notices to ENTiD
1. All notifications, consents, reports, requests, demands, and other communications required or permitted to be directed to ENTiD pursuant to these Terms and Conditions must be transmitted in writing and shall be deemed given when mailed (with return receipt requested), emailed (receipt for which is confirmed), or sent via a recognized overnight courier service, to the ENTiD at the following address:
c/o Borden Ladner Gervais LLP
520 3 Ave SW
With a copy to: LHornland@blg.com
1. General Terms
All references in these Terms and Conditions to:
1. These Terms and Conditions constitute the entire understanding between you and ENTiD regarding your use of the ENTiD App.
2. The Terms and Conditions do not create any third party beneficiary rights.
3. If any provision of these Terms and Conditions is held invalid or unenforceable, the remaining provisions will remain in full force and effect and, if possible, the provision found unenforceable will be construed in a manner consistent with the remaining provisions.
4. If an agreement that incorporates these Terms and Conditions by reference expires or is terminated for any reason, the following provisions of the Terms and Conditions, and all other provisions necessary to their interpretation or enforcement, will survive the expiration or termination of such agreement and will remain in full force and effect and be binding upon the parties as applicable: Sections 1, 5, 10, 13, 14, 15, 16(a) and 17-19.
5. These Terms and Conditions are binding upon and will inure to the benefit of the parties and their respective successors and permitted assigns.
6. Neither party will be liable for any delay in performing, or failure to perform, any of its obligations under these Terms and Conditions to the extent performance is delayed or prevented due to any cause or causes that are beyond that party’s reasonable control. Any delay or failure of this kind will not be deemed to be a breach of these Terms and Conditions by the defaulting party, and the time for the defaulting party’s performance of the affected obligation will be extended by a period that is reasonable in the circumstances.
7. The parties are independent contracting parties, and nothing in this Agreement creates or will be construed to create a partnership, joint venture, agency, employment or other similar relationship between the parties.
8. No consent or waiver by a party to or of any breach by the other party of its obligations under these Terms and Conditions will be effective unless in writing and signed by both parties.
9. Except as expressly set forth in these Terms and Conditions, the parties’ respective rights and remedies under these Terms and Conditions are cumulative and not exclusive of any other rights or remedies to which they may be entitled under these Terms and Conditions or at law or equity.
10. These Terms and Conditions may be amended or supplemented, and all relevant parties will be notified of any changes. Purchase orders or other documents issued by you, whether or not accepted by ENTiD, are for administrative convenience only, and any terms and conditions contained in those documents are of no force or effect and will not in any way amend or supplement these Terms and Conditions.