Legal

Before using ASTHMAXcel, there are a few things you should know


Last updated: August 2, 2017

This Terms of Use Agreement was last modified on August 2, 2017.

This mobile app (the ASTHMAXCEL App), and the related website are operated by Montefiore Health System, Inc. [555 South Broadway, Tarrytown, NY 10591] (“ASTHMAXCEL”, “We”, “Us” “Our”). It is important to the interests of ASTHMAXCEL and those who use our technology that we have a shared understanding about the nature and use of our apps and related apps, software and services. This Terms of Use is intended to describe the terms governing any use of the App.

PLEASE READ THE TERMS OF THIS AGREEMENT CAREFULLY BEFORE USING THIS APP.

This Terms of Use Agreement (“Agreement”) is a binding legal contract between you (“You” either an individual or a legal entity) and ASTHMAXCEL. This Agreement governs your access to and use of the apps offered by ASTHMAXCEL, including, without limitation, www.asthmaxcel.net and any software, programs, services, tools, app(s), features, databases, materials, content, or information available through it or used in connection with it (collectively, the “App”). By downloading, accessing, or using any part of the App you have accessed, You will be bound by the terms of this Agreement. If You do not agree to the terms of this Agreement, ASTHMAXCEL does not grant You the right to use or access the App.

ASTHMAXCEL may change, add, or remove portions of this Agreement at any time, which shall become effective immediately upon posting. It is your responsibility to review this Agreement and our Privacy Policy prior to each use of the App. By continuing to use the App, you agree to any changes.

1Use of the App
ASTHMAXCEL grants You the right to access and use the App. This right is non-exclusive, non-transferable, and limited by and subject to this Agreement.
2Accessing the App
To access certain features on the App, You may be asked to provide certain information. It is a condition of Your use of the App that all the information You provide is correct, current, and complete. You agree that all information You provide, including but not limited to through the use of any interactive features of the App, is governed by our Privacy Policy .
3IMPORTANT DISCLAIMERS
ASTHMAXCEL is an interactive software program that consists of questions, answers, movies and other content about asthma. The information provided is intended to teach general information about asthma and to help individuals to understand generally certain methods that may be used to manage asthma. The program will generally describe how airways can be affected in asthma, how/when to use different inhalers in different situations, and how to use a spacer. This information may be supported by news and research articles.

ASTHMAXCEL IS INTENDED TO BE USED FOR GENERAL EDUCATIONAL AND INFORMATIONAL PURPOSES ONLY. THE APP SHOULD NOT BE RELIED UPON AS A SUBSTITUTE FOR YOUR OWN OR A DOCTOR’S PROFESSIONAL MEDICAL JUDGMENT OR MEDICAL ADVICE. WE DO NOT PROVIDE SPECIFIC OR INDIVIDUALIZED MEDICAL ADVICE OR MEDICAL OR HEALTH SERVICES, YOUR DOCTOR OR OTHER HEALTH CARE PROVIDERS MAY COMMUNICATE WITH YOU USING THE APP IN CONNECTION WITH THAT DOCTOR’S OR HEALTH CARE PROVIDER’S COMMUNICATIONS TO YOU.  WE WORK INDEPENDENTLY OF DOCTORS AND HEALTH CARE PROVIDERS, WHICH MEANS WE DO NOT DIRECTLY PROVIDE MEDICAL TREATMENT OR MEDICAL CARE.

THE APP IS NOT A MEDICAL DEVICE, IS NOT INTENDED TO SUBSTITUTE FOR ANY MEDICAL DEVICE OR MEDICAL TREATMENT AND HAS NOT BEEN REVIEWED OR APPROVED BY THE FEDERAL FOOD AND DRUG ADMINISTRATION (“FDA”). PLEASE ALSO NOTE THAT INFORMATION COLLECTED AND STORED BY THE APP MAY NOT BE PROTECTED UNDER THE HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT (“HIPAA”).
4Disclaimer of Warranties
Use of the APP is at your sole risk. You assume full responsibility for all risk associated therewith. All information, products, or services contained on or provided through OR BY ASTHMAXCEL VIA this app are provided “as is” and “as available,” without any warranties or conditions. ASTHMAXcel reserveS the right, in ITS sole discretion and without any obligation, to correct any error or omissions in any portion of our app, with or without notice to you.

To the fullest extent permissible under applicable law, ASTHMAXcel disclaimS all representations and warranties, express or implied, statutory or otherwise. These include, but are not limited to, warranties of merchantability, fitness for a particular purpose, title, and non-infringement. You understand that ASTHMAXCEL cannot and doES not guarantee or warrant that files available for downloading from the Internet or the ASTHMAXcel app or the Services will be free of viruses, malware, or other destructive code. ASTHMAXCEL will not be liable for any loss or damage caused by any technologically harmful material that may infect your computer equipment, computer programs, data, or other proprietary material due to your use of the app or on any app linked to it.

Without limiting the foregoing, ASTHMAXcel makeS no warranty as to the security, reliability, AVAILABILITY, accuracy, quality, timeliness, usefulness, adequacy, completeness, or suitability of the APP and information retrieved from IT. ASTHMAXcel assumeS no responsibility for completeness, errors, or omissions in the information, services, or documents which are referenced by or linked to this app.

The foregoing does not affect any warranties THAT cannot be excluded or limited under applicable law.
5Limitation of Liability
In no event shall ASTHMAXcel be liable for any special, punitive, indirect, incidental, or consequential damages, including but not limited to personal injury, wrongful death, loss of goodwill, loss of use, emotional distress, loss of profits, interruption of service, or loss of data, whether in any action in warranty, contract, tort, or any other theory of liability (including, but not limited to negligence or fundamental breach), or otherwise arising out of or in any way connected with the use of, reliance on, or the inability to use, the APP. ASTHMAXCEL shall not be subject to liability for the truth, accuracy, reliability, timeliness, or completeness of the content or any other information conveyed to YOU or for errors, mistakes, or omissions therein or for any delays or interruptions of the data or information stream from whatever cause. You agree that your use of the APP is at your own risk.

To the extent any of the above limitations of liability are restricted by applicable federal, state, or local law, such limitations shall not apply to the extent of such restrictions.

IF YOU ARE NOT SATISFIED WITH THE APP, YOUR SOLE AND EXCLUSIVE REMEDY IS TO TERMINATE YOUR USE OF THE APP. ASTHMAXCEL, or any third parties mentioned on the App shall be liable only to the extent of actual damages incurred by you, not to exceed U.S. $100. Any claims arising in connection with your use of the App, INCLUDING BUT NOT LIMITED TO ANY INFORMATION ON THE APP must be brought within one (1) year of the date of the event giving rise to such action occurred. Remedies under these Terms and Conditions are exclusive and are limited to those expressly provided for in these Terms and Conditions
6Indemnification
You agree to indemnify, defend (subject to ASTHMAXCEL’s right, in its sole discretion, to assume exclusive defense and control), and hold harmless ASTHMAXCEL, its partners, consultants, officers, directors, employees, contractors, and advisors from and against all claims, losses, liability, expenses, damages, judgments, awards, and costs (including reasonable attorney’s fees), related to or arising from (i) any breach of this Agreement, (ii) Your use or misuse of any material or information posted, provided, transmitted, or otherwise made available by You or by ASTHMAXCEL, or (iii) Your access or use of the App or its content.

ASTHMAXCEL reserves the right to assume the exclusive defense and control of any matter that is subject to indemnification under this section. In such case, You agree to cooperate with any reasonable requests assisting ASTHMAXCEL’s defense of such matter.
7Intellectual Property
All intellectual property rights in the ASTHMAXCEL App and any documentation relating to the Services is property of ASTHMAXCEL.

The ASTHMAXCEL name, the ASTHMAXCEL logo and all related names, logos, product and service names, designs, and slogans are trademarks of ASTHMAXCEL. You must not use such marks without the prior written permission of ASTHMAXCEL.

The App and its entire contents, features, and functionality (including but not limited to all information, software, code, HTML, text, displays, images, graphics, artwork, photographs, video and audio, and the design, selection, and arrangement thereof), are owned by ASTHMAXCEL and are protected by United States and international copyright, trademark, patent, trade secret, and other intellectual property or proprietary rights laws.
8Information About You and Your Visits to the App
All information we collect on this App is subject to our Privacy Policy. Please review the Privacy Policy before using the App.
9Limitation on Your Use of the App
You agree not to access or use the App in an unlawful way, for any unlawful purpose, or for any purposes other than its intended purposes. You agree not to (i) post or transmit any information which is libelous, defamatory, obscene, fraudulent, false, or contrary to the ownership or intellectual property rights of any other person, (ii) take any action that imposes an unreasonable load on the App’s infrastructure, (iii) use any device, software, or routine to interfere or attempt to interfere with the proper working of the App or any activity being conducted on the App, including any virus, worm, Trojan horse, or other code which is contaminating or destructive to the files or programs of the App, (iv) attempt to decipher, decompile, disassemble, or reverse engineer any of the software comprising or making up the App, or (v) delete or alter any material posted on the App. ASTHMAXCEL reserves the right to delete any information provided by You that it deems in its sole discretion fraudulent, abusive, defamatory, obscene, or in violation of a copyright, trademark, or other intellectual property or ownership right of any other person.
10Links to Third-Party Sites
The App may contain links to third-party apps that are not under the control of ASTHMAXCEL or its partners. These links are provided solely as a convenience and do not imply an endorsement or recommendation by ASTHMAXCEL. Use of any third-party apps is governed by their own terms of use and privacy policies and ASTHMAXCEL is not responsible for and does not make any representations regarding the content or accuracy of materials on such third-party sites.  Accordingly, ASTHMAXCEL is not responsible for the accuracy, copyright compliance, legality, or legitimacy of material contained in third-party apps that may be accessible via a hyperlink to or from this App or for the hyperlink itself.  ASTHMAXCEL does not make any representations or warranties as to the security of any information You might be requested to give any third party, and You hereby irrevocably waive any claim against ASTHMAXCEL with respect to such sites. You should take precautions when downloading files from all apps to protect Your computer from viruses and other destructive programs. If You decide to access any external sites, You do so at Your own risk. ASTHMAXCEL strongly encourages You to make whatever investigation You feel necessary or appropriate before proceeding with any online or off-line transaction with any of these third parties.
11General
a. Governing Law
This Agreement shall be governed by the laws of the State of New York applicable to contracts made and performed there, without regard to its conflict of laws principles, and where applicable, the laws of the United States. You agree that the Supreme Court of the State of New York sitting in New York county and of the United States District Court of the Southern District of New York, and any appellate court thereof shall be the sole and exclusive venue for any legal action or proceeding between ASTHMAXCEL and You for any purpose concerning this Agreement or the App. You waive any jurisdictional, venue, or inconvenient forum objections to such courts. Any cause of action or claim You may have with respect to the use of the ASTHMAXCEL App or this Agreement must be commenced within one (1) year after it arises, except to the extent such limitation is not enforceable.
b. Entire Agreement
This Agreement and our Privacy Policy constitute the sole and entire agreement between You and ASTHMAXCEL with respect to the App and use of the App and supersede all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to use of the App.
c. Modifications to this Agreement
We may, without advance notice, supplement or change this Agreement at any time. Any changes made to this Agreement will be effective as soon as we post them on the ASTHMAXCEL App. By accessing the App, You agree to be bound by all the terms and conditions of this Agreement as posted on the ASTHMAXCEL App at the time of Your access or use. It is Your sole responsibility to review this Agreement each time You access the App so that You are aware of any changes to the Agreement. If any change to this Agreement is not acceptable to You, Your sole remedy is to cease accessing, browsing, and otherwise using the App.
d. Modifications to the App
We are constantly changing and striving to improve the App. We may update the content pertaining to the App from time to time, but its content is not necessarily complete or up to date. Any of the material pertaining to the App may be out of date at any given time, and we are under no obligation to update such material. We may add or remove functionalities or features, and we may suspend or stop the App altogether.
e. No Assignment
You may not assign or transfer any rights to any other person without ASTHMAXCEL’s prior written consent.
f. Severability
The provisions of this Agreement are severable, and in the event any provision hereof is determined to be invalid or unenforceable, such invalidity or unenforceability shall not affect the validity or enforceability of the remaining provisions, but such provision shall be reformed, if reasonably possible, only to the extent necessary to make it enforceable.
g. Survival
The provisions of this Agreement titled “Disclaimer of Warranties,” “Limitation of Liability,” “Indemnification,” “Intellectual Property,” “Governing Law,” “Entire Agreement,” “No Assignment,” “Waiver,” “Agreement to Arbitrate,” and “Waiver of Jury Trial and Class Actions” shall survive the termination of this Agreement.
h. Third Parties
This Agreement controls the relationship between ASTHMAXCEL and You. A person who is not a party to this Agreement has no right to benefit under or to enforce any term of this Agreement.
i. Waiver
If ASTHMAXCEL does not exercise or enforce any particular right or provision in this Agreement, this does not mean that we are giving up any rights that we may have (such as taking action in the future), and ASTHMAXCEL does not waive that right or provision.

ASTHMAXCEL’s failure to exercise or delay in exercising any right hereunder, or failure to insist upon or enforce strict performance of any provision of this Agreement, shall not be considered waiver thereof, which can only be made by a signed writing. No single waiver shall be considered a continuing or permanent waiver.
j. Waiver of Jury Trial and Class Actions
By entering into THIS AGREEMENT, you and ASTHMAXCEL acknowledge and agree to waive certain rights to litigate disputes in court, to receive a jury trial, or to participate as a plaintiff or as a class member in any claim on a class or consolidated basis or in a representative capacity.
k. Breach
You agree that if You breach of any term of this Agreement, including the foregoing representations, ASTHMAXCEL has the right to suspend or terminate Your use of the App, and You will defend and indemnify ASTHMAXCEL and its affiliates against any liability, costs, or damages arising out of the breach of the representation.
Your Comments and Concerns
The App is operated by Montefiore Health System, Inc. All feedback, comments, requests for technical support, and other communications relating to the App should be directed to: support@asthmaxcel.net
support@asthmaxcel.net

For comments and concerns