ACHQC Foundation Terms & Conditions of Use

PLEASE CAREFULLY REVIEW THE FOLLOWING TERMS AND CONDITIONS OF USE (these “Terms”) BEFORE USING THE WEB SITE THROUGH WHICH YOU LINKED TO THESE TERMS (the “Web Site”). YOUR USE OF THE WEB SITE BEYOND REVIEWING THESE TERMS IS YOUR AGREEMENT TO BE BOUND BY THE THESE TERMS.

[Last updated as of June 26, 2020]

Abdominal Core Health Quality Collaborative Foundation (“ACHQC Foundation”) is the sponsor and owner of the Web Site and uses the Web Site to provide content and features (the "Services") for ACHQC members, medical and healthcare professionals, and the general public. ACHQC Foundation’s mission is to maximize the quality and value of hernia care through collaboration. These Terms apply to your use of the Web Site and Services and may be changed by ACHQC Foundation without notice. Changes to these Terms will be published at https://achqc.org/ or any other URL address that identifies the Web Site.  Your continued use of the Web Site or Services after any such change is posted to the foregoing URL address(es) is your acceptance of and agreement to these Terms as so changed. 

Neither the Web Site nor Services provide medical advice or create a physician-patient relationship with you or anyone else. No statement, graphics, photos, videos, or other information published on the Web Site or as part of the Services is a claim regarding the diagnosis, treatment, cure, or prevention of any disease or condition you may have. Only a licensed and trained physician with whom you have a personal physician-patient relationship can provide medical advice concerning your condition and health.

1. Your Agreement with ACHQC FOUNDATION

Your agreement with ACHQC Foundation (the “Agreement”) will always include these Terms and any terms related to specific web applications or Services which may be reflected in separate electronic or written agreements or in terms posted on web sites associated with a particular web application (“Specific Terms”).  If there is any contradiction between these Terms and any applicable Specific Terms for any particular Service, then the Specific Terms shall take precedence in relation to that Service.

“ACHQC” means the quality improvement collaborative, owned and operated by ACHQC Foundation, which gathers, analyzes, collaboratively shares, and publishes data relating to the surgical intervention and treatment of hernia and abdominal wall and abdominal core diseases in human patients within the United States, utilizing a web-based data collection system, currently found at https://achqc.org;

2. Acceptance for Employer             

When “you” refers to an individual who is accessing and using Services as part of his or her work or employment on behalf of another person or entity ( an “employer”), then you are acting on behalf of your employer in accepting and agreeing to be bound by the Agreement. You may not use the Services on behalf of your employer or as part of your employment if you do not have the authority to bind your employer to the terms of the Agreement.  

3. Acceptance of Agreement

(a) In order to use the Web Site and Services, you must first accept and agree to be bound by the Agreement. You can accept and will be bound to the Agreement by: (i) clicking to accept or agree to these Terms and/or any Specific Terms when that option is made available to you by ACHQC Foundation in the user interface for any Service, (ii) your actually using the Web Site or Services, or (iii) by any other means provided by ACHQC Foundation or by law.

(b) You may not use the Services and may not accept the Agreement if (i) you are not 18 years of age or otherwise of legal age to form a binding contract with ACHQC Foundation, (ii) you intend to use the Services for your employer and do not have the authority to bind your employer to the terms of the Agreement, or (iii) you are a person barred from receiving or using the Services under the laws of the United States or any other country.

4. Privacy and Your Personal Information

If ACHQC Foundation collects or uses your personal identifying information it will collect, use, secure, and and protects your personal information in accordance with its privacy policy as it may be amended from time to time and published on the Web Site (the “Privacy Policy”).  The Privacy Policy is a part of theseTerms. YOU AGREE TO THE USE OF YOUR PERSONAL INFORMATION IN ACCORDANCE WITH ACHQC FOUNDATION’S PRIVACY POLICY.

For those persons participating in the ACHQC or whose personal identifying information consisting of protected health information as defined by HIPAA is collected directly or indirectly through the Web Site as part of the ACHQC, the Privacy Policy with respect to such persons shall be the terms of the separate, written participation agreement with ACHQC Foundation (the “Participation Agreement”) and the obligation of ACHQC Foundation to comply with the requirements of the Health Insurance Portability and Accountability Act of 1996 and the Health Information Technology for Economic and Clinical Health Act (“HITECH”), as amended from time to time, and the rules and regulations issued thereunder, including, without limitation, the Privacy Rules and Security Rules (collectively, “HIPAA”). To the extent a Participation Agreement applies, that agreement shall replace any Privacy Policy and, as Specific Terms, shall control to the extent there is any contradiction between these Terms and the Participation Agreement.

5. Legal Enforcement Matters

You agree that ACHQC Foundation may access, preserve and disclose your account information, other personal information, and Content if required to do so by law or in a good faith belief that such access, preservation, or disclosure is reasonably necessary to: (i) comply with legal process; (ii) enforce the Agreement; (iii) respond to claims that any Content violates the rights of third parties; (iv) respond to your requests for customer service; or (v) protect the rights, property, or personal safety of ACHQC Foundation, its users, or the public.

6. Your Use of the Services

(a) In order to access or use certain Services, you may be required to provide information about yourself (such as identification or contact details) and agree that any information so provided by you to ACHQC Foundation will always be accurate, correct and up to date.  

(b) You agree to use the Services only for purposes that are permitted by (i) the Agreement and (ii) any applicable law, regulation or generally accepted practices or guidelines in the relevant jurisdictions (including any laws regarding the export of data or software to and from the United States or other relevant countries).

(c) You agree not to access (or attempt to access) the Web Site or any of the Services through any automated means or in any other manner other than through the interface that is provided by ACHQC Foundation.

(d) You agree that you will not engage in any activity that interferes with or disrupts the Services (or the servers and networks which are connected to the Services) or anyone’s use of the Services.

(e) You agree that you will only use the Services and Content (as defined below) for personal and/or internally related matters and, unless permitted to do so by Specific Terms with ACHQC Foundation, you will not reproduce, duplicate, copy, sell, trade or resell the Services or Content for any purpose and will not exploit for any commercial purpose any portion or use of or access to the Services of Content.

7. Additional Prohibitions on Use of Services

You agree not to use the Services to: harm any person; to infringe on the rights of any person; to harass or be hateful toward any person; to send unsolicited communications; to impersonate another or to falsely represent yourself, your identity, of the source of your communications; to collect or store personal information about the users of the Web Site or Services; or to violate any law, rule or regulation, or Agreement.

8. Passwords and Account Security

You agree and understand that you are responsible to maintain the confidentiality of passwords associated with any account you use to access the Services and for any activity that occurs through your account.  You agree to notify ACHQC Foundation immediately through the Web Site if you become aware of any unauthorized activity under your account.

9. Provision of the Services

Except as may otherwise be provided by any applicable Specific Terms, you acknowledge and agree that the form and nature of the Services which ACHQC Foundation provides may change, cease or be suspended from time to time without notice to you.

10. Content in the Services

(a) You understand that all information (such as data files, written text, computer software, music, audio files or other sounds, photographs, videos, or other images) which you may have access to as part of, or through your use of, the Services are the sole responsibility of the person from which such content originated. All such information, including any information provided by you, is referred to in these Terms as “Content”.  Except for Content actually posted by ACHQC Foundation, ACHQC Foundation does not control or necessarily monitor the Content submitted, displayed or posted through the Services and, as such, does not guarantee the accuracy, integrity or quality of any Content not actually posted by ACHQC Foundation.

(b) You should be aware that Content presented to you as part of the Services may be protected by intellectual property rights which are owned by others, including, without limitation, by persons who provide that Content to ACHQC Foundation (or by other persons or companies on their behalf) or by the person submitting, displaying or posting the Content on the Services. You may not modify, rent, lease, loan, sell or distribute Content or create derivative works based on any Content (either in whole or in part) unless you have been specifically told that you may do so by ACHQC Foundation or by the owners of that Content, in a separate agreement.

(c) ACHQC Foundation does not generally censor or review Content for materials some may consider objectionable, although ACHQC Foundation reserves the right (but shall have no obligation) to pre-screen, review, flag, filter, modify, refuse or remove any or all Content from any Service.

(d) You understand that by using the Services you may be exposed to Content that you may find offensive, indecent or objectionable and that, in this respect, you use the Services at your own risk.

(e) You agree that you are solely responsible for (and that ACHQC Foundation has no responsibility to you or to any third party for) any Content that you create, transmit or display while using the Services.

11. Hyperlinks

The Services may include hyperlinks to third party web sites or content over which ACHQC FOUNDATION has no control. You acknowledge and agree that ACHQC Foundation is not responsible for your use of such hyperlinks, for the content on or availability of any such external web sites or resources, and for any goods or services acquired through such web sites or external resources. ACHQC Foundation does not endorse any advertising, opinions, products, statements, or other materials on or available from such web sites or resources.

12. Proprietary rights

(a) You acknowledge and agree that ACHQC Foundation (or ACHQC Foundation’s licensors) own all legal right, title and interest in and to the Services, including any intellectual property rights which subsist in the Services (whether those rights happen to be registered or not, and wherever in the world those rights may exist).

(b) Nothing in these Terms gives you a right to use any of ACHQC Foundation’s trade names, trademarks, service marks, logos, domain names, and other distinctive brand features. 

(c) Except for the limited license set forth in the Section 14 of these Terms and for the terms and rights granted by any Specific Terms, ACHQC Foundation acknowledges and agrees that it obtains no right, title or interest from you (or your licensors) under these Terms in or to any Content that you submit, post, transmit or display on, or through, the Services, including any intellectual property rights which subsist in that Content (whether those rights happen to be registered or not, and wherever in the world those rights may exist). Unless you have agreed otherwise in writing with ACHQC Foundation, you agree that you are responsible for protecting and enforcing those rights and that ACHQC Foundation has no obligation to do so on your behalf.

(d) You agree that you shall not remove, obscure, or alter any proprietary rights notices (including copyright and trade mark notices) which may be affixed to or contained within the Services or any Content.

13. License from ACHQC Foundation

(a) Except as otherwise granted, restricted, or limited by any Specific Terms, ACHQC Foundation grants you a personal, worldwide, limited, royalty-free, non-assignable and non-exclusive license to use the Services, including the software that is part of the Services (referred to as the “Software”). This license is for the sole purpose of enabling you to use and enjoy the benefit of the Services as provided by ACHQC Foundation in the manner permitted by the Agreement.

(b) You may not (and you may not permit anyone else to) copy, modify, create a derivative work of, reverse engineer, decompile or otherwise attempt to extract the source code of the Software or any part thereof or any other aspect of any of the Services, unless this is expressly permitted or required by law, or unless ACHQC Foundation has given you specific written permission to do so.

(c) Unless ACHQC Foundation has given you specific written permission to do so, you may not assign (or grant a sub-license of) your rights to use any of the Services, grant a security interest in or over your rights to use the Services, or otherwise transfer any part of your rights to use the Services.

(d) You have only the rights to use the Services expressly granted to you by the Agreement including any Specific Terms, and all other rights in the Services are reserved to ACHQC Foundation.

14. Content license from you

Except for any grants or other provisions or agreements made by any Specific Terms. you retain copyright and any other rights you already hold in Content which you submit, post or display on or through, the Services. By submitting, posting or displaying Content on or through the Services, you represent and warrant to ACHQC Foundation that you have the right to submit, post, or display (“upload”) such Content and that the Content does not infringe upon or violate the rights of any person and, subject to any restrictions or limitations imposed by any Specific Terms, you give ACHQC Foundation a perpetual, irrevocable, worldwide, royalty-free, and non-exclusive license to reproduce, adapt, modify, translate, publish, publicly perform, publicly display, and distribute (including distribution over public networks) any Content which you submit, post, or display on or through the Services for the sole purpose of enabling ACHQC Foundation to display, distribute, promote, and provide the Services. You agree that this license includes a right for ACHQC Foundation to make such Content available to any successor to itself or to its business which includes the Service through which such Content was submitted, displayed or posted.

15. Indemnity

You agree to indemnify, defend, and hold ACHQC Foundation and its subsidiaries, affiliates, directors, officers, agents, employees, partners and licensors harmless from and against all losses, expenses, damages, costs (including, but not limited to, direct, incidental, consequential, exemplary, punitive, and direct damages), and reasonable attorneys' fees, resulting from or arising out of any of the following: Content you submit, post, transmit, modify, or otherwise make available through the Services; your use of the Web Site or Services: your connection to the Services; your inability to use any Services; your violation of the Agreement; or your violation of any rights of another.

16. DISCLAIMER OF WARRANTIES

TO THE EXTENT PERMITED BY LAW:

(A) ACHQC FOUNDATION MAKES NO REPRESENTATION, WARRANTY, OR GUARANTY CONCERNING THE WEB SITE, SERVICES, OR ANY CONTENT. 

(B) THE WEB SITE, SERVICES, AND ALL CONTENT ARE PROVIDED TO YOU STRICTLY ON AN "AS IS" AND “AS AVAILABLE” BASIS FOR YOUR USE AT YOUR OWN RISK.  ANY CONTENT OR OTHER MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE WEB SITE OR SERVICES IS DONE AT YOUR OWN DISCRETION AND RISK.  YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR OTHER DEVICE OR LOSS OR CORRUPTION OF DATA THAT RESULTS FROM THE DOWNLOADING OF ANY SUCH MATERIAL.

(C) ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED BY ACHQC FOUNDATION.  NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM ACHQC FOUNDATION OR THROUGH OR FROM THE WEB SITE, SERVICES, OR CONTENT SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED AS PART OF THE AGREEMENT.

17. LIMITATION OF LIABILITY

TO THE MAXIMUM EXTENT PERMITTED BY LAW:

(A) IN NO EVENT SHALL ACHQC FOUNDATION’S AGGREGATE LIABILITY TO YOU WITH RESPECT TO THE WEB SITE OR SERVICES, INCLUDING, BUT NOT LIMITED TO, ANY CONTENT, EXCEED THE AMOUNT ACTUALLY PAID BY YOU TO ACHQC FOUNDATION FOR USE OF THE WEB SITE, SERVICES, OR CONTENT IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM OR $100, WHICHEVER IS GREATER.

(B) IN NO EVENT SHALL ACHQC FOUNDATION BE LIABLE TO YOU FOR ANY LOSS OR DAMAGE AS A RESULT OF: (I)  THE DELETION OF, CORRUPTION OF, OR FAILURE TO STORE, ANY CONTENT AND OTHER DATA MAINTAINED OR TRANSMITTED BY OR THROUGH YOUR USE OF THE WEB SITE OR SERVICES; (II) YOUR FAILURE TO PROVIDE ACHQC FOUNDATION WITH ACCURATE ACCOUNT INFORMATION; OR (III) YOUR FAILURE TO KEEP ANY OF YOUR PASSWORDS OR ACCOUNT DETAILS SECURE AND CONFIDENTIAL;

(C) IN NO EVENT SHALL ACHQC FOUNDATION BE LIABLE TO ANYONE: (i) FOR ANY PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL, OR OTHER INDIRECT DAMAGES OF ANY TYPE OR KIND OR (ii) FOR ANY LOSS OR ANY DAMAGES ARISING FROM THE LOSS OF ANY OF THE FOLLOWING: DATA, REVENUE, PROFITS, GOODWILL, USE OR OTHER ECONOMIC ADVANTAGE, WHICH, EITHER UNDER CLAUSE (i) or (ii), ABOVE, ARISES OUT OF OR IS IN ANY WAY CONNECTED WITH THE WEB SITE OR SERVICES, INCLUDING, BUT NOT LIMITED TO, YOUR USE OR INABILITY TO USE THE SERVICES OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICES, EVEN IF ACHQC FOUNDATION HAS BEEN PREVIOUSLY ADVISED OF OR WAS OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES.

18. Termination of Relationship; Services

  (a) Either party may terminate their relationship with the other party under the Agreement at any time for any reason, except to the extent notice or a reason is required by any applicable Specific Terms.

(b) Upon the parties’ relationship being terminated, the terms of the Agreement shall terminate, except the provisions of the Agreement shall survive and apply to your use of the Services prior to termination.  Any continued or renewed use of the Services after such termination will be subject to all of these Terms, including as they may have changed since the termination.              

(c) Nothing in this Section shall affect ACHQC Foundation’s rights under Section 9 of these Terms regarding provision of Services.

19. Notice and Procedure for Making Claims of Copyright or Intellectual Property Infringement

ACHQC Foundation respects the intellectual property of others and asks its users to do the same. ACHQC Foundation may, in appropriate circumstances and at its discretion, disable and/or terminate the accounts of users who may be repeat infringers. If you believe that your work which appears in any Content has been copied in a way that constitutes copyright infringement, or your intellectual property rights have been otherwise violated, please provide ACHQC Foundation’s Copyright Agent the following information:

(i) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;

(ii) a description of the copyrighted work or other intellectual property that you claim has been infringed;

(iii) a description of where the material that you claim is infringing is located on a ACHQC FOUNDATION web the site;

(iv) your name, address, telephone number, and email address;

(v) a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and

(vi) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner's behalf.

 ACHQC Foundation’s Copyright Agent for notice of claims of copyright or other intellectual property infringement can be reached as follows:

By mail:

Howard M. Haenel, Copyright Agent

Antonio Bates Bernard Professional Corporation

3200 Cherry Creek South Drive, Suite 380

Denver, CO 80209

By Telephone:     (303) 733-3500

By fax:                 (303) 733-3555

By email:             hhaenel@abblaw.com (reference ACHQC Foundation Copyright Agent in subject line)

 

20. General Provisions

(a) Any suggestions, ideas, feedback, recommendations, or other information provided by you to ACHQC Foundation relating to the Services ("Submissions") are not deemed Content and by providing such Submissions to ACHQC Foundation you assign all of your right, title and interest, including all related intellectual property rights, therein to ACHQC Foundation free of charge.  ACHQC Foundation may use such Submissions as it deems appropriate in its sole discretion.

(b) The Agreement, including any Specific Terms, constitutes the entire agreement between you and ACHQC Foundation and governs your use of the Web Site and Services, superseding any prior version of these Terms or the Agreement between you and ACHQC Foundation, with respect to the Web Site or Services.

(c) The failure of ACHQC Foundation to exercise or enforce any right or provision of the Agreement shall not constitute a waiver of such right or provision. If any provision of the Agreement is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the other provisions of the Agreement shall remain in full force and effect.

(d) You and ACHQC Foundation each agree that the Agreement and the relationship between the parties shall be governed by the laws of the State of Colorado without regard to its conflict of law provisions and that any and all claims, causes of action or disputes (regardless of theory) arising out of or relating to the Agreement, or the relationship between you and ACHQC Foundation, shall be brought exclusively in the state and federal courts located in Denver, Colorado. You and ACHQC Foundation further agree to submit to the personal jurisdiction of the state and federal courts located within Denver, Colorado, and agree to waive any and all objections to the exercise of jurisdiction over the parties by such courts and to venue in such courts.  Notwithstanding the foregoing, you agree that ACHQC Foundation shall still be allowed to apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction.

(e) The Agreement and your rights to use the Web Site, Services and Content are not transferrable by you, even by operation of law, without ACHQC Foundation’s express, written consent.   To the extent ACHQC Foundation assigns its rights or delegates its duties under the Agreement, ACHQC Foundation shall be relieved of any obligation or liability first arising after such assignment and delegation.  

(f) You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Web Site, Services, Content or the Agreement must be filed within one (1) year after such claim or cause of action arose or be forever barred.

©2020 Abdominal Core Health Quality Collaborative Foundation. All rights reserved.