MyCardioSignal – Terms of Use
The Services are operated and managed by CardioSignal, Inc., a Delaware company (“Service Provider”). These Terms of Use (the “Agreement”) are applied to the use of the Services (defined below) by the User (defined below). This Agreement is supplied electronically for the registration of access to and use of the Services and our website. A paper format is available on request at support.us@cardiosignal.com. This Agreement describes the terms and conditions under which users (“Users” or “you”) can use the Services (as defined hereinafter). If you have any questions about the Services or this Agreement, please contact us via support.us@cardiosignal.com.
BY USING THE SERVICES YOU ARE ENTERING INTO THIS AGREEMENT AND YOU ACKNOWLEDGE THAT YOU UNDERSTAND THIS AGREEMENT AND AGREE TO ALL OF ITS TERMS AND CONDITIONS. IF YOU DO NOT AGREE TO BE BOUND BY THIS AGREEMENT AND ITS TERMS AND CONDITIONS, YOU MAY NOT USE OR ACCESS THE SERVICES.
Intended use and indications for use
MyCardioSignal is cloud-based software with a smartphone application for transferring and receiving data, and a cloud system to analyze the data. MyCardioSignal is intended to monitor heart rate and detect patterns of potential concern. The Services and results provided by the Services are not medical diagnoses or medical advice. To obtain accurate results from use of the Services, Service Provider recommends that you take regular measurements at least once per day.
Contraindications and restrictions of use
A turned-on phone next to a pacemaker implant may cause electromagnetic interference (EMI), which can result in the malfunction of the pacemaker. Cardiac pacemakers can also falsify the result of the rhythm analysis. For these reasons, cardiac pacemaker wearers should not use the MyCardioSignal App.
A positive result indicating patterns of potential concern must be verified by a physician. The Services are intended for screening purposes and are not intended as a diagnostic device. A diagnosis can only be made by your physician and according to medical guidelines, e.g. with 12-lead electrocardiogram recording.
This Agreement represents the terms and conditions under which Users are allowed to use the Services. This Agreement describes the Fees which may be charged to you, the cases in which Service Provider may be held liable, and how and under what conditions you are allowed to use the Services. We advise you to return to this page on a regular basis to keep up to date of the latest version of the present Terms of Use.
PLEASE NOTE THAT YOU ARE NOT OBLIGED TO INSTALL THE MYCARDIOSIGNAL APP, AND YOUR REFUSAL TO INSTALL THE MYCARDIOSIGNAL APP DOES NOT HAVE ANY IMPACT ON WHETHER YOUR PHYSICIAN IS ABLE TO PROVIDE YOU CARE. SERVICE PROVIDER EMPHASIZES THAT YOUR USER DATA IS YOUR PRIVATE DATA. FOR QUALITY CONTROL AND FOR PRODUCT AND SERVICE DEVELOPMENT, SERVICE PROVIDER MAY ACCESS AND ANALYSE YOUR USER DATA. YOUR PHYSICIAN DOES NOT HAVE ACCESS TO YOUR USER DATA UNLESS YOU HAVE SEPARATELY AGREED TO THIS WITH YOUR PHYSICIAN, AND YOUR PHYSICIAN HAS PROVIDED SERVICE PROVIDER WITH CONFIRMATION OF SUCH SEPARATE AGREEMENT FROM YOU. THEREFORE, AS BETWEEN YOU AND SERVICE PROVIDER, IT IS SOLELY YOUR RESPONSIBILITY TO SEEK MEDICAL ATTENTION FOR ANY DETECTED CARDIOVASCULAR FUNCTION-RELATED IRREGULARITIES. IF YOU THINK YOU MAY HAVE A MEDICAL EMERGENCY, PLEASE CONTACT YOUR PHYSICIAN OR EMERGENCY SERVICES IMMEDIATELY.
The Services are operated and managed by CardioSignal, Inc., and its affiliates, including:
Precordior Oy, a limited company registered in Finland at the address Aurakatu 6, 20100, Turku, with the company registration number 2800927-7.
For customers in the Republic of India, the Manufacturer Representative is GenePath Diagnostics India Private Limited, a company registered at Safire Park Galleria, Pune-Mumbai Road, Wakdewadi, Shivaji Nagar, Pune 411005, Maharashtra, India.
For customers in the United Kingdom, the Responsible Person is Psephos Limited, Sussex Innovation Centre, Science Park Square, Falmer, Brighton, East Sussex, BN1 9SB, United Kingdom. AR@omcmedical.com
Precordior Oy, GenePath Diagnostics India Private Limited, Psephos Ltd. and OMCS Medical are collectively the “Service Provider Affiliates.”
1.1. For Use Without a Physician. Service Provider provides MyCardioSignal, a service which can monitor heart rate and detect patterns of potential concern. MyCardioSignal consists of the MyCardioSignal Mobile Application (“App”) and CardioSignal Cloud Service (“Platform”), both referred to collectively as the “Application”. The Application is intended for personal use, unless specified in a separate agreement. Unless specified in a separate agreement, all analyses are performed in the CardioSignal Platform, and results are sent back to the MyCardioSignal App. Therefore, the MyCardioSignal App requires an Internet connection to function with the Platform. All rhythm analyses and recordings are stored in the Platform. For Application quality assurance, we retain the option to store your data even if you have deleted it from your personal Account. All collected data may be used for quality analyses and algorithm optimization development. To gain scientific recognition, some analyses generated from your data may be published. All published data is fully anonymized, and recognition of individual Users from these published results is not possible.
1.2. For Use With a Physician. If you have authorized your physician to receive data collected through your MyCardioSignal App, your physician has provided Service Provider with confirmation of such agreement from you, and your physician has entered into an agreement to receive services from Service Provider, then Service Provider may share your data with your physician for the purpose of enabling your physician to provide you care. In such cases, Service Provider may provide your physician with: (a) an online services portal, through which your physicians and other healthcare service providers (collectively “Physicians”) can review your cardiovascular health-related data, assess disease risk detection, and review other data derived from data collected with the MyCardioSignal App, (b) software services accessible through the CardioSignal Portal for your Physician to authorize and share with you access to the “MyCardioSignal”, which is used for capturing your cardiovascular function-related data, (c) means for your Physician to analyze your cardiovascular function-related data through Service Provider’s proprietary software (the “CardioSignal Cloud Service”) to develop cardiac health, disease risk detection and monitoring data for Physicians to review through the CardioSignal Portal.
1.3. The MyCardioSignal App is available in Apple AppStore and Google Play for both iOS and Android operating systems. If the application store does not allow you to download the application, it may be because the operating system of your phone is too old, or your phone is missing the required motion sensors. The MyCardioSignal App is downloadable free of charge. Service Provider charges a fee for certain cardiovascular function-related detection and analysis services, e.g., detection of patterns of potential concern. As noted above, the MyCardioSignal App can be used with collaboration with a Third Party (e.g., your Physician), subject to your having consented to Service Provider’s sharing of your data with such Third Party. In these situations, please follow the instructions provided to you by this Third Party. Service Provider provides Instructions for Use in the App and on its website at https://us.cardiosignal.com.
The recordings via the MyCardioSignal App are performed by placing the smartphone on your chest on top of your chest bone (sternum). The MyCardioSignal App reads data from an accelerometer and a gyroscope, which react to the chest movements caused by your heart beats.
Please note that you as the User are solely responsible to act based on the results the Services provide. Your Physician and/or anyone at Service Provider cannot be held accountable to react to the results on your behalf. We advise you to seek medical attention without delay in case of a positive recording suggesting patterns of potential concern, and also in cases where the Services may not show such patterns of potential concern but you are not feeling well.
“Account” means your registered account that you have created through the registration process from an official registration channel;
“Service Provider” means CardioSignal, Inc. and the Service Provider Affiliates.
“MyCardioSignal” means the MyCardioSignal App and the CardioSignal Cloud Service.
“Claim” means any dispute, controversy or claim arising between you and Service Provider.
“Delivery Date” means the date on which you obtained an Account;
“Documentation” means the documents made available to the User by Service Provider with regard to the use of the Application;
“Fees” means the amount to be paid by the User (if required) to Service Provider.
“Intellectual Property Rights” means any and all now known or hereafter existing (a) rights associated with works of authorship, including copyrights, mask work rights, and moral rights; (b) trademark or service mark rights; (c) trade secret rights, know-how; (d) patents, patent rights, and intellectual property rights; (e) layout design rights, design rights; (f) trade and business names, domain names, database rights, rental rights and any other industrial or intellectual proprietary rights or similar right (whether registered or unregistered); (g) all registrations, applications for registration, renewals, extensions, divisions, improvements or reissues relating to any of these rights and the right to apply for, maintain and enforce any of the preceding items, in each case in any jurisdiction throughout the world;
“Services” means collectively, MyCardioSignal, and all related functions, processes, features, deliverables, information, know-how, and processes performed by the foregoing and developed by Service Provider;
“Results” means, other than the creation and use of Derived Data, the results of analysis by the Services based upon User Data transmitted to, collected by, or captured through MyCardioSignal;
“Third Parties” means any natural or legal person or entity other than Service Provider;
“Website” means the websites available at http://us.cardiosignal.com .
3.1. By using the Services, you accept the terms and conditions of this Agreement. If you disagree with any particular provision in this Agreement, you are not permitted to use the Services in any manner, shape or form.
By accepting this Agreement and after the User has completed the registration procedure, you expressly confirm that you will comply with the intended uses of the Services as set out in this Agreement.
3.2. Where the Services or the Website draws on services
from Third Parties, the terms and conditions of service delivery of said Third
Parties may apply. By using such services from a Third Party, you accept the
applicable terms and conditions. Service Provider declines all and any
liability for the substance of the terms and conditions of the Third Parties.
With respect to the processing of your personal data by Third Parties, please
see section 8 of our Privacy Policy
Please note that our Services are not intended for and are
not authorized to be used by individuals under 18 years of age.
4.1. You are permitted to use the Services only by using your own Account.
The installation of MyCardioSignal is free of charge, however unlocking some
features of MyCardioSignal (e.g., certain cardiovascular health-related
measurements and analyses) requires you to subscribe or activate such
features.
4.2. In order to use all functionalities of the Services, your mobile device needs to access Wi-Fi or mobile Internet, and your mobile device must have motion sensors. Your mobile device must have an operating system version which is compatible with the MyCardioSignal App. Access to Wi-Fi or a mobile Internet connection is your own responsibility. Please make sure your mobile device complies with the minimum operating system and possible hardware requirements as specified on the Apple AppStore and Google Play stores’ application information page.
If your mobile device does not meet these minimum system requirements, we are unable to guarantee that the MyCardioSignal App will work properly. Service Provider declines all and any liability for loss or damage arising from or relating to your failure to comply with the aforesaid requirements.
4.3. You are co-responsible to uphold the confidentiality
and security of the login data of your Account, such as your pin code and
password (see also section 7 of the Privacy Policy).
You are fully responsible for all activities carried on by you under your
individual Account.
You accept to immediately notify Service Provider of any unauthorized use of your Account or of any other security breaches at support.us@cardiosignal.com. Service Provider declines all and any liability for loss or damage arising from or relating to your failure to comply with the aforesaid requirements.
4.4. Service Provider may, in its sole discretion, provide you with updates to the Services. During your agreement term, all updates, if any, will be provided to you free of charge. For the avoidance of doubt, Service Provider is not obligated to provide any updates to the MyCardioSignal Documentation or Website.
5.1 License by Service Provider. By registering an Account with MyCardioSignal, Service Provider grants you a limited, non-exclusive, personal, restricted, non-sub-licensable and non-transferable license to use the MyCardioSignal App, and/or the Documentation in accordance with this Agreement and such Documentation (“User License”). You are not allowed to use MyCardioSignal and/or the Documentation for any commercial purposes or to use MyCardioSignal and/or Documentation, or a component of the foregoing in a manner not authorized by Service Provider. You shall use MyCardioSignal and/or the Documentation solely for the purpose set out in this Agreement and the Documentation and in full compliance with (i) this Agreement; (ii) any additional instructions or policies issued by Service Provider, including but not limited to those posted within MyCardioSignal or on the Website; (iii) any applicable laws, rules or regulations and (iv) the Documentation.
5.2 Restrictions. You agree to use the Services only for their intended use as set forth in this Agreement. Within the limits of the applicable law, you are not permitted to (i) make MyCardioSignal and/or Documentation available or to sell or rent MyCardioSignal and/or Documentation to any Third Parties (however, you have the right to show results produced from MyCardioSignal to your healthcare professionals); (ii) adapt, alter, translate or modify in any manner MyCardioSignal and/or Documentation; (iii) sublicense, lease, rent, loan, distribute, or otherwise transfer MyCardioSignal and/or Documentation to any Third Party; (iv) decompile, reverse engineer, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or the underlying ideas, algorithms, structure or organization) of MyCardioSignal, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation and you have provided Service Provider with written notification by email to support.us@cardiosignal.com of such process prior to the initiation of such activities; (v) use or copy the MyCardioSignal and/or Documentation except as expressly allowed under this Section 5; (vi) gain unauthorized access to accounts of other users or the IT equipment or structure of Service Provider to provide the Services or use the Services to conduct or promote any illegal activities; (vii) use the Services to generate unsolicited email advertisements or spam; (viii) impersonate any person or entity, or otherwise misrepresent your affiliation with a person or entity; (ix) use any high volume automatic, electronic or manual process to access, search or harvest information from the Services (including, without limitation, robots, spiders or scripts); (x) alter, remove, or obscure any copyright notice, digital watermarks, proprietary legends or other notice included in the Services; (xi) intentionally distribute any worms, Trojan horses, corrupted files, or other items of a destructive or deceptive nature or use the Services for any unlawful, invasive, infringing, defamatory or fraudulent purpose; or (xii) remove or in any manner circumvent any technical or other protective measures in the Services.
Except as expressly set forth herein, no express or implied license or right of any kind is granted to you regarding the Services or any part thereof, including but not limited to any right to obtain possession of any source code, data or other technical material relating to the Application.
5.3 License from User. By uploading, collecting, capturing, creating or otherwise providing information, data, or images on or through MyCardioSignal (“User Data”), and without prejudice to the provisions of our Privacy Policy, you grant Service Provider a non-exclusive, royalty-free, worldwide, sub-licensable, transferable license to use, copy, store, modify, transmit and display User Content to the extent necessary to provide, maintain and develop the Services and to create Derived Data. Service Provider reserves the right, but is not obliged, to review and remove any User Data which is deemed to be in violation of the provisions of the Agreement or otherwise inappropriate, any rights of Third Parties or any applicable legislation or regulation.
5.4 Derived Data. Notwithstanding anything to the contrary herein, Service Provider may use, analyze, and manipulate User Data and Results to create aggregated or anonymized statistics, models, algorithms, or datasets that do not identify you, any User, or any individual (“Derived Data”). As between Service Provider and you, and notwithstanding anything to the contrary herein, all right, title, and interest in Derived Data, and all intellectual property rights therein, belong to and are solely owned by Service Provider. You acknowledge that Service Provider may compile Derived Data based on User Data and Results input into the Services. You agree that Service Provider may (i) make Derived Data publicly available in compliance with applicable law, and (ii) use Derived Data to the extent and in any manner permitted under applicable law.
As between the User and Service Provider, all rights, title, and ownership in and related to the Services and Derived Data, including without limitation to any designs, inventions, software, materials, research, reports and documents, preparatory or other material and all worldwide Intellectual Property Rights pertaining thereto, are the exclusive property of Service Provider and/or its licensors.
All rights in and to the Services and/or Documentation not expressly granted to the User in this Agreement are reserved by Service Provider and its licensors. Except as expressly set forth herein, no express or implied license or right of any kind is granted to the User regarding the Services and/or Documentation or any part thereof, including any right to obtain possession of any source code, data or other technical material related to the Application.
Suspension for Violation. If Service Provider becomes aware of or suspects, in its sole discretion, any violation by you of this Agreement or any other instructions, guidelines or policies (including but not limited to the Privacy Policy) issued by Service Provider, then Service Provider may suspend or limit your access to the Services. The duration of any suspension by Service Provider will be until you have cured the violation which caused such suspension or limitation and otherwise at Service Provider’s sole discretion.
In case you need technical support, you can contact Service Provider at support.us@cardiosignal.com. Service Provider will make commercially reasonable efforts to quickly respond to any inquiries of Users.
Service Provider is concerned with the protection of your privacy and engages itself to comply with the applicable laws on privacy protection in relation to the processing of personal data as well as with its Privacy Policy. Our Privacy Policy regarding the MyCardioSignal App is incorporated by reference in this Agreement and complies with the General Data Privacy Regulation. You consent to personal data being collected, used, and processed in accordance with our Privacy Policy. Each Party shall comply with the applicable legislation concerning collecting, processing, and transferring personal data.
Our Privacy Policy has more details on how we obtain and process your personal data. Our Privacy Policy is included as part of the present Agreement for reference purposes.
In consideration for the Services, before you pay any Fees, you will have the opportunity to review and accept the Fees that will be charged. All Fees are non-refundable, to the fullest extent permitted under applicable law.
If you pay any Fees with a credit card, the biller may seek pre-authorization of your credit card account prior to your purchase to verify that the credit card is valid and has the necessary funds or credit available to cover your purchase.
11.1 BY USING THE MYCARDIOSIGNAL APPLICATION, THE USER ACKNOWLEDGES AND AGREES THAT THE DETECTION OF PATTERNS OF POTENTIAL CONCERN BY SERVICE PROVIDER OR THE SERVICES IS CURRENTLY NOT CONSIDERED A DIAGNOSTIC METHOD ACCORDING TO MEDICAL PROFESSIONAL GUIDELINES. THE ACCURACY RATE OF DETECTING SUCH PATTERNS OF POTENTIAL CONCERN WILL VARY AND CANNOT BE CONSIDERED AN ABSOLUTE MEASURE, THUS REQUIRING THE SOLE DISCRETION OF THE USER. THEREFORE, SERVICE PROVIDER HOLDS NO LIABILITY FOR ANY MEDICAL CONSEQUENCES OCCURRING TO USERS DURING THEIR AGREEMENT TERM. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, SERVICE PROVIDER’S LIABILITY ARISING OUT OF OR IN CONNECTION WITH THE SERVICES UNDER THIS AGREEMENT WHETHER IN CONTRACT, WARRANTY, TORT OR OTHERWISE, SHALL NOT EXCEED THE GREATER OF (A) THE AMOUNT PAID OUT UNDER SERVICE PROVIDER’S COMPULSORY INSURANCE POLICY AT THE DATE ON WHICH THE APPLICABLE LIABILITY CLAIM ARISES, IF ANY, OR (2) THE FEES PAID TO SERVICE PROVIDER BY THE USER IN THE TWELVE (12) MONTH PERIOD PRECEDING SUCH CLAIM. NOTHING IN THIS AGREEMENT SHALL LIMIT OR EXCLUDE SERVICE PROVIDER’S LIABILITY WHERE SUCH LIMITATION OR EXCLUSION WOULD BE PROHIBITED BY APPLICABLE LAW, INCLUDING WHERE CAUSED BY SERVICE PROVIDER'S (I) GROSS NEGLIGENCE; (II) WILLFUL MISCONDUCT; (III) FRAUD OR PERSONAL INJURY.
11.2 TO THE EXTENT LEGALLY PERMITTED UNDER APPLICABLE LAW, SERVICE PROVIDER SHALL NOT BE LIABLE TO THE USER OR ANY THIRD PARTY FOR ANY SPECIAL, INDIRECT, EXEMPLARY, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY NATURE, INCLUDING BUT NOT LIMITED TO DAMAGES OR COSTS DUE TO LOSS OF PROFITS, DATA, REVENUE, GOODWILL, PRODUCTION OF USE, PROCUREMENT OF SUBSTITUTE SERVICES, OR PROPERTY DAMAGE ARISING OUT OF OR IN CONNECTION WITH THE SERVICES UNDER THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO ANY MISCALCULATIONS, OR THE USE, MISUSE, OR INABILITY TO USE THE SERVICES, REGARDLESS OF THE CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, EVEN IF SERVICE PROVIDER HAS BEEN NOTIFIED OF THE LIKELIHOOD OF SUCH DAMAGES. THE LIMITATION IN THIS SECTION 11.2 SHALL NOT APPLY TO THE OBLIGATIONS OF SERVICE PROVIDER UNDER SECTION 13 (“INDEMNIFICATION”).
11.3 YOU AGREE THAT SERVICE PROVIDER CAN ONLY BE HELD LIABLE AS PER THE TERMS OF THIS SECTION 11 TO THE EXTENT DAMAGES SUFFERED BY YOU ARE DIRECTLY ATTRIBUTABLE TO SERVICE PROVIDER. FOR THE AVOIDANCE OF DOUBT, SERVICE PROVIDER SHALL NOT BE LIABLE FOR ANY CLAIMS RESULTING FROM (I) YOUR UNAUTHORIZED USE OF THE SERVICES, (II) YOUR OR ANY THIRD PARTY’S MODIFICATION OF (ANY PARTS) OF THE SERVICES, (III) YOUR FAILURE TO USE THE MOST RECENT VERSION OF THE MYCARDIOSIGNAL APP OR SERVICES MADE AVAILABLE TO YOU OR YOUR FAILURE TO INTEGRATE OR INSTALL ANY CORRECTIONS TO THE MYCARDIOSIGNAL OR SERVICES ISSUED BY SERVICE PROVIDER, OR (IV) YOUR USE OF THE SERVICES IN COMBINATION WITH ANY NON- SERVICE PROVIDER PRODUCTS OR SERVICES, OR (V) NOT COMPLYING WITH THE TERMS OF THIS AGREEMENT. THE EXCLUSIONS AND LIMITATIONS OF LIABILITY UNDER THIS SECTION 11 SHALL OPERATE TO THE BENEFIT OF SERVICE PROVIDER’S AFFILIATES AND SUBCONTRACTORS TO THE SAME EXTENT SUCH PROVISIONS OPERATE TO THE BENEFIT OF SERVICE PROVIDER.
12.1 By Service Provider. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 12 AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES AND THE RESULTS ARE PROVIDED “AS IS”, AND SERVICE PROVIDER MAKES NO (AND HEREBY DISCLAIMS ALL) OTHER WARRANTIES, COVENANTS OR REPRESENTATIONS, OR CONDITIONS, WHETHER WRITTEN, ORAL, EXPRESS OR IMPLIED INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF SATISFACTORY QUALITY, COURSE OF DEALING, TRADE USAGE OR PRACTICE, MERCHANTABILITY, SUITABILITY, AVAILABILITY, TITLE, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR USE OR PURPOSE, WITH RESPECT TO THE USE, MISUSE, OR INABILITY TO USE THE SERVICES, INCLUDING THE RESULTS, (IN WHOLE OR IN PART) OR ANY OTHER PRODUCTS OR SERVICES PROVIDED TO THE USER BY SERVICE PROVIDER. SERVICE PROVIDER DOES NOT WARRANT THAT (i) ALL ERRORS CAN BE CORRECTED, OR THAT ACCESS TO OR OPERATION OF THE SERVICES SHALL BE UNINTERRUPTED, SECURE, OR ERROR-FREE, AND (ii) THE INFORMATION, INCLUDING BUT NOT LIMITED TO THE RESULTS, AVAILABLE ON OR TRANSMITTED BY THE APPLICATION IS TRUE, COMPLETE OR ACCURATE. YOU SPECIFICALLY ACKNOWLEDGE AND AGREE THAT SERVICE PROVIDER CANNOT BE HELD LIABLE FOR ANY HEALTHCARE OR RELATED DECISIONS MADE BY YOU OR YOUR PHYSICIAN BASED UPON THE RESULTS TRANSMITTED OR DISPLAYED BY OR ON THE APPLICATION, WHETHER SUCH DATA IS ACCURATE OR INACCURATE. YOU ACKNOWLEDGE AND AGREE THAT YOUR PHYSICIAN, AND NOT SERVICE PROVIDER, IS SOLELY RESPONSIBLE FOR THE INTERPRETATION OF THE RESULTS OR OTHER HEALTHCARE INFORMATION RELATED TO YOU. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT YOUR USE OF THE SERVICES AND THE RESULTS IS AT YOUR SOLE RISK. YOU ACKNOWLEDGE AND AGREE THAT THERE ARE RISKS INHERENT TO TRANSMITTING INFORMATION OVER AND STORING INFORMATION ON THE INTERNET AND THAT SERVICE PROVIDER IS NOT RESPONSIBLE FOR ANY LOSSES OF YOUR DATA, INCLUDING BUT NOT LIMITED TO THE RESULTS.
12.2 By User. You represent and warrant to Service Provider that (a) you have the authority to enter into this binding agreement personally and that (b) any User Data provided by you for the use of the Application is accurate and truthful and shall not (i) infringe any Intellectual Property Rights of Third Parties; (ii) misappropriate any trade secret; (iii) be deceptive, defamatory, obscene, pornographic or unlawful; (iv) contain any viruses, worms or other malicious computer programming codes intended to damage Service Provider’s Services, system or data; or (v) otherwise violate the rights of a Third Party.
You agree that any use of the Application or Documentation contrary to or in violation of the representations and warranties of the User in this Section 12 constitutes unauthorized and improper use of the Application and/or Documentation.
13.1 By Service Provider. Service Provider shall defend and indemnify you as specified herein against any claims brought by Third Parties to the extent such claim is based on an infringement of the Intellectual Property Rights of such Third Party by the Services and/or Documentation and excluding any claims resulting from (i) your unauthorized use of the Services, (ii) your or any Third Party’s modification of any of the Services, (iii) your failure to use the most recent version of the Services and/or Documentation made available to you, or your failure to install any corrections or updates to such Application and/or Documentation issued by Service Provider, if Service Provider indicated that such update or correction was required to prevent a potential infringement, (iv) User Data, or (v) your use of the Services and/or Documentation in combination with any non- Service Provider products or services.
Such indemnity obligation shall be conditional upon the following: (i) Service Provider is given prompt written notice of any such claim; (ii) Service Provider is granted sole control of the defense and settlement of such a claim; (iii) the User’s full cooperation with Service Provider in the defense and settlement of such a claim, at Service Provider’s expense; and (iv) the User makes no admission as to Service Provider’s liability in respect of such a claim, nor does the User agree to any settlement in respect of such a claim without Service Provider’s prior written consent. Provided these conditions are met, Service Provider shall indemnify the User for all damages and costs incurred by the User as a result of such a claim, as awarded by a competent court of final instance, or as agreed to by Service Provider pursuant to a settlement agreement.
In the event the Application and/or Documentation, in Service Provider’s reasonable opinion, are likely to or become the subject of a third-party infringement claim (as per this Section 13.1), Service Provider shall have the right, at its sole option and expense, to: (i) modify the ([allegedly] infringing part of the) Application and/or Documentation so that they become non-infringing while preserving equivalent functionality; (ii) obtain for the User a license to continue using the Application and/or Documentation in accordance with this Agreement; or (iii) terminate the Agreement and pay to the User an amount equal to a pro rata portion of the Fees for that portion of the Application which is the subject of such infringement.
The foregoing states the entire liability and obligation of Service Provider and the sole remedy of the User with respect to any infringement or alleged infringement of any Intellectual Property Rights caused by the Application and/or Documentation or any part thereof.
13.2 By User. You hereby agree to indemnify and hold harmless Service Provider and its current and future affiliates, officers, directors, employees, agents and representatives from each and every demand, claim, proceeding, actions, loss, liability, or damage of any kind whatsoever, including reasonable attorney’s fees, whether in tort or in contract, that it or any of them may incur by reason of, or arising out of, or incurred due to such claim any claim which is made by any Third Party with respect to (i) any breach or violation by you of any provisions of this Agreement or any other instructions or policies issued by Service Provider; (ii) any User Data violating any Intellectual Property Rights of a Third Party and (iii) fraud, intentional misconduct, or gross negligence committed by you, whether such claim was justified or not.
14.1 Service Provider grants you User License for the agreement term unless the Agreement is terminated in accordance with Sections 14.2 or 14.3. The User will be eligible to receive all major and minor updates and upgrades for the MyCardioSignal and/or Documentation during the agreement term.
14.2 Termination for breach. Service Provider may terminate with immediate effect this Agreement and your right to access and use the Services (i) if Service Provider believes or has reasonable grounds to suspect that you are violating this Agreement (including but not limited to any violation of the Intellectual Property Rights of Service Provider) or any other guidelines or policies (including but not limited to the Privacy Policy) issued by Service Provider or (ii) if the User remains suspended for non-payment for more than 60 (sixty) days.
14.3 Effects of termination. Upon the termination of this Agreement for any reason whatsoever in accordance with the provisions of this Agreement, at the moment of effective termination: (i) you will no longer be authorized to access or use the Services or otherwise use any of the features or Results offered by or through the Services; (ii) Service Provider may delete data associated with your Account after one year of contract termination, including but not limited to User Data or the Results on the Services and (iii) all rights and obligations of Service Provider or the User under this Agreement shall terminate, except the rights and obligations under those sections specifically designated in Section 15.7.
15.1 Force Majeure. Service Provider shall not be liable for any failure or delay in the performance of its obligations with regard to the Services if such delay or failure is due to causes beyond our control, including but not limited to: acts of God, war, strikes or labor disputes; embargoes or government orders; telecommunications, network, computer, server or Internet downtime; unauthorized access to Service Provider’s information technology systems by Third Parties; or any other cause beyond the reasonable control of Service Provider (the “Force Majeure Event”). We shall notify you of the nature of such Force Majeure Event and the effect on our ability to perform our obligations under this Agreement and how we plan to mitigate the effect of such Force Majeure Event.
15.2 Entire agreement. This Agreement (including the Privacy Policy) constitutes the entire agreement and understanding between you and Service Provider with respect to the subject matter hereof and supersedes all prior oral or written agreements, representations or understandings between the Parties relating to the subject matter hereof. No statement, representation, warranty, covenant or agreement of any kind not expressly set forth in this Agreement shall affect, or be used to interpret, change or restrict, the express terms and provisions of this Agreement.
15.3 Severability. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will remain enforceable, and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
15.4 Waiver. Any failure to enforce any provision of the Agreement shall not constitute a waiver thereof or of any other provision.
15.5 Assignment. You may not assign or transfer this Agreement or any rights or obligations to any Third Party. Service Provider shall be free to (i) transfer or assign (part of) its obligations or rights under the Agreement to one of its affiliates and (ii) to subcontract the performance or the support of the performance of this Agreement to its affiliates, to individual contractors and to Third Party service providers without prior notification to the User.
15.6 Notices. All notices from Service Provider intended for receipt by you shall be deemed delivered and effective when sent to the email address provided by you on your Account. If you change this email address, you must update your email address on your Service Provider application.
15.7 Survival. Sections 2, 5, 6, 7, 11, 12, 14, 15.8 shall survive any termination or expiration of this Agreement.
15.8 Dispute Resolution. This Agreement will be governed by and be subject to the substantive laws of the state of California, without reference to applicable conflict of laws principles. Any claim related in any manner to the Agreement shall be instituted and commenced in, and venue shall be the state and federal courts located in Santa Clara County, California, and the parties agree and submit to the personal and exclusive jurisdiction and venue of these courts.
15.9. No Injunctive Relief. In no event shall you seek or be entitled to rescission, injunctive or other equitable relief, or to enjoin or restrain the operation of the Services.
This document was updated February 20, 2023