Date of last revision: March 1, 2013
THE AliveECG MOBILE APPLICATION AND WEB SERVICE (hereafter, the “Application”) IS AVAILABLE FOR PRESCRIPTION USE ONLY IN THE UNITED STATES OF AMERICA (USA) AND TO USERS IN THE MEMBER STATES OF THE EUROPEAN UNION. THE APPLICATION IS INTENDED TO ONLY RECORD, DISPLAY, STORE AND TRANSMIT ELECTROCARDIOGRAMS (ECG Data). THE USER OF THE APPLICATION IS RESPONSIBLE FOR THE ECG DATA RECORDED AND STORED BY THE APPLICATION. THE APPLICATION IS NOT INTENDED TO DIAGNOSE ANY HEART CONDITION OR ALERT HEALTHCARE PROFESSIONALS OR PATIENTS TO POTENTIALLY SERIOUS HEART CONDITIONS OR ABNORMAL ARRHYTHMIAS. ALIVECOR, INC. (AliveCor) DOES NOT REVIEW, MONITOR, EVALUATE OR ANALYZE ANY INFORMATION GENERATED FROM THE APPLICATION. By clicking the “I AGREE” button that follows these Terms and Conditions or by otherwise accessing or using the Application, you (“You”) understand and agree to the above description of the Application and agree as follows:
You must be a registered user with AliveCor, Inc. (“AliveCor”) in order to use the Application. You may register through the Application or through the AliveCor website located at http://www.alivecor.com (“Website”). By submitting the information requested in the Application’s online registration form, You may access and use the Application and Website to view certain data pertaining to You as made available by AliveCor. You may not access or use the Application or Website for any other purpose.1.2 Term of Your Registration
The term of Your registration will commence as of the date You complete Your online registration form (“Registration Date”) and, unless earlier terminated in accordance with these Terms and Conditions, will continue in perpetuity (“Term”). Notwithstanding the foregoing, Your registration may automatically expire following any period of inactivity associated with Your account in excess of twelve (12) consecutive months.1.3 Notices
All notices from AliveCor intended for receipt by You shall be deemed delivered and effective when sent to the email address provided by You during the registration process or when posted to and made available to You on Application or Website (in either case, “Notice”). If You change the email address provided in connection with Your registration to access and use the Application, You must update Your address in accordance with the procedures set forth on the Website.
You acknowledge and agree that AliveCor may, in its sole discretion, modify the Application and these Terms and Conditions (including any instructions, policies or guidelines referenced herein) at any time and in any manner. Upon modification of these Terms and Conditions, AliveCor will notify You for Your consent. All such modifications shall be binding upon You when made. You may not amend or modify the Application, Website or these Terms and Conditions under any circumstances.
You represent, covenant and warrant to AliveCor that (1) You are a licensed healthcare professional in the USA, or You have been prescribed the Application by a licensed healthcare professional in the USA, or you are a resident of a Member State in the European Union; (2) will use the Application as intended; (3) these Terms and Conditions have been executed and delivered by You and constitute a valid and binding agreement with You, enforceable against You in accordance with their terms; (4) You will not access or use the Application or Website except as expressly permitted by these Terms and Conditions and any additional instructions, guidelines or policies issued by AliveCor, including those posted in the Application or on the Website; (5) You will access and use the Application and Website in full compliance with applicable Law (as defined in Section 4.1); and (6) all of the information, data and other materials provided by You in support of Your online registration are accurate and truthful in all respects.3.2. Disclaimer
EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THESE TERMS AND CONDITIONS, ALIVECOR MAKES NO REPRESENTATIONS, COVENANTS OR WARRANTIES AND OFFERS NO OTHER CONDITIONS, EXPRESS OR IMPLIED, REGARDING ANY MATTER, INCLUDING (1) THE MERCHANTABILITY, SUITABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, NON-INFRINGEMENT OR RESULTS TO BE DERIVED FROM THE USE OF THE APPLICATION, WEBSITE OR ANY DATA SERVICE, SOFTWARE, HARDWARE, DELIVERABLE, WORK PRODUCT OR OTHER MATERIALS RELATED TO THE APPLICATION OR WEBSITE, OR THE AVAILABILITY OF ANY OF THE FOREGOING; OR (2) WHETHER THE INFORMATION AVAILABLE ON OR TRANSMITTED BY THE APPLICATION OR WEBSITE IS TRUE, COMPLETE OR ACCURATE. YOU SPECIFICALLY ACKNOWLEDGE AND AGREE THAT ALIVECOR IS NOT RESPONSIBLE FOR ANY HEALTHCARE OR RELATED DECISIONS MADE BY YOU OR YOUR HEALTHCARE PROFESSIONAL BASED UPON DATA COLLECTED, TRANSMITTED OR DISPLAYED BY OR ON THE APPLICATION OR WEBSITE, WHETHER SUCH DATA IS ACCURATE OR INACCURATE. FURTHER, ALIVECOR DOES NOT REPRESENT, COVENANT OR WARRANT THAT ACCESS TO OR SERVICES PROVIDED BY THE APPLICATION OR WEBSITE WILL BE UNINTERRUPTED OR ERROR-FREE. YOU ACKNOWLEDGE AND AGREE THAT THERE ARE RISKS INHERENT TO TRANSMITTING INFORMATION OVER AND STORING INFORMATION ON THE INTERNET AND THAT ALIVECOR IS NOT RESPONSIBLE FOR ANY LOSSES OF YOUR DATA, CONFIDENTIALITY OR PRIVACY IN CONNECTION THEREWITH.
You shall use the Application and Website in strict compliance with (1) these Terms and Conditions; (2) any additional instructions, guidelines or policies issued by AliveCor, including those posted within the Application or on the Website; and (3) all applicable laws, rules and regulations (collectively, “Laws”).
AliveCor may engage any third party (including AliveCor’s affiliates) to perform, or support the performance of, all or any portion of the Application or the Website. Any engagement with any third party will be conducted in accordance with the AliveCor Privacy Notice described in Section 7.1.
As between AliveCor and You (collectively, “Parties”), AliveCor owns and will retain ownership of all rights, title and interest in and to the Application and the Website, including (1) all content displayed on the Application or the Website, to the extent such content is developed by AliveCor or its third party licensors, including any derivative works of the Application or Website and any such content; (2) any data presented on or by the Application or Website or otherwise stored by AliveCor and its third party providers, except for personal information that You submit to AliveCor during the registration process or through Your use of the online forms on the Website or Application (which shall be owned by You); and (3) any intellectual property or other proprietary rights comprising any of the foregoing (collectively, “AliveCor IP”). Neither these Terms and Conditions nor any disclosure made hereunder grant any license to You under any AliveCor IP.6.2. Use of the Application
You may use the Application and the Website, including any data presented on or by the Application or Website for You, or otherwise hosted or stored by AliveCor for You, only on Your own behalf and for lawful and appropriate purposes. You shall not use the Application, the Website or any of the data presented on or by the Application or Website, or otherwise hosted or stored by AliveCor, for any commercial purpose other than as expressly permitted herein. You will notify AliveCor immediately upon any suspected unauthorized use of the Application or Website, whether by You or a third party, or any suspected loss of or suspected unauthorized access to passwords or other log-in information used by You to access the Application or Website (“Login Credentials”). You shall be solely responsible for maintaining the confidence and security of any Login Credentials, and AliveCor shall bear no liability or other responsibility associated therewith.
You explicitly consent to the collection, hosting, use, disclosure and other processing or handling of information as described in the AliveCor Privacy Notice located at http://alivecor.com/privacy, as such notice may be amended by AliveCor in its sole discretion from time to time. Upon modification of the Privacy Notice, AliveCor will notify You for Your consent.
AliveCor may suspend or limit Your access to the Application or the Website if AliveCor, in its sole discretion, suspects that You are in violation of, or reasonably likely to be in violation of, these Terms and Conditions or any additional instructions, guidelines or policies issued by AliveCor, including those posted in the Application or on the Website.8.2. Non-Renewal
You may cancel Your registration at any time in accordance with the procedures described on the Website.8.3. Termination by AliveCor
AliveCor may terminate Your registration, including Your right to access and use the Website or the Application, in whole or in part, as follows:
For Cause. Immediately (1) in order to comply with applicable Law or instructions from any governmental agency or authority; (2) if AliveCor, in its sole discretion, suspects that You are using the Application or Website in a manner not permitted by these Terms and Conditions; or (3) upon any breach of these Terms and Conditions by You.
For Convenience. For convenience, upon Notice by AliveCor to You.8.4. Effect of Termination
Upon the expiration or earlier termination of Your registration or rights to use the Application or Website, for any reason (i) You will no longer be authorized to access or use the Application or Website or otherwise use any of the features or services offered by or through the Application or Website; (ii) AliveCor may delete any data associated with You or Your account; and (iii) all rights and obligations of the Parties under these Terms and Conditions shall expire, except those rights and obligations under those sections specifically designated in Section 8.5.Survival of Selected Provisions
Notwithstanding the expiration or earlier termination of Your registration or rights to use the Application or Website, the following sections of the Terms and Conditions shall survive any such expiration or termination: Sections 3.2, 6.1, 8.4, 9, 10, 11 and 12.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE ALIVECOR GROUP (AS DEFINED IN SECTION 10.1) SHALL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RESULTING FROM YOUR USE OF THE APPLICATION OR WEBSITE, OR BASED UPON ANY BREACH OF ANY EXPRESS OR IMPLIED WARRANTY, BREACH OF CONTRACT (INCLUDING THESE TERMS AND CONDITIONS AND ANY ADDITIONAL INSTRUCTIONS, GUIDELINES OR POLICIES ISSUED BY ALIVECOR, INCLUDING THOSE POSTED IN THE APPLICATION OR ON THE WEBSITE), NEGLIGENCE, TORT OR ANY OTHER LEGAL THEORY (COLLECTIVELY, THE “EXCLUDED DAMAGES”). FOR THE AVOIDANCE OF DOUBT, THE EXCLUDED DAMAGES ALSO INCLUDE WITHOUT LIMITATION, LOSS OF SAVINGS OR REVENUE; LOSS OF PROFIT; LOSS OF USE; LOSS OF LIFE OR HEALTH, THE CLAIMS OF THIRD PARTIES; AND ANY COST OF ANY SUBSTITUTE EQUIPMENT OR SERVICES. IF ALIVECOR CANNOT LAWFULLY DISCLAIM LIABILITY FOR ANY OF THE FOREGOING DAMAGES, THEN ALIVECOR GROUP’S MAXIMUM LIABILITY TO YOU IS LIMITED TO THE PURCHASE PRICE PAID BY YOU TO ALIVECOR FOR THE APPLICATION. THESE LIMITATIONS APPLY EVEN IF ANY OTHER REMEDIES AVAILABLE TO YOU FAIL OF THEIR ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.9.2. Remedies
At its option, any member of the AliveCor Group may seek all remedies available to it under law and in equity, including injunctive relief in the form of specific performance to enforce these Terms and Conditions, including any additional instructions, guidelines or policies issued by AliveCor, including those posted in the Application or on the Website, and/or actions for damages.9.3. Claims
No action arising out of, in connection with, or relating to these Terms and Conditions or the subject of these Terms and Conditions shall be brought by You more than one (1) year after the accrual of the cause of action. This period shall not be extended for any reason, except by the written consent of both parties. All statutes or provisions of law which would toll or otherwise affect the running of the period of limitation are hereby waived, and no such statute or provision of law shall operate to extend the period limited in this paragraph.
You will indemnify and hold harmless AliveCor, its affiliates and their respective current, future or former officers, directors, partners, equity holders, employees, agents, contractors, and their successor or assigns (collectively, the “AliveCor Group”) on demand, from and against any and all fines, penalties, liabilities, losses and other damages of any kind whatsoever (including attorneys’ and experts’ fees), incurred by any of the members of the AliveCor Group, and, if directed by AliveCor, shall defend the AliveCor Group against (1) all claims that any information, data or other materials provided by You in connection with your use of the Website or the Application (including Your application for registration to access and use the Application or Website) or these Terms and Conditions, or use thereof by any member of the AliveCor Group, infringes, misappropriates or otherwise violates any patent, trademark, copyright, trade secret or other intellectual property or proprietary right of a third party; (2) all claims arising from fraud committed by, or the intentional misconduct, criminal acts or gross negligence of, You; and (3) all claims otherwise arising due to a failure by You to comply with any term or condition of these Terms and Conditions, including any additional instructions, guidelines or policies issued by AliveCor, including those posted in the Application or on the Website.
If a dispute arises under these Terms and Conditions between You and any member of the AliveCor Group, such dispute shall be resolved, at the filing party’s election, in either a small claims court or by final and binding arbitration administered by the National Arbitration Forum or the American Arbitration Association, under their rules for consumer arbitrations. All disputes in arbitration will be handled solely between the named parties, and not on any representative or class basis. ACCORDINGLY, YOU ACKNOWLEDGE THAT IT MAY NOT HAVE ACCESS TO A COURT (OTHER THAN A SMALL CLAIMS COURT) OR JURY. Notwithstanding any other provision of these Terms and Conditions, any member of the AliveCor Group may resort to court action for injunctive relief at any time if, in its good faith belief, the dispute resolution procedures described in this Section 11.1 would permit or cause irreparable injury to such member of the AliveCor Group or any third party claiming against a member of the AliveCor Group, due to delay arising out of such dispute resolution procedures.11.2. Governing Law
All rights and obligations of You or the AliveCor Group relating to these Terms and Conditions, including any additional instructions, guidelines or policies issued by AliveCor, including those posted in the Application or on the Website, shall be governed by and construed in accordance with the Law of the United States of America, State of New York without giving effect to any choice-of-law provision or rule (whether of the State of New York or any other jurisdiction) that would cause the application of the Laws of any other jurisdiction.
These Terms and Conditions any additional instructions, guidelines or policies issued by AliveCor, including those posted in the Application or on the Website constitute the entire agreement of the Parties with regard to Your use of the Application and the Website, and all matters addressed herein, and all prior agreements, letters, proposals, discussions and other documents regarding the Application or the Website and the matters herein are superseded and merged into these Terms and Conditions.12.2. Force Majeure
AliveCor will be excused from performance under these Terms and Conditions for any period that it is prevented from or delayed in performing any obligations pursuant to these Terms and Conditions, in whole or in part, as a result of a Force Majeure Event. For purposes of this Section 12.2, “Force Majeure Event” means an event or series of events caused by or resulting from any of the following: (1) weather conditions or other elements of nature or acts of God; (2) acts of war, acts of terrorism, insurrection, riots, civil disorders or rebellion; (3) quarantines or embargoes, (4) labor strikes; (4) telecommunications, network, computer, server or Internet downtime; (5) unauthorized access to AliveCor’s information technology systems by third parties; or (6) other causes beyond the reasonable control of AliveCor.12.3. Severability
If any provision of these Terms and Conditions shall be held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby, and such provision shall be deemed to be restated to reflect the Parties’ original intentions as nearly as possible in accordance with applicable Law(s).12.4. Assignment
You may not assign these Terms and Condition (or any rights, benefits or obligations hereunder) by operation of law or otherwise without the prior written consent of AliveCor, which may be withheld at AliveCor’s sole discretion. Any attempted assignment by You that does not comply with the terms of this Section 12.4 shall be null and void. AliveCor may assign these Terms and Conditions, in whole or in part, to any third party in its sole discretion.