We have the highest regard for your privacy and personal information and realize that the success of our services depends on the trust that you have in the way we handle your personal information. By entrusting us with your information, we would like to assure you of our commitment to keep such information private. We have taken considerable steps to protect the confidentiality, security and integrity of this information. We encourage you to review the following information carefully.
GROUNDS FOR DATA COLLECTION
Processing of your Personal Information (meaning, any information which may potentially allow your identification with reasonable means; hereinafter “Personal Information”) is necessary for the performance of our contractual obligations towards you and providing you with our Service, to protect our legitimate interests, and to ensure compliance with legal and financial regulatory obligations.
HOW DO WE RECEIVE INFORMATION ABOUT YOU?
While you may use some of the functionality of the Service without creating a profile or registration, certain tools of the Service require registration and provision of your information, including Personal Information.
If you choose to create a profile or register with us – you will be asked to provide Personal Information which will be associated with your Health information.
Whenever you submit information via our Service – including, but not limited to, by telephone or email with customer service, we may collect Health Information and other Personal Information you provide us, in order to provide you with our Service.
It is your voluntary decision whether to provide us with any Personal Information or Health Information, however if you do not provide this information you may not be able to create a profile or register with the Service and your use of the Service may be limited.
WHAT TYPES OF INFORMATION WE COLLECT?
We collect the following Personal Information about you:
Create Profile and Registration information – your name, email address, gender, and birth year.
We may collect the following information – country of residency, home address, birthday and phone number.
If you are a healthcare provider, you will be asked to provide information regarding your professional qualifications as well as additional Personal Information during registration
Voluntary information – when you communicate with us (for example when you send us an email or use a “contact us” form) we collect the Personal Information you provided us with.
Technical information – we collect certain technical information that is automatically recorded when you use our Service, such as your IP address, device approximate location.
Personal Health Information – you may choose to use certain features of the Service that will allow you to input other Personal Information with respect to your health, such as the medications you take, the date of your prescriptions, the number of refills you have made, how often you take your medication, dosage, physical measurements your doctor’s name, and the name of your pharmacy (collectively your “Health Information”).
Site usage data – We collect information about your use of the Site. This includes, but not limited to: type of computing or mobile device you use, language of your operating system, the Internet browser you are using, geo-location and use of the Site.
Health Information – We may also collect your non-identifiable Health Information if you choose to provide it.
HOW DO WE USE THE INFORMATION WE COLLECT?
Provision of service – we will use the Personal Information you provide us for the provision and improvement of our Service to you. For example, data collected automatically on the Service may be used to help diagnose problems with our servers, to make our Service more useful, to customize it and personalize its content for you (for example, we will use your Health information to send you reminders to take your medications).
Marketing purposes – we will use your Personal Information (such as your email address or phone number) to communicate with you. We may also send you promotional material concerning our services or our partners’ services (which we believe may interest you), including but not limited to, by building an automated profile based on your Personal Information, for marketing purposes.
Opt-out of receiving marketing materials – If you do not want us to use or share your Personal Information for marketing purposes, you may opt-out in accordance with this “Opt-out” section. Please note that even if you opt-out, we may still use and share your personal information with third parties for non-marketing purposes (for example to fulfill your requests, communicate with you and respond to your inquiries, etc.). In such cases, the companies with whom we share your Personal Information are authorized to use your Personal Information only as necessary to provide these non-marketing services.
Analytics, surveys and research – we are always trying to improve our services and think of new and exciting features for our users. From time to time, we may conduct surveys or test features, and analyze the information we have to develop, evaluate and improve these features.
Protecting our interests – we may use your Personal Information when we believe it’s necessary in order to take precautions against liabilities, investigate and defend ourselves against any third party claims or allegations, investigate and protect ourselves from fraud, protect the security or integrity of our Service and protect the rights and property of medsense its users and/or partners.
Enforcing of policies – we may use your Personal Information in order to enforce our policies, including but limited to our Terms, or Client Agreement.
Compliance with legal and regulatory requirements – we also use your Personal Information as required by law, regulation or other governmental authority, or to comply with a subpoena or similar legal process.
WITH WHOM DO WE SHARE YOUR PERSONAL INFORMATION?
Research partners – We may share your Personal Information with third parties, such as research institutes, healthcare systems and healthcare providers, that they may associate with other information that they have about you, for research purposes and for improvement of our services.
Providers of personalized third party content – From time to time, we may also ask whether you would like us to share your Personal Information with another company that may want to send you information about their products or services. If you consent to such transfer by us of your Personal Information to another company, please note that the information provided will be subject to such company’s privacy practices and shall not be within our control.
Content providers – We may also use your Personal Information in order to provide you with personalized third party content or links to third party sites that might interest you. We provide this third party content and/or links to third party sites for information purposes only and are not liable for such content or sites. For more information see the “Links to other Websites or Apps” section below.
Service providers – We might share your Personal Information, as is reasonably necessary, with our contractors or consultants, including vendors and suppliers that provide us with development services, technology (such as Google Analytics), services, or content for the operation, development and maintenance of our Service or data and analysis on Service use, who are bound by an obligation of confidentiality, provided that we will only share Personal Information to the extent necessary with such contractors or consultants.
Law authorities – we may share your personal data with law enforcement authorities, courts and tribunals, including with legal advisors and consultants, in case we need to respond to law enforcement requests or other legal requests or pursuant to a requirement imposed by law, order, judgment or decree, or courts in order to protect and defend our rights and property or those of Service users.
Merger, acquisition or sale – We may transfer your Personal Information in the event of a merger, acquisition or sale of all or a portion of our assets.
Your Personal Information will not be combined with other information and will not be used for other purposes, except as explained in this policy. Please note that we are not subject to medical secrecy obligations.
Personal Information you may share through our Service
You may send family members or friends an invitation to receive alerts regarding your compliance with your medication regime. By sending such invitation, you represent that you have the right to contact the individual and that you consent to our sending Personal Information about your medications and your compliance with your medication regime to the individual. Sharing of your Personal Information in this manner is solely your responsibility.
Medical professionals and Doctors – You may use the Service in order to share your Personal Information or other information with your doctor or healthcare providers. Such sharing may be enabled by inviting your healthcare provider to monitor your Personal Information, by accepting an invitation from your healthcare provider to download and use the Service, or otherwise using the Service settings to share your information with your healthcare provider; in these cases you consent to our sending Personal Information about your medications and your compliance with your medication regime with your healthcare providers. Confirm with your healthcare provider that they have sent you an invitation to download the App. Such sharing of your information is at your discretion and is solely your responsibility.
Pharmacies and coupon companies – you may choose to share your Personal Information with pharmacies with which we partner, and/or third party coupon companies, in order that we may send you coupons and/or provide you with reminders to get your prescription refilled. If you choose to share your Personal Information in this manner, please note that such information may be disclosed to the coupon companies and/or pharmacies and will be subject to their privacy practices.
While we take great care to keep your Personal Information confidential and secure, when you share your health or medication information with others or provide feedback regarding health matters, medications and otherwise, including by means of social media sites, or when you participate in a forum on the Service, any information disclosed by you in such way is solely your responsibility. You should exercise caution when disclosing any information (including Personal Information) in such ways, as you do not know who will access or use such information and for what purposes.
USE OF AGGREGATED DATA
Aggregated data will not contain any information that could be used to contact or identify you. We may analyze and/or combine all information we receive, including Health Information and information regarding your use of the Service, with information from other users to create aggregated data that may be disclosed to and utilized by us, our affiliates and by third parties without restriction, on commercial terms that we can determine in our sole discretion, for purposes such as: content marketing, research purposes, in order to understand behavior patterns, in order to increase adherence to medication regimens, marketing strategies and for entering into commercial contracts in order to provide our users with the Service.
Please note that some of our service providers may be located outside the European Economic Area (the “EEA”). In such cases we will transfer your data only to such countries as approved by the European Commission as providing adequate level of data protection, or enter into legal agreements ensuring an adequate level of data protection.
We may transfer our databases containing your Personal Information in connection with the transfer or sale of all (or substantially all) of our business assets, or in the event of a merger, consolidation or similar transaction.
EEA RESIDENTS RIGHTS
If you are a resident of the European Economic Area, you have the following data protection rights:
At any time, you can stop the collection of your information by uninstalling the App and refraining from using the Service.
You may request to:
Receive confirmation as to whether or not Personal Information concerning you is being processed, and access your stored Personal Information, together with supplementary information.
Receive a copy of Personal Information you directly volunteer to us in a structured, commonly used and machine-readable format.
Request rectification of your Personal Information that is in our control.
Request erasure of your Personal Information.
Object to the processing of Personal Information by us.
Request to restrict processing of your Personal Information by us.
Lodge a complaint with a supervisory authority.
However, please note that these rights are not absolute, and may be subject to our own legitimate interests and regulatory requirements.
If you wish to exercise any of the above rights, or ask us a question please contact us:
We will retain your Personal Information for as long as necessary to provide our services. We will retain and use your information as necessary to comply with our legal obligations, resolve disputes, and enforce our policies. Retention periods will be determined taking into account the type of information that is collected and the purpose for which it is collected, bearing in mind the requirements applicable to the situation and the need to destroy outdated, unused information at the earliest reasonable time.
LINKS TO OTHER WEBSITES OR APPS
HOW WE PROTECT YOUR INFORMATION
We have implemented administrative, technical, and physical safeguards to help prevent unauthorized access, use, or disclosure of your Personal Information. Your information is stored on secure servers and isn’t publicly available. We limit access of your information only to those employees or partners that need to know the information in order to enable the carrying out of the agreement between us.
You need to help us prevent unauthorized access to your account by protecting your password appropriately and limiting access to your account (for example, by signing off after you have finished accessing your account). You will be solely responsible for keeping your password confidential and for all use of your password and your account, including any unauthorized use.
While we seek to protect your information to ensure that it is kept confidential, we cannot absolutely guarantee its security. You should be aware that there is always some risk involved in transmitting information over the internet. While we strive to protect your Personal Information, we cannot ensure or warrant the security and privacy of your personal Information or other content you transmit using the service, and you do so at your own risk.
Children: The application is not intended for children under the age of 13. We do not knowingly collect personal information from anyone under the age of 13. Since information regarding children under the age of 13 is not collected, we do not knowingly distribute personal information regarding children under the age of 13
HOW TO CONTACT US
TERMS AND CONDITIONS OF USE
Medsense Health, Inc.
YOU AGREE TO THE ARBITRATION AGREEMENT AND CLASS ACTION WAIVER DESCRIBED IN SECTION 5 TO RESOLVE ANY DISPUTES WITH MEDSENSE HEALTH.
- Services and Use
1.2 Use Restrictions. You will not, and will not permit any third party to: (i) copy, distribute, or disclose any part of the Subscription Service in any medium, including, without limitation, by any automated or non-automated “scraping”; (ii) use any automated system, including, without limitation, robots, spiders, etc., to access the Subscription Service in a manner that sends more request messages to Medsense Health’s servers than a human can reasonably produce in the same period of time by using a conventional on-line web browser; (iii) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code for the Subscription Service; (iv) modify, or create derivative works based on, the Subscription Service; (v) rent, lease, distribute, sell, resell, assign, or otherwise transfer any rights to use the Subscription Service, or any portion thereof; (vi) remove any proprietary notices from the Subscription Service; (vii) submit to or through the Subscription Service any content that infringes the Intellectual Property Rights of any third party or is otherwise unlawful, or that contains malware, viruses, Trojan horses, spyware, worms, or other malicious or harmful code; (viii) bypass any measures Medsense Health may use to prevent or restrict access to the Subscription Service, including without limitation, features that prevent or restrict use or copying of any content or enforce limitations on use of the Subscription Service this Platform, or the Software; or (ix) except to the extent permitted under applicable law, access or use the Subscription Service for the purpose of developing a competing product or service, building a product or service using similar functions, features, or graphics, or conducting benchmarking tests or competitive analysis.
1.3 Login Credentials. In order to access some features of the Medsense Health Platform, you may have to create an account. You may never use another’s account without the Company’s permission. When creating your account, you must provide accurate and complete information. You are solely responsible for the activity that occurs on your account, and you must keep your account password secure. You must notify the Company immediately of any breach of security or unauthorized use of your account. Although the Company will not be liable for your losses caused by any unauthorized use of your account, you may be liable for the losses of the Company or others due to such unauthorized use. Each set of login credentials for the Subscription Service may be used only by a single, individual Administrator. You agree to promptly notify Medsense Health of any unauthorized access or use of which You become aware. You will be responsible for all use and misuse of the Subscription Service that occurs under any User’s login credentials, and for any breach of these Terms by any Users.
1.4 Administrators. You will designate one or more Administrators. Administrators will have access to view User content and personal information submitted by Users.
1.5 Unilateral Termination. Medsense Health retains the right to terminate your account, and any related service to you under its Subscription Services, if you are found in violation of these Terms or any other Medsense Health policy. Medsense Health may, under its sole discretion, delete, pause, or otherwise terminate your access to the Platform and its Subscription Services for any reason and with or without notice.
1.6 Updates. Medsense Health may, from time to time, update or make changes to the features or functions of the Subscription Service. Medsense Health will make reasonable efforts to provide You with advance notice before removing any material feature or functionality of the Subscription Service, unless security, legal, or system performance considerations require an expedited change, in which case Medsense Health will provide You with notice as soon as reasonably possible.
1.7 Error Correction. Medsense Health shall use commercially reasonable efforts to correct all Errors or to provide a reasonable workaround as soon as is possible using its reasonable efforts during Medsense Health’s normal business hours. You will provide such access, information, and support as Medsense Health may reasonably require in the process of resolving any error. This paragraph is Your sole and exclusive remedy for Errors. “Error” as used in this Section means any reproducible material failure of the Subscription Service to function in accordance with the Documentation.
1.8 Support Exclusions. Medsense Health has no obligation to correct any Errors or provide any other support to the extent such Errors or need for support was created in whole or in part by: (a) Your acts, omissions, negligence or willful misconduct, including any unauthorized modifications of the Subscription Service or its operating environment; (b) any failure or defect of Your or a third party’s equipment, software, facilities, third-party applications, or internet connectivity; (c) Your use of the Subscription Service other than in accordance with applicable Documentation provided; or (d) a Force Majeure Event described in Article 6 below.
1.9 Browser Compatibility. To view or access all the features of the Medsense Health Platform, your web browser may require additional third-party software, also known as plug-ins, add-ons, extensions, etc. The Company makes no warranties that this third-party software will be compatible with your computer and specifically disclaims any liability for direct or consequential damages that arise when you download, install, or use third-party software to access the content or features of the Medsense Health Platform.
1.10 Required Third Party Services. YOU MAY BE ASKED TO ENTER INTO CONTRACTS WITH THOSE THIRD-PARTY SITES OR THEIR OWNERS OR OPERATORS BY VIRTUE OF YOUR CLICKING ON A LINK ON THIS SITE AND BEING TRANSPORTED TO THE EXTERNAL THIRD-PARTY SITE(S). YOU UNDERSTAND AND ACCEPT THE RISK OF PERHAPS BEING REQUIRED TO ENTER INTO SUCH THIRD-PARTY CONTRACTS AS A CONDITION OF YOUR RECEIVING THE SERVICES PROVIDED BY THE Medsense Health PLATFORM AND THE LINKED THIRD-PARTY SITES AND THAT THE COMPANY IS NOT RESPONSIBLE FOR YOUR ACTIONS OR INACTIONS IN CONNECTION WITH ANY THIRD-PARTY SITE.
- Billing and Cancellation
2.1 Payment Methods. To use Medsense Health service, you must provide one or more Payment Methods. You authorize us to charge any Payment Method associated with your account in case your primary Payment Method is declined or no longer available for payment of your fees. You remain responsible for any uncollected amounts. If a payment is not successfully settled, due to expiration, insufficient funds, or otherwise, and you do not cancel your account, Medsense Health may suspend your access to the service until Medsense Health has successfully charged a valid Payment Method. For some Payment Methods, the issuer may charge you certain fees, such as foreign transaction fees or other fees relating to the processing of your Payment Method. Check with your Payment Method service provider for details. Please keep your Payment Methods up-to-date.
2.2. Cancellation. You can cancel auto-billing for your Medsense Health services at any time.
2.3. Payments Nonrefundable. Payments are nonrefundable and there are no refunds or credits for partially used periods. Following any cancellation, however, you will continue to have access to the service through the end of your current billing period.
- Medsense Health Service
3.1. Proprietary Information. All content of our Platform and services is the copyrighted material of Medsense Health, or the appropriate contributor, as applicable, and is protected by United States and international copyright, trademark, and other applicable laws. The Platform and service include content, appearances, and design, as well as trademarks, product names, graphics, logos, slogans, colors and designs that are the property of Medsense Health, or other third parties, as applicable. Except as set forth in the relevant license agreements, nothing contained in our Platform or services grants any license or other right to any of Medsense Health’s intellectual property or any third parties’ intellectual property. The appropriate party reserves complete title and interest to its intellectual property on or associated with the Platform and/or services. You may not copy, modify, distribute, alter, display, reproduce, transfer or republish any of the data of our Platform and/or services without obtaining the written permission of the Platform and/or services, as applicable.
3.2. Limited Grant. Medsense Health service and any content viewed through the service are for your personal and non-commercial use only and may not be shared with other individuals. During your Medsense Health services, you are granted a limited, non-exclusive, non-transferable right to access the service and view Medsense Health content through the service for your own personal use. No right, title, or interest will be transferred to you. You agree not to use the service for personal gain. As between Us and You, You exclusively own all rights, title and interest in and to all of Your Data. Notwithstanding the foregoing, the term "Your Data" does not include any analytical or statistical information regarding devices or operating systems used to access or utilize the Services; syncing, wait or down times; aggregated user or transaction data; errors encountered by Users; or the identifiers of where within the Services any technical problems arose. Medsense Health (or a third party on Our behalf) may track, collect, and utilize such information to test, evaluate, support, market, or otherwise improve the quality of the Services. Medsense Health (or a third party on Our behalf) will never access or use Your Data for support purposes without first obtaining your explicit permission.
3.4. DMCA Notice. If you are a holder (or agent thereof) of copyright or other proprietary rights and you believe that any services infringe upon such proprietary rights, you may submit a notice to Medsense Health pursuant to the Digital Millennium Copyright Act by submitting the following information in writing to our copyright agent: (1) The signature (physical or electronic) of the holder (or agent thereof) of a proprietary right that is allegedly infringed; (2) Identification of the work or multiple works alleged to have been infringed; (3) Identification of the material that allegedly infringes or is the subject of infringing activity that is requested to be removed or otherwise modified with information reasonably sufficient to permit Medsense Health to locate the material; (4) Contact information for Medsense Health to contact you, including an address, telephone number and/or e-mail address; (5) Your statement that you have a good faith belief that use of the material in question is not authorized by the holder of the proprietary rights, its agent or otherwise under law; and (6) Your statement that the information in the notice to Medsense Health is accurate and, under penalty of perjury, that you are authorized to act on behalf of the allegedly infringed work. You acknowledge that your failure to comply fully with these requirements may result in an invalid notice under the Digital Millennium Copyright Act.
3.5. Quality of Streaming. The quality of the display of Medsense Health content may vary from device to device, and may be affected by a variety of factors, such as your location, the bandwidth available through and/or speed of your Internet connection, and the functionality of the device you are using. You are responsible for all Internet access charges. Please check with your Internet provider for information on possible Internet data usage charges. Medsense Health makes no representations or warranties about the quality of your viewing experience on your display.
3.6. Protecting Personal Information. Never give out personal information or access to your documents on Medsense Health. Protecting your personal information and safeguarding Medsense Health links is your responsibility.
3.7 Discounts and Coupons. Promotions and discounts are not transferable and are limited one (1) per user. There is no cash value and promotion, and discounts may not be combined or applied to past orders.
3.8 Implementation of the Platform. You or, if applicable, your employer or independent contractor, may request or authorize the Company to access your computer or mobile device on your behalf in order to implement the Medsense Health Platform or upload or store your information thereon and, in such event, you agree and acknowledge that the Company is authorized and directed to accept these Terms and Conditions on your behalf (including, without limitation, by affirmatively clicking through any prompts relating to these Terms and Conditions or the Medsense Health Platform). You agree that these Terms and Conditions are binding on you, and you shall comply fully with them, even if the Company accepts these Terms and Conditions, accesses your computer or mobile device on your behalf in order to implement the Medsense Health Platform or upload or store your information thereon, or affirmatively clicks-through any prompts relating to these Terms and Conditions or the Medsense Health Platform on your behalf.
- Disclaimers of Warranties and Limitations on Liability
4.1. MEDSENSE HEALTH SERVICE AND ALL CONTENT ASSOCIATED THEREWITH, OR ANY OTHER FEATURES OR FUNCTIONALITIES ASSOCIATED WITH Medsense Health SERVICE, ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND. MEDSENSE HEALTH DOES NOT GUARANTEE, REPRESENT, OR WARRANT THAT YOUR USE OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE. MEDSENSE HEALTH DOES NOT GUARANTEE ANY SPECIFIC LEARNING OUTCOMES FROM VIEWING THE VIDEOS.
4.2. TO THE EXTENT PERMISSIBLE UNDER APPLICABLE LAWS, IN NO EVENT WILL MEDSENSE HEALTH, ITS EMPLOYEES, OR ANY OF ITS AFFILIATES BE LIABLE (JOINTLY OR SEVERALLY) TO YOU FOR PERSONAL INJURY OR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY KIND, OR ANY DAMAGES WHATSOEVER.
4.3. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR CERTAIN TYPES OF DAMAGES. THEREFORE, SOME OF THE ABOVE LIMITATIONS IN THIS SECTION MAY NOT APPLY TO YOU.
4.4. IN NO EVENT WILL THE AGGREGATE LIABILITY OF MEDSENSE HEALTH ARISING OUT OF OR RELATED TO THESE TERMS EXCEED THE TOTAL AMOUNT PAID BY YOU HEREUNDER IN THE TWELVE (12) MONTHS PRECEDING THE FIRST INCIDENT FROM WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY BUT WILL NOT LIMIT YOUR PAYMENT OBLIGATIONS. MEDSENSE HEALTH IS NOT RESPONSIBLE FOR ANY INTERRUPTION OF SERVICE OR PLATFORM DOWNTIME.
4.7. User Content. You are solely responsible for all User content and personal information, including, without limitation, the accuracy, quality, integrity, reliability, appropriateness, and legality of the content and information. Certain types of information within the content may be subject to specific regulations (e.g., regulations regarding personally identifiable information, protected health information, etc.). You, not Medsense Health, is responsible for compliance with all such regulations. Without limiting the foregoing, You represent and warrant that, if applicable, You will provide any required notice to, and obtain any required consent from, individuals, including Users, related to the collection, use, or viewing of User’s content and personal information. Medsense Health may, but has no obligation to, screen for objectionable User content and personal information, and may provide You with analytics or summaries of responses made by Users or other content. However, you bear the responsibility for determining the legal and human resource-related implications of any responses. For example, if a User raises the issue that he or she has a disability, You will be responsible for taking any action required in response.
Medsense Health may disclose this content as required by applicable law or by proper legal or governmental authority. Medsense Health will give You prompt notice of any such legal or governmental demand and reasonably cooperate with You in any effort to seek a protective order or otherwise to contest such required disclosure, at Your expense.
In order to avoid any misunderstandings or disputes relating to the Medsense Health Platform and the ownership of all related intellectual property rights, please do not send the Company any unsolicited ideas, including but not limited to ideas for features, product improvements, promotions, products, processes, code, marketing plans, or product names. However, the Company welcomes your feedback regarding the Services and its business. If you want to send feedback to the Company, please use the “Support” page at https://www.medsense.health/pages/contact-us.
- Dispute Resolution
5.3. Governing Rules. The arbitration will be governed by the Commercial Arbitration Rules (AAA Rules) of the American Arbitration Association (AAA), as modified by this Agreement, and will be administered by the AAA. Unless Medsense Health and you agree otherwise, any arbitration hearings will take place in Yakima county in Delaware State, U.S.A. The arbitrator’s award will be final and binding on all parties, except: (1) For judicial review expressly permitted by law; or (2) If the arbitrator’s award includes an award of injunctive relief against a party, in which case that party will have the right to seek judicial review of the injunctive relief in a court of competent jurisdiction that will not be bound by the arbitrator’s application or conclusions of law. Arbitration will occur before one (1) arbitrator selected under the AAA rules. THIS PROVISION DOES NOT APPLY TO INJUNCIVE RELIEF SOUGHT BY MEDSENSE HEALTH.
5.4. YOU AND MEDSENSE HEALTH AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Medsense Health agree otherwise, the arbitrator may not consolidate more than one person’s claims with your claims and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable, then the entirety of this arbitration provision will be null and void.
6.2. Unsolicited Materials. Medsense Health does not accept, open, view, or otherwise interact with unsolicited materials or ideas for Medsense Health content and is not responsible for the similarity of any of its content to materials or ideas transmitted to Medsense Health. Should you send any unsolicited materials or ideas, you do so with the understanding that no additional consideration of any sort will be provided to you, and you are waiving any claim against Medsense Health and its affiliates regarding the use of such materials and ideas, even if material or an idea is used that is substantially similar to the material or idea you sent.
6.3. Termination. You agree that Medsense Health may, in our sole discretion, terminate or suspend your access to all or any part of the services with or without notice and for any reason. Any suspected fraudulent, abusive or illegal activity may constitute grounds for terminating your relationship and may be referred to appropriate law enforcement authorities.
6.4. Feedback. Medsense Health is free to use any comments, information, ideas, concepts, reviews, or techniques or any other material contained in any communication you may send to us (Feedback), without further compensation, acknowledgement or payment to you for any purpose whatsoever including, but not limited to, developing, manufacturing and marketing products and creating, modifying or improving Medsense Health service. In addition, you agree not to enforce any “moral rights” in and to the Feedback, to the extent permitted by applicable law.
6.7. Communication Preference. Medsense Health will send you information relating to your account (e.g., payment authorizations, invoices, changes in password or Payment Method, confirmation messages, notices) in electronic form only, via email to your email address provided during registration. You agree that any notices, agreements, disclosures or other communications that Medsense Health send to you electronically will satisfy any legal communication requirements, including that such communications be in writing.
6.8 Force Majeure Event. “Force Majeure Event” means any act or event that (a) prevents a Party (the “Nonperforming Party”) from performing its obligations or satisfying a condition to the other Party’s (the “Performing Party”) obligations under these Terms, (b) is beyond the reasonable control of and not the fault of the Nonperforming Party, and (c) the Nonperforming Party has not, through commercially reasonable efforts, been able to avoid or overcome. “Force Majeure Event” does not include economic hardship, changes in market conditions, and insufficiency of funds; including without limitation, strikes, work stoppages, epidemics, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services.
6.9 U.S. Government Restricted Rights; Export. Any software provided hereunder is a “commercial item,” as defined at 48 C.F.R. § 2.101 (OCT 1995), and more specifically is “commercial computer software” and “commercial computer software documentation,” as such terms are used in 48 C.F.R. § 12.212 (SEPT 1995). Consistent with 48 C.F.R. § 12.212 and 48 C.F.R. §§ 227.7202-1 through 227.7202-4 (JUNE 1995), such software is provided to U.S. Government End Users only as a commercial end item and with only those rights as are granted to all other end users pursuant to the terms and conditions herein. If Customer exports any of the software, it must comply fully with all relevant export laws and regulations to ensure that the software is not exported, directly or indirectly, in violation of applicable export control laws. Customer shall not knowingly, directly or indirectly, without prior written consent, general or specific license, if required, of the Office of Export Administration of the U.S. Department of Commerce, export or transmit any of the software to any country to which such transmission is restricted by applicable regulations or statutes.
6.10 Relationship; Third Party Beneficiaries. These Terms do not create any partnership, franchise, joint venture, agency, or fiduciary or employment relationship. Neither Party may bind the other Party or act in a manner which expresses or implies a relationship other than that of independent contractor.
6.11 No Assignment. These Terms and Conditions, and any rights and licenses granted hereunder, may not be transferred or assigned by You, but may be assigned by the Company without restriction.
- Contact Us
Medsense Health, Inc.
503 Knight St., Ste. A
Richland, WA 99352
Telephone: 509-380-9102 (contact information)
End User License
END USER LICENSEE AGREEMENT
THIS END USER LICENSEE AGREEMENT (“AGREEMENT”) BETWEEN YOU, THE CLIENT (“LICENSEE”) AND MEDSENSE HEALTH INC, A DELAWARE LIMITED LIABILITY COMPANY (“LICENSOR”), PROVIDES THE TERMS AND CONDITIONS UNDER WHICH LICENSOR WILL LICENSEE TO LICENSEE CERTAIN MEDSENSE HEALTH™ BRAND SOFTWARE.
BY SIGNING, LICENSEE ACCEPTS AND AGREES TO THE TERMS OF THIS AGREEMENT. IT IS IMPORTANT THAT LICENSEE READ THIS ENTIRE AGREEMENT BEFORE ACCEPTING. IF YOU ARE ACCEPTING THIS AGREEMENT ON BEHALF OF AN ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS. IF YOU DO NOT HAVE SUCH AUTHORITY YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT ORDER, PURCHASE, ACCEPT DELIVERY OF, OR USE THE SOFTWARE.
1.1 Licensee Grant
Solely for the period Licensor is providing software-as-a-service to Licensee or, if applicable, Licensee’s employer or independent contractor, under a Master Subscription Agreement (the “Term”), Licensor grants to Licensee and Licensee accepts from Licensor a non-exclusive, revocable, non-sublicensable and non-transferable Licensee under Licensor’s copyrights (the “Licensee”) in the United States to use the machine-code version of the software together with any related technical specification documentation (the “Documentation”) provided by Licensor (collectively, the “Software”) on a single computer or mobile device, provided that Licensee comply with the terms herein.
Subject only to the Licensee, Licensor shall retain all right, title and interest, including all patent rights, copyrights and trademarks, in and to the Software and all derivative works. Licensee shall indemnify, defend, and hold harmless Licensor harmless from and against any claim made or brought against Licensor by a third-party alleging that Licensee’s use of the Software infringes or misappropriates the intellectual property rights of a third-party or violates applicable law if Licensee’s use of the Software was in breach of the terms of this Agreement.
Except as otherwise expressly permitted herein, Licensee and its principals, agents and employees shall not (and shall not allow any third party) to: (i) decompile, disassemble, or otherwise reverse engineer (except to the extent that applicable law prohibits reverse engineering restrictions) or attempt to reconstruct or discover any source code, underlying ideas, algorithms, workflows, file formats or programming or interoperability interfaces of the Software by any means whatsoever, (ii) remove any product identification, copyright, trademark or other notices, (iii) provide, lease, lend, use for timesharing, service bureau or hosting purposes or otherwise use or allow others to use the Software to or for the benefit of third parties, including, but not limited to, entities with which the Licensee or the principals of the Licensee are affiliated in any way, (iv) modify, or, except to the extent expressly authorized herein, incorporate into or with other software or create a derivative work of any part of the Software, (v) disseminate information or analysis (including, without limitation, benchmarks) regarding the quality or performance of the Software from any source, without prior written authorization by Licensor, or (vi) use the output or other information generated by the Software (including, without limitation, output describing the structure of a software program) for any purpose other than use by the Software in accordance with its specifications, or (vii) share the application in a client/server or networked environment.
- LIMITED WARRANTY
This software is provided by Licensor to Licensee with the understanding it will come with the features and functions as contracted to under the Term. It is understood software as a Service does come with certain potential technical issues as any other such software would come with and as commonly known within the software as a services industry. This includes but not limited to potential technical interruptions, indirect and non-intentional code discrepancy, scheduled interruptions from 3rd party providers and Acts of God. Licensor does not warrant that the Software is error free or that operations of the software will be uninterrupted. Licensor will address any interruptions at the speed of business and within reasonable times as appropriate to the priority of the issues.
Licensee has researched, reviewed and concluded the licensor has presented certain features and functions that do match and are compatible with their specific needs.
- SUPPORT AND MAINTENANCE
Solely during the Term, and provided Licensee has paid the applicable support and maintenance fees (if any), Licensor shall provide support and maintenance in accordance with Licensor’s then-current policies. Any patches, updates, etc. provided as part of Software maintenance shall be included within the definition of Software for the purposes of this Agreement to the extent made available by Licensor.
3.2 Limited Training
Based on the level of Service package purchased by Licensee Licensor will provide training to Licensee in accordance with Licensor’s then current training offerings and package pricing and at Licensor’s then current prices at mutually agreed upon times and locations. All training will be supplied via online video chats, phone calls or other forms of online communication unless otherwise mutually agreed to by both parties
This Agreement shall commence on the date it is first accepted by Licensee, and shall continue for the duration of the Agreement.
- LIMITATION OF LIABILITY
NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, AND TO THE EXTENT ALLOWED BY APPLICABLE DELAWARE LAW, LICENSOR SHALL NOT BE LIABLE OR OBLIGATED WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR UNDER CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY (i) FOR ANY AMOUNTS IN EXCESS OF THE TOTAL AMOUNT PAID TO LICENSOR BY LICENSEE WITH RESPECT TO THE COPIES OF SOFTWARE THAT ARE THE SUBJECT OF THE CLAIM DURING THE TWELVE MONTH PERIOD PRIOR TO ACCRUAL OF THE CAUSE OF ACTION; (ii) FOR ANY SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, FOR ANY LOST PROFITS, COST OF PROCUREMENT OF SUBSTITUTE SERVICES, TECHNOLOGY, SERVICES OR RIGHTS); (iii) FOR INTERRUPTION OF USE OR LOSS OR CORRUPTION OF DATA; OR (iv) FOR ANY MATTER BEYOND LICENSOR’S REASONABLE CONTROL.
- RIGHT TO AUDIT
On Licensor’s written request Licensee shall furnish Licensor with a signed certification certifying that the Software is being used pursuant to the terms of this Agreement including any copy and user limitations. Licensor may audit the Software in use by Licensee. With prior reasonable notice, Licensor may perform a physical audit of the Software in use by Licensee and, if applicable, the number of authorized users associated with such use, provided that such audit is during regular business hours. In the event the audit reveals a material discrepancy, Licensee shall pay Licensor the then current fees for the number of Licensees and/or authorized users reflected in the discrepancy and maintenance for any unauthorized use of the software.
- ACCEPTANCE OF TERMS AND CONDITIONS
Licensee agrees that the terms and conditions provided in this Agreement are binding on Licensee, and Licensee shall comply fully with such terms and conditions.
- GENERAL PROVISIONS
8.1 Cumulative Remedies
The remedies under this Agreement shall be cumulative and not alternative and the election of one remedy for a breach shall not preclude pursuit of other remedies unless as expressly provided in this Agreement.
8.2 Governing Law
This Agreement shall be governed in all respects by the Provision of Law as defined in the Master Subscription Agreement (MSA)
All notices under this Agreement shall be in writing and deemed to have been effectively given and received: (i) five (5) business days after the date of mailing if sent by registered or certified U.S. mail, postage prepaid, with return receipt requested; (ii) when transmitted if sent by facsimile, provided a confirmation of transmission is produced by the sending machine and a copy of such facsimile is promptly sent by another means specified in this Section 8.3; or (iii) when delivered if delivered personally or sent by express courier service. Unless otherwise specified by the receiving party, all notices shall be addressed as follows:
If to Licensee: As set forth in purchasing information provided to Licensor in the final Agreement
If to Licensor: MEDSENSE HEALTH, INC
503 Knight St., Ste. A
Richland, WA 99352
8.4 Export Restrictions
Licensee understands and acknowledges that certain technology Licensed hereunder may be subject to regulation by agencies of the U.S. government, including the U.S. Department of Commerce, which prohibit export or diversion of certain products and technology to certain countries or persons. Licensee warrants that it will comply in all respects with the export restrictions applicable to any materials or technology provided hereunder and will otherwise comply with the Export Administration Regulations or other United States laws and regulations in effect from time to time. Without limiting the foregoing, (i) Licensee represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports, and (ii) Licensee agrees to not permit any person to access or use the Software in violation of any U.S. export embargo, prohibition or restriction.
Licensee shall not assign or otherwise transfer any of its rights, obligations or Licensees hereunder without the prior written consent of Licensor, including any assignment by operation of law as a result of the merger or acquisition of Licensee, and only upon the original Licensee’s fully divesting itself, himself or herself of all possession of the Software and all media and copies thereof. Subject to the foregoing, the provisions of this Agreement shall apply to and bind the successors and permitted assigns of the parties.
8.6 Independent Contractor
The relationship created by this Agreement is one of independent contractors, and not partners, franchisees or joint venturers. No employees, consultants, contractors or agents of one party are employees, consultants, contractors or agents of the other party, nor do they have any authority to bind the other party by contract or otherwise to any obligation, except as expressly set forth herein. Neither party will represent to the contrary, either expressly, implicitly or otherwise.
8.7 Third Party Beneficiaries
Licensee acknowledges and agrees that there are no third party beneficiaries of this Agreement.
If any covenant set forth in this Agreement is determined by any court to be unenforceable by reason of its extending for too great a period of time or by reason of its being too extensive in any other respect, such covenant shall be interpreted to extend only for the longest period of time and to otherwise have the broadest application as shall be enforceable. The invalidity or unenforceability of any particular provision of this Agreement shall not affect the other provisions hereof, which shall continue in full force and effect.
8.9 Waiver of Rights
The failure of either party to insist, in any one or more instances, upon the performance of any of the terms, covenants, or conditions of this Agreement or to exercise any right hereunder, shall not be construed as a waiver or relinquishment of the future performance of any rights, and the obligations of the party with respect to such future performance shall continue in full force and effect.
8.10 Entire Agreement; Conflict
This Agreement, together with all exhibits or addenda hereto, constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements, understandings, negotiations, and discussions of the parties. In the event of any conflict between the terms and conditions of this Agreement and the applicable Master Subscription Agreement, the terms and conditions of the Master Subscription Agreement shall prevail.
8.11 Force Majeure
Either party shall be excused from any delay or failure in performance hereunder, except the payment of amounts due by Licensee, caused by reason of any occurrence or contingency beyond its reasonable control, including but not limited to, acts of God, earthquake, floods, lightning, labor disputes and strikes, other labor or industrial disturbances, riots, war, acts of the public enemy, insurrections, embargoes, blockages, regulations or orders of any government, agency or subdivision thereof, shortages of materials, rationing, utility or communication failures, casualty, novelty of product manufacture or other unanticipated product development problems, and governmental requirements. The obligations and rights of the party so excused shall be extended on a day-to-day basis for the period of time equal to that of the underlying cause of the delay; provided that such party shall give notice of such force majeure event to the other party as soon as reasonably possible.
8.12 Legal Expenses
To the extent allowed by applicable law, Licensee shall pay on demand all of Licensor’s reasonable attorneys’ fees and other costs incurred by Licensor to collect any amounts due and payable under this Agreement in any action arising out of or related to this Agreement, if the defendant is determined by a court of competent jurisdiction to have prevailed regarding the action, then the defendant shall be entitled to an award of its reasonable attorneys’ fees and costs of defending the action.
8.13 Government End-Users
The Software and accompanying Documentation are deemed to be “commercial computer software” and “commercial computer software documentation,” respectively, pursuant to DFAR Section 227.7202 and FAR Section 2.212, as applicable. Any use, modification, reproduction, release, performing, displaying or disclosing of the Software by the U.S. Government shall be governed solely by the terms of this Agreement and shall be prohibited except to the extent expressly permitted by the terms of this Agreement.