YOUR USE OF OUR WEBSITES AND THE HEALTHBEACON SERVICE IS SUBJECT TO AN ARBITRATION PROVISION IN SECTION 23 OF THIS AGREEMENT, REQUIRING ALL CLAIMS TO BE RESOLVED BY WAY OF BINDING ARBITRATION. PLEASE CAREFULLY REVIEW SECTION 23 OF THIS AGREEMENT FOR MORE INFORMATION BY DOWNLOADING AND/OR USING THE APP, YOU ARE CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO THIS AGREEMENT. IF YOU ARE NOT ELIGIBLE OR YOU DO NOT WISH TO BE BOUND BY THESE TERMS, YOU MAY NOT ACCESS OR USE THE APP SERVICE. BY ACCEPTING THESE TERMS OR BY USING THE HEALTHBEACON SERVICE, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THE FOLLOWING TERMS AND CONDITIONS, INCLUDING THE PRIVACY NOTICE.
The use of the HealthBeacon Unit, including the App, is governed by this document and the use of the HealthBeacon Service is a contract solely between you and HealthBeacon Limited.
These terms only apply to US residents. We reserve the right, at our discretion, to change these Terms on a going-forward basis at any time. Please check these Terms periodically for changes. If a change to these Terms materially modifies your rights or obligations, we will notify you of the modified Terms by email to the address you provided in your user profile. All modifications to these Terms will be effective immediately upon posting of the updated Terms on the Websites. Disputes arising under these Terms will be resolved in accordance with the version of these Terms that was in effect at the time the dispute arose. Your sole and exclusive remedy, if you do not agree with any modification to these Terms, is to cancel your User Account. You may not amend or modify these Terms under any circumstances.
"You or yours" refers to you as the person who has submitted your personal information to HealthBeacon agreeing to the HealthBeacon program and service. Where applicable, the term “You” shall also refer to the patients whose personal data is being collected, regardless of whether the patient is also the User.
“Healthcare Professional” refers to the licensed member(s) of the medical, dental, pharmacy or nursing professions who may prescribe to you a pharmaceutical product or medications that may be suitable for use with the HealthBeacon Services.
"We or our" refers to HealthBeacon Limited, a company incorporated under the laws of Ireland (registration number 530689), having its registered office at Unit 20, Naas Road Business Park, Muirfield Drive, Naas Road, Dublin 12, Ireland.
2.The App and Devices
A. The App. The App is intended to be used in conjunction with the HealthBeacon Unit and/or other connected medical devices (the Sharps Unit and other devices are collectively, “Devices”). The App and Devices are part of the HealthBeacon Injection Care Management System and intended to provide a convenient program for Users and/or their caregivers, as applicable to use to keep track of their adherence to prescribed medication regimens. Neither the App nor Devices are intended for continuous patient monitoring or in such a way that would allow immediate clinical action in an emergency situation.
B. The Devices. The HealthBeacon Unit is a cloud-connected medical sharps bin designed to support patients who self-administer injectable medications at home. When a User administers their medication and drops the used needle into the HealthBeacon Unit, the HealthBeacon Unit records that the patient administered their medication and syncs with the App to maintain up-to-date adherence records. The HealthBeacon Unit can be programmed to remind patients to take their medication via SMS text (if the User opts in), the App or via the device itself. Users may also receive other connected devices, such as a Bluetooth enabled weight scale, to record and automatically transmit the User’s weight to the App.
HealthBeacon and the HealthBeacon Services do NOT provide medical advice. The HealthBeacon Services are not intended to be a substitute for professional medical advice and should not be relied on as health or personal advice.
Always seek the guidance of your Healthcare Professional with any questions you may have regarding your health or a medical condition. Never disregard the advice of a professional, or delay in seeking it because of something you have read on the HealthBeacon Services.
THE APP CANNOT AND IS NOT DESIGNED, INTENDED, OR APPROPRIATE TO REPLACE THE RELATIONSHIP BETWEEN HEALTHCARE PROFESSIONALS AND PATIENTS OR TO ADDRESS SERIOUS, EMERGENT, OR LIFE-THREATENING MEDICAL CONDITIONS AND SHOULD NOT BE USED IN THOSE CIRCUMSTANCES. IF YOU THINK YOU MAY HAVE A MEDICAL EMERGENCY OR LIFE-THREATENING SITUATION, CALL YOUR HEALTHCARE PROFESSIONAL AND GO TO THE NEAREST HOSPITAL OR EMERGENCY ROOM. FURTHER, YOU ACKNOWLEDGE THAT IF YOU USE THE SERVICE AND APP DURING OR IN RELATION TO AN EMERGENT, SERIOUS, OR LIFE-THREATENING CONDITION, SUCH USE IS AT YOUR SOLE RISK. HEALTHBEACON IS NOT LIABLE TO YOU OR ANY PERSON FOR ANY DECISION MADE OR ACTION TAKEN IN RELIANCE UPON INFORMATION INCLUDED IN THE SERVICE AND APP. HEALTHBEACON IS NOT LIABLE TO ANY USER OR PERSON FOR ANY HARM CAUSED BY THE NEGLIGENCE OR MISCONDUCT OF ANY healthcare professionals OR CLINICIANS/CAREGIVERS, WHETHER OR NOT RELYING UPON INFORMATION COLLECTED, GENERATED, OR STORED VIA THE APP.Any medical advice provided by a Healthcare Professional or member of your medical using information from the App is based on the personal health data the User provides. You, as the user of the App and service, are responsible for the data you enter and store on the App. If You do not provide complete and accurate personal health information, the medical advice You receive may not be accurate or appropriate. We are not liable for any damage which results from your failure to follow the advice given by your Healthcare Professional. Please note that the Sharps Unit reminds you when your medication is due (as directed by your Healthcare Professional) based on the medication schedule that you submit to HealthBeacon. HealthBeacon is not responsible for the medication schedule submitted. Furthermore, HealthBeacon shall not have any responsibility in relation to any communication between you and your Healthcare Professional resulting from or related to the Services capturing that you have missed a dosage or taken an incorrect dosage.
If you have an unexpected or negative reaction (an “Adverse Event”) that may be related to the use of a medical product, such as the HealthBeacon Unit, it is important that you inform your Healthcare Professional and also report it to the company that makes or sells the product so it can investigate the incident. You may report the product and Adverse Event to us at firstname.lastname@example.org. You can also report the problem to the United States Food and Drug Administration (FDA) at https://www.fda.gov/medwatch/index.html or your local FDA. We will take the necessary steps following any notice of an Adverse Event.
5. Notifications and Reports
A. Push Notifications. HealthBeacon may present you with notifications, alerts or suggested actions based on HealthBeacon’s analysis of your historical data and other information you have provided to HealthBeacon. Those notifications or suggested actions, or lack thereof, are not an indication of your health, nor are those notifications or suggested actions intended to replace the opinion of your Healthcare Professional. It is your responsibility to present your data to your Healthcare Professional and to discuss with your Healthcare Professional what the proper course of action is based on your medical history. HealthBeacon makes no representations about the accuracy, reliability, completeness, or timeliness of any push notifications, as parts of the process are outside of HealthBeacon’s control. You accept that any reliance on these will be at your own risk, and HealthBeacon disclaims all liability arising from your use of them. You agree that HealthBeacon may send push notifications to your mobile device for HealthBeacon Service-related or marketing purposes if they are enabled and per the Privacy Notice. You may turn off push notifications through your device settings.
You accept the smart reminders and interventions that you receive from the HealthBeacon program that are based on the information that the HealthBeacon team have received from you. If your schedule changes, please update your information in the App or contact a member of the HealthBeacon customer care team to discuss.
Questions and information collected through the App are designed for informational and/or research purposes and to identify potential patterns in symptomologies and treatments; the App and/or any data derived from the App are in no way intended to replace the independent clinical judgement of a qualified Healthcare Professional.
B. Reports. You may use the App to view reports from the App, which include information such as a User’s proxy adherence score and injections tracked. Please note that by capturing disposal of injection, the HealthBeacon Services are acting as a proxy that the patient has taken their medication, and that any reports should not be considered proof that a User has taken their medication. Any reports generated from HealthBeacon serve the same purpose: to provide you more information with which to consult your Healthcare Professional, not as a substitute to consulting your Healthcare Professional. These reports are intended as information only. Recommendations based on your data can only be accomplished by your Healthcare Professional. It is your responsibility to present your medical data to your Healthcare Professional and medical team for proper analysis.
When you register for a User Account, you may be required to provide us with some information about yourself including personal information such as your name, email address, password, gender, height and birthdate. You may choose to provide additional information to us. You agree that the information you provide to us is accurate and that you will keep it accurate and up-to-date at all times. When you register, you will be asked to provide a password. You are solely responsible for maintaining the confidentiality of your User Account and password, and you accept responsibility for all activities that occur under your User Account. If you have reason to believe that your User Account is no longer secure, then you must immediately notify us at email@example.com .
The App is designed to require users to create a username and password to access and use the App. Your username and password are, collectively, Your “User Credentials.” You are solely responsible for (A) maintaining the strict confidentiality of Your User Credentials, (B) not allowing another person to use Your User Credentials to access the App, (C) any and all damages or losses that may be incurred or suffered as a result of any activities that occur under Your User Credentials, regardless of whether You were aware of those activities. You agree to immediately notify HealthBeacon in writing by email of any unauthorized use of Your User Credentials or any other compromise of the security of Your User Account.
HEALTHBEACON IS NOT AND SHALL NOT BE LIABLE FOR ANY HARM ARISING FROM OR RELATING TO THE THEFT OF YOUR USER CREDENTIALS AND/OR ANY RESULTING ACCESS TO YOUR PERSONAL DATA, YOUR DISCLOSURE OF YOUR USER CREDENTIALS, OR THE USE OF YOUR USER CREDENTIALS BY ANOTHER PERSON OR ENTITY REGARDLESS OF WHETHER YOU WERE AWARE OF SUCH USE.
7. Your Representations and Warranties.
By registering for a User Account and using the App, You represent and warrant that:
- You are at least 18 years old and are otherwise legally qualified to enter into and form contracts under applicable law.
- All of the information, data and other materials provided by you, including but not limited to your registration data information, is true, accurate, current, and complete.
- You will update Your registration data information as needed to maintain its accuracy.
- You agree that you are a resident in of the United States.
- You are authorized to create a User Account (either for Yourself or another person) and You agree to not disclose your authorization credentials (username and password) to any third party.
- You will not access or use the HealthBeacon Service except as expressly permitted by these Terms and any additional instructions, guidelines or policies issued by HealthBeacon, including those posted in the HealthBeacon Service.
- By using the App, you represent and
warrant that You have the legal authority to share Your and/or Your
dependent’s health data and other Personal Data (as that term is defined
in the Privacy Notice) with Us. Our use of the information You provide to
Us via the App is subject to the Privacy Notice in effect at the time we
8. Access through Mobile Devices
Your contract with your mobile network provider (“Mobile Provider”) will continue to apply when accessing or using the HealthBeacon Services on your mobile, handheld device (“Mobile Device”). You understand that your Mobile Provider may charge you fees for your use of its network connection while accessing or using the HealthBeacon Services, for data downloading, e-mail, text messages, for roaming, and other Mobile Provider or third party charges. Standard messaging rates may apply. YOU ACCEPT RESPONSIBILITY FOR ALL MOBILE PROVIDER FEES. Please review our Privacy Notice for more information on how we administer SMS text messaging, including details on how to opt-out.
9. License and Proprietary RightsA. Our Content. The HealthBeacon Services may include or provide access to information, software, photos, videos, text, graphics, music, sounds, and other material or information provided by us or third parties (collectively, the “HealthBeacon Content”) that are protected by copyrights, patents, trademarks, trade secrets, or other intellectual property laws. You understand and agree that as between you and HealthBeacon, HealthBeacon owns the rights in any HealthBeacon Content as expressed in any form, media, or technologies existing now or developed in the future. Our Services, our Platform, the designs of each of the foregoing, and any other proprietary technology used in our Services
(collectively, the “HealthBeacon Technology”) and any and all intellectual property rights worldwide in the foregoing, including all improvements, modifications, enhancements and derivative works thereof, shall at all times remain the exclusive property of HealthBeacon and/or its third-party licensors. You are not acquiring any rights in or to the HealthBeacon Technology other than a non-exclusive right to access and use our Services solely in accordance with the terms of this Agreement. You may not use HealthBeacon’s name, trademarks, intellectual property, service marks, or logos, or those of third parties appearing on the App in any advertising or publicity or to otherwise indicate HealthBeacon’s or such third party’s sponsorship or affiliation with any product or service without the express written permission from HealthBeacon or such third party.
The HealthBeacon Service is owned and operated by HealthBeacon. The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services, and all other elements of the HealthBeacon Service (“Materials”) provided by HealthBeacon are protected by intellectual property and other laws. All Materials included in the HealthBeacon Service are the property of HealthBeacon or our third-party licensors. Except as expressly authorized by HealthBeacon, you may not make use of the Materials. HealthBeacon reserves all rights to the Materials not granted expressly in these Terms.’
B. License We Grant You. Subject to the restrictions outlined in these Terms, HealthBeacon grants you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to install and use the App in object code format on devices that you own or control, solely for use with the HealthBeacon Services.
C. Your Content. You represent and warrant that you own all content you post on or through the HealthBeacon Services. If you are entering someone else’s information into the App, you represent and warrant that you have permission to do so. For us to provide You with the App, You grant to HealthBeacon a perpetual, non-exclusive, fully paid and royalty-free, transferable, sublicensable, worldwide license to use Your data and content provided to the App, subject to the restrictions in the Privacy Notice. You also agree to allow HealthBeacon to de-identify and anonymize Your data and content, including without limitation, Your personal health information per the Privacy Notice, and to use or disclose such de-identified information for any purpose.
D. Data. “Data” means any data that is generated by the HealthBeacon Services or through use of the HealthBeacon Services (including but not limited to patient usage and diagnostic data).
Subject to applicable laws (including Applicable Data Privacy Legislation), we may use, rent or sell aggregated Data and/or other information that does not contain any personal identiﬁers (i.e., the information has been anonymized by stripping out identiﬁers such as name, address, phone number, etc.) which has been collected as part of a patients participation in the HealthBeacon Services. The anonymized Data may be used to help develop and evaluate the program, archiving data for statistical purposes, shared or published through academic journals or media platforms for lawful purposes. Once Data is anonymized, it is no longer personal data, and we may use Data for any business purpose.
10. App Store & Google Play
If you downloaded the Application from the Apple App Store or Google Play (the “App Provider”), by agreeing to this Agreement, you acknowledge that you understand and agree to the following:
1. this Agreement is only between You and HealthBeacon, and not between You and the App Provider, and only HealthBeacon is responsible for the Application (not the App Provider).
2. the App Provider has no obligation to furnish any maintenance or support services with respect to the Application.
3. in the event of any failure of the Application to conform to any applicable warranty (i) to the maximum extent permitted by applicable law, the App Provider will have no other warranty obligation whatsoever with respect to the Application, and (ii) any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be our responsibility;
4. the App Provider is not responsible for addressing any claims you have or any claims of any third party relating to the Applications or your possession and use of the Applications, including, but not limited to: (i) product liability claims; (ii) any claim that the app fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation;
5. in the event of any third-party claim that the Applications or your possession and use of the Applications infringes that third party’s intellectual property rights, the App Provider will not be responsible for the investigation, defense, settlement or discharge of any such intellectual property infringement claim; and
6. the App Provider, and its subsidiaries, are third party beneficiaries of this Agreement as it relates to your license of the Applications. This means that, upon your acceptance of this Agreement, the App Provider will have the right (and will be deemed to have accepted the right) to enforce this Agreement as related to your license of the Applications against you.
Apple users only: If you downloaded the Applications from the App Store, the license granted to you in this Agreement is non-transferable and is for use of the Applications on any Apple products that You own or control.
HealthBeacon imposes certain restrictions on Your use of the App. While using the App, You shall not:
1. provide false, misleading or inaccurate information to HealthBeacon or any other user.
2. impersonate, or otherwise misrepresent affiliation, connection or association with any person or entity.
3. use or attempt to use any engine, software, tool, agent, or other device or mechanism (including without limitation browsers, spiders, robots, avatars, or intelligent agents) to harvest or otherwise collect information from the Website for any use, including without limitation use on third-party websites;
4. access content or data not intended for You, or log onto a server or account that You are not authorized to access.
5. use or access the HealthBeacon Service (a) from a jurisdiction where such use or access is not authorized, (b) for any illegal purpose, or (c) in violation of any local, state, national, or international law;
6. attempt to probe, scan, or test the vulnerability of the App, the Website, or any associated system or network, or breach security or authentication measures without proper authorization.
7. interfere or attempt to interfere with the use of any part of the App by any other user, host or network, including, without limitation by means of submitting a virus, overloading, “flooding,” “spamming,” “mail bombing,” or “crashing”;
8. forge any TCP/IP packet header or any part of the header information in any e-mail or in any uploading or posting to, or transmission, display, performance or distribution by means of the App.
9. post or transmit any unsolicited advertising, promotional materials, “junk mail”, “spam,” “chain letters,” “pyramid schemes” or any other form of solicitation.
10. avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by HealthBeacon, You, or any other third party (including another user) to protect the App.
11. attempt to modify, reverse-engineer, decompile, disassemble or otherwise reduce or attempt to reduce to a human-perceivable form any of the source code used by HealthBeacon in providing the Website or Application. Any violation of this section may subject You to civil and/or criminal liability.
12. connect or use the Device(s) with any application or software platform other than the App;
13. conduct activities that may be harmful to others or that could damage HealthBeacon’s reputation;
14. violate, or encourage others to violate, any right of a third party, including by infringing or misappropriating any third party intellectual property right, or disclosing personal information about another person;
15. assign, sublicense, lease, sell, grant a security interest in, or otherwise transfer the access granted under these Terms;
16. use or access the HealthBeacon Services in order to build or develop, or assist a third party in building or developing, a competing service or products;
17. license, sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit the HealthBeacon Services, whether in whole or in part;
18. disrupt, interfere with, or otherwise adversely affect the normal flow of the HealthBeacon Services or otherwise act in a manner that may negatively affect other users’ experience when using such; or
19. encourage or enable any other individual to do any of the above;
HealthBeacon is not obligated to monitor Your use of the App, but We may do so to ensure Your compliance with these Terms and/or to respond to law enforcement or other government agencies if and when we are required to. HealthBeacon reserves the right to suspend or terminate Your use of the App without notice to You if You partake in any of the prohibited uses described above.
12. Privacy Notice
HealthBeacon respects the information You provide to us. Please see our Privacy Notice for a full explanation of the information that we collect from You and how we use that information.
13. Computer Equipment and Internet Access
You are responsible for obtaining, installing, maintaining and operating all software, hardware or other equipment (collectively, "Systems") necessary for You to access and use the App. This includes, without limitation, obtaining Internet services, using up to date web-browsers and the best commercially available encryption, antivirus, anti-spyware, and internet security software. You are responsible for the data security of the Systems used to access the App and for the transmission and receipt of information using such Systems. We are not responsible for any errors or problems that arise from the malfunction or failure of the Internet or Your Systems.
THERE ARE ALWAYS CERTAIN SECURITY AND ACCESS AVAILABILITY RISKS ASSOCIATED WITH USING OPEN NETWORKS SUCH AS THE INTERNET, AND YOU EXPRESSLY ASSUME SUCH RISKS.
14. Third Party Services and Third-Party Sites
HealthBeacon may provide tools through the HealthBeacon Service that enable you to export information, including without limitation your HealthBeacon records and User Content, to third-party applications or services such as Google Fit or Apple Health, or import information from such third-party applications or services, including through features that allow you to link your User Account on HealthBeacon with an account on the third-party service. By using one of these tools, you represent, warrant, and agree that such transfers are permitted under applicable law and that you are authorized to, and that we may on your behalf, transfer that information to or from the applicable third-party service in accordance with the Privacy Notice. Third-party services are not under our control, and we are not responsible for any third party’s use of your exported information. If you enable the features of the HealthBeacon Service that are designed to import information from such third-party services, you hereby authorize and grant HealthBeacon a perpetual, irrevocable license to use such imported information and disclose it to third parties such as your healthcare professional in accordance with the Privacy Notice and applicable law. The HealthBeacon Service may also contain links to third-party websites. Linked websites are not under our control, and we are not responsible for their content.
YOU AGREE THAT HEALTHBEACON WILL NOT, UNDER ANY CIRCUMSTANCES, BE RESPONSIBLE OR LIABLE, DIRECTLY OR INDIRECTLY, FOR ANY GOODS, APPLICATION, INFORMATION, RESOURCES, AND/OR CONTENT AVAILABLE ON OR THROUGH ANY THIRD-PARTY SITES AND/OR THIRD-PARTY DEALINGS OR COMMUNICATIONS, OR FOR ANY HARM RELATED THERETO, OR FOR ANY DAMAGES OR LOSS CAUSED OR ALLEGED TO BE CAUSED BY OR IN CONNECTION WITH YOUR USE OR RELIANCE ON THE CONTENT OR BUSINESS PRACTICES OF ANY THIRD-PARTY. Any reference in the App to any product, service, publication, institution, organization of any third-party entity, or individual does not constitute or imply HEALTHBEACON’S endorsement or recommendation.
15. Warranty Disclaimers
THE HEALTHBEACON APP AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE HEALTHBEACON SERVICE ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS, WITHOUT WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED. THE HEALTHBEACON ENTITIES DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE HEALTHBEACON SERVICE, ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE HEALTHBEACON SERVICE, AND ANY SOFTWARE OR HARDWARE ASSOCIATED OR USED WITH THE HEALTHBEACON SERVICE, OR THE AVAILABILITY OF ANY OF THE FOREGOING, INCLUDING (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; (B) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE; AND (C) ANY WARRANTY AS TO WHETHER THE DATA OR OTHER INFORMATION AVAILABLE ON OR CAPTURED BY THE HEALTHBEACON SERVICE IS TRUE, COMPLETE OR ACCURATE. YOU SPECIFICALLY ACKNOWLEDGE AND AGREE THAT HEALTHBEACON 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 HEALTHBEACON SERVICE, WHETHER SUCH DATA IS ACCURATE OR INACCURATE. WE DO NOT WARRANT THAT THE HEALTHBEACON SERVICE OR ANY PORTION OF THE HEALTHBEACON SERVICE, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE HEALTHBEACON SERVICE, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND DO NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED.
YOU ASSUME ALL RISK FOR ANY DAMAGE THAT MAY RESULT FROM YOUR USE OF OR ACCESS TO THE HEALTHBEACON SERVICE, YOUR DEALING WITH ANY OTHER HEALTHBEACON SERVICE USER, AND ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE HEALTHBEACON SERVICE. YOU UNDERSTAND AND AGREE THAT YOU USE THE HEALTHBEACON SERVICE, AND USE, ACCESS, DOWNLOAD, OR OTHERWISE OBTAIN MATERIALS OR CONTENT THROUGH THE HEALTHBEACON SERVICE AND ANY ASSOCIATED SITES OR SERVICES, AT YOUR OWN DISCRETION AND RISK, AND THAT YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE HEALTHBEACON SERVICE), OR THE LOSS OF DATA THAT RESULTS FROM THE USE OF THE HEALTHBEACON SERVICE OR THE DOWNLOAD OR USE OF THAT MATERIAL OR CONTENT. IT IS YOUR RESPONSIBILITY TO BACK UP ANY INFORMATION YOU ENTER INTO HEALTHBEACON.
HEALTHBEACON MAKES NO WARRANTY THAT THE HEALTHBEACON SERVICES WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE 24/7 OR ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. HEALTHBEACON MAKES NO WARRANTY REGARDING THE QUALITY OF ANY PRODUCTS, APPLICATION, OR MATERIALS ACCESSED OR PURCHASED THROUGH THE APPLICATION OR THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS, OR RELIABILITY OF ANY CONTENT OBTAINED THROUGH THE APP.
YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH THE APP AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE APP, INCLUDING, WITHOUT LIMITATION, HEALTHCARE PROFESSIONALS, CLINICIANS/CAREGIVERS, OR AUTHORIZED THIRD PARTIES. YOU UNDERSTAND THAT HEALTHBEACON DOES NOT TAKE RESPONSIBILITY FOR SCREENING OR INQUIRY INTO THE BACKGROUND OF ANY USERS OF THE APP, INCLUDING, WITHOUT LIMITATION, PROVIDERS AND/OR CLINICIANS/CAREGIVERS, NOR DOES HEALTHBEACON VERIFY OR TAKE RESPONSIBILITY FOR THE STATEMENTS OF ANY SUCH USERS OF THE APP. HEALTHBEACON MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT OF USERS OF THE APP, INCLUDING, WITHOUT LIMITATION, HEALTHCARE PROFESSIONALS AND/OR CLINICIANS/CAREGIVERS.
THE ABOVE PARAGRAPHS APPLY TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW. SOME JURISDICTIONS MAY PROHIBIT A DISCLAIMER OF WARRANTIES.
16. Limitation of Liability
IN NO EVENT WILL HEALTHBEACON BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE HEALTHBEACON SERVICE, DEVICES OR ANY MATERIALS OR CONTENT ON THE HEALTHBEACON SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY HEALTHBEACON ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE. 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.
EXCEPT AS PROVIDED, IF HEALTHBEACON CANNOT LAWFULLY DISCLAIM LIABILITY FOR ANY OF THE FOREGOING DAMAGES, THEN THE AGGREGATE LIABILITY OF THE HEALTHBEACON ENTITIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE HEALTHBEACON SERVICE OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF THE AMOUNTS YOU HAVE PAID TO USE THE HEALTHBEACON SERVICE OR $100, TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN WHICH CASE SUCH LIMITATIONS SHALL APPLY TO YOU TO THE EXTENT PERMITTED IN SUCH JURISDICTION. FURTHERMORE, NOTHING IN THESE TERMS LIMITS OR EXCLUDES ANY LIABILITY THAT CANNOT BE LIMITED OR EXCLUDED BY LAW, SUCH AS LIABILITY FOR INTENTIONAL VIOLATION OF THESE TERMS.
EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
To the fullest extent permitted under applicable law, you are responsible for your use of the HealthBeacon Service, and you will indemnify, hold harmless, and defend HealthBeacon and its officers, directors, employees, representatives, consultants, affiliates, subsidiaries and agents (together, the “HealthBeacon Entities”) from and against every claim, liability, damage, loss, and expense, including reasonable attorneys’ fees and costs, arising out of or in any way connected with: (a) your access to, use of, or alleged use of, or inability to use or improper use of the HealthBeacon Service; (b) your violation of any portion of these Terms, any representation, warranty, or agreement referenced in these Terms, or any applicable law or regulation; (c) your violation of any third-party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; (d) any dispute or issue between you and any third party, including but not limited to your Healthcare Professional; (e) all claims arising from or alleging fraud, intentional misconduct, criminal acts, or gross negligence committed by you; and (f) bodily injury, death, or damage to physical property. To the fullest extent permitted under applicable law, we reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of that claim.
We welcome and encourage You to provide feedback, comments, and suggestions for improvements to the App (“Feedback”). You may submit Feedback by e-mailing Us at firstname.lastname@example.org. You acknowledge and agree that if You submit any Feedback to Us, You hereby grant to Us a non-exclusive, worldwide, perpetual, irrevocable, fully-paid, royalty-free, sub-licensable, and transferable license under any and all intellectual property rights that You own or control to use, copy, modify, create derivative works based upon, and otherwise exploit the Feedback for any purpose.
19. Account and Services Termination
You may terminate your User Account at any time by following the procedures detailed in the App and on the Website or contacting customer service at email@example.com. If you violate any provision of these Terms, we reserve the right to terminate your use of and access to the HealthBeacon Services.
HealthBeacon may in its sole discretion, terminate your User Account on the HealthBeacon Service or suspend or terminate your access to the HealthBeacon Service at any time if you violate any provision of these Terms, if we no longer provide any part of the HealthBeacon Services or for any other reason, with or without notice.
We also reserve the right to modify the HealthBeacon Service at any time (including by limiting or discontinuing certain features of the HealthBeacon Service), temporarily or permanently If we decide to discontinue the HealthBeacon Service, we may give prior notice to you.
20. General Contract Terms
A. Entire Agreement. These Terms, the Privacy Notice, and any other terms incorporated herein by reference constitute the entire and exclusive understanding and agreement between HealthBeacon and You regarding HealthBeacon Service, the App, and these Terms supersede and replace any and all prior oral or written understandings or agreements between HealthBeacon and You regarding the App.
B. Additional Terms. Your use of the HealthBeacon Service is subject to all additional terms, policies, rules, or guidelines applicable to the HealthBeacon Service or certain features of the HealthBeacon Service available at the Website (the “Additional Terms”), All Additional Terms are incorporated by this reference into and made a part of these Terms.
C. Subcontractors. You hereby consent to HealthBeacon’s engagement of third parties (including HealthBeacon’s affiliates) to perform or support the performance of, all or any portion of the HealthBeacon Service or the HealthBeacon website, such as the clinical interpretation service.
D. Force Majeure. HealthBeacon will be excused from performance under these Terms for any period that it is prevented from or delayed in performing any obligations pursuant to these Terms, in whole or in part, as a result of a Force Majeure Event. To the fullest extent permitted under applicable law, for purposes of this section, “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; (5) telecommunications, network, computer, server or Internet downtime; (6) unauthorized access to HealthBeacon’s information technology systems by third parties; or (7) other causes beyond the reasonable control of HealthBeacon.
E. Assignment. You may not assign or transfer these Terms, by operation of law or otherwise, without HealthBeacon’s prior written consent. Any attempt by You to assign or transfer these Terms, without such consent, will be null and of no effect. HealthBeacon may assign or transfer these Terms, at its sole discretion, without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors, and permitted assigns.
F. Notices; Consent to Electronic Communications. By using the HealthBeacon Service, you consent to receive certain electronic communications from us as further described in the Privacy Notice. Please read the Privacy Notice to learn more about our electronic communications practices. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that those communications be in writing. All notices from HealthBeacon 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 the HealthBeacon Service. If you change the email address provided in connection with your registration to access and use the HealthBeacon Service, you must update your address in accordance with the procedures set forth on the HealthBeacon Service. By providing your mobile number to us, you consent to receive text messages at that number as requested for User Account verification, message notifications, promotional purposes and other purposes related to the HealthBeacon Service. If you wish to opt out of such text messages, you may do so. While we do not charge a fee for text messages, your carrier may charge standard messaging, data, and other fees. You are responsible for those charges. We may send and receive text messages through cellular telephone operators or other networks, and the level of reliability may vary. We are not responsible for the timeliness or final delivery of the message, as this is outside our control and is the responsibility of the cellular telephone operator or other networks. Notwithstanding the foregoing, we will use your mobile number in accordance with the Privacy Notice.
21. Dispute Resolution and Arbitration
PLEASE READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE CERTAIN DISPUTES AND CLAIMS WITH US AND LIMITS THE MANNER IN WHICH YOU MAY SEEK RELIEF FROM US.
A. Governing Law. These Terms, including this Section 22, are governed by the laws of the State of Massachusetts without regard to conflict of law principles. Jurisdiction and venue for any dispute (including arbitration) arising out of these Terms will exclusively rest within the State and Federal Courts of Massachusetts and each party hereby waives all defenses of lack of personal jurisdiction and forum non conveniens related thereto.
B. Generally. To the fullest extent permitted under applicable law and in the interest of resolving disputes between you and HealthBeacon most expediently and cost-effectively, you and HealthBeacon agree that every dispute arising in connection with these Terms will be resolved by binding arbitration.
YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND HEALTHBEACON ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION, TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW.
C. Opt-Out of Agreement to Arbitrate. You can decline this agreement to arbitrate by contacting support@HealthBeacon.com within 30 days of first accepting these Terms of Service and stating that you (include your first and last name, and email address used to register for the HealthBeacon Service) decline this arbitration agreement.
D. Exceptions. Nothing in this section will be deemed to waive, preclude, or otherwise limit the right of either party to (a) bring an individual action in small claims court; (b) pursue enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law; or (d) to file suit in a court of law to address an intellectual property infringement claim.
E. Arbitrator. To the fullest extent permitted under applicable law, any arbitration between you and HealthBeacon will be settled under the Federal Arbitration Act and governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer-Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by these Terms, and will be administered by the AAA.
F. Notice; Process. A party
who intends to seek arbitration must first send a written notice of the dispute
to the other party by certified U.S. Mail or by Federal Express (signature
required) or, only if such other party has not provided a current physical
address, then by electronic mail (“Notice”). HealthBeacon’s address for Notice
is HealthBeacon Ltd. 423 West Broadway, Ste 301
South Boston, MA 02127. The Notice must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice is received, you or HealthBeacon may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or HealthBeacon must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award if any. If the dispute is finally resolved through arbitration in your favor, HealthBeacon will pay you the highest of the following: (i) the amount awarded by the arbitrator, if any; (ii) the last written settlement amount offered by HealthBeacon in settlement of the dispute prior to the arbitrator’s award; or (iii) $1,000.
G. Fees. If you commence arbitration in accordance with these Terms, HealthBeacon will reimburse you for your payment of the filing fee, unless your claim is for more than $10,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location, to be agreed upon, in the state of Massachusetts, but if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephone hearing, or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards outlined in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse HealthBeacon for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of how the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
H. No Class Actions. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, YOU AND HEALTHBEACON 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 HealthBeacon agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding, to the fullest extent permissible pursuant to applicable law.
I. Claims. Unless otherwise prohibited by applicable law, no action arising out of, in connection with, or relating to these Terms shall be brought by you more than two (2) years 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 that 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, to the fullest extent permitted under applicable law.
J. Modifications to this Arbitration Provision. If HealthBeacon makes any future change to this arbitration provision, other than a change to HealthBeacon’s address for Notice, you may reject the change by sending us written notice within 30 days of the change to HealthBeacon’s address for Notice, in which case your User Account with HealthBeacon will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.
22. Contacting HealthBeacon