Applicable to customers of Eko resellers
Effective: January 31, 2019
IF YOU ARE NOT ELIGIBLE, OR DO NOT AGREE TO THE TERMS, THEN YOU DO NOT HAVE OUR PERMISSION TO USE THE EKO PRODUCTS.
THE EKO PRODUCTS ARE AVAILABLE TO USERS IN THE UNITED STATES OF AMERICA (USA) AND CERTAIN OTHER COUNTRIES IN WHICH EKO ELECTS TO MAKE THE EKO PRODUCTS AVAILABLE. THE APPLICATION IS INTENDED TO BE USED AS A PART OF A PHYSICAL ASSESSMENT OR MONITORING OF A PATIENT BY HEALTHCARE PROFESSIONALS FOR DIAGNOSTIC DECISION SUPPORT.
IT IS YOUR RESPONSIBILITY TO INTERPRET MEDICAL DATA FOR PROPER ANALYSIS AND DIAGNOSIS.
1.0 REGISTRATION; TERM OF REGISTRATION
1.1. Registration through the Application
You must be a registered user with Eko Devices, Inc. (“Eko”) in order to use certain Eko Products (the “Application”). You may register through the Application or through the Eko Devices website located at https://dashboard.ekohealth.com (“Website”). By submitting the information requested in the Application’s online registration form, You may access and use the Application and Website to view certain data pertaining to You as made available by Eko. You may not access or use the Application or Website for any other purpose.
1.2. Term of Your Registration
You must be at least 13 years of age to use the Eko Products. By agreeing to these Terms, you represent and warrant to us that: (a) you are at least 13 years of age; (b) you have not previously been suspended or removed from the Application; and (c) your registration and your use of the Eko Products is in compliance with all applicable laws and regulations in your local jurisdiction. If you are using the Eko Products on behalf of an entity, organization, or company, you represent and warrant that you have the authority to bind that organization to these Terms and you agree to be bound by these Terms on behalf of that organization.
All notices from Eko intended for receipt by You shall be deemed delivered and effective when sent to the email address provided by You during the registration process or when posted to and made available to You on Application or Website (in either case, “Notice”). If You change the email address provided in connection with Your registration to access and use the Application, You must update Your address in accordance with the procedures set forth on the Website.
Access to the Application, or to certain features of the Application, may require you to pay fees, and your limited right to access and use such Application or features is strictly contingent on Eko’s receipt of such fees, whether directly or via the Reseller. If Eko or an authorized Reseller changes the fees required for use of the Application, including by adding additional fees or charges, Eko and/or the authorized Reseller will provide you advance notice of those changes and the changes will be applied on a going-forward basis. If you do not accept the changes, Eko and/or the Reseller may discontinue providing the Application to you.
You acknowledge and agree that Eko may, in its sole discretion, modify the Application and these Terms (including any instructions, policies or guidelines referenced herein) at any time and in any manner. Upon modification of these Terms, Eko will notify You in advance. All such modifications shall be binding upon You when made. You may not amend or modify the Application, Website, Eko Products or these Terms under any circumstances.
3.0 REPRESENTATIONS, COVENANTS AND WARRANTIES
3.1. Representations, Covenants and Warranties of Registrant
You represent, covenant and warrant to Eko that (1) You are a resident of the USA or certain other countries in which resale of the Applicant is authorized by Eko; (2) will use the Eko Products as intended; (3) these Terms constitute a valid and binding agreement with You, enforceable against You in accordance with their terms; (4) if you are using the Eko Products on behalf of another entity, you are an authorized representative of the entity and have the authority and agree to bind the entity to these Terms; (5) You will not access or use the Eko Products except as expressly permitted by these Terms and any additional instructions, guidelines or policies issued by Eko or the authorized reseller from whom you purchased the Eko Products, including those posted in the Application or on the Website; (6) You will access and use the Eko Products in full compliance with applicable Law (as defined in Section 4.1); and (7) all of the information, data and other materials provided by You in support of Your online registration are accurate and truthful in all respects.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT: (A) YOUR USE OF THE WEBSITE AND APPLICATION IS AT YOUR SOLE RISK, AND THE WEBSITE AND APPLICATION ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THESE TERMS, EKO MAKES NO REPRESENTATIONS, COVENANTS OR WARRANTIES AND OFFERS NO OTHER CONDITIONS, EXPRESS OR IMPLIED, REGARDING ANY MATTER, INCLUDING (1) THE MERCHANTABILITY, SUITABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, NON-INFRINGEMENT OR RESULTS TO BE DERIVED FROM THE USE OF THE APPLICATION, WEBSITE OR ANY DATA SERVICE, SOFTWARE, HARDWARE, DELIVERABLE, WORK PRODUCT OR OTHER MATERIALS RELATED TO THE APPLICATION OR WEBSITE OR ANY EKO PRODUCT, OR THE AVAILABILITY OF ANY OF THE FOREGOING; OR (2) WHETHER THE INFORMATION AVAILABLE ON OR TRANSMITTED BY THE APPLICATION OR WEBSITE IS TRUE, COMPLETE OR ACCURATE. YOU SPECIFICALLY ACKNOWLEDGE AND AGREE THAT EKO IS NOT RESPONSIBLE FOR ANY HEALTHCARE OR RELATED DECISIONS MADE BY YOU OR YOUR HEALTHCARE PROFESSIONAL BASED UPON DATA COLLECTED, TRANSMITTED OR DISPLAYED BY OR ON THE APPLICATION, THE WEBSITE OR ANY EKO PRODUCT, WHETHER SUCH DATA IS ACCURATE OR INACCURATE. FURTHER, EKO DOES NOT REPRESENT, COVENANT OR WARRANT THAT ACCESS TO OR SERVICES PROVIDED BY THE APPLICATION OR WEBSITE WILL BE UNINTERRUPTED OR ERROR-FREE. YOU ACKNOWLEDGE AND AGREE THAT THERE ARE RISKS INHERENT TO TRANSMITTING INFORMATION OVER AND STORING INFORMATION ON THE INTERNET AND THAT EKO IS NOT RESPONSIBLE FOR ANY LOSSES OF YOUR DATA, CONFIDENTIALITY OR PRIVACY IN CONNECTION THEREWITH.
4.2 Use Prohibitions
5.1. Use of Contractors
Eko may engage a third party (including Eko’s affiliates) to perform, or support the performance of, all or any portion of the Application, the Website or an Eko Product. Any engagement with any third party will be conducted in accordance with the Eko Privacy Notice described in Section 7.1.
6.0 INTELLECTUAL PROPERTY RIGHTS; RESTRICTIONS ON USE
6.1. Ownership of the Application and Related Data
As between Eko and You (collectively, “Parties”), Eko owns and will retain ownership of all rights, title and interest in and to the Application and the Website, including (1) all content displayed on the Application or the Website, to the extent such content is developed by Eko or its third party licensors, including any derivative works of the Application or Website and any such content; and (2) any intellectual property or other proprietary rights comprising any of the foregoing (collectively, “Eko IP”). Neither these Terms nor any disclosure made hereunder grant any license to You under any Eko IP.
By creating, posting, or sharing data, sound, and images on or through the Website, Application or Eko Product (“Your User Content”), and subject to the Privacy Notice, you grant Eko a perpetual, irrevocable, worldwide, non-exclusive, sub-licensable, royalty-free, fully paid up, transferable license to reproduce, distribute, publicly display, publicly perform, create derivative works of, and otherwise use and modify Your User Content for the purposes of providing and enhancing the Website, Application, or other Eko Products and services. We may also create anonymized data and images from Your User Content, and such data and images will no longer be Your User Content. You waive any rights you may have regarding Your User Content being altered or manipulated in any way that may be objectionable to you. This license to Your User Content will terminate after the Term of Your registration. Eko reserves the right to refuse to accept, post, display, or transmit any of Your User Content in its sole discretion.
You represent and warrant that: (i) you own the content posted by you on or through the Website or Application or otherwise have the right to grant the license set forth in these Terms, (ii) the posting and use of Your User Content on or through the Website or Application does not violate the privacy rights, publicity rights, copyrights, contract rights, intellectual property rights, or any other rights of any person, and (iii) the posting of Your User Content on the Website or Application does not result in a breach of contract between you and a third party. You agree to pay for all royalties, fees, and any other monies owing any person by reason of content you post on or through the Website or Application. You also acknowledge and agree that Your User Content is non-confidential and non-proprietary.
Eko may review and remove Your User Content at any time for any reason, including for activity which, in its sole judgment: violates the Terms; violates applicable laws, rules, or regulations; is abusive, disruptive, offensive or illegal; or violates the rights of, or harms or threatens the safety of, users of the Website, Application or any Eko Product.
6.2. Use of the Application
You may use the Application and the Website, including any data presented on or by the Application or Website for You, or otherwise hosted or stored by Eko for You, only on Your own behalf and for lawful and appropriate purposes. You shall not use the Application, the Website or any of the data presented on or by the Application or Website, or otherwise hosted or stored by Eko, for any commercial purpose other than as expressly permitted herein. This license is revocable at any time without notice and with or without cause. You will notify Eko immediately upon any suspected unauthorized use of the Application or Website, whether by You or a third party, or any suspected loss of or suspected unauthorized access to passwords or other log-in information used by You to access the Application or Website (“Login Credentials”). You shall be solely responsible for maintaining the confidence and security of any Login Credentials, and Eko shall bear no liability or other responsibility associated therewith.
6.3. The Eko Findings and Reports
You may use the Eko Application to generate reports of findings using the heart or body sound data.
Any reports provided by Eko do not suggest a diagnosis. The interpreted report is intended as information for You and to be used as a tool to provide proper diagnosis and treatment taking into account the patient’s complete medical history. Analysis and diagnosis based on the data can only be accomplished by a physician.
6.4. Regional Telemedicine Restrictions
Due to telemedicine restrictions, Your location may restrict Your ability to use the Application. Since you are using a mobile device to collect Your data, it is your responsibility to ensure the Application is legal according to Your local telemedicine laws.
You have the option to obtain a data recording from certain Eko Products at any time. Your heart and body sound recordings are subject to multiple factors related to your health and activities. Eko makes no guarantees of the accuracy or clinical significance of the interpretation of the data. You explicitly consent to sharing data with the third party electronic health record systems (EHRs) according to terms described in the Eko Privacy Notice located at https://ekohealth.com/privacy.
If you choose to provide input and suggestions regarding problems with or proposed modifications or improvements to any Eko Product (“Feedback”), then you hereby grant Eko an unrestricted, perpetual, irrevocable, non-exclusive, fully-paid, royalty-free right to exploit the Feedback in any manner and for any purpose, including to improve the Eko Products and create other products and services.
7.0 PRIVACY NOTICE
7.1. Privacy Notice
8.0 SUSPENSION AND TERMINATION
You may cancel Your registration at any time in accordance with the procedures described on the Website.
8.3. Termination by Eko
Eko may terminate Your registration, including Your right to access and use the Website or the Application, in whole or in part, as follows:
8.4. Effect of Termination
8.5. Survival of Selected Provisions
9.1. Limitation of Liability
10.1. Indemnity by You
11.0 DISPUTE RESOLUTION
11.2. Governing Law
To the fullest extent permitted pursuant to applicable law, these Terms are governed by the laws of the State of California without regard to conflict of law principles. If a lawsuit or court proceeding is permitted under these Terms, then you and Eko agree to submit to the personal and exclusive jurisdiction of the state courts and federal courts located within Santa Clara County, California for the purpose of litigating any dispute. If you are a consumer located in the EU, such jurisdiction of the Santa Clara County courts will be non-exclusive. We operate the Service from our offices in the United States, and we make no representation that Materials included in the Application, Website or Eko Products are appropriate or available for use in other locations.
12.1. Entire Agreement, Amendments and Modifications
12.2. Force Majeure
The Application, Website and other Eko Products are offered by Eko Devices, Inc. You may contact us by emailing us at email@example.com