EFFECTIVE: May 25, 2018
IF YOU ARE NOT ELIGIBLE, OR DO NOT AGREE TO THE TERMS, THEN YOU DO NOT HAVE OUR PERMISSION TO USE THE SERVICE.
THE EKO MOBILE APPLICATIONS, EKO CORE DEVICE, EKO DUO DEVICE, EKO ANALYSIS TOOLS, EKO TELEMEDICINE, AND WEB SERVICES (HEREAFTER, THE “APPLICATION” or “EKO”) ARE AVAILABLE TO USERS IN THE UNITED STATES OF AMERICA (USA) AND CERTAIN OTHER COUNTRIES, 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.
Upon confirmation of acceptance of these Terms and Conditions or by otherwise accessing or using the Application, you (“You”) understand and agree to the above description of the Application and agree as follows:
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 the Application. You may register through the Application or through the Eko Devices website located at https://dashboard.ekohealth.com (“Website”) or through the Eko Application. 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
The term of Your registration will commence as of the date You complete Your online registration form (“Registration Date”) and, unless earlier terminated in accordance with these Terms and Conditions, will continue in perpetuity (“Term”). Notwithstanding the foregoing, Your registration may automatically expire following any period of inactivity associated with Your account in excess of twelve (12) consecutive months.
You must be at least 13 years of age to use the Service. 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 Service; and (c) your registration and your use of the Service is in compliance with all applicable laws and regulations in your local jurisdiction. If you are using the Service 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 Service, or to certain features of the Service, may require you to pay fees. Before you pay any fees, you will have an opportunity to review and accept the fees that you will be charged. All fees are non-refundable, to the fullest extent permitted under applicable law. If Eko changes the fees for the Service, including by adding additional fees or charges, Eko will provide you advance notice of those changes. If you do not accept the changes, Eko may discontinue providing the Service to you. Eko will charge the payment method you specify at the time of purchase. You authorize Eko to charge all sums as described in these Terms, for the Service you select, to that payment method. If you pay any fees with a credit card, Eko may seek pre-authorization of your credit card account prior to your purchase to verify that the credit card is valid and has the necessary funds or credit available to cover your purchase. The Service may include functionality for activating, updating or canceling recurring payments for periodic charges. If you activate or update recurring payments through the Service, you authorize Eko to periodically charge, on a going-forward basis and until cancellation of either the recurring payments or your account, all accrued sums on or before the payment due date for the accrued sums. If you use the Service to update or cancel any existing authorized one-time or recurring payment, it may take several business days for the update or cancellation to take effect.
2.0 MODIFICATIONS TO THE APPLICATION / TERMS AND CONDITIONS
2.1. Modifications to the Application / Terms and Conditions
You acknowledge and agree that Eko may, in its sole discretion, modify the Application and these Terms and Conditions (including any instructions, policies or guidelines referenced herein) at any time and in any manner. Upon modification of these Terms and Conditions, Eko will notify You for Your consent. All such modifications shall be binding upon You when made. You may not amend or modify the Application, Website or these Terms and Conditions under any circumstances.
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; (2) will use the Application as intended; (3) these Terms and Conditions have been executed and delivered by You and constitute a valid and binding agreement with You, enforceable against You in accordance with their terms; (4) if you are using the Application or Website 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 and Conditions; (5) You will not access or use the Application or Website except as expressly permitted by these Terms and Conditions and any additional instructions, guidelines or policies issued by Eko, including those posted in the Application or on the Website; (6) You will access and use the Application and Website 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 AND CONDITIONS, 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 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 OR WEBSITE, 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.
You shall use the Application and Website in strict compliance with (1) these Terms and Conditions; (2) any additional instructions, guidelines or policies issued by Eko, including those posted within the Application or on the Website; and (3) all applicable laws, rules and regulations (collectively, “Laws”).
4.2 Use Prohibitions
You agree to use the Website and Application only for their intended purpose. You must use the Website and Application in compliance with all privacy, data protection, intellectual property, and other applicable laws. The following uses of the Website and Application are prohibited. You may not:
attempt to interfere with, harm, reverse engineer, steal from, or gain unauthorized access to the Website and Application, user accounts, or the technology and equipment supporting the Website and Application; frame or link to the Website and Application without permission; use data mining, robots, or other data gathering devices on or through the Website and Application, unless specifically allowed by these Terms; post incomplete, false, or misleading information, impersonate another person, or misrepresent your affiliation with a person or entity; disclose personal information about another person or harass, abuse, or post objectionable material; sell, transfer, or assign any of your rights to use the Website and Application to a third party without our express written consent; post advertising or marketing links or content, except as specifically allowed by these Terms and Conditions; use the Website and Application in an illegal way or to commit an illegal act in relation to the Website and Application or that otherwise results in fines, penalties, and other liability to Eko or others; or access the Website and Application from a jurisdiction where it is illegal or unauthorized.
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 or the Website. 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 and Conditions 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 or Application (“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 will terminate after you stop using the Website and Application. 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 these Terms and Conditions; 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 or Application.
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 the Eko device 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 the Service (“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 Service and create other products and services.
7.0 PRIVACY NOTICE
7.1. Privacy Notice
8.0 SUSPENSION AND TERMINATION
Eko may suspend or limit Your access to the Application or the Website if Eko, in its sole discretion, suspects that You are in violation of, or reasonably likely to be in violation of, these Terms and Conditions or any additional instructions, guidelines or policies issued by Eko, including those posted in the Application or on the Website.
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:
For Cause. Immediately (1) in order to comply with applicable Law or instructions from any governmental agency or authority; (2) if Eko, in its sole discretion, suspects that You are using the Application or Website in a manner not permitted by these Terms and Conditions; or (3) upon any breach of these Terms and Conditions by You.
For Convenience. For convenience, upon notice by Eko to You.
8.4. Effect of Termination
Upon the expiration or earlier termination of Your registration or rights to use the Application or Website, for any reason (i) You will no longer be authorized to access or use the Application or Website or otherwise use any of the features or services offered by or through the Application or Website; (ii) Eko may delete any data associated with You or Your account; and (iii) all rights and obligations of the Parties under these Terms and Conditions shall expire, except those rights and obligations under those sections specifically designated in Section 8.5.
8.5. Survival of Selected Provisions
Notwithstanding the expiration or earlier termination of Your registration or rights to use the Application or Website, the following sections of the Terms and Conditions shall survive any such expiration or termination: Sections 3.2, 6.1, 8.4, 9, 10, 11 and 12.
9.1. Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EKO (AS DEFINED IN SECTION 10.1) SHALL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RESULTING FROM YOUR USE OF THE APPLICATION OR WEBSITE, OR BASED UPON ANY BREACH OF ANY EXPRESS OR IMPLIED WARRANTY, BREACH OF CONTRACT (INCLUDING THESE TERMS AND CONDITIONS AND ANY ADDITIONAL INSTRUCTIONS, GUIDELINES OR POLICIES ISSUED BY Eko, INCLUDING THOSE POSTED IN THE APPLICATION OR ON THE WEBSITE), NEGLIGENCE, TORT OR ANY OTHER LEGAL THEORY (COLLECTIVELY, THE “EXCLUDED DAMAGES”). FOR THE AVOIDANCE OF DOUBT, THE EXCLUDED DAMAGES ALSO INCLUDE WITHOUT LIMITATION, LOSS OF SAVINGS OR REVENUE; LOSS OF PROFIT; LOSS OF USE; LOSS OF LIFE OR HEALTH, THE CLAIMS OF THIRD PARTIES; AND ANY COST OF ANY SUBSTITUTE EQUIPMENT OR SERVICES. IF Eko CANNOT LAWFULLY DISCLAIM LIABILITY FOR ANY OF THE FOREGOING DAMAGES, THEN Eko GROUP’S MAXIMUM LIABILITY TO YOU IS LIMITED TO THE PURCHASE PRICE PAID BY YOU TO Eko FOR THE APPLICATION OR $100, whichever is greater. THESE LIMITATIONS APPLY EVEN IF ANY OTHER REMEDIES AVAILABLE TO YOU FAIL OF THEIR ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
At its option, any member of the Eko Group may seek all remedies available to it under law and in equity, including injunctive relief in the form of specific performance to enforce these Terms and Conditions, including any additional instructions, guidelines or policies issued by Eko, including those posted in the Application or on the Website, and/or actions for damages.
No action arising out of, in connection with, or relating to these Terms and Conditions or the subject of these Terms and Conditions shall be brought by You more than one (1) year after the accrual of the cause of action. This period shall not be extended for any reason, except by the written consent of both parties. All statutes or provisions of law which would toll or otherwise affect the running of the period of limitation are hereby waived, and no such statute or provision of law shall operate to extend the period limited in this paragraph.
10.1. Indemnity by You
You will indemnify and hold harmless Eko, its affiliates and their respective current, future or former officers, directors, partners, equity holders, employees, agents, contractors, and their successor or assigns (collectively, “Eko”) on demand, from and against any and all fines, penalties, liabilities, losses and other damages of any kind whatsoever (including attorneys’ and experts’ fees), incurred by any of the members of the Eko, and, if directed by Eko, shall defend the Eko against (1) all claims that any information, data or other materials provided by You in connection with your use of the Website or the Application (including Your application for registration to access and use the Application or Website) or these Terms and Conditions, or use thereof by any member of the Eko Group, infringes, misappropriates or otherwise violates any patent, trademark, copyright, trade secret or other intellectual property or proprietary right of a third party; (2) all claims arising from fraud committed by, or the intentional misconduct, criminal acts or gross negligence of, You; and (3) all claims otherwise arising due to a failure by You to comply with any term or condition of these Terms and Conditions, including any additional instructions, guidelines or policies issued by Eko, including those posted in the Application or on the Website.
11.0 DISPUTE RESOLUTION
If a dispute arises under these Terms and Conditions between You and any member of the Eko Group, such dispute shall be resolved, at the filing party’s election, in either a small claims court or by final and binding arbitration administered by the National Arbitration Forum or the American Arbitration Association, under their rules for consumer arbitrations. All disputes will be handled solely between the named parties, and not on any representative, private attorney general, or class basis. ACCORDINGLY, YOU ACKNOWLEDGE THAT YOU WAIVE YOUR RIGHT TO ACCESS TO A COURT (OTHER THAN A SMALL CLAIMS COURT) OR JURY, TO THE EXTENT PERMITTED BY LAW. Notwithstanding any other provision of these Terms and Conditions, any member of the Eko Group may resort to court action for injunctive relief at any time if, in its good faith belief, the dispute resolution procedures described in this Section 11.1 would permit or cause irreparable injury to such member of the Eko Group or any third party claiming against a member of the Eko Group, due to delay arising out of such dispute resolution procedures.
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 Service are appropriate or available for use in other locations.
12.1. Entire Agreement, Amendments and Modifications
These Terms and Conditions any additional instructions, guidelines or policies issued by Eko, including those posted in the Application or on the Website constitute the entire agreement of the Parties with regard to Your use of the Application and the Website, and all matters addressed herein, and all prior agreements, letters, proposals, discussions and other documents regarding the Application or the Website and the matters herein are superseded and merged into these Terms and Conditions.
12.2. Force Majeure
Eko will be excused from performance under these Terms and Conditions for any period that it is prevented from or delayed in performing any obligations pursuant to these Terms and Conditions, in whole or in part, as a result of a Force Majeure Event. For purposes of this Section 12.2, “Force Majeure Event” means an event or series of events caused by or resulting from any of the following: (1) weather conditions or other elements of nature or acts of God; (2) acts of war, acts of terrorism, insurrection, riots, civil disorders or rebellion; (3) quarantines or embargoes, (4) labor strikes; (4) telecommunications, network, computer, server or Internet downtime; (5) unauthorized access to Eko’s information technology systems by third parties; or (6) other causes beyond the reasonable control of Eko.
If any provision of these Terms and Conditions shall be held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby, and such provision shall be deemed to be restated to reflect the Parties’ original intentions as nearly as possible in accordance with applicable Law(s).
You may not assign these Terms and Condition (or any rights, benefits or obligations hereunder) by operation of law or otherwise without the prior written consent of Eko, which may be withheld at Eko’s sole discretion. Any attempted assignment by You that does not comply with the terms of this Section 12.4 shall be null and void. Eko may assign these Terms and Conditions, in whole or in part, to any third party in its sole discretion.
The Service is offered by Eko Devices, Inc. You may contact us by emailing us at email@example.com
ITS 001 Rev A