Patient Terms of Use.

If you use the SmartMat™ device, the services and related materials, you are agreeing to the Privacy Policy following this summary:

• We will collect, use and share your personal and health data only to operate the SmartMat™ device, services and related materials as discussed in the Privacy Policy. Podimetrics may contact you and share your information with your healthcare provider, but we will not sell your health information.
• Podimetrics is regularly audited for compliance to data security and privacy standards.

Please read this terms of use agreement (the “Terms of Use”) carefully. We have included a summary before this section to help explain the legal jargon and emphasize key sections. These annotations are for convenience only and have no legal or contractual effect.

The Podimetrics SmartMat provides information indicating when a patient and healthcare provider should communicate for further evaluation and treatment regarding any persistent localized inflammation observed on a patient’s feet.

The SmartMat is an in-home, daily-use floor mat that measures the temperature over a patient’s feet and wirelessly transmits the temperature data to Podimetrics Inc. (“Podimetrics” or “we” or “us”) for processing and storage in the Podimetrics Cloud. The SmartMat is intended to be used by a patient in conjunction with a healthcare professional and/or caretaker for periodic evaluation of the temperature over the soles of the feet for signs of inflammation. Each SmartMat is to be used by only one person.

The Podimetrics SmartMat is indicated for daily use in the home or clinical environment by people of all ages who are at risk of inflammatory conditions or injuries to the foot. It is for prescription use only. Your healthcare professional has identified you as someone who may benefit from use of the SmartMat. The SmartMat, and our Podimetrics Cloud and related services (the “Services”) and any additional websites and/or tools (individually and collectively, “Related Materials”), and your use therefore, are subject to these Terms of Use. 

The SmartMat does not work for all patients and the efficacy of the SmartMat may vary. Due to the nature of cellular communications, the SmartMat may not be able to transmit data in all areas or at all times. Podimetrics is not a healthcare provider and the SmartMat, Services and Related Materials do not provide medical advice. Rather, the SmartMat, Services and Related Materials are a tool that your healthcare providers may use, in their professional judgment, to inform their professional decision making.

The SmartMat, Services and Related Materials are not a replacement for a physical examination by a trained healthcare provider and should not be used independently to diagnose foot ulcers, inflammatory foot diseases, or other diseases or conditions. You should continue doing regular self-examinations. The measurement of plantar foot temperature is not a representative of your internal body temperature and it should not be used to evaluate a fever or your overall health. The quality or accuracy of a scan may be affected, for example, if you move your feet during a scan or if you are wearing socks.

The SmartMat, Services and Related Materials are not, and do not provide, medical advice, service, or care. You should not solely rely on the SmartMat, Services or Related Materials for the diagnosis or treatment of any health problem or disease. You should consult a healthcare professional or another qualified healthcare provider on a regular and appropriate basis. 

IF YOU REQUIRE URGENT CARE, YOU SHOULD CONTACT YOUR LOCAL EMERGENCY SERVICES IMMEDIATELY.

By accessing or using the SmartMat, Services, or Related Materials, clicking on the “I agree” (or a similar) button, in connection with any Related Materials, or signing a document acknowledging and agreeing to these terms of use and returning the same to your healthcare provider or Podimetrics, you represent that (1) you have read, understand, and agree to be bound by the terms of use, (2) you are of legal age to form a binding contract with Podimetrics, and (3) you have the authority to enter into these terms of use with us personally. The term “you” refers to the individual who is provided the SmartMat or registered or authorized to use the SmartMat or Related Materials.  If you do not agree to be bound by the terms of use, you may not access or use the SmartMat, Services, or Related Materials and should return the SmartMat to Podimetrics or the healthcare provider who provided it to you.

The Terms of Use include disclaimers and limitations of liability, a class action waiver, and a waiver of jury trials. The Terms of Use also require binding arbitration on an individual basis to resolve disputes.

Please note that the terms are subject to change by Podimetrics in its sole discretion at any time. When changes are made, Podimetrics will make a new copy of the Terms of Use available at our Website, https://podimetrics.com/patient-terms-of-use, and/or may send you a hard copy of the revised Terms of Use to the address where the SmartMat is registered with us. We will also update the “Last Updated” date at the top of the Terms of Use. Any changes to the Terms of Use will be effective immediately for new users and will be effective thirty (30) days after posting of notice of such changes on the Website for existing users. If you do not agree to any change(s) after receiving a notice of such change(s), you shall stop using the SmartMat and Related Materials. If the SmartMat was made available to you on a loaner or temporary basis, you must immediately return the SmartMat to Podimetrics or the healthcare provider who provided it to you. Your continued use of the SmartMat and Related Materials constitutes your acceptance of such change(s). Please regularly check the website to view the then-current terms.

1.1 General.

You may use the SmartMat in accordance with these Terms of Use and the documentation we provide accompanying the SmartMat. You may not abuse or misuse the SmartMat or share it with another individual. You must return the SmartMat (ordinary wear and tear excepted) as instructed if you did not purchase it. The SmartMat may not work in all areas (e.g., where there is not wireless connectivity) or for all individuals. Consult with your healthcare provider regularly to confirm whether the SmartMat is transmitting appropriate data and for physical examinations.

1.2 Training and Support

We may offer you and/or your caregiver training with respect to your use of the SmartMat (and any updates, as applicable), such as over the telephone.  In the event you experience any technical issues with the SmartMat, please contact Podimetrics for assistance.

1.3 Monitoring and Services

We may contact you periodically at the phone number you provide us upon activation regarding your use of the SmartMat or the Services, including when we notice trends relating to your use (or non-use) of the SmartMat; to schedule in-home check-ins or follow-up appointments; and to communicate instructions from your healthcare provider.

The SmartMat may transmit certain data relating to you and your feet  to you and/or your healthcare provider and healthcare plan, and Podimetrics may be provided other data by you, or your healthcare provider, and/or your healthcare plan, solely as permitted by applicable laws and regulations, including the Health Insurance Portability and Accountability Act of 1996 (HIPAA).

The privacy and security of such data will be protected by Podimetrics, and such data will be subject to the terms of our Privacy Policy included in this document and available at https://podimetrics.com/privacy-policy. We will store your data transmitted to us by the SmartMat in the Podimetrics Cloud and use it to display your information to your healthcare provider. We may send or otherwise communicate that data to your healthcare provider when it indicates that you may need further evaluation and treatment, or otherwise to your healthcare plan if they are serving as or facilitating for your care management team. We may also share data with your caregiver if you consent to such sharing with your legal representative upon our verification of their authority to communicate on your behalf.

In addition, we may analyze, aggregate, and/or de-identify that data to the extent permitted by applicable laws and regulations and applicable contracts to improve the SmartMat and Related Materials and/or develop and commercialize new products and services with de-identified data. You acknowledge and agree that Podimetrics exclusively owns such de-identified data and any improvements or new products or services arising therefrom. 

We may also share your data with your healthcare provider and/or healthcare plan and as otherwise permitted under our Privacy Policy, subject to applicable laws and regulations.

3.1 General

We may make available Related Materials, such as websites, tools, information or other materials in connection with the SmartMat.

Related Materials are protected by copyright and other laws throughout the world. Unless otherwise specified by Podimetrics in a separate license, your right to use any of the Related Materials is subject to these Terms of Use.

3.2 License

Subject to your compliance with the Terms of Use, Podimetrics grants you a limited non-exclusive, non-transferable, non-sublicensable, revocable license to access and use Related Materials for your personal use relating to your SmartMat. Some of the software in our Related Materials may be offered under an open source license that we make available to you. There may be provisions in the open source license that expressly override some of the Terms of Use, and you agree to be bound by the terms of such open source license.

3.3 Updates

You understand that Related Materials are evolving and may not be available. As a result, Podimetrics may require you to accept updates to Related Materials that you have installed. You acknowledge and agree that Podimetrics may update Related Materials with or without notifying you. You may need to update third-party software from time to time in order to access or use the Related Materials.

The rights granted to you are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit the SmartMat or Related Materials or any portion thereof, (b) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the SmartMat or Related Materials except to the extent the foregoing restrictions are expressly prohibited by applicable law; (c) you shall not use any means, including but not limited to script or programming, to scrape or mine the data or other content associated with the SmartMat or Related Materials; (d) you shall not use the SmartMat or Related Materials in order to build a similar or competitive SmartMat, portal, application, or other product or service; (e) except as expressly stated herein, no part of the Related Materials may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; and (f) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in the SmartMat or Related Materials. Any future release, update or other addition to the SmartMat or Related Materials shall be subject to the Terms. Podimetrics and its licensors, suppliers and service providers reserve all rights not granted in these Terms of Use.

5.1 Podimetrics Intellectual Property

You agree that Podimetrics and its suppliers own all rights, title and interest in and to the SmartMat, Services, and Related Materials and all intellectual property rights related to the SmartMat, Services and Related Materials. Physical devices may be owned by your healthcare provider, healthcare plan or Podimetrics and will be returned to the owner as requested.

5.2 Trademarks

Podimetrics-related graphics, logos, service marks and trade names used on or in connection with the SmartMat or Related Materials are owned by Podimetrics and may not be used without permission. Other trademarks, service marks and trade names are the property of their respective owners.

5.3 Feedback

You agree that submission of any ideas, suggestions, documents, and/or proposals to Podimetrics through its suggestion, feedback, wiki, forum or similar pages (“Feedback”) is at your own risk and that Podimetrics has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to Podimetrics a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights.

You agree to indemnify and hold Podimetrics, its affiliates, officers, employees, agents, partners, and licensors (collectively the “Podimetrics Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of: (a) your use of, or inability to use, the SmartMat or Related Materials; (b) your violation of the Terms of Use; or (c) your violation of any applicable laws, rules or regulations. Podimetrics reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Podimetrics in asserting any available defenses. You agree that the provisions in this section will survive any termination.

7.1 AS IS

YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE SMARTMAT AND RELATED MATERIALS IS AT YOUR SOLE RISK, AND THE SMARTMAT AND RELATED MATERIALS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. THE PODIMETRICS PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT.

PODIMETRICS MAKES NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) THE SMARTMAT OR RELATED MATERIALS WILL BE APPROPRIATE FOR YOU OR MEET YOUR REQUIREMENTS; (2) YOUR USE OF THE SMARTMAT OR RELATED MATERIALS WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (3) THE RESULTS, INCLUDING ANY ADVICE, COMMUNICATION, OR SUPPORT THAT MAY BE OBTAINED FROM OR IN CONNECTION WITH USE OF THE SMARTMAT OR RELATED MATERIALS WILL BE ACCURATE OR RELIABLE; OR (4) ANY TECHNICAL OR OTHER ERRORS WILL BE CORRECTED.

The SmartMat is not a replacement of a physical examination by a trained healthcare provider and should not be used independently to diagnose foot ulcers or other diseases or conditions.

PODIMETRICS DOES NOT GUARANTEE THE EFFICACY OF THE SMARTMAT OR RELATED MATERIALS OR ANY INFORMATION PROVIDED THROUGH SUCH SMARTMAT OR RELATED MATERIALS. NO RESULTS OF ANY KIND ARE GUARANTEED. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM PODIMETRICS OR ANY DISTRIBUTOR OR THROUGH THE SMARTMAT OR RELATED MATERIALS WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.

7.2 No Liability for Conduct of Third Parties

You acknowledge and agree that the Podimetrics parties are not liable, and you agree not to seek to hold the Podimetrics parties liable, for the conduct of third parties, including healthcare providers, healthcare plans, or operators of external sites, and that the risk of harm or injury from such third parties rests entirely with you.

8.1 Disclaimer of Certain Damages

YOU UNDERSTAND AND AGREE THAT IN NO EVENT SHALL THE PODIMETRICS PARTIES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES OR FOR ANY DAMAGES RESULTING FROM LOSS OF USE, DATA, OR PROFITS, ARISING OUT OF OR IN CONNECTION WITH THE SMARTMAT OR RELATED MATERIALS, WHETHER OR NOT THE PODIMETRICS PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH THE SMARTMAT OR RELATED MATERIALS, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY.

8.2 Cap on Liability

UNDER NO CIRCUMSTANCES WILL THE PODIMETRICS PARTIES BE LIABLE TO YOU FOR AN AMOUNT TO EXCEED ONE HUNDRED DOLLARS ($100) OR THE AMOUNTS YOU PAID PODIMETRICS FOR THE SMARTMAT AND RELATED MATERIALS, IF ANY.

8.3 Release

You hereby release, waive, relinquish and forever discharge the Podimetrics Parties from every past, present and future claim, demand and right of action of every kind and nature, known or unknown, related to the care your healthcare provider provides you or fails to provide you or the failure of the SmartMat to identify any issue. If you are a California resident, you hereby waive California Civil Code Section 1542, which states, “A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which, if known by him or her must have materially affected his or her settlement with the debtor.”

9.1 Term

These Terms of Use commence on first use of the SmartMat or Related Materials and remain in full force and effect while you are in possession of the SmartMat and Related Materials, unless terminated earlier in accordance with the Terms of Use.

9.2 Termination of Services by Podimetrics

If you have materially breached any provision of the Terms of Use, or if Podimetrics is required to do so by law (e.g., where the provision of SmartMat becomes unlawful), Podimetrics has the right to, immediately and without notice, suspend or terminate the Terms of Use in connection with the SmartMat and/or applicable Related Materials. You agree that all terminations for cause shall be made in Podimetrics’ sole discretion and that Podimetrics shall not be liable to you or any third party for any termination.

9.3 Termination by You

If you want to terminate, you may do so by ceasing use of the SmartMat and Related Materials, and to the extent the SmartMat was loaned to you, returning such SmartMat to the appropriate party.

9.4 Effect of Termination

Termination may result in deletion of your passwords and all of your data from our live databases. Your data already in our possession or control may continue to be available to your healthcare provider consistent with applicable law. Upon termination, your rights will automatically terminate. All provisions of the Terms of Use which by their nature should survive, shall survive, including without limitation, ownership provisions, warranty disclaimers, and limitations of liability.

The SmartMat and Related Materials are intended for use in the United States of America only. Data is controlled and stored by Podimetrics and its service providers from facilities in the United States of America. Podimetrics makes no representations that Mats or Related Materials are appropriate or available for use in other locations. Those who access or use the SmartMat or Related Materials from other jurisdictions do so at their own volition, are responsible for compliance with local law, and hereby grant Podimetrics consent to transfer such data to the United States.

11.1 Applicability of Arbitration Agreement

Except as expressly provided herein, all claims and disputes (excluding claims for emergency injunctive relief as set forth below) in connection with the Terms of Use or the SmartMat or Related Materials provided by Podimetrics that cannot be resolved informally or in small claims court shall be resolved exclusively by binding arbitration on an individual basis under the terms of this arbitration provision (“Arbitration Agreement”).

Unless otherwise agreed to, all arbitration proceedings shall be held in English. This Arbitration Agreement applies to you and Podimetrics, and to any subsidiaries, affiliates, agents, employees, predecessors in interest, heirs, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of the Mats or Related Materials.

11.2 Arbitration Rules

Arbitration shall be initiated through the American Arbitration Association (“AAA”), an established alternative dispute resolution provider (“ADR Provider”) that offers arbitration as set forth in this section. If AAA is not available to arbitrate, the parties shall agree to select an alternative ADR Provider. The rules of the ADR Provider shall govern all aspects of the arbitration, including but not limited to the method of initiating and/or demanding arbitration, except to the extent such rules are in conflict with the Terms of Use. The AAA Consumer Arbitration Rules governing the arbitration are available online at www.adr.org or by calling the AAA at 1-800-778-7879.

11.3 Authority of Arbitrator

If arbitration is initiated, the arbitrator will decide the rights and liabilities, if any, of you and Podimetrics, and the dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages, and to grant any non-monetary remedy or relief available to an individual under applicable law, the AAA Rules, and the Terms.

The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and Podimetrics.

11.4 Waiver of Jury Trial

THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT (OTHER THAN A SMALL CLAIMS COURT) AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement. Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in a court and are subject to very limited review by a court.

11.5 Waiver of Class or Consolidated Actions

ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OF MORE THAN ONE USER CANNOT BE ARBITRATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER. In the event that this subparagraph is deemed invalid or unenforceable neither you nor we are entitled to arbitration and instead claims and disputes shall be resolved in a court located in Boston, Massachusetts.

11.6 Small Claims Court

Notwithstanding the foregoing, either you or Podimetrics may bring an individual action in small claims court.

11.7 Emergency Injunctive Relief

Notwithstanding the foregoing, either party may seek emergency injunctive relief before a state or federal court in order to maintain the status quo pending arbitration. A request for interim measures shall not be deemed a waiver of any other rights or obligations under this Arbitration Agreement.

12.1 Electronic Communications

To the maximum extent permitted by law, you consent to receive communications from Podimetrics in an electronic form.

12.2 Assignment.

The Terms of Use, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated, or otherwise transferred by you without Podimetrics’ prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.

12.3 Compliance.

If you have any questions for Podimetrics regarding these Terms of Use, please contact Podimetrics by emailing us at info@podimetrics.com. We will do our best to address your concerns. If you feel that your question has been addressed incompletely, we invite you to let us know for further investigation.

12.4 Limitations Period

You and Podimetrics agree that any cause of action arising out of or related to the Terms of Use, the SmartMat, or Related Materials must commence within (1) year after the cause of action accrues. Otherwise, such cause of action is permanently barred.

12.5 Governing Law

The Terms and any action related thereto will be governed and interpreted by and under the laws of the Commonwealth of Massachusetts, without giving effect to any principles that provide for the application of the law of another jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.

12.6 Notice

Where Podimetrics requires that you provide an e-mail address, you are responsible for providing Podimetrics with your most current e-mail address. In the event that the last e-mail address you provided to Podimetrics is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Terms of Use, Podimetrics’ dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Podimetrics at the following address: 100 Dover Street, Suite B, Somerville, MA 02144. Such notice shall be deemed given when received by Podimetrics by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.

12.7 Waiver

Any waiver or failure to enforce any provision of the Terms on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.

12.8 Severability

If any provision of the Terms of Use is, for any reason, held to be invalid or unenforceable, the other provisions of the Terms of Use will remain enforceable, and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.

12.9 Export Control

You may not use, export, import, or transfer the SmartMat or Related Materials except as authorized by U.S. law and any other applicable laws. In particular, but without limitation, the SmartMat and Related Materials may not be exported or re-exported (a) into any United States embargoed countries; or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s  Denied Persons List or Entity List. You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You acknowledge and agree that products, services or technology provided by Podimetrics are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer Podimetrics products, services or technology, either directly or indirectly,  to  any country  in violation of such laws and regulations.

12.10 Consumer Complaints

In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone  at (800) 952-5210.

12.11 Entire Agreement.

The Terms are the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.

12.12 End User Wireless Service Agreement.

By using the SmartMat, Services and/or Related Materials, you expressly understand and agree that you have no contractual relationship whatsoever with the underlying wireless service provider or its affiliates or contractors and that you are not a third-party beneficiary of any agreement between Podimetrics and the underlying carrier. The user hereby waives any and all claims or demands therefor.

End of Terms of Use

Revision History

• November 1, 2021
• December 31, 2019
• May 1, 2018
• August 28, 2017
• May 6, 2016