Last modified May 6, 2016
THIS AGREEMENT APPLIES TO HEALTHCARE PROVIDERS. THIS AGREEMENT DOES NOT APPLY TO PATIENTS.
The Podimetrics Remote Temperature Monitoring System (the “RTM System”) 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 RTM System consists of the Podimetrics Mat (the “Mat“) and Thermogram Explorer. The Mat 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“), which processes and stores the data in the Podimetrics Cloud. Thermogram Explorer is an HTML5 web application that displays the temperature data collected by the Mat. The RTM System is intended to be used by a patient in conjunction with a healthcare professional or caretaker for periodic evaluation of the temperature over the soles of the feet for signs of inflammation.
The Podimetrics Asymmetry Detection System (“PADS” or the “PADS Application“) is intended to be used by patients at-risk for inflammatory foot diseases and their healthcare providers to simplify the practice of temperature-guided avoidance therapy, which involves non-invasive offloading of the foot in response to a sustained temperature difference at any of six contralaterally-matched anatomical locations on the plantar surfaces. PADS is an HTML5 web application that can be securely accessed by authenticated and authorized users from any internet-connected Device or computer. The RTM System collects temperature data that can be used by PADS to automate and simplify remote patient monitoring and temperature-guided avoidance therapy.
The Device, 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 encourage your patient to continue doing regular self-examinations. The measurement of plantar foot temperature is not a representative of a patient’s internal body temperature and it should not be used to evaluate fever or overall patient health. The quality or accuracy of a scan may be affected, for example, if the patient moves his/her feet during a scan or if he/she is wearing thick socks. You should examine the quality of each scan before using it for an evaluation.
The Device, Services and Related Materials are not, and do not provide, medical advice, service, or care. You should not solely rely on the Device, Services or Related Materials for the diagnosis or treatment of any health problem or disease. You should exercise your professional judgment and advise that the patient consult you or another qualified healthcare provider on a regular and appropriate basis.
1. PRESCRIPTION AND USE.
2. PATIENT DATA.
3. SERVICES AND RELATED MATERIALS.
You understand that the Services and Related Materials are evolving and may not be available. As a result, Podimetrics may require you to accept updates to the Services and Related Materials that you have installed. You acknowledge and agree that Podimetrics may update the Services and 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 Services and Related Materials.
4. Certain Restrictions.
5.1 Podimetrics Intellectual Property.
Except with respect to your patients’ personally identifiable data and medical advice, you agree that Podimetrics and its suppliers own all rights, title and interest in and to the Device, Services and Related Materials and all intellectual property rights related to the Device, Services and Related Materials.
Podimetrics related graphics, logos, service marks and trade names used on or in connection with the Device, Services, 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.
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.
5.4 Analytics and Improvements
Subject to applicable laws and regulations, you agree that Podimetrics may de-identify and/or aggregate, and analyze, any data or information you provide us through the use of the Services or Related Materials relating to the efficacy, functions, or features of the Device, Services, or Related Materials, and agree that Podimetrics exclusively owns such de-identified and/or aggregated data and any improvements or new products or services arising therefrom.
7. DISCLAIMER OF WARRANTIES.
7.1 AS IS.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE SERVICES AND RELATED MATERIALS IS AT YOUR SOLE RISK, AND THE DEVICES, SERVICES 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 NON-INFRINGEMENT.
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 PATIENTS OR OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF HARM OR INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU.
- (a) PODIMETRICS MAKES NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) THE DEVICE, SERVICES OR RELATED MATERIALS WILL BE APPROPRIATE FOR YOU OR YOUR PATIENTS OR MEET YOUR REQUIREMENTS OR YOUR PATIENTS’ REQUIREMENTS; (2) YOUR USE OF THE DEVICE, SERVICES OR RELATED MATERIALS WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (3) THE RESULTS THAT MAY BE OBTAINED FROM THE DEVICE, SERVICES OR RELATED MATERIALS; OR (4) ANY ERRORS WILL BE CORRECTED. The Device IS NOT A REPLACEMENT OF A PHYSICAL EXAMINATION BY YOU OR ANOTHER TRAINED HEALTHCARE PROVIDER AND should not be used independently to diagnose foot ulcers or other diseases or conditions.
- (b) PODIMETRICS DOES NOT GUARANTEE THE EFFICACY OF THE DEVICE, SERVICES OR RELATED MATERIALS OR ANY INFORMATION PROVIDED THROUGH SUCH DEVICE, SERVICES OR RELATED MATERIALS. NO RESULTS OF ANY KIND ARE GUARANTEED.
- (c) NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM PODIMETRICS OR THROUGH THE DEVICE, SERVICES OR RELATED MATERIALS WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
8. LIMITATION OF LIABILITY; RELEASE.
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 DEVICE, SERVICES, 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 DEVICE, SERVICES, 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 DEVICE, SERVICES AND RELATED MATERIALS DURING THE PRIOR TWELVE (12) MONTHS, IF ANY.
You hereby release, waive, relinquish and forever discharge Podimetrics from every past, present and future claim, demand and right of action of every kind and nature, known or unknown, related to your reliance on the Device, Services, or Related Materials to provide medical care to your patients. 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. TERM AND TERMINATION.
9.2 Termination of Services by Podimetrics.
9.3 Termination by You.
If you want to terminate, you may do so after informing your patients using the Device(s), and ceasing your use of the Services and Related Materials.
9.4 Effect of Termination.
10. INTERNATIONAL USERS.
The Device, Services, 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 Devices, the Services, or Related Materials are appropriate or available for use in other locations. Those who access or use the Device, Services 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.
11.2 Arbitration Rules.
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 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 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.
11.5 Small Claims Court.
Notwithstanding the foregoing, either you or Podimetrics may bring an individual action in small claims court.
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. GENERAL PROVISIONS.
12.1 Electronic Communications.
To the maximum extent permitted by law, you (1) consent to receive communications from Podimetrics in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Podimetrics provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights.
12.4 Limitations Period.
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.
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.
12.9 Export Control.
You may not use, export, import, or transfer the Device or Related Materials except as authorized by U.S. law and any other applicable laws. In particular, but without limitation, the Device, Services, 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 Person’s 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.