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 RTM System, Mat and the PADS Application are made available to you, the patient’s healthcare provider, who may use them in accordance with your professional practice and judgment. The Mat (“Device”), and our Podimetrics Cloud and ancillary services (the “Services“) and the Thermogram Explorer, PADS Application, and any additional portals, applications, websites, and/or tools (individually and collectively, “Related Materials“), and your use therefore, are subject to these Terms of Use.

The Podimetrics RTM System 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. You have identified one or more of your patients as individuals who may benefit from use of the RTM System. Once you prescribe the RTM System to a patient and before you make the Mat available to him/her, it is your responsibility to ensure that the client is advised on the use of the Mat, and provided with the terms of use for the RTM System, and as between you and Podimetrics, you will be responsible for obtaining all necessary consents from the patient regarding his/her use of the RTM System, including with respect to the collection, de-identification, and use of patient data.

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.

PLEASE READ THIS TERMS OF USE AGREEMENT (THE “TERMS OF USE”) CAREFULLY. BY ACCESSING OR USING THE DEVICE, 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 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. THE TERM “YOU” REFERS TO THE HEALTHCARE PROVIDER WHO IS PROVIDING THE DEVICE TO A PATIENT, PRESCRIBING THE USE OF THE DEVICE BY A PATIENT, OR USING THE SERVICES OR RELATED MATERIALS IN ANY WAY. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS OF USE, YOU MAY NOT ACCESS OR USE THE DEVICE, SERVICES OR RELATED MATERIALS.

THE TERMS OF USE INCLUDE DISCLAIMERS AND LIMITATIONS OF LIABILITY AND A WAIVER OF JURY TRIALS.

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://www.podimetrics.com/legal/terms-of-use/providers. 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 of the Services and will be effective thirty (30) days after posting of notice of such changes on the Website for existing users of the Service. If you do not agree to any change(s) after receiving a notice of such change(s), you shall stop accessing or using the Device, Services and Related Materials. Your continued use of any Device, Services and/or Related Materials constitutes your acceptance of such change(s). PLEASE REGULARLY CHECK THE WEBSITE TO VIEW THE THEN-CURRENT TERMS.

1. PRESCRIPTION AND USE.

You may prescribe the Device to your patients in your professional judgement in accordance with applicable Podimetrics Terms of Use and in accordance with the indications for use for the Podimetrics Remote Temperature Monitoring System. The Device is not appropriate for all patients. You may access and use the Services and Related Materials in accordance with these Terms of Use. You will promptly contact the applicable patient and Podimetrics if you are not receiving appropriate data with respect to a particular patient or device through the Services and Related Materials.

2. PATIENT DATA.

The Device may transmit certain data relating to your patients and their feet to you, and Podimetrics may be provided (or provide) other data by your or your patients, 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 available at www.podimetrics.com/legal/privacy.

3. SERVICES AND RELATED MATERIALS.

3.1 General.

We may make available Services and Related Materials, such as portals, applications, web-sites, and tools to you in connection with the Device. The Services and 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 Services or 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, in each case, solely for your professional use with patients using the Device. 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 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.

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 Services 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 Device, Services 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 Device, Services, or Related Materials; (d) you shall not use the Device, Services or Related Materials in order to build a similar or competitive Device, portal, application, or other product or service; (e) except as expressly stated herein, no part of the Services or 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 Device, Services, or Related Materials. Any future release, update or other addition to the Device, Services 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. Ownership.

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.

5.2 Trademarks.

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.

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.

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.

6. Indemnification.

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 Device, Services, or Related Materials; (b) your patients’ use of, or inability to use, the Device; (c) your decision to prescribe the Device to your patient(s) or failure to secure the required acknowledgements and consents from such patient; (d) any medical advice or services which you provide (or fail to provide) to your patient(s) in any way related to the Device, Services or Related Materials; (e) your violation of the Terms of Use; or (f) 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. 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.

8.3 Release.

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.

9.1 Term.

These Terms of Use commence on first use of the Device, Services or Related Materials and remain in full force and effect while you prescribe such Device or use such Services or 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 Device becomes unlawful), Podimetrics has the right to, immediately and without notice, suspend or terminate the Terms of Use in connection with the Device, Services, 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 after informing your patients using the Device(s), and ceasing your use of the Services and Related Materials.

9.4 Effect of Termination.

Termination may result in deletion of your passwords and all of your and/or your patient data from our live databases, subject to applicable law and applicable retention policies. 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.

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. ARBITRATION.

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 Device, Services or Related Materials provided by Podimetrics that cannot be resolved informally shall be resolved exclusively by binding arbitration 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.

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.

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.

12.2 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 believe that Podimetrics has not adhered to the 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 complaint 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 DEVICE, SERVICES, OR RELATED MATERIALS MUST COMMENCE WITHIN ONE (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: 49 Day Street, Suite A, 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 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.

End of Terms of Use

Revision History