Terms and Conditions for Stethee Pro 1 and Stethee Pro iOS Mobile Application
Terms of Service Updated October , 2020
Last Revision: [April 2020]
IMPORTANT NOTICE REGARDING ARBITRATION: WHEN YOU AGREE TO THESE TERMS OF SERVICE YOU ARE AGREEING (WITH LIMITED EXCEPTION) TO RESOLVE ANY DISPUTE BETWEEN YOU AND M3DICINE THROUGH BINDING, INDIVIDUAL ARBITRATION, RATHER THAN IN COURT. PLEASE CAREFULLY REVIEW SECTION 12, “DISPUTE RESOLUTION,” BELOW, FOR DETAILS REGARDING ARBITRATION (INCLUDING THE PROCEDURE TO OPT OUT OF ARBITRATION) AS THESE TERMS AFFECT YOUR LEGAL RIGHTS.
THE STETHEE PRO 1 IS AN ELECTRONIC STETHOSCOPE INTENDED FOR MEDICAL DIAGNOSTIC PURPOSES ONLY. IT MAY BE USED FOR THE DETECTION AND AMPLIFICATION OF SOUNDS FROM THE HEART, LUNGS, ARTERIES, VEINS, AND OTHER INTERNAL ORGANS. IT CAN BE USED ON ANY PERSON UNDERGOING A PHYSICAL ASSESSMENT.
CAUTION: FEDERAL LAW RESTRICTS THIS DEVICE TO SALE BY OR ON THE ORDER OF A PHYSICIAN.
THE STETHEE MOBILE APPLICATION, STETHEE DEVICE, AND WEB SERVICE (HEREAFTER, THE “APPLICATION”) IS AVAILABLE TO USERS AS A PART OF A PHYSICAL ASSESSMENT OF ANY PATIENT BY HEALTHCARE PROFESSIONALS FOR DIAGNOSTIC DECISION SUPPORT IN CLINICAL SETTINGS. STETHEE IS INTENDED FOR USE ON HUMANS AND ANIMALS. IT CAN ELECTRONICALLY AMPLIFY, FILTER AND TRANSFER SOUNDS TO THE ACCOMPANYING MOBILE APPLICATION FOR STORAGE AND SHARING. IT CAN USED TO RECORD HEART SOUNDS AND CARDIAC MURMURS, BRUITS, RESPIRATORY SOUNDS AND ABDOMINAL SOUNDS DURING PHYSICAL EXAMINATION IN NORMAL PATIENTS OR THOSE WITH SUSPECTED DISEASES OF THE CARDIAC, VASCULAR, PULMONARY OR ABDOMINAL ORGAN SYSTEMS. THE APPLICATION IS NOT INTENDED TO BE USED SOLELY OR CONCLUSIVELY TO DIAGNOSE ANY HEART CONDITION OR AUTOMATICALLY ALERT HEALTHCARE PROFESSIONALS OR PATIENTS TO POTENTIALLY SERIOUS HEART CONDITIONS. M3DICINE (STETHEE ) DOES NOT AUTOMATICALLY REVIEW, MONITOR, EVALUATE OR ANALYZE ANY INFORMATION GENERATED FROM THE APPLICATION. IT IS YOUR RESPONSIBILITY TO INTERPRET MEDICAL DATA FOR PROPER ANALYSIS AND DIAGNOSIS.
The Stethee Pro 1, and Stethee Pro App and Mobile ApplicationSoftware System (collectively, “Stethee”) services are wholly-owned and operated by M3DICINE Pty Ltd. (“M3DICINE”). Stethee and M3DICINE are collectively referred to herein at M3DICINE, unless specified otherwise.
M3DICINE is obligated by the Food and Drug Administration (“FDA”) to report and investigate complaints regarding M3DICINE products. M3DICINE recommends you submit all M3DICINE product complaints to [INSERT APPROPRIATE REOPORTING MECHANISM] to ensure timely reporting and investigation. M3DICINE may investigate complaints regarding M3DICINE products as required by the FDA. M3DICINE may use your personal information to contact you through the Services to investigate complaints. If you submit a complaint, M3DICINE may contact you as part of its investigation.
Upon confirmation of acceptance of these Terms and Conditions or Byby otherwise using Stethee, 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
Stethee is a Class II, FDA-cleared, prescription medical device. Access to Stethee is provided to Stethee customers who are qualified physicians, and the Stethee device may only be used on patients pursuant to a valid prescription from a licensed physician. By registering as a Stethee user with M3DICINE, You acknowledge that You have the appropriate qualifications and licensing to prescribe the use of the Stethee with Your patients. You must be a registered user with M3DICINE M3DICINE (“Stethee ”) in order to use the Application Stethee. You may register through the Application or through the Stethee Devices website located at https://www.Stethee.com (“Website”). By submitting the information requested in the Application’s online registration form, You may access and use the Application and Website to view certain data pertaining to You as made available by M3DICINEStethee . You may not access or use the Application or Website for any other purpose. By registering and using Stethee, you acknowledge and agree that all information, data and other materials provided by You in support of Your online registration is accurate and truthful in all respects.
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.
1.3. Notices
All notices from M3DICINE Stethee 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 email address in accordance with the procedures set forth on the Website.
2.0 MODIFICATIONS TO THE APPLICATION / TERMS AND CONDITIONS
2.1. Modifications to the Application / Terms and Conditions
You acknowledge and agree that M3DICINE Stethee 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. If the Terms and Conditions are materially changed, we will post the changes on this page, and will indicate at the top of this page the date these Terms were last revised and became effective. Your continued use of the Services after the date any such changes become effective constitutes your unequivocal acceptance of, and agreement to be bound by, the new Terms ad Conditions (including any and all changes).
Upon modification of these Terms and Conditions, Stethee 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 M3DICINE Stethee that (1) You will use the Application as intendedconsistent with the intended use as described in these Terms and Conditions; (2) 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; (3) 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; (4) 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 M3DICINEStethee, including those posted in the Application or on the Website; (5) You will access and use the Application and Website in full compliance with applicable Law (as defined in Section 4.1); and (6) all of the information, data and other materials provided by You in support of Your online registration are accurate and truthful in all respects.
3.2. Disclaimer
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, M3DICINE, STETHEE 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 STETHEE IS NOT RESPONSIBLE FOR ANY HEALTHCARE, DIAGNOSTIC, 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, STETHEE 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 STETHEE IS NOT RESPONSIBLE FOR ANY LOSSES OF YOUR DATA, CONFIDENTIALITY OR PRIVACY IN CONNECTION THEREWITH.
4.0 COMPLIANCE
4.1.Generally You shall agree to use the Application and Website in strict compliance with (1) these Terms and Conditions; (2) any additional instructions, guidelines or policies issued by M3DICINEStethee , including those posted within the Application or on the Website; and (3) all applicable laws, rules and regulations (collectively, “Laws”).
You agree to comply with all applicable privacy laws and regulations, including, but not limited to, the EU General Data Protection Regulation (“GDPR”), the Health Insurance Portability and Accountability Act of 1996, its amendments, and the regulations promulgated thereunder (“HIPAA”), California Consumer Privacy Protection Act (“CCPA”), and the California Online Privacy Protection Act (“CalOPPA”). You will obtain any necessary consents or authorizations before uploading any personal data about any other person. You also agree to comply with all applicable laws and regulations that relate to the reporting and investigation of any adverse event, injury, toxicity or sensitivity reaction, or any unexpected incidence associated with any products, treatments, or therapies. You agree to accurately disclose all financial ties and conflicts of interest as required by law or other regulations.
You agree not to upload, post, publish, or display any protected health information (“PHI”) as such term is defined by HIPAA, personal health information, personally identifiable information, or other patient information to or via the Services (including any images or other content containing any such information) that would violate HIPAA or any other applicable laws regarding personal information or personal health information. M3DICINE is not a “covered entity,” or “business associate,” under HIPAA. M3DICINE does not assume any, and hereby disclaims all, liability arising from the uploading to, or use of any such information on or via, the Services.
It is your sole responsibility, if you are a covered entity, to ensure that you comply with the HIPAA requirements with respect to PHI. In the event you inadvertently provide PHI to M3DICINE, you agree to immediately remove the PHI or contact M3DICINE to request removal of the PHI. If M3DICINE discovers content containing PHI, M3DICINE may (but has no obligation to) notify you and delete the PHI-containing content. M3DICINE in no way accepts the responsibility to keep PHI confidential, and neither becomes a “covered entity,” nor a “business associate,” by performing this courtesy.
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 M3DICINE’s 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 M3DICINE Stethee or others; or access the Website and Application from a jurisdiction where it is illegal or unauthorized.
5.0 CONTRACTORS
5.1. Use of Contractors
M3DICINE Stethee may engage a third party (including M3DICINE’s Stethee’s affiliates) to perform, or support the performance of, all or any portion of the ApplicationStethee or the Website. Any engagement with any third party will be conducted in accordance with the Stethee 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 M3DICINE Stethee and You (collectively, “Parties”), M3DICINE Stethee owns and will retain ownership of all rights, title and interest in and to the ApplicationStethee and the Website, including (1) all Stethee content displayed on the Application orand the Website content, to the extent such content is developed by Stethee 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, “M3DICINE Stethee IP”). Neither these Terms and Conditions nor any disclosure made hereunder grant any license to You under any M3DICINE Stethee IP. By creating, posting, or sharing data, sound, and images on or through the Website or ApplicationStethee or the Website (“Your User Content”), and subject to the Privacy Notice, You grant M3DICINE Stethee 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 M3DICINE Stethee 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 ApplicationStethee. M3DICINE Stethee 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 Stethee 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. M3DICINE Stethee 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 ApplicationStethee.
6.2. Use of Stetheethe Application
You may use the ApplicationStethee and the Website , including any data presented on or by the Application or Website for You, or otherwise hosted or stored by Stethee for You, only on Your own behalf and for lawful and appropriate purposes. You shall not use Stetheethe Application, the Website, or any of the data presented on or by Stethee the Application or the Website, or otherwise hosted or stored by M3DICINE Stethee, 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 M3DICINE Stethee immediately upon any suspected unauthorized use of Stethee the Application or the 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 M3DICINE Stethee shall bear no liability or other responsibility associated therewith.
6.3. The Stethee Findings and Reports
You may use the Stethee Application to generate reports of findings of using the heart or body sound data. Any reports provided by Stethee or M3DICINE do not suggest a diagnosis. The interpreted report is intended as information for You and to be used as a tool for you to independently 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 Clinical Interpretation Service. Since You are using a mobile device to collect Your data, it is Your responsibility to ensure the Clinical Interpretation Service is legal according to Your local telemedicine laws. You have the option to obtain a heart or body sound recording using the Stethee device at any time. These heart and body sound recordings are subject to multiple factors related to health and activities. M3DICINE Stethee 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 Stethee Privacy Notice located at www.stethee.com/privacy.
7.0 PRIVACY NOTICE
7.1. Privacy Notice
You explicitly consent to the collection, hosting, use, disclosure and other processing or handling of information as described in the Stethee Privacy Notice located at https://Stethee.com/privacy. The Stethee Privacy Notice, as such notice may be amended by M3DICINE Stethee in its sole discretion from time to time. Your continued use of Stethee and the Website after the date any such changes become effective constitutes your unequivocal acceptance of, and agreement to be bound by, the new Privacy Notice (including any and all changes).
Upon modification of the Privacy Notice, Stethee will notify You for Your consent.
8.0 SUSPENSION AND TERMINATION
8.1 Suspension
M3DICINE Stethee may suspend or limit Your access to the ApplicationStethee or the Website if M3DICINEStethee, 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 M3DICINEStethee, including those posted in the Applicationwithin Stethee or on the Website.
8.2. Non-RenewalCancellation
You may cancel Your registration at any time in accordance with the procedures described on the Website.
8.3. Termination by M3DICINE Stethee
M3DICINE Stethee 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 M3DICINEStethee, in its sole discretion, suspects that You are using the Application Stethee 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 M3DICINE Stethee 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 ApplicationStethee or the Website or otherwise use any of the features or services offered by or through the ApplicationStethee or the Website; (ii) M3DICINE Stethee 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 Stethee 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.
9.0 LIABILITY
9.1. Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE STETHEE M3DICINE GROUP (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 APPLICATIONSTETHEE OR THE 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 STETHEE OR M3DICINE, 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 STETHEE M3DICINE CANNOT LAWFULLY DISCLAIM LIABILITY FOR ANY OF THE FOREGOING DAMAGES, THEN STETHEE M3DICINE GROUP’S MAXIMUM LIABILITY TO YOU IS LIMITED TO THE PURCHASE PRICE PAID BY YOU TO STETHEE 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.
9.2. Remedies
At its option, any member of the M3DICINE , Stethee 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 M3DICINEStethee, including those posted in Stethee the Application or on the Website, and/or actions for damages.
9.3. Claims
No action or claim 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.
10.0 INDEMNITIES
10.1. Indemnity by You
You will indemnify and hold harmless, M3DICINEStethee, its affiliates and their respective current, future or former officers, directors, partners, equity holders, employees, agents, contractors, and their successor or assigns (collectively, the “M3DICINE Stethee Group”) 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 M3DICINE Stethee Group, and, if directed by M3DICINEStethee, shall defend the M3DICINE Stethee Group against (1) all claims that any information, data or other materials provided by You in connection with Your use of the Website or the ApplicationStethee (including Your application for registration to access and use the ApplicationStethee or Website) or these Terms and Conditions, or use thereof by any member of the M3DICINE Stethee 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 M3DICINEStethee, including those posted in the ApplicationStethee or on the Website.
11.0 DISPUTE RESOLUTION
11.1. Disputes
You and M3DICINE agree that all disputes will be resolved solely by binding, individual arbitration, and not in a class, representative, or consolidated action or proceeding. You and M3DICINE agree that the U.S. Federal Arbitration Act governs the interpretation and enforcement of these Terms, and that you and M3DICINE are each waiving the right to a trial by jury and/or to participate in a class action. This arbitration provision shall survive termination of these Terms and Conditions.
M3DICINE prefers to resolve disputes amicably and efficiently, and many disputes can be resolved quickly and by emailing customer support at [INSERT EMAIL ADDRESS]. If such efforts prove unsuccessful, a party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute (“Notice”). The Notice to M3DICINE should be sent to [INSERT ADDRESS]. The Notice must (i) describe the nature and basis of the claim or dispute and (ii) set forth the specific relief sought. If M3DICINE and You do not resolve the claim within sixty (60) calendar days after the Notice is received, you or M3DICINE may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by M3DICINE or You shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which You or M3DICINE is entitled.
The arbitration will be conducted by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (“AAA Rules”) then in effect, except as modified by these Terms. The AAA Rules are available at www.adr.org, or by calling 1-800-778-7879. A party who wishes to start arbitration must submit a written Demand for Arbitration to AAA, and give notice to the other party as specified in the AAA Rules. The AAA provides a form Demand for Arbitration at www.adr.org.
If Your claim is for U.S. $10,000.00, or less, you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic or video-conference hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds U.S. $10,000.00, the right to a hearing will be determined by the AAA Rules. Any arbitration hearings will take place in [ENTER U.S. CITY, STATE] before a single arbitrator, unless we both agree to a different location. You and M3DICINE both agree that the arbitrator shall have exclusive authority to decide all issues relating to the interpretation, applicability, enforceability, and scope of this arbitration agreement. Payment of all filing, administration, and arbitrator fees will be governed by the AAA Rules.
YOU AND M3DICINE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR OUR INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, if the parties’ dispute is resolved through arbitration, the arbitrator may not consolidate another person’s claims with your claims, and may not otherwise preside over any form of a representative or class proceeding.
Notwithstanding the provisions of Section 2.1, ” Modifications to the Application / Terms and Conditions,” above, if we change any of the terms of this Section, “Disputes,” after the date You first accepted these Terms and Conditions (or accepted any subsequent changes to these Terms), You may reject any such change by sending us written notice (including by email to [INSERT EMAIL ADDRESS], within thirty (30) days of the date such change became effective, as indicated in the “Last Revision” date above, or in the date of our email or other communication to You notifying You of such change. By rejecting any change, You are agreeing that you will arbitrate any Dispute between you and M3DICINE in accordance with the terms of this Section, “Disputes,” as of the date you first accepted these Terms and Conditions (or accepted any subsequent changes to these Terms and Conditions).
If a dispute arises under these Terms and Conditions between You and any member of the Stethee 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 Stethee 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 Stethee Group or any third party claiming against a member of the Stethee Group, due to delay arising out of such dispute resolution procedure.
11.2. Governing Law
All rights and obligations of You or the M3DICINE Stethee Group relating to these Terms and Conditions, including any additional instructions, guidelines or policies issued by M3DICINEStethee, including those posted in Stethee the Application or on the Website, shall be governed by and construed in accordance with the Laws of Australia, without giving effect to any choice-of-law provision or rule (whether of the State of New York or any other jurisdiction) that would cause the application of the Laws of any other jurisdiction.
12.0 GENERAL
12.1. Entire Agreement, Amendments and Modifications
These Terms and Conditions and any additional instructions, guidelines or policies issued by M3DICINEStethee, including those posted in Stethee the Application or on the Website constitute the entire agreement of the Parties with regard to Your use of Stethee the Application and the Website, and all matters addressed herein, and all prior agreements, letters, proposals, discussions and other documents regarding Stethee the Application or the Website and the matters herein are superseded and merged into these Terms and Conditions.
12.2. Force Majeure
M3DICINE Stethee 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 M3DICINE’s Stethee’s information technology systems by third parties; or (6) other causes beyond the reasonable control of M3DICINEStethee.
12.3. Severability
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).
12.4. Assignment
You may not assign these Terms and Conditions (or any rights, benefits or obligations hereunder) by operation of law or otherwise without the prior written consent of M3DICINEStethee, which may be withheld at M3DICINEStethee’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. M3DICINE Stethee may assign these Terms and Conditions, in whole or in part, to any third party in its sole discretion.
13.0 APPLE-ENABLED APPLICATIONS
The Services may be provided by applications that are intended to be operated in connection with a device made commercially available by Apple Inc. (“Apple”) or an application obtained through the Apple App Store, among other platforms. With respect to the Services that are made available for use in connection with an Apple device or through the Apple App Store (“Apple-Platform Services”), in addition to the other terms and conditions herein, the following terms and conditions apply:
- • You acknowledge that these Terms are concluded between M3DICINE and you only, and not with Apple, and M3DICINE, not Apple, is solely responsible for the Apple-Platform Services and the content thereof.
- • You may not use the Apple-Platform Services in any manner that is in violation of or inconsistent with the Usage Rules set forth for Apple-Platform Services in, or otherwise be in conflict with, the App Store Terms of Service.
- • Your license to use the Apple-Platform Services is limited to a non-transferable license to use the Apple-Enabled Software on an iOS Product that you own or control, as permitted by the Usage Rules set forth in the App Store Terms of Service.
- • Apple has no obligation whatsoever to provide any maintenance or support services with respect to the Apple-Platform Services.
- • Apple is not responsible for any product warranties, whether express or implied by law. In the event of any failure of the Apple-Enabled Software to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the Apple-Platform Services to you; and, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Apple-Platform Services, or any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty, which will be M3DICINE’s sole responsibility, to the extent it cannot be disclaimed under applicable law.
- • M3DICINE and you acknowledge that M3DICINE, not Apple, is responsible for addressing any claims of Users or any third party relating to the Apple-Platform Services or Users’ possession and/or use of that Apple-Enabled Software, including, but not limited to: (i) product liability claims; (ii) any claim that the Apple-Platform Services fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection, privacy or similar legislation.
- • In the event of any third party claim that the Apple-Platform Services or your possession and use of that Apple-Platform Services infringes that third party’s intellectual property rights, M3DICINE, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
- • 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 agree that you will comply with any applicable third party terms of agreement when using the Apple-Platform Services.
- • You acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of these Terms, and that, up on your acceptance of the terms and conditions of the Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce the Terms as a third party beneficiary thereof.
- • Any questions, complaints or claims with respect to the Apple-Platform Services should be directed to M3DICINE as follows:
[INSERT EMAIL]
[INSERT PHYSICAL ADDRESS]
14.0 CONTACTING STETHEE OR M3DICINE
Please contact us at [insert email address] to report any violations of these Terms and Conditions or if you have any questions regarding these Terms and Conditions. Alternatively, you may contact us at [INSERT PHYSICAL ADDRESS]
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