Effective Date: October 20, 2016

Last Updated: October 20, 2016

 

IF YOU ARE EXPERIENCING A MEDICAL EMERGENCY, CALL 911, OR GO DIRECTLY TO THE CLOSEST EMERGENCY ROOMThe HealthKOS™ patient communication platform and this Website do not provide you with medical advice. World Wide Health Initiatives LLC is not a medical provider.

The Application and this Website are operated by World Wide Health Initiatives LLC (“WWHI” or “our”), a technology company that operates the HealthKOS™ patient communication platform, which is used by medical providers.

Please read these Terms carefully. THESE TERMS ARE A BINDING, CONTRACTUAL AGREEMENT BETWEEN YOU AND WWHI, ITS AFFILIATES, AND AGENTS AND APPLY TO YOUR USE OF OUR SERVICES.

BY CLICKING I AGREE IN THE WEBSITE, BY INSTALLING THE APPLICATION, BY REGISTERING FOR AN ACCOUNT WITH WWHI THROUGH THE SERVICES OR A PARTICIPATING MEDICAL PROVIDER, OR BY USING THE SERVICES, YOU ARE INDICATING YOUR ACCEPTANCE AND AGREEMENT TO ALL OF THE TERMS AND CONDITIONS OF THESE TERMS.

By accepting these Terms, you (1) acknowledge that you have read, understand, and agree to be bound by these Terms; (2) represent that you are of legal age to form a binding contract; and (3) represent that you have the authority to enter into these Terms.

IF YOU DO NOT AGREE TO ALL OF THESE TERMS OR YOU DO NOT HAVE THE AUTHORITY TO ENTER INTO THESE TERMS ON THE USER’S BEHALF, YOU MUST NOT (a) ACCEPT THESE TERMS, (b) ACCESS OR USE THE WEBSITE, OR (c) ACCESS, INSTALL OR USE THE APPLICATION. Your use of the Services is conditioned on you accepting these Terms.

WWHI reserves the right, in its sole discretion, to change, add or remove portions of these Terms, at any time. If the changes are material, as solely determined by WWHI, WWHI will send you notice (the “Change Notice”) by e-mail, by posting it on the applicable page of the Website or Application, or by pushing the notice to your mobile device through the Application. But, it is your responsibility to check these Terms periodically for changes. Your continued use of the Services following the posting, the effective date of the changes, or the applicable date indicated in the Change Notice will mean that you accept and agree to the changes.

  1. HOW TO CONTACT WWHI.

If you have any questions, comments, concerns, or you wish to report a violation, please contact WWHI at the following:

Mail

Attn: General Counsel

World Wide Health Initiatives LLC

4613 N. University Drive, #267

Coral Springs, FL 33067

E-mail

Please use the e-mail address set forth on the contact us

at info@healthkos.com page

 

Subject: Website and Application Terms

You may not use contact information provided for unauthorized purposes, including solicitations and marketing.

  1. DEFINITIONS.

Certain capitalized terms, if not otherwise defined in these Terms will have the meanings set forth in this Section.

Access Credentials

means the username and password you use to access the Application.

Application

means the HealthKOS™ patient communication platform that allows you, your healthcare provider, and others that you authorize to monitor certain aspects of your health, and which you can (a) download from the official page for WWHI in the iTunes®, Google Play™, or Windows® Phone app stores, as available, and access with your Access Credentials, or (b) access through the Website and log into with your Access Credentials. Application includes any updates, enhancements, modifications, revisions, or additions to the Application made by WWHI and made available from time to time to end users.

Content

means any and all materials on the Website, including, without limitation, text, images, user interfaces, visual interfaces, graphics, videos, trademarks, logos, sounds, databases, source code and computer code, including but not limited to the design, structure, selection, coordination, expression, ‘look and feel’ and any and all arrangement thereof.

Documentation

includes any user manuals, knowledge base articles, instructions, service descriptions, white papers, and any other materials related to or concerning the Application that WWHI purposely makes available to you for copying, printing, or downloading in connection with your use of the Application.

Materials

means any and all materials on the Application, including, without limitation, text, images, user interfaces, visual interfaces, graphics, videos, trademarks, logos, sounds, databases, source code and computer code, including but not limited to the design, structure, selection, coordination, expression, ‘look and feel’ and any and all arrangement thereof.

Services

means collectively, the Application and the Website.

Terms

means these Website and Application Terms of Service.

You” or “your

refers to the individual end user of the Services and includes, but is not limited to, the patient that is enrolled in the Application as well as an individual to whom the patient sent an invitation to participate in such patient’s healthcare.

Website

means www.healthkos.com and any electronic newsletters or notices WWHI provides to you that link to these Terms. Website does not include Application.

  1. NO MEDICAL ADVICE.

You understand and agree that WWHI is not a medical provider and does not make clinical, medical, or other decisions related to your healthcare. WWHI or the Services are not a substitute for professional medical judgment applied by your medical provider. You will only look to your medical provider for medical advice and, as between you and WWHI, your medical provider is solely responsible for all decisions and actions taken or not taken involving your care, utilization management, and quality management for your healthcare services resulting from, or in any way related to, the use of the Application. You further acknowledge and agree that any treatments, procedures, information, medications, medical device or other products or any other information referenced in the Services, Content, Documentation, or Materials are not intended as a recommendation or endorsement of any course of treatment, procedure, information, medication, medical device, or product and that the ultimate responsibility for diagnosing and treating you rests with your medical provider. THE INFORMATION MADE AVAILABLE ON OR THROUGH THE SERVICES, CONTENT, DOCUMENTATION, OR MATERIALS SHOULD NOT BE RELIED UPON WHEN MAKING MEDICAL DECISIONS OR TO DIAGNOSE OR TREAT A MEDICAL CONDITION. USE OF THE APPLICATION DOES NOT CREATE A PHYSICIAN-PATIENT RELATIONSHIP.

  1. SERVICE LICENSE AND USAGE.

Application, Documentation and Materials License Grant.

For the duration of these Terms and as long as you fully comply with these Terms, WWHI grants you and you accept a personal, non-commercial, limited, non-exclusive, non-transferable, non-sublicensable, revocable license to (a) download and install a copy of the mobile app version of the Application from the applicable App Store and in the form of machine-readable, executable object code form only and use it on a mobile device that you own or control; (b) access and use the website version of the Application that is available through the Website and in the form of machine-readable, executable object code form only; and (c) access, copy, print, and download the Documentation (if any) and Materials that accompany the Application provided that (i) you obtained lawful and authorized access to the Application; (ii) you do not modify or delete (including through selectively copying or printing material) any copyright, trademark, or other proprietary notice that appears on such Documentation or Materials; and (iii) you do not make any additional representations or warranties relating to such Documentation or Materials. WWHI will be under no obligation to provide any updates, enhancements, modifications, revisions, or additions to the Application, Documentation, or Materials.

Website and Content License Grant.

For the duration of these Terms and as long as you fully comply with these Terms, WWHI grants you and you accept a personal, non-commercial, limited, non-exclusive, non-transferable, non-sublicensable, revocable license to (a) access and use the Website; and (b) access, copy, print, and download the Content that WWHI purposely makes available to you for copying, printing, or downloading in connection with your use of the Website, provided that (i) you obtained lawful and authorized access to the Website; (ii) you do not modify or delete (including through selectively copying or printing material) any copyright, trademark, or other proprietary notice that appears on such Content; and (iii) you do not make any additional representations or warranties relating to such Content. WWHI will be under no obligation to provide any updates, enhancements, modifications, revisions, or additions to the Website or the Content.

4.3.        App Stores and Third Party Fees.

Generally.

You acknowledge and agree that the availability of the Application is dependent on the third party from whom you downloaded the Application (e.g., the Apple App Store® or Google Play™) (“App Store”). You acknowledge that these Terms are between you and WWHI and not with the App Store. As between WWHI and the App Store, WWHI and not the App Store, is solely responsible for the Application, Documentation, Materials, addressing any claims relating to the Application (e.g., product liability, legal compliance, or consumer protection) and, if made available by WWHI, maintenance, support services, and warranty for the Application. You agree to pay all fees (if any) charged by the App Store in connection with the Application. You agree to comply with, and your license to use the Application is conditioned upon your compliance with, all applicable third party terms and conditions (e.g., the App Store’s terms and policies) related to the Application.

Apple iTunes®.

The following applies to any Application accessed through or downloaded from the Apple App Store:

(i)     You will only use the Apple App Store sourced Application (1) on an Apple-branded product that runs the iOS, and (2) as permitted by the “Usage Rules” set forth in the Apple App Store Terms of Service, as they may be revised from time to time.

(ii)    In the event of any failure of the Apple App Store sourced Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price (if any) for such Application to you and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Apple App Store sourced Application. As between WWHI and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of WWHI.

(iii)   You and WWHI acknowledge that, in the event of any third party claim that the Apple App Store sourced Application or your possession and use of that Apple App Store sourced Application infringes that third party’s intellectual property rights, as between WWHI and Apple, WWHI, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by these Terms.

(iv)   You and WWHI acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of these Terms as related to your license of the Apple App Store sourced Application, and that, upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms as related to your license of the Apple App Store sourced Application against you as a third party beneficiary of these Terms.

Ownership of Content, Documentation, and Materials.

You acknowledge and agree that all Content, Documentation and Materials is the exclusive property of and owned by WWHI or its licensors and is protected by copyright, trademark, trade dress and various other intellectual property rights and unfair competition laws. These marks and copyrights may not be copied, imitated, or used, in whole or in part, without the express prior written permission from their respective owners, and then with the proper acknowledgments. Nothing on or in the Services, Content, Documentation, or Materials will be construed as granting, by implication, estoppel, or otherwise, any license or right to use any trademark, logo or service mark displayed on the Services, Content, Documentation, or Materials without the owner’s prior written permission, except as otherwise described in these Terms.

Restrictions.

WWHI RETAINS ALL RIGHT, TITLE, AND INTEREST IN THE APPLICATION, CONTENT, DOCUMENTATION AND MATERIALS AND ALL RIGHTS NOT EXPRESSLY GRANTED IN THESE TERMS ARE RESERVED. You will not, nor will you permit anyone else over which you exercise control, including but not limited to those individuals you invited to participate in or otherwise monitor your health, to (a) except as expressly permitted in Sections 4.1(c) (addressing copies) and 4.2(b) (addressing copies), copy or reproduce the Application, Content, Documentation, or Materials in whole or in part; (b) modify, translate, or create derivative works of the Application, Content, Documentation, or Materials; (c) reverse engineer, decompile, disassemble or otherwise attempt to gain the source code to the Website or the Application except to the extent the foregoing restrictions are expressly prohibited by applicable law; (d) distribute, sublicense, assign, share, timeshare, sell, rent, lease, grant a security interest in, use for service bureau purposes or otherwise transfer the Application, Content, Documentation, or Materials; (e) export, re-export, divert or transfer the Application, Content, Documentation, or Materials to any country that is embargoed by the United States or designated by the U.S. Government as a “terrorist supporting” country; (f) unless expressly authorized by WWHI in writing, authorize or undertake a penetration test, vulnerability scan, social engineering test or any other similar activity against the Services or WWHI; (g) interfere with or attempt to interfere with the proper functioning of the Services; (h) access the Application, Content, Documentation, or Materials to build a competitive product or service; or (i) violate these Terms. Any unauthorized use of the Application, Content, Documentation, or Materials terminates the licenses WWHI granted to you pursuant to these Terms.

Feedback and Use of Created Materials.

You agree that submission of any ideas, suggestions, documents, or proposals to WWHI through its suggestion form, feedback form, wiki, forum, support email, or similar means (collectively, the “Feedback”) is at your own risk and that WWHI 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 WWHI a royalty-free, perpetual, irrevocable, worldwide, and nonexclusive right and license to use, copy, reformat, display, perform, modify, disclose, distribute, adapt, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights.

SHARING YOUR INFORMATION AND VIDEO CONSENT.

 

Medical Providers.

By using the Application, you acknowledge that WWHI may share the information you input into the Application, including, but not limited to, health information, or the information the Application otherwise gathers, collects or records (collectively, the “Records”) with your participating medical provider and you consent to WWHI sharing such Records with your participating medical provider. You acknowledge that WWHI has no control over how your participating medical provider may use or disclose your Records and, to the fullest extent permissible by law, you assume any and all risk, known or unknown, that arises from or is related to your participating medical provider and such providers use of the HealthKOS™ patient communication platform and the Records. Your participating medical provider is required to comply with the Health Insurance Portability and Accountability Act (“HIPAA”) as well as more restrictive state laws, as applicable, in such providers use and disclosure of your health information. You may read your participating medical provider’s Notice of Privacy Practices for additional details on how the provider uses and discloses your health information.

Family, Friends, and Other Third Parties.

The Application permits you to invite others, such as your family members and friends, to participate in your healthcare (the “Invited Third Parties”). You may do so by, for example, sending them an e-mail invitation from the Application. You understand that WWHI will disclose some or all of your Records to the Invited Third Parties. These Invited Third Parties may, for example, receive alerts about your blood pressure and other healthcare metrics as well as your use of or failure to use the Application. You acknowledge that WWHI has no control over how Invited Third Parties may use or disclose your Records and, to the fullest extent permissible by law, you assume any and all risk, known or unknown, that arises from or is related to the Invited Third Parties and their use of the Application or receipt of your Records.

Use of Video Conferencing.

The Application includes a video conferencing feature, which allows you and your participating medical provider to communicate real-time through a video conference call. In using the video conferencing feature, you agree and understand that:

(a)          You are not required to use the video conferencing feature and you can stop using the feature at any time.

(b)          You should not use the video feature until you discuss the risks, benefits, and consequences of using this feature with your medical provider.

(c)          The video session with you and your medical provider may be recorded and stored. The stored session may also be shared with other third parties, if such sharing is permitted by applicable law or with your consent, including as further described in the Privacy policy.

(d)          Your request to connect with your medical provider via a video conference call is not immediate. It may take your medical provider several hours or days to respond to your request to have a video conference. Accordingly, you will not rely on this video feature in the event of an emergency. IF YOU ARE EXPERIENCING AN EMERGENCY, DIAL 911 AND GO TO THE HOSPITAL.

(e)          Your medical provider may have additional policies and procedures that govern your use of the video feature. Your provider may also require that you sign additional consent forms before this feature is available to you or before your provider will respond to your connection request. This feature is only available to you if your provider agrees to use the feature.

(f)           Video and technology is not perfect. You may experience delays, downtime, and other connection issues when using the video feature, which may interfere with your use of the feature or otherwise compromise the quality of the services.

(g)          While the video conferencing feature uses encryption to secure the connection, video conference calls may not be secure and could be subject to electronic tampering. For example, there may be other people standing in the room that are outside of the view of the camera. Also, security protocols could fail, causing a breach of privacy and disclosure of your Records.

(h)          Your medical provider may charge you a fee to use the video feature.

(i)            In the event your provider uses the video feature to provide medical services, you understand that not all medical services are available when using the video feature. For example, in some circumstances, medical providers cannot write prescriptions for controlled substances when they see their patient over video. Additionally, the video visit may not be equal to a face-to-face visit because, unlike a traditional face-to-face visit, your medical provider does not have the use of the other senses such as touch or smell.

  1. REGISTRATION AND CONDUCT.

Registering and Maintaining your Account.

To access and use the Application, you must register for an account with WWHI. As part of the registration process, (a) if you are a patient with a participating medical provider, you agree and understand that WWHI may receive certain Records about you from your participating medical provider; and (b) if you are an Invited Third Party, you agree that WWHI may receive certain information about you from the individual that issued the invitation (e.g., your relationship to the individual that issued the invitation).  You agree to provide and maintain true, accurate, current, and complete information about yourself and, if applicable, to provide true, accurate, current, and complete information to your medical provider. WWHI is expressly relying on you providing and maintaining true, accurate, current and complete information and you agree and understand that some features of the Application may not function properly or may not be available to you unless you provide and maintain true, accurate, current, and complete information. If you are a patient with a participating provider, your account with WWHI will only be available to you so long as (i) you remain a patient with a medical provider who is using the HealthKOS™ patient communication platform; (ii) your medical provider approves your enrollment in and ongoing use of the HealthKOS™ patient communication platform; and (iii) you comply with these Terms.  If you are an Invited Third Party, your account with WWHI will only be available to you so long as (1) the individual that issued you the invitation does not disable your invitation or you otherwise decline to accept invitation; (2) you do not unenroll from the HealthKOS™ patient communication platform; and (3) you comply with these Terms.

Disabling Account and Deleting Records.

If you are a patient with a participating provider, to disable your account with WWHI, you must notify your participating medical provider, who will then notify WWHI to disable your account with WWHI. Your WWHI account may be disabled or otherwise made inaccessible as requested by your participating medical provider. If you are an Invited Third Party, you may unenroll from the HealthKOS™ patient communication platform by providing WWHI with applicable notice through the Services, otherwise request for the individual who sent you the enrollment invitation to cancel or otherwise disable the invitation, or use such other process as WWHI may reasonably require. WWHI will maintain your Records for the longer of, as applicable, (a) as required by applicable law; (b) the terms of WWHI’s agreement with your participating medical provider; or (c) as provided in the WWHI Privacy policy.

6.3.        Username and Password.

Protecting Access Credentials.

To access and use the Application, you must use your Access Credentials. Given the types of services being provided, you agree and acknowledge that you must take appropriate steps and use reasonable security measures to protect your Access Credentials and the data in the Application by, for example, protecting your password, selecting a strong password, using secure Wi-Fi or VPN, using antivirus software on your computer, using a firewall on your computer, locking your mobile device and your computer, and using any and all other appropriate and reasonable practices.

Sharing Access Credentials.

You may not share your account or Access Credentials with anyone. You agree that you will be responsible for any and all statements made, and acts or omissions that occur, through the use of your Access Credentials. WWHI may assume that any communications WWHI receives under your Access Credentials were made by you unless WWHI receives written notice from you otherwise.

Security Incident.

If you have any reason to believe or reasonably suspect any loss, theft or unauthorized use of your Access Credentials, your device, or that your access to the Application was compromised, you must immediately notify us by e-mail using the contact information set forth in Section 1 (How to Contact WWHI), with attention to our Security Officer.

Activities.

You represent and warrant (and WWHI is relying on your representation and warranty) that (a) you own or otherwise control all the rights or have sufficient rights to the Feedback and other information you submit (“Submitted Information”) or that such items are known to you to be in the public domain; (b) that the Submitted Information is accurate; (c) that use of the Submitted Information you supply does not violate any provision in these Terms, is not confidential, proprietary, infringing of any third party intellectual property rights or terms you may have agreed to with a third party; (d) that the Submitted Information is not defamatory or otherwise trade libelous; (e) you do not violate any applicable law, statute, ordinance or regulation; and (f) you are not listed on any U.S. Government list of prohibited or restricted parties, including the list of Specially Designated Nationals and Blocked Persons maintained by the Office of Foreign Assets Control of the U.S. Department of the Treasury or any list of known or suspected terrorists, terrorist organizations or other prohibited persons.

Use of the Website.

You or third parties acting on your behalf are not allowed to use frames or framing techniques to enclose any portion of the Services without our express written consent.

Prohibited Conduct.

You expressly agree to refrain from doing, either personally or through an agent, any of the following: (a) use any device or other means to harvest or attempt to harvest information about other users; (b) transmit, install, upload or otherwise transfer any “viruses,” “time bombs,” “malware,” worms, trojans, malicious software or any code that is designed to delete, disable, deactivate, interfere with, or otherwise harm or disrupt the Services or that in any way affects the use, enjoyment or service of the Services, or any user’s mobile device, computer or other medium used to access the Services or that attempts to violate any security feature of the Services; (c) modify the information, including headers, found on the Services; (d) transmit, install, upload or otherwise transfer to the Services any unauthorized advertisement or communication; (e) engage in any action which WWHI determines in its sole discretion is detrimental to the use and enjoyment of the Services; or (f) transmit, install, upload, post or otherwise transfer any information in violation of the laws of the United States. Further, you may not use any hardware or software intended to damage or interfere with the proper working of the Services or to surreptitiously intercept any system, data, or personal information from the Services.

Right to Remove Material and Disable Features.

WWHI has an absolute right to remove any Content, Document, and Materials from the Services and disable any features in the Services in its sole discretion at any time and for any reason.

  1. HYPERLINKS AND THIRD PARTY WEBSITES.

Hyperlinks.

The Application, Content, Documentation, and Materials may contain hyperlinks to other websites. These links are provided as a convenience to you and as an additional avenue of access to the information contained on such websites. WWHI is not responsible for the content of those or any other websites or any products or services that may be offered through those or any other websites and does not endorse such content, goods, or services.

Websites.

WWHI has no control over third party websites and makes no claim or representation regarding such websites. WWHI accepts no responsibility for, the quality, content, nature, or reliability of any websites accessible by hyperlink from the Application, Content, Documentation, or Materials. Different terms and conditions may apply to your use of any linked sites. For example, WWHI may include a link for you to connect with us on Facebook or to follow us on Twitter; each of these companies has its own terms and conditions which you may be required to accept and follow. WWHI is not responsible for any losses, damages or other liabilities incurred as a result of your use of any linked sites. You should refer to such websites’ respective privacy policies and terms and conditions.

  1. INFRINGEMENT NOTICE.

Notification of Copyright Infringement.

WWHI respects the intellectual property rights of others and requests that you do the same. If you believe your copyright or the copyright of a person on whose behalf you are authorized to act has been infringed, you may notify WWHI in writing to the e-mail address or mailing address provided in Section 1 of these Term with attention to Copyright Agent. To be effective, your notification must be in writing, include your contact information, provided to our copyright agent, and include: (a) signature of a person authorized to act; (b) identification of the copyrighted work claimed to have been infringed; (c) identification of the material that is claimed to be infringing including references to the location of the material on the Services; and (d) comply with all other requirements of the Digital Millennium Copyright Act, if any.

Notification of Other Intellectual Property Infringement.

If you believe your non-copyright intellectual property rights were violated (e.g., trademark rights), please notify us in writing to the e-mail address or mailing address provided in Section 1 of these Terms with attention to General Counsel.

No Duty to Validate Claim.

WWHI undertakes no duty to determine the validity of any claim of copyright or trademark infringement.

  1. CONFIDENTIAL INFORMATION.

9.1.        Definition of Confidential Information.

Definition.

In receiving the services from WWHI, you may have access to or otherwise receive information from WWHI that is confidential or proprietary to WWHI (“Confidential Information”). For purposes of these Terms, “Confidential Information” includes all information in spoken, printed, electronic or any other form or medium, relating directly or indirectly to: (a) the Application, Documentation, or Materials; (b) information relating to WWHI’s business or financial affairs, including all financial information, pricing structures and policies, employee information, contractor information, know-how, processes, vendor lists, reports, product plans, marketing plans and techniques, management plans and techniques, negotiations, communications, internal controls, security procedures and controls, policies, handbooks, manner of operation, and trade secrets; and (c) any other information, knowledge or data, in whatever form or medium, concerning or relating to the business affairs of WWHI or of any other person or entity that has entrusted information to WWHI in confidence which is not generally known by the public at large and that should reasonably have been understood by you (because of legends or other markings, the circumstances of disclosure, or the nature of the information itself) to be proprietary or confidential to WWHI.

Exclusion.

Confidential Information does not include any information that you can demonstrate by written records: (a) at the time of disclosure or thereafter is generally available to and known by the public (other than as a result of its disclosure by you or someone acting on your behalf); (b) was available to you on a non-confidential basis prior to its disclosure by WWHI or someone acting on its behalf; (c) becomes available to you on a non-confidential basis from a person who is not otherwise bound by a confidentiality agreement with WWHI, or by any other obligation of secrecy; (d) is independently developed by you without the aid, application or use of WWHI’s Confidential Information; or (e) subject to Section 9.4 (Required Disclosures), is required by law to be disclosed.

Permitted Disclosures.

You agree not to use WWHI’s Confidential Information except in connection with the performance or use of the Services, as applicable, without the prior written consent of WWHI. Nothing in this Section prohibits you from exercising any of your statutory rights or to otherwise cooperate with any government investigation or audit.

Obligations to Protect.

You agree to maintain the confidentiality of the Confidential Information, and to protect as a trade secret any portion of WWHI’s Confidential Information that constitutes a trade secret, by using reasonable efforts, to prevent any unauthorized copying, use, distribution, disclosure, installation or transfer of possession of such Confidential Information.

Required Disclosures.

In the event you or anyone acting on your behalf receives a request to disclose any Confidential Information under the terms of a valid and effective subpoena or order (including oral questions, interrogatories, requests for information or documents, civil investigative demand or similar process, or otherwise) issued by a court of competent jurisdiction, administrative agency or is otherwise legally compelled (collectively, the “Order”), unless otherwise prohibited in such Order, you agree to: (a) promptly notify WWHI of the existence, terms and circumstances surrounding such a request; (b) cooperate with WWHI to secure confidential treatment of the Confidential Information or to otherwise take legally available steps to resist or narrow such request; and (c) if disclosure of such Confidential Information is required, disclose to the person compelling disclosure only that portion of WWHI’s Confidential Information that is legally required.

  1. INDEMNIFICATION.

You agree to indemnify and hold WWHI and its parents, subsidiaries, affiliates, officers, employees, agents, partners, and licensors (collectively, the WWHI Parties) harmless from any losses, costs, liabilities, government investigations, and expenses (including reasonable attorneys’ fees) relating to or arising out of: (a) any data you submit to or through the Services; (b) your use of, or inability to use, the Services; (c) your violation of these Terms; (d) your violation of any rights of another party; or (e) your violation of any applicable laws, rules or regulations. WWHI 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 WWHI in asserting any available defenses.

  1. DISCLAIMER OF WARRANTIES.

11.1.     General Disclaimers.

Use of Services.

YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE SERVICES, CONTENT, DOCUMENTATION, AND MATERIALS IS AT YOUR SOLE RISK AND THE SERVICES, CONTENT, DOCUMENTATION, AND MATERIALS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. THE WWHI 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, NON-INFRINGEMENT, AND WARRANTIES IMPLIED FROM A COURSE OF PERFORMANCE OR COURSE OF DEALING.

Operation of Services.

THE WWHI PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (I) THE SERVICES WILL BE UNINTERRUPTED, TIMELY, OR ERROR-FREE; (II) THAT THE APPLICATION WILL BE SECURE, PROVIDED THAT WWHI USES COMMERCIALLY REASONABLE EFFORTS TO SECURE THE APPLICATION AND MATERIALLY COMPLIES WITH ITS PRIVACY AND SECURITY OBLIGATIONS PURSUANT TO APPLICABLE LAWS, INCLUDING HIPAA; (III) ANY ERRORS IN THE SERVICES WILL BE CORRECTED; OR (IV) THAT YOUR USE OF THE SERVICES, CONTENT, DOCUMENTATION, OR MATERIALS WILL NOT RESULT IN THE LOSS OF, OR DAMAGE TO, YOUR RECORDS, ANY OTHER INFORMATION, YOUR DEVICES, OR ANY OTHER EQUIPMENT YOU USE TO ACCESS THE SERVICES, CONTENT, DOCUMENTATION, OR MATERIALS. THE SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS, AND OTHER DISRUPTIONS. THE WWHI PARTIES ASSUME NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MIS-DELIVERY OR FAILURE TO STORE YOUR RECORDS OR OTHER INFORMATION THROUGH THE SERVICES.

Accuracy of Information Obtained from your Medical Devices.

While WWHI intends that the data submitted by the medical devices that you use in connection with the HealthKOS™ patient communication platform is accurate, complete, and reliable, you agree and understand that such data is provided by third-parties over which WWHI has no control. ACCORDINGLY, WWHI MAKES NO WARRANTIES OR REPRESENTATIONS AS TO THE ACCURACY, TIMELINESS OR COMPLETENESS OF SUCH DATA OR THAT SUCH DATA WILL MEET YOUR REQUIREMENTS OR THAT OF YOUR PARTICIPATING MEDICAL PROVIDER.

Use of Medical Device.

YOU AGREE AND UNDERSTAND THAT YOUR USE, ACCESS, DOWNLOAD, OR OTHERWISE OBTAINING INFORMATION OR DATA FROM THE MEDICAL DEVICES IS AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL LOOK SOLELY TO ANY REPRESENTATION, WARRANTIES, AND COVENANTS MADE BY THE MANUFACTURER OF SUCH MEDICAL DEVICE TO YOU IN THE EVENT SUCH MEDICAL DEVICE MALFUNCTIONS OR OTHERWISE CAUSES ANY DAMAGE TO YOU, YOUR DATA, OR ANY OF YOUR DEVICES. ANY TERMS, CONDITIONS, WARRANTIES, OR REPRESENTATIONS ASSOCIATED WITH SUCH MEDICAL DEVICE ARE SOLELY BETWEEN YOU AND SUCH MEDICAL DEVICE MANUFACTURER.

No Warranties Created.

NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE WWHI PARTIES OR THROUGH OR FROM THE SERVICES, CONTENT, DOCUMENTATION, OR MATERIALS WILL CREATE ANY WARRANTY OF ANY KIND. WWHI DISCLAIMS ANY AND ALL LABILITY FOR THE ACTS, OMISSIONS, AND CONDUCT OF ANY THIRD PARTIES IN CONNECTION WITH OR RELATED TO YOUR USE OF THE SERVICES, CONTENT, DOCUMENTATION, OR MATERIALS.

Sole Remedy.

YOUR SOLE REMEDY AGAINST WWHI FOR DISSATISFACTION WITH THE SERVICES, CONTENT, DOCUMENTATION, OR MATERIALS IS TO STOP USING THE SERVICES, CONTENT, DOCUMENTATION, AND MATERIALS. THIS LIMITATION OF RELIEF IS A PART OF THE BARGAIN BETWEEN YOU AND WWHI.

Reservation of Rights.

WWHI reserves the right to restrict or terminate your access to the Services or any feature or part thereof at any time and for any reason. WWHI further reserves the right to do any of the following, at any time and without notice: (a) to modify, suspend or terminate operation of or access to the Services, or any portion of the Services, for any reason; (b) to modify or change the Services, or any portion of the Services, and, except as otherwise provided in these Terms or the Privacy policy, modify or change any applicable policies or terms; and (c) to interrupt the operation of the Services, or any portion of the Services, as necessary to perform routine or non-routine maintenance, error correction, or make other changes.

Impact of Jurisdiction and Relief.

IN CERTAIN JURISDICTIONS, THE LAW MAY NOT PERMIT OR MAY LIMIT THE DISCLAIMER OF WARRANTIES, SO THE ABOVE DISCLAIMER MAY NOT APPLY TO YOU AND MAY BE LIMITED IN ITS APPLICATION. Termination of your access or use will not waive or affect any other right or relief to which WWHI may be entitled at law or in equity.

  1. LIMITATION OF LIABILITY.

Special Damages.

EXCEPT WHERE PROHIBITED BY LAW, IN NO EVENT WILL THE WWHI PARTIES BE LIABLE TO YOU OR TO ANY OF YOUR AGENTS FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL, PUNITIVE, OR OTHER DAMAGES INCLUDING, WITHOUT LIMITATION, ANY DAMAGES RESULTING FROM LOSS OF USE, DATA, GOODWILL, REPUTATION, FAILURE TO PROVIDE NOTICE OR ALERT, OR OPPORTUNITIES, WHETHER OR NOT THE WWHI 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 THESE TERMS OR THE SERVICES, ON ANY THEORY OF LIABILITY (WHETHER SUCH LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE OR ANY OTHER CAUSE OF ACTION, INCLUDING THE FAILURE OF ESSENTIAL PURPOSES), RESULTING FROM: (1) THE USE OR INABILITY TO USE THE SERVICES, CONTENT, DOCUMENTATION, OR MATERIALS; (2) ANY OTHER SITE YOU ACCESS THROUGH A LINK ON THE SERVICES, CONTENT, DOCUMENTATION, OR MATERIALS; (3) ANY DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY USE OF THE SERVICES.

Cap on Liability.

If, notwithstanding the other provisions of these Terms, WWHI is found to be liable to you for any damage or loss which arises out of or is in any way connected with your use of the Application or these Terms, WWHI’S LIABILITY WILL IN NO EVENT EXCEED US$10.00. Some jurisdictions do not allow limitations of liability, so the foregoing limitation may not apply to you.

BASIS OF THE BARGAIN.

THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN WWHI AND YOU.

  1. GOVERNING LAW AND JURISDICTION.

The laws of the State of Florida, without regard to any conflicts of laws principles thereof, will govern the construction and interpretation of these Terms and the rights of the parties hereunder. The parties hereunder agree on behalf of themselves and any person claiming by or through them that the exclusive jurisdiction and venue for any action or proceeding arising out of or relating to these Terms or the Services will be an appropriate state or federal court located in Brevard County, Florida and each party irrevocably waives, to the fullest extent allowed by applicable law, the defense of an inconvenient forum. You and WWHI agree that these Terms will not be governed by the following, the application of which is hereby expressly excluded: (a) the United Nations Convention on Contracts for the International Sale of Goods, and (b) the Uniform Computer Information Transactions Act, as enacted in any jurisdiction.

WWHI strives to provide you with excellent services. If you believe that WWHI has not met this goal or that WWHI did not comply with these Terms, please contact WWHI using one of the means set forth in Section 1 (How to Contact WWHI) to give WWHI the opportunity to address your concern.

  1. CHANGES TO THESE TERMS OF USE.

WWHI may change these Terms from time to time. Please take a look at the “Last Modified” legend at the top of this page to see when these Terms were last revised. Any non-material changes to these Terms will become effective when WWHI posts the revised Terms on the Website or pushes them out to the Application, as applicable. When WWHI changes these Terms in a material way, WWHI will issue a Change Notice as described above.

  1. TERMINATION.

WWHI reserves the right, without notice and in its sole discretion, to terminate your license to use the Services, Content, Documentation, and Materials and to block or prevent future access to and use of the Services, Content, Documentation, or Materials. You may disable your account as described in Section 6 (Registration and Conduct) above.

  1. GENERAL TERMS.

Electronic Communications.

The communications between you and WWHI use electronic means. You (a) consent to receive communications from WWHI in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that WWHI 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 any statutory rights you may have.

Assignment.

These Terms, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated, or otherwise transferred by you without WWHI’s prior written consent, which may be withheld at WWHI’s sole discretion, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. WWHI may assign, subcontract, delegate, or otherwise transfer or sublicense any rights (including license rights) granted to WWHI hereto.

Force Majeure.

WWHI will not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor, materials, or changes in regulations.

Limitations Period.

YOU AND WWHI AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THESE TERMSMUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.

Relationship.

The parties hereto are independent contractors and nothing in these Terms is to imply an agency, joint venture, partnership, or fiduciary relationship between such parties.

Notice.

WWHI may provide notice to you by e-mail to the most recent e-mail address on file with WWHI. Where WWHI requires that you provide an e-mail address, you are responsible for providing WWHI with your most current e-mail address. In the event that the last e-mail address you provided to WWHI is not valid, or for any reason is not capable of delivering to you any notices required or permitted by these Terms, WWHI’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to WWHI at the mailing address set forth in Section 1. Such notice will be deemed given when received by WWHI by letter delivered by a nationally recognized overnight delivery service or first class postage prepaid mail with receipt confirmation.

Admissibility.

A printed version of these Terms will be admissible in judicial or administrative proceedings based on or relating to use of the Services or these Terms to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.

Waiver.

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

Severability.

If any provision of these Terms is, for any reason, held to be invalid or unenforceable, the other provisions of these Terms 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.

Survival.

Termination or expiration of these Terms for any reasons will not release either party hereto from any liabilities or obligations set forth in these Terms which remain to be performed or by their nature would be intended to be applicable following any such termination or expiration.

Export Control.

You may not use, export, import, or transfer the Services, Content, Documentation, or Materials except as authorized by U.S. law, the laws of the jurisdiction in which you obtained the Services, Content, Documentation, or Materials, and any other applicable laws. In particular, but without limitation, the Services, Content, Documentation, and 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. By using the Application, 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 also will not use the Application for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. You acknowledge and agree that products, services or technology provided by WWHI may be subject to the export control laws and regulations of the United States. To the extent applicable, you will comply with these laws and regulations and will not, without prior U.S. government authorization, export, re-export, or transfer WWHI products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.

Entire Agreement.

These Terms and the Privacy policy is the final, complete and exclusive agreement of the parties hereto with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.

Interpretation.

Capitalized terms defined in the singular include the plural and vice versa. The word “any” means “any and all.” The Section headings appearing in these Terms are inserted for convenience only and in no way define, limit, construe, or describe the scope or extent of such Section or in any way affect such Section. The words “herein,” “hereof,” “hereunder,” and other words of similar import refer to these Terms as a whole and not to any particular Section or other subdivision.

 

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