SITE/CLOUD/APP TERMS AND CONDITIONS
Clarius Mobile Health Corp. provides ultrasound scanners (“PRODUKT”), this website (“Site”), online services (“Cloud Services”) for, among other things, storing and providing access to Collective Content (defined below), and a software application (the “App” or “Application”) for controlling the Product and accessing the Cloud Services. Collectively the Site, App, Cloud Services, and Collective Content are referred to herein as the “Services”. Please read carefully the following terms and conditions (“Terms”) and our Datenschutzerklärung.
Except where otherwise stated, “we”, “our”, and “Clarius” used in these Terms shall be deemed to include Clarius Mobile Health Corp. doing business as Clarius Mobile Health and its affiliates, subsidiaries, successors and assigns.
This agreement was written in the English language. To the extent any translated version of this agreement conflicts with the English version, the English version controls.
BY CLICKING ON THE “I AGREE” OR “I ACCEPT” BUTTON, OR ACCESSING OR USING THE PRODUCT OR ANY OF THE SERVICES, YOU ARE INDICATING THAT YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY, THESE TERMS WHICH CONSTITUTE A BINDING LEGAL AGREEMENT BETWEEN YOU AND CLARIUS. YOU HAVE NO RIGHT TO ACCESS OR USE THE PRODUCT OR SERVICES UNLESS YOU AGREE TO THESE TERMS. If you accept or agree to these Terms on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to these Terms and, in such event, “you” and “your” extends beyond you to also refer and apply to that company or other legal entity.
Certain portions of the Services may have different terms and conditions posted or may require you to agree with and accept additional terms and conditions. If there is a conflict between these Terms and the terms and conditions posted for a specific portion of the Services, the latter terms and conditions will take precedence with respect to your use of or access to that portion of the Services. Unless explicitly stated otherwise, any new features that augment or enhance the current Services in the future shall be subject to these Terms; they will be posted to the Site as available and you are deemed to have accepted them.
“Business Associate Agreement” means any separate terms or agreement governing Patient Information as may be agreed to between Clarius and you.
“Content” means text, graphics, images, videos, the selection and arrangement of the foregoing, Examination Information, software (excluding the App) information, messages or other materials.
“Collective Content” means, collectively, Clarius Content and Registered User Content.
“Commenting Feature” means Clarius’ feature which allows one Registered User to post comments or contributions on the Registered User Content shared by another Registered User using the Sharing Feature.
“Clarius Content” means Content that we make available through the Services including webpages, documentation, manuals, user guides, and any Content licensed from a third party, but excluding Registered User Content.
“Examination Information” means ultrasound images, cineloops, measurements, findings, annotations, statistics, calculations, impressions, indications, and any information that may be generated during performance of an examination using the Product, excluding Patient Information.
“including” means “including but not limited to”.
“Patient Information” has the meaning set out in the “Patient Data and Legal Compliance” section below.
“Personally Identifying Information” means any information that could be used to identify an individual, or information which could identify their relatives, employers, or household members.
“Privacy Laws” has the meaning set out in the “Privacy and Content Terms” section below.
“Product Acquisition Terms” means the separate terms and conditions you agreed to when acquiring the Product (e.g., purchase, rental, or trial terms).
“Registered User” means a person that completes Clarius’ account registration process, as described in the “Account Registration” section below.
“Registered User Content” means Content a Registered User uploads, submits, stores, or transmits to the Services.
“Sharing Feature” means Clarius’ feature which allows a Registered User to post Registered User Content for comment by other Registered Users.
“you” means a Registered User or an unregistered accessor of a public portion of the Site, as applicable.
Clarius reserves the right, at its sole discretion, to modify, discontinue or terminate the Services (or any aspect thereof) or to modify these Terms, at any time and without prior notice. If we modify these Terms we will post the modification via the Site or App or provide you with notice of the modification. By continuing to access or use the Services after we have posted a modification or have provided you with notice of a modification, you agree to be bound by the modified Terms. If the modified Terms are not acceptable to you, you agree to immediately stop using the Services.
3. ACCOUNT REGISTRATION; CONDITIONS ON ACCESS AND USE OF SERVICES
Access to and use of the Services is limited to individuals who are at least 18 years of age. The Product and Services are available only in countries where they have been approved by applicable regulatory authorities. You shall not use the Product in any jurisdiction other than the jurisdiction in which you purchased the Product.
3.2 COMPLIANCE WITH LAWS.
You are responsible for ensuring that your use of the Product and Services complies with the laws of your country of residence and you assume the risks (including indemnity under the “Indemnity” Section below) attendant to the use of the Product and Services and the use of any Content that you upload to or through the Services. You must register to create an account (“Account”) to use the Product, App, or Cloud Services (including the Sharing Feature and the Commenting Feature).
To register, you must provide a username, your email address, and other information specified in the registration form (“Registration Data”). You represent and warrant: (i) you are trained and certified to use the Product, (ii) the Registration Data that you provide about yourself is true, accurate, current, and complete; (iii) you are at least 18 years of age; and (iv) you will maintain and promptly update the Registration Data to keep it at all times true, accurate, current, and complete. You authorize Clarius, in its sole discretion to confirm the truthfulness and accuracy of the Registration Data. If you provide any information that is untrue, inaccurate, not current or incomplete, or if Clarius has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, Clarius has the right to suspend or terminate your Account and refuse any and all current or future use of the Services. You also authorize Clarius to access your contact list and/or address book on your device at your direction in order to allow you to share Content with specific contacts you choose, connect with your colleagues, or to allow you to invite specific contacts you choose to use the Product or Services. If your invitee is a resident of any country that has anti-spam laws or Privacy Laws requiring consent from users in place, you must obtain his or her prior consent to use his or her e-mail address to share information or images or issue an invitation to use the Product or Services.
Use of the Product or Services is void where prohibited by law or otherwise. By using the Product or Services, you represent and warrant that you have the right, authority, and capacity to agree to and abide by these Terms and that you are not prohibited from using the Product or Services. You understand that your use of the Services may involve or require the transmission of significant amounts of data. You are solely responsible for all data charges that may be charged by your wireless carrier or internet service provider or that may otherwise arise from your use of the Services.
You understand and agree that the Services may include certain communications from Clarius, such as service announcements and administrative messages, and that while these communications are considered part of being a Registered User, you will be able to opt out of receiving them. However, you will not be able to opt out of any announcements and messages related to the implementation of Clarius’ Datenschutzerklärung and your obligations thereunder with regard to your Registered User Content.
3.4 SUBSCRIPTION/USAGE FEES.
If you agreed to pay subscription fees in your Product Acquisition Terms, you will be charged the fees indicated in such terms.
If you did not agree to pay subscription fees in your Product Acquisition Terms, or you are using the Services without a Product, your use of the Services will be limited as compared to the services available for subscription users. Clarius does not currently charge you fees for your use of the Services. However, you acknowledge and agree that Clarius reserves the right, in its sole discretion, to charge you for and collect fees from you for your use of the Services and to send and receive communications. Clarius will provide notice of any fee collection via the Services prior to implementing such a fee, and you will have a choice at that time to continue to use the Services or not. If you choose not to pay, Clarius reserves the right to immediately terminate your access to the Services.
The Services are designed to require users to provide a valid, working e-mail address and password to access and use the App, Cloud Services, Registered User Content, and non-public portions of the Site. Upon registering, you will select a password. Your email address and the password and codes assigned to you are, collectively, your “User Information.” You are solely responsible for (1) maintaining the strict confidentiality of your User Information, (2) not allowing another person to use your User Information to access the Services, (3) any and all damages or losses that may be incurred or suffered as a result of any activities that occur under your User Information. You agree to immediately notify Clarius in writing by email of any unauthorized use of your User Information or any other breach of security. Clarius is not and shall not be liable for any harm arising from or relating to the theft of your User Information, your disclosure of your User Information, or the use of your User Information by another person or entity. Any attempt to obtain unauthorized access or to exceed authorized access to the any of the Services shall be considered a trespass and computer fraud and abuse, punishable under national, provincial, state, and federal laws. Clarius hereby notifies you that any or all communications with this Site can and will be monitored, captured, and recorded and the communications may be transmitted to the authorities as deemed necessary by Clarius in its sole discretion and without further notice.
Clarius strives at all times to protect the security and privacy of any information you provide over the Internet. However, because of the inherent nature of the Internet, Clarius cannot guarantee that this information will not be improperly accessed or used by third parties. You are submitting this information over the Internet at your own risk. For further information, please refer to the Datenschutzerklärung.
5. PRODUCT, FEATURE, AND INFORMATION CONDITIONS
5.1 PRODUCT USE FOR CLINICAL DIAGNOSTIC PURPOSES ONLY.
YOU WILL USE THE PRODUCT ONLY FOR CLINICAL DIAGNOSTIC PURPOSES IN THE DIAGNOSIS OR TREATMENT OF A DISEASE OR CONDITION, AND NOT FOR ANY THERAPEUTIC, ENTERTAINMENT, RECREATIONAL OR AMUSEMENT PURPOSES. CLARIUS WILL NOT DELIVER, SERVICE OR PROVIDE TRAINING ON USE OF THE PRODUCTS IF CLARIUS DISCOVERS THE PRODUCT HAS BEEN OR ARE INTENDED TO BE USED FOR ANY NON-CLINICAL PURPOSE. SUCH USE OR INTENDED USE OF THE PRODUCT FOR NON-CLINICAL PURPOSES WILL VOID ANY APPLICABLE PRODUCT WARRANTY.
5.2 PROMOTION OF PRODUCTS WITH CLEARED INDICATIONS FOR USE
The U.S. Food and Drug Administration (FDA) requires that the promotion and marketing of the Product, App, and Cloud Services be consistent with the clinical applications and labeling for which the device has been cleared by the FDA. The Product is indicated for ultrasound imaging, measurement and analysis of the human body or animals, solely in the clinical applications specified in our user manual (as may be updated from time to time). All other uses of the Product are considered off-label and will void any applicable Product warranty and render any indemnity obligations provided by Clarius inoperable and unenforceable.
5.3 ENVIRONMENTAL HEALTH AND SAFETY; NON-CLARIUS PARTS
You shall provide and maintain a suitable, safe and hazard-free location and environment for the Product in material compliance with any written requirements provided by Clarius, perform Clarius recommended routine maintenance and operator adjustments, and ensure that any non-Clarius provided service is performed by, and Clarius Products are used by, qualified personnel in accordance with applicable user documentation. Clarius shall have no obligation to perform warranty services until you have complied with your obligations under this Section.
Clarius can make no assurances that Product performance will not be affected by the use of non-Clarius-supplied parts (including removable third-party batteries and chargers). In some instances, use of non-Clarius-supplied parts may affect Product performance or functionality.
5.4 SHARING FEATURE AND COMMENTING FEATURE FOR LIMITED PURPOSES ONLY
THE SHARING FEATURE AND COMMENTING FEATURE ARE PROVIDED PRIMARILY AS AN EDUCATIONAL TOOL AND IS NOT INTENDED TO SERVE THE FOLLOWING NEEDS: AS A DIAGNOSTIC SERVICE; AS A CONFIRMATORY SERVICE TO PROVIDE CERTAINTY IN DIAGNOSIS; TO SELECT, GUIDE, OR PROMOTE THERAPY OF MEDICAL CONDITIONS; FOR USE IN HAZARDOUS OR MISSION-CRITICAL CIRCUMSTANCES OR FOR USES REQUIRING FAIL-SAFE PERFORMANCE; OR IN SITUATIONS WHERE FAILURE COULD LEAD TO DEATH OR PERSONAL INJURY (COLLECTIVELY, “UNAUTHORIZED PURPOSES”). BECAUSE THE SHARING FEATURE AND COMMENTING FEATURE HAVE NOT BEEN DESIGNED, INTENDED, OR AUTHORIZED FOR SUCH UNAUTHORIZED PURPOSES, YOU SHALL NOT USE THE SHARING FEATURE OR COMMENTING FEATURE FOR SUCH PURPOSES OR UNDER SUCH CIRCUMSTANCES. YOU FURTHER ACKNOWLEDGE THAT THE USE OF THE SHARING FEATURE OR THE COMMENTING FEATURE FOR SUCH UNAUTHORIZED PURPOSES MAY CONSTITUTE A VIOLATION OF LAWS APPLICABLE TO THE PRACTICE OF MEDICINE OR OTHER HEALTH PROFESSION(S).
5.5 HEALTH INFORMATION DOES NOT CONSTITUTE MEDICAL SERVICES
THE IMAGING CAPABILITIES OF THE PRODUCT WHEN USED EXCLUSIVELY WITH THE APP IS INTENDED FOR DIAGNOSTIC PURPOSES. HOWEVER, WITHOUT LIMITING THE GENERALITY OF THE DISCLAIMERS IN THE “GENERAL DISCLAIMERS” SECTION BELOW (WHICH DISCLAIMERS FOR CLARITY APPLY TO THE HEALTH INFORMATION, DEFINED BELOW), CLARIUS IS NOT RESPONSIBLE AND SHALL NOT BE LIABLE TO YOU OR ANYONE ELSE FOR ANY ACTION OR DECISION TAKEN IN RELIANCE UPON ANY MEDICAL OR HEALTH INFORMATION POSTED OR OTHERWISE AVAILABLE ON OR THROUGH ACCESS TO THE SERVICES OR ANY OTHER SITES LINKED TO THE SITE (THE “HEALTH INFORMATION”). THE HEALTH INFORMATION IS NOT INTENDED TO BE USED AS A SUBSTITUTE FOR CONSULTATIONS WITH QUALIFIED HEALTH CARE PROFESSIONALS WHO ARE FAMILIAR WITH AN INDIVIDUAL’S MEDICAL NEEDS AND CAN PROVIDE PROFESSIONAL MEDICAL DIAGNOSIS OR TREATMENT. THE HEALTH INFORMATION IS NOT INTENDED TO PROVIDE SPECIFIC ADVICE FOR YOU OR ANY OTHER PERSON, AND SHOULD NOT BE RELIED ON IN THAT REGARD. NO PERSON SHOULD ACT OR RELY ON THE HEALTH INFORMATION OR USE THE HEALTH INFORMATION FOR DIAGNOSING, TREATING, CURING OR PREVENTING A HEALTH PROBLEM OR PRESCRIBING A MEDICATION. INSTEAD, THE ADVICE OF A QUALIFIED HEALTH CARE PROFESSIONAL SHOULD BE SOUGHT.
5.6 SHARING FEATURE AND COMMENTING FEATURE DO NOT CONSTITUTE MEDICAL SERVICES.
CLARIUS’ SHARING FEATURE AND COMMENTING FEATURE ARE TO BE USED SOLELY TO OBTAIN FEEDBACK, FOR EDUCATION AND FOR DISCUSSION. NEITHER THE USER SHARING THE CONTENT NOR THE USER COMMENTING ON THE CONTENT ARE INTENDING TO OR ARE PROVIDING MEDICAL SERVICES. A USER USING THE SHARING FEATURE AND COMMENTING FEATURE IS NOT REQUESTING AND SHALL NOT REQUEST A MEDICAL CONSULTATION OF ANY KIND; YOU ARE SOLELY REQUESTING FEEDBACK, EDUCATION, AND DISCUSSION. ANY DIAGNOSTIC SUGGESTIONS MADE ARE SOLELY MADE FOR THESE PURPOSES. CLARIUS AND USERS OF THESE FEATURES SHALL NOT BE LIABLE OR RESPONSIBLE FOR ANY DIAGNOSTIC SUGGESTIONS, CONTENT SHARED OR ANY COMMENTS MADE USING THE SHARING FEATURE OR THE COMMENTING FEATURE. YOU ACKNOWLEDGE THAT YOU ARE NOT ENGAGING IN THE PRACTICE OF MEDICINE NOR REQUESTING MEDICAL SERVICES OF ANY KIND OR INTENDING TO CREATE ANY KIND OF PHYSICIAN/PATIENT RELATIONSHIP BY USING THE SHARING FEATURE AND THE COMMENTING FEATURE AND BY RESPONDING TO OR ENGAGING IN ANY KIND OF CONVERSATION RELATED TO REGISTERED USER CONTENT. A USER COMMENTING ON REGISTERED USER CONTENT IS NOT GIVING AND SHALL NOT GIVE MEDICAL ADVICE OF ANY KIND. YOU ACKNOWLEDGE THAT BY COMMENTING ON A USER’S REGISTERED USER CONTENT AND PROVIDING INFORMATION, YOU, AS A SPECIALIST OR OTHER REGISTERED USER, ARE NOT AND SHALL NOT PROVIDE MEDICAL SERVICES, ENGAGE IN THE PRACTICE OF MEDICINE OR CREATE OR INTEND TO CREATE A PHYSICIAN/PATIENT RELATIONSHIP OR TO ACT AS A MEDICAL CONSULTANT.
YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE SERVICES AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT WITH AS A RESULT OF YOUR USE OF THE SERVICES. YOU UNDERSTAND THAT CLARIUS DOES NOT TAKE RESPONSIBILITY FOR SCREENING OR INQUIRY INTO THE BACKGROUND OF ANY USERS OF THE SERVICES, NOR DOES CLARIUS VERIFY OR TAKE RESPONSIBILITY FOR THE STATEMENTS OF USERS OF THE SERVICES. CLARIUS MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT OF USERS OF THE SERVICES OR THEIR COMPATIBILITY WITH ANY CURRENT OR FUTURE USERS OF THE SERVICES. YOU AGREE TO TAKE REASONABLE PRECAUTIONS IN ALL COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE SERVICES AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SERVICES, PARTICULARLY IF YOU DECIDE TO MEET OFFLINE OR IN PERSON.
6. PRIVACY & CONTENT TERMS
We welcome and encourage you to provide feedback, comments, and suggestions for improvements to the Product or Services (“Feedback”). You may submit Feedback by emailing us. You acknowledge and agree that if you submit any Feedback to us, you hereby grant to us a non-exclusive, worldwide, perpetual, irrevocable, fully-paid, royalty-free, sub-licensable (through several tiers) and transferable license under any and all intellectual property rights that you own or control in relation to the Feedback to use, reproduce, view, communicate to the public by any means, print, copy (whether onto hard disk or other media), edit, translate, perform and display (publicly or otherwise), distribute, redistribute, modify, adapt, make, sell, offer to sell, transmit, license, transfer, stream, broadcast, create derivative works from, and otherwise use and exploit the Feedback for any purpose.
In the case where review mechanisms are directly or indirectly provided by any of the Services, the following terms and conditions apply. Clarius does not support the comments or opinions of reviewers and assumes no responsibility or liability for any content posted by you or any third party. Clarius reviews may be moderated for appropriateness. You may post reviews and comments so long as the content does not violate the following product review guidelines: reviews shall not identify any particular individual, contain any profanity, harassment, libel or defamation, infringe any Clarius or third-party copyrighted works, contain otherwise harmful or offensive material, or attempt to gain unauthorized access to the Services.
Clarius reserves the right (but not the obligation) to remove or edit reviews for any reason at its sole discretion with no notice to you, and regularly reviews posted content. If you do post a review, you agree that the content in such review is not confidential and you grant Clarius a non-exclusive, royalty-free, perpetual, irrevocable, and fully sub-licensable right to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, and display such content throughout the world in any media for any purpose. You grant Clarius and sub licensees the right to use the name that you submit in connection with such content, if they choose. You irrevocably waive in favour of Clarius all moral rights or similar rights that you may have in and to such content. You represent and warrant that you are not a minor and that you own or otherwise have obtained all of the rights to the content that you post; that the content is accurate; that use of the content you supply does not violate these Terms or any applicable laws and will not cause injury to or violate the rights of any person or entity; and that you will indemnify Clarius for all claims resulting from content you supply. Clarius reserves the right not to post, or to block or filter, any review at our sole discretion.
6.4 REGISTERED USER CONTENT TERMS.
All Content posted using the Sharing Feature must comply with local, national, provincial, state, and federal privacy legislation and best practices. To assist you, we designed our Services to store Patient Information related to Registered User Content separate and apart from the Registered User Content itself. When the Sharing Feature is used, we make reasonable efforts to make accessible only the Registered User Content (but not the Patient Information) to other Registered Users. Despite this design, it is possible that Personally Identifying Information may remain in the Content desired to be shared (for example, facial features of unborn babies or internal structures or pathology distinctive of an individual). You must ensure that all Personally Identifying Information is removed prior to any Content being posted using the Sharing Feature. Personally Identifying Information includes, but is not limited to, the following:
- All geographical subdivisions smaller than a State or Province, including street address, city, county, precinct, zip code, and their equivalent geocodes, except for the initial three digits of a zip code, if according to the current publicly available data from the Bureau of the Census:
- The geographic unit formed by combining all zip codes with the same three initial digits contains more than 20,000 people; and
- The initial three digits of a zip code for all such geographic units containing 20,000 or fewer people is changed to 000
- Postal codes
- All elements (except year) for dates directly related to an individual, including birth date, admission date, patient encounter date, discharge date, date of death and exact age if over 89;
- Phone numbers, fax numbers, personal electronic mail addresses
- Social security or social insurance numbers, national identity number, or equivalent
- Medical record numbers
- Health card numbers, health plan beneficiary numbers, or Health Insurance Account numbers
- Account numbers
- Certificate/license numbers
- Vehicle identifiers and serial numbers, including license plate numbers
- Device identifiers and serial numbers
- Web Universal Resource Locators (URLs)
- Internet Protocol (IP) address numbers
- Biometric identifiers, including finger and voice prints
- Full face photographic images and any comparable images
- Images of scars, structures, pathology, organs, etc. which would allow for an identification
- Any other unique identifying number, characteristic, or code (note this does not mean the unique code assigned by the investigator to code the data).
You represent and warrant that each time you submit using the Sharing Feature you have complied with the terms herein on what identifying information should be removed from the Registered User Content shared using the Sharing Feature.
6.5 OWNERSHIP OF CONTENT.
6.6 USER CONTENT WARRANTIES.
You acknowledge and agree that you are solely responsible for all Registered User Content that you upload to and/or through the Services. Accordingly, you represent and warrant that: (i) you either are the sole and exclusive owner of all Registered User Content that you upload and/or make available through the Services or you have all rights, licenses, consents and releases that are necessary to grant to Clarius the rights in such Registered User Content, as contemplated under these Terms; and (ii) neither the Registered User Content nor your posting, uploading, publication, submission, or transmittal of the Registered User Content or Clarius’ use of the Registered User Content (or any portion thereof) on, through or by means of the Services will (a) infringe, misappropriate, or violate a third party’s patent, copyright, trademark, trade secret, moral rights, or other intellectual property rights, or rights of publicity or privacy, or (b) result in the violation of any Privacy Laws depending on your country or jurisdiction of access to the Services. You retain the sole responsibility of your individual compliance with applicable laws.
You acknowledge and agree that some of the Site, Services, or App may be supported by advertising revenue and may contain advertisements or promotions. If you elect to have any personal, professional or business dealings with anyone whose products or services may be advertised on the Site, Services, or App, you acknowledge and agree that such dealings are solely between you and such advertiser and you further acknowledge and agree that Clarius shall not have any responsibility or liability for any losses or damages that you may incur as a result of such dealings.
Your representations, warranties, and obligations in this section survive termination of these Terms.
7. CLARIUS LICENSE TERMS
7.1 CLARIUS CONTENT LICENSE GRANT.
Subject to your compliance with these Terms, Clarius grants you a limited, non-exclusive, non-transferable license: (i) to view any Clarius Content solely for your personal and professional purposes solely in connection with your use of, or the contemplation of the purchase of, the Product and; and (ii) to view any Registered User Content to which you are permitted access solely for your personal and non-commercial purposes. You have no right to sublicense the license rights granted in this section.
7.2 CLARIUS CONTENT LICENSE RESTRICTIONS.
You will not use, copy, adapt, modify, prepare derivative works based upon, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the Clarius Content, except as expressly permitted in these Terms or expressly permitted by applicable copyright laws. Clarius reserves and retains all patent, copyright, trade secrets, trademark, industrial design and other proprietary and intellectual property rights (“Intellectual Property Rights”) related to the Product and Services. No title or ownership of any of Clarius’ Intellectual Property Rights is transferred to you. No licenses or rights are granted to you by implication or otherwise under any Intellectual Property Rights owned or controlled by Clarius or its licensors, except for the licenses and rights expressly granted in these Terms or in our Product Acquisition Terms with you.
7.3 APP LICENSE.
Subject to your compliance with these Terms, Clarius grants you a limited non-exclusive, non-transferable license to download and install a copy of the App on your mobile devices and/or computer that you own or control and to run such copies of the App solely for your own personal and professional use. The non-transferable license is also limited by any terms of service provisions required by the vendor from whom you obtained the Clarius App (e.g., Apple iTunes, Google Play, etc.) (hereinafter, “App Vendor”).
This license does not include any right to obtain future upgrades, updates, supplements, or any support or technical assistance relating to the Product or Services, unless Clarius has specifically and expressly indicated that obtaining them is an integral part of the Product or Services. If upgrades, updates or supplements to the Product or Services are obtained, the use thereof will be governed by these Terms or such other terms and conditions and may be subject to additional payments.
7.4 PERMITTED USERS
You may permit your employees, agents, independent contractors and healthcare providers with privileges at your facilities to exercise the rights granted to you herein; provided, however, that you shall be responsible for any acts of such third parties that are inconsistent with this Agreement. Notwithstanding the foregoing, independent contractors that supply products comparable to the Product or Services shall be provided access to the Product or Services only with Clarius’ prior written consent and subject to any conditions Clarius deems appropriate to protects is confidential and proprietary information.
8. PATIENT DATA AND LEGAL COMPLIANCE
8.1 LEGAL OBLIGATIONS.
Privacy Laws, as well as ethical and licensure requirements of your profession and health regulatory college and licensing requirements may impose obligations with respect to protection of privacy and patient confidentiality that may limit the ability of physicians, healthcare providers, and persons acting on their behalf, to make use of certain confidential patient information (“Patient Information”) and/or to transmit Patient Information to third parties without express consent. When you use the Product and our App, you can enter Patient Information for upload and storage in the Cloud Services. Clarius’ use and disclosure of Patient Information is governed by our Datenschutzerklärung and terms of a Business Associate Agreement (if applicable).
8.2 COMPLIANCE REPRESENTATIONS AND WARRANTIES.
8.3 CLARIUS DISCLAIMER ON PATIENT INFORMATION.
Other than specified in a Business Associate Agreement (if applicable), we expressly do not assume any responsibility for your use or misuse of patient information or other information, whether intentional or inadvertent, that is transmitted, monitored, stored or received while using the Site, Services, App or Collective Content. We reserve the right to amend or delete any Collective Content (along with the right to revoke any membership or restrict access to the Services) that we determine in our sole discretion violates the above. We further do not assume any responsibility to make any determinations regarding your subsequent reporting or notification obligations arising from any use or misuse of Patient Information or other information; these determinations and your actions in response to such determinations remain your sole responsibility.
Your representations, warranties, and obligations in this section survive termination of these Terms.
9. GENERAL PROHIBITIONS
You agree not to do any of the following:
- Post, upload, publish, submit, or transmit or otherwise make available using the Services any Content that you do not have a right to make available under any law or under contractual or fiduciary relationships;
- Take, post, upload, publish, transmit, or otherwise make use of any screen shots, screen captures, reproductions, drawings, photos, videos, downloads, or data of any Collective Content;
- Post, upload, publish, submit or transmit using the Services any Content that: (i) infringes, misappropriates or violates a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) is fraudulent, false, misleading, or deceptive; (iv) is defamatory, obscene, pornographic, vulgar, or offensive; (v) promotes discrimination, bigotry, racism, hatred, harassment, or harm against any individual or group; (vi) is violent or threatening or promotes violence or actions that are threatening to any person or entity; or (vii) promotes illegal or harmful activities or substances;
- Use, display, mirror or frame the Services, or any individual element within the Services, the Clarius name or Clarius’ names, any Clarius trademark, logo, slogan or other proprietary information, or the layout and design of any page or form contained on a page, without Clarius’ express written consent;
- Access, tamper with, or use non-public areas of the Services, Clarius’ computer systems, or the technical delivery systems of Clarius’ providers;
- Attempt to probe, scan, or test the vulnerability of the Services or any Clarius system or network or breach any security or authentication measures;
- Avoid, bypass, remove, deactivate, impair, descramble, or otherwise circumvent any technological measure implemented by Clarius or any of Clarius’ providers or any other third party (including another user) to protect any of the Services;
- Attempt to access or search the Site, App, or Cloud Services, or download Collective Content therefrom, through the use of any engine, software, tool, agent, device, or mechanism (including scripts, bots, spiders, scrapers, crawlers, data mining tools or the like) other than the software and/or search agents provided by Clarius or other generally available third party web browsers;
- Send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters, or other form of solicitation, from any of the Services;
- Use any meta tags or other hidden text or metadata utilizing a Clarius trademark, logo, slogan, Uniform Resource Locator (URL), or product name without Clarius’ express written consent;
- Use the Services for any commercial purpose or the benefit of any third party or in any manner not permitted by these Terms;
- Forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Services to send altered, deceptive, or false source-identifying information;
- Attempt to decipher, decompile, disassemble, or reverse engineer the Product, or any of the software included in or used to provide the Services – for purposes of clarity, this includes determining composition or components, and analyzing the methods of communication, signal processing and inputs/ outputs from, to, between, or among the Product, a mobile device, the App, Site, Cloud Services, or any related software;
- Interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the Services;
- Collect or store any personally identifiable information from the Services from other users of the Services without their express permission;
- Impersonate or misrepresent your affiliation with any person or entity;
- Violate any applicable law or regulation, or any other rules of professional conduct; or
- Encourage or enable any other individual to do any of the foregoing.
The Services may contain links to third-party websites or resources, which do not form part of the Services and which Clarius has no control over. You acknowledge and agree that Clarius is not responsible and assumes no liability for: (i) the availability or accuracy of such websites or resources; or (ii) the Content, products, or services on or available from such websites or resources for which such third party is solely responsible. Links to such websites or resources do not imply any endorsement or representation of any kind by Clarius of such websites or resources or the content, products, services, business practices, content (including without limitation the appropriateness of content on such websites or resources, or the quality or suitability of any products or services offered on such websites or resources) available from such websites or resources. You acknowledge sole responsibility for and assume all risk arising from your use of any such websites or resources or the Content, products, or services on or available from such websites or resources, and you hereby irrevocably waive any claim against Clarius with respect to such websites or resources.
11. TERMINATION AND ACCOUNT CANCELLATION
If you are a Registered User and breach any of these Terms, Clarius will have the right to suspend or disable your Account or terminate these Terms, at its sole discretion and without prior notice to you. Clarius reserves the right to revoke your access to and use of the Services, at any time, with or without cause. You may cancel your Account at any time by contacting us online.
12. GENERAL DISCLAIMERS
UNLESS OTHERWISE STATED IN OUR PRODUCT ACQUISITION TERMS WITH YOU OR IN A BUSINESS ASSOCIATE AGREEMENT (IF APPLICABLE), YOUR RELIANCE UPON THE PRODUCT OR SERVICES, OR CONTENT OBTAINED OR USED BY YOU THROUGH THE SITE, SERVICES, OR APP IS SOLELY AT YOUR OWN RISK. THE PRODUCT AND SERVICES, INCLUDING ANY COLLECTIVE CONTENT, PRODUCT DESCRIPTIONS, AVAILABILITY AND PRICES SHOWN ON THE SITE, ARE PROVIDED “AS IS”, WITHOUT ANY REPRESENTATION OR WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING, CLARIUS EXPLICITLY DISCLAIMS ANY WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF THE COURSE OF DEALING OR USAGE OF TRADE. CLARIUS MAKES NO REPRESENTATION OR WARRANTY THAT THE SERVICES WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. YOU SHOULD INDEPENDENTLY EVALUATE THE ACCURACY OF THE INFORMATION AND THE USEFULNESS FOR YOUR PARTIULCAR NEEDS OF ANY OF THE PRODUCT OR SERVICES.
YOU EXPRESSLY ACKNOWLEDGE THAT (I) THERE ARE NO WARRANTIES OR REPRESENTATIONS MADE REGARDING THE CLARIUS CONTENT INCLUDING WITHOUT LIMITATION HOW CURRENT IT IS, ITS ACCURACY, ITS RELIABILITY, ITS COMPLETENESS, ITS AVAILABILITY, ITS SECURITY, THAT ERRORS OR DEFECTS WILL BE CORRECTED OR THAT THE SERVICES, ANY HYPERLINKED WEBSITE, OR THE SERVERS UPON WHICH THEY RESIDE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
UNLESS OTHERWISE STATED IN OUR PRODUCT ACQUISITION TERMS WITH YOU OR IN A BUSINESS ASSOCIATE AGREEMENT (IF APPLICABLE), CLARIUS MAKES NO REPRESENTATION OR WARRANTY REGARDING THE QUALITY OF ANY PRODUCTS, SERVICES, OR COLLECTIVE CONTENT PURCHASED OR OBTAINED THROUGH THE SERVICES OR THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS, OR RELIABILITY OF ANY CONTENT OBTAINED THROUGH THE SERVICES.
CLARIUS CANNOT GUARANTEE THE AVAILABILITY OF ANY PRODUCTS OR ITEMS DESCRIBED ON THE SITE AND SOME MAY NOT BE AVAILABLE AT ALL DUE TO SPACE LIMITATIONS, UNAVAILABILITY OF SUPPLY OR FOR OTHER REASONS. PRODUCT INFORMATION (INCLUDING WITHOUT LIMITATION PRICING, SPECIFICATIONS AND WARRANTY INFORMATION) IS SUBJECT TO CHANGE AT ANY TIME, AND MAY NOT BE CURRENT OR ACCURATE, AND IS SUBJECT TO THE DISCLAIMERS AND LIMITATIONS OF LIABILITY SET OUT ABOVE.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM CLARIUS OR THROUGH THE SERVICES WILL CREATE ANY REPRESENTATION OR WARRANTY NOT EXPRESSLY MADE HEREIN.
You agree to defend, indemnify, and hold Clarius, its officers, directors, employees, agents, licensors, and suppliers, harmless from and against any claims, liabilities, damages, losses, and expenses, proceedings or demands including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with your access to or use of the Services, or your violation of these Terms.
14. LIMITATION OF LIABILITY
YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, AND UNLESS OTHERWISE STATED IN OUR PRODUCT ACQUISITION TERMS WITH YOU OR IN A BUSINESS ASSOCIATE AGREEMENT (IF APPLICABLE), THE ENTIRE RISK ARISING OUT OF YOUR ACCESS TO AND USE OF THE PRODUCT AND SERVICES REMAINS WITH YOU. NEITHER CLARIUS, ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, OTHER REPRESENTATIVES, NOR ANY OTHER PERSON OR ENTITY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE PRODUCT OR SERVICES WILL BE LIABLE FOR ANY COMPENSATORY, DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, CLAIMS, EXPENSES OR OTHER COSTS, INCLUDING LOST PROFITS, REVENUE, TIME, OPPORTUNITY, CONTENT, DATA, DAMAGE TO PROPERTY, OR LOSS OF GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE PRODUCTS OR SERVICES, OR FOR ANY DAMAGES, CLAIMS, EXPENSES OR OTHER COSTS FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE PRODUCT OR SERVICES, OR FROM ANY COMMUNICATIONS, INTERACTIONS, OR MEETINGS WITH OTHER USERS OF THE SERVICES OR OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SERVICES WHETHER BASED ON WARRANTY, CONTRACT, DELICT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, STATUTE, EQUITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT SUCH DAMAGES ARE FORSEEABLE, AND WHETHER OR NOT CLARIUS HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED IN MEETING ITS ESSENTIAL PURPOSE.
15. PROPRIETARY RIGHTS NOTICES
The Clarius and Clarius Mobile Health name and logo are trademarks of Clarius. Other registered and unregistered trade-marks, trade-names, related words, domain names, logos, and slogans which are the proprietary property of Clarius may appear from time to time on the Services. All other trade-marks, product names and company names or logos cited herein which are not the property of Clarius are the property of their respective owners. You agree that Clarius trademarks may not be used without express permission from Clarius. Clarius trademarks may not be used in connection with any products or services which do not belong to Clarius unless authorized by Clarius with advance written notice and never in any manner that is likely to cause confusion among customers or potential customers of Clarius or in any manner that disparages or discredits Clarius.
All Clarius Content contained on the Services are the copyright and property of Clarius (unless otherwise expressly stated). No Clarius Content from the Services or any website owned, operated, licensed, or controlled by Clarius may be modified, copied, reproduced, republished, framed, uploaded, posted, transmitted, or distributed in any way, except that you may download one copy of the materials for your personal use only, provided that you keep intact all copyright and other proprietary notices. You shall keep intact all copyright and other proprietary notices. Any other use of the Clarius Content is strictly prohibited. If you wish to link to this Site, you must contact us to obtain our advance written approval. Modification or use of the Clarius Content for any other purpose than as described above is a violation of Clarius copyright and other proprietary rights and is also strictly prohibited. All rights are reserved.
16. APPLICABLE LAW; JURISDICTION
Unless prohibited by applicable law, you agree that all matters relating to access to, or use of, the Product or Services, or any hyperlinked website (including interpretation of these Terms) shall be governed by the laws of the Province of British Columbia and the laws of Canada applicable therein. Subject to the “Dispute Resolution” Section below requiring mandatory arbitration of disputes, the courts of the Province of British Columbia shall have exclusive jurisdiction to entertain any action arising under these Terms or any other agreement, document, or instrument contemplated herein which cannot be resolved by arbitration or where the enforcement of an arbitral award requires it, and you hereby accept and irrevocably submit to the jurisdiction of the courts of British Columbia and acknowledge their competence and agree to be bound by any judgment thereof. Notwithstanding the governance of these Terms, you may have additional obligations and responsibilities to adhere to in the jurisdiction in which you practice medicine or another health profession.
17. ENTIRE AGREEMENT
These Terms together with all documentation and policies referenced herein constitute the entire and exclusive understanding and agreement between Clarius and you regarding the Product and Services, and these Terms supersede and replace any and all prior oral or written understandings or agreements between Clarius and you regarding the Product and Services. You may also be subject to other terms and conditions when you access other sites or other portions of the Services (if specified) or if you access or purchase third party content or software.
You may not assign or transfer these Terms, by operation of law or otherwise, without Clarius’ prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null and of no effect. Clarius may assign or transfer these Terms, at its sole discretion, without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.
Any notices or other communications permitted or required hereunder, including those regarding modifications to these Terms, will be in a written form and given: (i) by Clarius via email (in each case to the address that you provide); or (ii) by posting to the Site; or (iii) via the App. For notices made by email, the date of receipt will be deemed the date on which such notice is transmitted.
20. DISPUTE RESOLUTION
All disputes between you and Clarius arising out of or concerning these Terms, including but without limitation any dispute as to the interpretation of these Terms, any alleged breach of these Terms, the right of a party to exercise any right or remedy herein provided which have not been settled by informal negotiations or mediation, shall be resolved by binding arbitration.
In the event that any parts of these Terms are held to be indefinite, invalid, illegal or otherwise voidable or unenforceable, the other parts of these Terms will not fail on account thereof, and the balance of these Terms will continue in full force and effect. The failure or delay of Clarius in exercising any right or remedy under the terms and conditions or elsewhere shall not constitute a waiver of such right or remedy. The section titles in these terms and conditions are for convenience only and have no legal or contractual effect.
You acknowledge that the Terms apply to you and Clarius only, and not with any App Vendor. The App Vendor and any App Vendor subsidiaries are third party beneficiaries of the Terms. Upon your acceptance of the Terms, the App Vendor will have the right (and will be deemed to have accepted the right) to enforce the Terms against you as a third party beneficiary.
You may not use or otherwise export or re-export the Product or Service except as authorized by both United States law and the laws of the jurisdiction in which you obtained the Product. You represent that you are purchasing the Product for your own use consistent with the Terms and that you do not intend to re-sell the Product to any other party or to export the Product outside the country to which Clarius delivers the Product.
23. CONTACTING CLARIUS
If you have any questions about these Terms, please contact Clarius, 350-3605 Gilmore Way, Burnaby, BC V5G 4X5, or online.
Last updated April 2019