ENDOTRONIX, INC.
TERMS AND CONDITIONS OF USE

Last updated: June 26, 2019

These terms and conditions of use (collectively, the “Terms”) constitute a legal agreement between you and Endotronix, Inc., (“Company,” “us”, “our” or “we”) and include our third party supplier Eko as an intended beneficiary. By accessing or using the Company’s website www.endotronix-proactive.waltzwebsite.com (the “Site”) or receiving services supplied by us, and by downloading, installing, accessing or using any application supplied by us, including third party code from device suppliers such as Eko (the “App”), you hereby expressly acknowledge and agree to be bound by these Terms, and any future amendments and additions to these Terms as published from time to time on the Site. The Site and App will be collectively referred to herein as the “Service.”

We reserve the right to modify these Terms at any time, effective upon posting of an updated version of these Terms on the Site or App. You are responsible for regularly reviewing these Terms. Continued use of the Service after any such changes shall constitute your consent to such changes.

IMPORTANT: PLEASE READ: WE DO NOT PROVIDE MEDICAL OR OTHER HEALTH RELATED SERVICES. WE ONLY PROVIDE A TOOL TO SUPPORT THE PROVISION OF MEDICAL OR HEALTH RELATED SERVICES TO PATIENTS FROM THEIR PROVIDERS, AND AS SUCH, WE SHALL HAVE NO RESPONSIBILITY OR LIABILITY FOR ANY PROVISION OR LACK OF PROVISION OF ANY MEDICAL OR HEALTH RELATED SERVICES.

 

1. The Service

1.1 Visitors; Subscribers. You do not have to have an Account to view benefits available on the Site but only authorized users (those with an “Account”) can access and use all of the features and benefits of the Service. The Service allows users to monitor and manage heart failure symptoms and allows health care provider users to communicate with them. By using the Service, you agree to provide (i) true, accurate, current and complete information as prompted by the App, and (ii) maintain and properly update your information to keep it true, accurate, current and complete. If you provide information that is untrue, inaccurate, not current or incomplete, you may not receive the full benefit of the Service or any benefit, for that matter. If we have reasonable grounds to suspect that you have, or that you will violate these Terms, as determined in our sole discretion, we have the right to suspend or terminate your Account and refuse any and all current or future use of the Service and the App (or any portion thereof).

1.2 How To Use the Service and App.
a) Third Party Providers. The Service gives patients the ability to communicate with health care providers through the Service platform (collectively, “Providers”) and allows Providers to communicatewithpatients.        If you are a patient, any health care that you receive from a Provider shall be between you and the Provider and we shall have no responsibility for such health care. In addition, we shall not be responsible for any inaccuracies, misrepresentations, mis-diagnoses, treatment or other acts or omissions of the Providers.

b) Changing Providers. If you are a patient, your use of the Service is tied to the Provider who subscribed or enrolled you in the Service. You may change Providers or stop using the Service at any time. To change Providers you should notify the Provider who subscribed or enrolled you in the Service and must return the tablet to that Provider. You will lose access to the App. You may begin using the Service again under a new Provider only after completing the required authorizations under the new Provider.

c) License. The Service is intended for your personal, noncommercial use in accordance with these Terms. You agree that you will not (i) copy, display or distribute any part of the Site, App or Service, in any medium, without our prior written consent, or (ii) use the Site, App or Service in whole or part, or any benefit thereof, for any commercial purpose, including, but not limited to, selling, bartering, disposing or otherwise transferring any benefit obtained through the Service. You further agree that you will not use any automated devices, such as spiders, robots or data mining techniques to catalog, download, store or otherwise reproduce, store or distribute content available on the Site, or to manipulate the Site or the App, or otherwise exceed the limited access granted to you by us. You will take no action to interfere with, interrupt, destroy or limit the functionality of the Service or any computer software or hardware or telecommunications equipment. You will not distribute or transmit any content or software or other computer files that contain a computer virus or other harmful component.

 

2. License Grant, Restrictions and Copyright Policy 

2.1 Licenses Granted by Us to Our Content and User Content

Subject to your compliance with these Terms, we grant you a limited, non-exclusive, non-transferable license: (i) to view, download and print any text, graphics, images, audio, video, information or other materials (collectively, “Content”) that we make available through the Service, including any Content licensed from a third party, solely for your personal and non-commercial purposes. You have no right to sublicense the license rights granted in this section.

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 Service or App, except as expressly permitted in these Terms. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by us or our licensors, except for the licenses and rights expressly granted in these Terms.

2.2 Prohibitions. By downloading, accessing, or using the App, you shall not:
a) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Service or the App in any way;

b) modify or make derivative works based upon the Service or the App;

c) create Internet “links” to the Service or “frame” or “mirror” any App on any other server or wireless or Internet-based device;

d) reverse engineer or access the App in order to (i) build a competitive product or service, (ii) build a product using similar ideas, features, functions or graphics of the Service or App, or (iii) copy any ideas, features, functions or graphics of the Service or App; or

e) launch an automated program or script, including, but not limited to, web spiders, web crawlers, web robots, web ants, web indexers, bots, viruses or worms, or any program which may make multiple server requests per second, or unduly burdens or hinders the operation and/or performance of the Service or App;

f) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws:

g) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violative of third party privacy rights;

h) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs;

i) interfere with or disrupt the integrity or performance of the App or Service or the data contained therein; or

j) attempt to gain unauthorized access to the App or Service or its related systems or networks.

We will have the right to investigate and prosecute violations of any of the above to the fullest extent of the law. We may involve and cooperate with law enforcement authorities in prosecuting users who violate these Terms. You acknowledge that we have no obligation to monitor your access to or use of the Service, or to review or edit any Content, but have the right to do so for the purpose of operating the Service, to ensure your compliance with these Terms, or to comply with applicable law or the order or requirement of a court, administrative agency or other governmental body. We reserve the right, at any time and without prior notice, to remove or disable access to any Content that we, at our sole discretion, consider to be in violation of these Terms or otherwise harmful to the Service.

2.3 Copyright Policy
We respect copyright law and expect our users to do the same. It is our policy to terminate in appropriate circumstances Users or other Account holders who repeatedly infringe or are believed to be repeatedly infringing the rights of copyright holders.

 

3. Representations and Warranties

By using the Service, you expressly represent and warrant that you are legally entitled to agree to these Terms. If you reside in a jurisdiction that restricts the use of the Service because of age, or restricts the ability to enter into agreements such as this one due to age, you must abide by such age limits and you must not use the Service. Without limiting the foregoing, the Service is not available to children (persons under the age of 18). By using the Service, you represent and warrant that you are at least 18 years old. By using the Service, you represent and warrant that you have the right, authority and capacity to enter into these Terms and to abide by the terms and conditions of these Terms. If you are a patient user, your participation in using the Service is for your sole, personal use. If you are a clinical user, your participation in using the Service is for the sole purpose of fulfilling your job duties and is further governed by the terms of the Subscription and Service Agreement between the Company and your employer. You may not authorize others to use the Service under your Account and you may not assign or otherwise transfer your Account to any other person or entity. When using the Service you agree to comply with all applicable laws from your home nation, the country, state and city in which you are present while using the Service. You may only access and use the Service using authorized means.

3.1 By using the Service, you agree that:

• You will only use the Service for lawful purposes.
• You will not impair the proper operation of the Service.
• You will not try to harm us, or any other user or the Service in any other way.
• You will not copy or distribute the App or other content without our written permission.
• You will only use the Service for your own personal use and will not resell it to a third party.
• You will keep secure and confidential your Account password or any identification we provide you which allows access to the Service.
• You will provide us with proof of identity as we may reasonably request from time to time.
• You may receive communications from us or a provider of the Service via SMS messaging and standard messaging charges will apply.

 

4. Intellectual Property Ownership

As between you and us, we (and our licensors, where applicable) shall own all right, title and interest, including all related intellectual property rights, in and to the Service and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you or any other party relating to the Service. These Terms do not convey to you any rights of ownership in or related to the Service, or any intellectual property rights owned by us. Our name, logo, and names associated with the Service are our trademarks or those of our licensors, and no right or license is granted to use them except as otherwise specifically set forth in these Terms.

You are hereby notified that the Eko devices are subject to the following patent rights: Operates using the method of U.S. Patent No. 9,736,625 B1; Design covered under U.S. Patent D810944S1; and certain Patents Pending.

 

5. Indemnification

By using the Service, you shall defend, indemnify and hold us and our licensors, and each such party’s parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of, in connection with, or related to: (a) your violation or breach of these Terms or any applicable law or regulation, whether or not referenced herein; (b) your violation of any rights of any third party, or (c) your use or misuse of the Service.

 

6. Disclaimer of Warranties

WE MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICE OR ANY HEALTHCARE SERVICE YOU MAY PROVIDE AS A PROVIDER, OR RECEIVE AS A PATIENT FROM A PROVIDER. WE DO NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SERVICE OR APP WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, APP, SYSTEM OR DATA, (B) THE SERVICE OR PROVIDER WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE, (D) ERRORS OR DEFECTS IN THE SERVICE WILL BE CORRECTED, OR (F) THE SERVICE OR THE SERVER(S) THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SERVICE IS PROVIDED TO YOU STRICTLY ON AN “AS IS” BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY US AND ALSO SPECIFICALLY DISCLAIMED BY OUR DEVICE SUPPLIER EKO AND ITS LICENSORS. WE MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, SAFETY, TIMELINESS, QUALITY, SUITABILITY OR AVAILABILITY OF THE SERVICES. YOU ACKNOWLEDGE AND AGREE THAT THE ENTIRE RISK ARISING OUT OF YOUR USE OF THE SERVICE, AND ANY HEALTHCARE SERVICES RENDERED BY ANY PROVIDERS OR RECEIVED BY YOU REMAIN SOLELY WITH YOU, TO THE MAXIMUM EXTENT PERMITTED BY LAW.

 

7. Internet Delays

OUR SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. WE ARE NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.

 

8. Limitation of Liability

EXCEPT AS OTHERWISE PROVIDED HEREIN, IN NO EVENT SHALL WE AND/OR OUR LICENSORS, OR EKO AND ITS LICENSORS, BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING PERSONAL INJURY, LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE). WE AND/OR OUR LICENSORS SHALL NOT BE LIABLE FOR ANY LOSS, DAMAGE OR INJURY WHICH MAY BE INCURRED BY YOU, INCLUDING BY NOT LIMITED TO LOSS, DAMAGE OR INJURY ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE SERVICE, APP OR HEALTHCARE SERVICES, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICE OR APP, ANY RELIANCE PLACED BY YOU ON THE COMPLETENESS, ACCURACY OR EXISTENCE OF ANY PROVIDER’S HEALTHCARE SERVICE, OR AS A RESULT OF ANY RELATIONSHIP OR TRANSACTION BETWEEN YOU AND ANY PROVIDER, OR YOU AND ANY PATIENT IF YOU ARE A PROVIDER, EVEN IF WE AND/OR OUR LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  ALTHOUGH WE MAY PROVIDE ACCESS TO PROVIDERS, WE WILL NOT ASSESS THE SUITABILITY OR ABILITY OF SUCH PROVIDERS AND YOU EXPRESSLY WAIVE AND RELEASE US FROM ANY AND ALL ANY LIABILITY, CLAIMS OR DAMAGES ARISING FROM OR IN ANY WAY RELATED TO THE HEALTHCARE SERVICES RENDERED OR NOT RENDERED BY PROVIDERS. WE WILL NOT BE A PARTY TO DISPUTES, OR NEGOTIATIONS OF DISPUTES BETWEEN PATIENTS AND PROVIDERS. RESPONSIBILITY FOR THE DECISIONS YOU MAKE REGARDING HEALTHCARE SERVICES PROVIDED BY PROVIDERS RESTS SOLELY WITH YOU. THE LIMITATIONS IN THIS SECTION WILL APPLY TO THE EXTENT PERMITTED BY APPLICABLELAW.

 

9. Notices

We may give notice by means of a general notice on the Site, electronic mail to your email address on record in our account information, or by written communication sent by first class mail or pre-paid post to your address on record in our account information. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by email). You may give notice to us (such notice shall be deemed given when received by us) at any time by any of the following: letter sent by confirmed facsimile to us at the following fax number (whichever is appropriate): (877) 287-8954; letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail to us at the address provided below.

 

10. Assignment

These Terms and your Account may not be assigned by you without our prior written approval but may be assigned without your consent by us to (i) a parent or subsidiary, (ii) an acquirer of assets, or (iii) a successor by merger. Any purported assignment by you in violation of this section shall be void.

 

11. Export Control

You agree to comply fully with all U.S. and foreign export laws and regulations to ensure that neither the App nor any technical data related thereto nor any direct product thereof is exported or re-exported directly or indirectly in violation of, or used for any purposes prohibited by, such laws and regulations. By using the App, 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.

 

12. Dispute Resolution

THE PROVISIONS OF THIS SECTION 12 DO NOT APPLY TO YOU IF YOU ARE AN EU RESIDENT. If you are a resident of the EU, you shall be free to bring proceedings in your own country of residence.

12.1 Any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof or the use of the Service (collectively, “Disputes”) will be settled by binding arbitration, except that each party retains the right to bring an individual action in small claims court and the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights. You acknowledge and agree that you are waiving the right to a trial by jury or to participate asa plaintiff or class member in any purported class action or representative proceeding. Further, unless otherwise agreed in writing, the arbitrator may not consolidate more than one person’s claims and may not otherwise preside over any form of any class or representative proceeding. If this specific paragraph is held unenforceable, then the entirety of this “Dispute Resolution” section will be deemed void. Except as provided in the preceding sentence, this “Dispute Resolution” section will survive any termination of these Terms.

12.2 Arbitration Rules and Governing Law. The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “AAA Rules”) then in effect, except as modified by this “Dispute Resolution” section. The Federal Arbitration Act will govern the interpretation and enforcement of this Section.

12.3 Arbitration Location and Procedure. Unless otherwise agreed, the arbitration will be conducted in the county where you reside. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of documents you and we submit to the arbitrator, unless you request a hearing or the arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.

12.4 Arbitrator’s Decision. The arbitrator will render an award within the time frame specified in the AAA Rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator’s award damages must be consistent with the terms of the “Limitation of Liability” section above as to the types and the amounts of damages for which a party may be held liable.

12.5 Fees. Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules.

12.6 Changes. Notwithstanding the provisions of the modification-related provisions above, if we change this “Dispute Resolution” section after the date you first accepted these Terms (or accepted any subsequent changes to these Terms), you may reject any such change by sending us written notice within 30 days of the date such change became effective, as indicated in the “Last Updated Date” above. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and us in accordance with the provisions of this “Dispute Resolution” section as of the date you first accepted these Terms (or accepted any subsequent changes to these Terms).

 

13. General

No joint venture, partnership, employment, or agency relationship exists between you, us or any Provider as a result of these Terms or your use of the Service. If any provision of these Terms is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced to the fullest extent under law. Our failure to enforce any right or provision in these Terms shall not constitute a waiver of such right or provision.

 

Endotronix, Inc.
Attn: Legal
815 Ogden Ave.
Lisle, IL 60532