Terms of Service
Terms and Conditions
THE LEGAL AGREEMENTS SET OUT BELOW GOVERN YOUR USE OF THE Medeia Inc DEVICE AND SOFTARE APPLICATION (“SOFTWARE”).
VitalScan ® is not responsible for typographic errors.
IMPORTANT - READ CAREFULLY: By USING THE SOFTWARE (“SOFTWARE”), You agree to be and are hereby bound by the terms of this License Agreement (“Agreement”). If you do not agree to the terms of this Agreement, you must promptly destroy all copies of the Software and accompanying documentation (“Documentation”).
This software, including the algorithm, which includes a range of variation, is protected by copyright. All rights are reserved under United States Copyright LAW and WORLD INTELLECTUAL PROPERTY ORGANIZATION (WIPO) and all applicable national copyright laws and bilateral treaties. Excluding the generated reports and graphs, no part may be reproduced, transmitted or stored in any form without the permission, in writing, from the copyright owner. The software is for the use of the purchaser only for prescription only in medical clinics, healthcare practices and out-patient department of a hospital and the right to use the software is nontransferable.
By using this software the user/provider understands that he/she is responsible for his/her diagnosis and determination as to the course of treatment to be undertaken. Medeia Inc d/b/a VitalScan ® and Medeia Inc and its agents and independent distributors are held harmless by the user/provider for any of his/her acts or omission in the course of rendering care. User also understands that it is his/her responsibility to determine if the use of this software/testing method is within his/her scope of practice and within the jurisdiction in which the software and testing method are used.
You acknowledge that periodic system upgrades are required and you fully authorize Medeia Inc to perform minor System Upgrades. You may be required to have certain hardware and SOFTWARE, which are your sole responsibility to perform such system upgrades.
TERMS AND CONDITIONS
THIS LEGAL AGREEMENT BETWEEN YOU AND Medeia Inc. d/b/a Medeia Inc. GOVERNS YOUR USE OF THE VitalScan® DEVICE AND SOFTWARE APPLICATION (THE “ SOFTWARE”).
Medeia Incis the provider of the SOFTWARE for end user use only under the terms and conditions set forth in this Agreement.
REQUIREMENTS FOR USE OF THE SOFTWARE
This SOFTWARE is available for prescription only in medical clinics, healthcare practices and out-patient departments of hospitals.
The SOFTWARE is available to you only in its territories, and possessions. You agree not to use or attempt to use the SOFTWARE from outside these locations. VitalScan® may use technologies to verify your compliance.
Use of the SOFTWARE requires compatible devices, Internet access, and certain SOFTWARE (fees may apply); may require periodic updates; and may be affected by the performance of these factors. High-speed Internet access is strongly recommended for regular use and is required for video. The latest version of required SOFTWARE is recommended to access the SOFTWARE and may be required to download updates and upgrades of the SOFTWARE. You agree that meeting these requirements, which may change from time to time, is your responsibility. The SOFTWARE is not part of any other product or offering, and no purchase or obtaining of any other product shall be construed to represent or guarantee you access to the SOFTWARE.
VitalScan ® reserves the right to change content options (including eligibility for particular features) without notice.
USE OF PURCHASED SOFTWARE CONTENT
You agree that the SOFTWARE and certain Products include security technology that limits your use of Products and that, whether or not Products are limited by security technology, you shall use Products in compliance with the applicable usage rules established by VitalScan ® and its licensors (“Usage Rules” ), and that any other use of the Products may constitute a copyright infringement. Any security technology is an inseparable part of the Products. VitalScan ® reserves the right to modify the Usage Rules at any time. You agree not to violate, circumvent, reverse-engineer, decompile, disassemble, or otherwise tamper with any of the security technology related to such Usage Rules for any reason—or to attempt or assist another person to do so. Usage Rules may be controlled and monitored by VitalScan ® for compliance purposes, and VitalScan ® reserves the right to enforce the Usage Rules without notice to you. You agree not to access the SOFTWARE by any means other than through SOFTWARE that is provided by VitalScan ® for accessing the SOFTWARE. You agree not to modify the SOFTWARE in any manner or form, or to use modified versions of the SOFTWARE, for any purposes including obtaining unauthorized access to the SOFTWARE. Violations of system or network security may result in civil or criminal liability.
(i) You shall be authorized to use Products only for prescription only in medical clinics, healthcare practices and out-patient department of a hospital.
You acknowledge that, because some aspects of the SOFTWARE, VitalScan ® Products, and administration of the Usage Rules entails the ongoing involvement of VitalScan ®, if VitalScan ® changes any part of or discontinues the SOFTWARE, which VitalScan ® may do at its election, you may not be able to use Products to the same extent as prior to such change or discontinuation, and that VitalScan ® shall have no liability to you in such case.
You agree that the SOFTWARE, including but not limited to VitalScan ® Products, graphics, user interface, audio clips, video clips, editorial content, and the scripts and SOFTWARE used to implement the SOFTWARE, contains proprietary information and material that is owned by VitalScan ® and/or its licensors, and is protected by applicable intellectual property and other laws, including but not limited to copyright. You agree that you will not use such proprietary information or materials in any way whatsoever except for use of the SOFTWARE in compliance with this Agreement. No portion of the SOFTWARE may be reproduced in any form or by any means, except as expressly permitted in these terms. You agree not to modify, rent, lease, loan, sell, distribute, or create derivative works based on the SOFTWARE in any manner, and you shall not exploit the SOFTWARE in any unauthorized way whatsoever, including, but not limited to, by trespass or burdening network capacity.
Notwithstanding any other provision of this Agreement, VitalScan ® and its licensors reserve the right to change, suspend, remove, or disable access to any Products, content, or other materials comprising a part of the SOFTWARE at any time without notice. In no event will VitalScan® be liable for making these changes. VitalScan ® may also impose limits on the use of or access to certain features or portions of the SOFTWARE, in any case and without notice or liability.
All copyrights in and to the SOFTWARE (including the compilation of content, postings, links to other Internet resources, and descriptions of those resources) and related SOFTWARE are owned by VitalScan ® and/or its licensors, who reserve all their rights in law and equity. THE USE OF THE SOFTWARE OR ANY PART OF THE SOFTWARE, EXCEPT FOR USE OF THE SOFTWARE AS PERMITTED IN THIS AGREEMENT, IS STRICTLY PROHIBITED AND INFRINGES ON THE INTELLECTUAL PROPERTY RIGHTS OF OTHERS AND MAY SUBJECT YOU TO CIVIL AND CRIMINAL PENALTIES, INCLUDING POSSIBLE MONETARY DAMAGES, FOR COPYRIGHT INFRINGEMENT.
VitalScan ® , the VitalScan ® logo, and other VitalScan ® trademarks, SOFTWARE marks, graphics, and logos used in connection with the SOFTWARE are trademarks or registered trademarks of Medeia Inc in the U.S. and/or other countries. Other trademarks, SOFTWARE marks, graphics, and logos used in connection with the SOFTWARE may be the trademarks of their respective owners. You are granted no right or license with respect to any of the aforesaid trademarks and any use of such trademarks.
If you fail, or VitalScan ® suspects that you have failed, to comply with any of the provisions of this Agreement, VitalScan ® , at its sole discretion, without notice to you may: (i) terminate this Agreement, and you will remain liable for all amounts due up to and including the date of termination; and/or (ii) terminate the license to the SOFTWARE; and/or (iii) preclude access to the SOFTWARE (or any part thereof ).
VitalScan ® reserves the right to modify, suspend, or discontinue the SOFTWARE (or any part or content thereof ) at any time with or without notice to you, and VitalScan ® will not be liable to you or to any third party should it exercise such rights.
DISCLAIMER OF WARRANTIES; LIABILITY LIMITATION
VitalScan ® DOES NOT GUARANTEE, REPRESENT, OR WARRANT THAT YOUR USE OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, AND YOU AGREE THAT FROM TIME TO TIME VitalScan ® MAY REMOVE THE SOFTWARE FOR INDEFINITE PERIODS OF TIME, OR CANCEL THE SOFTWARE AT ANY TIME, WITHOUT NOTICE TO YOU.
YOU EXPRESSLY AGREE THAT YOUR USE OF, OR INABILITY TO USE, THE SOFTWARE IS AT YOUR SOLE RISK. THE SOFTWARE AND ALL PRODUCTS AND SOFTWARE DELIVERED TO YOU THROUGH THE Medeia Inc SOFTWARE ARE (EXCEPT AS EXPRESSLY STATED BY Medeia Inc PROVIDED “AS IS” AND “AS AVAILABLE” FOR YOUR USE, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NONINFRINGEMENT. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, THE ABOVE EXCLUSION OF IMPLIED WARRANTIES MAY NOT APPLY TO YOU.
IN NO CASE SHALL VitalScan ® , ITS DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, CONTRACTORS, OR LICENSORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING FROM YOUR USE OF ANY OF THE SOFTWARE OR FOR ANY OTHER CLAIM RELATED IN ANY WAY TO YOUR USE OF THE
SOFTWARE, INCLUDING, BUT NOT LIMITED TO, ANY ERRORS OR OMISSIONS IN ANY CONTENT, OR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT (OR PRODUCT) POSTED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE SOFTWARE, EVEN IF ADVISED OF THEIR POSSIBILITY. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS, VitalScan ® ‘S LIABILITY SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW.
VitalScan ® SHALL USE REASONABLE EFFORTS TO PROTECT INFORMATION SUBMITTED BY YOU IN CONNECTION WITH THE SOFTWARE, BUT YOU AGREE THAT YOUR SUBMISSION OF SUCH INFORMATION IS AT YOUR SOLE RISK, AND VitalScan ® HEREBY DISCLAIMS ANY AND ALL LIABILITY TO YOU FOR ANY LOSS OR LIABILITY RELATING TO SUCH INFORMATION IN ANY WAY.
VitalScan ® DOES NOT REPRESENT OR GUARANTEE THAT THE SOFTWARE WILL BE FREE FROM LOSS, CORRUPTION, ATTACK, VIRUSES, INTERFERENCE, HACKING, OR OTHER SECURITY INTRUSION, AND VitalScan ® DISCLAIMS ANY LIABILITY RELATING THERETO. VitalScan® CAN BE DOWNLOADED ONLY ONCE; AFTER BEING DOWNLOADED, VitalScan® CANNOT BE REPLACED IF LOST FOR ANY REASON. YOU SHALL BE RESPONSIBLE FOR SECURING YOUR OWN SYSTEM.
WAIVER AND INDEMNITY
BY USING THE SOFTWARE, YOU AGREE, TO THE EXTENT PERMITTED BY LAW, TO INDEMNIFY AND HOLD VitalScan ® , ITS DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, CONTRACTORS, AND LICENSORS HARMLESS WITH RESPECT TO ANY CLAIMS ARISING OUT OF YOUR BREACH OF THIS AGREEMENT, YOUR USE OF THE SOFTWARE, OR ANY ACTION TAKEN BY VitalScan ® AS PART OF ITS INVESTIGATION OF A SUSPECTED VIOLATION OF THIS AGREEMENT OR AS A RESULT OF ITS FINDING OR DECISION THAT A VIOLATION OF THIS AGREEMENT HAS OCCURRED. THIS MEANS THAT YOU CANNOT SUE OR RECOVER ANY DAMAGES FROM VitalScan ® , ITS DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, CONTRACTORS, AND LICENSORS AS A RESULT OF ITS DECISION TO REMOVE OR REFUSE TO PROCESS ANY INFORMATION OR CONTENT, TO WARN YOU, TO SUSPEND OR TERMINATE YOUR ACCESS TO THE SOFTWARE, OR TO TAKE ANY OTHER ACTION DURING THE INVESTIGATION OF A SUSPECTED VIOLATION OR AS A RESULT OF VitalScan® ‘S CONCLUSION THAT A VIOLATION OF THIS AGREEMENT HAS OCCURRED. THIS WAIVER AND INDEMNITY PROVISION APPLIES TO ALL VIOLATIONS DESCRIBED IN OR CONTEMPLATED BY THIS AGREEMENT.
VitalScan ® reserves the right at any time to modify this Agreement and to impose new or additional terms or conditions on your use of the SOFTWARE. Such modifications and additional terms and conditions will be effective immediately and incorporated into this Agreement. Your continued use of the SOFTWARE will be deemed acceptance thereof.
This Agreement constitutes the entire agreement between you and VitalScan ® and governs your use of the SOFTWARE, superseding any prior agreements between you and VitalScan ® . You also may be subject to additional terms and conditions that may apply when you use affiliate SOFTWARE, third-party content, or third-party SOFTWARE. If any part of this Agreement is held invalid or unenforceable, that portion shall be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of the parties, and the remaining portions shall remain in full force and effect. VitalScan ® ‘s failure to enforce any right or provisions in this Agreement will not constitute a waiver of such or any other provision. VitalScan ® will not be responsible for failures to fulfill any obligations due to causes beyond its control.\
The SOFTWARE is operated by Medeia Inc from its offices in the United States and Media, Inc. You agree to comply with all local, state, federal, and national laws, statutes, ordinances, and regulations that apply to your use of the SOFTWARE. All transactions on the SOFTWARE are governed by Texas law, without giving effect to its conflict of law provisions. Your use of the SOFTWARE may also be subject to other laws. You expressly agree that exclusive jurisdiction for any claim or dispute with VitalScan ® or relating in any way to your use of the _ SOFTWARE resides in the courts in the State of Texas. Risk of loss and title for all electronically delivered transactions pass to the purchaser in TEXAS upon electronic transmission to the recipient. No VitalScan ® employee or agent has the authority to vary this Agreement.
VitalScan ® may notify you with respect to the SOFTWARE by sending an email message to your email address or a letter via postal mail to your mailing address, or by a posting on the SOFTWARE. Notices shall become effective immediately.
VitalScan ® reserves the right to take steps VitalScan ® believes are reasonably necessary or appropriate to enforce and/or verify compliance with any part of this Agreement. You agree that VitalScan ® has the right, without liability to you, to disclose any Registration Data and/or information to law enforcement authorities, government officials, and/or a third party, as VitalScan ® believes is reasonably necessary or appropriate to enforce and/or verify compliance with any part of this Agreement (including but not limited to VitalScan ® ‘s right to cooperate with any legal process relating to your use of the SOFTWARE and/or Products, and/or a third-party claim that your use of the SOFTWARE and/or Products is unlawful and/or infringes such third party’s rights).
STATUTORY EXCEPTIONS FOR PUBLIC INSTITUTIONS
If you are a qualified public educational or government institution and any part of this Agreement, such as, by way of example, all or part of the indemnification section, is invalid or unenforceable against you because of applicable state or federal law, then that portion shall be deemed invalid or unenforceable, as the case may be, and instead construed in a manner most consistent with applicable governing law. If Texas law is precluded, this Agreement shall be construed under the laws of the state in which your public educational or government institution is located.
PRODUCT MAINTENANCE AND SUPPORT
VitalScan ® will be responsible for providing any maintenance and support SOFTWARE with respect to the VitalScan ® Products only, as specified in the Licensed Application End User License Agreement or the separate end user license agreement, as the case may be, or as required under applicable law. The Application Provider of any Third-Party Product will be solely responsible for providing maintenance and support SOFTWARE with respect to that Product, as specified in the Licensed Application
End User License Agreement or the Application Provider end user license agreement, as the case may be, or as required under applicable law.
LICENSED APPLICATION END USER LICENSE AGREEMENT
The VitalScan ® Software (Software) made available through Medeia Inc are licensed, not sold, to you. Your license to each Software that you obtain is subject to your prior acceptance of this Licensed Application End User License Agreement (“Standard EULA”), and you agree that the terms of this Standard EULA will apply to each Software that you license through Medeia Inc Your license to any VitalScan ® Product under this Standard EULA or separate end user license agreement is granted by Medeia Inc, and your license to any Third-Party Product under this Standard EULA or separate end user license agreement is granted by the Application Provider of that Third-Party Product. If any VitalScan® product is subject to the license granted under this Standard EULA is referred to herein as the “Licensed Application”. The Application Provider or VitalScan® as applicable (“Licensor”) reserves all rights in and to the Licensed Application not expressly granted to you under this Standard EULA.
a. Scope of License: This license granted to you for the Licensed Application by Licensor is limited to a nontransferable license to use the Licensed Application on any VitalScan ® -branded products as applicable. This license does not allow you to use the Licensed Application on any VitalScan ® Device that you do not own or control, and except as provided in the Usage Rules, you may not distribute or make the Licensed Application available over a network where it could be used by multiple devices at the same time. You may not rent, lease, lend, sell, transfer redistribute, or sublicense the Licensed Application and, if you sell your Computer Or VitalScan® device to a third party, you must remove the Licensed Application from the Computer or VitalScan® Device before doing so. You may not copy (except as expressly permitted by this license and the Usage Rules), decompile, reverse-engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the Licensed Application, any updates, or any part thereof (except as and only to the extent that any foregoing restriction is prohibited by applicable law or to the extent as may be permitted by the licensing terms governing use of any open-sourced components included with the Licensed Application). Any attempt to do so is a violation of the rights of the Licensor and its licensors. If you breach this restriction, you may be subject to prosecution and damages.
The terms of this license will govern any upgrades provided by Licensor that replace and/or supplement the original Licensed Application, unless such upgrade is accompanied by a separate license in which case the terms of that license will govern.
b. Consent to Use of Data: You agree that Licensor may collect and use technical data and related information— including but not limited to technical information about your device, system and application SOFTWARE, and peripherals—that is gathered periodically to facilitate the provision of SOFTWARE updates, product support, and other SOFTWARE to you (if any) related to the Licensed Application. Licensor may use this information, as long as it is in a form that does not personally identify you, to improve its products or to provide SOFTWARE or technologies to you.
c. Termination. The license is effective until terminated by you or Licensor. Your rights under this license will terminate automatically without notice from the Licensor if you fail to comply with any term(s) of this license. Upon termination of the license, you shall cease all use of the Licensed Application and destroy all copies, full or partial, of the Licensed Application.
d. External SOFTWARE; Third-Party Materials. The Licensed Application may enable access to Licensor’s and/or third-party SOFTWARE and websites (collectively and individually, “External SOFTWARE”). Use of the External SOFTWARE requires Internet access and use of certain External SOFTWARE requires you to accept additional terms. By using this SOFTWARE you agree to the latest Terms and Conditions and Usage Rules, which you may access and review at www.medeia.com or request a copy at email@example.com
You agree that the External SOFTWARE contain proprietary content, information and material that is owned by Licensor and/or its agents or licensors, and is protected by applicable intellectual property and other laws, including but not limited to copyright, and that you will not use such proprietary content, information or materials in any way whatsoever except for permitted use of the External SOFTWARE or in any manner that is inconsistent with the terms of this Standard EULA or that infringes any intellectual property rights of a third party or VitalScan ® . No portion of the External SOFTWARE may be reproduced in any form or by any means. You agree not to modify, rent, lease, loan, sell, distribute, or create derivative works based on the External SOFTWARE, in any manner, and you shall not exploit the External SOFTWARE in any unauthorized way whatsoever, including but not limited to, using the External SOFTWARE to transmit any computer viruses, worms, trojan horses or other malware, or by trespass or burdening network capacity. You further agree not to use the External SOFTWARE in any manner to harass, abuse, stalk, threaten, defame or otherwise infringe or violate the rights of any other party, and that neither Licensor nor its agents is in any way responsible
for any such use by you, nor for any harassing, threatening, defamatory, offensive, infringing or illegal messages or transmissions that you may receive as a result of using any of the External SOFTWARE.
In addition, External SOFTWARE and Third Party Materials that may be accessed from, displayed on or linked to from the VitalScan ® Devices are not available in all languages or in all countries or regions. Licensor makes no representation that such External SOFTWARE and Materials are appropriate or available for use in any particular location. To the extent you choose to use or access such External SOFTWARE and Materials, you do so at your own initiative and are responsible for compliance with any applicable laws, including but not limited to applicable local laws. Licensor reserves the right to change, suspend, remove, or disable access to any External SOFTWARE at any time without notice. In no event will Licensor be liable for the removal of or disabling of access to any such External SOFTWARE. Licensor may also impose limits on the use of or access to certain External SOFTWARE, in any case and without notice or liability.
e. NO WARRANTY: YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE LICENSED APPLICATION IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, AND EFFORT IS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE LICENSED APPLICATION AND ANY SOFTWARE PERFORMED OR PROVIDED BY THE LICENSED APPLICATION ARE PROVIDED “AS IS” AND “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND LICENSOR HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE LICENSED APPLICATION AND ANY SOFTWARE, EITHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, AND OF NONINFRINGEMENT OF THIRD-PARTY RIGHTS. LICENSOR DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE LICENSED APPLICATION, THAT THE FUNCTIONS CONTAINED IN OR SOFTWARE PERFORMED OR PROVIDED BY THE LICENSED APPLICATION WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE LICENSED APPLICATION OR SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE LICENSED APPLICATION OR SOFTWARE WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY LICENSOR OR ITS AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. SHOULD THE LICENSED APPLICATION OR SOFTWARE PROVE DEFECTIVE, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR, OR CORRECTION. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO YOU.
f. Limitation of Liability. TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL LICENSOR BE LIABLE FOR PERSONAL INJURY OR ANY INCIDENTAL, SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION, OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE LICENSED APPLICATION, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT, OR OTHERWISE) AND EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU. In no event shall Licensor’s total liability to you for all damages (other than as may be required by applicable law in cases involving personal injury) exceed the amount of one hundred dollars ($100.00). The foregoing limitations will apply even if the above stated remedy fails of its essential purpose.
g. You may not use or otherwise export or re-export the Licensed Application except as authorized by United States law and the laws of the jurisdiction in which the Licensed Application was obtained. In particular, but without limitation, the Licensed Application may not be exported or re-exported (a) into any U.S.-embargoed countries or (b) to anyone on the U.S. Treasury Department’s Specially Designated Nationals List or the U.S. Department of Commerce Denied Persons List or Entity List. By using the Licensed Application, you represent and warrant that you are not located in any such country or on any such list. You also agree that you will not use these products for any purposes prohibited by United States law, including, without limitation, the development, design, manufacture, or production of nuclear, missile, or chemical or biological weapons.
i. The laws of the State of Texas, excluding its conflicts of law rules, govern this license and your use of the Licensed Application. Your use of the Licensed Application may also be subject to other local, state, national, or international laws.
IMPORTANT: BY USING YOUR VitalScan® PRODUCT YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THE VitalScan ® ONE (1) YEAR LIMITED WARRANTY (“WARRANTY”) AS SET OUT BELOW.
DO NOT USE YOUR PRODUCT UNTIL YOU HAVE READ THE TERMS OF THE WARRANTY. IF YOU DO NOT AGREE TO THE TERMS OF THE WARRANTY, DO NOT USE THE PRODUCT.
VitalScan ® One (1) Year Limited Warranty
For VitalScan ® Branded Product Only
HOW CONSUMER LAW RELATES TO THIS WARRANTY
THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY HAVE OTHER RIGHTS THAT VARY FROM STATE TO STATE (OR BY COUNTRY OR PROVINCE). OTHER THAN AS PERMITTED BY LAW, VitalScan ® DOES NOT EXCLUDE, LIMIT OR SUSPEND OTHER RIGHTS YOU MAY HAVE, INCLUDING THOSE THAT MAY ARISE FROM THE NONCONFORMITY OF A SALES CONTRACT. FOR A FULL UNDERSTANDING OF YOUR RIGHTS YOU SHOULD CONSULT THE LAWS OF YOUR COUNTRY, PROVINCE OR STATE.
WARRANTY LIMITATIONS SUBJECT TO CONSUMER LAW
TO THE EXTENT PERMITTED BY LAW, THIS WARRANTY AND THE REMEDIES SET FORTH ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, REMEDIES AND CONDITIONS, WHETHER ORAL, WRITTEN, STATUTORY, EXPRESS OR IMPLIED. VitalScan ® DISCLAIMS ALL STATUTORY AND IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND WARRANTIES AGAINST HIDDEN OR LATENT DEFECTS, TO THE EXTENT PERMITTED BY LAW. IN SO FAR AS SUCH WARRANTIES CANNOT BE DISCLAIMED, VitalScan ® LIMITS THE DURATION AND REMEDIES OF SUCH WARRANTIES TO THE DURATION OF THIS EXPRESS WARRANTY AND, AT VitalScan ® ‘S OPTION, THE REPAIR OR REPLACEMENT SOFTWARE DESCRIBED BELOW. SOME STATES (COUNTRIES AND PROVINCES) DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY (OR CONDITION) MAY LAST, SO THE LIMITATION DESCRIBED ABOVE MAY NOT APPLY TO YOU.
WHAT IS COVERED BY THIS WARRANTY?
Medeia Inc 7 W. Figueroa Street, Suite 300, Santa Barbara, CA, 93101, USA (“ VitalScan ® ”) warrants the VitalScan ® -branded hardware product and accessories contained in the original packaging (“ VitalScan ® Product”) against defects in materials and workmanship when used normally in accordance with VitalScan ® ‘s published guidelines for a period of ONE (1) YEAR from the date of original retail purchase by the end-user purchaser (“Warranty Period”). VitalScan ® ’s published guidelines include but are not limited to information contained in technical specifications, user manuals and SOFTWARE communications.
WHAT IS NOT COVERED BY THIS WARRANTY?
This Warranty does not apply to any non- VitalScan ® branded hardware products or any SOFTWARE, even if packaged or sold with VitalScan ® hardware. Manufacturers, suppliers, or publishers, other than VitalScan ® , may provide their own warranties to you – please contact them for further information. SOFTWARE distributed by VitalScan ® with or without the VitalScan ® brand (including, but not limited to system SOFTWARE) is not covered by this Warranty. Please refer to the licensing agreement accompanying the SOFTWARE for details of your rights with respect to its use. VitalScan ® does not warrant that the operation of the VitalScan ® Product will be uninterrupted or error-free.
VitalScan ® is not responsible for damage arising from failure to follow instructions relating to the VitalScan ® Product’s use.
This Warranty does not apply: (a) to consumable parts, such as batteries or protective coatings that are designed to diminish over time, unless failure has occurred due to a defect in materials or workmanship; (b) to cosmetic damage, including but not limited to scratches, dents and broken plastic on ports; (c) to damage caused by use with another product; (d) to damage caused by accident, abuse, misuse, liquid contact, fire, earthquake or other external cause; (e) to damage caused by operating the VitalScan ® Product outside VitalScan ® ’s published guidelines; (f ) to damage caused by SOFTWARE (including upgrades and expansions) performed by anyone who is not a representative of VitalScan® or an VitalScan ® Authorized DISTRIBUTOR; (g) to an VitalScan ® Product that has been modified to alter functionality or capability without the written permission of VitalScan ® ; (h) to defects caused by normal wear and tear or otherwise due to the normal aging of the VitalScan ® Product, or (i) if any serial number has been removed or defaced from the VitalScan ® Product.
IMPORTANT RESTRICTION FOR SOFTWARE.
VitalScan ® may restrict warranty SOFTWARE to the country where VitalScan ® or its Authorized Distributors originally sold the device.
YOU SHOULD MAKE PERIODIC BACKUP COPIES OF THE INFORMATION CONTAINED ON THE VitalScan ® PRODUCT STORAGE MEDIA TO PROTECT THE CONTENTS AND AS A PRECAUTION AGAINST POSSIBLE OPERATIONAL FAILURES.
Before receiving warranty SOFTWARE, VitalScan ® or its agents may require that you furnish proof of purchase details, respond to questions designed to assist with diagnosing potential issues and follow VitalScan ® ‘s procedures for obtaining warranty SOFTWARE. Before submitting your VitalScan ® Product for warranty SOFTWARE you should maintain a separate backup copy of the contents of its storage media, remove all personal information that you want to protect and disable all security passwords.
DURING WARRANTY SOFTWARE THE CONTENTS OF THE STORAGE MEDIA WILL BE DELETED AND REFORMATTED. VitalScan ® AND ITS AGENTS ARE NOT RESPONSIBLE FOR ANY LOSS OF SOFTWARE PROGRAMS, DATA OR OTHER INFORMATION CONTAINED ON THE STORAGE MEDIA OR ANY OTHER PART OF THE VitalScan ® PRODUCT SOFTWARE.
Following warranty SOFTWARE your VitalScan ® Product or a replacement device will be returned to you as your VitalScan ® Product was configured when originally purchased, subject to applicable updates. VitalScan ® may install system SOFTWARE updates as part of warranty SOFTWARE that will prevent the VitalScan ® Product from reverting to an earlier version of the system SOFTWARE. Third party applications installed on the VitalScan ® Product may not be compatible or work with the VitalScan® Product as a result of the system SOFTWARE update. You will be responsible for reinstalling all other SOFTWARE programs, data and information. Recovery and reinstallation of other SOFTWARE programs, data and information are not covered under this Warranty.
Important: Do not open the VitalScan ® Product. Opening the VitalScan ® Product may cause damage that is not covered by this Warranty. Only VitalScan ® should perform SOFTWARE UPDATES on this VitalScan ® Product.
WHAT WILL VitalScan ® DO IN THE EVENT THE WARRANTY IS BREACHED?
If during the Warranty Period you submit a valid claim to VitalScan® or an Authorized Distributor, VitalScan ® will, at its option, (i) repair the VitalScan ® Product using new or previously used parts that are equivalent to new in performance and reliability, (ii) replace the VitalScan ® Product with a device that is at least functionally equivalent to the VitalScan ® Product and is formed from new and/or previously used parts that are equivalent to new in performance and reliability.
VitalScan ® may request that you replace certain user-installable parts or VitalScan ® Products. A replacement part or VitalScan ® Product, including a user-installable part that has been installed in accordance with instructions provided by VitalScan ® , assumes the remaining term of the Warranty or ninety (90) days from the date of replacement or repair, whichever provides longer coverage for you. When a VitalScan ® Product or part is replaced, any replacement item becomes your property and the replaced item becomes VitalScan ® ‘s property.
HOW TO OBTAIN WARRANTY SOFTWARE?
Please access and review the online help resources described below before seeking warranty SOFTWARE. If the VitalScan ® Product is still not functioning properly after making use of these resources, please contact an VitalScan ® representative or, if applicable, an VitalScan ® AUTHORIZED DISTRIBUTOR, using the information provided below. A VitalScan ® AUTHORIZED DISTRIBUTOR will help determine whether your VitalScan ® Product requires SOFTWARE and, if it does, will inform you how VitalScan® will provide it. When contacting VitalScan ® via telephone, other charges may apply depending on your location.
Online information with details on obtaining warranty SOFTWARE is provided below.
WARRANTY SOFTWARE OPTIONS
VitalScan ® will provide warranty SOFTWARE through one or more of the following options:
(i) Carry-in SOFTWARE. You may return your VitalScan ® Product to an VitalScan ® AUTHORIZED DISTRIBUTOR;
(ii) Mail-in SOFTWARE. If VitalScan ® determines that your VitalScan ® Product is eligible for mail-in SOFTWARE, VitalScan ® will send you prepaid waybills so that you may ship your VitalScan ® Product in accordance with VitalScan ® ’s instructions. Once SOFTWARE is complete, VitalScan® will return the VitalScan ® Product to you.
(iii) Do-it-yourself (DIY) parts SOFTWARE. DIY parts SOFTWARE allows you to SOFTWARE your own VitalScan ® Product. If DIY parts SOFTWARE is available in the circumstances, the following process will apply.
(a) SOFTWARE where VitalScan ® requires return of the replaced VitalScan ® Product or part. VitalScan ® may require a credit card authorization as security for the retail price of the replacement VitalScan ® Product or part and applicable shipping costs. If you are unable to provide credit card authorization, DIY parts SOFTWARE may not be available to you and VitalScan ® will offer alternative arrangements for SOFTWARE. VitalScan ® will ship a replacement VitalScan ® Product or part to you with installation instructions, if applicable, and any requirements for the return of the replaced VitalScan ® Product or part. If you follow the instructions, VitalScan® will cancel the credit card authorization, so you will not be charged for the VitalScan® Product or part and shipping to and from your location. If you fail to return the replaced VitalScan ® Product or part as instructed or return a replaced VitalScan ® Product or part that is ineligible for SOFTWARE, VitalScan ® will charge your credit card for the authorized amount.
(b) SOFTWARE where VitalScan ® does not require return of the replaced VitalScan ® Product or part. VitalScan® will ship you free of charge a replacement VitalScan® Product or part accompanied by instructions on installation, if applicable, and any requirements for the disposal of the replaced VitalScan ® Product or part.
(c) VitalScan ® is not responsible for any labor costs you incur relating to DIY parts SOFTWARE. Should you require further assistance, contact VitalScan ® at the telephone number listed below.
Technical Support : 1 800 433 4609
VitalScan ® reserves the right to change the method by which VitalScan ® may provide warranty SOFTWARE to you, and your VitalScan ® Product’s eligibility to receive a particular method of SOFTWARE. SOFTWARE will be limited to the options available in the country where SOFTWARE is requested. SOFTWARE options, parts availability and response times may vary according to country. You may be responsible for shipping and handling charges if the VitalScan ® Product cannot be SOFTWAREd in the country it is in. If you seek SOFTWARE in a country that is not the original country of purchase, you will comply with all applicable import and export laws and regulations and be responsible for all custom duties, V.A.T. and other associated taxes and charges. Where international SOFTWARE is available, VitalScan ® may repair or replace VitalScan ® Products and parts with comparable VitalScan ® Product and parts that comply with local standards.
LIMITATION OF LIABILITY
EXCEPT AS PROVIDED IN THIS WARRANTY AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, VitalScan ® IS NOT RESPONSIBLE FOR DIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES RESULTING FROM ANY BREACH OF WARRANTY OR CONDITION, OR UNDER ANY OTHER LEGAL THEORY, INCLUDING BUT NOT LIMITED TO LOSS OF USE; LOSS OF REVENUE; LOSS OF ACTUAL OR ANTICIPATED PROFITS (INCLUDING LOSS OF PROFITS ON CONTRACTS); LOSS OF THE USE OF MONEY; LOSS OF ANTICIPATED SAVINGS; LOSS OF BUSINESS; LOSS OF OPPORTUNITY; LOSS OF GOODWILL; LOSS OF REPUTATION; LOSS OF, DAMAGE TO, COMPROMISE OR CORRUPTION OF DATA; OR ANY INDIRECT OR CONSEQUENTIAL LOSS OR DAMAGE HOWSOEVER CAUSED INCLUDING THE REPLACEMENT OF EQUIPMENT AND PROPERTY, ANY COSTS OF RECOVERING, PROGRAMMING, OR REPRODUCING ANY PROGRAM OR DATA STORED IN OR USED WITH THE VitalScan ® PRODUCT OR ANY FAILURE TO MAINTAIN THE CONFIDENTIALITY OF INFORMATION STORED ON THE VitalScan ® PRODUCT.
THE FOREGOING LIMITATION SHALL NOT APPLY TO DEATH OR PERSONAL INJURY CLAIMS, OR ANY STATUTORY LIABILITY FOR INTENTIONAL AND GROSS NEGLIGENT ACTS AND/OR OMISSIONS. VitalScan ® DISCLAIMS ANY REPRESENTATION THAT IT WILL BE ABLE TO REPAIR ANY DEVICE UNDER THIS WARRANTY OR REPLACE THE VitalScan ® PRODUCT WITHOUT RISK TO OR LOSS OF INFORMATION STORED IN THE VitalScan ® PRODUCT.
SOME STATES (COUNTRIES AND PROVINCES) DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
No VitalScan ® reseller, agent, or employee is authorized to make any modification, extension, or addition to this Warranty. If any term is held to be illegal or unenforceable, the legality or enforceability of the remaining terms shall not be affected or impaired. This Warranty is governed by and construed under the laws of the country in which the VitalScan ® Product purchase took place. VitalScan ® or its successor in title is the warrantor under this Warranty.
More information of the following is available online:
Medeia Inc All rights reserved. VitalScan ® and the VitalScan ® logo are trademarks of Medeia Inc, registered in the U.S. and other countries.
REQUIREMENTS FOR USE OF THE SOFTWARE
The SOFTWARE is available to Prescription only in medical clinics, healthcare practices and out-patient department of hospital.
To use the SOFTWARE, you cannot be a person barred from receiving the SOFTWARE under the laws of the United States or other applicable jurisdictions, including the country in which you reside or from where you use the SOFTWARE. By accepting this Agreement, you represent that you understand and agree to the foregoing.
Use of the SOFTWARE requires compatible devices, Internet access, and certain SOFTWARE (fees may apply); may require periodic updates; and may be affected by the performance of these factors. High-speed Internet access is strongly recommended for use. The latest version of required SOFTWARE is recommended to access the SOFTWARE and may be required for certain transactions or features. You agree that meeting these requirements, which may change from time to time, is your responsibility.
Use of Location-based SOFTWARE
VitalScan ® and its partners and licensors may provide certain features or SOFTWARE through the SOFTWARE that rely upon device-based location information, which use GPS (where available), along with crowd-sourced Wi-Fi hotspot and cell tower locations. To provide such features or SOFTWARE, where available, VitalScan ® and its partners and licensors must collect, use, transmit, process and maintain your location data, including but not limited to the geographic location of your device and information related to your any devices registered thereunder, including but not limited to your VitalScan ® ID, device ID and name, and device type. You hereby agree and consent to VitalScan ® ‘s and its partners’ and licensors’ collection, use, transmission, processing and maintenance of such location and USER PROFILE data to provide and improve such features or SOFTWARE.
Changing the SOFTWARE
VitalScan ® reserves the right to modify or terminate the SOFTWARE (or any part thereof ), either temporarily or permanently. VitalScan ® will send an email to the primary address associated with you to provide notice of any material changes to the SOFTWARE. It is your responsibility to check your email address and/or primary email address registered with VitalScan ® for any such notices. You agree that VitalScan ® shall not be liable to you or any third party for any modification or cessation of the SOFTWARE. If you have paid to use the SOFTWARE and we terminate it or materially downgrade its functionality, we will provide you with a pro rata refund of any pre-payment.
Limitations on Use
You agree to use the SOFTWARE only for purposes as permitted by this Agreement and any applicable law, regulation, or generally accepted practice in the applicable jurisdiction.
Availability of the SOFTWARE
The SOFTWARE, or any feature or part thereof, may not be available in all languages or in all countries and VitalScan ® makes no representation that the SOFTWARE, or any feature or part thereof, is appropriate or available for use in any particular location. To the extent you choose to access and use the SOFTWARE, you do so at your own initiative and are responsible for compliance with any applicable laws, including, but not limited to, any applicable local laws.
CANCELLATIONS AND REFUNDS
All fees and charges paid by you in relation to the SOFTWARE are nonrefundable, except as required by law or as otherwise stated herein.
As a registered user of the SOFTWARE, you may establish an USER PROFILE Don’t reveal your USER PROFILE information to anyone else. You are solely responsible for maintaining the confidentiality and security of your USER PROFILE and for all activities that occur on or through your USER PROFILE, and you agree to immediately notify VitalScan ® of any security breach of your USER PROFILE. You further acknowledge and agree that the SOFTWARE is designed and intended PRESCRIPTION USE ONLY AND DO NOT share your USER PROFILE details with another individual. Provided we have exercised reasonable skill and due care, VitalScan ® shall not be responsible for any losses arising out of the unauthorized use of your USER PROFILE resulting from you not following these rules.
In order to use the SOFTWARE, you must enter your VitalScan ® ID and password to authenticate your USER PROFILE. You agree to provide accurate and complete information when you register with, and as you use, the SOFTWARE (“SOFTWARE Registration Data”), and you agree to update your SOFTWARE Registration Data to keep it accurate and complete. Failure to provide accurate, current and complete SOFTWARE Registration Data may result in the suspension and/or termination of your USER PROFILE. You agree that VitalScan ® may store and use the SOFTWARE Registration Data you provide for use in maintaining and billing fees to your USER PROFILE.
Nothing in this Agreement shall be construed to convey to you any interest, title, or license in VitalScan ® used by you in connection with the SOFTWARE.
No Right of Survivorship
You agree that your USER PROFILE is non-transferable and that any rights to your VitalScan ® USER PROFILE or Content within your USER PROFILE terminate upon your death. Upon receipt of a copy of a death certificate your USER PROFILE may be terminated and all Content within your USER PROFILE deleted.
No Resale of SOFTWARE
You agree that you will not reproduce, copy, duplicate, sell, resell, rent or trade the SOFTWARE (or any part thereof ) for any purpose.
Content and Your Conduct
a. forge any TCP-IP packet header or any part of the header information in an email or a news group posting, or otherwise putting information in a header designed to mislead recipients as to the origin of any Content transmitted through the SOFTWARE (“spoofing”);
b. upload, post, email, transmit, store or otherwise make available any material that contains viruses or any other computer code, files or programs designed to harm, interfere or limit the normal operation of the SOFTWARE (or any part thereof ), or any other computer SOFTWARE or hardware;
c. interfere with or disrupt the SOFTWARE (including accessing the SOFTWARE through any automated means, like scripts or web crawlers), or any servers or networks connected to the SOFTWARE, or any policies, requirements or regulations of networks connected to the SOFTWARE (including any unauthorized access to, use or monitoring of data or traffic thereon);
d. plan or engage in any illegal activity; and/or
e. gather and store personal information on any other users of the SOFTWARE to be used in connection with any of the foregoing prohibited activities.
Removal of Content
You acknowledge that VitalScan ® is not responsible or liable in any way for any Content provided by others and has no duty to pre-screen such Content. However, VitalScan
® reserves the right at all times to determine whether Content is appropriate and in compliance with this Agreement, and may pre-screen, move, refuse, modify and/or remove Content at any time, without prior notice and in its sole discretion, if such Content is found to be in violation of this Agreement or is otherwise objectionable.
Backup Your Content
You are responsible for backing up, to your own computer or other device, any important documents, images or other Content that you store or access via the SOFTWARE. VitalScan ® shall use reasonable skill and due care in providing the SOFTWARE, but VitalScan ® does not guarantee or warrant that any Content you may store or access through the SOFTWARE will not be subject to inadvertent damage, corruption or loss.
Access to Your USER PROFILE and Content
VitalScan ® reserves the right to take steps VitalScan ® believes are reasonably necessary or appropriate to enforce and/or verify compliance with any part of this Agreement. You acknowledge and agree that VitalScan ® may, without liability to you, access, use, preserve and/or disclose your USER PROFILE information and Content to law enforcement authorities, government officials, and/or a third party, as VitalScan ® believes is reasonably necessary or appropriate, if legally required to do so or if we have a good faith belief that such access, use, disclosure, or preservation is reasonably necessary to: (a) comply with legal process or request; (b) enforce this Agreement, including investigation of any potential violation thereof; (c) detect, prevent or otherwise address security, fraud or technical issues; or (d) protect the rights, property or safety of VitalScan ® , its users, a third party, or the public as required or permitted by law.
Copyright Notice - DMCA
If you believe that any Content in which you claim copyright has been infringed by anyone using the SOFTWARE, please contact VitalScan ® VitalScan ® may, in its sole discretion, suspend and/or terminate USER PROFILEs of users that are found to be repeat infringers.
Content Submitted or Made Available by You on the SOFTWARE
Changes to Content
ou understand that in order to provide the SOFTWARE and make your Content available thereon, VitalScan ® may transmit your Content across various public networks, in various media, and modify or change your Content to comply with technical requirements of connecting networks or devices or computers. You agree that the license herein permits VitalScan ® to take any such actions.
VitalScan ® , the VitalScan ® logo, trademarks, SOFTWARE marks, graphics, and logos used in connection with the SOFTWARE are trademarks or registered trademarks of Medeia Inc in the US and/or other countries. Other trademarks, SOFTWARE marks, graphics, and logos used in connection with the SOFTWARE may be the trademarks of their respective owners. You are granted no right or license in any of the aforesaid trademarks, and further agree that you shall not remove, obscure, or alter any proprietary notices (including trademark and copyright notices) that may be affixed to or contained within the SOFTWARE.
VitalScan ® ’s Proprietary Rights
You acknowledge and agree that VitalScan ® and/or its licensors own all legal right, title and interest in and to the SOFTWARE, including but not limited to graphics, user interface, the scripts and SOFTWARE used to implement the SOFTWARE, and any SOFTWARE provided to you as a part of and/or in connection with the SOFTWARE (the “SOFTWARE”), including any and all intellectual property rights that exist therein, whether registered or not, and wherever in the world they may exist. You further agree that the SOFTWARE (including the SOFTWARE, or any other part thereof) contains proprietary and confidential information that is protected by applicable intellectual property and other laws, including but not limited to copyright. You agree that you will not use such proprietary information or materials in any way whatsoever except for use of the SOFTWARE in compliance with this Agreement. No portion of the SOFTWARE may be reproduced in any form or by any means, except as expressly permitted in these terms.
License From VitalScan ®
VitalScan ® grants you a personal, non-exclusive, non-transferable, limited license to use the SOFTWARE as provided to you by VitalScan ® as a part of the SOFTWARE and in accordance with this Agreement; provided that you do not (and do not permit anyone else to) copy, modify, rent, loan, distribute, create a derivative work of, reverse engineer, decompile, or otherwise attempt to discover the source code (unless expressly permitted or required by law), sell, lease, sublicense, assign, grant a security interest in or otherwise transfer any right in the SOFTWARE, and you shall not exploit the SOFTWARE in any unauthorized way whatsoever, including, but not limited to, by trespass or burdening network capacity. THE USE OF THE SOFTWARE OR ANY PART OF THE SOFTWARE, EXCEPT FOR USE OF THE SOFTWARE AS PERMITTED IN THIS AGREEMENT, IS STRICTLY PROHIBITED AND INFRINGES ON THE INTELLECTUAL ROPERTY RIGHTS OF OTHERS AND MAY SUBJECT YOU TO CIVIL AND CRIMINAL PENALTIES, INCLUDING POSSIBLE MONETARY DAMAGES, FOR COPYRIGHT INFRINGEMENT.
Use of the SOFTWARE and SOFTWARE, including transferring, posting, or uploading data, SOFTWARE or other Content via the SOFTWARE, may be subject to the export and import laws of the United States and other countries. You agree to comply with all applicable export and import laws and regulations. In particular, but without limitation, the SOFTWARE may not be exported or reexported (a) into any U.S. 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 Denied Person’s List or Entity List. By using the SOFTWARE or SOFTWARE, you represent and warrant that you are not located in any such country or on any such list. You also agree that you will not use the SOFTWARE or SOFTWARE for any purposes prohibited by United States law, including, without limitation, the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. You further agree not to upload to your USER PROFILE any data or SOFTWARE that cannot be exported without prior written government authorization, including, but not limited to, certain types of encryption SOFTWARE, without first obtaining that authorization. This assurance and commitment shall survive termination of this Agreement.
As part of the SOFTWARE, you may from time to time receive updates to the SOFTWARE from VitalScan ® which may be automatically downloaded and installed to your device or computer. These updates may include bug fixes, feature enhancements or improvements, or entirely new versions of the SOFTWARE. You agree that VitalScan ® may automatically deliver such updates to you as part of the SOFTWARE and you shall receive and install them as required.
Termination by You
You may terminate your USER PROFILE and/or stop using the SOFTWARE at any time. If you wish to stop using your device, you may remove your USER PROFILE from the device by opening the Control Panel on your computer, Change/Remove your Account Name, Change/Remove your Password.
Termination by VitalScan ®
VitalScan ® may at any time, under certain circumstances and without prior notice, immediately terminate or suspend all or a portion of your USER PROFILE and/or access to the SOFTWARE. Cause for such termination shall include: (a) violations of this Agreement or any other policies or guidelines that are referenced herein and/or posted on the SOFTWARE; (b) a request by you to cancel or terminate your
USER PROFILE; (c) a request and/or order from law enforcement, a judicial body, or other government agency; (d) where provision of the SOFTWARE to you is or may become unlawful; (e) unexpected technical or security issues or problems; (f ) your participation in fraudulent or illegal activities; or (g) failure to pay any fees owed by you in relation to the SOFTWARE. Any such termination or suspension shall be made by VitalScan ® in its sole discretion and VitalScan ® will not be responsible to you or any third party for any damages that may result or arise out of such termination or suspension of your USER PROFILE and/or access to the SOFTWARE. In addition, VitalScan ® may terminate your USER PROFILE upon prior notice via email to the address associated with your USER PROFILE if (a) your USER PROFILE has been inactive for one (1) year; or (b) there is a general discontinuance or material modification to the SOFTWARE or any part thereof. Any such termination or suspension shall be made by VitalScan ® in its sole discretion and VitalScan ® will not be responsible to you or any third party for any damages that may result or arise out of such termination or suspension of your USER PROFILE and/or access to the SOFTWARE.
Effects of Termination
Upon termination of your USER PROFILE you will lose all access to the SOFTWARE and any portions thereof, including, but not limited to, your USER PROFILE, VitalScan ® ID, email USER PROFILE, and Content. In addition, after a period of time, VitalScan ® will delete information and data stored in or as a part of your USER PROFILE(s). Any individual components of the SOFTWARE that you may have used subject to separate SOFTWARE license agreements will also be terminated in accordance with those license agreements.
Disclaimer of Warranties
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, AS SUCH, TO THE EXTENT SUCH EXCLUSIONS ARE SPECIFICALLY PROHIBITED BY APPLICABLE LAW, SOME OF THE EXCLUSIONS SET FORTH BELOW MAY NOT APPLY TO YOU.
VitalScan ® SHALL USE REASONABLE SKILL AND DUE CARE IN PROVIDING THE SOFTWARE. THE FOLLOWING DISCLAIMERS ARE SUBJECT TO THIS EXPRESS WARRANTY.
VitalScan ® DOES NOT GUARANTEE, REPRESENT, OR WARRANT THAT YOUR USE OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, AND YOU AGREE THAT FROM TIME TO TIME VitalScan ® MAY REMOVE THE SOFTWARE FOR INDEFINITE PERIODS OF TIME, OR CANCEL THE SOFTWARE IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT THE SOFTWARE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. VitalScan ® AND ITS AFFILIATES, SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. IN PARTICULAR, VitalScan ® AND ITS AFFILIATES, SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS MAKE
NO WARRANTY THAT (I) THE SOFTWARE WILL MEET YOUR REQUIREMENTS; (II) YOUR USE OF THE SOFTWARE WILL BE TIMELY, UNINTERRUPTED, SECURE OR ERROR-FREE; (III) ANY INFORMATION OBTAINED BY YOU AS A RESULT OF THE SOFTWARE WILL BE ACCURATE OR RELIABLE; AND (IV) ANY DEFECTS OR ERRORS IN THE SOFTWARE PROVIDED TO YOU AS PART OF THE SOFTWARE WILL BE CORRECTED.
• VitalScan ® DOES NOT REPRESENT OR GUARANTEE THAT THE SOFTWARE WILL BE FREE FROM LOSS, CORRUPTION, ATTACK, VIRUSES, INTERFERENCE, HACKING, OR OTHER SECURITY INTRUSION, AND VitalScan ® DISCLAIMS ANY LIABILITY RELATING THERETO.
ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SOFTWARE IS ACCESSED AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR DEVICE, COMPUTER, OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL. YOU FURTHER ACKNOWLEDGE THAT THE SOFTWARE IS NOT INTENDED OR SUITABLE FOR USE IN SITUATIONS OR ENVIRONMENTS WHERE THE FAILURE OR TIME DELAYS OF, OR ERRORS OR INACCURACIES IN, THE CONTENT, DATA OR INFORMATION PROVIDED BY THE SOFTWARE COULD LEAD TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE.
Limitation of Liability
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY BY SOFTWARE PROVIDERS. TO THE EXTENT SUCH EXCLUSIONS OR LIMITATIONS ARE SPECIFICALLY PROHIBITED BY APPLICABLE LAW, SOME OF THE EXCLUSIONS OR LIMITATIONS SET FORTH BELOW MAY NOT APPLY TO YOU.
VitalScan ® SHALL USE REASONABLE SKILL AND DUE CARE IN PROVIDING THE SOFTWARE. THE FOLLOWING LIMITATIONS DO NOT APPLY IN RESPECT OF LOSS RESULTING FROM (A) VitalScan ® ‘S FAILURE TO USE REASONABLE SKILL AND DUE CARE; (B) VitalScan ® ‘S GROSS NEGLIGENCE, WILFUL MISCONDUCT OR FRAUD; OR (C) DEATH OR PERSONAL INJURY.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT VitalScan ® AND ITS AFFILIATES, SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS SHALL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SOFTWARE, OR OTHER INTANGIBLE LOSSES (EVEN IF VitalScan ® HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (I) THE USE OR INABILITY TO USE THE SOFTWARE (II) ANY CHANGES MADE TO THE SOFTWARE OR ANY TEMPORARY OR PERMANENT CESSATION OF THE SOFTWARE OR ANY PART THEREOF; (III) THE UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (IV) THE DELETION OF, CORRUPTION OF, OR FAILURE TO STORE AND/OR SEND OR RECEIVE YOUR TRANSMISSIONS OR DATA ON OR THROUGH THE SOFTWARE; (V) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SOFTWARE; AND (VI) ANY OTHER MATTER RELATING TO THE SOFTWARE.
You agree to defend, indemnify and hold VitalScan ® , its affiliates, subsidiaries, directors, officers, employees, agents, partners, contractors, and licensors harmless from any claim or demand, including reasonable attorneys’ fees, made by a third party, relating to or arising from: (a) any Content you submit, post, transmit, or otherwise make available through the SOFTWARE; (b) your use of the SOFTWARE; (c) any violation by you of this Agreement; (d) any action taken by VitalScan ® as part of its investigation of a suspected violation of this Agreement or as a result of its finding or decision that a violation of this Agreement has occurred; or (e) your violation of any rights of another.
This means that you cannot sue VitalScan ® , its affiliates, subsidiaries, directors, officers, employees, agents, partners, contractors, and licensors as a result of its decision to remove or refuse to process any information or Content, to warn you, to suspend or terminate your access to the SOFTWARE, or to take any other action during the investigation of a suspected violation or as a result of VitalScan® ’s conclusion that a violation of this Agreement has occurred. This waiver and indemnity provision applies to all violations described in or contemplated by this Agreement. This obligation shall survive the termination or expiration of this Agreement and/or your use of the SOFTWARE. You acknowledge that you are responsible for all use of the SOFTWARE using your USER PROFILE, and that this Agreement applies to any and all usage of your USER PROFILE. You agree to comply with this Agreement and to defend, indemnify and hold harmless VitalScan ® from and against any and all claims and demands arising from usage of your USER PROFILE, whether or not such usage is expressly authorized by you.
VitalScan ® may provide you with notices regarding the SOFTWARE, including changes to this Agreement, by email to your email address (and/or other alternate email address associated with your USER PROFILE if provided), by regular mail, or by postings on our website and/or the SOFTWARE.
Except to the extent expressly provided in the following paragraph, this Agreement and the relationship between you and VitalScan ® shall be governed by the laws of the State of Texas, excluding its conflicts of law provisions. You and VitalScan ® agree to submit to the personal and exclusive jurisdiction of the courts located within the county of Harris County, Texas, to resolve any dispute or claim arising from this Agreement. If (a) you are not a U.S. citizen; (b) you do not reside in the U.S.; (c) you are not accessing the SOFTWARE from the U.S.; and (d) you are a citizen of one of the countries identified below, you hereby agree that any dispute or claim arising from this Agreement shall be governed by the applicable law set forth below, without regard to any conflict of law provisions, and you hereby irrevocably submit to the nonexclusive jurisdiction of the courts located in the state, province or country identified below whose law governs:
If you are a citizen of:
Any European Union country or Switzerland, Norway or Iceland
Governing law and forum:
The laws and courts of your usual place of residence
Specifically excluded from application to this Agreement is that law known as the United Nations Convention on the International Sale of Goods.
This Agreement constitutes the entire agreement between you and VitalScan ® , governs your use of the SOFTWARE and completely replaces any prior agreements between you and VitalScan ® in relation to the SOFTWARE. You may also be subject to additional terms and conditions that may apply when you use affiliate SOFTWARE, third-party content, or third-party SOFTWARE.
If any part of this Agreement is held invalid or unenforceable, that portion shall be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of the parties, and the remaining portions shall remain in full force and effect. The failure of VitalScan ® to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or pro- vision. You agree that, except as otherwise expressly provided in this Agreement, there shall be no third-party beneficiaries to this agreement.
VitalScan ® reserves the right at any time to modify this Agreement and to impose new or additional terms or conditions on your use of the SOFTWARE. If you do not agree with them, you must stop using the SOFTWARE. Your continued use of the SOFTWARE will be deemed acceptance of such modifications and additional terms and conditions.
Your use of the SOFTWARE includes the ability to enter into agreements and/or to make transactions electronically. YOU ACKNOWLEDGE THAT YOUR ELECTRONIC SUBMISSIONS CONSTITUTE YOUR AGREEMENT AND INTENT TO BE BOUND BY AND TO PAY FOR SUCH AGREEMENTS AND TRANSACTIONS. YOUR AGREEMENT AND INTENT TO BE BOUND BY ELECTRONIC SUBMISSIONS APPLIES TO ALL RECORDS RELATING TO ALL TRANSACTIONS YOU ENTER INTO ON THIS SOFTWARE, INCLUDING NOTICES OF CANCELLATION, POLICIES, CONTRACTS, AND APPLICATIONS.
In order to access and retain your electronic records, you may be required to have certain hardware and
SOFTWARE, which are your sole responsibility.
Collection and Use of Personal Information
Personal information is data that can be used to uniquely identify or contact a single person.
Here are some examples of the types of personal information VitalScan ® may collect and how we may use it.
What personal information we collect
When you create an VitalScan ® ID, register your products, apply for commercial credit, purchase a product, download a SOFTWARE update, register for a class at an VitalScan ® Affiliate Universities, or participate in an online survey, we may collect a variety of information, including your name, mailing address, phone number, email address, contact preferences, and credit card information.
When you share your content with colleagues using VitalScan ® products, send gift certificates and products, or invite others to join you on VitalScan ® forums, VitalScan ® may collect the information you provide about those people such as name, mailing address, email address, and phone number.
In the U.S., we may ask for your Social Security number (SSN) but only in limited circumstances such as when determining whether to extend commercial credit.
How we use your personal information
The personal information we collect allows us to keep you posted on VitalScan ®’s latest product announcements, SOFTWARE updates, and upcoming events. It also helps us to improve our SOFTWARE, content, and advertising. If you don’t want to be on our mailing list, you can opt out anytime by updating your preferences.
We also use personal information to help us develop, deliver, and improve our products, SOFTWARE, content, and advertising.
From time to time, we may use your personal information to send important notices, such as communications about purchases and changes to our terms, conditions, and policies. Because this information is important to your interaction with VitalScan ® , you may not opt out of receiving these communications.
We may also use personal information for internal purposes such as auditing, data analysis, and research to improve VitalScan ® ’s products, SOFTWARE, and customer communications.
If you enter into a sweepstake, contest, or similar promotion we may use the information you provide to administer those programs.
Collection and Use of Non-Personal Information
We also collect non-personal information - data in a form that does not permit direct association with any specific individual. We may collect, use, transfer, and disclose non-personal information for any purpose. The following are some examples of non-personal information that we collect and how we may use it:
We may collect information such as occupation, language, zip code, area code, unique device identifier, location, and the time zone where an VitalScan ® product is used so that we can better understand customer behavior and improve our products, SOFTWARE, and advertising.
If we do combine non-personal information with personal information the combined information will be treated as personal information for as long as it remains combined.
Cookies and Other Technologies
VitalScan ® ’s website, online SOFTWARE, interactive applications, email messages, and advertisements may use “cookies” and other technologies such as pixel tags and web beacons. These technologies help us better understand user behavior, tell us which parts of our website people have visited, and facilitate and measure the effectiveness of advertisements and web searches. We treat information collected by cookies
If you want to disable cookies and you’re using your web browser, check with your provider to find out how to disable cookies. Please note that certain features of the VitalScan ® website will not be available once cookies are disabled.
As is true of most websites, we gather some information automatically and store it in log files. This information includes Internet Protocol (IP) addresses, browser type and language, Internet SOFTWARE provider (ISP), referring and exit pages, operating system, date/time stamp, and clickstream data.
We use this information to understand and analyze trends, to administer the site, to learn about user behavior on the site, and to gather demographic information about our user base as a whole. VitalScan ® may use this information in our marketing and advertising SOFTWARE.
In some of our email messages, we use a “click-through URL” linked to content on the VitalScan ® website. When customers click one of these URLs, they pass through a separate web server before arriving at the destination page on our website. We track this click-through data to help us determine interest in particular topics and measure the effectiveness of our customer communications. If you prefer not to be tracked in this way, you should not click text or graphic links in the email messages.
Pixel tags enable us to send email messages in a format customers can read, and they tell us whether mail has been opened. We may use this information to reduce or eliminate messages sent to customers.
Disclosure to Third Parties
At times VitalScan ® may make certain personal information available to strategic partners that work with VitalScan ® to provide products and SOFTWARE, or that help VitalScan ® market to customers. For example, when you purchase and activate your SOFTWARE you authorize VitalScan ® to exchange the information you provide during the activation process to carry out SOFTWARE REGISTRATION PROCESS. If you are approved for SOFTWARE, your USER PROFILE will be governed by VitalScan ® and its respective privacy policies. Personal information will only be shared by VitalScan ® to provide or improve our products, SOFTWARE and advertising; it will not be shared with third parties for their marketing purposes.
VitalScan ® shares personal information with companies who provide SOFTWARE such as information processing, extending credit, fulfilling customer orders, delivering products to you, managing and enhancing customer data, providing customer SOFTWARE, assessing your interest in our products and SOFTWARE, and conducting customer research or satisfaction surveys. These companies are obligated to protect your information and may be located wherever VitalScan ® operates.
It may be necessary - by law, legal process, litigation, and/or requests from public and governmental authorities within or outside your country of residence - for VitalScan ® to disclose your personal information. We may also disclose information about you if we determine that for purposes of national security, law enforcement, or other issues of public importance, disclosure is necessary or appropriate.
We may also disclose information about you if we determine that disclosure is reasonably necessary to enforce our terms and conditions or protect our operations or users. Additionally, in the event of a reorganization, merger, or sale we may transfer any and all personal information we collect to the relevant third party.
Protection of Personal Information
VitalScan ® takes precautions — including administrative, technical, and physical measures — to safeguard your personal information against loss, theft, and misuse, as well as against unauthorized access, disclosure, alteration, and destruction.
VitalScan ® SOFTWARE uses Secure Sockets Layer (SSL) encryption on all web pages where personal information is collected.
When you use some VitalScan ® products, SOFTWARE, or applications or post on an VitalScan ® forum, chat room, or social networking site, the personal information you share is visible to other users and can be read, collected, or used by them. You are responsible for the personal information you choose to submit in these instances. For example, if you list your name and email address in a forum posting, that information is public. Please take care when using these features.
Integrity and Retention of Personal Information
Access to Personal Information
We make good faith efforts to provide you with access to your data so you can request that we correct the data if it is inaccurate or delete the data if VitalScan ® is not required to retain it by law or for legitimate business purposes. We may decline to process requests that are unreasonably repetitive, require disproportionate technical effort, jeopardize the privacy of others, are extremely impractical, or for which access is not otherwise required by local law.
To provide location-based SOFTWARE on VitalScan ® products, VitalScan ® and our partners and licensees may collect, use, and share precise location data, including the real-time geographic location of your VitalScan ® computer or device. This location data is collected anonymously in a form that does not personally identify you and is used by VitalScan ® and our partners and licensees to provide and improve location-based products and SOFTWARE.
Third-Party Sites and SOFTWARE
VitalScan ® websites, products, applications, and SOFTWARE may contain links to third-party websites, products, and SOFTWARE. Our products and SOFTWARE may also use or offer products or SOFTWARE from third parties. Information collected by third parties, which may include such things as location data or contact details, is governed by their privacy practices. We encourage you to learn about the privacy practices of those third parties.
Our Companywide Commitment to Your Privacy
To make sure your personal information is secure, we communicate our privacy and security guidelines to
VitalScan ® employees and strictly enforce privacy safeguards within the company.