You (the “User”) should carefully read the following terms of use (with the corresponding conditions and disclaimers) (this “Agreement”): (1) before using the product accompanying this Agreement (the “Tablet”), which Tablet comes with preinstalled copyrighted proprietary software (the “Software”), or (2) before downloading the Software onto a computer or mobile device (together with the Tablet, the “Hardware”). The Software and the Hardware are designed to be used in conjunction with one or more “Medical Devices”[1] (defined below) for the purpose of obtaining medical care from a Provider (defined below).
BY USING THE TABLET, SOFTWARE, MEDICAL DEVICES, OR SERVICES YOU ARE CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO THIS AGREEMENT.
IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, PLEASE PRESS THE BUTTON THAT INDICATES “I DO NOT ACCEPT THE TERMS”, REFRAIN FROM ANY USE OF THE TABLET, MEDICAL DEVICES OR THE SOFTWARE AND IMMEDIATELY RETURN THE TABLET (IF APPLICABLE) TO GTS. OTHERWISE YOU MAY PROCEED TO PRESS THE BUTTON THAT INDICATES “I ACCEPT THE TERMS”.
INTEGRATED TELEHEALTH SOLUTIONS, INC., a Florida corporation dba GLOBAL TELEHEALTH SERVICES (“GTS”) welcomes you. The following are the Terms of Use (the "Agreement") that govern the use of the Tablet and the Software. GTS products and Services (defined and explained below) are not sold; rather, GTS provides you with temporary access to the Tablet and/or the Software for the purposes set forth above. Your temporary use of the services provided by GTS through the Tablet and/or the Software (the “Service” or “Services”) are subject to the terms and conditions found herein this Agreement, which Agreement constitutes a legally binding agreement made by and between GTS and you regarding your temporary use of the Tablet, Medical Devices or the Software. Please read this Agreement carefully, including the disclaimer and explanation of the Services immediately following this paragraph.
DISCLAIMER AND EXPLANATION OF THE SERVICES
GTS IS A SUPPORT COMPANY AND IS NOT ENGAGED IN THE PRACTICE OF MEDICINE. THE ONLY SERVICES THAT GTS PROVIDES IS TO MONITOR AND TRANSMIT INFORMATION THROUGH THE PROPER USAGE OF THE HARDWARE AND MEDICAL DEVICES. NO INFORMATION TRANSMITTED BY GTS IS TO BE INTENDED OR INTERPRETED AS MEDICAL ADVICE OR A SUBSTITUTE FOR MEDICAL ADVICE, A MEDICAL CONSULTATION OR ANY OTHER MATTER WHATSOEVER THAT WOULD CONSTITUTE THE PRACTICE OF MEDICINE. GTS IS NOT A MEDICAL PROVIDER NOR IS IT A MEDICAL FACILITY AND DOES NOT PROVIDE MEDICAL SERVICES OR MEDICAL ADVICE, WHETHER BY AND THROUGH ITS SERVICES, THE HARDWARE, THE MEDICAL DEVICES, THE SOFTWARE OR OTHERWISE.
THE ONLY SERVICE GTS PROVIDES IS TO DOCUMENT YOUR CALL AND TO PROVIDE A TRANSMISSION REPORT, SIGNAL, INFORMATION AND/OR ALERT TO YOUR DESIGNATED MEDICAL PROVIDER, MEDICAL PROFESSIONAL OR DESIGNEE (YOUR “PROVIDER”). GTS DOES NOT, AT THE TIME OF THE CALL OR THEREAFTER, INTERPRET, FOLLOW-UP, EXECUTE, ACT UPON OR INTEREVENE IN ANY WAY IN REGARD TO ANY ALERT, INFORMATION, REPORT OR SIGNAL GIVEN BY OR THROUGH THE HARDWARE OR THE MEDICAL DEVICES. GTS WILL NOT READ, AND WILL NOT HAVE ANY KNOWLEDGE OF THE INFORMATION TRANSMITTED, THE REPERCUSSIONS OF ANY INFORMATION TRANSMITTED OR THE URGENCY OF WHAT IS TRANSMITTED. IT IS UP TO YOU AND YOUR PROVIDER TO INSURE PROPER TRANSMITTAL AND RECEPTION OF THE INFORMATION PROVIDED THROUGH THE HARDWARE OR MEDICAL DEVICES AND THEREAFTER TO ACT UPON THAT INFORMATION BASED SOLELY ON THE MEDICAL ADVICE OF YOUR PROVIDER.
DO NOT RELY SOLELY ON THE HARDWARE, MEDICAL DEVICES, OR THE SOFTWARE - Always seek the advice of a physician or other medical professional with any questions regarding personal health or medical conditions. Never disregard, avoid or delay in obtaining medical advice from your Provider. If you have or suspect that you have a medical problem or condition, please contact a qualified medical professional (such as your Provider) immediately. If you are in the United States and are experiencing a medical emergency, immediately call 911 or call for emergency medical help on the nearest telephone.
- TERMS OF USE.
1.1 By using the Hardware, Medical Devices, or Software in any manner, the User agrees to indemnify and hold harmless GTS for any misuse, misrepresentations, misconfiguration, failure to or errors in transmittal, as well as for the use, inputting, storing, retrieving, or displaying any personal or non-personal information into the Hardware, Medical Devices, or the Software, other than for its intended purpose.
1.2 User agrees to indemnify and hold harmless GTS for any damage, harm, malfunctions or defects of any type that may be caused by or as a direct or indirect result of the usage of the Hardware, Medical Devices, or the Software.
- LICENSE AND INTELLECTUAL PROPERTY.
2.1 License. Subject to User’s compliance with and the terms and conditions of this Agreement, GTS grants User a non-exclusive, revocable license to make personal, non-commercial use of the Tablet and the following GTS copyrighted and trademarked materials for a period of time ending upon your Provider’s determination that you no longer require the use of the Hardware and the Software or by GTS and/or User by the methods described in this Agreement: (i) the software loaded onto your Hardware, as may be updated, modified, added to or upgraded from time to time (the "Software"); and (ii) any printed or electronic documentation for such Software (the "Documentation"), all solely for the purposes expressively listed in this Agreement and in the Documentation.
2.2 Proprietary and Third-Party Software and Marks. Certain portions of the Software may be subject to separate licensing terms. By using your Hardware, you agree that you have read, understand and agree to be bound by such terms. Such portions of the Software are also subject to the copyright notices contained in such separate terms.
2.3 Reservation of Rights. The use of the Tablet by you (if applicable) does not transfer to you any right, title or interest in or to that Tablet or any of our intellectual property rights or those of our suppliers or licensors. For example, all Software is either owned by us or is the property of our suppliers and/or licensors. The Software has been licensed, not sold, to you for the limited purpose of sending your information to a health care provider until such time as the Provider shall determine. All Trademarks, licenses, software and source codes are property of GTS, or its subsidiaries, suppliers or licensors or other third parties. All Rights Reserved. Other than the limited license granted to you in this Agreement, you have no other right, title or interest in or to the Tablet (if applicable), Services, Software or Documentation. Any rights not expressly granted to you are fully reserved by us and our suppliers or licensors, as applicable, and no such rights are conferred by estoppel, operation of law, implication or otherwise.
2.4 Restrictions. Except as may be expressly permitted by this Agreement, you may not, directly or indirectly: (i) use the Software on any device other than your Hardware; (ii) use, download, copy, modify, distribute copies of, sell, license, sublicense, display or transmit the Software; (iii) disassemble, reverse engineer, emulate, decompile, tamper with, create derivative works from or otherwise attempt to discover the source code of the Software or the technology used to provide the Service or attempt to reduce the Software to human-readable form; (iv) bypass, modify, defeat, tamper with or circumvent any of the security features of your Tablet or the Service, including, without limitation, altering any digital rights management functionality of your Tablet or the Software; or (v) share access to the Software or Service, whether through a network, resale or other means.
2.5 Any drawings, data, designs, or other technical information supplied by GTS to you and/or a medical professional in connection with the Tablet and/or Software shall remain the property of GTS and be held in confidence by you and/or any medical professional (including the Provider). Such information shall not be reproduced or disclosed to others without GTS’ prior written consent.
2.6 You agree not to transfer or assign the Tablet, Software, Documentation, and/or this Agreement to another party whatsoever without the prior written consent of GTS.
2.7. You acknowledge that any rights granted to you constitute a license and not a transfer of title. You do not obtain any ownership, right, title, or other legal or economic interest in GTS copyrighted materials or trademarks by using these materials.
III. PRIVACY AND SECURITY.
3.1 Privacy. GTS does not currently collect any information from you and GTS will never use, collect, publish or share information that identifies you, including but not limited to your name, address, social security number, business name or address, or email address. However, in the event GTS determines that it will begin to collect information, you agree that GTS may use, collect, publish and share information from you that will not identify you and which may be used for research, statistical data compilation, improving the use of the Tablet (if applicable) and Services, diagnosing problems, improving the copyrighted proprietary software and providing information to you. This may include your age, job or industry, medical condition, the amount and times you use the Tablet, and how you interact and use the Tablet, Software and the Service provided.
3.2 Sharing. You also agree that GTS may also share information that will not identify you: (a) When we are required to provide information in response to a subpoena, court order, or other applicable law or legal process; or (b) When we have a good faith belief that the disclosure is necessary to prevent or respond to fraud, defend our websites or applications against attacks, or protect the property and safety of GTS, our customers and users, or the public. If we merge with or are acquired by another company or all or a substantial portion of our assets are acquired by another company, your information (that does not identify you) will likely be one of the assets that is transferred as part of such acquisition.
3.3 Security. We understand that the security of your personal information is important. We provide reasonable administrative, technical, and physical security controls to protect your personal information. However, despite our efforts, no security controls are 100% effective and GTS cannot ensure or warrant the security of your personal information.
3.4 Information. Both GTS and companies with which we contract with may use your information that does not identify you in order to provide you with information and offers.
- INDEMNIFICATION.
4.1 You are solely responsible for any losses, damages, claims, suits and actions arising in any way from your use of the Hardware, Medical Devices, Services, Software, or Documentation (collectively "Claims"). You agree to hold GTS harmless for any actions, causes or legal implications or remedies, whether based on a theory of liability (including tort, negligence and strict liability) or otherwise caused by or related to the operation, use, possession, responsiveness, attention, negligence and liability because or your or your prescribing medical professional’s use of the Hardware, Medical Devices, the Software, Documentation or Services, or for any action or inaction or any other matter caused by you or your prescribing medical professional and agree to defend and indemnify GTS against any claim, loss or damages as a result thereof incurred by GTS, including the payment to GTS for its reasonable attorneys' fees, expenses and costs incurred in enforcing any provisions of these Terms, whether or not litigation is instituted, and if instituted, at pre-trial, trial and appellate levels.
4.2 You agree to hold harmless GTS for any inadvertent disclosure or misuse of personal information that identifies you, either given or obtained through the use of the Tablet, Medical Devices, Documentation or Software or the provision of Services.
- LIMITED WARRANTY.
5.1 GTS HEREBY DISCLAIMS ALL WARRANTIES, OF ANY TYPE, KIND, NATURE OR DESCRIPTION WHATSOEVER AND ANY SOFTWARE, MEDICAL DEVICES, SERVICES, DOCUMENTATION, OR THE TABLET ARE PROVIDED ON AN "AS IS" AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTY WHATSOEVER, WHETHER EXPRESS OR IMPLIED. GTS SPECIFICALLY DISCLAIMS ALL EXPRESS, STATUTORY, OR IMPLIED WARRANTIES RELATING TO THE SERVICES, MEDICAL DEVICES, DOCUMENTATION, SOFTWARE, OR THE TABLET, INCLUDING BUT NOT LIMITED TO THOSE CONCERNING MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OF ANY THIRD-PARTY RIGHTS REGARDING THE MEDICAL DEVICES, DOCUMENTATION, SOFTWARE OR ANY INFORMATION USED IN AND CONTAINED WITHIN THE TABLET, MEDICAL DEVICES, AND/OR ITS SERVICES.
5.2 GTS SHALL NOT BE LIABLE TO YOU OR ANY OTHER PARTY FOR ANY LOSS OF REVENUE OR PROFIT OR FOR INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR OTHER SIMILAR DAMAGES, WHETHER BASED ON TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE OR STRICT LIABILITY), CONTRACT, OR OTHER LEGAL OR EQUITABLE GROUNDS EVEN IF GTS HAS BEEN ADVISED OR HAD REASON TO KNOW OF THE POSSIBILITY OF SUCH DAMAGES.
5.3 You have no assurance and GTS makes no assurances, representations or warranties, as to any information, use, configuration, defects, representations and/or misuse either by your medical professional or the Tablet’s manufacturer or the manufacturer of any Medical Devices, to be 100% reliable, accurate, timely, useful or complete.
5.4 Under no circumstance will GTS be liable or responsible to you and/or your medical professional for any errors or omissions of any information contained, inputted, displayed or used in the configuration, handling or transmittal of the Tablet, Medical Devices, or Software.
5.5 When using GTS’ Tablet (if applicable), Medical Devices, Software and/ or its Services, you and/or your medical professional must do so at your own risk.
5.6 Under no circumstance will GTS be liable to you for your and/or your medical professional’s use, handling, information, misuse, transmittal or any other matter whatsoever through the use of the Tablet, Medical Devices or the Software. You hereby knowingly and voluntarily release GTS from any claim relating to any loss or damage that might be directly or indirectly suffered (including, without limitation, incidental, special, consequential, or punitive damages, lost profits, medical expenses and damages resulting from lost data, decimation of personal information, malfunctions, physician negligence or any other matter) as a result of: (a) your and/or your medical professional’s use of the Tablet, Medical Devices or Software or any Service provided by GTS, (b) your and/or your medical professional’s inability to properly use the Tablet, Medical Devices, Software or any Services, irrespective of the cause of that inability, (c) any delay in or interruption of your use of the Tablet, Medical Devices, Software or any Service or delay or interruption in your medical professional’s receipt of the information, irrespective of the cause of that delay or interruption, (d) any corruption of any data that is transmitted into the Tablet or other Hardware either, for you, by you, accidently, or by any other method whatsoever, (e) your reliance upon any information presented on the Tablet or other Hardware, (f) any intentional or unintentional disclosure or publication of any of your information transmitted by you or in connection with any Services, or (g) any other act, omission, matter or thing whatsoever having to do with the Tablet, Medical Devices, Software or any service thereof by GTS.
- TERMINATION OF THE SERVICE.
6.1 By GTS. If GTS has a reasonable basis to believe that you and/or a Provider have violated any term or condition of this Agreement or may cause us, our suppliers or licensors, or another user of the Medical Devices, Software, or Services financial loss or legal liability, we may, in our sole and absolute discretion, issue a warning, temporarily suspend, indefinitely suspend or without notice terminate any of your and/or medical professional’s rights to use or access all or any part of the Tablet, Medical Devices, Software and Services.
6.2 By User. User may terminate the use of the Tablet, Software and Service at any time by ceasing all use of the Tablet, Software and Service and returning the Tablet to either the Provider or GTS.
6.3 By Medical Professional. The medical professional may terminate the User(s) use of the Tablet and/or Services at their discretion if unnecessary for User to continue use of the Tablet, Software and Services
6.4 Effect of Termination. Following termination or suspension, you will not be permitted continued use of the Software and GTS will not perform any of the Services enumerated within this Agreement including but not limited to documenting your call and providing a transmission report, signal, information and/or alert to your designated medical provider, medical professional or designee.
6.5 If you and/or your Provider’s access to the Tablet and Service is terminated or suspended, GTS reserves the right to exercise whatever legal means it deems in its sole and absolute discretion are necessary to prevent unauthorized access to the Tablet, Software and Service. You, medical professional and GTS each acknowledge and agree that: (i) the services GTS renders under this Agreement (including the Services) are special and unique and cannot be replaced by you and/or the Provider; (ii) the event of a breach by you and/or the Provider of the provisions enumerated within this Agreement will cause GTS irreparable harm; and (iii) monetary damages in an action at law would not provide an adequate remedy in the event of a breach. Accordingly, you agree that, in addition to any other remedies (legal, equitable or otherwise) available to GTS, GTS may seek and obtain injunctive relief against the breach or threatened breach of the provisions in this Agreement as well as all other rights and remedies available at law and equity including, without limitation, the right to be indemnified by you for all claims, damages, actions, suits whatsoever for a breach of the provisions of this Agreement and GTS’ reasonable attorneys' fees, expenses and costs incurred in enforcing any provisions of this Agreement, whether or not litigation is instituted, and if instituted, at pre-trial, trial and appellate levels.
VII. CHANGES TO SERVICE; AMENDMENT.
7.1 GTS may, in its sole and absolute discretion, change, modify, suspend, make improvements to or discontinue any aspect of the Tablet, Medical Devices, Software (and related Documentation) and/or Service, temporarily or permanently, at any time without notice to you and/or medical professional, and we will not be liable for doing so.
VIII. FORCE MAJEURE.
8.1 GTS will not be liable for failing to perform because of any event beyond GTS’ reasonable control, including, without limitation, fire, an act of terrorism, natural disaster or war, labor disturbance, an internet outage or interruption of service, a communications outage, failure by a service provider, medical professional or any other third party’s non-performance.
VIII. GOVERNING LAW.
9.1 The laws of the State of Ohio shall govern the construction of this Agreement without giving effect to any principle that would allow for the application of the law of any other State and you agree to be subject to personal jurisdiction in the circuit courts located within Summit County, Ohio and waive any objection to the laying of venue of any litigation in said jurisdiction.
- SEVERABILITY.
10.1 In the event any provision of this Agreement is found to be invalid, illegal or unenforceable, the validity, legality and enforceability of any of the remaining provisions shall not in any way be affected or impaired.
- ACKNOWLEDGEMENT.
11.1 By using any part of this Software, the Tablet, Medical Devices, or the Services, you indicate that you have read this Agreement, understand it, and agree to be bound by its terms and conditions.
XII. WAIVER OF JURY TRIAL.
12.1 THE PARTIES HERETO WAIVE ALL RIGHTS TO A JURY TRIAL IN ANY LITIGATION ARISING FROM OR RELATED IN ANY WAY TO THE AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED HEREBY.
[1] A Medical Device is defined within the Food Drug & Cosmetic Act as "...an instrument, apparatus, implement, machine, contrivance, implant, in vitro reagent, or other similar or related article, including a component part, or accessory which is: recognized in the official National Formulary, or the United States Pharmacopoeia, or any supplement to them, intended for use in the diagnosis of disease or other conditions, or in the cure, mitigation, treatment, or prevention of disease, in man or other animals, or intended to affect the structure or any function of the body of man or other animals, and which does not achieve any of it's primary intended purposes through chemical action within or on the body of man or other animals and which is not dependent upon being metabolized for the achievement of any of its primary intended purposes."