CARDIOCOMM SOLUTIONS, INC. TERMS AND CONDITIONS



Last Revised: 24/4/2019

The GEMS™ Home, GEMS™ Home Flex and GEMS™ Mobile ECG application and SMART Monitoring ECG reading web service (hereafter, the “Application”) is intended to only to accept electrocardiograms (ECG data) from CardioComm Solutions, Inc. (“CCS”) approved ECG recording devices, to store, to display and print stored ECG data, and to transmit, receive back, save, display and print ECG data that has been optionally uploaded for ECG review through a CCS managed ECG reading service.

The user of the application is responsible for ECG data recorded and stored by the Application. The Application is not intended to diagnose any heart condition or automatically alert healthcare professionals or users to potentially serious heart conditions or abnormal arrhythmias. The Application does not automatically review, monitor, evaluate or analyze any information derived from the ECG data. It is your responsibility to present your ECG data to a physician for proper analysis and diagnosis.

Upon confirmation of acceptance of these Terms and Conditions or by otherwise accessing or using the Application, you (“You”) understand and agree to the above description of the Application and agree as follows:


1. REGISTRATION; TERM OF REGISTRATION


1.1. Registration through the Application

You must be a registered user with CCS in order to use the Application. You will be required to register through the Application. By submitting the information requested in the Application, You may access and use the Application to upload, view, share with your healthcare professional and use, certain data pertaining to You as made available by CCS. You may not access or use the Application for any other purpose.

1.2. Term of Your Registration

The term (“Term”) of Your registration will commence as of the date You complete Your registration through the Application (“Registration Date”) and, unless earlier terminated in accordance with these Terms and Conditions, will continue in accordance with these Terms and Conditions. Notwithstanding the foregoing, Your registration may automatically expire following any period of inactivity associated with Your account in excess of twelve (12) consecutive months.

1.3. Notices

All notices from CCS intended for receipt by You shall be deemed delivered and effective when sent to the email address provided by You during the registration process or when posted to and made available to You on the Application or the CCS website at www.theheartcheck.com (the “Website”) (in either case, “Notice”). If You change the email address provided in connection with Your registration to access and use the Application, You must update Your address in the Application.


2. MODIFICATIONS TO THE APPLICATION / TERMS AND CONDITIONS


2.1. Modifications to the Application / Terms and Conditions

You acknowledge and agree that CCS may, in its sole discretion, modify the Application and these Terms and Conditions (including any instructions, policies or guidelines referenced herein) at any time and in any manner. Upon modification of these Terms and Conditions, CCS will give You Notice as provided in paragraph 1.3 above, and Your continued use of the Service after such modification will be deemed acceptance of the modification. All such modifications shall be binding upon You when made.  Your sole and exclusive remedy if You do not agree with any modification to the Application or to these Terms and Conditions is to cancel Your registration as provided in Section 8.2 below.  You may not amend or modify the Application, Website or these Terms and Conditions under any circumstances.

3. REPRESENTATIONS, COVENANTS AND WARRANTIES


3.1. Representations, Covenants and Warranties of Registrant

You represent, covenant and warrant to CCS that (1) You will use the Application as intended; (2) these Terms and Conditions have been executed and delivered by You and constitute a valid and binding agreement with You, enforceable against You in accordance with their terms; (3) if you are using the Application or the Website on behalf of another entity, you are an authorized representative of the entity and have the authority and agree to bind the entity to these Terms and Conditions; (4) You will not access or use the Application or Website except as expressly permitted by these Terms and Conditions and any additional instructions, guidelines or policies issued by CCS, including those posted in the Application or on the Website; (5) You will access and use the Application and Website in full compliance with applicable Law (as defined in Section 4.1); and (6) all of the information, data and other materials provided by You in support of Your online registration are accurate and truthful in all respects.

3.2. Disclaimer

YOU EXPRESSLY UNDERSTAND AND AGREE THAT: (A) YOUR USE OF THE WEBSITE AND APPLICATION IS AT YOUR SOLE RISK, AND THE WEBSITE AND APPLICATION ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THESE TERMS AND CONDITIONS, CCS MAKES NO REPRESENTATIONS, COVENANTS OR WARRANTIES AND OFFERS NO OTHER CONDITIONS, EXPRESS OR IMPLIED, REGARDING ANY MATTER, INCLUDING (1) THE MERCHANTABILITY, SUITABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, NON-INFRINGEMENT OR RESULTS TO BE DERIVED FROM THE USE OF THE APPLICATION, WEBSITE OR ANY DATA SERVICE, SOFTWARE, HARDWARE, DELIVERABLE, WORK PRODUCT OR OTHER MATERIALS RELATED TO THE APPLICATION OR WEBSITE, OR THE AVAILABILITY OF ANY OF THE FOREGOING; OR (2) WHETHER THE INFORMATION AVAILABLE ON OR TRANSMITTED BY THE APPLICATION OR WEBSITE IS TRUE, COMPLETE OR ACCURATE. YOU SPECIFICALLY ACKNOWLEDGE AND AGREE THAT CCS IS NOT RESPONSIBLE FOR ANY HEALTHCARE OR RELATED DECISIONS MADE BY YOU OR YOUR HEALTHCARE PROFESSIONAL BASED UPON DATA COLLECTED, TRANSMITTED OR DISPLAYED BY OR ON THE APPLICATION OR WEBSITE, WHETHER SUCH DATA IS ACCURATE OR INACCURATE. FURTHER, CCS DOES NOT REPRESENT, COVENANT OR WARRANT THAT ACCESS TO OR SERVICES PROVIDED BY THE APPLICATION OR WEBSITE WILL BE UNINTERRUPTED OR ERROR-FREE. YOU ACKNOWLEDGE AND AGREE THAT THERE ARE RISKS INHERENT TO TRANSMITTING INFORMATION OVER AND STORING INFORMATION ON THE INTERNET AND THAT CCS IS NOT RESPONSIBLE FOR ANY LOSSES OF YOUR DATA, CONFIDENTIALITY OR PRIVACY IN CONNECTION THEREWITH.


4. COMPLIANCE


4.1. Generally

You shall use the Application and Website in strict compliance with (1) these Terms and Conditions; (2) any additional instructions, guidelines or policies issued by CCS, including those posted within the Application or on the Website; and (3) all applicable laws, rules and regulations (collectively, “Laws”).

4.2 Use Prohibitions

You agree to use the Website and Application only for their intended purpose.  You must use the Website and Application in compliance with all privacy, data protection, intellectual property, and other applicable Laws.  The following uses of the Website and Application are prohibited.  You may not:

  1. attempt to interfere with, harm, reverse engineer, steal from, or gain unauthorized access to the Website and Application, user accounts, or the technology and equipment supporting the Website and Application;
  2. frame or link to the Website and Application without permission;
  3. use data mining, robots, or other data gathering devices on or through the Website and Application, unless specifically allowed by these Terms and Conditions;
  4. post incomplete, false, or misleading information, impersonate another person, or misrepresent your affiliation with a person or entity;
  5. disclose personal information about another person or harass, abuse, or post objectionable material;
  6. sell, transfer, or assign any of your rights to use the Website and Application to a third party without our express written consent;
  7. post advertising or marketing links or content, except as specifically allowed by these Terms and Conditions;
  8. use the Website and Application in an illegal way or to commit an illegal act in relation to the Website and Application or that otherwise results in fines, penalties, and other liability to CCS or others; or
  9. access the Website and Application from a jurisdiction where it is illegal or unauthorized.


5. CONTRACTORS


5.1. Use of Contractors

CCS may engage one or more third parties (including CCS’s affiliates) to perform, or support the performance of, all or any portion of the Application or the Website, such as the ECG analysis service. Any engagement with any third party will be conducted in accordance with the CCS Privacy Notice described in Section 7.1.


6. INTELLECTUAL PROPERTY RIGHTS; RESTRICTIONS ON USE


6.1. Ownership of the Application and Related Data

As between CCS and You (collectively, “Parties”), CCS owns and will retain ownership of all rights, title and interest in and to the Application and the Website, including (1) all content displayed on the Application or the Website, to the extent such content is developed by CCS or its third party licensors, including any derivative works of the Application or Website and any such content; and (2) any intellectual property or other proprietary rights comprising any of the foregoing (collectively, “CCS IP”). Neither these Terms and Conditions nor any disclosure made hereunder grant any license to You under any CCS IP, other than Your limited right to access and use the Application and Website as expressly permitted in these Terms and Conditions.

By creating, posting, or sharing data and images on or through the Website or Application (“Your User Content”), and subject to the Privacy Notice, you grant CCS a perpetual, irrevocable, world-wide, non-exclusive, sub-licensable, royalty-free, fully paid up, transferable license to reproduce, distribute, publicly display, publicly perform, create derivative works of, and otherwise use and modify Your User Content for the purposes of providing and enhancing the Website, Application, or other CCS products and services.  We may also create anonymized data and images from Your User Content, and such data and images will no longer be Your User Content.  You irrevocably and forever waive any rights you may have regarding Your User Content being altered or manipulated in any way that may be objectionable to you.  CCS reserves the right to refuse to accept, post, display, or transmit any of Your User Content in its sole discretion.

You represent and warrant that: (i) you own Your User Content posted by you on or through the Website or Application or otherwise have the right to grant the license set forth in these Terms and Conditions, (ii) the posting and use of Your User Content on or through the Website or Application does not violate the privacy rights, publicity rights, copyrights, contract rights, intellectual property rights, or any other rights of any person, and (iii) the posting of Your User Content on the Website or Application does not result in a breach of contract between you and a third party. You agree to pay for all royalties, fees, and any other monies owing any person by reason of content you post on or through the Website or Application. 

CCS may (but is not obligated to) review and remove Your User Content at any time for any reason, including for activity which, in its sole judgment: violates these Terms and Conditions; violates applicable Laws, rules, or regulations; is abusive, disruptive, offensive or illegal; or violates the rights of, or harms or threatens the safety of, users of the Website or Application.

6.2. Use of the Application

You may use the Application and the Website, including any data presented on or by the Application or Website for You, or otherwise hosted or stored by CCS for You, only on Your own behalf and for lawful and appropriate purposes. You shall not use the Application, the Website or any of the data presented on or by the Application or Website, or otherwise hosted or stored by CCS, for any commercial purpose other than as expressly permitted herein. As provided in Section 8 below, CCS may suspend or terminate Your registration if CCS becomes aware or suspects that Your use of the Application or Website may be in violation of these Terms and Conditions.  You will notify CCS immediately upon any suspected unauthorized use of the Application or Website, whether by You or a third party, or any suspected loss of or suspected unauthorized access to passwords or other log-in information used by You to access the Application or Website (“Login Credentials”). You shall be solely responsible for maintaining the confidence and security of any Login Credentials, and CCS shall bear no liability or other responsibility associated therewith.

6.3. The CCS and SMART Monitoring ECG Reading Findings and Reports

The SMART Monitoring ECG reading service (“ECG Service”) is a third party resource that is partnered with CCS to import, view, and interpret Your data. The ECG Service then reports back to the CCS Application any findings in Your data. To make the ECG Service available to You, upon first use of the Application, You agree to enrollment in the service. You may then use the optional ECG Service at any time. You will only be charged when and if you use one of the ECG Services offered. CCS reserves the right to change the service providers or discontinue one or more of the service product offerings.

You may also use the Application to generate reports using Your data.

Any reports provided by or through the Application or the ECG Service (the “Report” or “Reports”) You select do not suggest a diagnosis. Any Report is intended as information for You and to be used as a tool for Your physician to provide proper diagnosis and treatment taking into account Your complete medical history. Analysis and diagnosis based on Your data can only be accomplished by Your physician. It is Your responsibility to present Your medical data to Your physician for proper analysis and diagnosis.
You have the option to obtain an ECG recording from Your device at any time. Your ECG recordings are subject to multiple factors related to your health and activities. CCS and the Reading Service make no guarantees of the accuracy or clinical significance of the interpretation of Your data. Please be aware that Your physician may disagree with the interpretation of Your data. You explicitly consent to sharing data with the third party ECG Service according to terms described in the CCS Privacy Notice located at http://theheartcheck.com/privacy.html.

Due to certain restrictions, Your location may restrict Your ability to use the ECG Service. It is your responsibility to ensure the ECG Service is legal according to Your local laws.

6.4. Personalized Surveillance Service

Under some circumstances, the ECG reports generated through the optional use of the ECG Service may present You with notifications or suggested actions based on a review of the information and ECG data You have provided such as, ‘symptoms’ or ‘activities’. Those notifications or suggested actions, or lack thereof, are not an indication of your health status, nor are those notifications or suggested actions intended to replace the opinion of Your physician. It is Your responsibility to present Your data to Your physician, and to discuss with Your physician what the proper course of action is based on Your medical history.
You agree that CCS may send push notifications to You through the Application. However, if You change the settings of the device You have loaded the Application onto to not accept notifications from CCS, You may not receive these notifications.


7. PRIVACY NOTICE


7.1. Privacy Notice

You explicitly consent to the collection, hosting, use, disclosure and other processing or handling of information (including sharing data with third party providers) as described in the CCS Privacy Notice located at http://theheartcheck.com/privacy.html, as such notice may be amended by CCS in its sole discretion from time to time. Upon modification of the Privacy Notice, CCS will give You Notice (as provided in Section 1.3 above) of such modification.  Your continued use of the Application and Website constitutes Your acceptance of any such modification.


8. SUSPENSION AND TERMINATION


8.1 Suspension

CCS may suspend or limit Your access to the Application or the Website if CCS, in its sole discretion, becomes aware or suspects that You are in violation of, or reasonably likely to be in violation of, these Terms and Conditions or any additional instructions, guidelines or policies issued by CCS, including those posted in the Application or on the Website.

8.2. Non-Renewal

You may cancel Your registration at any time in accordance with the procedures described on the Website.

8.3. Termination by CCS

CCS may terminate Your registration, including Your right to access and use the Website or the Application, in whole or in part, as follows:
For Cause. Immediately (1) in order to comply with applicable Law or instructions from any governmental agency or authority; (2) if CCS, in its sole discretion, suspects that You are using the Application or Website in a manner not permitted by these Terms and Conditions; or (3) upon any breach of these Terms and Conditions by You.
For Convenience. For convenience, upon Notice by CCS to You.

8.4. Effect of Termination

Upon the expiration or earlier termination of Your registration or rights to use the Application or Website, for any reason (i) You will no longer be authorized to access or use the Application or Website or otherwise use any of the features or services offered by or through the Application or Website; (ii) CCS may delete any data associated with You or Your account; and (iii) all rights and obligations of the Parties under these Terms and Conditions shall terminate, except those rights and obligations under those sections specifically designated in Section 8.5.

8.5. Survival of Selected Provisions

Notwithstanding the expiration or earlier termination of Your registration or rights to use the Application or Website, the following sections of the Terms and Conditions shall survive any such expiration or termination: Sections 3.2, 6.1, 8.4, 8.5, 9, 10, 11 and 12.


9. LIABILITY

9.1. Limitation of Liability
To the maximum extent permitted by applicable Law, the CCS Group (as defined in section 10.1) shall not be liable to you for any direct, indirect, special, incidental, punitive or consequential damages arising out of or resulting from your use of the application or website, or based upon any breach of any express or implied warranty, breach of contract (including these terms and conditions and any additional instructions, guidelines or policies issued by CCS Group, including those posted in the application or on the website), negligence, tort or any other legal theory (collectively, the “excluded damages”). For the avoidance of doubt, the excluded damages also include without limitation, loss of savings or revenue; loss of profit; loss of use; loss of life or health, the claims of third parties; and any cost of any substitute equipment or services. If CCS cannot lawfully disclaim liability for any of the foregoing damages, then CCS group’s maximum liability to you is limited to the purchase price paid by you to CCS for the application or $100, whichever is greater. These limitations apply even if any other remedies available to you fail of their essential purpose. Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation may not apply to you.
The jurisdiction applicable to You may not allow the limitations of liability or damages set forth in these Terms and Conditions, in which case such limitations shall apply to You to the extent permitted in such jurisdiction.

9.2. Remedies

At its option, any member of the CCS Group may seek all remedies available to it under law and in equity, including injunctive relief in the form of specific performance to enforce these Terms and Conditions, including any additional instructions, guidelines or policies issued by CCS, including those posted in the Application or on the Website, and/or actions for damages.

9.3. Claims

No action arising out of, in connection with, or relating to these Terms and Conditions or the subject of these Terms and Conditions shall be brought by You more than one (1) year after the accrual of the cause of action. This period shall not be extended for any reason, except by the written consent of both parties. All statutes or provisions of law which would toll or otherwise affect the running of the period of limitation are hereby waived, and no such statute or provision of law shall operate to extend the period limited in this paragraph.


10. INDEMNITIES


10.1. Indemnity by You

You will indemnify and hold harmless CCS, its affiliates and their respective current, future or former officers, directors, partners, equity holders, employees, agents, contractors, and their successor or assigns (collectively, the “CCS Group”) on demand, from and against any and all fines, penalties, liabilities, losses and other damages of any kind whatsoever (including attorneys’ and experts’ fees), incurred by any of the members of the CCS Group, and, if directed by CCS, shall defend the CCS Group against (1) all claims that any information, data or other materials provided by You in connection with your use of the Application or Website or ECG Service (including Your application for registration to access and use the Application or Website) or these Terms and Conditions, or use thereof by any member of the CCS Group, infringes, misappropriates or otherwise violates any patent, trademark, copyright, trade secret or other intellectual property or proprietary right of a third party; (2) all claims arising from fraud committed by, or the intentional misconduct, criminal acts or gross negligence of, You; and (3) all claims otherwise arising due to a failure by You to comply with any term or condition of these Terms and Conditions, including any additional instructions, guidelines or policies issued by CCS, including those posted in the Application or on the Website.


11. DISPUTE RESOLUTION


11.1. Disputes

If a dispute arises under these Terms and Conditions between You and any member of the CCS Group, such dispute shall be resolved, at the filing party’s election, in either a small claims court or by final and binding arbitration administered by the Canadian Arbitration Association, under their rules for consumer arbitrations. All disputes will be handled solely between the named parties, and not on any representative, private attorney general, or class basis. ACCORDINGLY, YOU ACKNOWLEDGE THAT YOU WAIVE YOUR RIGHT TO ACCESS TO A COURT (OTHER THAN A SMALL CLAIMS COURT) OR JURY, TO THE EXTENT PERMITTED BY LAW. Notwithstanding any other provision of these Terms and Conditions, any member of the CCS Group may resort to court action for injunctive relief at any time if, in its good faith belief, the dispute resolution procedures described in this Section 11.1 would permit or cause irreparable injury to such member of the CCS Group or any third party claiming against a member of the CCS Group, due to delay arising out of such dispute resolution procedures.

11.2. Governing Law

All rights and obligations of You or the CCS Group relating to these Terms and Conditions, including any additional instructions, guidelines or policies issued by CCS, including those posted in the Application or on the Website, shall be governed by and construed in accordance with the laws of the Province of Ontario and the parties hereby irrevocably attorn to the jurisdiction of the courts of the Province of Ontario


12. GENERAL


12.1. Entire Agreement, Amendments and Modifications

These Terms and Conditions and any additional instructions, guidelines or policies issued by CCS, including those posted in the Application or on the Website, constitute the entire agreement between You and CCS with regard to Your use of the Application and the Website, and all matters addressed herein, and all prior agreements, letters, proposals, discussions and other documents regarding the Application or the Website and the matters herein are superseded and merged into these Terms and Conditions.

12.2. Force Majeure

CCS will be excused from performance under these Terms and Conditions for any period that it is prevented from or delayed in performing any obligations pursuant to these Terms and Conditions, in whole or in part, as a result of a Force Majeure Event. For purposes of this Section 12.2, “Force Majeure Event” means an event or series of events caused by or resulting from any of the following: (1) weather conditions or other elements of nature or acts of God; (2) acts of war, acts of terrorism, insurrection, riots, civil disorders or rebellion; (3) quarantines or embargoes, (4) labor strikes; (4) telecommunications, network, computer, server or Internet downtime; (5) unauthorized access to CCS’s information technology systems by third parties; or (6) other causes beyond the reasonable control of CCS.

12.3. Severability

If any provision of these Terms and Conditions shall be held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby, and such provision shall be deemed to be restated to reflect the Parties’ original intentions as nearly as possible in accordance with applicable Law(s).

12.4. Assignment

You may not assign these Terms and Condition (or any rights, benefits or obligations hereunder) by operation of law or otherwise without the prior written consent of CCS, which may be withheld at CCS’s sole discretion. Any attempted assignment by You that does not comply with the terms of this Section 12.4 shall be null and void. CCS may assign these Terms and Conditions, in whole or in part, to any third party in its sole discretion.