DynamiCare Health Terms of Use

Last Updated: September 16, 2017

 

IF YOU ACCESS AND/OR USE THE DYNAMICARE HEALTH, INC SOFTWARE, MOBILE OR WEB-BASED APPLICATIONS ON WHICH IT RUNS OR ANY INCLUDED DOCUMENTATION (together the “Software”) YOU ACKNOWLEDGE THAT YOU HAVE READ THIS TERMS OF USE, UNDERSTAND IT, AND AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS (the “Agreement”), AND THIS WILL BE A LEGALLY BINDING AGREEMENT BETWEEN YOU AND DYNAMICARE HEALTH, INC (“DynamiCare”).  IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT YOU SHOULD REJECT THEM BY NOT INSTALLING AND NOT USING THE SOFTWARE.  References in this Agreement to “you” or “your” refer to both you and any and all persons or entities on whose behalf you act or who act on your behalf (if any).

 

This document is legally binding, so you should read it in its entirety.  Essentially, by using this app you agree to the following:

 

·         DynamiCare can collect data from you.  This includes answers to health-related questions and summarized information your phone provides, such as texting information.

·         We can summarize and de-identify the data we collect from you, so we can build a better and more helpful product.  You own your identifiable personal data, but we own the anonymized or de-identified version of it.

·         We can share the information we get from you with your healthcare provider to the extent they are granted access to your information or anyone else you’ve chosen to receive this information.

·         You understand and confirm that DynamiCare is not a licensed medical provider and does not provide medical care or emergency services.

·         The DynamiCare Health platform is designed to encourage choices which, as part of a healthy lifestyle, may help those recovering from substance addictions.  Substance tests included in the DynamiCare Health platform are intended to be used to discourage substance use and to help inform healthcare providers, and should not be used for any other purpose. The saliva and breath testing devices used with the DynamiCare Health platform provide only qualitative, preliminary results.

·         DynamiCare owns this app and you have a license to use it in accordance with this Terms of Use.

 

YOU AGREE THAT THE SOFTWARE IS NOT INTENDED TO BE USED FOR TREATMENT OF ANY MEDICAL CONDITION, MEDICAL EMERGENCIES, SELF-DIAGNOSIS OR MEDICAL ADVICE.  ALWAYS SEEK THE ADVICE OF YOUR PHYSICIAN OR OTHER QUALIFIED HEALTH PROVIDER REGARDING A MEDICAL CONDITION OR TREATMENT. YOU ACKNOWLEDGE AND AGREE THAT NOTHING CONTAINED HEREIN IS INTENDED OR INTERPRETED BY YOU TO CREATE A PHYSICIAN-PATIENT RELATIONSHIP BETWEEN YOU AND DYNAMICARE, ITS PARTNERS, AFFILIATES, AGENTS OR OTHER THIRD PARTIES THAT MAY APPEAR ON OR CONTRIBUTE CONTENT TO THE SOFTWARE. YOU AGREE NOT TO MAKE ANY HEALTH OR MEDICAL DECISIONS BASED IN WHOLE OR IN PART ON ANYTIHING CONTAINED IN THE SOFTWARE.

You hereby acknowledge that nothing contained in the Software shall constitute financial, investment, legal and/or other professional advice and that no professional relationship of any kind is created between you and DynamiCare. You hereby agree that you shall not make any financial, investment, legal and/or other decision based in whole or in part on anything contained in the Software.

 

1.      Grant of License.  Subject to the terms and conditions of this Agreement, DynamiCare hereby grants to you a personal, non-transferable, non-exclusive, revocable, limited license to install and use the Software on your mobile device for the Purposes (as defined below).  As used herein, the “Purposes” means the inputting of responses to surveys and/or participating in a study or program from a designated third-party (the “Institutional Client”) and/or tracking and analyzing your mobile interactions for purposes of monitoring, predicting, and/or reporting certain health-related factors to you and/or your doctor/healthcare provider.  DynamiCare may change or discontinue, temporarily or permanently, any feature or component of the Software at any time without notice.

 

2.      Software Use Restrictions.  You shall not sublicense, distribute, hypothecate, lease, loan or otherwise convey or transfer the Software or any portion or users thereof to anyone, and under no circumstance may you use or allow the use of the Software in any manner other than as expressly set forth above.  You shall not modify the Software, incorporate the Software in whole or in part in any other product or create derivative works based on all or part of the Software.  You shall not remove any copyright, trademark, proprietary rights, disclaimer or warning notice(s) included on or embedded in any part of the software.  You shall not use the Software in connection with a service bureau, time sharing or fee-for-service arrangement with third parties.  Except to the extent permitted by applicable local law. You shall not reverse assemble, decompile or disassemble or otherwise reverse engineer any portion of the Software.  YOU ARE SOLELY RESPONSIBLE FOR USING THE SOFTWARE IN ACCORDANCE WITH ALL APPLICABLE INTERNATIONAL, FEDERAL, STATE AND LOCAL LAWS.  You represent that you are using the Software for the Purposes.  If you are registering or using the Software on behalf of a company, healthcare institution or provider, or other organization, you represent that you have authority to enter into this Terms of Use and may bind such company, healthcare institution or provider or other organization hereunder by your actions.  In order to access certain areas of the Software, you will create a user account and login (a “User Account”).  You may never use another party’s User Account without such party’s express written authorization.  You agree that all information which you provide through the Software in connection with creating your User Account or otherwise is current, accurate and complete.  You are solely responsible for all activity that occurs with respect to your User Account.  You are solely responsible for maintaining the confidentiality of your User Account and keeping the username and password to your User Account secure.  You agree to notify us immediately of any security breach or unauthorized use of your User Account.  We will not be liable for any costs, losses, claims or damages that you or any third party incur which are directly or indirectly caused by any unauthorized use of your User Account.  For more information about your User Account and the Account Data (as defined below) contained therein, please see paragraph 8 below, titled ‘Login Information and Access’.

 

 

3.      Disclosure Restrictions: Disclosure.  You acknowledge that the Software, including the source code for the Software and any information derived therefrom, is proprietary to, and constitutes the intellectual property (including without limitation a valuable trade secret) of, DynamiCare.  If you should gain access to such materials you shall not disclose them to anyone and shall immediately disclose to us the information, materials and/or access that you received and the circumstances around such receipt.  For purposes of the Digital Millennium Copyright Act (“DMCA”), we have designated an agent for notices of claimed infringement.  If you have any objections governed by the DMCA, please contact the agent listed under the paragraph entitle “Notices” below.  We provide this contact information for purposes of the DMCA, only and reserve the right to respond to communication that is relevant for this purpose.  The Federal Trade Commission requires us to disclose any relationship we may have with any person or entity that provides something of value in connection with any endorsements made on the Software.  NO such advertising, sponsorship, paid insertion or other forms of compensation for endorsements are made to us in connection with the Software.

 

4.      Ownership of Software:  You agree and acknowledge that (i) the Software is licensed to you, not sold, and DynamiCare transfers no ownership interest in the Software, in the intellectual property in any Software, or in any Software copy, to you under this Agreement or otherwise, (ii) that DynamiCare and its licensors reserve all rights not expressly granted to you, hereunder, (iii) DynamiCare or its licensors own the Software (including, but not by the way of limitation, any code, images, algorithms, photographs, animations, video, audio, music and text incorporated in the Software), (iv) subject to your privacy rights in any personally identifying information, DynamiCare owns the data collected via the Software and has the right to use such data in accordance with this Agreement as may be amended from time to time in DynamiCare’s sole discretion, and (v) the Software is protected by law and international treaties relating to protection of copyright.  The Software includes, and this Agreement will cover, any versions, updates, upgrades or bug fixes for the Software provided to you.

 

5.      User Data: (a) After installation, personal information and health information provided by you to surveys and/or a study or program conducted by Institutional Client via the Software (the “User Survey Data”) and data related to your mobile interactions which is collected using the Software (the “User Interaction Data”) will be uploaded to DynamiCare’s servers (collectively “Unprocessed User Data”).  Such Unprocessed User Data includes, but is not limited to your submissions to surveys (and/or a study or program) and health questionnaires, distributions and variations in communication, mobility, interactions with others, phone usage, inferred health status for specific conditions, and alerts, call information, SMS information, location information, accelerometer information, smartphone actions, and smartphone screen-time related to, or resulting from, your use of the Software.  (b) Subject to your privacy rights in such information, you transfer ownership of all Unprocessed User Data to DynamiCare. (C) You agree that User Survey Data may be provided to Institutional Client. (d) You agree that DynamiCare may use Unprocessed User Data for the purposes of carrying out DynamiCare’s obligations and rights hereunder, including without limitation the use of Unprocessed User Data for analyzing, monitoring, predicting, and/or reporting certain health-related factors, and generating statistical information, summaries and/or reports thereof. (e) Subject to applicable law, you agree not to assent any claim, whether based on tort, contract or other legal theory, against DynamiCare or its sub-licensees relating to DynamiCare’s or its sub-licensees’ use of the Unprocessed User Data in accordance with this Agreement, and you hereby release DynamiCare and its sub-licensees from any such claims.

 

6.      Privacy Terms: DynamiCare’s policy is to respect and protect your privacy.  DynamiCare uses any personally identifiable information solely for the business purposes for which it was collected. You acknowledge and agree that DynamiCare and/or the Institutional Client may use your personally identifying for the applicable study or program deployment, surveys and/or your care by the DynamiCare and/or healthcare provider.  Subject to applicable law, DynamiCare will use commercially reasonable efforts to remove your personally identifying information and Unprocessed User Data from DynamiCare’s servers upon your written request, provided however, we only have the ability to remove such data from our own servers and not those of the Institutional Client or your healthcare provider. In accordance with the Privacy Policy, DynamiCare has the right to maintain, use and share the data/information collected by the Software in anonymized or de-identified form at any time (including following such request, or following the termination of this Agreement). Before installing or using the Software, you should carefully review the Privacy Policy, available at: http://www.dynamicarehealth.com/privacy-policy . Your installation or use of the Software shall be deemed your acceptance of the Privacy Policy, as it may be amended from time to time.

 

7.      Login Information and Access:  DynamiCare may issue to you, or prompt you to provide, a username/password for login to download, access and use the Software by way of a User Account.  DynamiCare will protect as confidential any personally identifying information that you may provide to complete the applicable online forms to establish your username/password or account with DynamiCare (“Account Data”), which Account Data shall continue to be owned by you.  You agree to provide, maintain and update true, accurate, current and complete Account Data, and represent that you will not misrepresent your identity or your affiliation with any person or entity.  DynamiCare reserves the right to authenticate any information you provide.  You shall be responsible for all use and access of the Software by means of username/passwords issued to you.  You will notify DynamiCare promptly of any unauthorized use of your username/password, or account or any other known or suspected breach of security, or other occurrence requiring username/password or account cancellations or changes.  DynamiCare cannot and does not assume any responsibility or liability for any information submitted by someone who has fraudulently accessed your account or for any third party’s fraudulent use or misuse of information submitted by you.  You acknowledge and agree that you will not provide any information or material to us or the Site that is defamatory, threatening, obscene, harassing, or otherwise unlawful, or that incorporates the proprietary material of another person or entity.

 

8.      Communications: You consent to receive email, text messages, and/or phone calls from DynamiCare in connection with your use of the Software. Standard text messaging charges or phone charges may be charged to you by your telecommunications provider.

 

9.      Feedback:  DynamiCare may ask for your feedback regarding your use and evaluation of the Software, including, without limitation, any problems encountered in the Software (the “Evaluation Data”).  If such Evaluation Data is provided to DynamiCare, it will be deemed and remain the sole property of DynamiCare, and will not be subject to any obligation of confidence on the part of DynamiCare.  Additionally, DynamiCare shall have all ownership, right, title and interest in and to the Evaluation Data and any and all intellectual property and proprietary rights thereto and therein.  You hereby transfer and assign to DynamiCare any and all intellectual property rights you may have in and to the Evaluation Data and agree to cooperate with DynamiCare to perfect DynamiCare’s sole and exclusive ownership in and title to the Evaluation Data.

 

10.  Transfer and Export Restrictions, Non-Malicious Use:  You may not sublicense, delegate, assign or otherwise transfer this Agreement, the license granted herein, or any other of your rights or obligations under this Agreement, in whole or in part.  You may not export or re-export any Software.  You agree not to use or launch any automated system, including without limitation, “robots,” “spiders”, or “offline readers,” that accesses the Software in a manner that sends more request messages to the Software’s servers in a given period of time than a human can reasonably produce in the same period by using a conventional online web browser.  Notwithstanding the foregoing, we may grant the operators of public, search engines permission to use spiders to copy materials from the Software for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials.  We reserve the right to revoke these exceptions either generally or in specific cases.  You agree not to collect or harvest any personally identifiable information, including account names, from the Software, nor to use the communication systems provided by the Software, for any commercial solicitation purposes.  You agree not to circumvent, disable or otherwise interfere with security-related features of the Software or features that prevent or restrict use of copying of any Content or enforce limitations on use of the Software or the Content.

 

11.  Information Collected and Stored; Cookies and Web Beacons; Disclosure to Third Parties:  We may automatically gather and store the certain information about your visit so that we can monitor the use of the Software in order to make improvements and better serve users and other constituencies.  Other than to contact you with follow up information or in order to provide products and services or information regarding our products and services (such as newsletters) to you, this following information may be collected and stored:

*email address, phone number, physical contact information, and (depending on the service used) sometimes financial, insurance and health-related information, such as credit card or bank account numbers and insurance carrier information;

*User Account information, such as user login and password information;

the location and IP address from which you access the Software;

*the name of the domain from which you access the internet;

*the type of device, browser and operating system used to access the Software;

the date and time you access the Software, duration and stop time of such access;

*the information about any person or entity from whom you were referred;

*the pages, files, documents and links that you visit, and

*the internet address of a website or mobile application from which you linked to the Software.

 

We may also collect cookies, which are small pieces of information sent to your browser or device by a website or application that you access.  We may use cookies to compile and provide aggregate statistics about the Software’s visitors, traffic patterns, and related information to the third parties, but such information may not identify you personally.  Cookies may help us adjust the content of the Software and provide better services to users.  You may set your setting to refuse cookies from any website or mobile application that you access.  If you refuse cookies, you may still gain access to the Software, but you may not be able to conduct certain types of activities.  The Software may contain electronic images known as web beacons (sometimes called single-pixel gifs) that may be used to assist in delivering cookies on the Software and allow us to count users who have visited the Software.  We may include web beacons in promotional e-mail messages of our newsletters in order to determine whether messages have been opened and acted upon.  At times, in order to provide products and services or market to customers, we may make certain personal information available to strategic partners with whom we work.  We may share personal information with parties who provide services such as information processing, extending credit, fulfilling customer orders, delivering products, managing and enhancing customer data, providing customer service, assessing interest in our products and services, and conducting customer research or satisfaction surveys.  Except as required pursuant to law, legal process, litigation, or requests from public and governmental authorities, we only share personal information to provide or improve our products, services and advertising; it will not be shared with third parties for their marketing purposes.  In the event of a reorganization, merger, or sale, we may transfer any and all personal information we collect to the relevant third party.  We may, from time to time, send you e-mail about your User Account, orders or pricing changes.  We may also send you e-mail with general information or special offers about products and services that may be of interest to you.  In most cases, we will give you an opportunity to accept or decline the receipt of promotional e-mail.

 

12.  Breach and Termination:  With or without notice, DynamiCare, in its sole discretion, has the right at any time to suspend or terminate your access to the Software (and terminate this Agreement), if you are in breach of this Agreement or using the Software in a manner that impairs the operation of the Software, causes or threatens to cause harm to DynamiCare’s systems, servers, other users of the Software that violates the Privacy Policy, or is otherwise harmful to DynamiCare or DynamiCare’s intellectual property, brand or good-will.

 

13.   Enforcement of Terms; Effect of Termination:  If you fail to fulfill any of your obligations under this Agreement, DynamiCare and/or its licensors may pursue all available legal remedies available to them.  You agree that DynamiCare’s licensors are third-party beneficiaries of this Agreement, and may enforce this Agreement as it relates to their intellectual property.  Upon any termination of this Agreement, your licenses to use the Software shall terminate and you shall promptly uninstall and remove the Software from the mobile device on which it was installed (and promptly uninstall, delete or destroy your authorized backup or archival copy).

 

14.   U.S. Government Users: (a) If the Software is acquired by or on behalf of civilian agencies of the U.S. Government, then pursuant to FAR Section12.212 and its successors (48 C.F.F. 12.212), the Government’s right to use, reproduce or disclose the Software acquired under this Agreement is subject to the restrictions of this Agreement.  If the Software is acquired by or on behalf of agencies or units of the Department of Defense (DoD), then, pursuant to DoD FAR Supplement Section 227.7202 and its successors (48 C.F.R. 227.7202) the Government’s right to use, reproduce or disclose the Software acquired under this Agreement is subject to the restrictions of this Agreement. (b) Pursuant to the foregoing, U.S. Government users acknowledge that (i) the Software is commercial computer software, (ii) this Agreement embodies the licenses customarily used by DynamiCare for end user’s licenses in Software granted to the public, and (iii) the licenses set forth herein shall apply to all possession, use and duplication of the Software by the Government as permitted by applicable law.  The contractor/manufacturer is DynamiCare Health, Inc.

 

15.  Assumption of Risk:  The Software is designed to provide a designated third-party with health-related information based on your inputs to surveys and mobile interactions, as such interactions are catalogued via your mobile device.  The Software and any related data supplied to you by DynamiCare is not a source of information, and does not provide medical advice.  By granting you the right to use the Software, DynamiCare does not assume any obligation or liability with respect to your health or your physical activity or condition.  In no event, shall DynamiCare be liable for any death or bodily injury that you suffer, or that you cause to any third party, in connection with your use of the Software or any activity you undertake in connection with your use of the Software.  As between you and DynamiCare, you are solely responsible for your use of the Software and your health and medical condition and treatment related thereto.  DynamiCare shall have no liability for any unauthorized disclosure of your personally identifiable information due to your actions or omissions or that of your healthcare provider.

YOU AGREE THAT (i) IF YOU ARE IN NEED OF, OR ARE SEEKING MEDICAL TREATMENT OR EMERGENCY CARE, YOU SHOULD CONTACT YOUR HEALTHCARE PROVIDER OR CALL 911 IMMEDIATELY, (ii) DynamiCare DOES NOT PROVIDE MEDICAL TREATMENT OR ADVICE AND IS NOT A HEALTHCARE PROVIDER OR A REFERRAL TO HEALTHCARE PROVIDERS; (iii) YOU WILL NOT LEAVE ANY MESSAGES WITH, OR SEND ANY EMAILS TO, DynamiCare WITH RESPECT TO YOUR MEDICAL CONDITION, AS DynamiCare IS NOT YOUR HEALTHCARE PROVIDER, IS NOT AND DOES NOT PROVIDE 911 OR OTHER EMERGENCY SERVICES, AND CANNOT CONTACT YOU OR ANYONE ON YOUR BEHALF WITH RESPECT TO YOUR MEDICAL CONDITION OR TREATMENT; (iv) DATA PROVIDED BY DynamiCare THROUGH THE SOFTWARE IS FOR INFORMATIONAL PURPOSES ONLY AND IS NOT INTENDED TO REPLACE THE RELATIONSHIP BETWEEN YOU AND YOUR PHYSICIAN OR OTHER HEALTHCARE PROVIDER; (v) DynamiCare IS NOT A LICENSED MEDICAL CARE PROVIDER AND HAS NO EXPERTISE IN DIAGNOSING, EXAMINING, OR TREATING MEDICAL DONDITIONS OF ANY KIND, OR IN DETERMINING THE EFFECT OF ANY SPECIFIC TREATEMENT ON A MEDICATION; (vi) YOU SHOULD ALWAYS CONSULT A PHYSICIAN IF YOU HAVE ANY QUESTIONS REGARDING A MEDICATION; (vii) NEVER DISREGARD PROFESSIONAL MEDICAL ADVICE OR DELAY SEEKING IT BECAUSE OF SOMETHING YOU HAVE READ OR RECEIVED USING THE SOFTWARE; (viii) DynamiCare HAS NO LIABILITY WITH RESPECT TO ANY SURVEY OR RESEARCH/MEDICAL PROGRAM OR STUDY WITH WHICH YOU MAY BE USING THE SOFWARE; AND (ix) DynamiCare IS NOT RESPONSIBLE FOR THE ACCURACY, RELIABILITY, EFFETIVENESS, OR CORRECT USE OF INFORMATION YOU RECEIVE THROUGH OR IS GENERATED BY THE SOFTWARE.

You agree that DynamiCare shall not be liable to you or to any third party for any unavailability, modification, suspension or discontinuance of any feature or component of the software.

The DynamiCare Health platform, including substance testing, GPS tracking, surveys, support tools, and incentives, is designed to encourage choices which, as part of a healthy lifestyle, may help those recovering from substance addictions.  Substance tests included in the DynamiCare Health platform are intended to be used to discourage substance use and to help inform healthcare providers.

The use of the DynamiCare Health platform should be strictly limited to the foregoing. It should not be used for any other purpose, including, without limitation, for confirming the presence or the absence of any substance (drug of abuse) in a user’s specimen, compliance with any substance abuse or other program, or any medical or other diagnostic procedure. The saliva and breath testing devices used with the DynamiCare Health platform provide only qualitative, preliminary results. (See the instructions included in the test device packaging for more information.)

To the extent DynamiCare provides links or references to websites operated by third parties, DynamiCare does not monitor or investigate such websites and we are not responsible for the content, functionality, or practices of such websites.  Inclusion of links to third party websites does not imply approval or endorsement of the linked website by us.  If you decide to access these third-party websites, you do so at your own risk.  You agree that DynamiCare has no liability for any damage or loss of any type that is a result of your use of a third-party website.
 

16.  Age Restriction. The Software is intended for persons eighteen (18) years or older. Persons under the age of eighteen (18) should not access, use and/or browse the Software.
 

17.  THIRD PARTY LINKS DISCLAIMER. The Software may, from time to time, contain links to third party websites or mobile applications. These links are provided solely as a convenience to you and not as a guarantee, warranty, or recommendation by DynamiCare of the services, information, content and/or data on such third-party websites/mobile applications or as an indication of any affiliation, sponsorship or endorsement of such third-party websites/mobile applications. DynamiCare is not responsible for the content of linked third-party websites/mobile applications and does not make any representations or warranties regarding the privacy practices of, or the content or accuracy of materials on, such third-party websites/mobile applications. If you decide to access linked third-party websites/mobile applications, you do so at your own risk. Your use of third-party websites/mobile applications is subject to the terms of use for such sites. THE INCLUSION OF THIRD PARTY LINKS DOES NOT CONSTITUTE AN ENDORSEMENT, GUARANTEE, WARRANTY, OR RECOMMENDATION OF, AND DynamiCare MAKES NO REPRESENTATIONS AND/OR WARRANTIES ABOUT, ANY PRODUCT OR SERVICE CONTAINED THEREIN.

 

18.  Disclaimer of Warranty:  DynamiCare PROVIDES THE SOFTWARE TO YOU “AS IS”, WITHOUT WARRANTY OF ANY KIND, EXPRESS, STATUTORY, IMPLIED OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT; AND, DynamiCare HEREBY DISCLAIMS ANY AND ALL SUCH WARRANTIES. DynamiCare MAKES NO REPRESENTATION OR WARRANTY THAT THE SOFTWARE IS ACCURATE, COMPLETE OR UP-TO-DATE.  DynamiCare MAKES NO REPREENTATION OR WARRANTY OF ANY KIND WITH RESPECT TO THE USE OF THE SOFWARE, THE RESULTS THEREFROM, OR THE USE OF ANY DATA (INCLUDING WITHOUT LIMITATION DATA PRODUCED BY THE SOFWARE) OR INTERACTIONS OF ANY USER.  NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY ANY DynamiCare EMMPLOYEE, REPRESNTATIVE OR DISTRIBUTOR SHALL CREATE A WARRANTY FOR THE SOFTWARE, AND YOU MAY NOT, AND EXPRESSLY AGREE THAT YOU SHALL NOTRELY ON ANY SUCH INFORMATION OR ADVICE.  DynamiCare LICENSORS EXPLICITLY DISLCAIM ANY AND ALL WARANTIES WITH RESPECT TO THE SOFTWARE. DynamiCare DOES NOT WARRANT THAT THE SOFWARE, OR ACCESS THERETO, OR USE THEREOF, WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT THE SOFTWARE WILL MEET ANY END USER’S REQUIREMENTS OR ANY PARTICULAR CRITERIA OF PERFROMANCE OR QUALITY STANDARDS, FROM TIME TO TIME, THE SOFTWARE MAY BE INACCESSIBLE OR INOPERABLE FOR ANY REASON, INCLUDING EQUIPMENT MALFUNCTIONS, SOFWARE UPDATES, MAINTENANCE, AND REPAIRS AND CAUSES BEYOND OUR CONTROL, OR THOSE THAT ARE NOT REASONABLY FORESEEABLE.  WE MAKE NO GUARANTEES WITH RESPECT TO THE AVAILABILITY OR UPTIME OF THE CONTENT OR ACCESS TO THE SOFTWARE.  WE MAY CONDUCT MAINTENANCE ON ANY OF THE FOREGOING AT ANY TIME WITH OR WITHOUT NOTICE TO YOU.  TRANSMISSIONS OVER THE INTERNET ARE NEVER 100% SECURE OR ERROR FREE.  WE TAKE REASONABLE STEPS TO PROTECT YOUR PERSONAL INFORMATION FROM LOSS, MISUSE, AND UNAUTHORIZED ACCESS, DISCLOSURE, ALTERATION AND DESTRUCTION.  DynamiCare MAY USE CERTAIN TRUSTED THIRD PARTIES TO HELP US PROVIDE, IMPROVE, PROTECT, AND PROMOTE OUR SERVICES.  THESE THIRD PARTIES WILL ACCESS YOUR INFORMATION ONLY TO PERFORM TASKS ON OUR BEHALF AND INCOMPLIANCE WITH THIS AGREEMENT. DynamiCare DOES NOT WARRANT THAT ANY FUNCTIONALITY, INCLUDING WITHOUT LIMITATION ANY SECURITY MEASURE OR SECURITY FEATURE, PROVIDED HEREUNDER WILL BE ERROR-FREE, UNBREAKABLE, UNBREACHABLE, VIRUS FREE, OR INVIOLATE AND, END USERS ASSUME THE ENTIRE RISK (AND ARE SOLELY RESPONSIBLE.) THAT, NOTWITHSTANDING ANY SECURITY OR OTHER MEASURE THAT MAY BE PROVIDED BY DynamiCare OR ITS LICENSORS HEREUNDER, THE SOFTWARE AND/OR THE DATA PROCESSED THEREBY MAY BE CORRUPTED, COMPROMISED, INACCESSIBLE OR LOST.  THE SOFTWARE IS NOT DESIGNED OR LICENSED FOR USE IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE CONTROLS, INCLUDING WITHOUT LIMITATION OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, AND LIFE SUPPORT OR WEAPONS SYSTEMS, WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, DynamiCare SPECIFICALLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR SUCH PURPOSES.

 

19.  Limitation of Liability; Indemnification:  IN NO EVENT SHALL DynamiCare OR ITS LICENSORS, OFFICERS, PARTNERS, AFFILIATES, AGENTS, MEMBERS OR EMPLOYEES BE LIABLE TO YOU FOR ANY SPECIAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY, INCIDENTAL OR INDIRECT DAMAGES OF ANY KIND (INCLUDING WITHOUT LIMITATION THE DAMAGES ARISING FROM LOSS OF DATA, USE, PROFITS OR GOODWELL), WHETHER OR NOT DynamiCare HAS BEEN ADVISED OF THE POSSIBILTY OF SUCH LOSS, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY ARISING OUT OF THIS AGREEMENT (INCLUDING WITHOUT LIMITATION ANY THEORY BASED IN TORT, CONTRACT OR OTHERWISE).  THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.  WITH THE EXCEPTION OF CLAIMS ARISING FROM DynamiCare’s BREACH OF THE PRIVACY POLICY (FOR WHICH DAMAGES ARE LIMITED TO THE COST OF REQUIRED NOTICES UNDER APPLICABLE LAW AND ANY ADDITIONAL COSTS INCURRED BY YOU UP TO A MAXIMUM OF $1,000 IN THE AGGREGATE), DynamiCare’s MAXIMUM AGGREGATE LIABILITY ARISING OUT OF THIS AGGREMENT AND/OR YOUR USE OR POSSESSION OF THE SOFTWARE, INCLUDING WITHOUT LIMITATION ANY CLAIMS IN TORT (INCLUDING NEGLIGENCE), CONTRACT, BREACH OF WARRANTY, STRICT LIABILITY OR OTHERWISE, AND FOR ANY AND ALL CLAIMES COMBINED, WILL NOT EXCEED THE AMOUNT YOU PAID TO INSTALL THE SOFWARE OR US, WHICHEVER IS GREATER.  SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIMED WARRANTIES OR LIMITATIONS ON CERTAIN TYPES OF DAMAGES, SO THE ABOVE DISCLAIMERS AND LIMITATIONS MAY NOT APPLY TO YOU.

 

You further agree to defend, indemnify and hold DynamiCare and its partners, affiliates, Use Providers, licensors, officers, directors, employees and agents harmless from and against any and all losses, liabilities, damages and costs, including but not limited to reasonable legal and account fees, arising from any claims, actions or demands related to or alleged to relate to (a) your violation of this Agreement, or (b) your violation of any intellectual property or other third-party rights or any applicable law in connection with your use of the software.  We reserve the right to assume control of the defense of any third-party claim that is subject to indemnification by you, in which even you will cooperate with use.

 

20.   Notices:  Notices to you hereunder shall be sent to the email address provided by you when you registered to download and install the Software.  Notices to DynamiCare shall be sent to:

 

DynamiCare Health, Inc., info@dynamicarehealth.com

6 Liberty Square #2102, Boston, MA 02109

Each party may change such address upon written notice to the other party.

 

21.   Governing Law:  This agreement shall be governed by and construed in accordance with the laws of the State of Massachusetts, USA without regard to its conflicts of laws provision.  The United Nations Convention on Contracts for the International Sale of Goods shall not apply.  The parties hereby consent to, and hereby agree to submit to, the exclusive jurisdiction and venue in the state courts in Boston, MA or any federal court located therein.  In any action or proceeding to enforce or interpret this Agreement, the prevailing party will be entitled to recover the costs and expenses (including reasonable attorney’s fees) that it incurred in connection with such action or proceeding and enforcing any judgement or order obtained.  In the event of a breach, or threatened breach, of this Agreement by you which may harm the intellectual property or proprietary rights of DynamiCare (or its licensors/suppliers), the parties agree that (i) DynamiCare may suffer irreparable harm for which monetary damages may be insufficient as remedy, (ii) DynamiCare shall be entitled to seek injunctive or other equitable relief, (iii) no bond or surety shall be required to be posted for such relief, and (iv) such relief shall be in addition to any and all other remedies in law or in equity to which DynamiCare may be entitled.  The parties shall seek resolution through binding arbitration using a single arbitrator and the rules promulgated by the American Arbitration Association.  The decision of the arbitrator shall be binding on the parties and may be entered into a court or competent jurisdiction.  All such arbitration shall be conducted in the jurisdiction set forth above.

 

22.   Complete Agreement; Waiver; Severability:  This Agreement contains the complete and entire agreement and understanding of the parties regarding the subject matter hereof, and supersedes all proposals, oral or written, all negotiations, conversations, discussions, and all past course of dealing between you and DynamiCare relating to the Software or the terms of its license to you.  In the event any term of this Agreement is held by a court of competent jurisdiction to be unenforceable, such unenforceability shall not affect the remaining terms of this Agreement in such jurisdiction or render unenforceable or invalidate such terms and provisions of this Agreement in other jurisdictions.  Upon such determination that any of the terms or provisions of this Agreement are held to be invalid under any applicable statute or rule of law, they shall be severed from this Agreement and the remaining provisions of this Agreement shall be interpreted so as best to reasonably effect the intent of the parties and the parties agree to replace any invalid or unenforceable provisions in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.  DynamiCare’s failure to exercise or enforce any right or provision of this Agreement will not constitute a waiver of such right or provision unless such waiver is in writing and signed by DynamiCare.

 

23.   Consent to Electronic Contracting:  You agree that execution of this Agreement may occur by your manifesting your acceptance of when you installed or used the Software, and that no signature on a paper copy of this Agreement is required in order to form a binding contract.

 

24.  Force Majeure:  DynamiCare shall not be liable for failure to perform any of its obligations hereunder, or under the Privacy Policy, during any period in which such performance is delayed or impracticable due to circumstances beyond DynamiCare’s reasonable control, including without limitation, earthquakes, fire, flood, war, embargo, strike (other than DynamiCare’s employees), riot, civil unrest, inability to secure materials, transportation, or power/utilities, intervention of any governmental authority, or acts of God/nature.

 

25.  No Joint Venture; Independent Contractors:  The parties will at all times be independent contractors and will so represent themselves to all third parties.  Neither party has granted to the other the right to bind it in any manner whatsoever and nothing herein will be deemed to constitute either party the agent or legal representative of the other nor to constitute the parties as joint ventures.

 

26.  Assignment:  Any attempted assignment, sublicense, transfer, encumbrance of this Agreement (or of any of your rights or obligations herein) by you shall be void and shall constitute a material breach of this Agreement.  This Agreement shall be binding upon and inure to the benefit of DynamiCare’s successors and assigns.

 

27.  Modifications to this Agreement.  We make changes to this Agreement from time to time.  A link to the most current Terms of Use that will govern your use of the Software will be available on the DynamiCare website and we will indicate the date of the latest update at the bottom of the posted Agreement.  We may also place a special notice on the website or communicate significant changes by email.  Your continued use of the Software following the posting of such changes constitutes your acceptance of the amended Agreement.

 

*** YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS.***