OtisHealth, Inc. – Terms and Conditions
THE COMPANY PLATFORM
The Company Platform, which is powered by OtisHealth in collaboration with Eisai Inc. (“Eisai”), provides a health management system that allows users to track their Activities of Daily Living, gain related insights into their health over time, and share this information with caregivers and healthcare providers.YOUR ACCOUNT
All users must create an account with us (“Account”) to access and use the Company Platform.You can create an Account for the Company Platform if you: (a) agree to be bound by these Terms, (b) are at least 18 years of age, (c) are not representing an entity in the creation of your Account, and (d) submit certain information about yourself, including personally identifiable information, to us through the Company Platform as prompted during the Account registration process. We will delete your Account if we find out that you are not at least 18 years of age. At this time, the Company Platform is also for use by individuals only, not companies, so we may delete your Account if you are setting it up for a company and not for yourself, as determined by us in our sole discretion.
YOUR USE OF THE COMPANY PLATFORM
Your Licenses Subject to, and conditioned upon, your compliance with the terms and conditions set forth in these Terms, including the restrictions on your use of the Company Platform, we hereby grant you a limited, revocable, non-exclusive, non-transferable, non-sublicensable license to access and use the Company Platform for your personal, non-commercial use. YOU MAY NOT USE THE COMPANY PLATFORM IN ANY WAY NOT EXPRESSLY APPROVED IN YOUR ABOVE LICENSE.- violates any third party’s right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity or any other intellectual property or proprietary right;
- is unlawful, harassing, abusive, tortious, threatening, harmful, invasive of another’s privacy, profane, vulgar, defamatory, false, intentionally misleading, trade libelous, pornographic, obscene, patently offensive, promotes racism, bigotry, hatred or physical harm of any kind against any group or individual or is otherwise objectionable;
- is harmful to minors in any way; or
- is in violation of any law, regulation, obligation or other similar restrictions imposed by any third party, including any confidentiality obligations from former employers.
- use the Company Platform for any unlawful purpose or for any commercial activities, including without limitation collecting data or market research, promoting or advertising, raising money, marketing or otherwise using the Company Platform in a manner not consistent with your license and the purpose of the Company Platform;
- provide purposefully untruthful or inaccurate advice that other users may rely upon in a detrimental manner;
- mention other people by name in your advice without their prior consent, except for public figures and celebrities who are generally known to the public;
- impersonate any person or entity or falsely state or otherwise misrepresent your affiliation with a person or entity;
- modify, translate, adapt or otherwise create derivative works or improvements of the Company Platform or the content and materials that we make available to you;
- reverse engineer, disassemble, decompile, decode or otherwise attempt to derive or gain access to the source code of the Company Platform;
- remove, delete, alter or obscure any trademarks or any copyright, trademark, patent or other intellectual property or proprietary rights notices from or contained on the Company Platform, including any copy thereof;
- rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available the Company Platform or any features or functionality thereof to any third party;
- remove, disable, circumvent or otherwise create or implement any workaround to any copy protection, rights management or security features in or protecting the Company Platform;
- upload, transmit or distribute to or through the Company Platform any computer viruses or any software intended to damage or alter a computer system or data; or
- use software or automated agents or scripts to generate automated searches, requests or queries to, or strip, scrape, or mine data from, the Company Platform.
CHARGES AND COMPENSATION
There are no membership fees associated with downloading, accessing or using the Company Platform.We do not ask for, receive, or store users’ financial information.
INTELLECTUAL PROPERTY RIGHTS
Our Content
Subject only to the express licenses we grant you in these Terms, as between you and us, we own all right, title and interest in all original content, features and functionality found on, provided by or embodied in the Company Platform, including without limitation any software, computer code (including source code or object code), copyright-protected works, trademarks, trade dress, service marks, logos, visual interfaces, graphics, design, compilation, information, data, sound files, other files and the selection and arrangement thereof (“Our Content”). Our Content is protected by copyright, trademark, and other intellectual property and related laws of both the United States and foreign countries. You may not distribute, modify, transmit, reuse, download, repost, copy or use Our Content, whether in whole or in part, outside the scope of the express license grants provided to you in these Terms.
We reserve all rights to Our Content not expressly granted in these Terms. You acknowledge and agree that the Company Platform is provided under license, and not sold, to you. You do not acquire any ownership interest in the Company Platform or Our Content under these Terms.
Your Content
As between you and us, you are the exclusive owner of the content and information you provide and any other content you submit or post through the Company Platform, including your Account Information and any messages sent in connection with a [transaction] (collectively, “Your Content”); provided, however, that you grant us (and those we work with, including third-party service providers) a worldwide, perpetual, irrevocable, transferrable, sublicensable license to use, host, store, display, reproduce, modify and create derivative works of Your Content.
When you submit Your Content, you represent and warrant to us that Your Content is accurate and truthful, is your original creation or that you otherwise have the right to provide Your Content, that you have the rights necessary to grant the foregoing license to Your Content and that our use of Your Content as permitted by the foregoing license does not and will not infringe or misappropriate the intellectual property or moral rights of any person.
We are not responsible for the accuracy, appropriateness or legality of Your Content. You acknowledge that we have no obligation to monitor any of Your Content, but we reserve the right to review and monitor Your Content for compliance with these Terms. Regardless, you bear sole responsibility for adequate security, protection and backup of Your Content. We will have no liability to you for any unauthorized access or use of any of Your Content or any corruption, deletion, destruction or loss of any of Your Content.
FEEDBACK
We appreciate hearing from you and welcome your comments about the Company Platform, including whether you like it, what is most useful, any malfunctions, downtime, inappropriate content or complaints (collectively, “Feedback”). You can submit Feedback to us by emailing us at feedback@otishealth.com. Any Feedback you submit shall be Your Content.
TERM AND TERMINATION
We reserve the right to modify, suspend or terminate the Company Platform at any time in our sole discretion. Additionally, we may terminate, suspend or deactivate your Account or prohibit you from using or accessing the Company Platform for any reason, without notice, at any time and without liability to you. If your Account is terminated or deactivated, all licenses and other rights granted to you in these Terms shall immediately cease and you will not be owed a refund of any products or services purchased prior to such termination or deactivation. In the event your access to the Company Platform is terminated or operation of the Company Platform is discontinued as to all users, you will have three (3) months to download your personal records from the Platform. After such period, the Company will not maintain your records, so it is important that you download such records when notified. Notification of termination will be delivered to the user email address established for your account.
UPDATES AND SUPPORT
We may, from time to time and in our sole discretion, develop and provide updates to the Company Platform which may include upgrades, bug fixes, patches and other error corrections and/or new features (collectively, including related documentation, “Updates”). Updates may also modify or delete in their entirety current features and functionality. You agree that all Updates will be deemed part of the Company Platform and shall be subject to these Terms.Notwithstanding the above paragraph, you acknowledge and agree that we have no obligation to: (a) provide you with technical support, (b) provide any Updates, or (c) continue to provide or enable any features or functionality of the Company Platform.
PLATFORM IS NOT A MEDICAL DEVICE OR DIAGNOSTIC TOOL
The Platform, and any information obtained through it, is neither a medical device or diagnostic tool, nor is it intended to be medical advice. It does not take the place of medical and healthcare advice and services that you may receive from a physician or medical professional. The Platform is not intended, and must not be taken, to constitute the practice of medicine by OtisHealth or Eisai; therefore, use of the Platform does not create a doctor/patient or provider/patient relationship with OtisHealth or any third party. If you have a medical condition and have questions about your health records, diagnoses, and treatments, you must seek the advice of a qualified physician or medical professional.
WARRANTIES; DISCLAIMER OF WARRANTIES
Your Representations and WarrantiesYou represent and warrant to us that: (a) all of the required Account information you submit is truthful and accurate, and you will maintain the accuracy of such information; (b) you have full power and authority to enter into these Terms; and (c) Your Content and your use of the Company Platform does not and shall not violate any laws or infringe or misappropriate any third party’s intellectual property rights.
When using the Platform to request or upload external medical data, such as your electronic health records, we do not and cannot verify the completeness or accuracy of the information provided by external sources. We cannot guarantee an external organization will respond to a request to provide you with your electronic health records. We cannot guarantee that the electronic health records format an external organization uses can be properly uploaded and recorded into the Company Platform. You may choose to use the Company Platform to share your health information with other users of the Company Platform and with external organizations such as medical service providers and clinical research organizations. Once you have shared this information, the Company has no control over what those other users and external organizations may do with your information. It is your responsibility to assess the risk of sharing your information with any other person or organization.
You also understand that we cannot and do not guarantee or warrant: that the Company Platform, or any files, content or information available for download from the internet or through the Company Platform (including Third-Party Links), will be free of viruses or other harmful code. You alone are responsible for implementing sufficient procedures to satisfy your particular requirements for antivirus protection, accuracy of data and for maintaining a means external to the Company Platform for any reconstruction of any lost data.
INDEMNIFICATION
You agree to indemnify and hold us, Eisai Inc., each of our parents, subsidiaries and affiliates and each of their respective officers, directors, employees and agents harmless from any and all claims, demands, losses, liabilities, and expenses (including attorneys’ fees), arising out of or in connection with: (a) your use of the Company Platform and any other uses of the same through your Account; (b) your breach or violation of any of these Terms, including without limitation the restrictions on use provided herein, or any applicable laws or regulations; (c) our use of Your Content; or (d) your violation of the rights of any third party. We reserve the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us under these Terms, and you agree to cooperate with our defense of such claims. You agree not to settle any claims without our prior written consent. We will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.LIMITATION ON LIABILITY
NEITHER WE, NOR EISAI SHALL BE LIABLE TO YOU OR ANY OTHER PARTY FOR INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION LOST PROFITS, LOST DATA, LOST PROPERTY, PERSONAL INJURY, OR PROPERTY DAMAGE RELATED TO, IN CONNECTION WITH, OR OTHERWISE RESULTING FROM ANY USE OF THE COMPANY PLATFORM, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NEITHER WE, NOR EISAI SHALL BE LIABLE TO YOU OR ANY OTHER PARTY FOR ANY DELAY OR FAILURE IN PERFORMANCE RESULTING FROM CAUSES BEYOND OUR REASONABLE CONTROL. SOME JURISDICTIONS PROHIBIT THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
IN NO EVENT SHALL OUR OR EISAI’S TOTAL LIABILITY TO YOU IN CONNECTION YOUR USE OF THE COMPANY PLATFORM FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION EXCEED ONE HUNDRED U.S. DOLLARS (US $100).
INFORMAL DISPUTE RESOLUTION
For any dispute between you and us, you agree to first contact us and attempt to resolve the dispute informally.NOTICE
You agree that we may provide notices to you through: (a) a prominent notice when you log in to your Account or a message sent to your Account; (b) an email sent to an address associated with your Account; or (c) through other means deemed sufficient by us, including without limitation telephone or mail. You agree to keep the contact information associated with your Account up to date.You agree that the only way to provide legal notice to us is by email message sent to: notice@otishealth.com
GOVERNING LAW AND ARBITRATION
Any dispute, claim or controversy arising from or relating to these Terms or your use of the Company Platform, including disputes arising from or concerning the interpretation, violation, invalidity, nonperformance or termination, shall be settled by arbitration administered under the Rules of Arbitration by the American Arbitration Association applying California law. The place of arbitration shall be San Francisco, California. Any such dispute, claim or controversy shall be arbitrated on an individual basis and shall not be consolidated in any arbitration with any dispute or claim of any other party. Arbitration shall be mandatory and binding on the parties. By using the Company Platform, you hereby waive all rights to trial in any action or proceeding instituted in connection with these Terms or the Company Platform.