Use of the Service
Eligibility. You must be at least 18 years of age to use the Service. By agreeing to these Terms, you represent and warrant to us that: (a) you are at least 18 years of age; (b) you have not previously been suspended or removed from the Service; and (c) you are physically located in the United States and within a jurisdiction where our Service is offered, including without limitation, when receiving telehealth consultations from a Provider (defined below). If you are using the Service on behalf of an entity, organization, or company, you represent and warrant that you have the authority to bind that organization to these Terms and you agree to be bound by these Terms on behalf of that organization.
License. Subject to the restrictions set forth in these Terms, AliveCor grants you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to access, install and use the Service and Site Content (as defined in Section13) solely for personal, non-commercial use. AliveCor reserves all rights not expressly granted herein in the Service and the Site Content. AliveCor may terminate this license at any time for any or no reason. Even after your license to access and use the Service and the Site Content is terminated, these Terms, including all of your obligations under these Terms prior to such termination, will remain in full force and effect and will govern any and all disputes arising out of your access and use of the Service and the Site Content.
Accounts and Registration. Subject to your eligibility to use the Service and compliance with these Terms, you may access the Service. To access most features of the Service, you must set up an account, though some features of the Service may be available without an account. If you open an account on behalf of a company, organization, or other entity, then “you” includes you and that entity. When you register for an account, you may be required to provide us with some information about yourself including personal information such as your name, email address, password, gender, height and birthdate. You may choose to provide additional information to us. You agree that the information you provide to us is accurate and that you will keep it accurate and up-to-date at all times. You will need to provide a password to register, and you are solely responsible for maintaining the confidentiality of this information. You accept responsibility for all activities that occur under your account. If you have reason to believe that your account has been breached, please immediately notify us at email@example.com. Furthermore, AliveCor reserves the right to take any and all action, as it deems necessary, regarding the security of our Service and your account and password information. Under no circumstances shall any of AliveCor or its officers, directors, employees, consultants, subsidiaries, agents, and affiliated individuals or entities, including the Providers and/or any professional corporation that employs or contracts with any Providers, e.g., Cardiac Health Medical Group (collectively, the “AliveCor Entities") be held liable to you for any liabilities or damages resulting from your failure to comply with these Terms, including any failure by you to keep your account and password or other information secure. Your account may automatically expire following any period of inactivity associated with your account in excess of twelve (12) consecutive months.
What You May Do. The Service is intended only to allow you to upload, view, share data with your healthcare professional, and use certain data pertaining to you as made available by the Service. You may not access or use the Service for any other purpose. You may use the Service, including any data presented to you on or by the Service, or otherwise hosted or stored by AliveCor for you, only for lawful and appropriate purposes on your own behalf, and subject to your full compliance with these Terms and any other guidelines and policies applicable to the Service which AliveCor may post from time to time.
Prohibited Conduct. BY USING THE SERVICE YOU AGREE NOT TO:
use or access the Service (a) from a jurisdiction where such use or access is not authorized, (b) for any illegal purpose, or (c) in violation of any local, state, national, or international law;
conduct activities that may be harmful to others or that could damage AliveCor's reputation;
violate, or encourage others to violate, any right of a third party, including by infringing or misappropriating any third party intellectual property right, or disclosing personal information about another person;
post, upload, or distribute marketing or advertising links or content, or any User Content or other content that is unlawful, defamatory, libelous, inaccurate, or that a reasonable person could deem to be objectionable, profane, indecent, pornographic, harassing, threatening, embarrassing, hateful, or otherwise inappropriate;
use scrapers, robots, or other data gathering devices on or through the Service, or frame or otherwise provide the Service to third parties without AliveCor's permission;
interfere with security-related features of the Service, including by: (a) disabling or circumventing features that prevent or limit use or copying of any content; or (b) reverse engineering, decompiling, or otherwise attempting to discover the source code of any portion of the Service, including the app(s), except to the extent that such activity is expressly permitted by applicable law notwithstanding this restriction;
interfere with the operation of the Service or any user's enjoyment of the Service, including by: (a) uploading or otherwise disseminating any virus, adware, spyware, worm, or other malicious code; (b) making any unsolicited offer or advertisement to another user of the Service; (c) attempting to collect personal information, including without limitation ECG data or other health information, about another user or third party without their consent; or (d) interfering with or disrupting any network, equipment, or server connected to or used to provide the Service, or violating any regulation, policy, or procedure of any such network, equipment, or server;
perform any fraudulent activity including impersonating any person or entity, claiming a false affiliation, accessing any other Service or account without permission, or falsifying your account registration information;
modify, translate, or create derivative works, adaptations or compilations of, or based on, the Service or part thereof, or use, copy or reproduce the Service or any part thereof other than as expressly permitted in these Terms;
assign, sublicense, lease, sell, grant a security interest in, or otherwise transfer the access granted under these Terms or any Site Content (as defined in Section 13) or any right or ability to view, access, or use any Site Content; or
attempt to do any of the acts described in this Section 4, or assist or permit any person in engaging in any of the acts described in this Section 4.
KardiaComplete App and Equipment
KardiaComplete App. We make our KardiaComplete App available to access the Service via a mobile device that must be compatible with the KardiaComplete App. For compatible mobile devices please check www.alivecor.com/compatibility. AliveCor does not provide you with mobile devices to use the KardiaComplete App and does not warrant that the KardiaComplete App will be compatible with your mobile device. You may incur data charges from your wireless provider for the Services. You are responsible for complying with any third-party terms of service and paying all fees charged by third parties to access and use the KardiaComplete App, including, without limitation, the payment of all applicable fees associated with any carrier service plan you use in connection with your use of the Service (such as data, SMS, MMS, roaming, and other applicable fees charged by the carrier). You agree that you are solely responsible for any such charges. AliveCor hereby grants you a non-exclusive, non-transferable, revocable license to use a compiled code copy of the KardiaComplete App on mobile devices owned or leased solely by you, and in accordance with the features made available to you. You may not: (a) modify, disassemble, decompile or reverse engineer the KardiaComplete App, except to the extent that such restriction is expressly prohibited by law; (b) rent, lease, loan, resell, sublicense, distribute or otherwise transfer the KardiaComplete App to any third party or use the KardiaComplete App to provide time sharing or similar services for any third party; (c) make any copies of the KardiaComplete App; (d) remove, circumvent, disable, damage or otherwise interfere with security-related features of the KardiaComplete App, features that prevent or restrict use or copying of any content accessible through the KardiaComplete App, or features that enforce limitations on use of the KardiaComplete App; or (e) delete the copyright and other proprietary rights notices on the KardiaComplete App. You acknowledge that AliveCor may from time to time issue upgraded versions of the KardiaComplete App, and may automatically electronically upgrade the version of the KardiaComplete App that you are using on your mobile device. You consent to such automatic upgrading on your mobile device, and agree that the terms and conditions of these Terms will apply to all such upgrades. Any third-party code that may be incorporated in the KardiaComplete App is covered by the applicable open source or third-party license, if any, authorizing use of such code. The foregoing license grant is not a sale of the KardiaComplete App or any copy thereof, and AliveCor or its third-party partners or suppliers retain all right, title, and interest in the KardiaComplete App (and any copy thereof). Any attempt by you to transfer any of the rights, duties or obligations hereunder, except as expressly provided for in these Terms, is void. AliveCor reserves all rights not expressly granted under these Terms. If the KardiaComplete App is being acquired on behalf of the United States Government, then the following provision applies. The KardiaComplete App will be deemed to be “commercial computer software” and “commercial computer software documentation,” respectively, pursuant to DFAR Section 227.7202 and FAR Section 12.212, as applicable.
Any use, reproduction, release, performance, display or disclosure of the Service and any accompanying documentation by the U.S. Government will be governed solely by these Terms and is prohibited except to the extent expressly permitted by these Terms. The KardiaComplete App originates in the United States, and is subject to United States export laws and regulations. The KardiaComplete App may not be exported or re-exported to certain countries or those persons or entities prohibited from receiving exports from the United States. In addition, the KardiaComplete App may be subject to the import and export laws of other countries. You agree to comply with all United States and foreign laws related to use of the KardiaComplete App and the Service.
Licensed not Sold. KardiaComplete App is licensed to you, not sold to you.
KardiaMobile® 6L ECG Sensor. As part of the Service you will receive a KardiaMobile 6L ECG sensor for your use in combination with KardiaComplete App. This device comes with standard warranties provided here. If you should have any issues using the device please contact support at 1 (855) 338-8800 or at firstname.lastname@example.org.
Text Messaging. You may enroll to receive SMS/text messages from AliveCor regarding account- related alerts, reminders, and messages from your coaches ("Text Messaging Service” or “SMS Service"). By enrolling in the SMS/text messaging service, you agree to receive text messages from to your mobile phone number provided by you, and you certify that this mobile number is true and accurate and that you are authorized to enroll the designated mobile number to receive text messages. You acknowledge and agree that the text messages may be sent using an automatic telephone dialing system and that standard message and data rates apply. Message frequency varies. To unsubscribe from text messages at any time, reply STOP to the text message you received. You consent that following such a request to unsubscribe, you may receive one final text message from confirming your request. For help under this section, contact us at 1 (855) 338-8800 or email@example.com
Third Party Terms May Apply. Third party terms and fees may apply to the use and operation of your device in connection with your use of KardiaComplete App, such as your carrier's terms of services, and fees for phone service, data access, or messaging capabilities, and that you are solely responsible for payment of any and all such fees.
AliveCor owns and operates the Service. The documents, other information and Site Content (Section 13) available on the Service are protected by copyright and other intellectual property laws throughout the world. All copyright and other proprietary notices on any Site Content must be retained on any copies made thereof. Any unauthorized reproduction, modification, distribution, public display or public performance of any Site Content is strictly prohibited. AliveCor and its suppliers reserve all rights not granted in these Terms.
Telehealth and Telecoaching Services.
As part of the Service, AliveCor may enable you to obtain certain telehealth consultations with a board-certified cardiologist or other provider (each a “Cardiologist” or “Provider") licensed in your state of residence through a group of affiliated medical practices:
Florida Cardiac Health Medical Group, PA (dba Cardiac Health Medical Group) a Florida professional association (the Lead Entity);
Laura Purdy MD, PC (dba Cardiac Health Medical Group) as California professional corporation;
New Jersey Cardiac Health Medical Group, PA (dba Cardiac Health Medical Group) a New Jersey professional association; and
Kansas Cardiac Health Medical Group, PA a Kansas professional association.
(collectively “Cardiac Health Medical Group") that provide medical services exclusively to our users and subscribers ("Telehealth Consultation"). Telehealth involves the delivery of healthcare services using electronic communications, information technology or other means between the Provider and a patient (you) who are not in the same physical space. While the provision of healthcare services using telehealth may offer certain potential benefits, there are also potential risks associated with the use of telehealth.
Another part of the Service may enable you to obtain asynchronous (not live, not in real time) reviews by a Cardiologist of an ECG recording selected by you ("Clinician Review") performed by our exclusive provider Cardiac Health Medical Group. In the Clinician Review the Cardiologist will review the ECG recording selected by you, make appropriate medical findings and diagnoses from the ECG recording, make notes, and generate a report that is provided back to you through KardiaComplete App, again not in real-time. Collectively the Clinician Review and the Telehealth Consultation may be referred to herein as “Telehealth Services".
In order to utilize all features of the Service, you will be required to review and agree to the informed consent from our exclusive medical service provider, Cardiac Health Medical Group to use the Telehealth Services, which consent will be presented to you separately as part of the onboarding process for the Service. The informed consent to use of Telehealth Services is hereby incorporated into these Terms by reference and constitutes a part of these Terms.
The services you receive from Providers (i.e., Telehealth Services) are not intended to replace your relationship with your personal physician or cardiologist or to replace your primary cardiology care. You may form an ongoing treatment relationship with some Providers. However, your initial consultation with a Provider will not necessarily give rise to an ongoing treatment relationship. You should seek emergency help or follow-up care when recommended by a Provider or when otherwise needed and continue to consult with your primary care physician and other healthcare professionals as recommended and needed.
There are potential risks associated with use of the telehealth services, which include but are not limited to:
Delays in evaluation and treatment could occur due to deficiencies or failures of the equipment and technologies, or provider availability.
In the event of an inability to communicate as a result of a technological or equipment failure, please contact technical support at 1 (855) 338-8800 and/or write an email to firstname.lastname@example.org.
In rare events, your Provider may determine that the transmitted information is of inadequate quality, thus necessitating a rescheduled telehealth consult or an in-person meeting with your local primary care doctor.
In very rare events, security protocols could fail, causing a breach of privacy of personal medical information.
By accepting these Terms you acknowledge the following:
Benefits from the Services may be realized by you, but no results are guaranteed or assured.
Laws that protect the privacy and security of health information also apply to telehealth, and that you have read the Notice of Privacy Practices from Cardiac Health Medical that describes these protections in more detail.
The Cardiologist may determine that the Telehealth Consultation or Clinician Review are not appropriate for your needs and direct you to your seek care from a different provider.
Pricing, Charges and Payment Terms
- Health Plan and Employer Provider Pricing and Payment Terms. If you are a health plan or employer provider, or if you are an individual using the Service under a health plan or employer provider, the pricing and payment terms are between the health plan or employer provider and AliveCor and such terms are set forth in a separate provider services agreement between the health plan or employer provider and AliveCor ("Covered Fees").
- Individual Pricing and Payment Terms. If you are not accessing or using the Service under your health plan or employer provider, then you are accessing or using the Service on an individual basis. If you elect to use paid aspects of the Service, you agree to the pricing and payment terms as set forth in your account or made available to you online. AliveCor may add new services for additional fees and charges and to add or amend fees and charges for existing services. Any change to our pricing or payment terms shall become effective in the billing cycle following notice of such change to you as provided in these Terms.
- Optional Continued Coverage. If your health plan or employer provider has arranged with AliveCor to pay the fees or charges, or any portion of the fees or charges, then such fees or charges are Covered Fees and will be subject to a separate provider services agreement between AliveCor and the health plan or employer provider, as noted above. In the event that you are no longer eligible for such coverage under a health plan or from an employer provider (e.g., if the health plan is cancelled, the employer no longer offers such benefit or you are no longer employed by the employer provider) then you will have the option to (i) assume any and all unpaid fees and continue use of the Service or (ii) terminate your use of the Services. Please check with your health plan or employer provider to determine the level of coverage and/or Covered Fees that your health plan or employer provider will provide, if any, and if any additional fees apply to you. If you do not have insurance coverage for the Service, or if payment or coverage is denied by your health plan or employer provider, and you have used the Service, you acknowledge and agree that you will be personally responsible for all fees or charges. AliveCor offers no guarantee that your health plan or employer provider will be responsible for such fees or charges.
- Credit Card Payment. If you pay for any part of the Service by credit card, you hereby authorize AliveCor, or a third party appointed by AliveCor, to bill and charge the credit card indicated in your registration information for any fees and other amounts that may become due and payable (“Payment Processor”).
- Automatic Renewal. IF YOU HAVE SELECTED TO PAY FOR THE SERVICE ON A MONTHLY BASIS, UNLESS YOU NOTIFY US IN WRITING BY EMAILING SUPPORT@ALIVECOR.COM BEFORE A CHARGE IS DUE THAT YOU WANT TO CANCEL OR THAT YOU DO NOT WANT THE SERVICE TO AUTOMATICALLY RENEW, YOU UNDERSTAND AND AGREE THAT YOUR MONTHLY CHARGES, AND THE FEES SET FORTH IN YOUR ACCOUNT OR MADE AVAILABLE TO YOU ONLINE, WILL AUTOMATICALLY RENEW ON A CONTINUOUS MONTHLY BASIS AND YOU AUTHORIZE US (WITHOUT NOTICE TO YOU, UNLESS REQUIRED BY APPLICABLE LAW) TO CHARGE YOU THE MONTHLY FEE AND ANY TAXES, USING ANY ELIGIBLE PAYMENT METHOD WE HAVE ON RECORD FOR YOU.
- Refunds. You may cancel your request for Service or account within fourteen (14) calendar days after registering for the Service and you may receive a refund for the Services for which you paid (the “Refund Period”). To request a refund within the Refund Period, you must email email@example.com and include a mailing address where a refund check can be mailed. If you received any medical equipment (as described below), you will be refunded the amount you paid for the Service, less the amount paid for such equipment. You may cancel your account as set forth in these Terms, however there are no refunds for cancellation besides those described herein under the Refund Period. In the event that we suspend or terminate your account or these Terms, you understand and agree that you shall receive no refund.
Access and Connectivity
You are responsible for providing and maintaining, at your own risk, option and expense, appropriate software and hardware capabilities (consistent with any technical, quality or other requirements described in the Service) to enable use of the Service. AliveCor reserves the right to change the access configuration, including any software, hardware or other requirements of the Service at any time without prior notice.
We may provide certain medical equipment (e.g., KardiaMobile 6L ECG sensors), which are for your personal use only and not for resale.
- User Content Generally. Certain features of the Service may permit you, your healthcare provider, or other users to upload content to the Service, including messages, images, data, text, location information, and other types of information ("User Content") and to publish User Content on the Service. You retain the copyrights, including any moral rights, and any other proprietary rights that you may hold in the User Content that you post to the Service; provided that if you choose to link your account to our Kardia Pro service or information systems offered by your healthcare provider, any data provided to your healthcare provider may become part of your health record, and that copy of such data may be owned and/or controlled by your healthcare provider under applicable law.
Limited License Grant to Other Users. By posting or sharing User Content with other users of the Service, or connecting your account to your healthcare provider through our Kardia Pro service, you grant those users and/or healthcare providers a non-exclusive license to access and use that User Content as permitted by these Terms and the functionality of the Service.
User Content Representations and Warranties. You are solely responsible for your User Content and the consequences of posting or publishing User Content. By posting or publishing User Content, you affirm, represent, and warrant that:
you are the creator and owner of the User Content, or have the necessary licenses, rights, consents, and permissions to authorize AliveCor and users of the Service to use and distribute your User Content as necessary to exercise the licenses granted by you in this section, in the manner contemplated by AliveCor, the Service, and these Terms; and
your User Content, and the use of your User Content as contemplated by these Terms, does not and will not: (i) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (ii) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; or (iii) cause AliveCor to violate any law or regulation; and
you agree to pay for any and all royalties, fees, or other monies owing any person by reason of User Content you post on or through the Service.
User Content Disclaimer. We are under no obligation to edit or control User Content that you or other users post or publish and will not be in any way responsible or liable for User Content. AliveCor may, however, at any time and without prior notice, screen, remove, edit, or block any User Content that in our sole judgment violates these Terms or is otherwise objectionable. You understand that when using the Service you will be exposed to User Content from a variety of sources and acknowledge that User Content may be inaccurate, offensive, indecent, or objectionable. To the fullest extent allowed under applicable law, you agree to waive, and do waive, any legal or equitable right or remedy you have or may have against AliveCor with respect to User Content. We expressly disclaim any and all liability in connection with User Content, to the fullest extent allowed under applicable law. If notified by a user or content owner that User Content allegedly does not conform to these Terms, we may investigate the allegation and determine in our sole discretion whether to remove the User Content, which we reserve the right to do at any time and without notice.
Procedure for Unlawful User Content
If you believe that any User Content does not conform to these Terms, please notify us.
We comply with the provisions of the Digital Millennium Copyright Act (the “DMCA”) applicable to our operations (17 U.S.C. §512, as amended). If you have an intellectual property rights-related complaint about material posted on the Service, you may contact our designated agent at the following address:
ATTN: Legal Department (Copyright Notification)
189 Bernardo Street, Suite 100
Mountain View, CA 94043
Please note that under applicable law, if you knowingly give false, misleading or inaccurate information that User Content is infringing, you may be subject to civil or criminal penalty.
Any notice under the Digital Millennium Copyright Act (the “DMCA”) alleging that materials hosted by or distributed through the Service infringe intellectual property rights must include all of the information required by the DMCA for such notices.
Repeat Infringers. AliveCor will promptly terminate without notice the accounts of users that are determined by AliveCor to be “Repeat Infringers.” A Repeat Infringer is a user who has been notified of infringing activity or has had User Content removed from the Service at least three times.
Third-Party Services and Linked Websites.
The Site may contain links to other web sites operated by third parties. Such third-party web sites are not under the control of AliveCor and we are not responsible for the content of any third party web site or any link contained in a third party web site. AliveCor provides these links only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to third party web sites.
Termination of Use; Discontinuation and Modification of the Service.
You may terminate your account at any time by following the procedures detailed on the AliveCor website or contacting customer service at firstname.lastname@example.org. If you violate any provision of these Terms, your permission from us to use the Service will terminate automatically. In addition, AliveCor may in its sole discretion terminate your user account on the Service or suspend or terminate your access to the Service at any time if you violate any provision of these Terms, if we no longer provide any part of the Services or for any other reason, with or without notice. We also reserve the right to modify or discontinue the Service at any time (including by limiting or discontinuing certain features of the Service), temporarily or permanently, without notice to you. To the fullest extent permitted under applicable law, we will have no liability on account of any change to the Service or any suspension or termination of your access to or use of the Service, provided that if AliveCor ceases to operate the Service and terminates your access to the Service accordingly, then you will be entitled to a pro-rated refund of any prepaid fees that you have paid to AliveCor for use of the Service. Upon the termination of your account or this agreement for any reason, unless prohibited under applicable law, AliveCor may at its option delete any data associated with your account.
Your use of the Service is subject to all additional terms, policies, rules, or guidelines applicable to the Service or certain features of the Service that we may post on or link to from the Service (the “Additional Terms"), such as end-user license agreements for any downloadable software applications, or rules that are applicable to a particular feature or content on the Service. All Additional Terms are incorporated by this reference into, and made a part of, these Terms.
Modifications to these Terms.
We reserve the right, at our discretion, to change these Terms on a going-forward basis at any time. Please check these Terms periodically for changes. If a change to these Terms materially modifies your rights or obligations ("Material Modifications"), we will notify you of the modified Terms by email to the address you provided in your user profile. Material Modifications will be effective upon your acceptance of such modified. Immaterial modifications are effective upon publication. Disputes arising under these Terms will be resolved in accordance with the version of these Terms that was in effect at the time the dispute arose. Your sole and exclusive remedy if you do not agree with any modification to these Terms is to cancel your account. You may not amend or modify these Terms under any circumstances.
Ownership; Proprietary Rights.
The Service is owned and operated by AliveCor. The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services, and all other elements of the Service ("Site Content") provided by AliveCor are protected by intellectual property and other laws. All Site Content included in the Service is the property of AliveCor or our third-party licensors. Except as expressly authorized by AliveCor, you may not make use of the Site Content. AliveCor reserves all rights to the Site Content not granted expressly in these Terms.
No Medical Advice.
We act as a technology platform to connect you with Providers (e.g., Cardiac Health Medical Group) who may be available to provide you with certain non-emergency medical care. However, AliveCor is not itself a healthcare provider, and the Providers are solely responsible for providing you with any medical care and treatment you receive via the Service. We do not control or interfere with the practice of medicine by Providers, each of whom is responsible for the professional medical services he or she provides. By accepting these Terms and by using the Service, you are entering into a doctor-patient or other health care provider-patient relationship solely with one or more Provider(s) and not with AliveCor. The information provided by AliveCor as part of the Site Content and through the Service is for general informational purposes only. None of the Site Content should be considered medical advice or an endorsement, representation or warranty that any particular medication or treatment is safe, appropriate, or effective for you.
To the fullest extent permitted under applicable law, you are responsible for your use of the Service, and you will indemnify, hold harmless, and, if so directed by AliveCor, defend AliveCor Entities from and against every claim, liability, damage, loss, and expense, including reasonable attorneys’ fees and costs, arising out of or in any way connected with: (a) your access to, use of, or alleged use of, the Service; (b) your violation of any portion of these Terms, any representation, warranty, or agreement referenced in these Terms, or any applicable law or regulation; (c) your violation of any third-party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; (d) any dispute or issue between you and any third party; and (e) all claims arising from or alleging fraud, intentional misconduct, criminal acts, or gross negligence committed by you. To the fullest extent permitted under applicable law, we reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of that claim.
Disclaimers; No Warranties
THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS, WITHOUT WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED. THE ALIVECOR ENTITIES DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SERVICE, ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE, AND ANY SOFTWARE OR HARDWARE ASSOCIATED OR USED WITH THE SERVICE, OR THE AVAILABILITY OF ANY OF THE FOREGOING, INCLUDING: (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; (B) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE; AND (C) ANY WARRANTY AS TO WHETHER THE ECG DATA OR OTHER INFORMATION AVAILABLE ON OR TRANSMITTED BY THE SERVICE IS TRUE, COMPLETE OR ACCURATE. YOU SPECIFICALLY ACKNOWLEDGE AND AGREE THAT ALIVECOR 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 SERVICE, WHETHER SUCH DATA IS ACCURATE OR INACCURATE. THE ALIVECOR ENTITIES DO NOT WARRANT THAT THE SERVICE OR ANY PORTION OF THE SERVICE, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE SERVICE, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND DO NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICE OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE WILL CREATE ANY WARRANTY REGARDING ANY OF THE ALIVECOR ENTITIES OR THE SERVICE THAT IS NOT EXPRESSLY STATED IN THESE TERMS. YOU ASSUME ALL RISK FOR ANY DAMAGE THAT MAY RESULT FROM YOUR USE OF OR ACCESS TO THE SERVICE, YOUR DEALING WITH ANY OTHER SERVICE USER, AND ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE. YOU UNDERSTAND AND AGREE THAT YOU USE THE SERVICE, AND USE, ACCESS, DOWNLOAD, OR OTHERWISE OBTAIN MATERIALS OR CONTENT THROUGH THE SERVICE AND ANY ASSOCIATED SITES OR SERVICES, AT YOUR OWN DISCRETION AND RISK, AND THAT YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE SERVICE), OR THE LOSS OF DATA THAT RESULTS FROM THE USE OF THE SERVICE OR THE DOWNLOAD OR USE OF THAT MATERIAL OR CONTENT.
THE ABOVE PARAGRAPHS APPLY TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW. SOME JURISDICTIONS MAY PROHIBIT A DISCLAIMER OF WARRANTIES, IN PARTICULAR A DISCLAIMER OF WARRANTIES PROVIDED OR IMPLIED BY LAW, SUCH AS LEGAL GUARANTEES OF CONFORMITY FOR GOODS OFFERED TO CONSUMERS IN THE EU, AND YOU MAY HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.
Limitation of Liability
IN NO EVENT WILL THE ALIVECOR ENTITIES BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICE OR ANY MATERIALS OR CONTENT ON THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY ALIVECOR ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE. 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 ALIVECOR CANNOT LAWFULLY DISCLAIM LIABILITY FOR ANY OF THE FOREGOING DAMAGES, THEN THE AGGREGATE LIABILITY OF THE ALIVECOR ENTITIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE SERVICE OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF THE AMOUNTS YOU HAVE PAID TO USE THE SERVICE OR $100, TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN WHICH CASE SUCH LIMITATIONS SHALL APPLY TO YOU TO THE EXTENT PERMITTED IN SUCH JURISDICTION. FURTHERMORE, NOTHING IN THESE TERMS LIMITS OR EXCLUDES ANY LIABILITY THAT CANNOT BE LIMITED OR EXCLUDED BY LAW, SUCH AS LIABILITY FOR INTENTIONAL VIOLATION OF THESE TERMS. NOTHING IN THESE TERMS AFFECTS YOUR LEGAL RIGHTS AS A CONSUMER.
EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 18 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
Governing Law and Competent Courts.
To the fullest extent permitted pursuant to applicable law, these Terms are governed by the laws of the State of California without regard to conflict of law principles. If a lawsuit or court proceeding is permitted under these Terms, then you and AliveCor agree to submit to the personal and exclusive jurisdiction of the state courts and federal courts located within Santa Clara County, California for the purpose of litigating any dispute.
Dispute Resolution and Arbitration
PLEASE READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE CERTAIN DISPUTES AND CLAIMS WITH US AND LIMITS THE MANNER IN WHICH YOU MAY SEEK RELIEF FROM US.
Generally. To the fullest extent permitted under applicable law and in the interest of resolving disputes between you and AliveCor in the most expedient and cost effective manner, you and AliveCor agree that every dispute arising in connection with these Terms will be resolved by binding arbitration, unless you are a consumer located in a jurisdiction that prohibits the exclusive use of arbitration for dispute resolution.
Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND ALIVECOR ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION, TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW.
Opt-Out of Agreement to Arbitrate: You can decline this agreement to arbitrate by contacting email@example.com within 30 days of first accepting these Terms of Service and stating that you (include your first and last name, and email address used to register for the Service) decline this arbitration agreement.
Exceptions. Despite the provisions of Section 21.1, nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law; or (d) to file suit in a court of law to address an intellectual property infringement claim.
Arbitrator. To the fullest extent permitted under applicable law, any arbitration between you and AliveCor will be settled under the Federal Arbitration Act, and governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules") of the American Arbitration Association ("AAA"), as modified by these Terms, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting AliveCor.
Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if such other party has not provided a current physical address, then by electronic mail ("Notice"). AliveCor's address for Notice is: AliveCor, Inc., 189 Bernardo Street, Suite 100 Mountain View, CA 94043 USA. The Notice must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought ("Demand"). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice is received, you or AliveCor may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or AliveCor must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the dispute is finally resolved through arbitration in your favor, AliveCor will pay you the highest of the following: (i) the amount awarded by the arbitrator, if any; (ii) the last written settlement amount offered by AliveCor in settlement of the dispute prior to the arbitrator's award; or (iii) $1,000.
Fees. If you commence arbitration in accordance with these Terms, AliveCor will reimburse you for your payment of the filing fee, unless your claim is for more than $10,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location, to be agreed upon, in Santa Clara County, California, but if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephone hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse AliveCor for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator's ruling on the merits.
No Class Actions. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, YOU AND ALIVECOR AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and AliveCor agree otherwise, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of a representative or class proceeding, to the fullest extent permissible pursuant to applicable law.
Claims. To the fullest extent permitted under applicable law, no action arising out of, in connection with, or relating to these Terms 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, to the fullest extent permitted under applicable law.
Modifications to this Arbitration Provision. If AliveCor makes any future change to this arbitration provision, other than a change to AliveCor's address for Notice, you may reject the change by sending us written notice within 30 days of the change to AliveCor's address for Notice, in which case your account with AliveCor will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.
Enforceability. If Section 21.7 is found to be unenforceable or if the entirety of this Section 21 is found to be unenforceable, then the entirety of this Section 21 will be null and void and, in that case, the parties agree that the exclusive jurisdiction and venue described in Section 19 will govern any action arising out of or related to these Terms.
Notices; Consent to Electronic Communications.
The Service is offered by AliveCor, Inc. You may contact us by emailing us at firstname.lastname@example.org.
Notice to California Residents.
If you are a California resident, under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (800) 952-5210 in order to resolve a complaint regarding the Service or to receive further information regarding use of the Service.