Terms & Conditions
Last Revision: 11th November 2020
By continuing to use the Services, you agree as follows:
- IF YOU ARE NOT ELIGIBLE, OR DO NOT AGREE TO THE TERMS, THEN YOU DO NOT HAVE OUR PERMISSION TO USE THE SERVICES. DO NOT LOG IN TO THE SYSTEM AND IMMEDIATELY DELETE ALL INSTALLED FILES, IF ANY, OF THE ACCOMPANYING SERVICES AND MATERIALS FROM YOUR COMPUTER AND/OR MOBILE DEVICE;
- You are at least 13 years old;
- You understand and intend that these Terms are a legally binding agreement and the equivalent of a signed, written contract;
- You will use the Services in a manner consistent with applicable laws and regulations and these Terms, as they may be amended by M3DICINE from time to time; and
- You understand, accept, and have received these Terms, and acknowledge and demonstrate that you can access these Terms at will.
IMPORTANT NOTICE REGARDING ARBITRATION: WHEN YOU AGREE TO THESE TERMS YOU ARE AGREEING (WITH LIMITED EXCEPTION) TO RESOLVE ANY DISPUTE BETWEEN YOU AND M3DICINE THROUGH BINDING, INDIVIDUAL ARBITRATION, RATHER THAN IN COURT. PLEASE CAREFULLY REVIEW SECTION 11, "DISPUTE RESOLUTION," BELOW, FOR DETAILS REGARDING ARBITRATION (INCLUDING THE PROCEDURE TO OPT OUT OF ARBITRATION) AS THESE TERMS AFFECT YOUR LEGAL RIGHTS.
ARBITRATION NOTICE: EXCEPT IF YOU OPT-OUT AND EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN THE ARBITRATION SECTION BELOW, YOU AGREE THAT DISPUTES BETWEEN YOU AND M3DICINE WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION. YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION. YOU CAN OPT OUT OF THE AGREEMENT TO ARBITRATE BY CONTACTING [email protected] WITHIN 30 DAYS OF ACCEPTING THESE TERMS.
THE STETHEE PRO MOBILE APPLICATIONS, STETHEE PRO DEVICE, M3DICINE CENTRAL WEB TOOLS, AND WEB SERVICES (HEREAFTER, THE “APPLICATION”) ARE AVAILABLE TO USERS IN THE UNITED STATES OF AMERICA (USA) AND CERTAIN OTHER COUNTRIES. THE APPLICATION IS INTENDED TO BE USED AS A PART OF A PHYSICAL ASSESSMENT OR MONITORING OF A PATIENT BY HEALTHCARE PROFESSIONALS FOR DIAGNOSTIC DECISION SUPPORT.
STETHEE PRO 1 IS AN ELECTRONIC STETHOSCOPE INTENDED FOR MEDICAL DIAGNOSTIC PURPOSES ONLY. IT MAY BE USED FOR THE DETECTION AND AMPLIFICATION OF SOUNDS FROM THE HEART, LUNGS, ARTERIES, VEINS, AND OTHER INTERNAL ORGANS. IT CAN BE USED UNDER PHYSICIAN SUPERVISION OR DIRECTION ON ANY PERSON UNDERGOING A PHYSICAL ASSESSMENT.
Caution: Federal law restricts this device to sale by or on the order of a (licensed healthcare practitioner).” (See 21 Code of Federal Regulations (CFR) sec. 801.109(b)(1)).
THE APPLICATION IS NOT INTENDED TO BE USED SOLELY OR CONCLUSIVELY TO DIAGNOSE ANY HEART or LUNG CONDITION AND WILL NOT AUTOMATICALLY ALERT HEALTHCARE PROFESSIONALS OR PATIENTS TO POTENTIALLY SERIOUS HEART or LUNG CONDITIONS. M3DICINE (STETHEE PRO) DOES NOT AUTOMATICALLY REVIEW, MONITOR, EVALUATE OR ANALYZE ANY INFORMATION GENERATED FROM THE APPLICATION. IT IS YOUR RESPONSIBILITY TO INTERPRET MEDICAL DATA FOR PROPER ANALYSIS AND DIAGNOSIS.
DO NOT USE THE SERVICES WHERE PROHIBITED BY LAW. YOU UNDERSTAND THAT YOUR USE OF THE SERVICES MAY INVOLVE OR REQUIRE THE TRANSMISSION OF SIGNIFICANT AMOUNTS OF DATA. YOU ARE RESPONSIBLE FOR ALL DATA CHARGES THAT MAY BE CHARGED BY YOUR WIRELESS CARRIER OR INTERNET SERVICE PROVIDER OR THAT MAY OTHERWISE ARISE FROM YOUR USE OF THE SERVICES.
NOTE: M3DICINE is not a healthcare provider nor do we provide any healthcare services. We are not a health insurance company and we are not licensed to sell health insurance.
We Do NOT Provide Medical Advice.
Our Services provide an online option for licensed healthcare providers (“Providers”) and patients to communicate about medical conditions that are not serious or life threatening and do not present an emergency. It is NOT intended for use in connection with active patient monitoring to allow immediate clinical action or continuous monitoring by a health care provider or the patient.
THE SERVICES CANNOT AND ARE NOT DESIGNED, INTENDED OR APPROPRIATE TO REPLACE THE PROVIDER-PATIENT RELATIONSHIP OR TO ADDRESS OR DETECT SERIOUS, EMERGENCY, OR LIFE-THREATENING MEDICAL CONDITIONS AND SHOULD NOT BE USED IN THOSE CIRCUMSTANCES. PATIENTS SHOULD ALWAYS TALK TO THEIR HEALTHCARE PROVIDER(S) FOR DIAGNOSIS AND TREATMENT, INCLUDING INFORMATION REGARDING WHICH DRUGS, THERAPY, OR OTHER TREATMENT MAY BE APPROPRIATE FOR THEM.
M3DICINE is not liable in any way, to patients or to Providers, for any malpractice or substandard treatment a Provider provides. You are using the Services at your own risk.
Patients: If at any time you are concerned about your care or the treatment, or you believe or someone else advises you that you have a serious or life-threatening condition, call 9-1-1 immediately in areas where that service is available, or go to the nearest open clinic or emergency room.
M3DICINE DOES NOT ENDORSE OR RECOMMEND ANY PROVIDER, AND WE DO NOT CONFIRM THE CREDENTIALS OF ANY PROVIDERS. WE DO NOT CONTROL THE MEDICAL ADVICE THE PROVIDER GIVES, AND WE DO NOT HAVE ACCESS TO OR USE ANY OF THAT ADVICE. IT IS THE PATIENT’S RESPONSIBILITY TO SEPARATELY CONFIRM THAT A HEALTHCARE PROVIDER IS PROPERLY LICENSED.
The Application and Services, including without limitation the Stethee Pro 1 and Stethee Pro Mobile Application and M3DICINE Central Software System, are wholly-owned and operated by M3DICINE.
M3DICINE is obligated by the Food and Drug Administration (“FDA”) to report and investigate complaints regarding M3DICINE products. You agree to promptly submit all M3DICINE product complaints to [email protected] to ensure timely reporting and investigation. M3DICINE may investigate complaints regarding M3DICINE products as required by the FDA. M3DICINE may use your personal information to contact you through the Services to investigate complaints. If you submit a complaint, M3DICINE may contact you as part of its investigation.
By using the Application, you (“You”) understand and agree to the above description of the Application and further agree as follows:
1.0 REGISTRATION; TERM OF REGISTRATION
1.1. Registration through the Application
Stethee Pro is a Class II, FDA-cleared, medical device. Access to the Application is provided to customers who are qualified physicians, and the Application may only be used on patients by a licensed physician. By registering as a Stethee Pro user with M3DICINE, You acknowledge, represent and warrant that You have the appropriate qualifications and licensing to use the Application with Your patients. You must be a registered user with M3DICINE in order to use the Application. You may register through the Application. By submitting the information requested in the Application’s registration form, You may access and use the Application and Website to view certain data pertaining to You as made available by M3DICINE. You may not access or use the Application for any other purpose. By registering and using the Application, you acknowledge and agree that all information, data and other materials provided by You in support of Your online registration are accurate and truthful in all respects.
1.2. Term of Your registration
The term of Your registration will commence as of the date You complete Your online registration form (“Registration Date”) and, unless earlier terminated in accordance with these Terms and Conditions, will continue in perpetuity (“Term”). Notwithstanding the foregoing, Your registration may automatically expire following any period of inactivity associated with Your account in excess of twelve (12) consecutive months.
All notices from M3DICINE intended for receipt by You shall be deemed delivered and effective when sent to the email address provided by You during the registration process or when posted to and made available to You on Application (in either case, “Notice”). If You change the email address provided in connection with Your registration to access and use the Application, You must update Your email address in accordance with the procedures set forth on the Website.
2.0 MODIFICATIONS TO THE APPLICATION / TERMS AND CONDITIONS
2.1. Modifications to the Application / Terms and Conditions
You acknowledge and agree that M3DICINE may, in its sole discretion, modify the Application and these Terms and Conditions (including any instructions, policies or guidelines referenced herein) at any time and in any manner. If the Terms and Conditions are materially changed, we will post the changes on this page, and will indicate at the top of this page the date these Terms were last revised and became effective. Your continued use of the Services after the date any such changes become effective constitutes your unequivocal acceptance of, and agreement to be bound by, the new Terms and Conditions (including any and all changes).
You may not amend or modify the Application, Website or these Terms and Conditions under any circumstances.
3.0 REPRESENTATIONS, COVENANTS AND WARRANTIES
3.1. Representations, Covenants and Warranties of Registrant
You represent, covenant and warrant to M3DICINE that (1) You will use the Application consistent with the intended use as described in these Terms and Conditions; (2) these Terms and Conditions constitute a valid and binding agreement with You, enforceable against You in accordance with their terms; (3) if You are using the Application on behalf of another entity, You are an authorized representative of the entity and have the authority and agree to bind the entity to these Terms and Conditions; (4) You will not access or use the Application except as expressly permitted by these Terms and Conditions and any additional instructions, guidelines or policies issued by M3DICINE, including those posted in the Application; (5) You will access and use the Application and Services in full compliance with applicable Law (as defined in Section 4.1); and (6) all of the information, data and other materials provided by You in support of Your online registration are accurate and truthful in all respects.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT: (A) YOUR USE OF THE WEBSITE AND APPLICATION IS AT YOUR SOLE RISK, AND THE WEBSITE AND APPLICATION ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THESE TERMS AND CONDITIONS, M3DICINE, MAKES NO REPRESENTATIONS, COVENANTS OR WARRANTIES AND OFFERS NO OTHER CONDITIONS, EXPRESS OR IMPLIED, REGARDING ANY MATTER, INCLUDING (1) THE MERCHANTABILITY, SUITABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, NON-INFRINGEMENT OR RESULTS TO BE DERIVED FROM THE USE OF THE APPLICATION, WEBSITE OR ANY DATA SERVICE, SOFTWARE, HARDWARE, DELIVERABLE, WORK PRODUCT OR OTHER MATERIALS RELATED TO THE APPLICATION, OR THE AVAILABILITY OF ANY OF THE FOREGOING; OR (2) WHETHER THE INFORMATION AVAILABLE ON OR TRANSMITTED BY THE APPLICATION IS TRUE, COMPLETE OR ACCURATE. YOU SPECIFICALLY ACKNOWLEDGE AND AGREE THAT M3DICINE IS NOT RESPONSIBLE FOR ANY HEALTHCARE, DIAGNOSTIC, OR RELATED DECISIONS MADE BY YOU BASED UPON DATA COLLECTED, TRANSMITTED, OR DISPLAYED BY OR ON THE APPLICATION, WHETHER SUCH DATA IS ACCURATE OR INACCURATE. FURTHER, M3DICINE DOES NOT REPRESENT, COVENANT OR WARRANT THAT ACCESS TO OR SERVICES PROVIDED BY THE APPLICATION WILL BE UNINTERRUPTED OR ERROR-FREE. YOU ACKNOWLEDGE AND AGREE THAT THERE ARE RISKS INHERENT TO TRANSMITTING INFORMATION OVER AND STORING INFORMATION ON THE INTERNET AND THAT STETHEE IS NOT RESPONSIBLE FOR ANY LOSSES OF YOUR DATA, CONFIDENTIALITY OR PRIVACY IN CONNECTION THEREWITH.
4.1. You agree to use the Application and Website in strict compliance with (1) these Terms and Conditions; (2) any additional instructions, guidelines or policies issued by M3DICINE, including those posted within the Application or on the Website; and (3) all applicable laws, rules and regulations, including without limitation those listed below (collectively, “Laws”).
You agree to comply with all applicable privacy laws and regulations, including, but not limited to, the following (if applicable): the EU General Data Protection Regulation ("GDPR"); the Health Insurance Portability and Accountability Act of 1996, its amendments, and the regulations promulgated thereunder ("HIPAA"); the California Consumer Privacy Protection Act (“CCPA”); and the California Online Privacy Protection Act (“CalOPPA”). You will obtain any and all necessary consents or authorizations before uploading any personal data about any other person. You also agree to comply with all applicable laws and regulations that relate to the reporting and investigation of any adverse event, injury, toxicity or sensitivity reaction, or any unexpected incidence associated with any products, treatments, or therapies. You agree to accurately disclose all financial ties and conflicts of interest as required by law or other regulations.
You agree not to upload, post, publish, or display any protected health information (“PHI”) as such term is defined by HIPAA, personal health information, personally identifiable information, or other patient information to or via the Services (including any images or other content containing any such information) if doing so would violate HIPAA or any other applicable laws regarding personal information or personal health information. You acknowledge that M3DICINE is not a "covered entity," or "business associate," under HIPAA. M3DICINE does not assume any, and hereby disclaims all, liability arising from the uploading to, or use of any such information on or via, the Services.
It is your sole responsibility, if you are a covered entity, to ensure that you comply with the HIPAA requirements with respect to PHI. In the event you inadvertently provide PHI to M3DICINE, you agree to immediately remove the PHI or contact M3DICINE to request removal of the PHI. If M3DICINE discovers content containing PHI, M3DICINE may (but has no obligation to) notify you and delete the PHI-containing content. M3DICINE in no way accepts the responsibility to keep PHI confidential, and neither becomes a "covered entity," nor a "business associate," by performing this courtesy.
4.2 Use Prohibitions
You agree to use the Application only for the intended purpose. You must use the Website and Application in compliance with all privacy, data protection, intellectual property, and other applicable laws. The following uses of the Website and Application are prohibited. You may not: attempt to interfere with, harm, reverse engineer, steal from, or gain unauthorized access to the Website and Application, user accounts, or the technology and equipment supporting the Website and Application; frame or link to the Website and Application without permission; use data mining, robots, or other data gathering devices on or through the Website and Application; post incomplete, false, or misleading information, impersonate another person, or misrepresent Your affiliation with a person or entity; disclose personal information about another person or harass, abuse, or post objectionable material; sell, transfer, or assign any of Your rights to use the Website and Application to a third party without M3DICINE’s express written consent; post advertising or marketing links or content, except as specifically allowed by these Terms and Conditions; use the Website and Application in an illegal way or to commit an illegal act in relation to the Website and Application or that otherwise results in fines, penalties, and other liability to M3DICINE or others; or access the Website and Application from a jurisdiction where it is illegal or unauthorized.
5.1. Use of Contractors
M3DICINE may engage a third party (including M3DICINE’s affiliates) to perform, or support the performance of, all or any portion of the Application, Services or M3DICINE Website. Any engagement with any third party will be conducted in accordance with the M3DICINE Privacy Notice described in Section 7.1.
6.0 INTELLECTUAL PROPERTY RIGHTS; RESTRICTIONS ON USE
6.1. Ownership of the Application and Related Data
The Application is protected by copyright and other intellectual property laws. All intellectual property rights or propriety rights in and to or comprising the Website, Services and other features of the Application are and shall remain the property of M3DICINE or its licensors, including without limitation (i) M3DICINE’s trademarks, logos, service marks or other designations of origin used in or in connection with the Application (including M3DICINE™ and STETHEE™) (collectively, "Trademarks"), and (ii) all copyrights in and to the materials and content provided by M3DICINE in or through the Application (collectively, “M3DICINE IP”). M3DICINE or its licensors retain all right, title and interest in and to the M3DICINE IP, and no content provided by M3DICINE may be copied, distributed, republished, uploaded, posted or transmitted in any way without the prior written consent of M3DICINE. Neither these Terms and Conditions nor any disclosure made hereunder grant any license to You in or to any M3DICINE IP. You may not use the Trademarks in any advertising or publicity, or otherwise to indicate or suggest M3DICINE’s sponsorship of or afﬁliation with any product or service, without express written permission of M3DICINE.
By creating, posting, or sharing data, sound, and images on or through Stethee or the Website (“Your User Content”), and subject to the Privacy Notice, You grant M3DICINE a perpetual, irrevocable, worldwide, non-exclusive, sub-licensable, royalty-free, fully paid up, transferable license to reproduce, distribute, publicly display, publicly perform, create derivative works of, and otherwise use and modify Your User Content for the purposes of providing and enhancing the Website, Application, Services or other M3DICINE products and services. We may also create anonymized data and images from Your User Content, and such data and images will no longer be Your User Content. You waive any rights You may have regarding Your User Content being altered or manipulated in any way that may be objectionable to You. M3DICINE reserves the right to refuse to accept, post, display, or transmit any of Your User Content in its sole discretion. You represent and warrant that: (i) You own the content posted by You on or through the Application or otherwise have the right to grant the license set forth in these Terms, (ii) the posting and use of Your User Content on or through the Website or Application does not violate the privacy rights, publicity rights, copyrights, contract rights, intellectual property rights, or any other rights of any person or party, and (iii) the posting of Your User Content on the Website or Application does not result in a breach of contract between You and any third party. You agree to pay for all royalties, fees, and any other monies owing any person by reason of content You post on or through the Website or Application. You also acknowledge and agree that Your User Content is non-confidential and non-proprietary. M3DICINE may review and remove Your User Content at any time for any reason, including for activity which, in its sole judgment: violates these Terms and Conditions; violates applicable laws, rules, or regulations; is abusive, disruptive, offensive or illegal; or violates the rights of, or harms or threatens the safety of, users of the Application.
6.2. Use of the Application
You may use the Application only on Your own behalf and for lawful and appropriate purposes. You shall not use the Application, or any of the data presented on or by the Application, or otherwise hosted or stored by M3DICINE, for any commercial purpose other than as expressly permitted herein. This license is revocable at any time without notice and with or without cause. You will notify M3DICINE immediately upon any suspected unauthorized use of the Application, whether by You or a third party, or any suspected loss of or suspected unauthorized access to passwords or other log-in information used by You to access the Application (“Login Credentials”). You shall be solely responsible for maintaining the confidence and security of any Login Credentials, and M3DICINE shall bear no liability or other responsibility associated therewith.
The M3DICINE Aida findings and reports: You may use the Application to generate reports of findings using the heart, lung or body sound data. Any reports provided by M3DICINE do not suggest a diagnosis. The interpreted report is intended as information for You and to be used as a tool to provide proper diagnosis and treatment taking into account the patient’s complete medical history. Analysis and diagnosis based on the data can only be accomplished by a physician.
6.3. Findings and Reports
You may use the Application to generate reports of heart, lung or other body sound data. Any reports provided by the Application or M3DICINE do not suggest a diagnosis. The report is intended as information for You and to be used as a tool for you to independently provide proper diagnosis and treatment taking into account the patient's complete medical history. Analysis and diagnosis based on the data can only be accomplished by a physician.
6.4. Regional Telemedicine Restrictions
Due to telemedicine restrictions, Your location may restrict Your ability to use the Clinical Interpretation Service. Since You are using a mobile device to collect Your data, it is Your responsibility to ensure the Clinical Interpretation Service is legal according to Your local telemedicine laws. You have the option to obtain a heart or body sound recording using the Stethee Pro device at any time. These heart and body sound recordings are subject to multiple factors related to your health and activities. M3DICINE makes no guarantees of the accuracy or clinical significance of the data. You explicitly consent to sharing data with the third party electronic health record systems (EHRs) according to terms described in the M3DICINE Privacy Notice located at www.m3dicine.com/privacy.
7.0 PRIVACY NOTICE
7.1. Privacy Notice
You explicitly consent to the collection, hosting, use, disclosure and other processing or handling of information as described in the M3DICINE Privacy Notice located at https://www.m3dicine.com/privacy. The M3DICINE Privacy Notice may be amended by M3DICINE in its sole discretion from time to time. Your continued use of the application after the date any such changes become effective constitutes your unequivocal acceptance of, and agreement to be bound by, the new Privacy Notice (including any and all changes).
8.0 SUSPENSION AND TERMINATION
M3DICINE may suspend or limit Your access to the Application if M3DICINE, in its sole discretion, suspects that You are in violation of, or reasonably likely to be in violation of, these Terms and Conditions or any additional instructions, guidelines or policies issued by M3DICINE, including those posted within the Application.
You may cancel Your registration at any time in accordance with the procedures described on the Website.
8.3. Termination by M3DICINE
M3DICINE may terminate Your registration, including Your right to access and use the Website or the Application, in whole or in part, as follows:
Immediately (1) in order to comply with applicable Law or instructions from any governmental agency or authority; (2) if M3DICINE, in its sole discretion, suspects that You are using the Application in a manner not permitted by these Terms and Conditions; or (3) upon any breach of these Terms and Conditions by You.
For convenience, upon notice by M3DICINE to You.
8.4. Effect of Termination
Upon termination of Your registration, for any reason (i) You will no longer be authorized to access or use the Application or otherwise use any of the features or services offered by or through the Application; (ii) M3DICINE may delete any data associated with You or Your account; and (iii) all rights and obligations of the Parties under these Terms and Conditions shall expire, except those rights and obligations under those sections specifically designated in Section 8.5.
8.5. Survival of Selected Provisions
Notwithstanding the termination of Your registration or rights to use the Application, the following sections of the Terms and Conditions shall survive any such expiration or termination: Sections 3.2, 6.1, 8.4, 9, 10, 11 and 12.
9.1. Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE M3DICINE GROUP (AS DEFINED IN SECTION 10.1) SHALL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RESULTING FROM YOUR USE OF THE APPLICATION OR SERVICE OR BASED UPON ANY BREACH OF ANY EXPRESS OR IMPLIED WARRANTY, BREACH OF CONTRACT (INCLUDING THESE TERMS AND CONDITIONS AND ANY ADDITIONAL INSTRUCTIONS, GUIDELINES OR POLICIES ISSUED BY STETHEE OR M3DICINE, INCLUDING THOSE POSTED IN THE APPLICATION OR ON THE WEBSITE), NEGLIGENCE, TORT OR ANY OTHER LEGAL THEORY (COLLECTIVELY, THE “EXCLUDED DAMAGES”). FOR THE AVOIDANCE OF DOUBT, THE EXCLUDED DAMAGES ALSO INCLUDE WITHOUT LIMITATION, LOSS OF SAVINGS OR REVENUE; LOSS OF PROFIT; LOSS OF USE; LOSS OF LIFE OR HEALTH; THE CLAIMS OF THIRD PARTIES; AND ANY COST OF ANY SUBSTITUTE EQUIPMENT OR SERVICES. IF M3DICINE CANNOT LAWFULLY DISCLAIM LIABILITY FOR ANY OF THE FOREGOING DAMAGES, THEN M3DICINE GROUP’S MAXIMUM LIABILITY TO YOU IS LIMITED TO THE PURCHASE PRICE PAID BY YOU TO STETHEE FOR THE APPLICATION OR $100, WHICHEVER IS GREATER. THESE LIMITATIONS APPLY EVEN IF ANY OTHER REMEDIES AVAILABLE TO YOU FAIL OF THEIR ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
At its option, any member of M3DICINE may seek all remedies available to it under law and in equity, including injunctive relief in the form of specific performance to enforce these Terms and Conditions, including any additional instructions, guidelines or policies issued by M3DICINE, including those posted in the Application, and/or actions for damages.
No action or claim arising out of, in connection with, or relating to these Terms and Conditions or the subject of these Terms and Conditions shall be brought by You more than one (1) year after the accrual of the cause of action.
10.1. Indemnity by You
You will indemnify and hold harmless, M3DICINE, its affiliates and their respective current, future or former officers, directors, partners, equity holders, employees, agents, contractors, and their successor or assigns (collectively, the “M3DICINE Group”) on demand, from and against any and all fines, penalties, liabilities, losses and other damages of any kind whatsoever (including attorneys’ and experts’ fees), incurred by any of the members of the M3DICINE Group, and, if directed by M3DICINE, shall defend the M3DICINE Group against (1) all claims that any information, data or other materials provided by You in connection with Your use of the Application (including Your application for registration to access and use the Application) or these Terms and Conditions, or use thereof by any member of the M3DICINE Group, infringes, misappropriates or otherwise violates any patent, trademark, copyright, trade secret or other intellectual property right or proprietary right or privacy right of a third party; (2) all claims arising from fraud committed by, or the intentional misconduct, criminal acts or gross negligence of, You; and (3) all claims otherwise arising due to a failure by You to comply with any term or condition of these Terms and Conditions, including any additional instructions, guidelines or policies issued by M3DICINE, including those posted in the Application.
11.0 DISPUTE RESOLUTION
You and M3DICINE agree that all disputes will be resolved solely by binding, individual arbitration, and not in a class, representative, or consolidated action or proceeding. You and M3DICINE agree that the U.S. Federal Arbitration Act governs the interpretation and enforcement of these Terms, and that you and M3DICINE are each waiving the right to a trial by jury and/or to participate in a class action. This arbitration provision shall survive termination of these Terms and Conditions.
M3DICINE prefers to resolve disputes amicably and efficiently, and many disputes can be resolved quickly and by emailing customer support at [email protected] If such efforts prove unsuccessful, a party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute (“Notice”). The Notice to M3DICINE should be sent to Level 1, 88 Brandl Street, Eight Miles Plains, QLD ,4113, Australia. The Notice must (i) describe the nature and basis of the claim or dispute and (ii) set forth the specific relief sought. If M3DICINE and You do not resolve the claim within sixty (60) calendar days after the Notice is received, you or M3DICINE may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by M3DICINE or You shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which You or M3DICINE is entitled.
The arbitration will be conducted by the American Arbitration Association ("AAA") under its Consumer Arbitration Rules ("AAA Rules") then in effect, except as modified by these Terms. The AAA Rules are available at www.adr.org, or by calling 1-800-778-7879. A party who wishes to start arbitration must submit a written Demand for Arbitration to AAA, and give notice to the other party as specified in the AAA Rules. The AAA provides a form Demand for Arbitration at www.adr.org.
If Your claim is for U.S. $10,000.00, or less, you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic or video-conference hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds U.S. $10,000.00, the right to a hearing will be determined by the AAA Rules. Any arbitration hearings will take place in QLD, AUSTRALIA before a single arbitrator, unless we both agree to a different location. You and M3DICINE both agree that the arbitrator shall have exclusive authority to decide all issues relating to the interpretation, applicability, enforceability, and scope of this arbitration agreement. Payment of all filing, administration, and arbitrator fees will be governed by the AAA Rules.
YOU AND M3DICINE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR OUR INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, if the parties' dispute is resolved through arbitration, the arbitrator may not consolidate another person's claims with your claims, and may not otherwise preside over any form of a representative or class proceeding.
Notwithstanding the provisions of Section 2.1, " Modifications to the Application / Terms and Conditions," above, if we change any of the terms of this Section, "Disputes," after the date You first accepted these Terms and Conditions (or accepted any subsequent changes to these Terms), You may reject any such change by sending us written notice (including by email to [email protected] within thirty (30) days of the date such change became effective, as indicated in the "Last Revision" date above, or in the date of our email or other communication to You notifying You of such change. By rejecting any change, You are agreeing that you will arbitrate any Dispute between you and M3DICINE in accordance with the terms of this Section, "Disputes,” as of the date you first accepted these Terms and Conditions (or accepted any subsequent changes to these Terms and Conditions).
11.2. Governing Law
All rights and obligations of You or the M3DICINE Group relating to these Terms and Conditions, including any additional instructions, guidelines or policies issued by M3DICINE, including those posted in the Application, shall be governed by and construed in accordance with the Laws of New York State, USA, without giving effect to any choice-of-law provision or rule that would cause the application of the Laws of any other jurisdiction.
12.1. Entire Agreement, Amendments and Modifications
These Terms and Conditions and any additional instructions, guidelines or policies issued by M3DICINE, including those posted in the Application constitute the entire agreement of the Parties with regard to Your use of the Application, and all matters addressed herein, and all prior agreements, letters, proposals, discussions and other documents regarding the Application and the matters herein are superseded and merged into these Terms and Conditions.
12.2. Force Majeure
M3DICINE will be excused from performance under these Terms and Conditions for any period that it is prevented from or delayed in performing any obligations pursuant to these Terms and Conditions, in whole or in part, as a result of a Force Majeure Event. For purposes of this Section (12.2), “Force Majeure Event” means an event or series of events caused by or resulting from any of the following: (1) weather conditions or other elements of nature or acts of God; (2) acts of war, acts of terrorism, insurrection, riots, civil disorders or rebellion; (3) quarantines or embargoes, plague, epidemic, pandemic, or other public health crisis or direct intervention of governmental authority, (4) labor strikes; (4) telecommunications, network, computer, server or Internet downtime; (5) unauthorized access to M3DICINE’s information technology systems by third parties; or (6) other causes beyond the reasonable control of M3DICINE.
If any provision of these Terms and Conditions shall be held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby, and such provision shall be deemed to be restated to reflect the Parties’ original intentions as nearly as possible in accordance with applicable Law(s).
You may not assign these Terms and Conditions (or any rights, benefits or obligations hereunder) by operation of law or otherwise without the prior written consent of M3DICINE, which may be withheld at M3DICINE’s sole discretion. Any attempted assignment by You that does not comply with the terms of this Section (12.4) shall be null and void. M3DICINE may assign these Terms and Conditions, in whole or in part, to any third party in its sole discretion.
13.0 APPLE-ENABLED APPLICATIONS
The Services may be provided by applications that are intended to be operated in connection with a device made commercially available by Apple Inc. (“Apple”) or “Android" an application obtained through the Apple App Store or Google Play Store, among other platforms. With respect to the Services that are made available for use in connection with an Apple device or through the Apple App Store (“Apple-Platform Services”), in addition to the other terms and conditions herein, the following terms and conditions apply:
- You acknowledge that these Terms are concluded between M3DICINE and you only, and not with Apple, and M3DICINE, not Apple, is solely responsible for the Apple-Platform Services and the content thereof.
- You may not use the Apple-Platform Services in any manner that is in violation of or inconsistent with the Usage Rules set forth for Apple-Platform Services in, or otherwise be in conflict with, the App Store Terms of Service.
- Your license to use the Apple-Platform Services is limited to a non-transferable license to use the Apple-Enabled Software on an iOS Product that you own or control, as permitted by the Usage Rules set forth in the App Store Terms of Service.
- Apple has no obligation whatsoever to provide any maintenance or support services with respect to the Apple-Platform Services.
- Apple is not responsible for any product warranties, whether express or implied by law. In the event of any failure of the Apple-Enabled Software to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the Apple-Platform Services to you; and, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Apple-Platform Services, or any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty, which will be M3DICINE’s sole responsibility, to the extent it cannot be disclaimed under applicable law.
- M3DICINE and you acknowledge that M3DICINE, not Apple, is responsible for addressing any claims of Users or any third party relating to the Apple-Platform Services or Users’ possession and/or use of that Apple-Enabled Software, including, but not limited to: (i) product liability claims; (ii) any claim that the Apple-Platform Services fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection, privacy or similar legislation.
- In the event of any third party claim that the Apple-Platform Services or your possession and use of that Apple-Platform Services infringes that third party’s intellectual property rights, M3DICINE, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
- You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
- You agree that you will comply with any applicable third party terms of agreement when using the Apple-Platform Services.
- You acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of these Terms, and that, up on your acceptance of the terms and conditions of the Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce the Terms as a third party beneficiary thereof.
- Any questions, complaints or claims with respect to the Apple-Platform Services should be directed to M3DICINE as follows: [email protected]
Level 1, 88 Brandl Street,
Eight Miles Plains
14.0 CONTACTING M3DICINE
Please contact us at [email protected] to report any violations of these Terms and Conditions or if you have any questions regarding these Terms and Conditions. Alternatively, you may contact us at:
Level 1, 88 Brandl Street,
Eight Miles Plains