March 2011
MyCardio™ Document Number D-1011-034
TERMS OF USE AGREEMENT
This Terms of Use Agreement (this “Agreement”) governs the use of the www.SleepImage.com website (including the content thereon, the “Website”), the M1 recorder device (the “M1 Device”) licensed by MyCardio LLC and presented under the marketing name SleepImage (“MyCardio” and “SleepImage”) pursuant to the terms hereof (the M1 Device and all ancillary products licensed, provided or distributed by MyCardio in connection therewith, whether via the Website or otherwise, the “Products”), and all services performed by MyCardio in connection with any of the foregoing (the “Services”).
By using the Website, the Products, or the Services, or by clicking a box that states you agree to this Agreement (as applicable), you agree to be bound by this Agreement. If you do not agree to this Agreement, do not use the Website or any Products or Services. This Agreement is available to you at any time through the Website at www.SleepImage.com.
1. LICENSE
Upon acceptance of your Product order, MyCardio grants you a non-exclusive, revocable, limited, personal and nontransferable license, subject to and conditioned on your full compliance with this Agreement, to use the Products [solely in connection with your use of the Website and the Services] (the “License”). The Products are, and shall at all times remain the property of MyCardio, and you shall have no right, title, or interest therein except as expressly set forth in this Agreement. All additions or improvements to the Products of any kind or nature made by you shall become component parts of the Products, and title shall immediately vest in MyCardio and be governed by the terms of this Agreement.
2. BILLING AND PAYMENT
Payment for the Products licensed and the Services rendered to you shall be made monthly, in advance, by credit card, Paypal, or other means of payment acceptable to MyCardio (each, a “Payment Method”). You shall provide MyCardio with your Payment Method information concurrently with your Product order by providing that information to the MyCardio Customer Service Representative with whom you placed your Product order or via such other method that is acceptable to MyCardio in its sole discretion. You acknowledge that the Payment Method will be used to pay all fees due hereunder, and you agree to keep your Payment Method information current at all times. By placing a Product order, you authorize MyCardio to charge the Payment Method for all payments hereunder.
3. PRODUCT WARRANTY AND REPLACEMENT POLICY
MyCardio warrants that each Product will conform to the specifications for such Product (as such specifications may be amended or supplemented from time to time by MyCardio, the “Specifications”) for the period of this agreement. A copy of the Specifications for each Product is available on the Website. The foregoing notwithstanding, MyCardio makes no warranty for damages, errors or the like to any Product caused by accident, abuse or misuse; variations or problems with electrical power; natural disaster; servicing not authorized by MyCardio; handling, storage, operation, use or maintenance in a manner or environment not conforming to or not in accordance with the applicable Specifications, Product literature or other instructions or specifications provided by MyCardio (whether via the Website or elsewhere); problems caused by third-party software; or problems resulting from hardware parts or components not supplied by MyCardio.
In the event any warranty claim is made, MyCardio or its authorized agents may, at its election, inspect the Product subject to the warranty claim or issue shipping instructions for return of such Product to MyCardio or its designee. If MyCardio determines that the warranty claim for such Product is valid, MyCardio shall, in its sole discretion, repair or replace such Product, or refund all amounts paid to MyCardio for such Product and arrange for such Product to be returned to MyCardio at MyCardio’s expense. Such repair, replacement or refund is your exclusive remedy, and MyCardio will bear no other expenses. Repair or replacement of a Product under the terms of MyCardio’s limited warranty does not extend the original limited warranty period (i.e., repaired or replaced Products are covered by the limited warranty for the remainder of the original warranty period).
4. PRODUCT SUPPORT
MyCardio shall use reasonable efforts to provide technical support for each Product (unless and until MyCardio is no longer offering such Product for sale or license). Technical support may be provided via the Internet, telephone or any other method as determined by MyCardio in its sole and absolute discretion. If you need Product support, contact MyCardio via the “Contact Us” page or technical support chat of the Website, via phone at 888-975-7464 (888.9.SLP IMG), or via email at support@sleepimage.com. Response times may vary.
5. RISK OF LOSS; SUPPLEMENTARY PRODUCT REPLACEMENT POLICY
Except as provided in the paragraph below and in Section 3 hereof, you assume and shall bear the entire risk of loss, theft, destruction, or damage of or to any part of a Product licensed to you from any cause whatsoever (“loss or damage”), and no loss or damage shall release you of your obligations under this Agreement. At the sole option of MyCardio, you shall, at your expense return such Product to MyCardio and pay an amount to MyCardio equal to the cost of a new Product.
If you purchased a supplementary Product replacement policy offered by MyCardio, all fees due hereunder are paid up-to-date, you are not in breach of this Agreement, and MyCardio has a valid and acceptable Payment Method for you on file, then any Product of yours covered by such policy that suffers a loss or damage shall be replaced by MyCardio up to once (1) per coverage year for such Product at no cost to you, other than applicable shipping and handling charges in effect at the time of replacement. In order to make a claim under such supplementary Product replacement policy, you must contact MyCardio via the “Contact Us” page or technical support chat of the Website, via phone at 888-975-7464 (888.9.SLP IMG), or via email at support@sleepimage.com. MyCardio reserves the right to terminate any supplementary product replacement policy offered by it at any time.
6. YOUR RESPONSIBILITIES
A PRODUCT MAY BE OR MAY INCLUDE A MEDICAL DEVICE, THE USE OF WHICH IS RESTRICTED UNDER LOCAL LAW TO PHYSICIANS OR PERSONS ACTING ON THE ORDER OF A PHYSICIAN. A PRODUCT MAY GENERATE OR USE COMPUTERIZED ANALYSIS OF PHYSIOLOGIC DATA. THE ANALYSIS ACTS ONLY AS AN AID FOR THE PHYSICIAN IN DETERMINATION OF A PROPER DIAGNOSIS. IT DOES NOT REPLACE THE PHYSICIAN AND DOES NOT DENOTE A DIAGNOSIS. THE FUNCTIONS AND CAPABILITIES OF THE PRODUCTS ARE NOT INTENDED TO REPLACE THE USE OF SOUND, PROFESSIONAL JUDGMENT BY PHYSICIANS AND TECHNOLOGISTS.
Except as otherwise provided herein, you, at your sole expense, shall maintain the Products in good repair, condition, and functional order, shall not use the Products unlawfully, and shall not alter the Products without MyCardio’s prior written consent.
7. SOFTWARE
The Products require use of the Software (as defined in Section 14 below) in order to properly function. Use of the Software requires acceptance of this Agreement. MyCardio may provide or make available updates and modifications to the Software that in some cases must be installed for continued functionality of the Software or the Product(s). Any files that are delivered to you by MyCardio (via the Website, other online transmission or otherwise) to update or otherwise modify the Software, and any and all copies and derivative works of such updates and the Software modified thereby is also “Software” and is subject to the terms of this Agreement.
8. WEBSITE
The Website is not intended to be a substitute for professional medical advice, diagnosis or treatment.
9. USER ACCOUNTS
In order to use the Products, the Services, or certain other materials made available on or via the Website (the “Website Materials”), you may be required to create a user account. When creating your user account, you may be required to provide MyCardio with certain personal information and financial information. You agree that you will supply accurate information to MyCardio when requested, and that you will update that information if and when it changes. When registering an account, you may be required to select a unique username and a password (collectively, the “Login Information”). You are responsible for maintaining the confidentiality of the Login Information, and you will be responsible for all uses of the Login Information, whether or not authorized by you. In the event that you become aware of or reasonably suspect any breach of security including, without limitation, any loss, theft or unauthorized disclosure of the Login Information, you must immediately notify MyCardio via the “Contact Us” page of the Website or by calling Customer Service at Toll Free: 888.975.7464 (888.9.SLP IMG) or email: support@sleepimage.com.
10. LIMITATIONS ON REPRESENTATIONS AND WARRANTIES
EXCEPT AS SPECIFICALLY SET FORTH HEREIN, THE PRODUCTS, THE WEBSITE, AND THE SERVICES ARE PROVIDED “AS IS,” AND MYCARDIO DOES NOT WARRANT THE FITNESS, MERCHANTABILITY, DESIGN, CONDITION, CAPACITY, SUITABILITY, OR PERFORMANCE OF THE WEBSITE, THE PRODUCTS OR THE SERVICES, AND DOES NOT WARRANT THAT THE PRODUCTS, THE WEBSITE, OR THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE PRODUCTS, THE WEBSITE, OR THE SERVICES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. EXCEPT AS SPECIFICALLY SET FORTH HEREIN, MYCARDIO EXPRESSLY DISCLAIMS ALL WARRANTIES OR CONDITIONS INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE OR USE AND NON-INFRINGEMENT AND ANY IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR PERFORMANCE.
11. LIMITATION OF LIABILITIES
IN NO EVENT WILL YOU BE ENTITLED TO, AND MYCARDIO, ITS MEMBERS, MANAGERS, OFFICERS, EMPLOYEES, SUBSIDIARIES, REPRESENTATIVES, AGENTS, LICENSORS, AND AFFILIATES WILL NOT BE LIABLE FOR, ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES OF ANY NATURE ARISING OUT OF, RELATING TO OR IN CONNECTION WITH THE USE OF OR INABILITY TO USE THE PRODUCTS, THE WEBSITE OR THE SERVICES INCLUDING, WITHOUT LIMITATION, BUSINESS INTERRUPTION COSTS, LOSS OF GOOD WILL, LOSS OF PROFIT OR REVENUE, LOSS OF DATA, COMPUTER FAILURE OR MALFUNCTION, LOSS OF CUSTOMERS, INTERRUPTIONS OF SERVICE INCLUDING, WITHOUT LIMITATION, ISP DISRUPTIONS, SOFTWARE OR HARDWARE FAILURES OR ANY OTHER EVENT WHICH MAY RESULT IN A LOSS OF DATA OR DISRUPTION OF SERVICE, EVEN IF MYCARDIO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU AGREE THAT YOU WILL NOT BRING A CAUSE OF ACTION RELATING TO THE PRODUCTS, THE WEBSITE, THE SERVICES OR THIS AGREEMENT AGAINST MYCARDIO’s MEMBERS, MANAGERS, OFFICERS OR EMPLOYEES IN THEIR PERSONAL CAPACITY. YOUR RECOVERY FROM MYCARDIO FOR ANY CLAIM SHALL NOT EXCEED THE FEES PAID BY YOU TO MYCARDIO FOR THE PRODUCT OR SERVICE GIVING RISE TO SUCH CLAIM, IRRESPECTIVE OF THE NATURE OF THE CLAIM, WHETHER IN CONTRACT, TORT, WARRANTY OR OTHERWISE. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES SO SUCH LIMITATION MAY NOT APPLY TO YOU.
12. INDEMNITY
You agree to indemnify and hold harmless MyCardio and its members, managers, officers, employees, subsidiaries, representatives, agents, licensors, and affiliates from and against, for and in respect of, any claim, loss, damage, or demand, including reasonable attorneys’ fees, made by any third party due to or arising out of your breach of this Agreement or your violation of any law or the rights of a third party.
13. FORCE MAJEURE
MyCardio shall not be liable for any delay or failure to perform resulting from causes outside the reasonable control of MyCardio including, without limitation, acts of God, war, terrorism, riots, embargoes, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
14. INTELLECTUAL PROPERTY
The Products, the Website, and the Services contain copyrighted material, trade secrets and other proprietary material belonging to MyCardio or its licensors. All rights not specifically granted in this Agreement, including federal and international copyrights, are reserved by MyCardio and its licensors, as applicable. Except as otherwise provided herein, you may not (i) reproduce, make or distribute copies of the Website Materials or any software comprising a part of or accompanying the Products or Services (the “Software”), (ii) electronically transfer the Software or Website Materials from one computer to another or over a network, (iii) alter, merge, modify, adapt or translate the Software or Website Materials, or decompile, reverse engineer, disassemble or otherwise reduce the Software to a human-perceivable form, or create derivative works based upon the Software or Website Materials, or (iv) rent, lease or sublicense the Software, the Products, the Software or Services.
You shall not use the Products or the Software to develop any product or application having the same primary function as the Products or Software, respectively. You agree that you shall not use any automated device or process, such as a “bot” or a “spider,” to copy or extract information or content from the Software or Website. Also, you agree that you shall not copy, modify or publicly display any Website Materials for use in any commercial manner.
MyCardio™, SleepImage™ and other trademarks contained in the Software are trademarks of MyCardio, its affiliates or third parties. You may not remove or alter any trademark, trade name, product name, logo, copyright or other proprietary notice, legend, symbol or label from the Products, the Software or the Website. This Agreement does not authorize you to use MyCardio’s or its licensors’ names or any of their respective trademarks.
15. PRIVACY POLICY
MyCardio has established a Privacy Policy that describes how MyCardio collects and uses various types of information. You may review the Privacy Policy at www.sleepimage.com. By agreeing to this Agreement, you consent to the privacy practices detailed in the Privacy Policy, which may be modified from time to time as set out in the Privacy Policy. To the extent you are covered by laws requiring your consent for data transfer to the United States, you agree that your data may be transferred to the United States and collected and used in accordance with the Privacy Policy.
16. HEALTHCARE PROVIDERS
In the case you are a health care provider or other covered entity within the meaning of the HIPAA Privacy Rule and use a Product, Software, Website or Service in connection with individually identifiable personal health information, you agree to have a HIPAA Privacy Rule compliant Notice of Privacy Practices Concerning Your Personal Health Information or similar document consistent with, and at least as restrictive as, MyCardio’s Notice of Privacy Practices Concerning Your Personal Health Information available at www.sleepimage.com.
17. THIRD-PARTY CONTENT
The Website sometimes shows links or provides access to other websites and resources. MyCardio does not control such sites and resources, MyCardio is not responsible for their availability, and MyCardio does not endorse and is not responsible or liable for any content, advertising, products or other materials on or available from such sites or resources. In addition, MyCardio shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use or purchase of, or reliance on, any such content, goods or services available on or through any such site or resource.
18. EXPORT CONTROLS.
The Products may not be exported into (or to a national or resident of) any country to which the U.S. has embargoed goods, or to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Denial Orders. You represent and warrant that you are not located in, under the control of, or a national or resident of any such country or on any such list.
19. TERM; TERMINATION.
MyCardio may terminate the License, your right to access the Website and Service, and your license to the Software at any time and for any or no reason, whether you violate this Agreement or not. You further understand and agree that MyCardio, at its sole discretion, may terminate, remove or alter the Website, the Products, or the Services at any time and for any reason or no reason.
You may cancel your License to any or all of the Products at any time after the twelve month anniversary hereof by following the link on the Website, by notifying MyCardio Customer Service by phone at 1-888-975-7464 (888.9.SLP IMG), or by email at support@sleepimage.com, and such cancellation shall be effective 30 days thereafter.
IN THE EVENT OF TERMINATION OR CANCELLATION, MYCARDIO DOES NOT PROVIDE REFUNDS OR CREDITS FOR ANY PARTIAL-MONTH PAYMENTS.
Upon your cancellation or termination of the License to any or all of the Products, you, [at your sole expense,] shall return the Products covered by such License in good repair, ordinary wear and tear excepted, to such place or on board such carrier, packed for shipping, as MyCardio may specify. Failure to do so within seven days of such cancellation or termination will result in your Payment Method being billed for such items.
20. AMENDMENTS
MyCardio may amend this Agreement at any time by posting the amended terms at www.Sleepimage.com. All amendments shall automatically be effective after they are initially posted on the Website. Your use of a Product, the Website, or the Services following the effective date of any modifications to this Agreement shall constitute your binding acceptance of the amended Agreement. This Agreement may not be amended except as provided above. This Agreement was last modified on the date written above.
21. ASSIGNMENT
Without MyCardio’s prior written consent, you shall not assign, transfer, pledge, or otherwise dispose of this Agreement, the Products, or any interest therein, or sublet or lend the Products or permit them to be used by anyone other than you and your employees. MyCardio may assign this Agreement or grant a subsidiary interest in the Products in whole or part without notice to you.
22. WAIVERS
The failure of MyCardio at any time or times to enforce any provisions of this Agreement or to require your performance of any provisions hereof shall in no way be construed to be a waiver of this Agreement or the right of MyCardio thereafter to enforce each and every provision in accordance with the terms of this Agreement.
23. GOVERNING LAW & DISPUTE RESOLUTION
All matters in this Agreement shall be governed by and construed in accordance with the provisions of the substantive laws of the State of New York without giving effect to the rules or principles relating to the conflict of laws of the State of New York or of any other jurisdiction. The parties hereto irrevocably (i) submit to the jurisdiction of any state or federal court of competent jurisdiction sitting in the State of New York, County of New York, in any action or proceeding arising out of or relating to this Agreement, (ii) agree that all claims with respect to such action or proceeding shall be heard and determined in such a New York state or federal court, and (iii) waive, to the fullest extent possible, the defense of an inconvenient forum. In each case this Agreement shall be construed and enforced without regard to the United Nations Convention on the International Sale of Goods.
24. ENTIRE AGREEMENT
This Agreement and the documents referenced herein contains the complete agreement between the parties with respect to the subject matter hereof, and supersedes all prior or contemporaneous agreements or understandings, whether oral or written, between the parties with respect to such subject matter.
25. SEVERABILITY
If any provision of this Agreement shall be held by a court of competent jurisdiction to be contrary to law that provision will be enforced to the maximum extent permissible and the remaining provisions of this Agreement will remain in full force and effect.
26. CUSTOMER SERVICE
All questions concerning this Agreement shall be directed to:
SleepImage Customers Service
9351 Grant Street, Suite 600
Thornton, CO 80229 USA
Toll Free: 888.975.7464 (888.9.SLP IMG)
Email: support@sleepimage.com.
