Revised: December 15, 2016
1.1 These Terms of Service (“Terms” or “Agreement”) apply to the use of the APIs, portals and the other services (collectively the “Services”) of QuantiModo Inc. (“We” or the “Company”), and to the individuals that use the Services (“You” or “End User”). You hereby authorize the collection, storage, integration, transmission, sharing and/or display by Company of personal data from personal tracker or other personal data or health records sources as further described herein. We display individual user data to End Users, who may access only their own data and certain other de-identified aggregate data. We also provide the Services to developers that create means of displaying data which End Users authorize personal tracker device manufacturers or other data sources to share via the Services (“Developers”) and to organizational customers (“Organizational Customers”) that collect one or more data streams on behalf of their members or customers who are End Users. We sometimes refer to “Customers” in these Terms, by which we mean our corporate customers, i.e., Developers and Organizational Customers.
1.2 These Terms may be updated by the Company. You understand and agree that you are solely responsible for reviewing these Terms from time to time. You can always review the most current version of these Terms on our website. Any continued use of the Services by you after such amended Terms have been posted or information regarding such amendment has been sent to you, shall be deemed your consent and agreement to such amended Terms.
1.3 These Terms contain the entire agreement of the parties to the use of the Services, and there are no other promises or conditions in any other agreement whether oral or written concerning the subject matter of this Agreement. This Agreement supersedes any prior written or oral agreements between the parties. The only exception to this is an “Enterprise Agreement,” if any, executed by the Company and the Customer. THESE TERMS AFFECT YOUR LEGAL RIGHTS AND OBLIGATIONS. BY ACCESSING OR USING ANY OF THE SERVICES, YOU AGREE TO BE BOUND BY ALL OF THE TERMS. IF YOU DO NOT AGREE TO BE BOUND BY ALL OF THE TERMS, DO NOT ACCESS OR USE THE SERVICES.
Company hereby grants a limited, non-exclusive, non-transferable and terminable license to you to access and use the Services and shall make the Services you license from Company available to you solely for the purposes contemplated herein, pursuant to this Agreement and during the term of this Agreement.
2.1.1 Company’s Services power the back end of services provided by others. By using the Services, you authorize us to access specific types of your data (e.g. personal tracker data) and share it with Customers authorized by you to use it. These Customers may use such data in accordance with your authorization and/or display it to you in a more usable format; depending on the service provided by the Customer, it may be integrated with data about you from one or more other sources as well (e.g., a dashboard showing exercise data together with test data extracted from personal health records). The technical solutions used by the Company (APIs and SDKs) are described in detail on its website, https://quantimo.do.
2.1.2 Company’s maintenance of the Services includes (1) integration of releases of updates of features and functionaries included in the portal infrastructure and (2) patching/bugs correction. It does not include any maintenance of content.
2.2. Services and End User Data
2.2.1 Each End User shall have access to the Services only through interfaces provided by Company through Customers.
2.2.2 Company shall host the Services and may update the functionality and user interface of the Services from time to time in its sole discretion and in accordance with Section 2.3 of this Agreement as part of its ongoing mission to improve the Services and End Users’ user experience.
2.2.4 No other rights with respect to the Services are granted under this Agreement.
2.3.1 “Upgrades” means new versions of, and updates to, the Company’s interfaces for End Users using the Services, whether for the purpose of fixing an error, bug or other issue in the Company’s platform or enhancing the functionality of the platform.
2.3.2 End User acknowledges that from time to time the Company may apply upgrades to the platform, and that such upgrades may result in changes the appearance and/or functionality of the Services.
2.4.1 End User agrees that the license granted herein is on the condition that End User does not (and does not allow any third party to) copy, create a derivative work of, reverse engineer, reverse assemble, disassemble, or decompile the Services or any part thereof otherwise attempt to discover any source code, modify the Services in any manner or form, or use unauthorized modified versions of the Services, including (without limitation) for the purpose of building a similar or competitive product or service or for the purpose of obtaining unauthorized access to the Services.
2.4.2 Except as provided in this Agreement, the license granted to Customer to use the Services does not convey any rights in the Services, expressed or implied, or ownership in the Services or any intellectual property rights thereto. Any rights not expressly granted herein are reserved by Company.
2.5. Customer Support
2.5.1 Organizational Customers are responsible for receiving and responding to all End User customer support inquiries. Please refer to the website or application of the relevant Organizational Customer if you need support.
3.1 End Users are not charged for the Services.
4.1 If End User provides information of any kind which is untrue, inaccurate, not current or incomplete, or Company has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, Company has the right to suspend or terminate End User’s access to the Services.
5.1 In using the Services, End User understands that End User is responsible for authorizing Company to collect, store, integrate, transmit, share or display End User’s data (the “Information”) via the Services. Company cannot perform any of these functions without End User’s valid authorization. End User also acknowledges that Customers, and not Company, are solely responsible for all Information and/or other materials, in whatever form, made available to End Users via the Services. End User agrees not to use the Services to:
5.1.1 Upload, post, email, transmit or otherwise make available any Information that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable;
5.1.2 Harm minors in any way. 5.2 End User understands and agrees that unless expressly stated, Company in no way controls, verifies or endorses any of the information uploaded by End Users or Customers using the Services including listings, links, messages, advertisements and reviews. End User also understands that Company is not responsible for Information made available through the Services.
5.3 Customer further acknowledges and agrees that Company 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 use of or reliance on any such content, goods or services available on or through any such site or resource.
5.4 End User understands and agrees that any authorization of collection, uploading, posting, accessing or downloading will be at End User’s sole risk and Company shall not be responsible to End User in any way. Further, Company does not provide any warranty as to End User’s use of third-party content, software or services that End User obtains via the Services.
5.5 End User represents and warrants that information provided by End User when initially authorizing use of the Services or subsequently is true and accurate and not misleading.
6.1 All right, title and interest and all intellectual property rights in and to the materials developed independently by Company or a third party shall vest in and be the sole and exclusive property of Company or such third party.
6.2 All right, title, and interest in and to the Services and all intellectual property rights in the Services will remain vested in Company.
6.3 End User shall not at any time do, permit or cause to be done, any act or thing that would tend to impair or dilute Company’s rights in the Services, or Company’s trademarks, service marks, and trade names.
6.5 End User acknowledges and agrees that Company may use personal health record data and aggregate data derived from End User’s use of the Services hereunder for internal operational and performance improvement purposes. Company may use in its marketing and advertising the total number of users, total number of stored records, total transaction volumes, and other aggregate statistics to attract new customers. This section shall survive the termination of this Agreement with respect to data transmitted hereunder prior to the date of termination.
6.6 Company will not contact End User with third party advertising or promotion without End User’s explicit permission.
6.7 End User further acknowledges that Company may, in its sole discretion, preserve or disclose any data provided by or for End User, as well as End User’s information, such as e-mail addresses, IP addresses, timestamps, and other user information, if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to comply with the legal process, enforce these Terms, respond to claims that any content provided by or for End User violates the right of third-parties; or to protect the rights, property, or personal safety of Company, its users or the general public.
7.1 End User may terminate this Agreement at any point in time upon one month’s prior written notification to Company.
7.2 End User agrees that Company at its sole discretion, has the right (but not the obligation) to delete or deactivate End User’s account, block End User’s email or IP address, or otherwise terminate End User’s access to or use of the Services (or any part thereof), immediately and without notice, and remove and discard any Content within the Services, for any reason, including, without limitation, if Company believes that End User has acted inconsistently with these Terms. Further, End User agrees that Company shall not be liable to End User or any third party for any termination of such access to the Services. Further, End User agrees not to attempt to use the Services after said termination.
7.3 Upon the termination or expiration of this Agreement for any reason, End User’s rights under this Agreement will cease, including all rights to use the Services.
7.4 Company reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Services (or any part thereof) with or without notice. End User agrees that Company shall not be liable to End User or to any third party for any modification, suspension or discontinuance of the Services.
THE COMPANY’S SERVICES ARE PROVIDED ON AN “AS IS” BASIS. THE COMPANY, TO THE FULLEST EXTENT PERMITTED BY LAW, DISCLAIMS ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTIES’ RIGHTS, AND FITNESS FOR PARTICULAR PURPOSE. END USER EXPRESSLY UNDERSTANDS AND AGREES THAT COMPANY SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE SERVICE; (ii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; OR (iii) ANY OTHER MATTER RELATING TO THE SERVICES. With regard to any such claim, the Company liability will at all times be limited to the amount paid, if any, by or on behalf of End User to the Company for the Services for the three months immediately preceding the claim. Some states do not allow the foregoing limitations of liability, so they may not apply to you.
END USER HEREBY AGREES, AT END USER’S EXPENSE, TO INDEMNIFY, DEFEND AND HOLD COMPANY HARMLESS FROM AND AGAINST ANY LOSS, COST, DAMAGES, LIABILITY, AND/OR EXPENSE ARISING OUT OF OR RELATING TO (A) THIRD PARTY CLAIMS, ACTIONS OR ALLEGATIONS OF INFRINGEMENT, MISAPPROPRIATION OR THE LIKE BASED ON INFORMATION, DATA OR CONTENT END USER SUBMITTED IN CONNECTION WITH THE SERVICES, (B) ANY FRAUD, MANIPULATION OR OTHER BREACH OF THESE TERMS BY END USER, OR (C) THIRD PARTY CLAIMS, ACTIONS OR ALLEGATIONS BROUGHT AGAINST COMPANY ARISING OUT OF END USER’S USE OF THE SERVICES.
10.1 This Agreement does not create any joint venture, partnership, agency, or employment relationship between the parties.
10.2 The Limitation of Liability, Intellectual Property Rights, Use of Data, Trade Names and Trademarks, Limited Warranty, Fees and Payments, and Miscellaneous Sections will survive termination or expiration of this Agreement.
10.3 Company shall not be liable for any loss or delay resulting from any force majeure event, including, but not limited to, acts of God, fire, natural disaster, terrorism, labor stoppage, war or military hostilities, criminal acts of third parties, and any payment date or delivery of Services date shall be extended to the extent of any delay resulting from any force majeure event.
10.4 End User understands that the technical processing and transmission of Services, including End User’s data, may involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices.
10.5 Company’s failure to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. If any provision of this Agreement is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of this Agreement remain in full force and effect. End User agrees that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Services or this Agreement must be filed within one year after such claim or cause of action arose or be forever barred.
10.6 Company may assign this Agreement at any time to a subsidiary or parent company or to a successor to its business as part of a merger or sale of substantially all of its assets. End User may not assign or transfer its interest in this Agreement without Company’s prior written consent, which consent shall not be unreasonably withheld.
10.7 The parties hereby agree to use reasonable good faith efforts to resolve any dispute hereunder by promptly identifying a contact person and instructing such individual to negotiate in good faith with the other party’s contact person to resolve any such dispute. With respect to any dispute not resolved within two months of identifying the relevant contact persons, the parties hereby agree to submit any unresolved dispute arising under this Agreement to mediation under the American Health Lawyers Association Alternative Dispute Resolution Service Rules of Procedure for Mediation. If any dispute is not resolved by mediation within six months of selection of a mediator, the dispute shall be submitted to arbitration in accordance with the American Health Lawyers Association Alternative Dispute Resolution Service Rules of Procedure for Arbitration. The same person shall serve both as the mediator and as the arbitrator.
10.8 The section titles in the Agreement are for convenience only and have no legal or contractual effect.
10.9 This Agreement shall be construed in accordance with Missouri law, without regard to its conflict of laws principles.
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