WatchRx Watch, Caregiver Application and Web Interface Terms and Conditions
PLEASE READ THIS TERMS AND CONDITIONS OF USE CAREFULLY BEFORE USING OUR WATCH, CAREGIVER APPLICATION & WATCHRX WEB INTERFACE
WatchRx, Inc., (“we” or “us”), provides you with a smartwatch with Watch App (the “Watch”), a Caregiver Application (the “App”) and related web interface (the “Site”) under these Terms and Conditions (this “Agreement”). If you are a resident of the United States you are contracting with WarchRx, Inc. a Delaware corporation with its principal offices at 10 Barker Rd, Acton,MA 01720. The App and the Site are referred to together as the “Application.” As used in these Terms and Conditions, ‘you’ or ‘users’ refers to individuals using the Watch and the Application in connection with their own adherence activities as well as “Caregivers” or others, who may use the Application to supervise or support users of the Watch. By using the Watch and
the Application and/or by clicking the “I Agree” button, you unconditionally agree to follow and be bound by this Agreement. If you do not agree to be bound by and comply with all of the terms of this Agreement, you may not use our Watch and Application.
Modifications of this Agreement
We reserve the right to update or modify this Agreement, at any time and for any reason, without penalty or liability to you or any third party. By continuing to use the Watch and the Application after any such changes, you unconditionally agree to follow and be bound by this Agreement as changed. For these reasons, we encourage you to periodically review this Agreement.
Your use of any aspect of the Watch and the Application is at your own risk. You must consult with healthcare providers and make your medical decisions based on their advice. We do not accept any liability in respect of any activities that you may undertake through using the Watch and the Application.
If you use and/or access the Application on or from an Android device that had been rooted or on or from an iOS device that was jail broke,WatchRx shall not be responsible for the security of your data, including your Personal Information, and you shall bear all responsibility for any breach, illegal access, loss and/or corruption of such data.
WE MAKE NO REPRESENTATIONS OR WARRANTIES WHATSOEVER IN RESPECT OF THE WATCH (except for the manufacturer warranty for hardware) AND THE APPLICATION. INFORMATION REGARDING MEDICATIONS, HEALTH, MEDICAL ADVICE AND
OTHERWISE MAY BE PROVIDED BY THIRD PARTIES, INCLUDING OTHER USERS OF THE WATCH AND THE APPLICATION. WE WILL NOT ACCEPT ANY LIABILITY WHATSOEVER IN RESPECT OF ANY CONTENT WHICH IS PROVIDED BY THIRD PARTIES AND/OR ANY OTHER USERS OF THE WATCH AND THE APPLICATION. ANY ACTIONS YOU TAKE BASED ON CONTENT, NOTIFICATIONS AND OTHERWISE
PROVIDED BY THE WATCH AND THE APPLICATION ARE TAKEN AT YOUR SOLE RISK AND WE WILL NOT ACCEPT ANY LIABILITY IN RESPECT THEREOF. YOU SHOULD ALWAYS CHECK ANY INFORMATION PROVIDED THROUGH THE WATCH AND THE APPLICATION TO ENSURE ITS ACCURACY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE APPLICATION IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. WE MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE OPERATION OF THE APPLICATION OR ANY INFORMATION, CONTENT, MATERIALS OR PRODUCTS INCLUDED OR REFERENCED THEREIN.
TO THE FULL EXTENT PERMISSIBLE BY APPLICABLE LAW, WE DISCLAIM ALL WARRANTIES (except manufacturer warranty on the watch for hardware), EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF
MERCHANTABILITY, NONINFRINGEMENT OF THIRD PARTIES’ RIGHTS AND FITNESS FOR A PARTICULAR PURPOSE. YOU ACKNOWLEDGE THAT YOUR USE OF THE WATCH AND THE APPLICATION IS AT YOUR SOLE RISK. WE DISCLAIM ANY IMPLIED OR STATUTORY WARRANTIES (I) REGARDING THE SECURITY, ACCURACY, RELIABILITY, TIMELINESS AND PERFORMANCE OF THE WATCH AND THE APPLICATION; OR (II) THAT THE WATCH AND THE APPLICATION WILL BE ERROR-FREE OR THAT ANY ERRORS WILL BE CORRECTED; OR (III) REGARDING THE PERFORMANCE OF OR ACCURACY, QUALITY, CURRENCY, COMPLETENESS OR USEFULNESS OF ANY INFORMATION PROVIDED BY THE APPLICATION. WE DO NOT WARRANT THAT ANY DESCRIPTION PROVIDED THROUGH THE WATCH AND THE APPLICATION REGARDING MEDICATIONS OR OTHERWISE IS ACCURATE, COMPLETE, RELIABLE, CURRENT, SAFE OR ERROR-FREE. NO COMMUNICATION, INFORMATION OR ADVICE GIVEN BY US OR ANY REPRESENTATIVE OF OURS, WHETHER WRITTEN OR ORAL, SHALL CREATE ANY WARRANTY. IF YOU CHOOSE TO RELY ON SUCH INFORMATION, YOU DO SO SOLELY AT YOUR OWN RISK. SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES. ACCORDINGLY, SOME OF THE
ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. THIS DISCLAIMER CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT.
HEALTH INFORMATION MUST BE INTEGRATED BY HEALTHCARE PROVIDERS INTO THE GENERAL CLINICAL RECORD FOR INDIVIDUALS UNDER THEIR SUPERVISION AND CORRELATED WITH OTHER CLINICAL DATA AS REQUIRED BY PROFESSIONAL STANDARDS IN CUSTOMER’S DISCIPLINE. USE OF DATA ACCESSED BY MEANS OF THE APPLICATION, AS WELL AS TREATMENT DECISIONS BASED ON SUCH INFORMATION ARE THE SOLE RESPONSIBILITY OF THE HEALTHCARE PROVIDER AND WATCHRX ASSUMES NO LIABILITY IN
Requirements for Use
In order to use the App or the Site, you must have compatible computing and mobile devices, access to the Internet and mobile messaging and data services, and certain necessary software. Fees and charges may apply to your use the Internet or mobile services, and you may be required to purchase hardware or software to enable your devices to access the Application. You agree that you are responsible for meeting these requirements and for your use of the Internet, any associated fees, charges or expenses. In order to use the watch you may be required to have internet if you do not use phone option, and you may require proper cell coverage for phone/data plans to work.
Watch is a Secondary Reminder Tool
The Watch is intended as a helpful backup reminder system that you can personalize for taking your medications. You should not and must not rely on the Watch and the Application as your primary tool for determining whether and when to take what medications and dosage. As further described under “Technology; Support” below, the Watch or the Application might not function as intended. Specifically, the Watch will not function properly if it is not charged or not connected to internet or if you had closed or deleted the application accidentally; and the
Application will not function properly if your device is broken or powered off, if the Application software is not enabled or if any hardware or software on your device prevents the Application from operating as intended. The maintenance of the Watch, your mobile and computing devices is your responsibility. You acknowledge that the Watch and the Application, and the utility of any of its alerts or notifications, depends on information that you input into the Application. You are solely responsible for ensuring that the correct medication is taken at the proper times and in the proper dosages. Persons using the Watch and the Application assume full responsibility for the use of the Watch and the Application and agree that we are not responsible or liable for any claim, loss, or damage arising from the use of the Watch and the Application.
Phone Feature – Watch is not a primary phone
The watch supports phone for emergency calls. The watch allows both incoming and outgoing calls for emergency purposes only. The subscription allows for limited usage (50 minutes phone time) and the user is advised to use it for short calls. Any usage over the limit will be charged at the regular rate charged by the service provider outside of the plan. The phone feature is sold exclusively for you as our end customer. You agree that you will not violate the usage agreement for the use of phone and data and you will not use any unauthorized service plan PINs or engage in any other unauthorized or illegal use of WatchRx watch or service. Improper, illegal use of the product may result in immediate termination of our service without notice and legal action.
WatchRx will strictly enforce the rights under this provision and will prosecute violators to the full extend of law.
The watch uses a SIM card and you agree not to allow any unauthorized person use the SIM card. You agree not to and not to allow any other person to, directly or indirectly alter, bypass, copy, deactivate, remove, reverse-engineer or reproduce the encoded information on the SIM. Any violation of the restrictions on the use of SIM card may result in immediate termination of your service without notice.
No Medical Advice
Information, advice, recommendations, messages, comments, posts, text, graphics, software, photographs, videos, data and other materials is made available from us or third parties, including other users, through the Application (collectively “Content”). For example, the interface of the Application may provide you with names, pictures or descriptions of various medications. Other users may participate in forums and provide details of their personal health or medication experiences. We do no guarantee and are not responsible for the accuracy, completeness, or timeliness of any Content.
All Content is provided for informational purposes only. No Content, including that provided by other users of the Watch and the Application, is or should be considered, or used as a substitute for, medical advice, care, diagnosis or treatment. The Watch or the Application does not constitute the practice of any medical, nursing or other professional health care advice, diagnosis or treatment. We do not prescribe, dispense, or refill prescriptions. The provision of information about or the enablement of the reminder system with respect to any drug or product is not a recommendation or endorsement by us for such drug or product. Please consult with your healthcare provider with respect to any drug-drug interactions. The absence of a warning for a given drug or drug combination does not and should not be construed to indicate that a drug or drug combination is safe, appropriate or effective for you or anyone else. Furthermore, the Watch provides dosing information based on what was entered by authorized caregiver and or physicians, and we are not responsible for any errors in dosages missed or taken. You are encouraged to verify for 24 hours if the correct information regarding your medication is entered by authorized users. Reliance on any Content or other information provided by us, our
employees, our users or third parties through your use of the Watch and the Application is solely at your own risk and we accept no liability therefore. Always seek the advice of your physician or other qualified healthcare provider with any questions you may have regarding personal health, medical conditions or drugs or medications and before commencing or discontinuing any course of treatment, drug or medication. Never disregard, avoid or delay in obtaining medical advice from your doctor or other qualified healthcare provider because of any information you have received or obtained through the use of the Application. If you have or suspect that you have a medical problem or condition, please contact a qualified health care professional immediately. If you are experiencing a medical emergency, please immediately call for emergency medical help.
Adverse Events with Medical Products
If you have an unexpected or negative reaction (or “adverse event”) that may be related to the use of a medical product, it is important that you inform your doctor and also report it to the company that makes or sells the product so it can investigate the incident. The product should include the company’s phone number on the label. You can also report the problem to the United States Food and Drug Administration (FDA) at http://www.fda.gov/medwatch/index.html or your local FDA.
Third-Party Websites and Materials
References or links within the Application to any third parties or their websites or information are provided only for your convenience and do not in any way mean that we endorse, sponsor or recommend any third-party material, product or service. We do not make any representations regarding the content, accuracy, completeness, decency, legality, non-infringement, quality or any other aspect of material on such third-party websites or with respect to any content, data, information, applications or materials. We are not responsible for and do not assume any liability with respect to the content, privacy practices or otherwise of third parties.
You have to register to use the Application by providing your name and e-mail and other information requested in the registration form. We may change the method of registration at our discretion. We might refuse to allow any user to open an account for any reason at our sole discretion. You agree to supply accurate and complete information to us when creating your account and when using the Application, as well as to update such information promptly after any change. You will be responsible for any inaccuracies in the information you provide to us, or for your failure to keep such information up-to-date. Do not share your account or login information with any third party, nor let any third party access your account. You are fully and solely responsible for maintaining the confidentiality of the login information for your account and for the security of your computer system, mobile device and all activity on your account, even if such activities were not committed by you. We may terminate your account if you let someone use your account inappropriately or if you or
anyone using your account violates this Agreement. You agree to immediately notify us of any unauthorized use of your account. We will not be liable for any losses or damage arising from unauthorized use of the Application, and you agree to indemnify and hold us harmless for any improper or illegal use of the Application, and any charges and taxes incurred, unless you have notified us via e-mail at firstname.lastname@example.org.
Termination of Account
We may for any reason, in our sole discretion and without notifying you, terminate your account. Grounds for such termination may include (i) failure to pay monthly subscriptions, (ii) violation of the letter or spirit of this Agreement, (iii) fraudulent, harassing, or abusive behavior or behavior that is harmful to other users, third parties, and the community ethos of our Application or our business interests. In the event that we terminate your account, you may not register for the Application again without our express permission. If you believe that any action has been taken against your account in error, please contact us at email@example.com.
In addition, if we believe, in our sole discretion, that a violation of this Agreement or any illegal or inappropriate behavior has occurred, we may take any other corrective action we consider appropriate. We will investigate suspected violations of this Agreement or illegal and inappropriate behavior through the Application. Please note that we will fully cooperate with any law enforcement investigation or court order ordering us or directing us to disclose the identity, behavior or activities of anyone believed to have violated this Agreement or to have engaged in illegal behavior.
You may request termination of your account at any time and for any reason by sending an e-mail to firstname.lastname@example.org. Any suspension or termination of your account shall not affect your obligations to us under this Agreement (including but not limited to ownership, indemnification, any representations, and warranties made by you, and limitation of liability), including all those obligations, which by their sense and context are intended to survive the suspension or termination of your account.
Subscription for WatchRx Services.
Our minimum monthly subscription for medication reminders, emergency calling and messaging are offered along with Watch. The subscription plan includes a limited phone and data plan (50 mins talk time and 50MB data). It is your responsibility to ensure that the usage is within specified limits. Any additional usage will incur regular charges as per the service providers terms and conditions. We may at our discretion offer additional subscription services, including, without limitation, the WatchRx Premium subscription and you may choose to subscribe for the same. If you buy WatchRx watch, the watch comes pre-loaded with software and no additional
set up is necessary. In some cases where you bring your own watch, then it is your responsibility to ensure the software is loaded properly and the set up is complete as per the instructions provided by WatchRx, Inc. Also if you bring your own watch, it is your responsibility to subscribe to appropriate phone plan. Once you subscribe you will be given access to download our Caregiver Application via Appstore or Google Play. You will also be provided access to our Web interface. Your subscription will automatically renew unless you turn off auto-renew at least 24 hours before the end of the then current period. Your account will be charged for
renewal within 24-hours prior to the end of the then current period, at such amount as we will notify you. You may manage your subscription and the auto-renewal may be turned off by going to your Account Settings after purchase. Any unused portion of a free trial period, if offered, will be forfeited when you purchase a subscription to that publication, where applicable. When a subscription is cancelled it will be effective starting the following month.
We do not warrant or guarantee that the Application will function with your mobile or computing device or be compatible with the hardware or software on any particular devices. Information will be transmitted over a medium that will be beyond our control and jurisdiction; multiple factors, including network availability, may affect alert or notification delivery or otherwise interfere with the operation of the Application. We do not warrant or guarantee against, and therefore assume no liability for or relating to, any errors, omissions, delays, failures, interruptions, or corruption or loss of any data, alerts, notifications or other information
transmitted in connection with your use of the Watch and the Application, particularly relating to any failure of the reminder system to function as expected, including but not limited to the non-delivery of any alerts or notifications. Without limiting the foregoing, we, our licensors, and our suppliers make no representations or
warranties about (1) the availability, accuracy, reliability, completeness, quality, performance, suitability or timeliness of the Application, Content, including software, text, graphics, links, or communications provided on or through the use of the Application or the Watch; or (2) the satisfaction of any government regulations requiring disclosure of information on prescription drug products or the approval or compliance of any software tools with regard to the Application. At any time and for any reason, without notice or liability, we may modify or discontinue the Application or any part of it or impose limits on your use of or access to the Application. Although we take reasonable measures to keep the Application and watch App free of viruses, worms, Trojan horses or other code that contain destructive properties, we do not warrant or guarantee that files available for downloading through the Application will be free of such contaminations.
If you submit any information to us through or related to the Application or send us any business information, feedback, idea, concept or invention to us by e-mail, you represent and warrant to us that such information is not confidential and that you have all necessary permission to submit or otherwise make available such information. In addition, you grant us a royalty-free, perpetual, irrevocable, world-wide nonexclusive license to use, reproduce, create derivative works from, modify, publish, edit, translate, distribute, perform, and display the communication or content in any media or medium, or any form, format, or forum now known or hereafter developed, including the right to sublicense through multiple tiers of sublicenses.
You further agree that:
• You have the consent and authorization to enter medication regimen details on behalf of your care recipient
• you will not reproduce, duplicate, copy, sell, resell, or exploit the Watch software and the Application, its Content, its software or any portion of any of the foregoing;
• you will not use the Watch and the Application for any purpose in violation of local, state national or international laws; you will not solicit another person’s password or personal information under false pretenses;
• you will not impersonate another person or entity or otherwise misrepresent your affiliation with a person or entity, and/or use or access another user’s account or password without permission;
• you will not violate the legal rights of others, including defaming, abuse, stalking or threatening users; you will not infringe the intellectual property rights, privacy rights, or moral rights of any third party; you will not post or transmit any Content that is (or you reasonably believe or should reasonably believe to be) illegal, fraudulent, or unauthorized, or furthers such activity, or that involves (or you reasonably believe or
should reasonably believe to involve) any stolen, illegal, counterfeit, fraudulent, pirated, or unauthorized material;
• you will not publish falsehoods or misrepresentations, including with respect to any medical or health information; and
• you will not post or transmit any Content that is (or reasonably should be understood to be) libelous, defamatory, obscene, offensive (including material promoting or glorifying hate, violence, or bigotry or otherwise inappropriate to the community ethos of the Application).
You agree not to interfere or attempt to interfere with the proper working of the Watch and the Application or to disrupt the operations or violate the security of the Application. Violations of system or network operation or security may result in civil or criminal liability. We will investigate possible occurrences of such violations, and we may involve and cooperate with law enforcement authorities in prosecuting anyone involved with such violations. You agree to comply with all user responsibilities and obligations as stated in this Agreement. Non-enforcement or our failure to act with respect to a breach by you or others of this Agreement does not constitute consent or waiver, and we reserve the right to enforce such term at our sole discretion. No waiver of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. Nothing contained in this Agreement shall be construed to limit the actions or remedies available to us with respect to any prohibited activity or conduct.
We hereby grant to you a limited, non-exclusive, non-assignable (except wherein the primary caregivers are permitted to assign secondary caregivers and the watch to their care recipient), non-sublicensable license to access and use our Watch and the Application, and any user guides, specifications or related documentation (the “Documentation”), subject to the terms and conditions of this Agreement. This license is only for your personal and non-commercial use and only for the term of this Agreement unless you have explicit written agreement with Watchtx, Inc. for commercial use. To the extent not limited or restricted under any applicable law or regulation, you are granted permission to temporarily download one copy of the App for personal, non-commercial use only on each mobile device that you own or control. In situations where additional caregivers are involved each caregiver registers independently with WatchRx, Inc. or a commercial agreement is made to use multiple caregivers (e.g a Home Care agency). You may not distribute or make the App available for use by others on multiple devices simultaneously. Under this license, except as and only to the extent any of the following restrictions are prohibited by applicable law or any of the restricted activities are permitted by the licensing terms of any open-sourced components incorporated into the App, you may not:
• lend, rent, lease, sell, redistribute, assign, sublicense or otherwise transfer the App or the right to download or use the App;
• use the Application for any commercial purpose except with written agreement or for any commercial or noncommercial public display;
• copy, decompile, reverse engineer, disassemble, attempt to derive the source code of the App, any App updates, or any part of the App or updates, or attempt to do any of the foregoing; copy, modify or create derivative works of the Application, Documentation any Application or Documentation updates or any part of the Application, Documentation or updates;
• remove any copyright or other proprietary notices from the App, Documentation, part of the App or from the Site;
• transfer the Content or materials from the App or Site to anyone else or “mirror” the same on any server; circumvent, disable, or otherwise interfere with securityrelated features of the Application or features that prevent or restrict use or copying of any content;
• use any robot, spider, site search or retrieval application, or any other manual or automatic device or process to retrieve, index, data-mine, or in any way reproduce or circumvent the navigational structure or presentation of the Application;
• harvest, collect or mine information about other users of the Application;
• post or transmit any virus, worm Trojan horse or other harmful or disruptive element; or violate any applicable law, rule or regulation.
If you violate any of these restrictions, this license will automatically terminate, and you may be
subject to prosecution and damages.
WatchRx and its licensors own the Site, Documentation and App, including any material or Content made available through the Watch and the Application, including our proprietary algorithm, and all worldwide intellectual property rights in the foregoing. Except as expressly permitted herein, you may not copy, further develop, reproduce, republish, modify, alter download, post, broadcast, transmit or otherwise use any material made available in the Application. You will not remove, alter or conceal any copyright, trademark, service mark or
other proprietary rights notices incorporated in the Application. All trademarks are trademarks or registered trademarks of their respective owners. Nothing in this Agreement grants you any right to use any trademark, service mark, logo, or trade name of ours or any third party.
This provision only applies in respect of the version of the App used on devices of Apple, Inc. This Agreement is an agreement between you and us. Apple has no responsibility for the App or the content of the App, including in respect of claims of intellectual property infringement, product liability or that the App does not conform with applicable law. To the maximum extent permitted by applicable law, Apple provides no warranty in respect of the App and has no obligation to provide support in respect of the App. All claims in respect of the App must be directed to us and not to Apple. Your use of the App must be in compliance with the App Store
Terms of Service, and you may only use the App on an iPhone or iPod that you own or control as permitted by such terms. In the event the App fails to conform to the warranty set forth herein, you may notify Apple, and Apple will refund the purchase price for the App to you. Apple shall be a third party beneficiary of this Agreement with the right to enforce this Agreement against you.
This provision only applies in respect of the version of the App used on devices supporting Android. This Agreement is an agreement between you and us. Google has no responsibility for the App or the content of the App, including in respect of claims of intellectual property infringement, product liability or that the App does not conform with applicable law. To the maximum extent permitted by applicable law, Google provides no warranty in respect of the App and has no obligation to provide support in respect of the App. All claims in respect of the App must be directed to us and not to Google. Your use of the App must be in compliance with the
Google Play Store Terms of Service, and you may only use the App on an Android devices that you own or control as permitted by such terms. In the event the App fails to conform to the warranty set forth herein, you may notify Google, and Google will refund the purchase price for the App to you. Google shall be a third party beneficiary of this Agreement with the right to enforce this Agreement against you.
Under the Digital Millennium Copyright Act of 1998 (the “DMCA”), it is our policy to respond to copyright owners who believe material appearing on the Application infringes their rights under US copyright law. We accept no responsibility or liability for any material provided or posted by a user. If you believe that something appearing on the Application infringes your copyright, you may send us a notice requesting that it be removed, or access to it blocked. If you believe that such a notice has been wrongly filed against you, the DMCA lets you send us a counternotice. All notices and counternotices must meet the DMCA’s requirements. We
suggest that you consult your legal advisor before filing a notice or counter-notice. Be aware that there can be substantial penalties for false claims. It is our policy to terminate the accounts of repeat infringers in appropriate circumstances. Send notices and counter-notices to info@WatchRx.io.
Except as authorized by U.S. and Commonwealth of Massachusetts law and the laws of the jurisdiction in which the Application was obtained or is used, you may not use, export or re-export the Application. Specifically, and without limiting the foregoing, the Application may not be exported or re-exported into any U.S. embargoed countries or to anyone on the U.S. Department of Commerce Denied Person’s List or Entity List or the U.S. Treasury Department’s list of Specially Designated Nationals. You represent and warrant that you are not on any such list or located in any such country and that you will not use the Application for any purposes prohibited by U.S. or other applicable law.
Limitations on Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL OR EQUITABLE THEORY, WHETHER IN TORT, CONTRACT, STRICT LIABILITY OR OTHERWISE, SHALL WE, OUR AFFILIATES, OR ANY OF OUR OR THEIR EMPLOYEES, DIRECTORS, OFFICERS, AGENTS, VENDORS OR SUPPLIERS BE LIABLE TO YOU OR TO ANY THIRD PARTY
FOR ANY PERSONAL INJURY, INCLUDING DEATH, OR FOR ANY INDIRECT SPECIAL, INCIDENTAL OR CONSEQUENTIAL LOSSES OR DAMAGES OF ANY NATURE ARISING OUT OF OR IN CONNECTION WITH THE USE OF OR INABILITY TO USE THE APPLICATION, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, LOSS OF DATA, WORK STOPPAGE,
ACCURACY OF RESULTS, OR COMPUTER OR DEVICE FAILURE OR MALFUNCTION, EVEN IF A REPRESENTATIVE OF OURS HAS BEEN ADVISED OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL WE BE
LIABLE FOR ANY DAMAGES IN EXCESS OF ONE HUNDRED DOLLARS ($100).
In addition to the foregoing, we assume no responsibility for any error, omission, interruption, deletion, defect, delay in operation or transmission or communications line failure. We are not responsible for any problems or technical malfunction of any telephone or cellular phone network or lines, computer online systems, servers or providers, computer equipment, software, failure of any e-mail due to technical problems or traffic congestion on the Internet or on the Site, including any injury or damage to users or to any person’s mobile device or computer related to or resulting from participation or use of the Watch and the Application. Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for certain damages. Accordingly, some of the above limitations and disclaimers may not apply to you. To the extent that we may not, as a matter of applicable law, disclaim any implied warranty or limit liabilities, the scope and duration of such warranty and the extent of our liability will be the minimum permitted under such applicable law. Any claims arising in connection with your use of the Watch and the Application must be brought within one (1) year of the date of the event giving rise to such action occurred. Remedies under this Agreement are exclusive and are limited to those expressly provided for in this Agreement, even if the applicable remedy under this Agreement fails of its essential purpose.
You agree to defend, indemnify, and hold us harmless including our officers, directors, employees, agents, subcontractors, licensors and suppliers, any of our affiliated companies or organizations, and any successors, assigns or licensees, from and against any claims, actions or demands, damages, losses, liabilities, judgments, settlements, costs or expenses (including attorneys’ fees and costs) arising directly or indirectly from or relating to a) the breach of this Agreement by you or anyone using your computer, mobile device, password or login information; (b) any claim, loss or damage experienced from your use or attempted use of (or inability to use) the Watch and the Application; (c) your violation of any law or regulation; or (d) any other matter for which you are responsible under this Agreement or under law. You agree that your use of the Watch and the Application shall be in compliance with all applicable laws, regulations and guidelines.
This Agreement is effective until terminated by either you or us. You may terminate this Agreement at any time, provided that you discontinue any further use of the Watch and the Application. If you violate this Agreement, our permission to you to use the Watch and the Application automatically terminates. We may, in our sole discretion, terminate this Agreement and your access to any or all of the Application, at any time and for any reason, without penalty or liability to you or any third party. In the event of your breach of this Agreement, these actions are in addition to and not in lieu or limitation of any other right or remedy that may be available to us. Upon any termination of the Agreement by either you or us, you must promptly uninstall the App on all of your devices including the Watch and destroy all materials downloaded or otherwise obtained from the Application, all Documentation, and all copies of such materials and Documentation. The following provisions survive the expiration or termination of this Agreement for any reason whatsoever: Disclaimers, Ownership, Limitations on Liability, Indemnity, Choice of Law and Forum, Entire Agreement and Severability.
Choice of Law and Forum
This Agreement shall be governed in all respects under the laws of the Commonwealth of Massachusetts, exclusive of its choice of law or conflict of laws provisions. In any claim or action by you directly or indirectly arising under this Agreement or related to the Application, you irrevocably agree to submit to the exclusive jurisdiction of the courts located in Massachusetts. You waive any jurisdictional, venue or inconvenient forum objections to any of these courts that may have jurisdiction.
This Agreement constitutes the entire agreement between you pertaining to the subject matter hereof. Anything contained in or delivered through the Watch and the Application that is inconsistent with or conflicts with the terms of this Agreement is superseded by the terms of this Agreement. This Agreement may not be modified, in whole or in part, except as described elsewhere in this Agreement.
If any of the provisions of this Agreement are held to be not enforceable by a court or other tribunal of competent jurisdiction, then such provisions shall be amended, limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect.
You agree that this Agreement and all incorporated agreements between you and us may be assigned by us, in our sole discretion to any third party.
All notices to you relating to this Agreement shall be posted on the Application or sent to you at the e-mail or physical address, if any, that you provided to us. If you reside in the United States, all notices to us relating to this Agreement shall be in writing and sent to the following:
10 Barker Road
Acton, MA 01720
Notice shall be deemed given when notice is posted on the Application or when the e-mail is sent, unless the sending party is notified that the e-mail address is invalid. Unless the regular mail is returned to the sender, notice shall be deemed given three days after the regular mail is sent, in the case of domestic mail, or seven days after the regular mail is sent, in the case of international mail.