AND USER AGREEMENT
Last Revised: November 6, 2013
Itamar Medical Ltd. and its affiliates (“Itamar", “we” or "us") welcome you to our website at http://www.prevent-heart-attack.com (the “Site”). The Site offers information and materials to interested persons (“User(s),” “you,” or “your”) regarding heart attack prevention, the EndoPAT® and your heart health journey. The Site also allows registered Users to obtain education and information in real-time through an on-line chat, and, for a limited time or as may be specified from time to time on the Site, to apply for promotional materials, vouchers, and/or other services on specified terms, such as a voucher to obtain an EndoPAT® test free-of-charge. Use of this Site is only for registered Users, and offers to apply for promotional materials, vouchers, and/or other services are directed to registered Users only. You are invited to use and enjoy the Site in accordance with the terms and conditions hereunder.
If you are under 18 years old, you may browse our Site; however, you may not become a registered User, and you must not engage in any on-line chat, request a voucher for testing and/or other goods or services that may be offered from time to time, or provide us with any of your personally identifiable information.
The Terms Are Binding On Users
If you are accessing or using the Site outside the United States, or on behalf of a company, legal entity, person, or persons, you are nonetheless individually bound by these Terms, even if one or more of these entities or persons has a separate agreement with us.
Amendments to Terms
Itamar may, in its sole discretion, change, add, or delete portions of these Terms from time to time, with or without any notice. Itamar will make reasonable efforts to post a prominent notice on the Website in case the Terms change substantially. It is your responsibility to check the Last Revised date that appears at the top of the Terms and to review the Terms from time to time. If you object to any of the changes, your sole recourse will be to stop accessing and/or using the Site. Continued use of the website after notice of any changes will constitute your agreement to be bound by the revised Terms, inclusive of all changes.
- No Medical Advice, Treatment, Services, or Goods
The content on the Site, including any text, images, presentations, files, e-learning materials, marketing materials, brochures, clips and videos (the "Content"), is for informational, educational and marketing purposes only. BY ACCESSING AND/OR USING THE SITE, YOU ACKNOWLEDGE THAT THE SITE DOES NOT PROVIDE MEDICAL ADVICE, OPINION, JUDGMENT, DIAGNOSIS/ES, CONSULT, CARE OR TREATMENT, AND/OR HEALTHCARE SERVICES, AND THAT YOU WILL NOT CONSIDER ANY STATEMENTS OR MATERIAL on or transmitted to you, directly or through THE site, TO BE MEDICAL ADVICE, DIAGNOSIS/ES, TREATMENT, PERSCRIPTIONS, and/or product recommendations.
Specifically, by agreeing to the terms herein, you acknowledge that the persons or entities, including Itamar, who provide information and/or education at any location on the Site, during a live-chat, and/or in response to a submitted question, will not provide, and shall not be deemed to provide, any of the following to any User:
- A diagnosis of any physical or mental disease or condition;
- A recommendation or order regarding medical care or treatment and/or regarding any method or process specific to a User’s disease or condition;
- A determination or opinion as to whether a diagnostic test is appropriate for a particular User’s condition;
- A determination regarding the need for a referral to, or consultation with, a particular physician or specialist;
- A prescription for any drug or controlled substances;
- A recommendation or order regarding the discontinuance of any drug or controlled substances prescribed by an appropriately licensed practitioner; and/or any medical care or other assistance in connection with the selection of medical procedures and/or products and/or treatment.
FURTHER, YOU AGREE THAT YOU WILL NOT REQUEST THAT ANYONE ON THE SITE PROVIDE ANY OF THE ABOVE AND/OR ANY OTHER MEDICAL ADVICE, OPINION, JUDGMENT, DIAGNOSIS/ES, CONSULT, TREATMENT, PERSCRIPTIONS, AND/OR PRODUCT RECOMMENDATIONS OR GOODS, AND, UNLESS YOU ARE DULY AUTHORIZED BY LAW, THAT YOU WILL NOT ADVISE, DIAGNOSE, OR OTHERWISE TREAT ANY PERSON AT ANY TIME BASED ON INFORMATION AND/OR EDUCATION YOU RECEIVE OR THAT IS CONTAINED IN THE SITE AND/OR TRANSMITTED TO YOU.
Although you may contact us with any question, to report a complaint or an incident involving any of the products or services described on the Website, your sole recourse is to stop using the Site and/or products or services.
4. Itamar and the Content
Itamar is a medical device company that develops, markets and sells diagnostic medical devices based on the PAT™ (Peripheral Arterial Tone) signal. The Site provides information regarding such devices and the technologies incorporated therein via the Content available online, such as brochures, posters, presentations, videos and other marketing material. You may download and use the Content to help you learn about the products. Any commercial use of the Content is strictly prohibited, without our prior explicit consent.
5. Permitted Uses
We authorize registered Users to seek information and/or education on the Site regarding the EndoPAT® test and prevention of heart attacks. We further authorize you to view and download Content from the Site – but only for your use in connection with products and services described herein. We also authorize you to apply though the Site for an EndoPAT® test voucher and/or other promotional materials and services, as and when offered on the Site and on the terms then in effect. For example, we may offer you the opportunity to apply for a voucher that will enable you to obtain a free EndoPAT® test for yourself, a family member, or a loved one, when available.
These authorizations do not transfer any rights to you, including rights to the Content, other than those expressly granted. Any copies you make of the Content (including by printing or by retaining electronic copies) are subject to the following restrictions:
You may not remove, or disassociate, from any of the Content, and/or products and/or services described on the Site, any copyright, trademark or other proprietary notices contained in the materials (such as ©,™, or ®);
You may not transfer the Content and/or products and/or services described on the Site, to any other person, except as expressly permitted herein.
6. Use Restrictions on the Site
The conduct and restrictions described below are strictly prohibited. Your failure to comply (as judged by us in our sole discretion) may result in termination of your access to the Site and may also expose you to civil and/or criminal liability. You may not, whether by yourself or through anyone on your behalf:
· Infringe or violate any of the Terms;
· Offer, submit, disclose, or provide any of the matters described in number 3 above, including, without limitation, any request for a medical opinion or diagnosis of any physical or mental disease or condition, recommendation regarding treatment, and/or a medical opinion or diagnosis of any kind, in or during a live-chat or anywhere on the Site that may be viewed by visitors to and/or other users of the Site, including Physician Users;
· Use the Site and/or any interactions therein for any illegal, unlawful or unauthorized purposes;
· Use the Site in any form of spam, unsolicited mail or similar conduct;
· Perform any marketing or fundraising on or through the Site, including in any real-time chat or submission of information to be posted on the Site;
· Allow access to your account to anyone other than yourself, including, without limitation, any persons who are under the age of 18 and any persons or entities who are not registered and authorized to use the Site hereunder;
· Use the Site for non-personal or commercial purposes without Itamar's express prior written consent;
· Interfere with or violate other Users' rights to privacy and other rights, or harvest or collect data and information about other Users without their express consent, whether manually or automatically with the use of any robot, spider, crawler, any search or retrieval application, or use other automatic device, process or method to access the Site and retrieve, index and/or data-mine any information;
· Interfere with or disrupt the operation of the Site or the servers or networks that host the Site, or disobey any laws or regulations or requirements, procedures, policies, or regulations of such servers or networks;
· Submit or transmit to us through the Site any content, text or information that is abusive, harassing, threatening, obscene, defamatory, libelous, or racially, sexually, religiously, or otherwise objectionable or offensive, including content that infringes upon Intellectual Property rights and privacy rights, or any other unlawful content;
· Impersonate any person or entity or provide false information on the Site, whether directly or indirectly;
· Falsely state or otherwise misrepresent your affiliation with any person or entity, or express or imply that Itamar or any third party endorses you, your website, your business, or any statement you make, or present false or inaccurate information about the Site;
· Bypass any measures we may use to prevent or restrict access to the Site;
· Copy, modify, alter, adapt, make available, translate, port, reverse engineer, decompile, or disassemble any portion of the Site in any way, unless permitted hereunder;
· Create a browser, frame, border environment or GUI around the Site;
· Link, including in-line linking, to elements on the Site, such as images, posters and videos, unless permitted hereunder.
8. Registration, User Account, and Information You Submit on the Site
By registering to become a User, you represent and warrant that all information you provide to us is true, accurate, current and complete, that you are authorized or entitled to disclose and/or submit the information, that you are doing so voluntarily, that providing the information does not violate any contractual restrictions or third-party rights, and that you will maintain and promptly update such information to keep it true, accurate, current and complete.
BY REGISTERING TO BECOME A USER, YOU FURTHER AGREE THAT ANY PERSONAL HEALTH INFORMATION DISCLOSED, PROVIDED, OR SUBMITTED BY YOU ON OR THROUGH THE SITE OR GENERATED THROUGH YOUR USE OF THE SITE IS NOT CONSIDERED PROTECTED HEALTH INFORMATION (PHI) UNDER THE HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT OF 1996 (HIPAA) AND/OR PRIVATE OR CONFIDENTIAL MEDICAL INFORMATION UNDER APPLICABLE STATE LAW, AND THAT INFORMATION THAT YOU DISCLOSE, PROVIDE OR SUBMIT IN ANY CHAT OR OTHER AREA ON THE SITE THAT MAY BE VIEWED BY VISITORS TO AND/OR OTHER USERS OF THE SITE SHALL NOT BE CONSIDERED CONFIDENTIAL OR PRIVATE UNDER ANY STATE OR OTHER LAW.
By providing information to us, you grant us, without any further consent, notice and/or compensation to you or to any third parties, a nonexclusive, irrevocable, worldwide, perpetual, unlimited, assignable, sub-licenseable, fully paid-up and royalty-free right to copy, prepare derivative works of, improve, distribute, publish, remove, retain, add, process, analyze, use and commercialize, in any way now known or in the future discovered, the information you provide, directly or indirectly to us, including, but not limited to, User-generated content, ideas, concepts, techniques and/or data. Any information you submit to us is at your own risk of loss and you accept full responsibility for any unauthorized use of the Site on your behalf.
9. Intellectual Property Rights
The Site and the Intellectual Property rights pertaining thereto, including, but not limited to, inventions, patents and patent applications, trademarks, trade names, logos, copyrightable materials, graphics, text, images, designs and any Content (including the "look and feel" of the Site), specifications, methods, procedures, algorithms, data, technical data, interactive features, source and object code, files, interface, GUI and trade secrets, whether or not registered (collectively, "Intellectual Property"), are owned and/or licensed to Itamar and subject to copyright and other applicable intellectual property rights under United States laws, foreign laws and international conventions. You may not copy, distribute, display, execute publicly, make available to the public, reduce to human readable form, decompile, disassemble, adapt, sublicense, make any commercial use, sell, rent, lend, process, compile, reverse engineer, combine with other software, translate, modify or create derivative works of any material that is subject to Itamar's proprietary rights, including Itamar's Intellectual Property, either by yourself or by anyone on your behalf, in any way or by any means, unless expressly permitted in the Terms.
You are hereby prohibited from removing or deleting any and all copyright notices, restrictions and signs indicating proprietary rights of Itamar, including copyright mark [©] or trademark [® or ™] contained in or accompanying the Content included on the Site, and you represent and warrant that you will abide by all applicable laws in this respect. You are further prohibited from using, diluting or staining any name, mark or logo that is identical, or confusingly similar to any of Itamar's marks and logos, whether registered or not.
10. Trademarks and Trade names
"ITAMAR MEDICAL", "PAT", "EndoPAT®", "WatchPAT", Itamar Medical Corporation and Itamar's equipment and Products' names referenced herein and all logos and other proprietary identifiers used by Itamar in connection with the Site (“Itamar Trademarks”) are all trademarks and/or trade names of Itamar, whether or not registered. All other trademarks, service marks, trade names and logos which may appear on the Site belong to their respective owners (“Third Party Marks”). No right, license, or interest to Itamar Trademarks and/or to the Third Party Marks is granted hereunder, and you agree that no such right, license, or interest shall be asserted by you with respect to Itamar Trademarks or the Third Party Marks and therefore you will avoid using any of those marks, unless expressly permitted herein.
11. Links to Third Party Websites
The Site's availability and functionality depends on various factors, such as communication networks, software, hardware and Itamar's services' providers and contractors. Itamar does not warrant or guarantee that the Site will operate at all times without disruption or interruption, or that it will be immune from unauthorized access or error-free.
13. Changes to the Site
Itamar may change the Site's layout and design from time to time, and the availability of the Content and service included therein, without giving any prior notice on the Site. You hereby agree and acknowledge that Itamar is not responsible for any errors or malfunctions that may occur in connection with the performing of such changes.
14. Account Changes and Cancellation of User Account
If you wish to either change your User name or password to log-in on the Site, or cancel and remove your account from the Site and on any matters that extend the usual management of your account and the Site, you may contact Itamar at: firstname.lastname@example.org with such specific request. Your account on the Site will terminate within reasonable time following your request, and from that date of termination you will no longer be able to access your account. In any other matters, we will attempt to comply with any request to the best of our capabilities.
15. Disclaimer of Warranties.
YOU EXPRESSLY AGREE THAT USE OF THE SITE IS AT YOUR SOLE RISK. THE INFORMATION AND SERVICES ON THIS SITE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. ITAMAR EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, NON-INFRINGEMENT, TITLE, OPERABILITY, CONDITION, QUIET ENJOYMENT, VALUE, ACCURACY OF DATA AND SYSTEM INTEGRATION. ITAMAR MAKES NO WARRANTY THAT THE INFORMATION OR SERVICES WILL MEET YOUR NEEDS OR REQUIREMENTS, AND/OR THAT THE SITE AND/OR SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE; NOR DOES ITAMAR MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SITE, INFORMATION, OR SERVICES, OR THAT DEFECTS IN ANY OF THEM WILL BE CORRECTED. YOU UNDERSTAND AND AGREE THAT ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH YOUR USE OF THE SITE OR SERVICES IS AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL AND/OR INFORMATION. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US OR THROUGH THE SITE OR SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
YOU FURTHER EXPRESSLY AGREE THAT NEITHER THE CONTENT NOR ANY OTHER SERVICE OFFERED BY OR THROUGH THIS SITE IS INTENDED TO BE FOR MEDICAL DIAGNOSIS OR TREATMENT AND DOES NOT SERVE AS A SUBSTITUTE FOR YOUR OWN SOUND AND REASONABLY PRUDENT JUDGMENT. PERSONS ACCESSING THIS INFORMATION ASSUME FULL RESPONSIBILITY FOR THE USE OF THE INFORMATION AND AGREE THAT ITAMAR IS NOT RESPONSIBLE OR LIABLE FOR ANY CLAIM, LOSS, OR DAMAGE ARISING FROM THE USE OF THE INFORMATION. ITAMAR DOES NOT RECOMMEND OR ENDORSE ANY SPECIFIC DRUGS, TESTS, PHYSICIANS, PRODUCTS, PROCEDURES, OPINIONS, “OFF-LABEL” DRUG USES OR OTHER INFORMATION THAT MAY BE MENTIONED ON THE SITE AND USERS ARE REQUIRED TO DISCLOSE ANY CONFLICTS OF INTEREST. YOUR RELIANCE UPON THE CONTENT OBTAINED OR USED BY YOU IS SOLELY AT YOUR OWN RISK.
16. LIMITATION OF LIABILITY.
YOU UNDERSTAND AND AGREE THAT, TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL ITAMAR OR ANY OF OUR OWNERS, SUBSIDIARIES, AFFILIATED COMPANIES, EMPLOYEES, SHAREHOLDERS, OR DIRECTORS (“ITAMAR AFFILIATES”) BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF REVENUES, PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF SUCH PARTIES WERE ADVISED OF, KNEW OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY), ARISING OUT OF OR RELATED TO YOUR USE OF THE SITE, REGARDLESS OF WHETHER SUCH DAMAGES ARE BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), WARRANTY, STATUTE OR OTHERWISE. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SITE, INCLUDING THE CONTENT AND/OR THE SERVICES, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE SITE AND/OR THE SERVICES.
Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages, and as a result some of the above disclaimers may not apply to you. To the extent we may not, as a matter of applicable law, disclaim any implied warranty or limit its liabilities, the scope and duration of such warranty and the extent of our liability shall be the minimum permitted under applicable law.
17. Mutual Rights of Termination.
You may terminate this Agreement, for any or no reason, at any time, upon notice to Itamar. This notice will be effective upon Itamar processing your notice. Itamar may terminate or modify your use of the Site, your account, and/or your registration without notice for any reason at any time. You understand that termination of your agreement with Itamar and your account may involve deletion of information provided and/or submitted by you and any content you uploaded using such Account. YOU AGREE THAT WE WILL NOT BE LIABLE TO YOU OR ANY OTHER PARTY FOR ANY TERMINATION OF YOUR ACCESS TO THE SITE AND/OR DELETION OF YOUR ACCOUNT OR CONTENT UPLOADED BY YOU. OTHER AGREEMENTS WITH ITAMAR MAY CONTAIN DIFFERENT TERMINATION PROVISIONS FOR A GIVEN SERVICE. IN SUCH CASES, TERMINATION PROVISIONS WITHIN OTHER AGREEMENTS SHALL GOVERN THE TERMINATION OF THOSE SERVICES.
You agree to defend, indemnify and hold harmless Itamar's Affiliates from and against any and all claims, damages, obligations, losses, liabilities, costs, debts, and expenses (including but not limited to attorney's fees) arising from: (i) your use of the Site; (ii) your violation of any term of these Terms; (iii) your violation of any third party rights, including without limitation any intellectual property rights or privacy right of such third party; and (iv) any damage of any sort, whether direct, indirect, special or consequential, you may cause to any third party with relation to the Site. It is hereby clarified that this defense and indemnification obligation will survive these Terms.
19. CAN-SPAM, Telephone Consumer Protection Act and Similar Law
Your use of the Site establishes a business or other applicable relationship with us for purposes of CAN-SPAM, the Telephone Consumer Protection Act, and all other applicable law that addresses unsolicited commercial communications and/or marketing. By accessing, or continuing to access, the Site or sending e-mails to us, you agree that we or our agents may call, e-mail, or otherwise communicate with you regarding vouchers for free testing, promotion of goods and services, and/or or any other thing of value. You consent to receive communications from us electronically. We will communicate with you by e-mail or by posting notices on the Site. You agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.
20.1. These Terms do not, and shall not be construed to create any relationship, partnership, joint venture, employer-employee, agency, or franchisor-franchisee relationship between the parties hereto.
20.2. These Terms, and the rights and remedies provided hereunder, and any and all claims, disputes and controversies arising hereunder or related hereto, their interpretation, or the breach, termination or validity thereof, the relationships which result from these Terms, Itamar's advertising, or any related purchase shall be governed by, construed under and enforced in all respects solely and exclusively in accordance with the laws of the State of Israel without reference to its conflict-of-laws principles.
20.3. You expressly consent, and submit to the exclusive jurisdiction of and stipulate that venue shall be in the court of competent jurisdiction located in city of Tel-Aviv, Israel, for the adjudication or disposition of any claim, action or dispute arising directly or indirectly out of this Agreement or the Site. You further waive any objection to jurisdiction and venue of any action instituted hereunder, and further agree not to assert any defense based on lack of jurisdiction or improper venue, including forum non convenience and agree that process may be served in a manner authorized by applicable law or court rule.
20.4. Itamar may assign its rights and obligations hereunder and or transfer ownership rights and title in the Site to a third party without your consent or prior notice to you.
20.5. Your rights and obligations under the Terms are not assignable. Any attempted or actual assignment thereof by you will be null and void without Itamar's prior explicit and written consent.
20.7. No waiver by either party of any breach or default hereunder will be deemed to be a waiver of any preceding or subsequent breach or default. Any heading, caption or section title contained herein is inserted only as a matter of convenience, and in no way defines or explains any section or provision hereof.
20.8. These Terms constitute the entire terms and conditions between you and Itamar relating to the subject matter herein, and, except as otherwise provided herein, supersede any and all prior or contemporaneous agreements, understandings, promises, conditions, negotiations, covenants or representations, whether written or oral, between us, including, without limitation, those made by or between any of our respective representatives, with respect to the Products and the Site. You agree that no parol evidence shall be admitted in any judicial proceeding to establish any terms inconsistent with these Terms. You agree that you will make no claim at any time or place that these Terms have been orally altered or modified or otherwise changed by oral communication of any kind or character. You further agree that you are not relying upon any promise, inducement, representation, statement, disclosure or duty of disclosure of Itamar in entering into these Terms.
20.9. The provisions of the Products' Limited Warranty, Intellectual Property, Disclaimer and Warranties, Limitation of Liability, Indemnification and General sections, will survive the termination, or expiration of the Terms.
Notwithstanding anything to the contrary above, we may notify you via email or through postings on www.prevent-heart-attack.com. You may contact us via mail or email at:
Itamar Medical Ltd.
9 Halamish Street
PO Box 3579
Caesarea, 38900 Israel
Any notices that you provide without compliance with this section on Notices shall have no legal effect.
- The Terms Are Binding On Users