Last modified August 28, 2017
The Podimetrics Remote Temperature Monitoring System (the “RTM System”) provides information indicating when a patient and healthcare provider should communicate for further evaluation and treatment regarding any persistent localized inflammation observed on a patient’s feet. The RTM System also allows a patient to communicate with one (1) or more authorized distributors of the RTM System (each, a “Distributor”) about the patient’s use of the RTM System, including results and analysis obtained in connection therewith, when such communication does not rise to the level of requiring communication with the patient’s healthcare provider. The RTM System consists of the Podimetrics Mat (the “Mat“) and Thermogram Explorer. The Mat is an in-home, daily-use floor mat that measures the temperature over a patient’s feet and wirelessly transmits the temperature data to Podimetrics Inc. (”Podimetrics” or “we” or “us”), which processes and stores the data in the Podimetrics Cloud. Thermogram Explorer is an HTML5 web application that displays the temperature data collected by the Mat. The RTM System is intended to be used by a patient in conjunction with a healthcare professional, Distributor and/or caretaker for periodic evaluation of the temperature over the soles of the feet for signs of inflammation.
The Mat does not work for all patients and the efficacy of the Mat may vary. Due to the nature of cellular communications, the Mat may not be able to transmit data in all areas or at all times. Podimetrics is not a healthcare provider and the Mat, Services and Related Materials do not provide medical advice. Rather, the Mat, Services and Related Materials are a tool that your healthcare providers may use, in their professional judgment, to inform their professional decision making.
The Mat, Services and Related Materials are not a replacement for a physical examination by a trained healthcare provider and should not be used independently to diagnose foot ulcers, inflammatory foot diseases, or other diseases or conditions. You should continue doing regular self-examinations. The measurement of plantar foot temperature is not a representative of your internal body temperature and it should not be used to evaluate a fever or your overall health. The quality or accuracy of a scan may be affected, for example, if you move your feet during a scan or if you are wearing thick socks.
The Mat, Services and Related Materials are not, and do not provide, medical advice, service, or care. You should not solely rely on the Mat, Services or Related Materials for the diagnosis or treatment of any health problem or disease. You should consult a healthcare professional or another qualified healthcare provider on a regular and appropriate basis.
1. USE OF MAT.
2. PATIENT DATA.
3. RELATED MATERIALS.
You understand that Related Materials are evolving and may not be available. As a result, Podimetrics may require you to accept updates to Related Materials that you have installed. You acknowledge and agree that Podimetrics may update Related Materials with or without notifying you. You may need to update third-party software from time to time in order to access or use the Related Materials.
4. Certain Restrictions.
5.1 Podimetrics Intellectual Property.
Except with respect to your personally identifiable data, you agree that Podimetrics and its suppliers own all rights, title and interest in and to the Mat, Services, and Related Materials and all intellectual property rights related to the Mat, Services and Related Materials. Physical Devices may be owned by your healthcare provider or plan or Podimetrics and will be returned to the owner as requested.
Podimetrics related graphics, logos, service marks and trade names used on or in connection with the Mat or Related Materials are owned by Podimetrics and may not be used without permission. Other trademarks, service marks and trade names are the property of their respective owners.
You agree that submission of any ideas, suggestions, documents, and/or proposals to Podimetrics through its suggestion, feedback, wiki, forum or similar pages (“Feedback”) is at your own risk and that Podimetrics has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to Podimetrics a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights.
7. Disclaimer of Warranties.
7.1 AS IS.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE MAT AND RELATED MATERIALS IS AT YOUR SOLE RISK, AND THE MAT AND RELATED MATERIALS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. THE PODIMETRICS PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
- (a)PODIMETRICS MAKES NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) THE MAT OR RELATED MATERIALS WILL BE APPROPRIATE FOR YOU OR MEET YOUR REQUIREMENTS; (2) YOUR USE OF THE MAT OR RELATED MATERIALS WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (3) THE RESULTS, INCLUDING ANY ADVICE OR COMMUNICATION THAT MAY BE OBTAINED FROM OR IN CONNECTION WITH USE OF THE MAT OR RELATED MATERIALS WILL BE ACCURATE OR RELIABLE; OR (4) ANY ERRORS WILL BE CORRECTED. The Mat is not a replacement of a physical examination by a trained healthcare provider and should not be used independently to diagnose foot ulcers or other diseases or conditions.
- (b) PODIMETRICS DOES NOT GUARANTEE THE EFFICACY OF THE MAT OR RELATED MATERIALS OR ANY INFORMATION PROVIDED THROUGH SUCH MAT OR RELATED MATERIALS. NO RESULTS OF ANY KIND ARE GUARANTEED.
- (c) NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM PODIMETRICS OR THROUGH THE MAT OR RELATED MATERIALS WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
7.2 No Liability for Conduct of Third Parties.
YOU ACKNOWLEDGE AND AGREE THAT THE PODIMETRICS PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD THE PODIMETRICS PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING HEALTH CARE PROVIDERS OR OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF HARM OR INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU.
8. Limitation of Liability; Release.
8.1 Disclaimer of Certain Damages.
YOU UNDERSTAND AND AGREE THAT IN NO EVENT SHALL THE PODIMETRICS PARTIES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES OR FOR ANY DAMAGES RESULTING FROM LOSS OF USE, DATA, OR PROFITS, ARISING OUT OF OR IN CONNECTION WITH THE MAT OR RELATED MATERIALS, WHETHER OR NOT THE PODIMETRICS PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH THE MAT OR RELATED MATERIALS, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY.
8.2 Cap on Liability
UNDER NO CIRCUMSTANCES WILL THE PODIMETRICS PARTIES BE LIABLE TO YOU FOR AN AMOUNT TO EXCEED ONE HUNDRED DOLLARS ($100) OR THE AMOUNTS YOU PAID PODIMETRICS FOR THE MAT AND RELATED MATERIALS, IF ANY.
You hereby release, waive, relinquish and forever discharge the Podimetrics Parties from every past, present and future claim, demand and right of action of every kind and nature, known or unknown, related to the care your healthcare provider provides you or fails to provide you or the failure of the Mat to identify any issue. If you are a California resident, you hereby waive California Civil Code Section 1542, which states, “A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which, if known by him or her must have materially affected his or her settlement with the debtor.”
9. Term and Termination.
9.2 Termination of Services by Podimetrics.
9.3 Termination by You.
If you want to terminate, you may do so by ceasing use of the Mat and Related Materials, and to the extent the Mat was loaned to you, returning such Mat to the appropriate party.
9.4 Effect of Termination
10. International Users.
The Mat and Related Materials are intended for use in the United States of America only. Data is controlled and stored by Podimetrics and its service providers from facilities in the United States of America. Podimetrics makes no representations that Mats or Related Materials are appropriate or available for use in other locations. Those who access or use the Mat or Related Materials from other jurisdictions do so at their own volition, are responsible for compliance with local law, and hereby grant Podimetrics consent to transfer such data to the United States.
11.1 Applicability of Arbitration Agreement.
11.2 Arbitration Rules.
11.3 Authority of Arbitrator
If arbitration is initiated, the arbitrator will decide the rights and liabilities, if any, of you and Podimetrics, and the dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages, and to grant any non-monetary remedy or relief available to an individual under applicable law, the AAA Rules, and the Terms. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and Podimetrics.
11.4 Waiver of Jury Trial.
THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT (OTHER THAN A SMALL CLAIMS COURT) AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement. Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in a court and are subject to very limited review by a court.
11.5 Waiver of Class or Consolidated Actions.
ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OF MORE THAN ONE USER CANNOT BE ARBITRATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER. In the event that this subparagraph is deemed invalid or unenforceable neither you nor we are entitled to arbitration and instead claims and disputes shall be resolved in a court located in Boston, Massachusetts.
11.6 Small Claims Court
Notwithstanding the foregoing, either you or Podimetrics may bring an individual action in small claims court.
11.7 Emergency Injunctive Relief.
Notwithstanding the foregoing, either party may seek emergency injunctive relief before a state or federal court in order to maintain the status quo pending arbitration. A request for interim measures shall not be deemed a waiver of any other rights or obligations under this Arbitration Agreement.
12. General Provisions.
12.1 Electronic Communications.
To the maximum extent permitted by law, you (1) consent to receive communications from Podimetrics in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Podimetrics provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights.
12.4 Limitations Period.
12.5 Governing Law.
The Terms and any action related thereto will be governed and interpreted by and under the laws of the Commonwealth of Massachusetts, without giving effect to any principles that provide for the application of the law of another jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
Any waiver or failure to enforce any provision of the Terms on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
12.9 Export Control.
You may not use, export, import, or transfer the Mat or Related Materials except as authorized by U.S. law and any other applicable laws. In particular, but without limitation, the Mat and Related Materials may not be exported or re-exported (a) into any United States embargoed countries; or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You acknowledge and agree that products, services or technology provided by Podimetrics are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer Podimetrics products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.
12.10 Consumer Complaints
In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
12.11 Entire Agreement.
The Terms are the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.