Patient Terms of Use.

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 Podimetrics RTM System is indicated for daily use in the home or clinical environment by people of all ages who are at risk of inflammatory conditions or injuries to the foot. It is for prescription use only. Your healthcare professional has identified you as someone who may benefit from use of the RTM System. The Mat, and our Podimetrics Cloud and related services (the “Services“) and the Thermogram Explorer, and any additional portals, applications, websites, and/or tools (individually and collectively, ”Related Materials”), and your use therefore, are subject to these Terms of Use.

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.

PLEASE READ THIS TERMS OF USE AGREEMENT (THE “TERMS OF USE”) CAREFULLY. BY ACCESSING OR USING THE MAT, SERVICES, OR RELATED MATERIALS, CLICKING ON THE “I AGREE” (OR A SIMILAR) BUTTON IN CONNECTION WITH ANY RELATED MATERIALS, OR SIGNING A DOCUMENT ACKNOWLEDGING AND AGREEING TO THESE TERMS OF USE AND RETURNING THE SAME TO YOUR HEALTHCARE PROVIDER OR PODIMETRICS, YOU REPRESENT THAT (1) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THE TERMS OF USE, (2) YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH PODIMETRICS, AND (3) YOU HAVE THE AUTHORITY TO ENTER INTO THESE TERMS OF USE PERSONALLY. THE TERM “YOU” REFERS TO THE INDIVIDUAL WHO IS PROVIDED THE MAT OR REGISTERED OR AUTHORIZED TO USE THE MAT OR RELATED MATERIALS. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS OF USE, YOU MAY NOT ACCESS OR USE THE MAT, SERVICES, OR RELATED MATERIALS AND SHOULD RETURN THE MAT TO PODIMETRICS OR THE HEALTHCARE PROVIDER WHO PROVIDED IT TO YOU.

THE TERMS OF USE INCLUDE DISCLAIMERS AND LIMITATIONS OF LIABILITY, A CLASS ACTION WAIVER, AND A WAIVER OF JURY TRIALS. THE TERMS OF USE ALSO REQUIRE BINDING ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES.

PLEASE NOTE THAT THE TERMS ARE SUBJECT TO CHANGE BY PODIMETRICS IN ITS SOLE DISCRETION AT ANY TIME. When changes are made, Podimetrics will make a new copy of the Terms of Use available at our Website https://www.podimetrics.com/legal/terms-of-use/providers and/or may send you a hard copy of the revised Terms of Use to the address where the Mat is registered with us. We will also update the “Last Updated” date at the top of the Terms of Use. Any changes to the Terms of Use will be effective immediately for new users and will be effective thirty (30) days after posting of notice of such changes on the Website for existing users. If you do not agree to any change(s) after receiving a notice of such change(s), you shall stop using the Mat and Related Materials. If the Mat was made available to you on a loaner or temporary basis, you must immediately return the Mat to Podimetrics or the healthcare provider who provided it to you. Your continued use of the Mat and Related Materials constitutes your acceptance of such change(s). PLEASE REGULARLY CHECK THE WEBSITE TO VIEW THE THEN-CURRENT TERMS.

You may use the Mat in accordance with these Terms of Use and the documentation we provide accompanying the Mat. You may not abuse or misuse the Mat or share it with another individual. You must return the Mat (ordinary wear and tear excepted) as instructed if you did not purchase it. The Mat may not work in all areas (e.g., where there is not wireless connectivity) or for all individuals. Consult with your healthcare provider regularly to confirm whether the Mat is transmitting appropriate data and for physical examinations.

The Mat may transmit certain data relating to you and your feet to you and/or your healthcare provider and/or Distributor, and Podimetrics may be provided other data by you, or your healthcare provider, and/or your Distributor, solely as permitted by applicable laws and regulations, including the Health Insurance Portability and Accountability Act of 1996 (HIPAA). The privacy and security of such data will be protected by Podimetrics, and such data will be subject to the terms of our Privacy Policy available at www.podimetrics.com/legal/privacy. We may analyze, aggregate, and/or de-identify that data to the extent permitted by applicable laws and regulations and applicable contracts to improve the Mat and Related Materials and/or develop and commercialize new products and services with de-identified data. We may also share your data with your healthcare provider and/or Distributor and as otherwise permitted under our Privacy Policy, subject to applicable laws and regulations. You acknowledge and agree that Podimetrics exclusively owns such de-identified data and any improvements or new products or services arising therefrom.

3.1 General.

We may make available Related Materials, such as portals, applications, web-sites, tools, information or other materials in connection with the Mat. Related Materials are protected by copyright and other laws throughout the world. Unless otherwise specified by Podimetrics in a separate license, your right to use any of the Related Materials is subject to these Terms of Use.

3.2 License.

Subject to your compliance with the Terms of Use, Podimetrics grants you a limited non-exclusive, non-transferable, non-sublicensable, revocable license to access and use Related Materials for your personal use relating to your Mat. Some of the software in our Related Materials may be offered under an open source license that we make available to you. There may be provisions in the open source license that expressly override some of the Terms of Use, and you agree to be bound by the terms of such open source license.

3.3 Updates.

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.

The rights granted to you are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit the Mat or Related Materials or any portion thereof, (b) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the Mat or Related Materials except to the extent the foregoing restrictions are expressly prohibited by applicable law; (c) you shall not use any means, including but not limited to script or programming, to scrape or mine the data or other content associated with the Mat or Related Materials; (d) you shall not use the Mat or Related Materials in order to build a similar or competitive Mat, portal, application, or other product or service; (e) except as expressly stated herein, no part of the Related Materials may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; and (f) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in the Mat or Related Materials. Any future release, update or other addition to the Mat or Related Materials shall be subject to the Terms. Podimetrics and its licensors, suppliers and service providers reserve all rights not granted in these Terms of Use.

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.

5.2 Trademarks.

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.

5.3 Feedback.

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.

You agree to indemnify and hold Podimetrics, its affiliates, officers, employees, agents, partners, Distributors, and licensors (collectively the “Podimetrics Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of: (a) your use of, or inability to use, the Mat or Related Materials; (b) your violation of the Terms of Use; or (c) your violation of any applicable laws, rules or regulations. Podimetrics reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Podimetrics in asserting any available defenses. You agree that the provisions in this section will survive any termination.

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.

8.1 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.

8.3 Release

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.”

9.1 Term.

These Terms of Use commence on first use of the Mat or Related Materials and remain in full force and effect while you use such Mat or Related Materials, unless terminated earlier in accordance with the Terms of Use.

9.2 Termination of Services by Podimetrics.

If you have materially breached any provision of the Terms of Use, or if Podimetrics is required to do so by law (e.g., where the provision of Mat becomes unlawful), Podimetrics has the right to, immediately and without notice, suspend or terminate the Terms of Use in connection with the Mat and/or applicable Related Materials. You agree that all terminations for cause shall be made in Podimetrics’ sole discretion and that Podimetrics shall not be liable to you or any third-party for any termination.

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

Termination may result in deletion of your passwords and all of your data from our live databases. Your data already in our possession or control may continue to be available to your healthcare provider consistent with applicable law. Upon termination, your rights will automatically terminate. All provisions of the Terms of Use which by their nature should survive, shall survive, including without limitation, ownership provisions, warranty disclaimers, and limitations of liability.

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.

Except as expressly provided herein, all claims and disputes (excluding claims for emergency injunctive relief as set forth below) in connection with the Terms of Use or the Mat or Related Materials provided by Podimetrics that cannot be resolved informally or in small claims court shall be resolved exclusively by binding arbitration on an individual basis under the terms of this arbitration provision (Arbitration Agreement”). Unless otherwise agreed to, all arbitration proceedings shall be held in English. This Arbitration Agreement applies to you and Podimetrics, and to any subsidiaries, affiliates, agents, employees, predecessors in interest, heirs, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of the Mats or Related Materials.

11.2 Arbitration Rules.

Arbitration shall be initiated through the American Arbitration Association (“AAA”), an established alternative dispute resolution provider (“ADR Provider”) that offers arbitration as set forth in this section. If AAA is not available to arbitrate, the parties shall agree to select an alternative ADR Provider. The rules of the ADR Provider shall govern all aspects of the arbitration, including but not limited to the method of initiating and/or demanding arbitration, except to the extent such rules are in conflict with the Terms of Use. The AAA Consumer Arbitration Rules governing the arbitration are available online at www.adr.org or by calling the AAA at 1-800-778-7879.

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.

12.1 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.

12.2 Assignment.

The Terms of Use, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated, or otherwise transferred by you without Podimetrics’ prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.

12.3 Compliance.

If you believe that Podimetrics has not adhered to the Terms of Use, please contact Podimetrics by emailing us at info@podimetrics.com. We will do our best to address your concerns. If you feel that your complaint has been addressed incompletely, we invite you to let us know for further investigation.

12.4 Limitations Period.

YOU AND PODIMETRICS AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE TERMS OF USE, THE MAT, OR RELATED MATERIALS MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.

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.

12.6 Notice.

Where Podimetrics requires that you provide an e-mail address, you are responsible for providing Podimetrics with your most current e-mail address. In the event that the last e-mail address you provided to Podimetrics is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Terms of Use, Podimetrics’ dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Podimetrics at the following address: 49 Day Street, Suite A, Somerville, MA 02144. Such notice shall be deemed given when received by Podimetrics by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.

12.7 Waiver.

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.

12.8 Severability.

If any provision of the Terms of Use is, for any reason, held to be invalid or unenforceable, the other provisions of the Terms of Use will remain enforceable, and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.

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.

End of Terms of Use

Revision History

• November 1, 2021
• December 31, 2019
• May 1, 2018
• August 28, 2017
• May 6, 2016