- BY REGISTERING, ACCESSING OR USING THE ICARE CLOUD SERVICE, OR BY CLICKING ACCEPT OR TAKING A SIMILAR ACTION WHEN PRESENTED WITH THESE TERMS ELECTRONICALLY, THE USER ACCEPTS AND AGREES TO BE FULLY BOUND BY THESE TERMS, AND EXPRESSLY GIVES THE CONSENTS SET FORTH IN SECTION 3 AND 7. SUCH ACCEPTANCE AND AGREEMENT FORMS A BINDING CONTRACT BETWEEN THE USER AND ICARE.
- The User warrants that he/she is using the Service solely on his or her own behalf or for assistance with a Device Patient, and not in a commercial manner for multiple patients. The User represents and warrants that he or she is at least 18 years of age. If User is not also the Device Patient, User represents and warrants that he or she has all necessary approvals and authorization from the Device Patient to use the iCare CLOUD Service on the Device Patient’s behalf and to agree to the terms herein applicable to the Device Patient, including those related to Personal Information and Protected Health Information of the Device Patient.
As used herein:
- “Agreement” means the binding contract formed by these Terms pursuant to Section 1.2.
- “Device” means an iCare tonometer device with which the iCare CLOUD Service and the Mobile Application may be used.
- “Device Patient” means the individual person whose intraocular pressure or other data is recorded by a Device.
- “Documentation” means user manuals and other documents in electronic or other written form that are supplied by iCare with a Device or that are accessible through the Mobile Application or the iCare CLOUD Service.
- “iCare” means Icare USA, Inc., a Missouri corporation.
- “iCare CLOUD Service” mean the SaaS (software as a service) offering delivered by iCare or its affiliates via the internet enabling Users to transmit Patient Data to the System, retrieve and view such Patient Data, and request and receive the Output Data, as such offering may be modified by iCare or itsaffiliates from time to time, including all modifications, enhancements, new versions and updates thereto.
- “Intellectual Property Rights” means patents, inventions, trademarks, domain names, rights in know-how, trade secrets, copyrights, database rights, rights related to copyrights and any other intellectual property rights, whether registered or not, and including, without limitation the right to amend and further develop the objects of those rights and the right to assign such rights to third parties.
- “Mobile Application” means the software application produced by iCare and called iCare PATIENT2, which can be used by the User to transmit the Patient Data through a mobile device to the System, or to review Patient Data recorded with a Device and stored in the System, as such offering may be modified by iCare or its affiliates from time to time, including all modifications, enhancements, new versions and updates thereto.
- “Output Data” means the Patient Data as processed by the System.
- “Patient Data” means the data or other content recorded by a Device and transmitted to the System, directly or indirectly, through the Mobile Application or otherwise, and may include Output Data. For the avoidance of doubt, Patient Data may contain Personal Information that is subject to Section 7 below.
- “Personal Information” means (i) any information that can specifically identify an individual, such as name, address and social security number, together with any other information that relates to an individual who has been so identified in any format whether written, electronic or otherwise, (ii) Protected Health Information, (iii) any “personal information” as such term is defined in The California Consumer Privacy Act of 2018 (Cal. Civ. Code Division 3, Part 4, Title 1.81.5), and (iv) any similar term defined under other applicable federal, state, and local privacy, information security, data protection, and data breach notification laws and regulations.
- “Protected Health Information” has the meaning defined under the Health Insurance Portability and Accountability Act of 1996.
- “System” means the systems used by iCare, its affiliates and third parties to provide the iCare CLOUD Service and any related service, including all modifications, enhancements, new versions and updates thereto.
- “User” means an individual that has registered an account to use the iCare CLOUD Service pursuant to this Agreement. A User may refer to a Device Patient or any individual using the iCare CLOUD Service to assist a Device Patient.USA Version January 2021 47241313.2
FEES AND SUBSCRIPTION TERMS
- By registering an account for the iCare CLOUD Service and entering into this Agreement, User agrees to pay the initial subscription fees presented by iCare at the time of such registration (the “Fees”). Subscription terms may be month-to-month or annual based on User’s selection through the registration or renewal procedure. Users may confirm their current account subscription terms at any time by contacting iCare at [email protected] or 888-422-7313. Except as expressly set forth in this Agreement, all Fees and related charges are non-refundable.
- Subscriptions shall automatically renew at the end of each applicable Term unless User takes action in accordance with this Section 3.2. Monthly subscriptions automatically renew on a month-to- month basis unless User provides notice of termination at least 10 days prior to the end of the then-current month. Annual subscriptions automatically renew for subsequent twelve-month periods unless User provides notice of termination at least 30 days prior to the end of the then-current subscription year. Fees for each renewal term will be based on iCare’s then-current stated fee schedule, and User’s use of the iCare CLOUD Service during a renewal term constitutes User’s agreement to such change in Fees, if applicable.
- Stated Fees are exclusive of taxes and other governmental charges. User shall be responsible for all such charges and authorizes iCare to collect for such charges in addition to Fees.
- Fees and applicable charges are due at the beginning of each subscription term. User authorizes and consents to iCare or its payment processor charging all applicable Fees and charges to User’s credit card, debit card or other payment method on file with iCare. User agrees that if a charge is rejected for any reason, User will remain responsible for all Fees and charges plus any additional costs incurred by iCare due to such rejection.
ADDITIONAL USER RESPONSIBILITIES
- User acknowledges and agrees that it or, if different, the Device Patient, and not iCare or its affiliates, is responsible for acquiring and maintaining, as applicable, (i) Devices, (ii) as applicable, the mobile devices on which a Mobile Application is installed and/or computers on which an iCare Windows application is installed, (iii) connections and data traffic subscriptions, (iv) the hardware and software environment with which the iCare CLOUD Service is used and (v) information security related to each of the foregoing. User acknowledges that iCare or its affiliates may make changes to the iCare CLOUD Service, the Mobile Application or any Device firmware at any time and that nothing in this Agreement guarantees compatibility or interoperation with any particular Device or Mobile Application, provided iCare or its affiliate will use reasonable efforts to provide advance notice to Users prior to any changes that would reasonably be anticipated to cause any incompatibility.
User and the Device Patient are solely responsible for reviewing and interpreting Patient Data and for arranging with a qualified medical professional to seek or obtain any medical advice or to establish or modify any treatment plan. User acknowledges and agrees
that neither iCare nor any of its affiliates is a provider of any medical advice or service, and that none of them form any patient relationship with User or any Device Patient.
- User shall maintain the iCare CLOUD Service login and password credentials, not disclose them or allow them to be used by any other party, and notify iCare promptly in the event of any suspected misuse or compromise thereof. User is responsible for all actions taken with User’s credentials.
RIGHTS OF USE AND RESTRICTIONS
- iCare hereby grants User a non-exclusive, non- transferable, revocable right to access and use the iCare CLOUD Service and any related Documentation in accordance with this Agreement and such Documentation for the sole purpose of storing, accessing, retrieving and reviewing Patient Data of an authorized Device Patient, and for no other purpose.
- User agrees to only use the iCare CLOUD Service and Documentation for the limited purpose set forth in Section 5.1.
- User agrees not to (a) make the iCare CLOUD Service available to any other party, (b) attempt to disassemble, decompile, reverse engineer or otherwise attempt to derive the source code of the iCare CLOUD Service or any System component, (c) introduce, store, distribute or transmit any Trojan horse, virus, worm, logic bomb or other malicious code or software into the system, or attempt any of the foregoing, (c) access or use the iCare CLOUD Service in order to build any competing product or service, (d) duplicate, copy, distribute, modify, create derivatives of, or otherwise reuse any portion of the iCare CLOUD Service, (e) attempt to interfere with the proper working order of the iCare CLOUD Service or any component of the System or (f) provide or transmit any content that violates any applicable law, impersonates or misrepresents User’s or any Device Patient’s identity, exploits or attempts to exploit or harm any other party, or otherwise violates any content standards that iCare or its affiliates may publish, as the same may be amended from time to time.
- User acknowledges that iCare or its affiliates may disable User’s credentials or otherwise terminate User’s use of the iCare CLOUD Service without any refund in the event of any breach of the restrictions contained in this Agreement, in addition to any other rights or remedies that may be available.
INTELLECTUAL PROPERTY RIGHTS
- Title and any and all Intellectual Property Rights in and to the iCare CLOUD Service, the System, the Mobile Application and the Documentation, and any copies, modifications, translations, amendments and derivatives thereof are the sole property of, and shall belong only to, iCare and/or its licensors.
- User acknowledges and agrees that in order to utilize the iCare CLOUD Service and the Mobile Application, User will have to provide User’s or the Device Patient’s Personal Information. If User does not provide the Personal Information as required, the User may not be able to utilize the iCare CLOUD Service or Mobile Application.
- User acknowledges and agrees that iCare or its affiliates may collect User or Device Patient Personal Information other than Protected Health Information in connection with providing, administering, and maintaining the iCare CLOUD Service or the Mobile Application. In addition, User acknowledges and agrees that iCare and its affiliates may use such Patient Data for their own product development purposes and that such use may include disclosure to third parties, provided, in each such case, the Patient Data will be used or shared in only a de- identified and aggregated form.
- Personal Information collected and processed by iCare or its affiliates may include: first name and last name; email address; password; serial number of the Device; IP addresses relating to the Device and the Mobile Application and the System components; and the settings of the Device.
- User acknowledges and agrees that in connection with using the Mobile Application, if applicable, third parties such as Google or Apple may collect additional information through the mobile electronic device on which the Mobile Application is installed, that such collection and use is governed by the third-parties’ privacy policies, and that iCare and its affiliates are in no way responsible for any such collection or use of Personal Information.
- To the extent User utilizes the iCare CLOUD Service, Mobile Application or Device for a minor child, User represents that he or she is the child’s legal guardian or is otherwise authorized to give the consents and acknowledgments herein, including the consent to iCare’s or its affiliates’ collection and processing of the child’s Personal Information as set forth herein.
- The Personal Information may be transferred to subcontractors of iCare.
LIMITATION OF LIABILITY AND DISCLAIMERS
- Neither iCare nor its affiliates shall be liable to User or any Device Patient for any errors or defects in the iCare CLOUD Service or Documentation, all of which is provided on an “AS IS” AND “AS-AVAILABLE” basis without any warranty of any kind. While iCare and its affiliates make reasonable efforts to ensure that the iCare CLOUD Service will function as claimed and that the Documentation is accurate, neither iCare nor its affiliates makes any warranty that the iCare CLOUD Service or any information provided through it will (a) meet specific requirements or expectations of the User or Device Patient, (b) be uninterrupted or always available, error-free, timely, secure, free of security breaches, viruses, denial of service attacks or other harmful or malicious code, or (c) be complete, accurate, of a certain quality, or reliable. In addition, TO THEFULLEST EXTENT PERMITTED BY APPLICABLE LAW, ICARE AND ITS AFFILIATES DO NOT MAKE, AND HEREBY DISCLAIM, ANY AND ALL EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON- INFRINGEMENT AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE.
- User acknowledges and agrees that neither iCare nor its affiliates shall have any liability with respect to the interpretation of any Patient Data transmitted to or retrieved from the User’s or Device Patient’s iCare CLOUD Service account or otherwise made available through the Mobile Application, including Output Data. Such information is not screened or reviewed by iCare or its affiliates and does not constitute guidance, diagnosis, recommendations or medical advice.
- In the event that the iCare CLOUD System is not available or does not perform in accordance with the Documentation in any material respect, User may request and obtain a refund or credit of any Fees paid, calculated on a pro-rated basis for the number of days during which such condition existed. The foregoing is User’s sole and exclusive remedy for any failure or non-performance by iCare of any of its obligations under this Agreement.
- SUBJECT TO SECTION 8.3, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL ICARE OR ANY AFFILIATE OR OTHER PERSON BE LIABLE TO USER OR ANY DEVICE PATIENT FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH USER’S USE OF OR ACCESS TO, OR INABILITY TO USE OR ACCESS, THE ICARE CLOUD SERVICE, THE DOCUMENTATION, OR ANY INFORMATION TRANSMITTED THROUGH THE MOBILE APPLICATION, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, OR DAMAGES RELATING TO LOSS OF DATA, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT, OR OTHERWISE, EVEN IF FORESEEABLE AND EVEN IF ANY OTHER WARRANTY PROVIDED HEREIN FAILS OF ITS ESSENTIAL PURPOSE.
- No provision in this Section 8 shall affect any warranty or liability that cannot be excluded or limited under applicable law.
- User acknowledges that neither iCare nor its affiliates undertake to provide any support or maintenance services for the iCare CLOUD service pursuant to this Agreement.
- User agrees to indemnify and hold harmless iCare and its affiliates, licensors, service providers and representatives, and each of their successors and assigns, from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses, or fees (including reasonable attorneys’ fees) arising out of or relating to User’s use of the Mobile Application or any violation of these Terms by User.
Changes to Terms
- iCare reserves the right to change these Terms in its sole discretion at any time. All changes are effective immediately upon notice, which may include an electronic posting or other message provided through the iCare CLOUD Service or the Mobile Application. It is User’s responsibility to monitor and review any such changes, and User’s continued use of the iCare CLOUD Service following such change will be deemed acceptance of and agreement to the changes. In case the User does not accept any such amended Terms, the sole option for the User is to delete his or her account and discontinue use of the iCare CLOUD Service, and iCare shall not have any liability to the User or any Device Patient in such event, except iCare will provide a prorated refund of any prepaid Fees and charges. User shall not be entitled to make any change to these Terms without the express written agreement of iCare.
Assignment and Subcontractors
- User may not assign or sublicense this Agreement or the rights granted herein to any other person without iCare’s prior written consent. iCare may assign or subcontract this Agreement or any rights or obligations herein to any person without limitation other than applicable law.
Term and Termination
- This Agreement shall continue in effect for so long as User maintains a valid subscription to the iCare CLOUD Service as described in Section 3, including renewals. This Agreement, including all rights granted to User herein, shall automatically terminate at the time a subscription is terminated or expires without renewal. iCare may terminate this Agreement without penalty or refund at any time in the event User breaches any term or condition herein. In addition, iCare may terminate this Agreement and the iCare CLOUD Service at any time for any reason. If iCare terminates this Agreement for any reason other than a breach by User, User shall be entitled to a prorated refund of any prepaid Fees and charges.
- Notwithstanding any termination of this Agreement, those provisions which by their nature or wording contemplate effectiveness beyond such termination, including those relating to Intellectual Property Rights, Personal Information, limitations of liability, disclaimers of warranty and this “Miscellaneous” Section, shall survive indefinitely.
- If any provision of this Agreement is found to be unenforceable or contrary to law, the other provisions will remain in force. Each provision of this Agreement shall be interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law.
- Any failure of iCare or its affiliates to assert a right or provision under these Terms shall not constitute a waiver of such right or provision, and no waiver by iCare or any affiliate of any term or condition, if given to any User, shall be deemed a further or continuing waiver of such term or condition or a waiver of any other term or condition, or a waiver as to any other User.
Governing Law and Dispute Settlement
- This Agreement shall be construed in accordance with the laws of the State of North Carolina, excluding its choice of law provisions. The UN Convention on Contracts for the International Sale of Goods shall not apply to these Terms
- Any dispute, controversy or claim arising out of or relating to this Agreement, or the breach, termination or validity thereof, shall be brought and determined exclusively in the state and federal courts located in Raleigh, North Carolina. Notwithstanding the above, iCare shall be entitled to make any claims and demands and seek equitable and/or injunctive relief to prevent or stop a violation of these Terms in any court of law having appropriate jurisdiction.
- This Agreement constitutes the entire Agreement between User and iCare regarding the subject matter hereof, and supersede all prior agreements, understandings, representations or warranties regarding such subject matter. For avoidance of doubt, the foregoing does not affect any separate agreement between the parties regarding Devices, the Mobile Application, or any other software or offering. The section headers contained in this Agreement are included for convenience only and are not intended to impact any interpretation or construction of these Terms.