EpiMonitor

Next-Gen Epilepsy Monitoring

Available in the US, UK & EU

Embrace2

Peace of Mind

No longer available for purchase

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EmpaticaEmpatica

Epilepsy Monitoring

EpiMonitor
Next-Gen Epilepsy MonitoringAvailable in the US, UK & EU
Embrace2
Peace of MindNo longer available for purchase

End User License Agreement

PLEASE READ THIS AGREEMENT BEFORE USING THE EMPATICA MOBILE APPLICATION. THESE CONDITIONS GOVERN THE NON-EXCLUSIVE LICENSE TO USE EMPATICA INC (“EMPATICA”) PRODUCTS AND SERVICES DEFINED IN THE SCOPE OF THIS AGREEMENT. BY DOWNLOADING, INSTALLING OR USING EMPATICA MOBILE APPLICATION (THE “APP”), THE END USER (“USER” OR “YOU”) AGREES THAT YOU HAVE READ, UNDERSTOOD AND AGREE TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MUST NOT DOWNLOAD, INSTALL OR USE THE APP.

NOTE: THIS AGREEMENT CONTAINS A DISPUTE RESOLUTION AND ARBITRATION PROVISION, INCLUDING CLASS ACTION WAIVER THAT AFFECTS YOUR RIGHTS UNDER THE AGREEMENT AND WITH RESPECT TO DISPUTES YOU MAY HAVE WITH EMPATICA. YOU MAY OPT OUT OF THE BINDING INDIVIDUAL ARBITRATION AND CLASS ACTION WAIVER AS PROVIDED BELOW

1. DEFINITIONS

A list of the definitions of the terms used in this license agreement is given below: “App” shall mean the EMPATICA mobile application, which may be downloaded from the EMPATICA website or applicable app stores and used with a Device. “Caregiver(s)” shall mean the person(s) designated by the User to receive calls and/or SMS messages via the App. “Device” shall mean the smartphone device that enables use of the App. “EMPATICA” shall mean Empatica Inc., a company incorporated under the Laws of Delaware, with registered office at 1 Broadway, 14th Floor Cambridge, MA 02142. “Agreement“ shall mean this End User License Agreement, which governs the use of the App by the User, as amended by EMPATICA from time to time. “User” shall mean the App user. “Wearable” shall mean the wearable device capable of collecting and transmitting physiological data for display on the App, designed and/or commercialized by EMPATICA. The App shall only work with those Wearable designed and/or commercialized by EMPATICA and not any other devices or wearables.

2. END USER LICENSE

Subject to the terms and conditions of this Agreement, EMPATICA hereby grants to the User a non-transferable and non-exclusive license to install and use an object code copy of the App on one Device owned or leased solely by the User solely for the User’s personal, non-commercial use (“Permitted Purposes”). The User must have a Device that is compatible with the App, and is solely responsible for the installation, configuration and maintenance of the App and all related software, hardware and other devices. EMPATICA does not warrant that the App will be compatible with all mobile devices. Standard carrier data charges may apply to the use of the App and/or use of text messaging and User is solely responsible for such charges. The App connects to Empatica's cloud services over the Internet, which may include connections via wireless and wired networks.. Use of the App operates as the User’s consent to the transmission of standard device information (including but not limited to technical information about the Device and application software and/or the User’s wireless services). The User shall use the App in accordance with and within the limitations of this Agreement. The User cannot transfer or grant to a third party their rights deriving from this Agreement without the prior written consent of EMPATICA. The User hereby agrees to adopt any measure necessary to protect the App from any unauthorized use, reproduction, distribution or publication. The User shall not (1) copy, publish or otherwise reproduce the App; (2) alter, reverse engineer, decompile, disassemble, decode or try to unlock or bypass the initialization system and/or technical security measures used by the App; (3) modify, adapt, translate, rent, lend the App or create derivative works from it; (4) remove or modify logos and trademarks of EMPATICA or of any other entity in the App.

3. ACCOUNTS

You need not register with us to simply download and install the App. However, in order to access and/or use the App, you must successfully register for an account with EMPATICA. You are responsible for maintaining the confidentiality of your account password and for all activities that occur using your account. You agree not to share, let anyone else access or do anything else that might jeopardize the security of your password. You agree to notify EMPATICA if your password is lost, stolen or disclosed to an unauthorized third party, if there is any unauthorized use of your password or account, or if you learn of any other breach of security in relation to EMPATICA or the App.

4. SECURITY AND SAFETY LIMITATIONS

The App is a notification system with respect to specific events that may be detected by a Wearable connected to the App. The Wearable will collect certain physiologic data and transmit the data to the App. Neither the Wearable nor the App are intended to provide medical advice or treatment; but rather, are intended to collect data and display such data to the User and any approved Caregivers. The App and Wearable are not a substitute for regular medical care and should not be used to change your treatment plan or other instructions given to you by your treating clinician without your treating clinician’s review and approval, and that you will ensure that all appropriate treatment, attention and efforts are made by and for your benefit to maintain your health and wellness. You acknowledge and agree that the App and Wearable are not an adequate substitute for medical treatment provided by licensed clinicians nor are the App and Wearable capable of providing treatment or assistance in a time of need. Accordingly, monitoring of the User through the App and Wearable may result in delayed assistance in comparison to in-person continuous monitoring. Upon activation, you must configure the App by providing contact information for one or more Caregivers to call and/or send a text message to them. The User is solely responsible for compliance with applicable data protection laws when providing the Caregiver(s) contact information and for verifying that the Caregiver(s) are willing, able, and available to accept and to receive these calls and/or text messages. You agree to choose Caregiver(s) who are informed about the risks associated with the events the App might detect. You acknowledge that you will communicate to them that these events may range from no risk to the (low but real) risk of death following an event that the App might (or might not) detect. You agree to ask Caregiver(s) to arrive immediately (within a minute or two, “as fast as possible”) upon the initiation of an event that might trigger an Alert. An “Alert” is a notification (call and/or text message) received by the designated Caregivers through their own Devices triggered by the Wearable and App intended to alert the Caregivers of potential seizure activity. You agree that Empatica and the App do not provide medical advice and that you will follow the medical advice of your doctor and will provide Caregiver(s) with your doctor’s best advice about what to do when they arrive. EMPATICA cannot verify or influence and shall not be liable in respect of any conduct of the Caregiver(s). The User shall indemnify and hold harmless EMPATICA from any claim, action or demand of the Caregiver(s) arising from the use of the App, including any claim resulting from a harmful action or lack of action provided by the Caregiver(s). You acknowledge and agree that, while EMPATICA intends for the App’s features to be highly reliable and available, EMPATICA cannot guarantee reliability. Empatica cannot guarantee that a call or text message will reach any Caregiver. You acknowledge and agree that the App may fail to work, with unexpected interruptions, including, without limitation, due to reasons such as loss of Bluetooth Low Energy or Internet connectivity, power outages, equipment failure or breakdown, telecommunication service provider failures, and third-party software or hardware issues. For example (and not by way of limitation), the App may not operate correctly and promptly for reasons such as: 1. Lack of network coverage (whether temporarily or permanently unavailable) relative to the Device of the User and/or Caregiver; 2. Caregiver is busy, preoccupied or otherwise not aware of the alert and does not respond to the text or the call; 3. Caregiver’s device is not available to receive further text messages or voicemails; 4. Caregiver’s or User’s Device malfunctions, is in airplane mode, or is powered off; 5. The signal needed to trigger the App may not be received due to hardware problems, wireless pairing problems, incomplete software updates, obstruction of the signal from the position of the User or other materials in the vicinity, or problems arising with the software or firmware on the EmbracePlus; 6. Caregiver or User is experiencing network access difficulties, issues related to network roaming or other network malfunctions, especially but not limited to driving or traveling; and 7. force majeure events. EMPATICA SHALL NOT BE LIABLE OR RESPONSIBLE FOR ANY LOSS OR DAMAGE WHATSOEVER RELATED TO THE USE OF THE APP AND/OR WEARABLE AND/OR ANY SERVICES PROVIDED THROUGH THE USER’S USE OF THE WEARABLE AND/OR APP.

5 ACCEPTABLE USE

The User shall not use the App to: (i) harm others, engage in any unlawful or fraudulent activity or perpetrate a hoax or engage in phishing schemes or forgery or other similar falsification or manipulation of data; (ii) damage, disable, overburden, or impair the App or the networks or servers that operate services related to the App; (iii) resell or redistribute the App; (iv) abuse, harass, stalk or otherwise violate the legal rights of a third party; (v) share passwords or other access information or devices or otherwise authorize, allow or enable any third party to access or use the App; (vi) gain or try to gain unauthorized access to any data, account or network by any means or (vii) violate any law, statute, ordinance or regulation. By using the App, you represent and warrant that you are at least 18 years of age. If you are not yet 18 years old, you must have the permission of an adult to use the App and agree to this Agreement. The adult that gives the permission must be a parent or legal guardian who is responsible for your use of the App and for the acceptance of this Agreement.

6. SUBSCRIPTIONS, PAYMENT AND CANCELLATION

You agree to pay all applicable fees and taxes related to your use of the App and/or the services that EMPATICA provides via the App based on EMPATICA's fees, charges, and billing terms then in effect. All fees are based on services purchased, regardless of actual usage. If you do not pay on time or if EMPATICA cannot charge your payment method for any reason, EMPATICA reserves the right to either suspend your access to your account and/or terminate this Agreement. By providing a payment method, you expressly authorize us to charge the applicable fees to your payment method at regular intervals as well as any taxes and other charges incurred in connection with your account, all of which depend on your particular subscription and utilized services. If you sign up for a paid subscription ("Paid Subscription"), we will charge you through your selected payment method for your first fee on the date that we process the order for your Paid Subscription. IMPORTANT NOTICE: UNLESS YOU CANCEL PRIOR TO THE EXPIRATION OF YOUR CURRENT PAID SUBSCRIPTION, WE WILL AUTOMATICALLY RENEW YOUR PAID SUBSCRIPTION ON EACH MONTHLY OR YEARLY (DEPENDING ON THE SUBSCRIPTION LENGTH YOU HAVE CHOSEN) ANNIVERSARY OF THE DATE THAT WE CHARGED YOUR SELECTED PAYMENT METHOD FOR THE FIRST PAID SUBSCRIPTION FEE. WE WILL CHARGE YOUR SELECTED PAYMENT METHOD WITH THE APPLICABLE RENEWAL FEE FOR YOUR PAID SUBSCRIPTION AND ANY TAXES (AS DEFINED BELOW) THAT MAY BE IMPOSED ON SUCH FEE PAYMENTS. SUBSCRIPTIONS MUST BE CANCELED PRIOR TO THE APPLICABLE RENEWAL DATE. YOU MAY CANCEL YOUR SUBSCRIPTION BY CONTACTING CUSTOMER SUPPORT AT SUPPORT@EMPATICA.COM OR THROUGH THE DEDICATED CUSTOMER PORTAL. Subscription fees charged prior to the effective date of cancellation will not be refunded, in whole or in part. All fees are exclusive of any applicable sales, use, import or export taxes, duties, fees, value-added taxes, tariffs or other amounts attributable to your use of the App or EMPATICA's services (collectively "Taxes"). You are solely responsible for the payment of any such Taxes. In the event we are required to pay Taxes on your behalf, you shall promptly reimburse us for all amounts paid. You agree that we may charge any unpaid fees to your provided payment method and/or send you a bill for such unpaid fees. Cancellation of your subscription (paid or free) will terminate this Agreement. This Agreement may also be terminated by EMPATICA in case of breach of the provisions of this Agreement by the User. At the time of termination, the User shall delete the App and any copy thereof. EMPATICA reserves the right to seek any other remedy provided by the applicable laws in case of breach by the User.

7. NEW VERSIONS

EMPATICA shall not be obliged to support obsolete versions of the App or to update or provide versions of the App for use on any particular mobile device or operating system. Additionally, the App may be updated and/or upgraded and may not work on older mobile devices and/or operating systems. The App may not work, in whole or in part, on mobile devices other than those for which the App has been approved for and correctly downloaded according to the instructions provided by EMPATICA. EMPATICA reserves the right, in its sole discretion, to change the App and any content within it at any time and without notice. EMPATICA also reserves the right, in its sole discretion, to modify or change the terms of this Agreement at any time, and without prior notice to User. User’s continued use of the App following the posting of any changes to this Agreement, or to the Privacy Policy is deemed an acceptance by User of those changes.

8. INTELLECTUAL PROPERTY

The App contains proprietary and confidential information that is protected by applicable intellectual property laws. User hereby acknowledges and agrees that all copyrights, database rights, trademarks and other intellectual property rights of any kind in the App, and all contents thereof, together with the underlying software code, are exclusively owned by EMPATICA and/or related parties thereof. Except as expressly stated herein, this Agreement does not grant the User any intellectual property rights in the App, and all rights not expressly granted are reserved by EMPATICA and its licensors. EMPATICA, the EMPATICA logo, and all custom graphics, page headers, button icons, proprietary product and service names, and trade dress are either trademarks or registered trademarks of EMPATICA and/or its licensors in the United States and/or other countries, and may not be used, in whole or in part, without the prior written permission of EMPATICA.

9. DISCLAIMER OF WARRANTY

THE APP IS PROVIDED ON AN “AS IS” BASIS, WITHOUT WARRANTIES OF ANY KIND, AND EMPATICA AND ITS LICENSORS AND SUPPLIERS DISCLAIM ALL WARRANTIES, EXPRESS AND IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. EMPATICA DOES NOT REPRESENT OR WARRANT THAT THE APP, ITS USE, OR ANY RESULTS GENERATED THEREFROM ARE ACCURATE, COMPLETE, RELIABLE, CURRENT, OR ERROR-FREE. NEITHER EMPATICA NOR ITS LICENSORS OR SUPPLIERS REPRESENT OR WARRANT THAT THE APP OR EMPATICA’S SERVERS ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE PROVISIONS OF THIS SECTION SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT, BUT THIS SHALL NOT IMPLY OR CREATE ANY CONTINUED RIGHT TO USE THE APPLICATION AFTER TERMINATION HEREOF. YOU ARE SOLELY RESPONSIBLE FOR ALL COMMUNICATIONS AND INTERACTIONS WITH PERSONS WITH WHOM THE APP COMMUNICATES OR INTERACTS AS A RESULT OF YOUR USE OF THE APP, INCLUDING WITHOUT LIMITATION, ANY CAREGIVER(S). EMPATICA MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT OF SUCH THIRD PARTIES. YOU AGREE TO TAKE REASONABLE PRECAUTIONS IN ALL COMMUNICATIONS AND INTERACTIONS WITH ALL OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT WITH AS A RESULT OF THE USE OF THE APP. SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF IMPLIED TERMS IN CONTRACTS WITH CONSUMERS AND AS A RESULT THE DISCLAIMERS OF THIS SECTION MAY NOT APPLY TO YOU.

YOU ACKNOWLEDGE THAT EMPATICA IS NOT A HEALTHCARE PROFESSIONAL, DOES NOT EMPLOY HEALTHCARE PROFESSIONALS FOR THE PROVISION OF LICENSED MEDICAL SERVICES, AND DOES NOT OFFER ANY LICENSED PROFESSIONAL MEDICAL SERVICES OR ADVICE, NOR DO WE VERIFY THE ACCURACY OF USER DATA. THE APP IS NOT A REPLACEMENT FOR ONGOING MEDICAL CARE PROVIDED BY LICENSED MEDICAL PROFESSIONALS. YOU AGREE THAT YOU ARE SOLELY RESPONSIBLE FOR CONSULTING WITH MEDICAL PROFESSIONALS REGARDING ANY QUESTIONS YOU MAY HAVE AS A RESULT OF YOUR USE OF THE APP, INCLUDING IN ORDER TO OBTAIN PROPER TREATMENT FOR HEALTH OR MEDICAL CONDITIONS.

10. LIMITATION OF LIABILITY

TO THE MAXIMUM EXTENT PERMITTED BY THE APPLICABLE LAW, EMPATICA'S LIABILITY FOR ANY LOSS OR DAMAGE DERIVING FROM CLAIMS, REQUESTS OR ACTIONS BROUGHT IN RELATION TO THE USE OF THE APP AND/OR THE WEARABLE AND/OR THIS AGREEMENT, OR RELATED THERE TO, SHALL NOT EXCEED THE FEES PAID (IF ACTUALLY PAID) BY THE USER FOR THE WEARABLE AND/OR APP’S SUBSCRIPTION. TO THE MAXIMUM EXTENT PERMITTED BY THE APPLICABLE LAW, UNDER NO CIRCUMSTANCE SHALL EMPATICA, ITS LICENSORS, OR ITS OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, CONTRACTORS, OR AFFILIATES BE LIABLE FOR PERSONAL INJURY OR DEATH, OR ANY INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL OR PERSONAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO USER'S USE OF OR INABILITY TO USE THE APP, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (WHETHER IN CONTRACT, TORT OR OTHERWISE) AND EVEN IF EMPATICA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EMPATICA SHALL NOT BE LIABLE FOR ANY ERRORS AND/OR OMISSIONS RELATED TO THE SERVICES PROVIDED BY THIRD PARTIES (E.G., TELEPHONE AND DATA TRANSMISSION OPERATORS). EMPATICA SHALL NOT BE LIABLE FOR ANY ERRORS AND/OR OMISSIONS DUE TO THE MALFUNCTIONING OF THE DEVICE.

11. ADDITIONAL MOBILE APPLICATION TERMS AND CONDITIONS

The following additional terms and conditions apply with respect to any application that EMPATICA provides to you designed for use on an Apple iOS-powered mobile device (an “iOS App”):

  • You acknowledge that this Agreement is between you and EMPATICA only, and not with Apple, Inc. (“Apple”).
  • EMPATICA, and not Apple, is solely responsible for our iOS App and the services and content available thereon. You acknowledge that Apple has no obligation to provide maintenance and support services with respect to the iOS App. To the maximum extent permitted by applicable law, Apple will have no warranty obligation whatsoever with respect to the iOS App and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure of the iOS App to conform to any warranty.
  • You agree that EMPATICA, and not Apple, is responsible for addressing any claims by you or any third party relating to the iOS App or your possession and/or use of the iOS App, including, but not limited to:
  • product liability claims; (ii) any claim that the iOS App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation, and all such claims are governed solely by this Agreement and any law applicable to us as provider of the iOS App.
  • You agree that EMPATICA, and not Apple, shall be responsible, to the extent required by this Agreement, for the investigation, defense, settlement and discharge of any third party intellectual property infringement claim related to the iOS App or your possession and use of the iOS App.
  • You agree to comply with all applicable third party terms of agreement when using the iOS App (e.g., you must not be in violation of your wireless data service terms of agreement when using the iOS App).
  • You agree that Apple and Apple’s subsidiaries are third party beneficiaries to this Agreement as its terms relate to your license to use the iOS App. Upon your acceptance of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you for its terms that relate to your license of the iOS App as a third party beneficiary thereof.

The following additional terms and conditions apply with respect to any application that EMPATICA provides to you designed for use on an Android-powered mobile device (an “Android App”):

  • You acknowledge that this Agreement is between you and EMPATICA only, and not with Google, Inc. (“Google”).
  • Your use of an Android App must comply with Google’s then-current Android Market Terms of Service.
  • EMPATICA, and not Google, is solely responsible for the Android App, the services and content available thereon and the support and maintenance thereof. Google has no obligation or liability to you with respect to the Android App or this Agreement.
  • You acknowledge and agree that Google is a third-party beneficiary to this Agreement as they relate to the Android App.

12. SUBMISSIONS.

The App may permit you to submit feedback, information, data, text, software, messages, or other materials (each, a "User Submission"). You agree that you are solely responsible for all of your User Submissions and that any such User Submission is considered both non-confidential and non-proprietary. Further, EMPATICA does not guarantee that you will be able to edit or delete any User Submission you have submitted.

By submitting any User Submission, you are promising EMPATICA that:

  • You own all rights in your User Submissions (including, without limitation, all rights to the reproduction and display of your User Submissions) or, alternatively, you have acquired all necessary rights in your User Submissions to enable you to grant to EMPATICA the rights in your User Submissions as described in this Agreement;
  • You have paid and will pay in full all license fees, clearance fees, and other financial obligations, of any kind, arising from any use or commercial exploitation of your User Submissions;
  • Your User Submissions do not infringe the copyright, trademark, patent, trade secret, or other intellectual property rights, privacy rights, or any other legal or moral rights of any third party;
  • You voluntarily agree to waive all "moral rights" that you may have in your User Submission;
  • Any information contained in your User Submission is not known by you to be false, inaccurate, or misleading;
  • Your User Submission does not violate any law (including, but not limited to, those governing export control, consumer protection, unfair competition, anti-discrimination, or false advertising);
  • Your User Submission is not, and may not reasonably be considered to be, defamatory, libelous, hateful, racially, ethnically, religiously, or otherwise biased or offensive, unlawfully threatening, or unlawfully harassing to any individual, partnership, or corporation, vulgar, pornographic, obscene, or invasive of another's privacy;
  • You were not and will not be compensated or granted any consideration by any third party for submitting your User Submission;
  • Your User Submission does not incorporate materials from a third-party website, or addresses, email addresses, contact information, or phone numbers (other than your own);
  • Your User Submission does not contain any viruses, worms, spyware, adware, or other potentially damaging programs or files;
  • Your User Submission does not contain any information that You consider confidential, proprietary, or personal; and
  • Your User Submission does not contain or constitute any unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of solicitation.

By submitting a User Submission, you grant to EMPATICA an irrevocable, perpetual, transferable, non-exclusive, fully-paid, worldwide, royalty-free license (sublicensable through multiple tiers) to:

  • Use, distribute, reproduce, modify, adapt, publish, translate, publicly perform, and publicly display your User Submissions (or any modification thereto), in whole or in part, in any format or medium now known or later developed;
  • Use (and permit others to use) your User Submission in any manner and for any purpose (including, without limitation, commercial purposes) that EMPATICA deems appropriate in its sole discretion (including, without limitation, to incorporate your User Submission or any modification thereto, in whole or in part, into any technology, product, or service);
  • Display advertisements in connection with your User Submissions and to use your User Submissions for advertising and promotional purposes.

EMPATICA may, but are not obligated to, pre-screen User Submissions or monitor any area of the App through which User Submissions may be submitted. We are not required to host, display, or distribute any User Submissions on or through the App and may remove at any time or refuse any User Submissions for any reason. We are not responsible for any loss, theft, or damage of any kind to any User Submissions. Further, you agree that EMPATICA may freely disclose your User Submission to any third party absent any obligation of confidence on the part of the recipient.

13. UNAUTHORIZED ACTIVITIES.

To be clear, EMPATICA authorizes your use of this App and Wearable only for Permitted Purposes. Any other use of this App and Wearable beyond the Permitted Purposes is prohibited and, therefore, constitutes unauthorized use of the App and Wearable. This is because as between you and EMPATICA all rights in the App and Wearable remain EMPATICA’s property.

Unauthorized use of the App and Wearable may result in violation of various United States and international copyright laws. Unless you have written permission from EMPATICA stating otherwise, you are not authorized to use the App and Wearable in any of the following ways (these are examples only and the list below is not a complete list of everything that You are not permitted to do):

  • For any public or commercial purpose which includes use of the App on another system provided or allowed by EMPATICA;
  • In a manner that modifies, publicly displays, publicly performs, reproduces or distributes any of the App
  • In a manner that violates any local, state, national, foreign, or international statute, regulation, rule, order, treaty, or other law;
  • To stalk, harass, or harm another individual;
  • To impersonate any person or entity or otherwise misrepresent your affiliation with a person or entity;
  • To interfere with or disrupt the App or servers or networks connected to the App;
  • To use any data mining, robots, or similar data gathering or extraction methods in connection with the app; or
  • Attempt to gain unauthorized access to any portion of the App or any other accounts, computer systems, or networks connected to the app, whether through hacking, password mining, or any other means.

You agree to hire attorneys to defend EMPATICA if You violate this Agreement and that violation results in a problem for EMPATICA. You also agree to pay any damages that EMPATICA may end up having to pay as a result of your violation. You alone are responsible for any violation of this Agreement by you. EMPATICA reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you and, in such case, you agree to cooperate with EMPATICA’s defense of such claim.

14. FEEDBACK

Any submissions by You to EMPATICA (e.g., comments, questions, suggestions, materials – collectively, “Feedback”) through any communication whatsoever (e.g., call, fax, email) will be treated as both non-confidential and non-proprietary. Except as prohibited by applicable law, you hereby assign all right, title, and interest in, and EMPATICA is free to use, without any attribution or compensation to You, any ideas, know-how, concepts, techniques, or other intellectual property and proprietary rights contained in the Feedback, whether or not patentable, for any purpose whatsoever, including but not limited to, developing, manufacturing, having manufactured, licensing, marketing, and selling, directly or indirectly, products and services using such Feedback. Where the foregoing assignment is prohibited by law, you hereby grant EMPATICA an exclusive, transferable, worldwide, royalty-free, fully paid up license (including the right to sublicense) to use and exploit all Feedback as EMPATICA may determine in its sole discretion. Notwithstanding the foregoing, you understand and agree that EMPATICA is not obligated to use, display, reproduce, or distribute any such ideas, know-how, concepts, or techniques contained in the Feedback, and you have no right to compel such use, display, reproduction, or distribution.

15. DISPUTE RESOLUTION AND ARBITRATION; CLASS ACTION WAIVER.

Please Read This Provision (the “Provision”) Carefully. It Affects Your Legal Rights.

This Provision facilitates the prompt and efficient resolution of any dispute (e.g., claim or controversy, whether based in contract, statute, regulation, ordinance, tort – including, but not limited to, fraud, misrepresentation, fraudulent inducement, or negligence – or any other legal or equitable theory, and includes the validity, enforceability or scope of this Provision (with the exception of the enforceability of the Class Action Waiver clause below) that may arise between You and EMPATICA. Effectively, then, “dispute” is given the broadest meaning enforceable by law and includes any claims against other parties relating to services or products provided or billed to you (such as EMPATICA’s licensors, suppliers, dealers or third-party vendors) whenever you also assert claims against EMPATICA in the same proceeding.

This Provision provides that all disputes between You and EMPATICA shall be resolved by binding arbitration because acceptance of this Agreement constitutes a waiver of your right to litigation claims and all opportunity to be heard by a judge or jury. To be clear, there is no judge or jury in arbitration, and court review of an arbitration award is limited. The arbitrator must follow this Agreement and can award the same damages and relief as a court (including attorney’s fees). You may, however, opt-out of this Provision which means you would have a right or opportunity to bring claims in a court, before a judge or jury, and/or to participate in or be represented in a case filed in court by others (including, but not limited to, class actions). BOTH YOU AND EMPATICA AGREE THAT, EXCEPT AS PROVIDED BELOW, ANY AND ALL DISPUTES, AS DEFINED ABOVE, WHETHER PRESENTLY IN EXISTENCE OR BASED ON ACTS OR OMISSIONS IN THE PAST OR IN THE FUTURE, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION RATHER THAN IN COURT IN ACCORDANCE WITH THIS PROVISION.

Pre-Arbitration Claim Resolution

For all Disputes, whether pursued in court or arbitration, you must first give EMPATICA an opportunity to resolve the Dispute which is first done by emailing EMPATICA at legal@empatica.com the following information: (1) Your name, (2) Your address, (3) A written description of your Claim, and (4) A description of the specific relief you seek. If EMPATICA does not resolve the Dispute within 45 days after receiving your notification, then you may pursue your Dispute in arbitration. You may pursue your dispute in a court only under the circumstances described below.

Exclusions from Arbitration/Right to Opt Out

Notwithstanding the above, you or EMPATICA may choose to pursue a Dispute in court and not by arbitration if: (a) The Dispute qualifies for initiation in small claims court; or (b) YOU OPT-OUT OF THESE ARBITRATION PROCEDURES WITHIN 30 DAYS FROM THE DATE THAT YOU FIRST CONSENT TO THIS AGREEMENT (the “Opt-Out Deadline”). You may opt-out of this Provision by emailing EMPATICA at legal@empatica.com the following information: (1) Your name; (2) Your address; (3) A clear statement that you do not wish to resolve disputes with EMPATICA through arbitration. If you opt-out of this Arbitration Provision, your decision to opt-out of this Arbitration Provision will have no adverse effect on your relationship with EMPATICA. That said, EMPATICA does have to enforce the Opt-Out Deadline so keep in mind that any opt-out request received after the Opt-Out Deadline will not be valid and you must pursue your Dispute in arbitration or small claims court.

Arbitration Procedures

If this Provision applies and the dispute is not resolved as provided above (Pre-Arbitration Claim Resolution) either you or EMPATICA may initiate arbitration proceedings. The American Arbitration Association (“AAA”), www.adr.org, or JAMS, www.jamsadr.com, will arbitrate all disputes, and the arbitration will be conducted before a single arbitrator. The arbitration shall be commenced as an individual arbitration only and shall in no event be commenced as a class arbitration or a consolidated or representative action or arbitration. All issues shall be for the arbitrator to decide, including the scope of this Provision.

For arbitration before AAA, for Disputes of less than $75,000, the AAA’s Supplementary Procedures for Consumer-Related Disputes will apply; for Disputes involving $75,000 or more, the AAA’s Commercial Arbitration Rules will apply. In either instance, the AAA’s Optional Rules For Emergency Measures Of Protection shall apply. The AAA rules are available at www.adr.org or by calling 1-800-778-7879. For arbitration before JAMS, the JAMS Comprehensive Arbitration Rules & Procedures and the JAMS Recommended Arbitration Discovery Protocols For Domestic, Commercial Cases will apply. The JAMS rules are available at www.jamsadr.com or by calling 1-800-352-5267. This Provision governs in the event it conflicts with the applicable arbitration rules. Under no circumstances will class action or representative procedures or rules apply to the arbitration.

Because this Website and these Terms concern interstate commerce, the Federal Arbitration Act (“FAA”) governs the arbitrability of all disputes. However, the arbitrator will apply applicable substantive law consistent with the FAA and the applicable statute of limitations or condition precedent to suit.

Arbitration Award – The arbitrator may award on an individual basis any relief that would be available pursuant to applicable law and will not have the power to award relief to, against or for the benefit of any person who is not a party to the proceeding. The arbitrator will make any award in writing but need not provide a statement of reasons unless requested by a party or if required by applicable law. Such award will be final and binding on the parties, except for any right of appeal provided by the FAA or other applicable law and may be entered in any court having jurisdiction over the parties for purposes of enforcement.

Location of Arbitration – You or EMPATICA may initiate arbitration in either Massachusetts or the federal judicial district that includes your billing address.

Payment of Arbitration Fees and Costs – So long as you place a request in writing prior to commencement of the arbitration, EMPATICA will pay all arbitration filing fees and AAA or JAMS hearing fees and any arbitrator's hearing fees, costs and expenses upon your written request to the arbitrator given at or before the first evidentiary hearing in the arbitration. However, you will still be responsible for all additional fees and costs that you incur in the arbitration which include but are not limited to attorneys’ fees or expert witnesses. In addition to any fees and costs recoverable under applicable law, if you provide notice and negotiate in good faith with Us as provided in the section above titled “Pre-Arbitration Claim Resolution” and the arbitrator concludes that you are the prevailing party in the arbitration, you will be entitled to recover reasonable attorney’s fees and costs as determined by the arbitrator.

Class Action Waiver

Except as otherwise provided in this Provision, the arbitrator may not consolidate more than one person’s claims and may not otherwise preside over any form of a class or representative proceeding or claims (such as a class action, consolidated action, representative action, or private attorney general action) unless both you and EMPATICA specifically agree to do so in writing following initiation of the arbitration. If You choose to pursue Your Dispute in court by opting out of the Arbitration Provision, as specified above, this Class Action Waiver will not apply to you. Neither you, nor any other user of the App can be a class representative, class member, or otherwise participate in a class, consolidated, or representative proceeding without having complied with the opt-out requirements above.

Jury Waiver

You understand and agree that by accepting this Provision in this Agreement, you and EMPATICA are each waiving the right to a jury trial or a trial before a judge in a public court. In the absence of this Provision, you and EMPATICA might otherwise have had a right or opportunity to bring disputes in a court, before a judge or jury, and/or to participate or be represented in a case filed in court by others (including class actions). Except as otherwise provided below, those rights are waived. Other rights that you would have if you went to court (e.g. the rights to both appeal and certain types of discovery) may be more limited or may also be waived.

Severability

If any clause within this Provision (other than the Class Action Waiver clause above) is found to be illegal or unenforceable, that clause will be severed from this Provision whose remainder will be given full force and effect. If the Class Action Waiver clause is found to be illegal or unenforceable, this entire Provision will be unenforceable and the dispute will be decided by a court.

Continuation

This Provision shall survive the termination of your account with EMPATICA or EMPATICA’s affiliates and your discontinued use of the App. Notwithstanding any provision in this Agreement to the contrary, EMPATICA agrees that if EMPATICA makes any change to this Provision (other than a change to the Notice Address), you may reject any such change and require EMPATICA to adhere to the present language in this Provision if a dispute between the parties arises.

16. CALIFORNIA CONSUMER NOTICE

Under California Civil Code Section 1789.3, California users are entitled to the following consumer rights notice: The App is provided by Empatica Inc., a company incorporated under the Laws of Delaware, with registered office at 1 Broadway, 14th Floor Cambridge, MA 02142. If you have a question or complaint regarding the App, please contact Customer Service at [INSERT PHONE NUMBER] or [INSERT EMAIL ADDRESS]. You may also contact EMPATICA by writing to [INSERT CUSTOMER SERVICE TITLE], 1 Broadway, 14th Floor Cambridge, MA 02142. California residents may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by post at 1625 North Market Blvd., Sacramento, CA 95834 or by telephone at (916) 445-1254 or (800) 952-5210 or Hearing Impaired at TDD (800) 326-2297 or TDD (916) 322-1700.

17. MISCELLANEOUS

If any provision of this Agreement is determined to be invalid or unenforceable under any applicable law, it is to that extent to be deemed omitted, and the balance of the Agreement shall remain enforceable. By using the App, User expressly consents and agrees to accept and receive electronic communications from EMPATICA, including via e-mail, text message, calls, and push notifications to the Device. These electronic communications are part of User’s relationship with EMPATICA. User agrees that any notices, agreements, disclosures or other communications that EMPATICA sends via email will satisfy any legal communication requirements, including that such communications be in writing. The User may not use or otherwise export or re-export the App except as authorized by U.S. law and the laws of the jurisdiction in which the App was obtained. By using the App, the User represents and warrants that (a) 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 (b) the User is not on any U.S. government list of prohibited or restricted parties. This Agreement constitutes the entire contract with the User with respect to the App and supersedes any and all previous or concurrent contract, agreement and arrangement related to the scope of this Agreement. This Agreement of the User’s use of the App shall be governed and construed under the Federal Arbitration Act, applicable U.S. federal law, and the laws of the Commonwealth of Massachusetts without regard to conflict of laws principles. The application of the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act (UCITA) are specifically disclaimed. Except for Disputes subject to arbitration as described above, any disputes relating to this Agreement or this App will be exclusively heard in the courts located in Suffolk County, Massachusetts. Notwithstanding the foregoing, EMPATICA may seek injunctive relief in any court of competent jurisdiction, without posting bond, to enjoin any breach of this Agreement, in addition to any other rights or remedies EMPATICA may have available at law or in equity.

MEDICARE DMEPOS SUPPLIER STANDARDS

Note: This is an abbreviated version of the supplier standards every Medicare DMEPOS supplier must meet in order to obtain and
retain their billing privileges. These standards, in their entirety, are listed in 42 C.F.R. 424.57(c).

1. A supplier must be in compliance with all applicable Federal and State licensure and regulatory requirements.

2. A supplier must provide complete and accurate information on the DMEPOS supplier application. Any changes to this
information must be reported to the contractor within 30 days.

3. A supplier must have an authorized individual (whose signature is binding) sign the enrollment application for billing
privileges.

4. A supplier must fill orders from its own inventory, or contract with other companies for the purchase of items necessary to fill
orders. A supplier may not contract with any entity that is currently excluded from the Medicare program, any State health
care programs, or any other Federal procurement or non-procurement programs.

5. A supplier must advise beneficiaries that they may rent or purchase inexpensive or routinely purchased durable medical
equipment, and of the purchase option for capped rental equipment.

6. A supplier must notify beneficiaries of warranty coverage and honor all warranties under applicable State law, and repair or
replace free of charge Medicare covered items that are under warranty.

7. A supplier must maintain a physical facility on an appropriate site and must maintain a visible sign with posted hours of
operation. The location must be accessible to the public and staffed during posted hours of business. The location must be at
least 200 square feet and contain space for storing records.

8. A supplier must permit CMS or its agents to conduct on-site inspections to ascertain the supplier’s compliance with these
standards.

9. A supplier must maintain a primary business telephone listed under the name of the business in a local directory or a toll free
number available through directory assistance. The exclusive use of a beeper, answering machine, answering service or cell
phone during posted business hours is prohibited.

10. A supplier must have comprehensive liability insurance in the amount of at least $300,000 that covers both the supplier’s place
of business and all customers and employees of the supplier. If the supplier manufactures its own items, this insurance must
also cover product liability and completed operations.

11. A supplier is prohibited from direct solicitation to Medicare beneficiaries. For complete details on this prohibition see 42 CFR
§ 424.57 (c) (11).

12. A supplier is responsible for delivery of and must instruct beneficiaries on the use of Medicare covered items and maintain
proof of delivery and beneficiary instruction.

13. A supplier must answer questions and respond to complaints of beneficiaries and maintain documentation of such contacts.

14. A supplier must maintain and replace at no charge or repair cost either directly, or through a service contract with another
company, any Medicare-covered items it has rented to beneficiaries.

15. A supplier must accept returns of substandard (less than full quality for the particular item) or unsuitable items (inappropriate
for the beneficiary at the time it was fitted and rented or sold) from beneficiaries.

16. A supplier must disclose these standards to each beneficiary it supplies a Medicare-covered item.

17. A supplier must disclose any person having ownership, financial, or control interest in the supplier.

18. A supplier must not convey or reassign a supplier number; i.e., the supplier may not sell or allow another entity to use its
Medicare billing number.

19. A supplier must have a complaint resolution protocol established to address beneficiary complaints that relate to these
standards. A record of these complaints must be maintained at the physical facility.

20. Complaint records must include: the name, address, telephone number and health insurance claim number of the beneficiary, a
summary of the complaint, and any actions taken to resolve it.

21. A supplier must agree to furnish CMS any information required by the Medicare statute and regulations.

22. All suppliers must be accredited by a CMS-approved accreditation organization in order to receive and retain a supplier billing
number. The accreditation must indicate the specific products and services, for which the supplier is accredited in order for the
supplier to receive payment for those specific products and services (except for certain exempt pharmaceuticals).

23. All suppliers must notify their accreditation organization when a new DMEPOS location is opened.

24. All supplier locations, whether owned or subcontracted, must meet the DMEPOS quality standards and be separately accredited
in order to bill Medicare.

25. All suppliers must disclose upon enrollment all products and services, including the addition of new product lines for which
they are seeking accreditation.

26. A supplier must meet the surety bond requirements specified in 42 CFR § 424.57 (d).

27. A supplier must obtain oxygen from a state-licensed oxygen supplier.

28. A supplier must maintain ordering and referring documentation consistent with provisions found in 42 CFR § 424.516(f).

29. A supplier is prohibited from sharing a practice location with other Medicare providers and suppliers.

30. A supplier must remain open to the public for a minimum of 30 hours per week except physicians (as defined in section 1848(j)
(3) of the Act) or physical and occupational therapists or a DMEPOS supplier working with custom made orthotics and
prosthetics.

MEDICARE DMEPOS SUPPLIER STANDARDS

DMEPOS suppliers have the option to disclose the following statement to satisfy the requirement outlined in supplier
standard 16 in lieu of providing a copy of the standards to the beneficiary.
The products and/or services provided to you by (supplier legal business name or DBA) are subject to the supplier standards
contained in the Federal regulations shown at 42 Code of Federal Regulations Section 424.57(c). These standards concern
business professional and operational matters (e.g. honoring warranties and hours of operation). The full text of these
standards can be obtained at http://www.ecfr.gov. Upon request we will furnish you a written copy of the standards.