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Disclaimers / Terms & Conditions – Privacy

Grektek, LLC & Grektek Holdings, Inc. (“Grektek”) Terms of Use effective September 2017

Welcome to GrekTek’s everbeat Services. The following Terms of Use apply to our Everbeat family of mobile applications and any other related features, contents, applications, or websites we may offer from time to time (collectively, and as further defined below, the “everbeat Services”).

The “everbeat Services” means any websites, mobile applications, and other services under the control of Grektek, used in connection with providing an online digital platform to enable consumers to manage their own health records and collaborate with their care team, caregivers and monitoring devices.

Please review the following terms carefully. By accessing or using the Service, you signify your agreement to these Terms of Use. If you do not agree to these Terms of Use, you may not access or use the Service.

MORE ABOUT THE EVERBEAT SERVICES

The mission of everbeat Services is to connect patients, doctors, and caregivers by exchanging relevant heart health-related information in a timely, seamless and comprehensible manner. Everbeat Services are a family of solutions including WellConnected, WellTransitions, WellMD and everbeat. The everbeat platform is what you and your physician see when using our software. The other solutions provide back-end support and services leveraged by everbeat.

Everbeat is Grektek’s platform focused on heart health. It includes (a) the everbeat wrist-based device that provides heart rate signals from both photoplethysmogram (PPG) and electrocardiogram (ECG) chips, (b) the everbeat application software which provides the interface with the patient, (c) data services that communicate between the everbeat device and your mobile device, and (d) information presented to a permitted physician either via file transfer or through a physician portal.

PRIVACY POLICY

Grektek respects the privacy of its users. Please refer to Grektek’s Privacy Policy which explains how we collect, use, and disclose information that pertains to your privacy. When you access or use the Service, you signify your agreement to this Privacy Policy.

BINDING CONTRACT

This document constitutes a legally binding contract. We will update these terms when necessary to include new features and capabilities, you are agreeing to review it and any updates as necessary. By continuing to use our everbeat Services you inherently have accepted the continued agreement and any changes.

REGISTRATION; RULES FOR USER CONDUCT AND USE OF THE SERVICE

You need to be at least 13 years old and a resident of the United States to register for and use the Service. if you are under 18 years of age, you represent and agree that you possess the legal consent of your parent or guardian to access and use the everbeat Services.

ACCOUNT REGISTRATION

In order to use the everbeat Services, you must register to create an everbeat account. You agree to provide accurate, current, and complete information during the registration process and to update such information to keep it accurate, current, and complete.

ACCOUNT CREDENTIALS

To use the everbeat Services, you will log in with your email address and a password of your choosing. Your login information and account is personal to you, and you may not share your account information with, or allow access to your account by, any third party.

As you will be responsible for all activity that occurs under your access credentials, you agree to use reasonable efforts to prevent unauthorized access to or use of the everbeat Services and any device that you use to access the everbeat Services. You are responsible for safeguarding your password. If you forget your password, you can use the password reset feature to establish a new one.

In order to help us safeguard your information, you agree to notify us immediately of any breach in secrecy of your login credentials. If you have any reason to believe that your account information has been compromised or that your account has been accessed by a third party, you agree to immediately notify Grektek by email to info@grektek.com. You will be solely responsible for the losses incurred due to any unauthorized use of your account.

SHARING RECORDS WITH THIRD PARTIES

If you wish to provide access to your health records or invite a third party to collaborate in your health care management, you may invite them through the everbeat Services in your account, but any third party must create their own everbeat account and use their own log-in information to access any health information that has been shared with them.

You control who may access your Records. You assume all risks associated with sharing your information and Grektek is not legally liable for what transpires with the information once you have shared that information.

If you are using the everbeat Services as part of a health care management service through a healthcare provider, you acknowledge and agree that such healthcare provider may share health care management related Records and other personal health information with and solicit Records and other personal health information from your other healthcare providers as authorized by the HIPAA-compliant authorization you must sign with that healthcare provider. If you request everbeat Services to send records through a verbal authorization, you agree that our documentation of a verbal authorization is equal to a written authorization.

If you are a user who signs up for the Service, you will create a personalized account which includes a unique username and a password to access the Service and to receive messages from Grektek regarding the service. You agree to notify us immediately of any unauthorized use of your password and/or account. Grektek will not be responsible for any liabilities, losses, or damages arising out of the unauthorized use of your member name, password and/or account.

NOT MEDICAL ADVICE

Neither Grektek nor the everbeat Services provide medical advice. We created everbeat Services in order to empower patients to take a more active role in their health care. The goal of everbeat Services is to focus, educate and inform, remind and communicate tool for your health situation, activities and behaviors. Ultimately you are responsible for your own health and everbeat Services are informational tools to help you.

Any information and materials available through everbeat Services are for informational and educational purposes only and are not intended to constitute professional advice, diagnosis or treatment, or to substitute for your own judgment in consultation with your health care provider.

Everbeat Services are not a substitute for professional medical treatment. You assume full risk and responsibility for the use of information, including your health information, you obtain from or through the everbeat Services. Always seek the advice of your physician or other qualified health care provider regarding a medical condition. Grektek does not recommend or endorse any provider of health care or health-related products, items, or services, and does not recommend or endorse any specific tests, procedures, treatments, opinions, products, or other health related services.

HEALTH RECORDS

We do not own your health records; you do. Grektek may use anonymized data for analytic purposes, and you consent to that anonymized use as part of these terms of use. You may authorize others to use them to assist you in managing your health. By using everbeat Services, you are representing that you in fact are the authorized user of these records. Each authorization requires appropriate consent as required by HIPAA, and you are representing that you have consented appropriately. You similarly have the ability to revoke this access either through the system or by notifying us by sending an email to: privacy@grektek.com.

Grektek is not responsible for backing up your records, and we have the right to terminate your account and delete your records permanently without notice.

USE BUT NOT OWNERSHIP OF OTHER USER’S RECORDS

If an everbeat member consents to share their information with you, you may use it to support their health goals. However, you may not use it for any other purpose without their consent, which is not explicitly given in this agreement. Any breach of this information outside of the everbeat ecosystem and or to others in the everbeat ecosystem who were not given consented access by the owner of the records is strictly forbidden. Members can share with you, but you do not have the right to share with others outside the consented scope without additional consent from the owner. If you breach these obligations you are solely liable for any damages or repercussions. You additionally indemnify Grektek for any damages or liabilities resulting from such a breach.

COPYRIGHT COMPLAINTS AND COPYRIGHT AGENT

Termination of Repeat Infringer Accounts. Grektek respects the intellectual property rights of others and requests that the users do the same. Pursuant to 17 U.S.C. 512(i) of the United States Copyright Act, Grektek has adopted a policy that provides for the termination in appropriate circumstances of users of the Service who are repeat infringers. Grektek may terminate access for participants or users who are found repeatedly to provide or post protected third-party content without necessary rights and permissions.

DMCA TAKE DOWN NOTICES

If you are a copyright owner or an agent thereof and believe, in good faith, that any materials provided on the Service infringe upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act (see 17 U.S.C 512) (“DMCA”) by sending the following information in writing to Grektek’s designated copyright agent at:

Copyright Support GrekTek LLC info@grektek.com

  1. The date of your notification;
  2. A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
  3. A description of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
  4. A description of the material that is claimed to be infringing or to be the subject of infringing activity and information sufficient to enable us to locate such work;
  5. Information reasonably sufficient to permit the service provider to contact you, such as an address, telephone number, and/or email address;
  6. A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
  7. A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

APPLICATION END USER LICENSE AGREEMENT (EULA)

SCOPE OF LICENSE

Subject to your compliance and the terms of this EULA, Grektek grants to you a non-exclusive, non-transferable, non-sublicensable, revocable, limited license to access and use everbeat Services solely for your personal and non-commercial purposes, at our discretion. You, as an end user of everbeat Services, may use everbeat Services on a device owned by you and solely within the United States of America. This EULA is revocable at will, by either party, without notice and with or without cause. Your use of everbeat Services is strictly limited as provided in this EULA. No other use of everbeat Services is permitted. Grektek reserves all ownership and intellectual property rights in all of everbeat Services. Everbeat Services and any updates, upgrades or derivative works to everbeat Services are, and will remain the copyrighted work of Grektek. everbeat Services is licensed to you; not sold. This EULA gives you some limited rights to use everbeat Services, and Grektek reserves all other rights.

  1. Unauthorized use of the everbeat Content may violate copyright, trademark, and applicable communications regulations and statutes and is strictly prohibited. You must preserve all copyright, trademarks, service marks, and other proprietary notices contained in the original everbeat Content on any copy you make of the everbeat Content. You will not through inspection, work around technical limitations, or decompilation or reverse engineering duplicate or abscond with our intellectual property, or mechanism of execution. Any attempts at (a) breaking Grektek’s security measures, encryption whether by electronic or social measure; (b) using Everbeat Services in a manner that is illegal, unlawful or abusive including, without limitation, to commit or promote any fraud or identity theft, to send or originate any threatening or harassing materials, to initiate or participate in any denial of service, hacking or cracking to harass, abuse, stalk, threaten, or defame any third party, or to store, send or received any content that infringes or misappropriates any intellectual property or other property rights is expressly prohibited and will result in your account suspension as well as any and all damages and legal prosecution mechanisms available to us. You acknowledge that Grektek may audit your use of everbeat Services.
  2. In addition, you acknowledge potentially optional features and functionality enabled through everbeat Services may be provided pursuant to a license with a third-party licensor. Your use of those features and functionalities may be subject to the terms of a third-party license agreement to which you must agree before using such features and functionalities. The terms of this EULA will govern any upgrades provided to you by Grektek that replace and/or supplement Everbeat Services, unless such upgrade is accompanied by a separate license agreement in which case the terms of the new license will govern, and you agree to promptly install any such upgrade and cease use of the prior version.
  3. You agree that Grektek and any organization that you access through your use of everbeat Services (i.e. provider, caregiver, care team members) may collect, store, process, maintain, upload, sync, transmit, share, disclose and otherwise use technical data and related information, including but not limited to technical information about your device, system and application software, and peripherals, that is gathered periodically to facilitate the provision of updates, product support and other services to you (if any) related to everbeat Services as well as personal information, user location data, and user content (all such data, collectively, “user data”). Grektek and your provider may use user data to improve products, to provide services or technologies to you and to facilitate the provision of services or functionality for Everbeat Services, including but not limited to authentication, performance optimization, software updates, product support and other services to you related to everbeat Services.
  4. You acknowledge that use of everbeat Services may result in user data being transmitted between your device and a secure server and that such user data may be collected, stored, processed, maintained and used by and/or transmitted or disclosed to or accessed by Grektek. More specifically, but without limiting the foregoing, you acknowledge that Grektek may collect, transmit, and store: (1) Your device identification and such identification may be used in order to allow your device to connect to the relevant database(s) that Grektek makes accessible to end users of everbeat Services such as your agreed upon provider, care team and/or caregivers and may be accessed by Grektek in connection with troubleshooting; (2) information regarding the hardware model of the device on which you are running everbeat Services and may be used to make changes, updates or improvements to or to optimize the performance of everbeat Services or to otherwise inform future development and may be transmitted to Grektek and may be used by Grektek for the same; and (3) audit logs reflecting your logins, logouts and the activities you have accessed through your use of everbeat Services and such audit logs may be and may also be made available to Grektek for troubleshooting.
  5. By making available any information through the everbeat Services, you grant and agree to grant to Grektek a perpetual, non-exclusive license to use this information to make everbeat Services valuable to you; for statistical use (provided that such Records are not personally identifiable); and to help us maintain and improve everbeat Services.

 

BY CLICKING ON THE “ACCEPT” BUTTON, YOU EXPRESSLY CONSENT TO THE FOREGOING COLLECTION, STORAGE, PROCESSING, MAINTENANCE, UPLOADING, SYNCING, TRANSMITTING, SHARING, OR DISCLOSURE OF USER DATA. By continuing to use everbeat Services, you indicate your continued consent to such collection, storage, processing, maintenance, uploading, syncing, transmitting, sharing, or disclosure of user data as well as any collection, storage, transmission and use of data of the type and in the manner described in this document if any, located within everbeat Services.

INDEMNIFICATION

  1. Except as expressly provided in subsection (b) below, you agree to defend, indemnify, and hold Grektek harmless from any claims, damages or liabilities, regardless of the cause, including Grekteks’s negligence, arising out of or relating to your use, operation, installation, configuration, uninstalling, and/or reliance upon the results generated, or information transmitted, by everbeat Services. To the extent applicable, you will obtain Grektek’s prior written consent to any settlement or judgment in which you agree to any finding of fault of Grektek or defect in everbeat Services. Grektek will promptly notify you in writing of any claim subject to this indemnification, promptly provide you with the information reasonably required for the defense of the same, and grant to you exclusive control over its defense and settlement.
  2. Provided that you have used everbeat Services in accordance with the terms of this EULA and you promptly notify Grektek of any claim against you of the type described below, Grektek will indemnify, defend, and hold you harmless from any such claim brought against you to the extent that: (1) it is a claim that the licensed use of the then-current version of everbeat Services infringes any third party’s patent, copyright, or trademark, in each case enforceable in the United States; (2) the claim is based on the use of everbeat Services in the form supplied to you by Grektek; and (3) the claim is not based on the use of everbeat Services in combination with other hardware or software except to the extent the use of everbeat Services alone would constitute an infringement. You will promptly notify Grektek in writing of the claim, promptly provide Grektek with the information reasonably required for the defense of the same, and grant to Grektek exclusive control over its defense and settlement. Grektek may at its sole option and expense: (i) procure the right for you to continue to use everbeat Services; (ii) modify or replace everbeat Services or such portion thereof as Grektek deems appropriate; or (iii) terminate your license to everbeat Services and refund any fees you paid for use of everbeat Services. This section states the entire liability and obligation of Grektek to you, and your sole and exclusive remedy, with respect to infringement of any intellectual property rights.

 

USER CONSENT TO RECEIVE COMMUNICATIONS IN ELECTRONIC FORM

For contractual purposes, you (a) consent to receive communications from Grektek in an electronic form via the email address you have submitted; and (b) agree that all Terms of Use, agreements, notices, disclosures, and other communications that Grektek provides to you electronically satisfy any legal requirement that such communications would satisfy if it were in writing. The foregoing does not affect your non-waivable rights

We may also use your email address to send you other messages, including information about Grektek and special offers. You may opt out of such email by sending an email to info@grektek.com. Opting out may prevent you from receiving messages regarding Grektek or special offers.

WARRANTY DISCLAIMER

THE SERVICE, IS PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, Grektek EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, REGARDING THE SERVICE INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, SECURITY, ACCURACY AND NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, Grektek MAKES NO WARRANTY OR REPRESENTATION THAT ACCESS TO OR OPERATION OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR FREE. YOU ASSUME FULL RESPONSIBILITY AND RISK OF LOSS RESULTING FROM YOUR DOWNLOADING AND/OR USE OF FILES, INFORMATION, CONTENT OR OTHER MATERIAL OBTAINED FROM THE SERVICE. SOME JURISDICTIONS LIMIT OR DO NOT PERMIT DISCLAIMERS OF WARRANTY, SO THIS PROVISION MAY NOT APPLY TO YOU.

LIMITATION OF DAMAGES AND LIABILITY; RELEASE

TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL GREKTEK, ITS AFFILIATES, DIRECTORS, OR EMPLOYEES, OR ITS LICENSORS OR PARTNERS, BE LIABLE TO YOU FOR ANY LOSS OF PROFITS, USE, OR DATA, OR FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, HOWEVER ARISING, THAT RESULT FROM (A) THE USE, DISCLOSURE, OR DISPLAY OF YOUR HEALTH INFORMATION; (B) YOUR USE OR INABILITY TO USE THE SERVICE; (C) THE SERVICE GENERALLY OR THE SOFTWARE OR SYSTEMS THAT MAKE THE SERVICE AVAILABLE; OR (D) ANY OTHER INTERACTIONS WITH Grektek OR ANY OTHER USER OF THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT Grektek HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS LIMIT OR DO NOT PERMIT DISCLAIMERS OF LIABILITY, SO THIS PROVISION MAY NOT APPLY TO YOU.

If you have a dispute with any entity directly or indirectly related to these Services, you release us (and our officers, directors, agents, subsidiaries, joint ventures, business associates and employees) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes.

NO-EXPORT

You may not use or otherwise export or re-export everbeat Content or Services except as authorized by United States law and the laws of the jurisdiction in which Everbeat Content Services were obtained. In particular, but without limitation, everbeat Services may not be exported or re-exported (a) into any U.S. 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 Denied Person’s List or Entity List. By using everbeat Services, you represent and warrant that you are not located in any such country or on any such list. You also agree that you will not use these products for any purposes prohibited by United States law, including, without limitation, the development, design, manufacture or production of nuclear, missiles, or chemical or biological weapons.

MODIFICATION OF TERMS OF USE

We can amend these Terms of Use at any time and will update them in the event of any such amendments. It is your sole responsibility to check from time to time to view any such changes in the Agreement. If you continue to use Everbeat Services, you signify your agreement to our revisions to these Terms of Use. However, we will notify you of material changes to the terms by posting a notice on our homepage and/or sending an email to the email address you provided to us upon registration. For this additional reason, you should keep your contact and profile information current. Any changes to these Terms (other than as set forth in this paragraph) or waiver of Grektek’s rights hereunder shall not be valid or effective except in a written agreement bearing the physical signature of an officer of Grektek. No purported waiver or modification of this Agreement by Grektek via telephonic or email communications shall be valid.

GENERAL TERMS

If any part of this Agreement is held invalid or unenforceable, that portion of the Agreement will be construed consistent with applicable law. The remaining portions will remain in full force and effect. Any failure on the part of Grektek to enforce any provision of this Agreement will not be considered a waiver of our right to enforce such provision. Our rights under this Agreement will survive any termination of this Agreement.

You agree that any cause of action related to or arising out of your relationship with Grektek must commence within ONE year after the cause of action accrues. Otherwise, such cause of action is permanently barred.

These Terms of Use and your use of the everbeat Services are governed by the federal laws of the United States of America and the laws of the State of Virginia without regard to conflict of law provisions.

Grektek may assign or delegate these Terms of Service and/or Grektek’s Privacy Policy, in whole or in part, to any person or entity at any time with or without your consent. You may not assign or delegate any rights or obligations under the Terms of Service or Privacy Policy without Grektek’s prior written consent, and any unauthorized assignment and delegation by you is void.

YOU ACKNOWLEDGE THAT YOU HAVE READ THESE TERMS OF USE, UNDERSTAND THE TERMS OF USE, AND WILL BE BOUND BY THESE TERMS AND CONDITIONS. YOU FURTHER ACKNOWLEDGE THAT THESE TERMS OF USE TOGETHER WITH THE PRIVACY POLICY AT https://iwantwell.com/privacy.html. REPRESENT THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN US AND THAT IT SUPERSEDES ANY PROPOSAL OR PRIOR AGREEMENT ORAL OR WRITTEN, AND ANY OTHER COMMUNICATIONS BETWEEN US RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT.

ARBITRATION

These Terms and the relationship between you and Grektek shall be governed by the laws of the state of Virginia without regard to its conflict of law provisions. You agree to first contact Grektek at info@grektek.com regarding any claim or controversy arising out of or relating to these Terms of Use or your use of the everbeat Services. You and Grektek agree to submit to the personal and exclusive arbitration of any disputes relating to your use of the everbeat Services under the rules of the American Arbitration Association. Any such arbitration, to the extent necessary, shall be conducted in Tampa, Virginia. You covenant not to sue Grektek LLC or Grektek Holdings, Inc. in any other forum.

You also acknowledge and understand that, with respect to any dispute with the Released Parties arising out of or relating to your use of the everbeat Services or these Terms:

YOU ARE GIVING UP YOUR RIGHT TO HAVE A TRIAL BY JURY;

YOU ARE GIVING UP YOUR RIGHT TO SERVE AS A REPRESENTATIVE, AS A PRIVATE ATTORNEY GENERAL, OR IN ANY OTHER REPRESENTATIVE CAPACITY, OR TO PARTICIPATE AS A MEMBER OF A CLASS OF CLAIMANTS, IN ANY LAWSUIT INVOLVING ANY SUCH DISPUTE; AND

YOU MUST FILE ANY CLAIM WITHIN ONE (1) YEAR AFTER SUCH CLAIM AROSE OR IT IS FOREVER BARRED.

ENTIRE AGREEMENT

This Terms of Use sets forth the entire agreement between Grektek and you with regard to everbeat Services. All prior or contemporaneous representations, understandings or agreements are superseded by this TOS. Any modification or amendment of this Agreement must be in writing and signed by both parties.