TERMS OF SERVICE
END-USER LICENSE AGREEMENT
READ THIS END-USER LICENSE AGREEMENT CAREFULLY BEFORE SELECTING THE “I ACCEPT” BUTTON OR DOWNLOADING, INSTALLING, ACCESSING OR OTHERWISE COPYING OR USING ALL OR ANY PORTION OF THE SKEO.
BY SELECTING THE “I ACCEPT” BUTTON OR DOWNLOADING, INSTALLING, ACCESSING OR OTHERWISE COPYING OR USING ALL OR ANY PORTION OF THE SOFTWARE, YOU REPRESENT AND YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, THAT YOU UNDERSTAND IT, AND THAT YOU AGREE TO BE BOUND BY THE TERMS.
If you are entering into this Agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such entity and its affiliates to these terms and conditions, in which case the terms “you” or “your” shall refer to such entity and its affiliates.
IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS:
- DO NOT USE YOUR SKEO AND RETURN IT TO THE ENTITY FROM WHOM YOU PURCHASED IT WITHIN FOURTEEN (14) DAYS OF PURCHASE;
- DO NOT INSTALL OR USE THE SOFTWARE; AND
- DELETE OR DISABLE ANY DOWNLOADED COPY OF THE SOFTWARE IN YOUR POSSESSION OR CONTROL.
The SKEO is developed and owned by MedicalBay sp. z o.o., with registered seat in Katowice, Francuska 182/15, TAX ID: 6272697030, registered by the District Court Katowice-Wschód in Katowice, Commercial Division of the National Court Register under number KRS: 350235; (“MedicalBay”, “we”, ”us” or “our”) or its subsidiaries and is protected under copyright and other intellectual property rights laws. The SKEO is provided under the following Agreement, which defines what you may do with the product and contains limitations, warranties, remedies and other terms.
If you register for a free trial of the SKEO, this Agreement will also govern that trial.
Any reports regarding or related to use of the SKEO or any aspect of the Software and any other usage information, enhancement requests, recommendations, help, bug-reports, results, comments or suggestions provided to MedicalBay.
– COLLECTED DATA
(1) any content that user cause the SKEO to store or transmit, including, but not limited to, personal data that are voluntarily provide to MedicalBay during the usage of the SKEO, SKEO Services or the Software, (2) SKEO Data, (3) any data provided to or obtained by MedicalBay in connection with ordering, registering, activating, updating, auditing, or monitoring installation of and access to the Software.
– MANDATORY UPDATE
An update that is required for functionality, security or safety of certain Software and/or the SKEO.
– SKEO APPLICATION
Mobile application provided by MedicalBay
– SKEO DATA
(1) all data collected, processed and generated by the Software while using the SKEO (2) data that is based upon analyzing or results from capturing, storing or processing content generated by you; (3) metadata; (4) technical information; and (5) analytic, usage, diagnostic or demographic data.
– SKEO SERVICES
Online services provided by MedicalBay
Product developed and owned by MedicalBay consisting of electronic devices (sensors) with preinstalled firmware, mobile application, and online services.
Firmware and mobile application provided by MedicalBay in a downloadable or other format.
– THIRD-PARTY SERVICES
Products or services that are developed or provided by third parties, including but not limited to servers/cloud hosting services that are allowed or required by SKEO
2. SAFETY OF USE.
There are important instructions on how to use the SKEO in the box, in which it is delivered to you. Read these instructions before using the SKEO. You should take all reasonable safety precautions to ensure that the SKEO is used in a safe manner, as using it may distract you from viewing or avoiding environmental hazards, moving objects or other obstacles.
The SKEO is not designed to be used with any unauthorized software, accessory or “non-SKEO” device and it is not allowed to use the SKEO with such software, accessory or device. You are responsible for ensuring your device meets the minimum requirements of the Software.
MedicalBay grants you a limited, non-exclusive, non-transferable and non-sub-licensable, revocable license to use MedicalBay’s Software:
- use the firmware as pre-installed or updated in your SKEO,
- install and use downloaded SKEO Application (only in provided by Medical form) on your device and
- access SKEO Services for the limited purpose of facilitating use of the SKEO,
unless other terms accompany those services on delivery, in accordance with the terms of this Agreement.
5. IP RIGHTS AND SERVICES.
- MedicalBay, its affiliates, and/or licensors own all titles, copyrights and other intellectual property rights in the SKEO, the Software, SKEO Services and reserve all rights not expressly granted to you in this Agreement.
- The Software and SKEO Services may be revised at any time. Use of the Software and SKEO Services may require you to agree to additional terms or acknowledge additional warnings or disclaimers prior to using such the Software and SKEO Services. MedicalBay may suspend access to, or use of, SKEO Services at any time for maintenance or security purposes. The SKEO Application and/or SKEO Services access may require use of a password or an account and you agree to take all reasonable measures to safeguard your password and to prevent unauthorized access to or use of any such account. MedicalBay, upon prior notice, reserves the right to close your account if MedicalBay registers no activity on your account for more than two years.
- You acknowledge and agree that the Software is provided to you under license and is not sold to you. You further acknowledge and agree that you have not acquired any ownership interest in the Software or documentation under this Agreement, or any other rights thereto other than to use the Software in accordance with the license granted, and subject to all terms, conditions and restrictions of this Agreement. MedicalBay, its affiliates, and licensors reserve and shall retain their entire right, title and interest in and to the Software and all intellectual property rights in or arising out of or relating to the Software, except as expressly granted to the you in this Agreement.
- You may use features of your SKEO to capture or store content which is generated by you such as motion data, photographs or videos and such use is subject to the terms and conditions of this Agreement. You represent and warrant that you have all rights and licenses necessary to use the SKEO to input or store such content. You grant MedicalBay and its affiliates and service providers a worldwide, non-exclusive, royalty-free, sublicensable and transferable license to use, reproduce, distribute, prepare derivative works of, and display the content. You shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all content. Without limiting the foregoing. You represent and warrant that you have all rights necessary to distribute the content to MedicalBay and use and authorize others to use the content in connection with the SKEO Services, and that all content will comply with all applicable laws and regulations. MedicalBay may remove, delete or take steps to prevent MedicalBay from handling or receiving any content if MedicalBay reasonably believes the collection or use of such content is unlawful or will cause harm to MedicalBay, You or our service providers.
- You acknowledge that MedicalBay owns all rights in SKEO Data and to the extent you have no rights or ownership in SKEO Data. You hereby give all consents necessary for MedicalBay to capture, use and collect Analytic Data.
- You have no rights with respect to the Software or any portion thereof and shall not use the Software or any portion thereof except as expressly set forth herein. Without limiting the generality of the foregoing, you agree not to
(A) reverse engineer, decompile, decipher, disassemble, modify or create derivative works of the Software;
(B) sublicense, lease, rent, assign, distribute, publish, repackage, rebrand, or otherwise transfer or disclose the Software, any portion thereof or any accompanying documentation to any third party; or
(C) cause, assist or permit any third party to do any of the foregoing.
- Specifically excluded from the license set forth in this Agreement are any uses or operation of the Software in connection with any products, systems, applications or hardware other than devices manufactured by MedicalBay or any of its subsidiaries.
- You agree to be fully responsible for your own conduct and content while using the Software and for any consequences thereof. You agree to use the Software only for purposes that are legal, proper and in accordance with this Agreement and any applicable policies or guidelines. By way of example, and not as a limitation, you agree that when using the Software, you will not:
- upload, post, email or transmit or otherwise make available content that infringes any patent, trademark, copyright, trade secret or other proprietary right of any party, unless you are the owner of the rights or have the permission of the owner to post such Content;
- use the Software or other content for any illegal or unauthorized purpose;
- remove, delete, alter or obscure any trademarks or any copyright, trademark, patent or other intellectual property or proprietary rights notices provided on or with the Software or any other SKEO content;
- transmit any viruses, worms, defects, Trojan horses, logic bombs or other material which is malicious or technologically harmful to the Software or SKEO Services;
- use any robot, spider or other automatic device, process or means to access the Software or SKEO Services;
- combine the Software or any part thereof with, or incorporate the Software or any part thereof in, any other programs unless approved by MedicalBay in writing;
- reproduce, copy, distribute, resell or otherwise use the Software for any commercial purpose,
- allow any third party to use the Software on behalf of or for the benefit of any third party, unless prior written or electronic consent is given by MedicalBay;
- use the Software or SKEO Services in violation of any law, regulation or rule, including but not limited to stalking, harassing, harming, threatening to harm, or invading the privacy of any individual. You are solely responsible for complying with any laws, orders, rules and regulations and laws of any jurisdiction applicable to your use of the SKEO; and
- make any use of the Software or SKEO Services in any manner not permitted by this Agreement.
7. TERM AND TERMINATION.
This Agreement shall continue for as long as you use the SKEO. However, the License granted will terminate automatically without notice from MedicalBay if you fail to comply with any of its terms or conditions. In addition, MedicalBay reserves all rights to discontinue your access to the Software or SKEO Services at any time, at MedicalBay’s sole discretion, if MedicalBay reasonably believes that your continued exercise of rights under this Agreement will cause MedicalBay or you harm, or in unlawful, and such termination will be effective upon notice to you. You must agree, upon termination, to destroy all copies of the Software. The Limitations of Warranties and Liability set out below shall continue in force even after any termination. Upon the termination of the License for any reason
- all license rights granted herein shall terminate; and
- You shall immediately cease all use of the SKEO
8. AVAILABILITY AND UPDATES.
The Software and SKEO Services may periodically not be available for maintenance, safety or other reasons. You agree that MedicalBay may develop and provide any Software updates in its sole discretion, automatically check your version of any of the Software and automatically send you updates. You may be given notice, such as an email message or messaging linked to your account that an update is available. In some situations, an update may be required for functionality, security or safety of certain Software and/or the SKEO. If MedicalBay informs you that an update is required for any such reasons, you must install Mandatory Update and you must complete installation of Mandatory Update in order to continue use of the SKEO. In some cases, installation of Mandatory Update may be automatic. If you block the installation of or fail to install any Mandatory Updates, MedicalBay is permitted to cease providing certain support services and you acknowledge that certain features of the SKEO may not be available or operational. You further agree that all updates will be deemed Software under this Agreement.
9. COLLECTION AND USE OF INFORMATION.
- content generated by you, which is any content that you cause the SKEO to store or transmit, including, but not limited to, personal data that you voluntarily provide MedicalBay during your usage of the SKEO, SKEO Services or the Software,
- Analytic Data,
- any data provided to or obtained by MedicalBay in connection with ordering, registering, activating, updating, auditing, or monitoring installation of and access to the Software.
- improving the performance of any aspect of SKEO or developing updates, and
- verifying your compliance with the terms of this Agreement and enforcing MedicalBay’s rights.
- You acknowledge and agree, under your prior separate consent, that:
- MedicalBay may provide information and data, including, without limitation, information and data about your use of SKEO, SKEO Services, or the Third-Party Services, to MedicalBay’s affiliates and other third parties in connection with the provision, maintenance, administration or usage of the SKEO, the Software or the Third-Party Services, or in connection with enforcement of any agreements relating thereto; and
- MedicalBay may make cross-border transfers of such information and data, including to jurisdictions with privacy or data protection laws that are less protective than the jurisdiction in which you are located.
10. FEES AND PAYMENT.
You agree to pay the applicable fees for use of the SKEO. You acknowledge that any failure to pay applicable fees may result in MedicalBay limiting access to or not delivering SKEO.
Sending MedicalBay any Feedback shall not be deemed to be your confidential information. You hereby assign to MedicalBay, all of your rights in Feedback, and you will take all actions reasonably requested by MedicalBay to give effect to such assignment. You further acknowledge that no compensation will be provided with respect to the use of any Feedback you provide. The above provisions and rights granted regarding title and intellectual property rights associated with the Feedback shall survive termination of this Agreement.
12. THIRD-PARTY SERVICES.
13. LIMITED WARRANTY.
MedicalBay warrants that SKEO Sensors will be free from defects in materials and workmanship under normal conditions of use for a period of one (1) year from the date of delivery to you. Your exclusive remedy for the SKEO Sensors that are defective in material or workmanship will be the replacement, repair, or refund of the purchase price, as determined by MedicalBay in our sole discretion. Warranty claims must be submitted in written form. You are solely responsible to back up any content on the SKEO that is submitted to MedicalBay for technical support or warranty related issues. This warranty does not cover damage caused by use of the SKEO for any purpose other than the purpose for which the SKEO was designed or damage caused by unauthorized modifications to the SKEO, or any other abuse or misuse by you.
14. LIMITATION OF THE LIABILITY.
- The Software is provided to you on an “as is” basis, without any warranties or conditions, express or implied, including, but not limited to, any implied warranty of merchantability or fitness for a particular purpose, or any warranty arising by law, statute, usage of trade, or course of dealing. You assume all responsibility and risk for the use of the Software and MedicalBay disclaims all liability for any loss, injury or damage resulting from use of SKEO, whether direct or indirect, and whether or not MedicalBay has been advised of or has knowledge of the possibility of such loss, injury or damage. In no event shall MedicalBay have any liability to you or any other person or entity for any compensatory, indirect, incidental, special, consequential or exemplary damages whatsoever, including, but not limited to, loss of revenue or profit, lost or damaged data or other commercial or economic loss, even if MedicalBay has been advised of the possibility of such damages, or they are foreseeable. MedicalBay is also not responsible for claims by a third party. The limitations in this section shall apply whether or not the alleged breach or default is a breach of a fundamental condition or term or a fundamental breach.
- Any content or material downloaded or uploaded or otherwise obtained through the Software is done at your own discretion and risk. You will be solely responsible for any damage to your phone/computer system/network or any loss of data that may result from the download or upload of any such content or material or the use of the Software.
- In no event will MedicalBay’s liability for any claim, whether in contract, tort or any other, exceed the fee paid upon purchase of SKEO.
You agree to indemnify and hold harmless MedicalBay and its subsidiaries, affiliates, officers, agents, and employees, advertisers, licensors, and partners, from and against any third party claim arising from or in any way related to your use of the Software or SKEO Services, violation of this Agreement or any other actions connected with use of any content, including any liability or expense arising from all claims, losses, damages (actual and consequential), suits, judgments, litigation costs and attorneys’ fees, of every kind and nature. In such a case, MedicalBay will provide you with written notice of such claim, suit or action
16. TERMS UPDATE.
17. GENERAL PROVISIONS.
- This Agreement is the entire agreement between you and MedicalBay, superseding any other agreement or discussions, oral or written, and may only be changed by a dully signed amendment except for MedicalBay’s right to update stipulated in 16.1.
- Any term of this Agreement which expressly, or by its nature, is intended to survive expiration or termination, shall so survive.
- Any failure by MedicalBay to insist upon or enforce performance by you of any of the provisions of this Agreement or to exercise any rights or remedies hereunder or otherwise by law will not be construed as a waiver or relinquishment of any right to assert or rely upon the provision, right or remedy in that or any other instance; rather, the provision, right or remedy will be and remain in full force and effect.
- This Agreement and all claims arising out of the use of the SKEO shall be governed by and construed in accordance with the laws of Poland. The United Nations Convention on Contracts for International Sale of Goods will not apply to this Agreement. If any provision of this Agreement is declared by a court of competent jurisdiction to be invalid, illegal, or unenforceable, such a provision shall be severed from the Agreement and the other provisions shall remain in full force and effect. For any disputes arising out of or in connection with this Agreement or the License granted exclusive jurisdiction and venue will be the court in the city of MedicalBay’s registered seat.