Terms and conditions

TERMS AND CONDITIONS

THESE TERMS AND CONDITIONS (“TERMS AND CONDITIONS”) ARE A BINDING AGREEMENT BETWEEN YOU (YOU PERSONALLY OR YOU ON BEHALF OF A LEGAL ENTITY) (“YOU” AND “YOUR”) AND WELCH ALLYN, INC. (“WELCH ALLYN,” “WE,” “US,” AND “OUR”), AND GOVERN YOUR AND YOUR AUTHORIZED USERS’ ACCESS AND USE OF THE WELCH ALLYN HOME™ CLINICAL PORTAL (THE “PORTAL”). THE PORTAL INCLUDES ANY UPDATES THERETO, AND ALL ASSOCIATED DOCUMENTATION.

WELCH ALLYN LICENSES THE PORTAL SOLELY ON THESE TERMS AND CONDITIONS AND ON THE CONDITION THAT YOU ACCEPT AND COMPLY WITH THEM. BY CLICKING THE "AGREE" BUTTON BELOW YOU: (I) HAVE READ AND UNDERSTAND THESE TERMS AND CONDITIONS; (II) ACCEPT THESE TERMS AND CONDITIONS AND AGREE THAT YOU AND YOUR AUTHORIZED USERS ARE LEGALLY BOUND BY THEM; AND (III) REPRESENT AND WARRANT THAT (A) YOU ARE OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT, AND (B) IF YOU ARE ACCEPTING AND AGREEING ON BEHALF OF A LEGAL ENTITY, YOU HAVE THE RIGHT, POWER AND AUTHORITY TO ENTER INTO THESE TERMS AND CONDITIONS ON BEHALF OF SUCH LEGAL ENTITY AND TO BIND SUCH LEGAL ENTITY AND ITS AUTHORIZED USERS TO THESE TERMS AND CONDITIONS. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, WELCH ALLYN WILL NOT AND DOES NOT LICENSE THE PORTAL TO YOU AND YOU MUST NOT ACCESS OR USE THE PORTAL.

Definitions.

Authorized Users means Your employees or independent contractors authorized by You to access the Portal and view and use Patient Information.

Patient Information means Your patients’ individually identifiable information such as name, email address, and health and biometric data submitted by them via the Welch Allyn Home mobile software application (the “App”) and Your patients’ individually identifiable information such as name, gender, date of birth and health information input by You or Your Authorized Users in the course of setting up and administering patients’ accounts in the Portal.

Your Information means Your facility or practice name, primary contact information, national provider identifier and any other information about You or Your Authorized Users provided by You or Your Authorized Users in the course of accessing and using the Portal.

License Grant. Subject to these Terms and Conditions, Welch Allyn grants You and Your Authorized Users a limited, non-exclusive and nontransferable license to access and use the Portal solely for Your internal business purposes.

License Restrictions. You agree that You and Your Authorized Users will not:

  • (a) copy the Portal, except as expressly permitted by this license;
  • (b) modify, translate, adapt, or otherwise create derivative works or improvements of the Portal;
  • (c) reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Portal or any part thereof;
  • (d) remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Portal, including any copy thereof;
  • (e) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Portal, or any functionality or feature of the Portal, to any third party for any reason, including by making the Portal available on a network where it is capable of being accessed by more than one device at any time; or
  • (f) remove, disable, circumvent, or otherwise create or implement any workaround to any copy protection, rights management, or security features in or protecting the Portal.

Reservation of Rights. You acknowledge and agree that the Portal is provided under license, and not sold, to You. You do not acquire any ownership interest in the Portal under these Terms and Conditions, or any other rights thereto other than to use the Portal in accordance with the license granted, and subject to all terms, conditions, and restrictions, under these Terms and Conditions. We reserve and retain Our entire right, title, and interest in and to the Portal, including all copyrights, trademarks, and other intellectual property rights therein or relating thereto except as expressly granted to You in these Terms and Conditions.

Patient Information. The App enables Your patients’ mobile device to collect physiological measurements from home monitoring devices and transmit them to the Portal. The App also saves and tracks Your patients’ results. Your patients must agree that We may access, collect, store, process, maintain, upload, sync, transmit, share, disclose and use Patient Information as a condition of their download, installation and use of the App. Patients may cease use of the App or delete if from their mobile device at any time. We may, in Our sole discretion and with or without notice, terminate patients’ right to use the App and reserve the right to delete patient accounts where the App has not been used for twelve (12) consecutive months. We have no obligation to store, maintain, recover or provide You a copy of any Patient Information, or offer You the opportunity to retrieve or transfer any Patient Information prior to its destruction.

No Business Associate Relationship. By providing the Portal, We are not creating, receiving, maintaining or transmitting protected health information (as such term is defined under the Health Insurance Portability and Accountability Act of 1996, as amended, and all implementing regulations (“HIPAA”)) on Your behalf, or on behalf of a business associate of Yours. Instead, We are providing a service to Your patients as consumers by facilitating Your access to Patient Information on their behalf and at their request. Your access and use of the Portal does not give rise a business associate relationship between You and Us.

Your Information. You agree that We may access, collect, store, process, maintain, upload, sync, transmit, share, disclose and use Your Information. BY CLICKING THE “AGREE” BUTTON, YOU EXPRESSLY CONSENT TO THE FOREGOING ACCESS, COLLECTION, STORAGE, PROCESSING, MAINTENANCE, UPLOADING, SYNCING, TRANSMITTING, SHARING, DISCLOSURE AND USE OF YOUR INFORMATION. By continuing to access and use the Portal, You indicate Your continued consent to such access, collection, storage, processing, maintenance, uploading, syncing, transmitting, sharing, disclosure and use of Your Information. Our access, collection, storage, processing, maintenance, uploading, syncing, transmitting, sharing, disclosure and use of Your Information is governed by Our Privacy Policy, which is incorporated herein by this reference. Our Privacy Policy may be viewed at http://www.welchallyn.com/privacy.

Geographic Restrictions. The Portal is provided for access and use only by persons located in the United States. You acknowledge that You or Your Authorized Users may not be able to access or use all or some of the Portal outside of the United States and that access or use of the Portal by certain persons or in certain countries may not be legal. If You or Your Authorized Users access or use the Portal outside the United States, You or Your Authorized Users are responsible for compliance with all local laws.

Updates; Limits. We may change the Portal, including without limitation making improvements or alterations to functionalities, adding or removing features, and providing bug fixes and patches, with or without notice to You. You agree that all updates will be deemed part of the Portal and be subject to these Terms and Conditions. We also reserve the right to establish limits on the nature or size of storage available to You or on Your continued ability to access or use Patient Information, and to impose other limitations at any time, with or without notice to You.

Revisions to Terms and Conditions. We may revise these Terms and Conditions with or without notice to You. Revised Terms and Conditions supersede all earlier versions. We encourage You periodically to read these Terms and Conditions to see if We have made revisions to Our policies that may affect You. Your continued access and use of the Portal will signify Your continued agreement to these Terms and Conditions as they may be revised.

Term and Termination. The term of these Terms and Conditions will commence upon Your acceptance of these Terms and Conditions and will continue in effect until terminated as set forth in this section.

  • (a) We may terminate these Terms and Conditions in Our sole discretion at any time, with or without notice to You. In addition, these Terms and Conditions will terminate immediately and automatically without any notice to You if You or Your Authorized Users violate any of these Terms and Conditions. We reserve the right to delete Your account if You haven’t used the Portal for twelve (12) consecutive months.
  • (b) Upon termination:
    • (i) all rights granted to You under these Terms and Conditions will also terminate; and
    • (ii) You and Your Authorized Users must cease all use of the Portal.
  • (c) Termination will not limit any of Our rights or remedies at law or in equity.

Login and Password. To protect Your Information, access to the Portal requires submission of login and password information and/or other authentication tokens or codes to create a user account (collectively and individually “Login and Password”). The Login and Password are for Your and Your Authorized Users’ personal use only and are not transferable. Neither You nor Your Authorized Users may share Your or their Login or Password with any other person or entity. You agree that You and Your Authorized Users will be responsible for maintaining Your and their Login and Password as confidential and for any activity that occurs as a result of Your or Your Authorized Users enabling or permitting another person or entity to use Your or their Login and Password. You agree immediately to notify Us in the event that Your or any of Your Authorized Users’ Login and Password is lost or stolen or You or any of Your Authorized Users become aware of any unauthorized use of Your or their Login and Password or of any other breach of security related to the Portal.

No Medical Advice. THE APP AND THE PORTAL ARE INTENDED ONLY TO TRANSMIT AND STORE PATIENT INFORMATION. NEITHER THE APP NOR THE PORTAL IS INTENDED AS A SUBSTITUTE FOR PROFESSIONAL MEDICAL ADVICE OR CARE, AND NEITHER THE APP NOR THE PORTAL IS INTENDED TO DIRECT OR INFLUENCE YOUR PROFESSIONAL MEDICAL JUDGMENT. PATIENTS USING THE APP ARE INSTRUCTED TO CONTACT THEIR DOCTOR OR OTHER QUALIFIED HEALTH CARE PROVIDER IMMEDIATELY IF THEY SUSPECT THEY HAVE A MEDICAL PROBLEM OR CONDITION, AND TO CALL FOR EMERGENCY MEDICAL HELP IMMEDIATELY IF THEY ARE EXPERIENCING A MEDICAL EMERGENCY. NEITHER THE APP NOR THE PORTAL IS NOT INTENDED FOR EMERGENCY OR REAL-TIME MONITORING.

NO WARRANTY. THE PORTAL IS PROVIDED “AS IS” AND WITHOUT WARRANTY OF ANY KIND WHATSOEVER, EITHER EXPRESS OR IMPLIED. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WE SPECIFICALLY DISCLAIM AND EXCLUDE ANY AND ALL WARRANTIES, EXPRESSED, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSES, NON-INFRINGEMENT OR QUALITY AND/OR PERFORMANCE. WE DO NOT WARRANT THAT THE PORTAL WILL MEET YOUR REQUIREMENTS, THAT THE PORTAL’S OPERATION WILL BE ERROR-FREE OR UNINTERRUPTED, THAT THE INTERNET WILL BE AVAILABLE, THAT ERRORS IN THE PORTAL WILL BE CORRECTED OR THAT YOUR COMMUNICATIONS WILL BE SECURE OR DELIVERED TO YOUR RECIPIENTS, WHETHER THEY ARE YOUR INTENDED RECIPIENTS OR OTHERWISE, OR THAT YOUR INFORMATION STORED AND/OR ARCHIVED IN THE PORTAL OR ON OUR SERVERS WILL BE AVAILABLE, ACCESSIBLE, SECURE AND/OR ACCURATE. THE ENTIRE RISK ARISING OUT OF THE USE OR PERFORMANCE OF THE PORTAL REMAINS WITH YOU, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. Some jurisdictions do not allow the exclusions or limitations set forth above and therefore may not apply to You.

DISCLAIMER OF LIABILITY. TO THE FULLEST EXTENT PERMITTED BY LAW, WE SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL, OR PUNITIVE DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, FOR ANY LOSS OR DISCLOSURE OF PATIENT INFORMATION OR YOUR INFORMATION, ANY FAILURE TO MAKE PATIENT INFORMATION OR YOUR INFORMATION AVAILABLE TO YOU, INTERRUPTION OF SERVICE, COMPUTER OR MOBILE DEVICE FAILURE, DATA USAGE CHARGES, OR PECUNIARY LOSS) ARISING OUT OF THE USE OR INABILITY TO USE THE PORTAL, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER LEGAL THEORY AND WHETHER OR NOT ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU UNDERSTAND AND ACKNOWLEDGE THAT YOUR SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY DEFECT IN OR DISSATISFACTION WITH THE PORTAL IS TO CEASE USE OF THE PORTAL. TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT SHALL OUR TOTAL LIABILITY TO YOU FOR ANY AND ALL DAMAGES EXCEED THE AMOUNT OF FIFTY DOLLARS ($50.00).

Export Regulation. The Portal may be subject to United States export control laws, including the Export Administration Act and its associated regulations. Neither You nor Your Authorized Users shall, directly or indirectly, export, re-export, or release the Portal to, or make the Portal accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. You and Your Authorized Users shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Portal available outside the United States.

Governing Law. These Terms and Conditions are governed by and construed in accordance with the internal laws of the State of New York without giving effect to any choice or conflict of law provision or rule. Any legal suit, action, or proceeding arising out of or related to these Terms and Conditions or the Portal shall be instituted exclusively in the federal courts of the United States or the courts of the State of New York, in each case located in the City of Syracuse and the County of Onondaga. You waive any and all objections to the exercise of jurisdiction over You by such courts and to venue in such courts.

Limitation of Time to File Claims. ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THESE TERMS AND CONDITIONS OR THE PORTAL MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION OR CLAIM ACCRUES OTHERWISE SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.

Entire Agreement. These Terms and Conditions and Our Privacy Policy constitute the entire agreement between You and Us with respect to the Portal and supersede all prior or contemporaneous understandings and agreements, whether written or oral, with respect to the Portal.

Waiver. No failure to exercise, and no delay in exercising, on the part of either party, any right or any remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or remedy hereunder preclude further exercise of that or any other right or remedy hereunder. In the event of a conflict between these Terms and Conditions and any applicable purchase or other terms, these Terms and Conditions shall govern.