Cervella App Terms of Service
THE SERVICE IS AVAILABLE TO CERVELLA USERS IN THE UNITED STATES OF AMERICA (USA). THE SERVICE IS INTENDED ONLY TO RECORD, DISPLAY, STORE, AND TRANSMIT CRANIAL ELECTROTHERAPY STIMULATION TREATMENT DATA (“CES DATA”). YOU, AS THE USER OF THE SERVICE, ARE RESPONSIBLE FOR THE CES DATA RECORDED AND STORED BY THE SERVICE. THE SERVICE IS NOT INTENDED TO DIAGNOSE ANY MEDICAL CONDITIONS OR AUTOMATICALLY ALERT HEALTHCARE PROFESSIONALS OR PATIENTS TO POTENTIALLY SERIOUS MEDICAL CONDITIONS. THE SERVICE IS NOT INTENDED FOR CONTINUOUS MONITORING AND WE DO NOT GUARANTEE A RESPONSE BY ANY PHYSICIAN(S) TO MESSAGES POSTED OR MEDICAL EVENTS REPORTED THROUGH THE SERVICE. ALTHOUGH IND MAY ENABLE YOU TO CONNECT YOUR ACCOUNT TO YOUR HEALTHCARE PROVIDER THROUGH OUR CERVELLA SERVICE, IND DOES NOT AUTOMATICALLY REVIEW, MONITOR, EVALUATE, OR ANALYZE ANY INFORMATION GENERATED FROM THE SERVICE. IT IS YOUR RESPONSIBILITY TO PRESENT YOUR MEDICAL DATA TO YOUR PHYSICIAN FOR PROPER ANALYSIS AND DIAGNOSIS.
Unless you are a consumer located in a jurisdiction that prohibits the exclusive use of arbitration for dispute resolution, these Terms provide that all disputes between you and IND will be resolved by BINDING ARBITRATION. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this contract, except for matters that may be taken to small claims court. Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury, and your claims cannot be brought as a class action. Please review Section 24 (“Dispute Resolution and Arbitration”) for the details regarding your agreement to arbitrate any disputes with IND.
Use of the Service. The Service is intended only to allow you use the Cervella Cranial Electrotherapy Stimulator device and to view and store your treatment data. You may not access or use the Service for any other purpose. You may use the Service, including any data presented to you on or by the Service, or otherwise hosted or stored by IND for you, only for lawful and appropriate purposes on your own behalf, and subject to your full compliance with these Terms and any other guidelines and policies applicable to the Service which IND may post from time to time.
Eligibility. You must be at least 18 years of age to use the Service. By agreeing to these Terms, you represent and warrant to us that: (a) you are at least 18 years of age; (b) you have not previously been suspended or removed from the Service; and (c) your registration and your use of the Service is in compliance with all applicable laws and regulations in your local jurisdiction. If you are using the Service on behalf of an entity, organization, or company, you represent and warrant that you have the authority to bind that organization to these Terms and you agree to be bound by these Terms on behalf of that organization.
Accounts and Registration. To access most features of the Service, you must register for an account. When you register for an account, you may be required to provide us with some information about yourself including personal information such as your name, email address, password, gender, and partial birthdate (Month and Year only). You agree that the information you provide to us is accurate and that you will keep it accurate and up-to-date at all times. When you register, you will be asked to provide a password. You are solely responsible for maintaining the confidentiality of your account and password, and you accept responsibility for all activities that occur under your account. If you have reason to believe that your account is no longer secure, then you must immediately notify us at firstname.lastname@example.org. Your account may automatically expire following any period of inactivity associated with your account in excess of twelve (12) consecutive months.
License. IND owns and operates the Service. The documents and other information and content available on the Service (the “Site Content”) are protected by copyright and other intellectual property laws throughout the world. All copyright and other proprietary notices on any Site Content must be retained on any copies made thereof. Any unauthorized reproduction, modification, distribution, public display or public performance of any Site Content is strictly prohibited. IND and its suppliers reserve all rights not granted in these Terms.
Subject to the restrictions set forth in these Terms, IND grants you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to install and use the App in object code format on devices that you own or control, solely for use with the Services. By downloading or using our app(s), you:
Acknowledge that the App is licensed, not sold to you; and acknowledge that third party terms and fees may apply to the use and operation of your device in connection with your use of the App, such as your carrier’s terms of services, and fees for phone service, data access, or messaging capabilities, and that you are solely responsible for payment of any and all such fees.
User Representations and Warranties. Cervella and Cervella Pro users represent, warrant, and covenant to IND that you are a resident of the USA.
All users represent, warrant and covenant to IND that (1) these Terms have been executed and delivered by you and constitute a valid and binding agreement with you, enforceable against you in accordance with their terms; (2) if you are using the Service on behalf of another entity, you are an authorized representative of the entity and have the authority and agree to bind the entity to these Terms; (3) you will not access or use the Service except as expressly permitted by these Terms and any additional instructions, guidelines or policies issued by IND, including those posted in the Service; (4) you will access and use the Service in full compliance with applicable law; and (5) all of the information, data and other materials provided by you in support of your account registration are accurate and truthful in all respects.
User Content Generally. Certain features of the Service may permit you, your healthcare provider, or other users to upload content to the Service, including messages, images, data, text, location information, and other types of information (“User Content”) and to publish User Content on the Service. You retain the copyrights, including any moral rights, and any other proprietary rights that you may hold in the User Content that you post to the Service; provided that if you choose to link your account to our Cervella Pro service or information systems offered by your healthcare provider, any data provided to your healthcare provider may become part of your health record, and that copy of such data may be owned and/or controlled by your healthcare provider under applicable law.
Limited License Grant to Other Users. By posting or sharing User Content with other users of the Service or giving access to your account to your healthcare provider, you grant those users and/or healthcare providers a non-exclusive license to access and use that User Content as permitted by these Terms and the functionality of the Service.
User Content Representations and Warranties. You are solely responsible for your User Content and the consequences of posting or publishing User Content. By posting or publishing User Content, you affirm, represent, and warrant that:
You agree to pay for any and all royalties, fees, or other monies owing any person by reason of User Content you post on or through the Service.
User Content Disclaimer. We are under no obligation to edit or control User Content that you or other users post or publish and will not be in any way responsible or liable for User Content. IND may, however, at any time and without prior notice, screen, remove, edit, or block any User Content that in our sole judgment violates these Terms or is otherwise objectionable. You understand that when using the Service you will be exposed to User Content from a variety of sources and acknowledge that User Content may be inaccurate, offensive, indecent, or objectionable. To the fullest extent allowed under applicable law, you agree to waive, and do waive, any legal or equitable right or remedy you have or may have against IND with respect to User Content. We expressly disclaim any and all liability in connection with User Content, to the fullest extent allowed under applicable law. If notified by a user or content owner that User Content allegedly does not conform to these Terms, we may investigate the allegation and determine in our sole discretion whether to remove the User Content, which we reserve the right to do at any time and without notice.
Procedure for Unlawful User Content
If you believe that any User Content does not conform to these Terms, please notify us.
We comply with the provisions of the Digital Millennium Copyright Act (the “DMCA”) applicable to our operations (17 U.S.C. §512, as amended). If you have an intellectual property rights-related complaint about material posted on the Service, you may contact our designated agent at the following address:
INNOVATIVE NEUROLOGICAL DEVICES LLC
ATTN: Legal Department (Copyright Notification)
13295 Illinois Street, Suite 312
Carmel, IN 46032
Please note that under applicable law, if you knowingly give false, misleading or inaccurate information that User Consent is infringing, you may be subject to civil or criminal penalty.
Any notice under the Digital Millennium Copyright Act (the “DMCA”) alleging that materials hosted by or distributed through the Service infringe intellectual property rights must include all of the information required by the DMCA for such notices.
Repeat Infringers. IND will promptly terminate without notice the accounts of users that are determined by IND to be “Repeat Infringers.” A Repeat Infringer is a user who has been notified of infringing activity or has had User Content removed from the Service at least three times.
Prohibited Conduct. BY USING THE SERVICE YOU AGREE NOT TO:
Third-Party Services and Linked Websites. The Site may contain links to other web sites operated by third parties. Such third-party web sites are not under the control of IND and we are not responsible for the content of any third party web site or any link contained in a third party web site. IND provides these links only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to third party web sites.
Termination of Use; Discontinuation and Modification of the Service. You may terminate your account at any time by following the procedures detailed on the IND website or contacting customer service at email@example.com. If you violate any provision of these Terms, your permission from us to use the Service will terminate automatically. In addition, IND may in its sole discretion terminate your user account on the Service or suspend or terminate your access to the Service at any time if you violate any provision of these Terms, if we no longer provide any part of the Services or for any other reason, with or without notice. We also reserve the right to modify or discontinue the Service at any time (including by limiting or discontinuing certain features of the Service), temporarily or permanently, without notice to you. To the fullest extent permitted under applicable law, we will have no liability on account of any change to the Service or any suspension or termination of your access to or use of the Service, provided that if IND ceases to operate the Service and terminates your access to the Service accordingly, then you will be entitled to a pro-rated refund of any prepaid fees that you have paid to IND for use of the Service. Upon the termination of your account or this agreement for any reason, IND may at its option delete any data associated with your account.
Additional Terms. Your use of the Service is subject to all additional terms, policies, rules, or guidelines applicable to the Service or certain features of the Service that we may post on or link to from the Service (the “Additional Terms”), such as end-user license agreements for any downloadable software applications, or rules that are applicable to a particular feature or content on the Service, subject to Section 14. All Additional Terms are incorporated by this reference into, and made a part of, these Terms.
Modifications to these Terms. We reserve the right, at our discretion, to change these Terms on a going-forward basis at any time. Please check these Terms periodically for changes. If a change to these Terms materially modifies your rights or obligations (“Material Modifications”), we will notify you of the modified Terms by email to the address you provided in your user profile. Material Modifications will be effective upon your acceptance of such modified. Immaterial modifications are effective upon publication. Disputes arising under these Terms will be resolved in accordance with the version of these Terms that was in effect at the time the dispute arose. Your sole and exclusive remedy if you do not agree with any modification to these Terms is to cancel your account. You may not amend or modify these Terms under any circumstances.
Ownership; Proprietary Rights. The Service is owned and operated by IND. The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services, and all other elements of the Service (“Materials”) provided by IND are protected by intellectual property and other laws. All Materials included in the Service are the property of IND or our third-party licensors. Except as expressly authorized by IND, you may not make use of the Materials. IND reserves all rights to the Materials not granted expressly in these Terms.
Subcontractors. You hereby consent to IND’s engagement of third parties (including IND’s affiliates) to perform, or support the performance of, all or any portion of the Service or the IND website, such as the clinical interpretation service.
Feedback. If you choose to provide input and suggestions regarding problems with or proposed modifications or improvements to the Service (“Feedback”), then you hereby grant IND an unrestricted, perpetual, irrevocable, non-exclusive, fully-paid, royalty-free right to exploit the Feedback in any manner and for any purpose, including to improve the Service and create other products and services.
Indemnity. To the fullest extent permitted under applicable law, you are responsible for your use of the Service, and you will indemnify, hold harmless, and, if so directed by IND, defend IND and its officers, directors, employees, consultants, affiliates, subsidiaries and agents (together, the “IND Entities”) from and against every claim, liability, damage, loss, and expense, including reasonable attorneys’ fees and costs, arising out of or in any way connected with: (a) your access to, use of, or alleged use of, the Service; (b) your violation of any portion of these Terms, any representation, warranty, or agreement referenced in these Terms, or any applicable law or regulation; (c) your violation of any third-party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; (d) any dispute or issue between you and any third party; and (e) all claims arising from or alleging fraud, intentional misconduct, criminal acts, or gross negligence committed by you. To the fullest extent permitted under applicable law, we reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of that claim.
Disclaimers; No Warranties
THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS, WITHOUT WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED. THE IND ENTITIES DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SERVICE, ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE, AND ANY SOFTWARE OR HARDWARE ASSOCIATED OR USED WITH THE SERVICE, OR THE AVAILABILITY OF ANY OF THE FOREGOING, INCLUDING: (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; (B) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE; AND (C) ANY WARRANTY AS TO WHETHER THE CES DATA OR OTHER INFORMATION AVAILABLE ON OR TRANSMITTED BY THE SERVICE IS TRUE, COMPLETE OR ACCURATE. YOU SPECIFICALLY ACKNOWLEDGE AND AGREE THAT IND IS NOT RESPONSIBLE FOR ANY HEALTHCARE OR RELATED DECISIONS MADE BY YOU OR YOUR HEALTHCARE PROFESSIONAL BASED UPON DATA COLLECTED, TRANSMITTED OR DISPLAYED BY OR ON THE SERVICE, WHETHER SUCH DATA IS ACCURATE OR INACCURATE. THE IND ENTITIES DO NOT WARRANT THAT THE SERVICE OR ANY PORTION OF THE SERVICE, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE SERVICE, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND DO NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICE OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE WILL CREATE ANY WARRANTY REGARDING ANY OF THE IND ENTITIES OR THE SERVICE THAT IS NOT EXPRESSLY STATED IN THESE TERMS. YOU ASSUME ALL RISK FOR ANY DAMAGE THAT MAY RESULT FROM YOUR USE OF OR ACCESS TO THE SERVICE, YOUR DEALING WITH ANY OTHER SERVICE USER, AND ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE. YOU UNDERSTAND AND AGREE THAT YOU USE THE SERVICE, AND USE, ACCESS, DOWNLOAD, OR OTHERWISE OBTAIN MATERIALS OR CONTENT THROUGH THE SERVICE AND ANY ASSOCIATED SITES OR SERVICES, AT YOUR OWN DISCRETION AND RISK, AND THAT YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE SERVICE), OR THE LOSS OF DATA THAT RESULTS FROM THE USE OF THE SERVICE OR THE DOWNLOAD OR USE OF THAT MATERIAL OR CONTENT.
THE ABOVE PARAGRAPHS APPLY TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW. SOME JURISDICTIONS MAY PROHIBIT A DISCLAIMER OF WARRANTIES, IN PARTICULAR A DISCLAIMER OF WARRANTIES PROVIDED OR IMPLIED BY LAW, SUCH AS LEGAL GUARANTEES OF CONFORMITY FOR GOODS OFFERED TO CONSUMERS IN THE EU, AND YOU MAY HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.
Limitation of Liability
IN NO EVENT WILL THE IND ENTITIES BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICE OR ANY MATERIALS OR CONTENT ON THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY IND ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE. FOR THE AVOIDANCE OF DOUBT, THE EXCLUDED DAMAGES ALSO INCLUDE WITHOUT LIMITATION, LOSS OF SAVINGS OR REVENUE; LOSS OF PROFIT; LOSS OF USE; LOSS OF LIFE OR HEALTH, THE CLAIMS OF THIRD PARTIES; AND ANY COST OF ANY SUBSTITUTE EQUIPMENT OR SERVICES.
EXCEPT AS PROVIDED IN SECTION 241.E, IF IND CANNOT LAWFULLY DISCLAIM LIABILITY FOR ANY OF THE FOREGOING DAMAGES, THEN THE AGGREGATE LIABILITY OF THE IND ENTITIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE SERVICE OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF THE AMOUNTS YOU HAVE PAID TO USE THE SERVICE OR $100, TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN WHICH CASE SUCH LIMITATIONS SHALL APPLY TO YOU TO THE EXTENT PERMITTED IN SUCH JURISDICTION. FURTHERMORE, NOTHING IN THESE TERMS LIMITS OR EXCLUDES ANY LIABILITY THAT CANNOT BE LIMITED OR EXCLUDED BY LAW, SUCH AS LIABILITY FOR INTENTIONAL VIOLATION OF THESE TERMS. NOTHING IN THESE TERMS AFFECTS YOUR LEGAL RIGHTS AS A CONSUMER.
EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 20 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
PLEASE READ THIS SECTION CAREFULLY BECAUSE IT REQUIRE YOU TO ARBITRATE CERTAIN DISPUTES AND CLAIMS WITH US AND LIMITS THE MANNER IN WHICH YOU MAY SEEK RELIEF FROM US.
Generally. To the fullest extent permitted under applicable law and in the interest of resolving disputes between you and IND in the most expedient and cost effective manner, you and IND agree that every dispute arising in connection with these Terms will be resolved by binding arbitration, unless you are a consumer located in a jurisdiction that prohibits the exclusive use of arbitration for dispute resolution.
Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND IND ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION, TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW.
NOTICE REGARDING APPLE
You acknowledge that these Terms are between you and IND only, not with Apple, and Apple is not responsible for the App and the content thereof. Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App. In the event of any failure of the App to conform to any applicable warranty, then you may notify Apple and Apple will refund the purchase price for the App to you, if any; and, to the maximum extent permitted by applicable law, Apple has no other warranty obligation whatsoever with respect to the App. Apple is not responsible for addressing any claims by you or any third party relating to the App or your possession and/or use of the App, including, but not limited to: (i) product liability claims; (ii) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement and discharge of any third-party claim that the App or your possession and use of the App infringes that third party’s intellectual property rights. You agree to comply with any applicable third-party terms, when using the App. Apple, and Apple’s subsidiaries, are third-party beneficiaries of these Terms, and upon your acceptance of the Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce the Terms against you as a third party beneficiary of the Terms. You hereby represent and warrant that (i) 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 (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
Contact Information. The Service is offered by INNOVATIVE NEUROLOGICAL DEVICES LLC You may contact us by emailing us at firstname.lastname@example.org.
Last Revised on: August 1, 2019