Biobeat Terms of Use
Biobeat Technologies Ltd. (“Biobeat”, “we” or “us”) provisions various digital health data monitoring products, including (i) Biobeat’s BB-613 wrist monitor, BB-613 chest monitor sensor and ABPM Kit collectively, the “Biobeat Products”), as well as (ii) the Biobeat web application and platform which receives, analyzes and processes the data collected and transmitted through the Biobeat Products (“Biobeat Platform” and together with the Biobeat Products, the “Digital Solutions”) thereby, allowing users to use the Digital Solutions in accordance with the terms, and subject to the conditions set forth in these Terms of Use (the “Terms”).
For purposes of these Terms, a “user” shall mean any individual using one or more of the Biobeat Digital Solutions, irrespective of whether the user engages directly with Biobeat or through an enterprise client of Biobeat. In addition, in the case of an enterprise client supplying its patients with Biobeat Products, it shall be the responsibility of such client to ensure that its authorized users are made aware of, and agree to these Terms before permitting them to use any of the Digital Solutions.
Please read these Terms carefully as they govern a user’s use of the Biobeat Digital Solutions and create a binding contract between the user and Biobeat.
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BY USING THE BIOBEAT DIGITAL SOLUTIONS IN ANY MANNER, THE USER ACKNOWLEDGES THAT HE/SHE ACCEPTS THESE TERMS AND THAT THESE TERMS SHALL BE EFFECTIVE COMMENCING AS OF THE FIRST DATE OF SUCH USE (THE “EFFECTIVE DATE”). IF THE USER DOES NOT AGREE WITH THESE TERMS, THE USER MAY NOT USE ANY OF THE BIOBEAT DIGITAL SOLUTIONS, WHETHER IN WHOLE OR IN PART.
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1.Use of Biobeat Digital Solutions
In the case of a user who engages with Biobeat directly, such user will be required to create an enterprise account by registering via the Biobeat’s app. An enterprise client shall similarly be provided with a designated account through which the client will manage it and its authorized users’ use of the Digital Solutions. Whether an individual user or an enterprise client, each party shall be responsible for all activity that occurs under and in association with its/his/her account, and Biobeat shall not be liable for any Loss (as defined below) caused by the use of such account.
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2.Privacy
The Biobeat Digital Solutions collects and transmits data to Biobeat. Any information that Biobeat collects in connection with use of the Biobeat Digital Solutions, shall be subject to these Terms as well as Biobeats Privacy Statement[LG1] . Each user’s use of the Biobeat Digital Solutions shall constitute his/her express consent under applicable law for Biobeat’s collection and use of the information submitted by such user via the Biobeat Digital Solutions pursuant to these Terms.
To extent applicable, if Biobeat processes personal data on behalf of an enterprise client that supplies its authorized users with Biobeat Products (in which the enterprise client is considered the data controller and Biobeat as the data processor, as such terms are defined under the EU General Data Protection Regulation 2016/679), the enterprise client and Biobeat shall be deemed to have expressly agreed to and entered into a Data Processing Agreement.
Biobeat reserves the right to collect and use any aggregated and anonymous data that is gathered via the use of Biobeat Digital Solutions in order to improve and further enhance the Biobeat Digital Solutions and to facilitate the provisioning of updates, product support and other services related to the Biobeat Digital Solutions.
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3. Customer’s Obligations; Permitted and Prohibited Uses
Amongst the other requirements set forth in these Terms, users are required to comply in all respects with the instructions related to their use of Biobeat Digital Solutions, as specified in the accompanying documentation (for instance, without limitation, any instructions document, user manual or guide) supplied along with the Biobeat Products (collectively, the “Documentation”). Each user shall be solely responsible for the consequences of its failure to comply with the requirements contained within the Documentation.
Regardless of whether a user engaged with Biobeat directly or through an enterprise client, such user is hereby granted directly by Biobeat a limited revocable, non-exclusive, non-transferable, non-sublicensable right and license, to access and use the applicable Biobeat Product. This license is provided solely for the user’s personal use, and does not allow for any use that is not expressly permitted under these Terms.
Notwithstanding anything to the contrary herein, a user may not perform, attempt to perform, or encourage or assist others in performing any of the following: (i) connecting to or accessing Biobeat Digital Solutions other than through the actual Biobeat-supplied devices, a Biobeat app or the Biobeat website (without limitation, use of any device that is not manufactured, distributed or sold by or on behalf of Biobeat, including any knock off or counterfeit versions, is expressly prohibited), (ii) accessing or tampering with restricted and non-public areas of the Biobeat Digital Solutions, (iii) testing the vulnerability of any Biobeat system, breaching any security or authentication measures, or circumventing any technological measure implemented by Biobeat or any of its providers to protect the Biobeat Digital Solutions, (iv) decompiling, disassembling, reverse engineering, tampering with, or attempting to derive the source code of any portion of the Biobeat Digital Solutions, (v) copying, adapting, modifying, or preparing derivative works based upon the Biobeat Digital Solutions, and/or (vii) distributing, licensing, selling, transferring, publicly displaying, publicly performing, transmitting, broadcasting or otherwise exploiting the Biobeat Digital Solutions in a manner not explicitly permitted herein or otherwise expressly approved in advance and in writing by Biobeat.
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4. Biobeat’s Rights
As between Biobeat and its users, Biobeat retains all rights, title and interest, including all design rights, patents, copyrights, trade secrets, trademarks, and any other intellectual property rights (whether or not registerable) (collectively “Intellectual Property Rights”) in and to the Biobeat Digital Solutions (and including any improvements, updates, upgrades, error-corrections or other modifications thereto, and any derivative work based thereon, regardless of their creator, which for all purposes hereunder are considered part of the Digital Solutions to which they relate). It is further clarified that no source code or license to use source code is provided hereunder. Except for the rights expressly granted to the Customer hereunder, these Terms do not grant the Customer any rights or licenses by implication or otherwise with respect to any of Biobeat’s intellectual property.
Without derogating from the above, as between each user and Biobeat, Biobeat shall be the sole and exclusive owner of all rights to any ideas, inventions and/or improvements (whether protectable by any intellectual property protection or not) conceived or derived or resulting from feedback provided by the user with respect to the Biobeat Digital Solutions or otherwise embodied therein (“Feedback”). Each user hereby irrevocably assigns to Biobeat any rights that he/she may have in such Feedback, and to the extent such rights may not be assigned, the user hereby provides Biobeat a royalty free, perpetual, worldwide, exclusive, irrevocable license to use such Feedback for any purpose, including commercial purposes.
5. Suspension & Termination
Users may discontinue using the Digital Solutions at any time in their sole discretion, and upon doing so these Terms shall terminate.
Biobeat may also suspend and/or terminate a user’s use of the Digital Solutions if Biobeat determines, in its sole discretion, that a user has terminated these Terms or is threatening to terminate these Terms. In the case of a user who has been supplied the Digital Solutions by an enterprise client of Biobeat, Biobeat will notify such client concurrent with the suspension or termination of the user’s right to use the Digital Solutions. Upon any termination of these Terms by Biobeat, the applicable User shall immediately cease its use of the Digital Solutions.
Upon any termination of these Terms, the following provisions hereunder shall survive: 2, 4, 6, 8, 12, 13 and 14.
6. Warranty
Biobeat warrants that the Digital Products will materially operate in conformance with the product descriptions contained within the Documentation, and the only recourse a user shall have for breach of warranty shall be the replacement of the defective Digital Product with a substitute product .
Without limiting the generality of the foregoing, it is further acknowledged and agreed that the foregoing warranty shall not apply in the event the Biobeat Digital Solutions (i) has been used other than in strict compliance with the applicable Documentation or these Terms, (ii) has been modified or altered in any manner by anyone other than Biobeat’s personnel or a third party approved in advance by Biobeat, (iii) contain defects caused through no fault of Biobeat or any Biobeat-authorized third parties following delivery of the Biobeat Digital Solutions, or (iv) has been misused or neglected by the user seeking to enforce the warranty.
Customer hereby acknowledges that the representations and warranties extended in respect of the Biobeat Digital Solutions are limited to those indications for which the Biobeat Digital Solutions has obtained valid approvals from the applicable regulatory bodies in the territory in which the applicable Biobeat Digital Solutions is being so used.
EXCEPT AS SPECIFICALLY AND EXPRESSLY SPECIFIED IN THESE TERMS, THE BIOBEAT DIGITAL SOLUTIONS ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND AND ALL OTHER WARRANTIES AND REPRESENTATIONS, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY, SUITABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE, ARE EXPRESSLY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY LAW. BIOBEAT FURTHER DISCLAIMS ANY WARRANTY THAT THE BIOBEAT DIGITAL SOLUTIONS (OR ANY COMPONENT THEREOF) WILL MEET A USER’S CURRENT OR FUTURE REQUIREMENTS OR THAT THE OPERATION OF THE BIOBEAT DIGITAL SOLUTIONS WILL BE UNINTERRUPTED, FREE FROM ANY FAILURE, DAMAGE, BREAK OR OTHER IMPAIRMENT OR MALFUNCTION. BIOBEAT DOES NOT GUARANTEE THAT SPECIFIC RESULTS WILL BE ACHIEVED BY USING THE BIOBEAT DIGITAL SOLUTIONS OR THAT ANY INFORMATION PROVIDED BY THE DIGITAL SOLUTIONS SHALL BE ACCURATE.
CUSTOMER ACKNOWLEDGES THAT BIOBEAT USES THE INFRASTRUCTURE (SUCH AS CLOUD SERVERS AND FACILITIES) AND RELATED SERVICES OF THIRD-PARTY HOSTING PROVIDERS, SUCH AS AWS AND OTHERS TO STORE THE INFORMATION PROVIDED BY USERS OF THE BIOBEAT PRODUCTS. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, BIOBEAT CANNOT ENFORCE THESE TERMS ON ANY SUCH PROVIDERS, AND SHALL NOT HAVE ANY LIABILITY WITH RESPECT TO PARTS OF THE BIOBEAT DIGITAL SOLUTIONS THAT UTILIZE SUCH THIRD-PARTY SERVICES (SUCH AS THE HOSTING COMPONENT OF THE BIOBEAT DIGITAL SOLUTIONS).
7. No Medical Advice
The Biobeat Digital Solutions are not intended to diagnose, treat, monitor, cure, or prevent any disease, and are not intended to match or replace (a) the required consultation and/or judgment of a licensed physician in making medical decisions; (b) any services or information produced by medical or scientific diagnostic measurement devices; or (c) any monitoring by the user of the consumption of medication or of any other medical treatment. Except as expressly stated under this Section, Biobeat makes no representation or warranty regarding any parameters, data or information monitored, collected and/or displayed through any of the Digital Solutions. Without limiting the foregoing, the Customer further acknowledges that that Biobeat disclaims any warranty resulting from: (i) (a) cellular, internet and/or Bluetooth interruptions; (b) use of any Biobeat Digital Product for a period in excess of the period allowed under the Documentation; (c) use of a Patch on more than a single user; or (d) failure to use, maintain, upkeep and clean the Biobeat Products as expressly directed in the Documentation.
8. Liability Limitation
NEITHER BIOBEAT NOR A USER SHALL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, COSTS, LOSSES OR EXPENSES INCLUDING LOSS OF PROFITS, DATA AND/OR GOODWILL ARISING OUT OF, OR IN CONNECTION WITH THESE TERMS AND THE BIOBEAT DIGITAL SOLUTIONS.
EXCEPT FOR BIOBEAT’S FRAUD OR WILLFUL MISCONDUCT, AND SOLELY TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE LIABILITY OF BIOBEAT IN CONNECTION WITH THE BIOBEAT DIGITAL SOLUTIONS OR THIS AGREEMENT, FOR ALL CLAIMS IN THE AGGREGATE SHALL BE LIMITED TO THE AMOUNT PAYABLE BY THE DISTRIBUTOR TO BIOBEAT IN CONNECTION WITH THE DISTRIBUTION OF THE DIGITAL SOLUTIONS TO THE CUSTOMER DURING THE 6 MONTHS PRIOR TO THE EVENTS GIVING RISE TO THE CLAIM MADE HEREUNDER.
THE AFOREMENTIONED SHALL APPLY REGARDLESS OF WHETHER CLAIMS ARE BASED UPON CONTRACT, TORT (INCLUDING NEGLIGENCE, TO THE EXTENT PERMISSIBLE UNDER APPLICABLE LAW) OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT A PARTY HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN BIOBEAT AND THE CUSTOMER.
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9. Updates and Changes to Services
The Customer agrees that Biobeat may, without providing additional notice to the Customer, automatically install updates to the Biobeat Digital Solutions. In addition, if so required by applicable law or regulation, Biobeat may discontinue, temporarily or permanently, any feature or component of the Biobeat Digital Solutions at any time, with or without notice, without incurring any liability as a result thereof.
10. Communication
Should users have any questions regarding these Terms, or wish to report a violation of these Terms or abuse of the Biobeat Digital Solutions, or to receive assistance from Biobeat, users may contact us at: info@bio-beat.com.
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11. Alerts and Notifications
Users may receive notifications, text messages, alerts, or e-mails regarding their use of the Biobeat Digital Solutions. Users hereby agree to the receipt of such communications, and users alone shall be responsible for any messaging or data fees they may be charged by their wireless carriers.
12. Force Majeure
A party shall not be liable for any delay in performance or nonperformance hereunder (other than a payment obligation), if such performance is rendered impracticable by the occurrence of any contingency or condition beyond its reasonable control, including failures related to cellular, cloud, internet or Bluetooth connection of third party devices or providers, war (or acts of war or hostility, whether declared or undeclared), sabotage, embargo, acts of terrorism, riot or other civil commotion, failure or delay in transportation, act of any government or any court or administrative agency thereof, labor dispute or strike, accident, acts of God, fire, explosion, flood, earthquake, pandemic, or other casualty.
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13. Governing Law and Venue
Any disputes or claims arising out of or in connection with these Terms and/or any of the Biobeat Digital Solutions, will be governed by, and construed in accordance with, the laws of the State of Israel. Each user hereby irrevocably agrees that the competent courts of the Tel Aviv-Jaffa District of Israel shall have exclusive jurisdiction to settle any disputes or claims arising out of or in connection with these Terms and/or the Biobeat Digital Solutions (including any non-contractual disputes or claims). The United Nations Convention on Contracts for the International Sale of Goods shall not apply to these Terms. Furthermore, these Terms will not be governed or interpreted in any way by referring to any law based on the Uniform Computer Information Transactions Act (UCITA) or any other act derived from or related to UCITA.
14. General Terms
The headings used in these Terms are for convenience of reference only and shall not affect the interpretation or meaning of the terms and provisions of these Terms. In these Terms, the word “including” shall mean “Including without limitation”.
No modification to these Terms will be effective unless agreed to in writing by Biobeat. A failure by Biobeat to partially or fully exercise any rights or the waiver of any default of any provision of these Terms by the Customer shall not prevent a subsequent exercise of such right by us or be deemed a waiver by us of any subsequent breach by the Customer of the same or any other term of these Terms. Unless expressly provided otherwise herein, all remedies hereunder are cumulative and do not exclude any other remedies available by law.
If any provision of these Terms is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in full force and effect.
These Terms do not create any partnership, employment, agency or other relationship not herein specifically and explicitly agreed. These Terms are not intended to, and shall not, be construed to give any third party any interest or rights (including any third party beneficiary rights) with respect to, or in connection with, any agreement or provision contained herein or contemplated hereby. We may assign these Terms in whole or in part at any time without notice. Users may not assign their rights under these Terms, in whole or in part, to any third party without our prior written consent, and any attempt to do so shall be null and void.
Unless a specific agreement is signed by and between a user of the Biobeat Digital Products and us, these Terms constitute the entire and only agreement between the parties, and supersede all prior or contemporaneous agreements, representations, warranties and understandings that relate to the subject matter hereof.
Last Updated: November 2022
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