20th January 2018
ONLINE TERMS AND CONDITIONS FOR HEALTHCARE PROFESSIONALS
PLEASE READ THIS AGREEMENT CAREFULLY AS IT GOVERNS YOUR USE OF THE APPLICATION KNOWN AS TICKERFIT AND THE INNERSTRENGTH LIMITED WEBSITE (together, the “SITE”).
BY ACCESSING THE SITE, OPENING AN ACCOUNT AND/OR USING THE SERVICES ON IT YOU (“YOU”), ARE AGREEING TO FORM A CONTRACT AND AGREEING TO THE TERMS AND CONDITIONS THAT APPEAR BELOW.
IF YOU DO NOT ACCEPT THESE TERMS PLEASE DO NOT CREATE A INNERSTRENGTH LIMITED ACCOUNT OR USE THE SERVICES.
TERMS AND CONDITIONS:
1. Provision of the Service and How to Contact us
Innerstrength Limited t/a as Innerstrength Health (“Innerstrength Health”) provides an on-line cloud based application for healthcare professionals (“HCP”) which empowers them to better manage their patients’ (“Patient”) health and medical conditions by providing their Patients with personalised lifestyle interventions based on their individual and current health status (“Service(s)”).
Contact details for Innerstrength Health are as follows:
- Registered Address:106 The Hazel, Grange Hall, Rathfarnham, Dublin 16, Ireland
- Innerstrength Health Registration Number: 503051
- Email Address: email@example.com
You acknowledge that you have provided Innerstrength Health with accurate and complete registration information on your account sign-up which shall include any medical bona fides as may be reasonably requested by Innerstrength Health.
If you purchase subscriptions where a group of HCP users may access the Services, then you are accepting responsibility on behalf of all those users. Full details of how many users may access the Services, the term of the subscription with you and the costs of the same, will be provided to you on your service order form (the terms of which are hereby specifically incorporated into this Agreement) (“Service Order”). If required, you may also add licenses for additional HCP users or Patients by executing a new Service Order at any time.
You further acknowledge that it is your responsibility to update Innerstrength Health with any changes to your subscription information by e-mailing Innerstrength Health at the email address provided above. Please note that in the interests of Patient safety, Innerstrength Health reserves the right to require you to provide evidence to verify any aspect of your account and in particular, to include your status as a HCP at any time as also noted above.
If you believe that there has been a breach of security such as the disclosure, theft or unauthorised use of your user name and password (“ID”) then you must notify Innerstrength Health immediately. If Innerstrength Health reasonably believes that your ID is being used in any way which is not permitted under this Agreement, Innerstrength Health reserves the right to immediately suspend access rights on giving notice to you and to block access to the Service until the issue has been resolved to the satisfaction of Innerstrength Health.
Innerstrength Health is continually seeking to improve the Service and to ensure that all information on the Site (to include its library of instructional videos etc) (“Content”) is up to date and as accurate as reasonably possible. Accordingly, Innerstrength Health reserves the right, and at its sole discretion, to make changes to any part of the Service (including editorial or other changes) or the Content at any time and without prior notice to you.
Innerstrength Health recommends that you regularly check the Site from time to time for any updates or changes to this Agreement and/or the Service which shall become effective on posting and your continued use of the Site will mean acceptance of those updates and/or changes.
This Agreement shall apply in preference to and shall supersede any other terms and conditions of business and/or Service Order referred to or relied on by you.
2. Licence and Limited Rights to use Content
Innerstrength Health grants you a non-exclusive, non-transferable, non-assignable, revocable licence to use the Site and the Content and the Services subject to the terms and conditions of this Agreement.
The Content and all software, copyright, database rights, website design, trade and service marks and logos or names, design rights, know-how and rights relating to loss of reputation and business and all other intellectual property rights (“Intellectual Property”) in each case whether registered or not, in the Content and the Site belong to Innerstrength Health (or applicable licensors) and may not be used in any way whatsoever without the prior written consent of Innerstrength Health.
Innerstrength Health does not claim ownership of any material that you or third parties submit to the Site (and which is defined as “Your Content” under clause 4 below) and is not responsible for its content, accuracy or compliance with relevant laws or regulations. You agree that by submitting such material you grant Innerstrength Health permission via a royalty-free, perpetual, irrevocable, worldwide, non-exclusive license to display, publish and otherwise use Your Content as Innerstrength Health reasonably sees fit, and also agree that Innerstrength Health is under no obligation to display or otherwise use Your Content and that Innerstrength Health has the right to remove Your Content immediately and without prior notice to you.
For the avoidance of any doubt whatsoever, Innerstrength Health shall have the right, but not the obligation, to monitor, filter or screen Your Content. Notwithstanding the foregoing, Innerstrength Health reserves the right to edit, refuse to post, or remove Your Content at any time.
Innerstrength Health fully respects your right to privacy and has a strict policy of complying with the terms of the Irish Data Protection Acts 1988 and 2003 as well as the upcoming General Data Protection Regulation (EU 2016/679) which is to be implemented in Ireland in 2018 (together, the “Act”).
At certain times, and as a result of your interaction with the Site, Innerstrength Health may hold and process personal information obtained about you and the Patient for the purposes providing you and the Patient with the Service. By registering on the Site, you consent to this collection and use of your information and that of the Patient.
In addition, you hereby acknowledge and confirm that you have received full and explicit permission from the Patient to collect, use and store their personal (to include their sensitive data as defined under the Act) data in order to allow you and Innerstrength Health to lawfully provide the Services to the Patient. For the avoidance of any doubt whatsoever, you hereby understand and confirm that Innerstrength Health is the data processor and you, as the HCP, are the data controller (as both of those terms are defined under the Irish Data Protection Acts 1988 and 2003) in relation to the provision of the Services.
Please also note that we may use your data to send you and the Patient information about our products and/or services and, in addition, and as a result of using the Services you and the Patient may receive alerts via email/text etc. By using the Services you agree to these interactions and if at any time you do not wish to receive such information or do not wish the Patient to receive such information then please contact us at firstname.lastname@example.org and we shall desist the same – please note however that refusing to accept some alerts may hamper or completely impede your and your Patients’ use of the Services – please feel free to discuss any of these points with us at any time.
We would also add that you should be mindful that our Services can link to and collect data from third party applications (such as Apple Health and FitBit) and if such a third party application is permitted access by a Patient to their data that Innerstrength Health will not be responsible in any way for any use, disclosure or modification of such Patient data that is transmitted or accessed through the Services by any such third party application.
Innerstrength Health shall have the right to collect, use and distribute aggregated information, analysis, statistics, related benchmarking algorithms and other data generated by the Services (or derived from your use of the Services) provided, however, that we shall not disclose any such data unless such data is in an aggregated form that would not permit a third party to identify the data as associated with either you and/or a Patient.
4. Warranties and Indemnity
Innerstrength Health warrants that it will use all reasonable skill and care in the provision of the Service.
Innerstrength Health makes no warranty that the Site is free from viruses or anything else that has contaminating and/or destructive properties and it is your responsibility to adopt appropriate back-up, firewall and other precautionary security measures.
The Service is provided on an “as is” basis and all conditions and warranties or representations whether express or implied are fully excluded from this Agreement to the extent that they can be excluded as a matter of applicable law.
The Content is designed to provide general, but focused guidance on matters of healthcare interest to HCPs such as for example the 5 As, which HCPs will be familiar with (Ask, Advise, Agree, Assist, Arrange) in the provision of the Services, but such Content does not constitute professional medical or other professional advice in itself.
Equally, for Patients, the Services (to include the Content) are a means of sourcing data on their current health position in conjunction with a smartphone and wearables and sensors and by using third party applications such as Apple Health and FitBit and at no stage is any information received via the Services intended to match or exceed that of medical or scientific measurement devices as you might find in a modern hospital. Therefore, use of the Services should be seen as an accompaniment to the advice and guidance normally provided by a professional HCP to their Patient.
The Services (as well as any wearables and/or data from your smartphone and/or any third-party applications such as for example Apple Health or FitBit etc) is not meant to treat or cure any disease in and of itself and therefore, as a HCP, you should always use your own judgement and professional knowledge in evaluating the Content provided by the use of the Services. It is recommended that you consult with other HCP colleagues and other professional sources prior to (inter alia) making any judgements or any diagnosis or before providing any (for example) drug dosage advice or any advice or treatments whatsoever to Patients.
You warrant and represent that you are the owner or licensee of any content that you upload (such as videos, blogs etc), record or otherwise transmit through the Service and that you have all lawful permission to use the same and (collectively, “Your Content”).
You warrant and represent that you shall not either intentionally or recklessly publish, post, upload, record or otherwise transmit anything that: (i) infringes any third party's copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy; (ii) violates any law or statute, (iii) is defamatory, unlawfully threatening or unlawfully harassing; (iv) is profane, indecent, obscene, harmful to minors or pornographic; (v) contains any viruses or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information or property of another; or (vi) is materially false, misleading or inaccurate.
You agree not to: (1) use the Service in connection with junk mail, pyramid schemes, spamming (to include soliciting other users to become subscribers of other information services) or any duplicative or unsolicited messages, or any use of distribution lists to any person; (2) harvest or otherwise collect information about others; (3) knowingly interfere with or disrupt networks connected to the Service or violate the regulations, policies or procedures of such networks; (4) attempt to gain unauthorised access to the Service, other accounts, computer systems or networks connected to the Service, through password mining or any other means; or (6) use the Service for any illegal purposes whatsoever.
You agree to fully indemnify Innerstrength Health, its directors, officers shareholders, employees, agents and suppliers against all claims, liabilities, costs and expenses (including but not limited to legal fees) arising out of your use of the Service or the Site, the Content or Your Content or related to any breach of this Agreement.
5. Service Availability and Limitation of liability
Innerstrength Health shall use all reasonable endeavours to make the Service available to you but shall not be liable in the event of any interruption of the Service. Innerstrength Health reserves the right to modify, withdraw, suspend or restrict the availability of the Service or any part of it.
The Service is provided solely for your use and you are not permitted to resell (meaning sub-licence) or attempt to resell the Service to any third party.
To the maximum extent permitted by law, Innerstrength Health shall not be liable to you whether in contract, tort (including negligence) or otherwise, for:
· any indirect, consequential or special loss or damage whatsoever;
· any loss of profit, loss of anticipated savings, loss of business or reputation, loss of goodwill, loss of data or other such financial or business loss or damage; or
· any other loss or damage (including any direct damage) in an amount exceeding €50.00 (fifty Euro) in the 12 months preceding the date on which such liability arose.
Under no circumstances will Innerstrength Health be liable under this Agreement in respect of any fault which is the responsibility of any third party service provider such as consumer wearables and smartphones etc or in respect of third party applications such as Apple Health or FitBit etc.
Notwithstanding the above provisions of this clause Innerstrength Health’s liability will not be limited in the case of fraud or for death or personal injury caused by the negligence of Innerstrength Health.
Please note in particular that the Services are a technology to support Patient self-management and all Content provided as part of the Services and all data provided to you as a result of Patient interaction is purely for information and support purposes only, and the Services are not a remote monitoring type device or service.
6. Pricing and Refund Policy
All products sold (as applicable) and the Services provided shall be charged in Euros and shall be subject to Irish Value Added Tax as and where applicable and at the then prevailing rate and payment time all as noted on your Service Order.
Nothing contained in the Site amounts to an offer to supply goods or services, and any order from you can be refused at the sole discretion of Innerstrength Health and without providing a reason.
If you dispute any charge or amount on any invoice and such dispute cannot be resolved promptly through good faith discussions between us then you shall pay the amounts due under this Agreement less the disputed amount, and we shall proceed in good faith to promptly resolve such disputed amount. An amount will be considered disputed in good faith if (i) you deliver a written statement to us on or before the due date of the invoice, describing in detail the basis of the dispute and the amount being withheld by you, (ii) such written statement represents that the amount in dispute has been determined after due investigation of the facts and that such disputed amount has been determined in good faith, and (iii) all other amounts due from you that are not in dispute have been paid as and when required under this Agreement
During the term of this Agreement, each party will regard any information provided to it by the other party and designated in writing as proprietary or confidential to be confidential (“Confidential Information”). Confidential Information shall also include information which, to a reasonable person familiar with the disclosing party’s business and the medical industry in which it operates, is of a confidential or proprietary nature. The receiving party shall hold in confidence, and shall not disclose (or permit or suffer its personnel to disclose) any Confidential Information to any person or entity except to a director, officer, employee, outside consultant, or advisor (collectively “Representatives”) who have a need to know such Confidential Information in the course of the performance of their duties for the receiving party and who are bound by a duty of confidentiality no less protective of the disclosing party’s Confidential Information than this Agreement. The receiving party and its Representatives shall use such Confidential Information only for the purpose for which it was disclosed and shall not use or exploit such Confidential Information for its own benefit or the benefit of another without the prior written consent of the disclosing party. Each party accepts responsibility for the actions of its Representatives and shall protect the other party’s Confidential Information in the same manner as it protects its own valuable confidential information, but in no event shall less than reasonable care be used. A receiving party shall promptly notify the disclosing party upon becoming aware of a breach or threatened breach hereunder, and shall cooperate with any reasonable request of the disclosing party in enforcing its rights.
Information will not be deemed Confidential Information if such information: (i) is known prior to receipt from the disclosing party, without any obligation of confidentiality; (ii) becomes known to the receiving party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing party; (iii) becomes publicly known or otherwise publicly available, except through a breach of this Agreement; or (iv) is independently developed by the receiving party without use of the disclosing party’s Confidential Information. The receiving party may disclose Confidential Information pursuant to the requirements of applicable law, legal process or government regulation, provided that it gives the disclosing party reasonable prior written notice to permit the disclosing Party to contest such disclosure, and such disclosure is otherwise limited to the required disclosure.
Notwithstanding any other provision of this Agreement, both parties acknowledge that any use of the disclosing party’s Confidential Information in a manner inconsistent with the provisions of this Agreement may cause the disclosing party irreparable and immediate damage for which remedies other than injunctive relief may be inadequate. Therefore, both parties agree that, in addition to any other remedy to which the disclosing party may be entitled at law or equity, the disclosing party shall be entitled to an injunction or injunctions (without the posting of any bond and without proof of actual damages) to restrain such use in addition to other appropriate remedies available under applicable law.
8. Links and Notices
The Site may contain links to other websites, applications and resources, however Innerstrength Health is not responsible and shall not be held liable for the availability or content or accuracy of these resources. No endorsement or approval of any such third party websites, their advice, opinions, accuracy, information, products or services is expressed or implied by any information on our Site and where we provide such links it is done for your convenience only and those of your Patients and shall be at your own risk and we shall not be liable for any damages or losses arising in connection therewith. We recommend you make yourself familiar with any third party providers and their terms and conditions of service before signing up to receive any other third party services and/or products.
All notices shall be given to Innerstrength Health via e-mail at email@example.com or by post to Innerstrength Health’s address as set out under clause 1 of this Agreement; or to you at the e-mail or land address you provide in your registration information.
9. Term and Termination
This Agreement shall become binding on you once you access the Site and begin using the Services and it shall continue as set out on your Service Order.
This Agreement and your access to the Service may be terminated by Innerstrength Health at any time or by written notice if (in the sole and reasonable opinion of Innerstrength Health) you are in breach of this Agreement and the breach is not properly remedied (which shall also be at the sole discretion of Innerstrength Health) within the period of 7 days after written notice of the breach has been given to you.
Termination of this Agreement will be a non-exclusive remedy for breach and will be without prejudice to any other right or remedy. Upon termination of this Agreement, each party shall promptly return or destroy all Confidential Information of the other party in its possession. Within thirty (30) days following termination, you may retrieve Your Content in accordance with established and reasonable system access procedures. After such period, we will have no further obligation to store and/or make available Your Content and may delete the same
For the avoidance of any doubt, in the event of termination of this Agreement by us for cause, the Services shall not be made available to you or your Patient and you will immediately pay the unexpired portion of your subscription remaining.
10. Dispute Resolution
Should there be any dispute arising out of this Agreement the parties shall use every effort to agree it informally, however, if that fails to resolve the matter then on the written request of any party it can be referred to an independent mediator, the identity of whom shall be agreed between the parties. In the event the mediator cannot be agreed by the parties within 14 days of one party’s written request to appoint a mediator, the Dublin office of the International Centre for Dispute (“ICDR”) Resolution shall appoint a single independent mediator in accordance with the rules of the ICDR. The costs of the mediation shall be shared equally and the place of conduct of the mediation shall be Dublin, Ireland. In the event that within a period of 30 days of the appointment of a mediator, the mediator is unable to resolve the dispute, the parties may submit the matter to the exclusive jurisdiction of the Irish Courts.
No failure or delay on the part of Innerstrength Health relating to the exercise of any right, power, privilege or remedy provided under this Agreement shall operate as a waiver of such right, power, privilege or remedy or as a waiver of any proceeding or succeeding breach by the other party to this Agreement.
You grant us the right to use your business or company name and logo as a reference for marketing or promotional purposes on our website and in other public or private communications with our existing or potential customers, subject to your standard trademark usage guidelines as provided to us from time-to-time. We shall not list you if you do not wish to be listed and you can email us at any time to inform us of the same.
Innerstrength Health shall be under no liability to you in respect of anything, which notwithstanding this provision, may constitute a breach of this Agreement arising by reason of force majeure which includes Act of God and failure of third party delivery agents.
This Agreement contains the full and complete understanding between the parties and supersedes and replaces all prior arrangements, terms, representations and understandings whether written or oral relating to the subject matter of this Agreement and neither you nor Innerstrength Health shall be bound by any variation or addition to this Agreement unless agreed in writing and signed by duly authorised representatives from both sides.
If any parts of this Agreement are held to be invalid, the remaining parts of the Agreement will continue to be valid and enforceable.
In the event of any inconsistency between the terms of this Agreement, the Site, and/or any other third party terms and conditions the terms of this Agreement shall prevail.
This Agreement and any disputes arising hereunder shall be governed by and construed in accordance with the laws of Ireland and be subject to the exclusive jurisdiction of the Irish courts.