DATALPULT PROVIDES A SICKNESS PREDICTION TECHNOLOGY THAT HELPS PREVENT ILLNESS. THIS IS A LEGAL AND BINDING CONTRACT (the “Agreement") BETWEEN YOU (“you" or “your") AND DATAPULT INC OF 235-17 INDUSTRIAL PARKWAY SOUTH, AURORA, ONTARIO, L4G 3V5 (“Datapult," “we," “our," or “us") THAT GOVERNS YOUR ACCESS TO AND USE OF THE WEBSITE LOCATED AT WWW.ACHU.HEALTH, ACHU MOBILE APPLICATIONS, IMBEDDED COMPUTER CODE AND TECHNOLOGY, USER INTERFACES, AND ALL INFORMATION, SERVICES, SOCIAL MEDIA PAGES, SOFTWARE FUNCTIONALITY, AND/OR MATERIALS LOCATED THEREON (collectively referenced herein as the “Properties"). DATAPULT WILL LICENSE TO YOU THE RIGHT TO USE THE PROPERTIES ON CONDITION THAT YOU AGREE TO ALL TERMS AND CONDITIONS SET FORTH IN THE AGREEMENT. YOU ACCEPT THESE TERMS AND CONDITIONS BY ACCESSING AND USING ANY PART OF DATAPULT’S PROPERTIES. IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS SET FORTH HEREIN, YOU ARE PROHIBITED FROM ACCESSING AND USING THE PROPERTIES.
1. NO MEDICAL ADVICE.
Any material, analyses, suggestions, text, tips, graphics, images, and any other information contained on the Properties (“Content") are for informational and entertainment purposes only. The accuracy of the data collected and presented through the Properties is not intended to match that of medical devices or scientific measurement devices. The Content is not intended to diagnose, treat or a cure any disease, and is not a substitute for professional medical advice. Consult with your health care provider(s) with any questions you may have concerning a medical condition, diagnosis, treatment options, or any other medical advice. In case of a medical emergency, call 911 for assistance. You acknowledge and agree to use the Properties at your own risk.
2. LICENSE GRANT.Subject to your compliance with the terms and conditions herein, Datapult provides to you a revocable, limited, royalty-free, non-exclusive, non-transferable, and non-sublicensable license to (i) access and use the Properties; (ii) access and view content associated with the Properties; (iii) access and use the software and mobile applications provided by Datapult; and (iv) use the software that is imbedded into smartwatches, wearables, mobile phones, or other devices. This license is provided solely for your personal, non-commercial use and enjoyment as permitted by the terms herein.
Datapult reserves and retains all rights not expressly granted to you under this Agreement. You are prohibited from using the Properties in any manner not expressly and unambiguously authorized by the terms and conditions of this Agreement. If you do not agree to any of the terms or conditions herein, you may not access or use the Properties.
Datapult may modify or discontinue any feature, component, or content of the Properties. Datapult is not liable to you for any modification or discontinuance of any feature, component, or content of the Properties. Datapult reserves the right to push software updates, which may be automatically downloaded and installed without prior notice.
3. RESTRICTIONS TO YOUR USE
You may not reproduce, reverse engineer, copy, or circumvent the Properties to obtain or attempt to obtain any data, calculations, materials, documents, or other information through any means not explicitly granted by Datapult. You may not attempt to gain unauthorized access to any portion or feature of the Properties or any other systems, networks, or servers connected to the Properties.
You may not test the vulnerability of the Properties, or networks or servers connected to the Properties, nor breach any associated security or authentication measures. You may not access, acquire, copy, modify, reproduce, store, transmit, license, sublicense, sell, create derivative works of, or otherwise exploit the Properties in any manner not explicitly provided in this Agreement.
Further, you may not (i) reverse engineer Datapult’s data analyses or underlying technology; (ii) interfere with the function or maintenance of the Properties; (iii) use, copy, imitate or duplicate trademarks, copyrights, trade dress or other identifying features or qualities of the Properties; or (iv) otherwise use the Properties in an unlawful manner. In addition, you agree to abide by all applicable local, state, federal and international laws and regulations with respect to your use of the Properties.
By downloading, accessing, or using the Properties, you represent and warrant that: (i) you are at least 13 years of age (or any higher minimum age as required by the jurisdiction where that person resides) or, if you are under the age of 13, you have obtained the legal consent of your parent or legal guardian to enter into these Terms and Conditions; (ii) you will comply with the terms and conditions of this Agreement; (iii) none of your Postings will violate any right(s) of a third parties including, without limitation, any privacy, publicity, intellectual property, confidentiality and/or employment rights; (iv) you will not attempt to use another user’s account without authorization, or impersonate any person or entity; (v) you will not solicit, or collect information of other users for any reason whatsoever, including, without limitation, for sending unsolicited communications; (vi) you will not post, advertise, or promote products or services commercially, or upload any content that is advertising, promotional material, junk mail, spam, or a contest or sweepstake, or that furthers or promotes criminal activity; and (vii) you will not use the Properties in any manner that, in our sole discretion, is objectionable or restricts or inhibits any other person from using or enjoying the Properties, or which may expose us or our users to any harm or liability of any type.
Any breach of the foregoing representations and warranties will be considered a substantial breach of this Agreement and will entitle Datapult to immediately terminate this Agreement and/or seek any and all remedies available at law or equity.
5. CREATING AN ACCOUNT
Full use of the Properties requires that you create an account by providing us with information such as your full name, a valid email address, and a password. You are responsible for all activity associated with your account. Datapult is not responsible or liable for any losses or damages caused by your failure to maintain the confidentiality of your account credentials. Please contact us if you discover or suspect any security breach related to your use of the Properties
6. MOBILE DEVICES.
The Properties will provide interfaces and services available to you on your smartwatches, electronic wearables, mobile phones and/or other mobile devices (the “Mobile Services"). Mobile Services may incorporate, for example, the use of data and short message service (“SMS Service"). Your mobile carrier’s messaging, data, and other rates and fees will apply to your use of the Mobile Services. You may also be prohibited, restricted, or prevented by your mobile carrier from using certain Mobile Services. You are solely responsible for any costs and/or restrictions associated with the Mobile Services.
7. LOCATION-BASED SERVICES.
Datapult may use GPS signals, triangulation, and other information collected and used by your mobile device. The use of this information is needed for some aspects of our technology to provide a more accurate sickness prediction. If you choose not to allow access to your location information, your use of the Properties may be affected.
9. PROPRIETARY RIGHTS.
Datapult’s Properties and technology are protected by copyright, trademark, trade secret, patent, intellectual property, and other laws of the United States and foreign countries.
This Agreement provides only a limited non-exclusive license for you to access and use the Properties in accordance with the terms of this Agreement. Datapult transfers no intellectual property interest, title or ownership to you or anyone else in connection with your use of the Properties. The visual appearance of the Properties, including the graphics, design, expression, and underlying technology and computer code, is the exclusive property of Datapult. You agree not to remove, change or obscure any copyright, trademark, service mark, or other proprietary rights notices
10. THIRD PARTY CONTENT.
Datapult may permit linking, provide access to, or otherwise display third-party content that is not subject to Datapult’s control, including for example promotions, advertisements, websites, apps, services and resources (collectively, “Third Party Content"). Datapult does not review Third Party Content and is not responsible for the products, services, or other content that is available from third parties. Third Party Content does not imply Datapult’s endorsement of any third party, content, website, network, or page, or the products or services provided by any third party.
Your interactions with third parties – through Third Party Content or otherwise – are solely between you and such third parties. Datapult expressly disclaims and shall have no liability or responsibility for any Third Party Content appearing on the Properties; this includes, without limitation, any allegations concerning intellectual property infringement, or the purported accuracy of any content, materials, or information, including claims concerning products or services provided by, available through, or advertised by the third parties.
You will indemnify and hold harmless Datapult or its officers, directors, employees, affiliates, agents, licensors, and contractors from and against any claims, suits, actions, demands, disputes, allegations, or investigations brought by any third party, governmental authority, or industry body, and all liabilities, damages, losses, costs, and expenses, including without limitation reasonable attorneys’ fees, arising out of or concerning (i) your access to or use of the Properties; (ii) your Postings; (iii) your breach or alleged breach of any warranties made by you hereunder or your violation of any other provision of these terms; or (iv) your violation of any law or the rights of a third-party. We reserve the right to assume control of the defense of any third-party claim that is subject to indemnification by you, in which event you will cooperate with us in asserting any available defenses.
THE PROPERTIES ARE PROVIDED ON AN “AS-IS" BASIS WITHOUT ANY WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, DATAPULT MAKES NO REPRESENTATIONS OR WARRANTIES CONCERNING THE PROPERTIES FOR ANY PURPOSE, AND HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT, ANY OTHER IMPLIED WARRANTY UNDER THE UNIFORM COMPUTER INFORMATION TRANSACTIONS ACT AS ENACTED BY ANY STATE, AND/OR ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. DATAPULT MAKES NO REPRESENTATIONS OR WARRANTIES THAT THE PROPERTIES WILL MEET YOUR REQUIREMENTS, OPERATE SECURELY, OR BE AVAILABLE ERROR-FREE OR UNINTERRUPTED. DATAPULT MAKES NO WARRANTY CONCERNING THE QUALITY, ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS, OR RELIABILITY OF THE PROPERTIES. THEREFORE, YOU ASSUME THE ENTIRE RISK REGARDING THE QUALITY AND/OR PERFORMANCE OF THE PROPERTIES, AND YOUR USE THEREOF.
13. LIMITATION OF LIABILITY.
NEITHER DATAPULT, ITS PARTNERS, SUPPLIERS, OR LICENSORS, NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE PROPERTIES SHALL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES; THIS INCLUDES, FOR EXAMPLE, ANY CLAIMS FOR LOST PROFITS, EXPECTATION DAMAGES, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE, SYSTEM FAILURE, OR THE COST OF SUBSTITUTE SERVICES ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE PROPERTIES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT DATAPULT 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.
YOU EXPRESSLY ABSOLVE AND RELEASE DATAPULT FROM ANY CLAIM OF HARM RESULTING FROM A CAUSE BEYOND DATAPULT’S CONTROL, INCLUDING WITHOUT LIMITATION FAILURE OF EQUIPMENT OR COMMUNICATIONS LINES, CONNECTION DEVICES, COMPUTER VIRUSES, UNAUTHORIZED ACCESS, THEFT, OPERATOR ERRORS, NATURAL DISASTERS, STRIKES, LABOR ISSUES, WARS OR GOVERNMENTAL RESTRICTIONS.
IN NO EVENT WILL DATAPULT’S TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE PROPERTIES EXCEED THE AMOUNTS YOU HAVE PAID TO DATAPULT FOR USE OF THE PROPERTIES OR ONE HUNDRED U.S. DOLLARS ($100 U.S.) IF YOU HAVE NOT HAD ANY PAYMENT OBLIGATIONS TO DATAPULT. THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN DATAPULT AND YOU. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
The Properties may enable you access to upload, post, store, share, send, or display information – for example, the submission of illness reports or symptoms – on communication portals, information exchanges, blogs, message boards, comment areas, questionnaires, chat rooms, and other interactive features and functionality (collectively, “Forums").
By submitting content or information of any type (collectively referenced herein as a “Posting(s)") to the Properties or by otherwise using the Properties to transmit or display your data, you automatically grant to Datapult a non-exclusive, transferable, sub-licensable, worldwide, royalty-free license to use, copy, modify, publicly display, publicly perform, reproduce, translate, create derivative works from, and distribute your content, in whole or in part, including your name and likeness, in any media.
You are responsible for your content. You agree that by using the Properties you will not upload, post, display, or transmit any materials on the Properties’ Forums that: a) interferes with or disrupts the Properties or the operation or use thereof, such as computer viruses; b) defames, harasses, abuses, stalks, threatens, intimidates, or in any way violates the rights of others; c) infringes, misappropriates, or violates a third party’s patent, copyright, trademark, trade secret, moral rights, or other intellectual property rights, or rights of publicity or privacy; d) violates or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; e) is fraudulent, false, misleading, or deceptive; (f) is defamatory, obscene, pornographic, vulgar, or offensive; g) promotes discrimination, bigotry, racism, hatred, harassment, or harm against any individual or group; h) is violent or threatening, or promotes violence or actions that are threatening to any person or entity; or (g) promotes illegal or harmful activities or substances.
Datapult does not endorse or oppose any opinion or the reliability of any advice, statement, or other information displayed, uploaded, or distributed by you or any other user. Datapult is not responsible for monitoring or policing Postings and encourages all of its users to use reasonable discretion and caution in evaluating or reviewing any Postings.
Datapult. reserves the right to delete, preserve, disclose or take other action with respect to Postings (or parts thereof) to: (i) enforce this Agreement; (ii) comply with relevant laws, regulations, legal processes or governmental requests; (iii) detect, prevent, or otherwise address fraud, security or technical issues; (iv) respond to user support requests or reports of violations; and/or (v) protect the rights, property or safety of Datapult, its users and the public. If you violate this Agreement, Datapult may issue you a warning or terminate your use of the Properties. If you become aware of any Posting(s) that violate this Agreement, you may contact Datapult as provided above.
15. COPYRIGHT; DESIGNATED AGENT FOR NOTIFICATION OF CLAIMS OF INFRINGEMENT.
Datapult respects the intellectual property of others, and it asks its users to do the same. Accordingly, it is Datapult’s policy to respond to a notice of alleged infringement that complies with U.S. Copyright Law, and in particular, the Digital Millennium Copyright Act (“DMCA" available at http://www.copyright.gov).
Reporting intellectual property infringement is a serious matter with legal consequences. Any person who knowingly and materially misrepresents that material or activity is infringing could be liable for damages pursuant to section 512(f) of the DMCA or similar laws in other jurisdictions or countries. Accordingly, if you are not sure whether material available online infringes your copyright, we suggest that you first contact an attorney. You acknowledge that if you fail to comply with all of the notice requirements below, your copyright notice may not be valid.
Responses to claims of intellectual property infringement may include removing or disabling access to content or material claimed to be the subject of infringing activity and/or terminating yours or other’s rights to access and use the Properties. You acknowledge that you may be liable for damages, including attorneys’ fees and costs, if you materially misrepresent that a work or activity is infringing your rights.
If Datapult terminates or suspends a user’s access to or use of the Properties, Datapult will make a good-faith attempt (as warranted) to contact the person who posted the content so that they may make counter notification pursuant to applicable laws. It is Datapult’s policy to document all notices of alleged infringement upon which Datapult decides to take action. As with all legal notices, a copy of the notice may be sent to one or more third parties who may make such notice available to the public. If you believe that one or more of your works have been copied in a way that constitutes copyright infringement, please provide a written notice of your claim of copyright infringement that is directed to Datapult’s designated agent as specified below along with the following information:
∙ A signature of a person authorized to act on behalf of the owner of the copyright interest that is allegedly infringed;
∙ A description, in reasonable detail (including any applicable URL address), of the copyrighted work that you claim has been infringed, or if multiple copyrighted works are involved, a representative list of the works that you allege are infringed.
∙ A description, in reasonable detail, of the infringed material and where such material is located on the Properties;
∙ Your physical address (where you can receive mail), telephone number, and e-mail address;
∙ Both of the following statements: “I hereby state that I have a good faith belief that the disputed use of the copyrighted material is not authorized by the copyright owner, its agent, or the law (e.g., as a fair use)."; and “I hereby state that the information in this Notice is accurate and, under penalty of perjury, that I am the owner, or authorized to act on behalf of the owner, of the copyright or of an exclusive right under the copyright that is allegedly infringed."
∙ Designated Agent: CEO, datapult Inc. 235-17 Industrial Parkway South, Aurora, Ontario, L4G 3V5; email@example.com)
Your reviews, testimonials, or other feedback concerning Datapult, the Properties, or other Datapult services will be deemed to include a royalty-free, perpetual, irrevocable, transferable, sublicensable and non-exclusive right and license to Datapult. Datapult, at its own discretion, may adopt, publish, reproduce, disseminate, transmit, distribute, copy, use, create derivative works from, and/or display (in whole or in part) your feedback worldwide in any known or later-developed media.
17. ENFORCEMENT AND WAIVER.
Any breach of this Agreement, including, for example, violations or infringement of Datapult’s intellectual property rights, may cause significant injury to Datapult. Datapult aggressively defends its rights and will seek redress in both law and equity in the event of any breach, threatened or actual, of this Agreement. If the injury is irreparable or not quantifiable in monetary damages, Datapult would not have an adequate remedy at law and shall be entitled to a preliminary or permanent injunction, or other appropriate equitable relief, from a court of competent jurisdiction.
Datapult’s failure to enforce any right or provision of these Terms will not be considered a waiver of such right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Datapult. Except as expressly set forth herein, the exercise by either party of any remedies it may have will be without prejudice to its other remedies under the Agreement or otherwise.
18. GOVERNING LAW AND DISPUTE RESOLUTION.
This Agreement has been made in and will be construed and enforced in accordance with the laws of the State of New York regardless of conflict of laws principles. You agree to personal jurisdiction and venue in the State of New York, New York County and waive any objection to such jurisdiction or venue. You agree to waive your right to a trial by jury.
Any claim against Datapult must be brought within one (1) year after the cause of action arises, or such claim or cause of action is forever barred. In any legal proceeding brought by Datapult, Datapult shall have the right to seek and be awarded all reasonable attorneys’ fees and costs in addition to any other relief, at law or in equity, to which Datapult may be entitled.
We always wish to address disputes without resorting to legal action. Before filing a claim against Datapult, you agree to try to resolve your dispute with Datapult in good faith. If not resolution can be reached, either party may proceed to formal dispute resolution.
Prior to filing a lawsuit, you and Datapult agree to resolve disputes through final and binding arbitration. The American Arbitration Association (AAA) will administer the arbitration under its Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes. The arbitration will be held in the New York, New York, your state of residence, or any other location we agree to.
Datapult may file a suit solely for injunctive relief to stop unauthorized use or abuse of its products, services, or infringement of intellectual property rights (for example, trademark, trade secret, copyright or patent rights) without first engaging in arbitration or the informal dispute-resolution process described above.
You may not bring any claims as a plaintiff or member of a class, consolidated, or representative action. Class arbitrations, class actions, or case consolidations are not allowed under the Agreement.
By clicking “I ACCEPT," you agree to the terms herein and become a party to this Agreement. Either party may voluntarily terminate this Agreement without cause, but it shall terminate automatically if you fail to comply with its terms and conditions. Datapult may in its sole discretion terminate this Agreement with or without notice to you, and for any or no reason. Upon termination of this Agreement, any and all right(s) to use the Properties shall immediately cease. Sections 2-4, 9-21 will survive the termination of this Agreement.
If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, the invalid or unenforceable provision will be enforced to the maximum extent permissible, or will be deemed superseded by one or more valid, enforceable provisions that closely match the intent of the original provision. A provision that is held invalid, unenforceable, or that is subsequently superseded by one or more valid provisions will have no bearing on the remaining terms and conditions of the Agreement, which shall remain valid, binding, and fully enforceable.
21. MISCELLANEOUS PROVISIONS.
You may not assign, delegate, or transfer the rights or obligations under this Agreement, by operation of law or otherwise, without Datapult’s prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null. Datapult may freely assign or transfer its rights and obligations under this Agreement without restriction. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their successors, and permitted assigns.
Datapult may update and/or modify the terms and conditions of this Agreement at any time, and may do so without advance notice to you. Each time you access the Properties, you acknowledge that you have read, understood, and agreed to be bound by the Agreement in effect at the time of your access. Accordingly, please review the terms and conditions found at this location on a periodic basis.
If you have any questions regarding this Agreement and/or the Properties, please contact achu health at Attention: Michael Morra; firstname.lastname@example.org