Terms of Service
HOLTER KIT PURCHASE AND USE TERMS OF SERVICE
IMPORTANT – READ CAREFULLY. THESE TERMS OF SERVICE (“TOS”) ARE A LEGAL AGREEMENT BETWEEN YOU AND BIOTEL HOLTER DIRECT, LLC AND ITS AFFILIATES (COLLECTIVELY, “BIOTELEMETRY, “WE,” “US,” OR “OUR”) FOR THE PURCHASE AND USE OF THE EPATCH™ EXTENDED HOLTER MONITORING KIT AND ANY OF ITS COMPONENTS AND ACCESSORIES SOLD BY BIOTELEMETRY (“EQUIPMENT”) AND ASSOCIATED SERVICES PROVIDED BY CARDIONET, LLC (AN AFFILIATE OF BIOTELEMETRY) (TOGETHER WITH THE EQUIPMENT, A “SYSTEM”) AVAILABLE ON THE WEBSITE WHICH REFERENCES THESE TOS (THE “WEBSITE”). THE WEBSITE AND THE SYSTEM IS COLLECTIVELY THE “SERVICE.” BY AGREEING TO THESE TOS OR BY ACCESSING OR OTHERWISE USING THE SERVICE, YOU AGREE TO BE BOUND BY THESE TOS. IF YOU DO NOT AGREE TO THESE TOS, THEN DO NOT ACCESS OR USE THE SERVICE.
WHEN YOU INDIVIDUALLY ACCEPT THESE TOS, YOU AGREE TO THEM ON YOUR INDIVIDUAL BEHALF AND ON BEHALF OF THE ENTITY OR ORGANIZATION BY WHICH YOU ARE EMPLOYED OR RETAINED AND FOR WHOSE BENEFIT YOU ARE USING THE SERVICE (“ORGANIZATION”). YOU REPRESENT AND WARRANT THAT YOU (A) HAVE READ AND UNDERSTAND THESE TOS, (B) ARE OF A LEGAL AGE TO ENTER INTO A BINDING AGREEMENT, AND (C) ARE AUTHORIZED BY THE ORGANIZATION TO AGREE TO THESE TOS ON ITS BEHALF. REFERENCES HEREIN TO “YOU” SHALL MEAN “YOU AND/OR ORGANIZATION.”
Note that additional terms that are specific to a particular aspect of the Service may be set forth in connection with the use of that particular aspect of the Service. You may be required to agree to them as a condition of accessing or using aspects of the Service. In the event of a conflict between other additional terms, on the one hand, and these TOS, on the other hand, these TOS shall control to the extent of the conflict.
BY AGREEING TO THESE TOS, YOU UNDERSTAND AND AGREE THAT YOU ARE WAIVING YOUR RIGHT TO A JURY TRIAL AND TO PARTICIPATING IN A CLASS ACTION. SEE SECTIONS 16.4 AND 16.5.
By agreeing to these TOS, you represent and warrant to us that: (a) you personally are an individual who is at least 18 years old and located in the United States; (b) you have not previously been suspended or removed from using the Service; and (c) your use of the Service is in compliance with all applicable laws and regulations.
- Our Medical Disclaimers and Your Related Representations and Warranties
THE SYSTEM AND DATA RECORDED BY THE SYSTEM (“SYSTEM DATA”) IS NOT A SUBSTITUTE FOR YOUR PROFESSIONAL JUDGMENT IN DIAGNOSING AND TREATING PATIENTS. NEITHER BIOTELEMETRY NOR THE SYSTEM, SYSTEM DATA, OR REPORTS GIVES MEDICAL ADVICE OR PROVIDES MEDICAL OR DIAGNOSTIC SERVICES. RELIANCE UPON THE SYSTEM, SYSTEM DATA, OR REPORTS BY YOU IS SOLELY AT YOUR OWN RISK. YOU ACKNOWLEDGE AND AGREE THAT BIOTELEMETRY IS IN NO WAY RESPONSIBLE FOR THE USE OF ANY PHARMACOLOGICAL, MEDICAL, LEGAL, OR SIMILAR INFORMATION CONTAINED IN, ENTERED INTO, OR USED IN CONNECTION WITH THE SYSTEM, SYSTEM DATA, OR REPORTS, AND YOU, AS APPLICABLE, SHOULD VERIFY THE ACCURACY OF THE SYSTEM DATA AND REPORTS AND COMPLETENESS OF SUCH INFORMATION WHENEVER NECESSARY TO DO SO FOR PROVIDING HEALTH CARE SERVICES. YOU ACKNOWLEDGE AND AGREE THAT THE USE OF THE SYSTEM, SYSTEM DATA, OR REPORTS BY YOU FOR ANY PURPOSE RELATED TO PATIENT CARE SHOULD BE UNDER THE SUPERVISION OF A HEALTH CARE PROFESSIONAL.
YOU AGREE TO PROVIDE ALL LEGALLY REQUIRED DISCLOSURES AND ADVISE ALL PATIENTS TO WHOM YOU PROVIDE THE EQUIPMENT OF THE RISKS OF USING THE EQUIPMENT. AS BETWEEN BIOTELEMETRY AND YOU, YOU SHALL BE SOLELY RESPONSIBLE AND LIABLE FOR YOUR TREATMENT AND CARE OF PATIENTS, INCLUDING ALL RESPONSIBILITY FOR PERSONAL OR PSYCHOLOGICAL INJURY OR LOSS OF LIFE. YOU ACKNOWLEDGE AND AGREE THAT BIOTELEMETRY IS NOT ENGAGED IN THE PRACTICE OF MEDICINE AND THAT BIOTELEMETRY IS NOT DETERMINING APPROPRIATE MEDICAL OR OTHER USE OF THE SERVICE.
YOU REPRESENT AND WARRANT THAT YOU WILL PROVIDE TO ALL PATIENTS TO WHOM YOU PROVIDE THE EQUIPMENT WITH THE CONTENTS OF THE PACKAGE IN WHICH THE EQUIPMENT WAS SHIPPED, INCLUDING A COPY OF THE TERMS AND CONDITIONS IN THE PACKAGE.
YOU REPRESENT AND WARRANT TO US THAT YOUR (A) FACILITY IS APPROPRIATELY LICENSED, CERTIFIED, APPROVED, AND/OR ACCREDITED TO APPLY THE EQUIPMENT TO PATIENTS; (B) YOUR APPLICATION OF THE EQUIPMENT TO PATIENTS COMPLIES WITH APPLICABLE LAW; AND (C) EMPLOYEES, CONTRACTORS, REPRESENTATIVES, AND AGENTS HAVE LEGALLY REQUIRED AND APPROPRIATE LICENSING, PERMISSIONS, QUALIFICATIONS, AND/OR TRAINING TO APPLY THE EQUIPMENT TO PATIENTS. THE ORGANIZATION IS RESPONSIBLE FOR AND ASSUMES LIABILITY WITH RESPECT TO THE ACTS AND OMISSIONS OF ITS EMPLOYEES, CONTRACTORS, REPRESENTATIVES, AND AGENTS UNDER THESE TOS WITH RESPECT TO THE APPLICATION AND USE OF THE EQUIPMENT TESTS AS THOUGH SUCH ACTS OR OMISSIONS WERE THOSE OF THE ORGANIZATION. WE DISCLAIM ALL RESPONSIBILITY AND LIABILITY WITH RESPECT TO YOUR APPLICATION AND USE OF THE EQUIPMENT. TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, YOU AGREE TO DEFEND, INDEMNIFY, AND HOLD HARMLESS BIOTELEMETRY, ITS PARENT, SUBSIDIARIES AND AFFILIATES, AND ITS AND THEIR RESPECTIVE LICENSORS, OFFICERS, DIRECTORS, AGENTS, EMPLOYEES, AND REPRESENTATIVES AND ANY PARTY ACTING ON BIOTELEMETRY’S BEHALF (“BIOTELEMETRY INDEMNITEES”) FROM AND AGAINST ALL CLAIMS FOR LIABILITY ARISING FROM OR RELATED TO YOUR ACTS AND OMISSIONS.
- Orders and Payments
3.1 Payments. Fees are charged for purchases of the System through the Website. Before you pay any fees, you will have an opportunity to review and accept the fees that you will be charged. All fees are non-refundable, to the fullest extent permitted under applicable law. Prices and availability of Equipment are subject to change without notice. If BioTelemetry changes the prices and fees to purchase a System, including by adding additional fees or charges, BioTelemetry will display the price and fees. BioTelemetry or its payment processor will charge the payment method you specify at the time of purchase. You authorize BioTelemetry to charge all sums as described in these TOS, for the Systems you select, to that payment method. If you pay any fees with a credit card, BioTelemetry may seek pre-authorization of your credit card account prior to your purchase to verify that the credit card is valid and has the necessary funds or credit available to cover your purchase. BioTelemetry reserves the right to revoke any stated offer and to correct any errors, inaccuracies or omissions including after an order has been submitted and whether or not the order has been confirmed and your credit card charged. If your credit card has already been charged for the purchase and we cancel your order, BioTelemetry will issue a credit to your credit card account in the amount of the charge. Individual bank policies will dictate when this amount is credited to your account.
3.2 Order Rejection. We reserve the right to reject any order you place with us, and/or to limit quantities on any order, without giving any reason. Your receipt of an electronic or other form of order confirmation does not signify our acceptance of your order, nor does it constitute confirmation of our offer to sell. If we reject your order, we will attempt to notify you using the e-mail address you have given us with the order. Your payment card will normally not be charged if we reject an order, but we will process a refund if the charge has been made against your payment card.
3.3 System Descriptions. We attempt to be as accurate as possible in posted System descriptions and prices on the Website. However, we do not warrant that descriptions or other content on the Website are accurate, complete, reliable, current, or error-free. You agree that the Equipment we ship to you may be new or refurbished.
3.4 Prices. Prices for the System(s) include packaging for domestic shipment, and are exclusive of any other amounts including without limitation fees for export, special packaging, transportation, and insurance, which shall be paid by you. Prices do not include any taxes, customs duties, or tariffs (collectively “Taxes”). Sales taxes will be applied to all purchases as required by law. You are responsible for any other Taxes, including all import duties, customs fees, tariffs and other charges associated with shipping, to the extent displayed on the Website during the ordering process.
3.5 Shipping and Handling. BioTelemetry will ship any Equipment you purchase to the address you specify at the time of purchase. All orders placed on the Website are subject to Equipment availability and will be shipped according to BioTelemetry shipping policies. In the rare event that your order never arrives, notification of lost items must be received within 60 days from receipt of the shipping confirmation e-mail. Equipment may be subject to additional shipping and handling fees as stated on the Website or otherwise disclosed to you. All purchases of Equipment from BioTelemetry are made pursuant to a shipment contract. This means that the risk of loss and title for such Equipment pass to you upon our delivery to the carrier.
3.6 Refunds and Replacements. All sales are final, and we offer no refunds. To replace defective Equipment, ship at your expense the defective Equipment to BioTelemetry to obtain a replacement at 600 West Ridge Road, Linwood, PA 19061.
3.7 Manufacturer Warranties. All Equipment manufactured by third parties are offered solely under the warranties provided by such manufacturers, and although BioTelemetry may pass such manufacturer warranties through to you to the extent permitted by BioTelemetry’s contracts regarding its resale of such Systems, BioTelemetry makes no warranties to you on its own behalf regarding the Equipment, whether express, implied, or statutory, and BioTelemetry reserves the right to direct any warranty claims you may have regarding the Products directly to the manufacturer(s) of such Systems.
- Right to the System and Website
Title to the Equipment you purchase passes to you upon our delivery of the Equipment to a mail carrier. You are permitted to use Equipment for their intended use solely as permitted by these TOS. You are permitted to apply Equipment to a patient in the course of providing services to a patient. You are prohibited from selling, distributing, or otherwise using any Equipment for commercial use.
Subject to your continued right to use the Website and your compliance with these TOS, BioTelemetry grants, in accordance with these TOS, to you a limited nonexclusive, nontransferable, non-sublicenseable, revocable right to access and use the Website solely in accordance with these TOS for your internal lawful business purposes (and not for redistribution or other commercial use) and for no other purpose.
Without limiting the foregoing, any and all goodwill associated with your use of the BioTelemetry IP (as defined below) or the intellectual property rights therein will inure to the benefit of BioTelemetry.
- Reservation of Rights and Ownership
BioTelemetry and/or our licensors are the owner of all right, title, and interest in and to the Service, including all rights to the design, software code, scripts, database structures, trademarks, copyrights, patents, and other intellectual property included in or utilized by the Service, and any updates thereto (“BioTelemetry IP”). BioTelemetry IP is protected by applicable intellectual property and other laws, including laws governing patents, copyrights, trade secrets, trademarks, and unfair competition.
BioTelemetry reserves all rights not expressly granted to you in these TOS. Except for the limited rights and licenses expressly granted under these TOS, nothing in these TOS grants, by implication, waiver, estoppel, or otherwise, to you or any third party any intellectual property rights or other right, title, or interest in or to BioTelemetry IP. You may not and shall not permit any other person to copy, distribute, display, modify, or otherwise use any BioTelemetry IP except as expressly permitted by these TOS.
If you choose to provide input or suggestions regarding your experience with the Service (“Feedback”), then you hereby grant BioTelemetry an unrestricted, perpetual, irrevocable, non-exclusive, fully-paid, royalty-free right to exploit such Feedback in any manner and for any purpose, including to improve the Service and create other products and services.
You may not (a) reverse engineer, copy, decompile, disassemble, or otherwise attempt to discover the source code or algorithms of the Service; (b) modify or disable any features of the Service; (c) create derivative works based on the Service; (d) publicly display, publicly perform, transfer, sell, license, distribute, create derivative works of, rent, lease, lend, sublicense or provide commercial hosting services with the Service; (e) infringe our intellectual property rights or those of any third party in relation to your use of the Service (to the extent that such use is not licensed by these TOS); (f) use the Service in any unlawful manner, for any unlawful purpose, or in any manner inconsistent with these TOS, or act fraudulently or maliciously, for example, by hacking into or inserting malicious code, including viruses, or harmful data, into the Service or any operating system; (g) use the Service in a way that could damage, disable, overburden, impair or compromise our systems or security or interfere with or harm others (including patients); (h) collect or harvest (e.g., scrape) any information or data manually or technologically from the Website or our systems or attempt to decipher any transmissions to or from the servers running the Website; (i) use or access the Service from a jurisdiction where such use or access is not authorized; or (j) violate any right of a third party, including a person’s privacy rights. If you are prohibited under applicable law from using any aspect of the Service, you may not use it. You may not attempt to do any of the acts described in this Section 6, or assist or permit any person in engaging in any of the acts described in this Section 6.
Use of the Service and its full functionality may require you to use qualifying devices and software. It is your responsibility to ensure that you have such devices and software and your failure to do so may affect the performance or availability of the Service.
- System Data and Retention of Equipment
We may receive Equipment for the purpose of retrieving System Data recorded on them. We may then make available System Data to you. We do not return the Equipment we receive. You understand and agree that when we receive Equipment, we take full right, title, and interest in the Equipment without limitation. You disclaim all ownership rights in such Equipment.
- Update, Change, or Suspend the Website or Services Associated with the System
BioTelemetry may, at any time, provide or make available updates or upgrades to the Website (“Updates”), including without limitation bug fixes, Website enhancements, new features, deletion of existing functions, or modification of the Website. Updates will be governed by these TOS unless separate terms and conditions are provided with such Updates, in which case that separate terms and conditions shall govern the Updates.
BioTelemetry expressly reserves the right to change, suspend, remove, limit the use of or disable the access to the Website or any service associated with a System (including, without limitation, any services BioTelemetry provides to collect System Data and provide reports to you) or any portion thereof at any time without notice or liability.
- Right to Monitor - Third Party Services and Content
9.1 Right to Monitor. BioTelemetry reserves the right to gather data on the Website usage to ensure that the Website is being used in accordance with the TOS. Any unauthorized use by you shall be considered by BioTelemetry to be a violation of the TOS. BioTelemetry reserves the right to remedy violations immediately upon discovery
- Consent for Collection and Use of Data – Privacy
By providing us with your contact information and using the Service, you agree to receive communications, including via e-mail and phone calls (including text messages and calls made using an autodialer or prerecorded voice message from or on behalf of BioTelemetry at the email address or telephone number you provided even if that number is on a National or State Do Not Call List. These calls and messages may be for informational and marketing purposes, such as to provide you with the information or consultation you requested or to provide you with more information about BioTelemetry’s products and services. Standard text messaging and telephone minute charges applied by your cell phone carrier will apply.
BioTelemetry and our service providers on our behalf may, without further notice or warning and in our discretion, monitor and/or record video and voice calls and text message-based communications for our business purposes, such as quality assurance and training purposes and to protect our rights and the rights of others, and you hereby consent to such monitoring and recording.
IF YOU WISH TO OPT OUT OF MARKETING EMAILS FROM US, YOU CAN UNSUBSCRIBE BY FOLLOWING THE UNSUBSCRIBE OPTIONS IN THE MARKETING EMAIL ITSELF. You understand and agree that you may continue to receive communications while BioTelemetry processes your opt-out request, and you may also receive a communication confirming the receipt of your opt-out request.
- Compliance with Law
You acknowledge and agree to comply with any and all applicable laws and regulations in using the Service including without limitation, all applicable export restriction laws and regulations.
12.1 Effective Date. The TOS is effective upon your acceptance of the TOS, or upon your accessing or otherwise using the Service.
12.2 Termination. You may terminate your use of the Website and we may terminate our provision of the Website and any services associated with the System (including, without limitation, any services BioTelemetry provides to collect System Data and provide reports to you) and the TOS at any time.
12.3 Effects of Termination. Upon termination of the TOS, you shall no longer have any right to use the Website or receive any services associated with the System (including, without limitation, any services BioTelemetry provides to collect System Data and provide reports to you) under these TOS, and you must immediately cease use of the Website.
- Disclaimer of Warranty
THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE IS PROVIDED “AS IS”, “WHERE IS” AND “AS AVAILABLE” AND WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. BIOTELEMETRY AND OUR LICENSORS MAKE NO REPRESENTATIONS OR WARRANTIES OR GUARANTEES OF ANY KIND OR NATURE, WHETHER EXPRESS OR IMPLIED, REGARDING THE SERVICE, AND SPECIFICALLY DISCLAIMS AND YOU EXPRESSLY WAIVE ALL SUCH WARRANTIES, INCLUDING WITHOUT LIMITATION, (a) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, AND NON-INFRINGEMENT (b) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE; AND (c) ANY WARRANTY AS TO WHETHER THE DATA OR OTHER INFORMATION AVAILABLE THROUGH OR TRANSMITTED BY THE SERVICE IS TRUE, COMPLETE OR ACCURATE.
WITHOUT LIMITING THE PREVIOUS DISCLAIMER, BIOTELEMETRY AND OUR LICENSORS DO NOTREPRESENT, WARRANT OR GUARANTEE THAT THE SERVICE (v) WILL OPERATE IN AN UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE MANNER; (w) WILL ALWAYS BE AVAILABLE OR FREE FROM ALL HARMFUL COMPONENTS, VIRUSES, OR ERRORS; (x) OR THE SYSTEM DATA WILL BE SECURE OR IMMUNE FROM UNAUTHORIZED ACCESS; (y) OR THE SYSTEM DATA WILL BE ACCURATE, COMPLETE, OR RELIABLE; OR (z) THAT THE QUALITY OF THE SERVICE OR SYSTEM DATA WILL BE SATISFACTORY TO YOU OR THAT ERRORS WILL BE CORRECTED.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM BIOTELEMETRY OR ANY SYSTEM DATA, MATERIALS, OR INFORMATION AVAILABLE THROUGH OR IN CONNECT WITH THE SERVICE WILL CREATE ANY WARRANTY REGARDING BIOTELEMETRY OR THE SERVICE THAT IS NOT EXPRESSLY STATED IN THESE TOS. YOU ASSUME ALL RISK FOR ANY HARM OR DAMAGE THAT MAY RESULT TO YOU FROM YOUR USE OF OR ACCESS TO THE SERVICE, SYSTEM DATA, AND ANY MATERIALS OR INFORMATION AVAILABLE THROUGH OR IN CONNECTION WITH THE SERVICE. YOU UNDERSTAND AND AGREE THAT YOU USE THE SERVICE, AND USE, ACCESS, DOWNLOAD, OR OTHERWISE OBTAIN SYSTEM DATA, MATERIALS, OR CONTENT THROUGH OR IN CONNECTION WITH THE SERVICE AND ANY ASSOCIATED SITES OR SERVICES, AT YOUR OWN DISCRETION AND RISK, AND THAT YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOU OR YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICES 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 INFORMATION.
NOTHING IN THESE TOS IS INTENDED TO EXCLUDE OR LIMIT ANY CONDITION, WARRANTY, RIGHT, OR LIABILITY IN A MANNER THAT IS NOT PERMISSIBLE UNDER APPLICABLE LAW. SOME JURISDICTIONS DO NOT PERMIT THE EXCLUSION OF CERTAIN WARRANTIES OR CONDITIONS, THE EXCLUSION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR LOSS OR DAMAGE CAUSED BY NEGLIGENCE, BREACH OF CONTRACT, OR BREACH OF IMPLIED TERMS. ACCORDINGLY, ONLY THE ABOVE LIMITATIONS WHICH ARE LAWFUL IN YOUR JURISDICTION WILL APPLY TO YOU, AND THE LIABILITY OF BIOTELEMETRY AND THEIR LICENSORS AND SERVICE PROVIDERS WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
- Limitation of Liability
TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT SHALL BIOTELEMETRY, ITS SUBSIDIARIES OR AFFILIATES, OR ITS OR THEIR RESPECTIVE LICENSORS, OFFICERS, DIRECTORS, AGENTS, EMPLOYEES, OR REPRESENTATIVES OR ANY PARTY ACTING ON BIOTELEMETRY’S BEHALF BE LIABLE TO YOU FOR (AND YOU HEREBY WAIVE) ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE DAMAGES OR LOST PROFITS, ARISING UNDER THESE TOS OR ASSOCIATED WITH YOUR USE OF THE SERVICE, RECEIPT OF SYSTEM DATA, OR WITH RESPECT TO ANY BIOTELEMETRY IP EVEN IF BIOTELEMETRY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION WILL APPLY REGARDLESS OF THE THEORY OF LIABILITY, WHETHER FRAUD, MISREPRESENTATION, BREACH OF CONTRACT, NEGLIGENCE, PERSONAL INJURY, PRODUCT LIABILITY, STRICT LIABILITY, FAILURE TO WARN, INFRINGEMENT OR ANY OTHER THEORY REGARDLESS OF WHETHER OR NOT BIOTELEMETRY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION AND WAIVER ALSO APPLIES TO ANY CLAIMS YOU MAY BRING AGAINST ANY OTHER PARTY TO THE EXTENT THAT BIOTELEMETRY WOULD BE REQUIRED TO INDEMNIFY THAT PARTY FOR SUCH CLAIM. BIOTELEMETRY SHALL NOT BE LIABLE FOR ANY LOSS OF DATA, BREACH OF SECURITY ASSOCIATED WITH THE SERVICE, OR FOR ANY CONTENT, VIDEO OR COMMUNICATIONS ON THE SERVICE, OR OTHERWISE ARISING OUT OF THE USE OF THE SAME, REGARDLESS OF THE FORM OF ACTION OR BASIS OF ANY CLAIM. IF YOU HAVE A DISPUTE WITH US OR ARE DISSATISFIED WITH THE SERVICE, TERMINATION OF YOUR USE OF THE SERVICE IS YOUR SOLE REMEDY. BIOTELEMETRY HAS NO OTHER OBLIGATION, LIABILITY, OR RESPONSIBILITY TO YOU. IF, NOTWITHSTANDING THE FOREGOING LIMITATIONS, A COURT OR DISPUTE RESOLUTION AUTHORITY WITH JURISDICTION OVER BIOTELEMETRY FINDS THAT BIOTELEMETRY MUST PAY DAMAGES, BIOTELEMETRY’S MAXIMUM AGGREGATE LIABILITY OF ANY KIND ARISING UNDER OR RELATING TO THESE TOS, THE SERVICES, OR BIOTELEMETRY IP SHALL BE THE AMOUNT YOU PAID FOR THE EQUIPMENT GIVING RISE TO THE LIABILITY.
THE FOREGOING LIMITATIONS SHALL APPLY TO ALL CAUSES OF ACTION, WHETHER ARISING FROM BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE OR OTHER TORT, PRODUCT LIABILITY, OR ANY OTHER LEGAL THEORY; MOREOVER, THESE LIMITATIONS WILL APPLY NOTWITHSTANDING A FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, YOU WILL DEFEND, INDEMNIFY, AND HOLD HARMLESS BIOTELEMETRY INDEMNITEES, FROM AND AGAINST ANY AND ALL CLAIMS, ACTIONS, LIABILITIES, LOSSES, DAMAGES, JUDGMENTS, FINES, COSTS AND EXPENSES, INCLUDING REASONABLE ATTORNEYS’ FEES (COLLECTIVELY, “CLAIMS”) ARISING OUT OF OR RELATED TO (a) ANY USE OF THE SERVICE BY YOU OR BY ANY PERSON THAT YOU ALLOW TO USE THE SERVICE (INCLUDING PATIENTS), (b) ANY USE OF OR RELIANCE ON THE SYSTEM DATA, (c) ANY BREACH OF THE TOS BY YOU OR BY ANY PERSON THAT YOU ALLOW TO USE THE SERVICE, (d) ANY VIOLATION OF ANY LAWS, REGULATIONS OR THE RIGHTS OF ANY THIRD PARTY BY YOU OR BY ANY PERSON THAT YOU ALLOW TO USE THE SERVICE, OR (e) YOUR NEGLIGENCE, GROSS NEGLIGENCE, OR WILLFUL MISCONDUCT.
BIOTELEMETRY SHALL PROVIDE THE ORGANIZATION WRITTEN NOTICE OF CLAIMS AGAINST ANY OF THE BIOTELEMETRY INDEMNITEES WITHIN A REASONABLE PERIOD OF TIME (PROVIDED, HOWEVER, THAT A DELAY IN NOTIFICATION SHALL EXCUSE YOUR DEFENSE AND INDEMNIFICATION OBLIGATIONS ONLY TO THE EXTENT SUCH DELAY MATERIALLY PREJUDICES THE DEFENSE OF SUCH CLAIMS). NOTWITHSTANDING THE ORGANIZATION’S OBLIGATION TO DEFEND BIOTELEMETRY INDEMNITEES AGAINST CLAIMS AS SET FORTH IN IN THIS THESE TOS, BIOTELEMETRY SHALL HAVE THE RIGHT TO EXCLUSIVE CONTROL OF THE DEFENSE AND SETTLEMENT OF THE CLAIMS AND/OR TO SELECT COUNSEL TO DEFEND AGAINST AND NEGOTIATE RESOLUTION OF SUCH CLAIMS. YOU SHALL GIVE BIOTELEMETRY ALL REASONABLE ASSISTANCE, AT YOUR EXPENSE. YOU MAY NOT SETTLE ANY CLAIM AGAINST THE BIOTELEMETRY INDEMNITEES UNLESS THE SETTLEMENT UNCONDITIONALLY AND FULLY RELEASES BIOTELEMETRY INDEMNITEES OF ALL LIABILITY AND FAULT AND THE BIOTELEMETRY INDEMNITEES HAVE PROVIDED WRITTEN CONSENT TO SUCH SETTLEMENT.
- General Terms
16.1 Choice of Law. These TOS, including all revisions and amendments thereto, are governed by and construed in accordance with the laws of Tennessee, without regard to its conflict or choice of law principles. If a lawsuit or court proceeding is permitted under these TOS, then you and BioTelemetry agree to submit to the exclusive jurisdiction of the state courts and federal courts located within New York for the purpose of litigating any dispute, and you hereby consent to the personal jurisdiction and venue thereof.
16.2 Insurance. You agrees to maintain, at your own cost and expense, sufficient insurance coverage as shall be necessary to insure BioTelemetry, its affiliates, and its and their officers, directors, employees, agents and/or subcontractors against any and all claims of any nature that may arise from your performance under these TOS.
16.3 No Agency. The parties acknowledge and agree that you are engaged in the operation of your own business. The parties do not intend by entering into these TOS to create a partnership, joint venture, agency, or any other such relationship. Nothing in these TOS shall be construed to expressly or impliedly create such a partnership, joint venture, agency or other relationship and nothing in these TOS authorizes you to make any contract, agreement, warranty, or representation on behalf of BioTelemetry. Each of the parties warrants and represents that it has not and will not hold itself out as a representative, agent, servant, or employee of the other party for any purpose. Each party assumes sole responsibility for fully complying with laws applicable to its own personnel, none of whom shall be deemed employees or agents of the other party.
16.4 No Class Actions. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, YOU AND BIOTELEMETRY AGREE THAT EACH PARTY MAY BRING CLAIMS AGAINST THE OTHER PARTY ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.
16.5 No Jury Trials. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TOS, YOU AND BIOTELEMETRY ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY, TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW.
16.6 Claims. To the fullest extent permitted under applicable law, no action arising out of, in connection with, or relating to these TOS shall be brought by you more than one (1) year after the accrual of the cause of action. This period shall not be extended for any reason, except by the written consent of both parties. All statutes or provisions of law which would toll or otherwise affect the running of the period of limitation are hereby waived, and no such statute or provision of law shall operate to extend the period limited in this paragraph, to the fullest extent permitted under applicable law.
16.7 No Third Party Beneficiaries. These TOS is for the sole benefit of the parties and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer on any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of these TOS.
16.8 Claims. To the fullest extent permitted under applicable law, no action arising out of, in connection with, or relating to these TOS shall be brought by you more than one (1) year after the accrual of the cause of action. This period shall not be extended for any reason, except by the written consent of both parties. All statutes or provisions of law which would toll or otherwise affect the running of the period of limitation are hereby waived, and no such statute or provision of law shall operate to extend the period limited in this paragraph, to the fullest extent permitted under applicable law.
16.9 Entire Agreement. These TOS are the complete and exclusive statement of these TOS with respect to the subject matter hereof and supersede all other communications or representations or agreements (whether oral, written, or otherwise) relating thereto.
16.10 Severability. If any term or provision of this TOS is held to be void or unenforceable by any judicial or administrative authority, such determination shall not affect the validity of enforceability of the remaining terms and provisions of this TOS. The remaining provisions of this TOS shall remain in effect and shall be construed in accordance with its terms.
16.11 Survival. Sections 1-3, and 5-16 of the TOS, and any other provision that by its nature should continue to be in effect, shall survive the expiration or earlier termination of the TOS, and shall remain valid and binding.
16.12 Headings. The headings contained in the TOS are for reference purposes only and shall not affect the meaning or interpretation of the TOS.
16.13 No Waiver. The failure of BioTelemetry to enforce at any time any of the provisions of the TOS, or the failure by BioTelemetry to require at any time performance by you of any of the provisions of the TOS, shall in no way be construed to be a present or future waiver of such provisions, nor in any way affect the right of BioTelemetry to enforce such provision thereafter. The express waiver by BioTelemetry of any provision, condition or requirement of the TOS shall not constitute a waiver of any future obligation to comply with such provision, condition or requirement.
16.15 Modification of these TOS. We reserve the right, at our discretion, to change these TOS on a going-forward basis at any time. Please check these TOS periodically for changes. If a change to these TOS materially modifies your rights or obligations, we will take steps to notify you. Material modifications will be effective upon your acceptance of such modified TOS or upon your continued use of the Service after we send or post our notification of the changes, whichever is earlier. Other modifications are effective upon publication. Disputes arising under these TOS will be resolved in accordance with the version of these TOS that was in effect at the time the dispute arose.
16.16 Prohibition of Assignment. You may not assign, transfer or sublicense any obligations or benefits under these TOS without the prior written consent of BioTelemetry. Subject to the foregoing, these TOS will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
16.17 Subcontractors. BioTelemetry may engage subcontractors to perform, provide, or support the performance or provision of, all or any portion of the Service.
16.18 Force Majeure. To the fullest extent permitted under applicable law, BioTelemetry will be excused from performance under these TOS for any period that it is prevented from or delayed in performing any obligations pursuant to these TOS, in whole or in part, as a result of a Force Majeure Event. For purposes of this Section 16.18, “Force Majeure Event” means an event or series of events caused by or resulting from any of the following: (a) weather conditions or other elements of nature or acts of God; (b) acts of war, acts of terrorism, insurrection, riots, civil disorders or rebellion; (c) quarantines or embargoes, (d) labor strikes; (e) telecommunications, network, computer, server or Internet disruption or downtime; (f) unauthorized access to BioTelemetry’s information technology systems by third parties; (g) epidemics or pandemics; (h) criminal acts; or (i) other causes beyond the reasonable control of BioTelemetry.
16.19 Export. You may not use the Service if you are the subject of U.S. sanctions or of sanctions consistent with U.S. law imposed by the governments of the country where you are using the Services. The Equipment is subject to United States export and re-export controls, restrictions, including any United States embargoes or other federal rules and regulations restricting exports, and you must comply with them. Unless in compliance with applicable law and specifically authorized in writing by BioTelemetry prior to any access, you shall not export the Equipment under any circumstances whatsoever. Even with BioTelemetry’s authorization, it is your obligation to obtain any required authorization and/or approval from any governmental authority as may be necessary to export or import the Equipment.
16.20 Notice. All notifications to BioTelemetry under these TOS should be sent via email and first class mail to:
ATTN: Legal Department
1000 Cedar Hollow Road
Effective: November 2, 2020