This document is legally binding, so you should read it in its entirety. Essentially, by using this app you agree to the following:
- Mobile Therapy can collect data from you. This includes answers to health related questions, location data, and summarized information that your phone provides, like number of calls and texts. We never collect the content of these interactions.
- We can summarize and de-identify the data we collect from you, so we can build a better and more helpful product. You own your identifiable personal data, but we own the anonymized or de-identified version of it.
- We can share the information we get from you with your healthcare provider (if you’ve specified one) or anyone else you’ve chosen to receive this information.
- You understand and confirm that Mobile Therapy is not a licensed medical provider and does not provide medical care or emergency services.
YOU AGREE THAT THE SOFTWARE IS NOT INTENDED TO BE USED FOR MEDICAL EMERGENCIES, SELF-DIAGNOSIS OR MEDICAL ADVICE. ALWAYS SEEK THE ADVICE OF YOUR CLINICIAN OR OTHER QUALIFIED HEALTH PROVIDER REGARDING A MEDICAL CONDITION OR TREATMENT.
- Grant of License. Subject to the terms and conditions of this Agreement, Mobile Therapy hereby grants to you a personal, non-transferable, non-exclusive, revocable, royalty-free, limited license to install and use the Software on your mobile device for the purposes of inputting responses to surveys and/or participating in a study or program from a designated third-party (the “Institutional Client”) and/or tracking and analyzing your mobile interactions for purposes of monitoring, predicting, and/or reporting certain health-related factors to such Institutional Client and/or to you and/or your doctor/healthcare provider.
Mobile Therapy may change or discontinue, temporarily or permanently, any feature or component of the Software at any time without notice.
- Copying Restrictions. You may copy the Software onto your mobile device, and you may make one (1) copy of the Software for backup or archival purposes. You agree that (i) your use and possession of such copies shall be solely under the terms and conditions of this Agreement, and (ii) you shall place the same proprietary and copyright notices and legends on all such copies as included by Mobile Therapy on any media embodying an authorized copy of the Software originally provided by Mobile Therapy. Except as expressly described in this paragraph, you are not permitted to copy the Software.
- Disclosure Restrictions. You acknowledge that the Software, including the source code for the Software and any information derived therefrom, is proprietary to, and constitutes the intellectual property (including without limitation a valuable trade secret) of, Mobile Therapy. If you should gain access to such materials, you shall not disclose them to anyone.
- Login Information and Access. Mobile Therapy may issue to you, or prompt you to provide, a username/password for login to download, access and use the Software. Mobile Therapy will protect as confidential any personally identifying information that you may provide to complete the applicable online forms to establish your username/password or account with Mobile Therapy (“Account Data”), which Account Data shall continue to be owned by you. You agree to provide, maintain and update true, accurate, current and complete Account Data, and represent that you will not misrepresent your identity or your affiliation with any person or entity. Mobile Therapy reserves the right to authenticate any information you provide. You shall be responsible for all use and access of the Software by means of usernames/passwords issued to you. You will notify Mobile Therapy promptly of any unauthorized use of your username/password or account or any other known or suspected breach of security, or other occurrence requiring username/password or account cancellations or changes. Mobile Therapy cannot and does not assume any responsibility or liability for any information submitted by someone who has fraudulently accessed your account or for any third party’s fraudulent use or misuse of information submitted by you.
- Feedback. Mobile Therapy may ask for your feedback regarding your use and evaluation of the Software, including, without limitation, any problems encountered in the Software (the “Evaluation Data”). If such Evaluation Data is provided to Mobile Therapy, it will be deemed and remain the sole property of Mobile Therapy, and will not be subject to any obligation of confidence on the part of Mobile Therapy. Additionally, Mobile Therapy shall have all ownership, right, title and interest in and to the Evaluation Data and any and all intellectual property and proprietary rights thereto and therein. You hereby transfer and assign to Mobile Therapy any and all intellectual property rights you may have in and to the Evaluation Data and agree to cooperate with Mobile Therapy to perfect Mobile Therapy’s sole and exclusive ownership in and title to the Evaluation Data.
- Transfer Restrictions. You may not sublicense, delegate, assign or otherwise transfer this Agreement, the license granted herein, or any other of your rights or obligations under this Agreement, in whole or in part.
- Export Restrictions. You may not export or re-export any Software except in full compliance with all United States laws and regulations, executive orders and the like, including in particular the Export Administration Regulations of the U.S. Department of Commerce.
- Enforcement of Terms; Effect of Termination. If you fail to fulfill any of your obligations under this Agreement, Mobile Therapy and/or its licensors may pursue all available legal remedies available to them. You agree that Mobile Therapy’s licensors are third-party beneficiaries of this Agreement, and may enforce this Agreement as it relates to their intellectual property. Sections 2-5, 6(b) through 6(e), 7(b), 7(c), 9, 10, 11,13, 15 through 25 shall survive any termination or expiration of this Agreement. Upon any termination of this Agreement, your license to use the Software shall terminate and you shall promptly uninstall and remove the Software from the mobile device on which it was installed (and promptly uninstall, delete or destroy your authorized backup or archival copy).
- U.S. Government Users. (a) If the Software is acquired by or on behalf of civilian agencies of the U.S Government, then, pursuant to FAR Section 12.212 and its successors (48 C.F.R. 12.212), the Government’s right to use, reproduce or disclose the Software acquired under this Agreement is subject to the restrictions of this Agreement. If the Software is acquired by or on behalf of agencies or units of the Department of Defense (DoD), then, pursuant to DoD FAR Supplement Section 227.7202 and its successors (48 C.F.R. 227.7202) the Government’s right to use, reproduce or disclose the Software acquired under this Agreement is subject to the restrictions of this Agreement. (b) Pursuant to the foregoing, U.S. Government users acknowledge that (i) the Software is commercial computer software, (ii) this Agreement embodies the licenses customarily used by Mobile Therapy for end user licenses in Software granted to the public, and (iii) the licenses set forth herein shall apply to all possession, use and duplication of the Software by the Government as permitted by applicable law. The contractor/manufacturer is SelfEcho, Inc.
- Assumption of Risk. The Software is designed to provide a designated third-party with health-related information based on your inputs to surveys and mobile interactions, as such interactions are catalogued via your mobile device. The Software and any related data supplied to you by Mobile Therapy is not a source of information, and does not provide medical advice. By granting you the right to use the Software, Mobile Therapy does not assume any obligation or liability with respect to your health or your physical activity or condition. In no event shall Mobile Therapy be liable for any death or bodily injury that you suffer, or that you cause to any third party, in connection with your use of the Software or any activity you undertake in connection with your use of the Software. As between you and Mobile Therapy, you are solely responsible for your use of the Software and your health and medical condition and treatment related thereto. Mobile Therapy shall have no liability for any unauthorized disclosure of your personally identifiable information due to your actions or omissions or that of your healthcare provider.
YOU AGREE THAT: (i) IF YOU ARE IN NEED OF OR ARE SEEKING MEDICAL TREATMENT OR EMERGENCY CARE, YOU SHOULD CONTACT YOUR HEALTHCARE PROVIDER OR CALL 911 IMMEDIATELY; (ii) MOBILE THERAPY DOES NOT PROVIDE MEDICAL TREATMENT OR ADVICE AND IS NOT A HEALTHCARE PROVIDER OR A REFERRAL TO HEALTHCARE PROVIDERS; (iii) YOU WILL NOT LEAVE ANY MESSAGES WITH, OR SEND ANY EMAILS TO, MOBILE THERAPY WITH RESPECT TO YOUR MEDICAL CONDITION, AS MOBILE THERAPY IS NOT YOUR HEALTHCARE PROVIDER, IS NOT AND DOES NOT PROVIDE 911 OR OTHER EMERGENCY SERVICES, AND CANNOT CONTACT YOU OR ANYONE ON YOUR BEHALF WITH RESPECT TO YOUR MEDICAL CONDITION OR TREATMENT; (iv) DATA PROVIDED BY MOBILE THERAPY THROUGH THE SOFTWARE IS FOR INFORMATIONAL PURPOSES ONLY AND IS NOT INTENDED TO REPLACE THE RELATIONSHIP BETWEEN YOU AND YOUR PHYSICIAN OR OTHER HEALTHCARE PROVIDER; (v) MOBILE THERAPY IS NOT A LICENSED MEDICAL CARE PROVIDER AND HAS NO EXPERTISE IN DIAGNOSING, EXAMINING, OR TREATING MEDICAL CONDITIONS OF ANY KIND, OR IN DETERMINING THE EFFECT OF ANY SPECIFIC TREATMENT ON A MEDICAL CONDITION; (vi) YOU SHOULD ALWAYS CONSULT A PHYSICIAN IF YOU HAVE ANY QUESTIONS REGARDING A MEDICAL CONDITION; (vii) NEVER DISREGARD PROFESSIONAL MEDICAL ADVICE OR DELAY IN SEEKING IT BECAUSE OF SOMETHING YOU HAVE READ OR RECEIVED USING THE SOFTWARE; (viii) MOBILE THERAPY HAS NO LIABILITY WITH RESPECT TO ANY SURVEY OR RESEARCH/MEDICAL PROGRAM OR STUDY WITH WHICH YOU MAY BE USING THE SOFTWARE; AND, (ix) MOBILE THERAPY IS NOT RESPONSIBLE FOR THE ACCURACY, RELIABILITY, EFFECTIVENESS, OR CORRECT USE OF INFORMATION YOU RECEIVE THROUGH OR IS GENERATED BY THE SOFTWARE.
You agree that Mobile Therapy shall not be liable to you or to any third party for any unavailability, modification, suspension or discontinuance of any feature or component of the Software.
To the extent Mobile Therapy provides links or references to websites operated by third parties, Mobile Therapy does not monitor or investigate such websites and we are not responsible for the content, functionality, or practices of such websites. Inclusion of links to third party websites does not imply approval or endorsement of the linked website by us. If you decide to access these third party websites, you do so at your own risk. You agree that Mobile Therapy has no liability for any damage or loss of any type that is a result of your use of a third party website.
- Disclaimer of Warranty. MOBILE THERAPY PROVIDES THE SOFTWARE TO YOU “AS IS”, WITHOUT WARRANTY OF ANY KIND, EXPRESS, STATUTORY, IMPLIED OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT; AND, MOBILE THERAPY HEREBY DISCLAIMS ANY AND ALL SUCH WARRANTIES. MOBILE THERAPY MAKES NO REPRESENTATION OR WARRANTY THAT THE SOFTWARE IS ACCURATE, COMPLETE OR UP-TO-DATE. MOBILE THERAPY MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND WITH RESPECT TO THE USE OF THE SOFTWARE, THE RESULTS THEREFROM, OR THE USE OF ANY DATA (INCLUDIING WITHOUT LIMITATION DATA PRODUCED BY THE SOFTWARE) OR INTERACTIONS OF ANY USER. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY ANY MOBILE THERAPY EMPLOYEE, REPRESENTATIVE OR DISTRIBUTOR SHALL CREATE A WARRANTY FOR THE SOFTWARE, AND YOU MAY NOT RELY ON ANY SUCH INFORMATION OR ADVICE. MOBILE THERAPY’S LICENSORS EXPLICITLY DISCLAIM ANY AND ALL WARRANTIES WITH RESPECT TO THE SOFTWARE. MOBILE THERAPY DOES NOT WARRANT THAT THE SOFTWARE, OR ACCESS THERETO OR USE THEREOF, WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT THE SOFTWARE WILL MEET ANY END USER’S REQUIREMENTS OR ANY PARTICULAR CRITERIA OF PERFORMANCE OR QUALITY STANDARDS. MOBILE THERAPY DOES NOT WARRANT THAT ANY FUNCTIONALITY, INCLUDING WITHOUT LIMITATION ANY SECURITY MEASURE OR SECURITY FEATURE, PROVIDED HEREUNDER WILL BE ERROR-FREE, UNBREAKABLE, UNBREACHABLE, VIRUS FREE, OR INVIOLATE; AND, END USERS ASSUME THE ENTIRE RISK (AND ARE SOLELY RESPONSIBLE) THAT, NOTWITHSTANDING ANY SECURITY OR OTHER MEASURE THAT MAY BE PROVIDED BY MOBILE THERAPY OR ITS LICENSORS HEREUNDER, THE SOFTWARE AND/OR THE DATA PROCESSED THEREBY MAY BE CORRUPTED, COMPROMISED, INACCESSIBLE OR LOST. THE SOFTWARE IS NOT DESIGNED OR LICENSED FOR USE IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE CONTROLS, INCLUDING WITHOUT LIMITATION OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, AND LIFE SUPPORT OR WEAPONS SYSTEMS. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, MOBILE THERAPY SPECIFICALLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR SUCH PURPOSES.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON CERTAIN TYPES OF DAMAGES, SO THE ABOVE DISCLAIMERS AND LIMITATIONS MAY NOT APPLY TO YOU.
Upon request by us, you agree to defend, indemnify and hold Mobile Therapy and its partners, affiliates, Use providers, licensors, officers, directors, employees and agents harmless from and against any and all losses, liabilities, damages and costs, including but not limited to reasonable legal and accounting fees, arising from any claims, actions or demands related to or alleged to relate to: (a) your violation of this Agreement; or (b) your violation of any intellectual property or other third party rights or any applicable law in connection with your use of the Software. 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.
- Notices. Notices to you hereunder shall be sent to the address provided by you when you registered to download and install the Software.
Notices to Mobile Therapy shall be sent to:
SelfEcho, Inc. c/o Legal Counsel 27 West Anapamu, Suite K, Santa Barbara, CA 93101.
Each party may change such address upon written notice to the other party.
- Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California, USA without regard to its conflicts of laws provision. The United Nations Convention on Contracts for the International Sale of Goods shall not apply. The parties hereby consent to, and hereby agree to submit to, the exclusive jurisdiction and venue in the state courts in Santa Barbara, CA or any federal court located therein. In any action or proceeding to enforce or interpret this Agreement, the prevailing party will be entitled to recover the costs and expenses (including reasonable attorneys’ fees) that it incurred in connection with such action or proceeding and enforcing any judgment or order obtained. In the event of a breach, or threatened breach, of this Agreement by you which may harm the intellectual property or proprietary rights of Mobile Therapy (or its licensors/suppliers), the parties agree that (i) Mobile Therapy may suffer irreparable harm for which monetary damages may be insufficient as a remedy, (ii) Mobile Therapy shall be entitled to seek injunctive or other equitable relief, (iii) no bond or surety shall be required to be posted for such relief, and (iv) such relief shall be in addition to any and all other remedies in law or in equity to which Mobile Therapy may be entitled. The parties shall seek resolution through binding arbitration using a single arbitrator and the rules promulgated by the American Arbitration Association. The decision of the arbitrator shall be binding on the parties and may be entered into a court of competent jurisdiction. All such arbitration shall be conducted in the jurisdiction set forth above.
- Complete Agreement; Waiver; Severability. This Agreement contains the complete and entire agreement and understanding of the parties regarding the subject matter hereof, and supersedes all proposals, oral or written, all negotiations, conversations, discussions and all past course of dealing between you and Mobile Therapy relating to the Software or the terms of its license to you. In the event any term of this Agreement is held by a court of competent jurisdiction to be unenforceable, such unenforceability shall not affect the remaining terms of this Agreement in such jurisdiction or render unenforceable or invalidate such terms and provisions of this Agreement in other jurisdictions. Upon such determination that any of the terms or provisions of this Agreement are held to be invalid under any applicable statute or rule of law, they shall be severed from this Agreement and the remaining provisions of this Agreement shall be interpreted so as best to reasonably effect the intent of the parties and the parties agree to replace any invalid or unenforceable provisions in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible. Mobile Therapy’s failure to exercise or enforce any right or provision of this Agreement will not constitute a waiver of such right or provision unless such waiver is in writing and signed by Mobile Therapy.
- CONSENT TO ELECTRONIC CONTRACTING. YOU AGREE THAT EXECUTION OF THIS AGREEMENT MAY OCCUR BY YOUR MANIFESTING YOUR ACCEPTANCE OF IT WHEN YOU INSTALLED OR USED THE SOFTWARE, AND THAT NO SIGNATURE ON A PAPER COPY OF THIS AGREEMENT IS REQUIRED IN ORDER TO FORM A BINDING CONTRACT.
- No Joint Venture; Independent Contractors. The parties will at all times be independent contractors and will so represent themselves to all third parties. Neither party has granted to the other the right to bind it in any manner whatsoever and nothing herein will be deemed to constitute either party the agent or legal representative of the other nor to constitute the parties as joint venturers.
- Assignment. Any attempted assignment, sublicense, transfer, encumbrance of this Agreement (or of any of your rights or obligations herein) by you shall be void and shall constitute a material breach of this Agreement. This Agreement shall be binding upon and inure to the benefit of Mobile Therapy’s successors and assigns.
*** YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS. ***
Latest Update: September 19, 2014.