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Terms of Use

Terms of Use

Last updated June 24, 2016,

These Terms of Use govern your purchase from Cercacor Laboratories, Inc. and Cercacor International Sarl (“Cercacor”, “we” or “us”) and the use of our products (“Our Products”), software, mobile applications, use of our cloud storage for user measurements and user information (“Our Cloud Service”) and other services we provide (collectively, “Our Service”). PLEASE READ THESE TERMS OF USE CAREFULLY BEFORE USING OUR SERVICE. If you do not agree to these Terms of Use, you may not use Our Service.

We may modify these Terms of Use at any time. We will post the modified Terms of Use on our website, www.cercacor.com. By continuing to use Our Service, you agree to be bound by such modification and should therefore periodically review these Terms of Use.

You must be 13 years of age or older to use Our Service.

Orders and Fulfillment

All orders are subject to acceptance by us. Upon placing an order with us, we will send you an email confirming our receipt of your order. Upon shipment of your order, we will send you an email indicating acceptance of your order, shipment confirmation, carrier information and tracking number. We reserve the right not to accept your order for any or no reason.

Pricing for Our Products is shown in US dollars and excludes taxes, shipping charges and, for shipments to non-US locations, duty and import fees, if applicable. If you are ordering outside the US, you are responsible for any taxes, duty and import fees incurred upon entry to your country.

You may select a method of shipment and we will charge you accordingly. The risk of loss and title to your purchased product pass to you upon our delivery to the carrier.

Use of Our Service

Our Product is not a medical device. Our Service is not intended to diagnose, treat, cure or prevent any medical condition or disease. We are not responsible for any medical problems that may result from training or exercise programs you engage in or learn about while using Our Service. Consult your doctor before beginning or modifying any exercise program or if you have any medical conditions that might be affected by use of Our Service.

Subject to the other terms and conditions in these Terms of Use, Cercacor grants you a limited, non-exclusive, non-transferable, non-sublicensable license to (i) access and view Our Content, as defined below, (ii) access and use the software and mobile applications provided by Our Service, (iii) access and use Our Cloud Service, and (iv) use the software that is embedded in Our Products that you purchase. This license is provided solely for your personal and non-commercial use of Our Service.

Our Service, website and promotional materials contain text, graphics, logos, images, software, applications, audio, video, works of authorship, and information or other materials that are owned by or licensed to us (collectively, “Our Content”). Our Content, Our Service and its underlying technology are protected by copyright, trademark, intellectual property, and other laws of the United States and foreign countries. Unauthorized use of Our Service may violate these laws. You agree not to remove, change or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying Our Service.

You may not use, copy, adapt, modify, prepare derivative works based upon, distribute, license, sell, transfer, publicly display, publicly perform, transmit, broadcast or otherwise exploit Our Service or any portion thereof, except as expressly permitted in these Terms of Use. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by Cercacor or its licensors, except for the licenses and rights expressly granted in these Terms of Use.

You may use Our Service with a device that is manufactured, distributed, or sold, by or on behalf of Cercacor, with a Cercacor mobile application and with the use of a supported mobile device. It is your responsibility to maintain the functionality of the supported mobile device. You may not use Our Service with any device that is not manufactured, distributed, or sold, by or on behalf of Cercacor. You may not use Our Service with any applications that are not expressly authorized by Cercacor or with an unsupported mobile device. Some uses of Our Service require internet access.

Except to the extent permitted by law, you may not perform, attempt to perform, or encourage or assist others in performing any of the following while accessing or using Our Service: (i) display, mirror or frame Our Service or any individual element of Our Service, Cercacor’s name, any Cercacor trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without our express written consent; (ii) access or tamper with non-public areas of Our Service, our computer systems, or the technical delivery systems of our providers; (iii) test the vulnerability of any Cercacor system or breach any security or authentication measures; (iv) circumvent any technological measure implemented by us or any of our providers or any other third party to protect Our Service or Our Content; (v) access Our Service through the use of any mechanism other than through the use of an authorized connection, Our Service or a Cercacor provided programming interface; or (vi) modify, decompile, disassemble, reverse engineer, tamper with or otherwise attempt to derive the source code of any software or application that we provide you or that is part of Our Service.

We are not responsible for the accuracy, reliability, effectiveness or correct use of information you receive through Our Service.

Use of Our Cloud Service

Use of Our Cloud Service requires that you create a user account with us. Use of Our Product and mobile application on a standalone basis does not require that you create a user account with us. If you create a user account, you are responsible for the accuracy and completeness of the information about yourself. You are also responsible for maintaining the confidentiality of your account and password.

You may save certain information obtained from the use of Our Service and other personal information (together, “Your PI”) to our Cloud Service. You retain all rights to Your PI that you save in Our Cloud Service. By using Our Cloud Service, you grant to us a non-exclusive, perpetual, transferable, sublicensable, worldwide, royalty-free license to use, copy, modify, adapt, display, and distribute Your PI only in connection with providing Our Service and in compliance with our privacy policy.

You are responsible for Your PI and the use of Our Service to generate information that becomes part of Your PI. You represent and warrant that you own Your PI or that you have all the rights necessary to grant us a license to use Your PI as described in these Terms of Use.

If you have a user account for Our Cloud Service and are connected to the Internet, the Service will automatically backup your data each time a measurement is taken. We reserve the right to delete your data from Our Cloud Service if your device has not been connected to Our Cloud Service for a period of one hundred and eighty (180) days or longer.

Third Party Services

We may offer services that are provided by or utilize third party services such as GPS or weather apps. When using third party services, you are subject to and should review such third party’s terms of use and privacy policies. GPS and weather data may be inaccurate, incomplete or unavailable. Any location or weather data provided by Our Service is not intended to be relied upon in situations where precise information is needed or where inaccurate or incomplete data may lead to violation of law, personal injury, illness, death, property or environmental damage. Neither Cercacor nor any of its service providers guarantees the availability, accuracy, completeness, or timeliness of location data, weather data or any other data displayed by the Service. THESE SERVICES ARE NOT INTENDED OR SUITABLE FOR PROVIDING LOCATION DATA IN EMERGENCY SITUATIONS OR TO RECEIVE SEVERE WEATHER WARNINGS.

Public Forums and Communication

We may offer access to public forums (“Forums”) hosted by us where you may post or submit questions, comments, ideas, suggestions, reviews, photos, and other content (collectively, “Non-Personal Content”), provided such Non-Personal Content is not illegal, fraudulent, obscene, defamatory, violent or threatening, intolerant of race, religion or sexual orientation, invasive of privacy, infringing of intellectual property, or serving a commercial or political purpose. If you do post or submit Non-Personal Content to a Forum, you grant Cercacor a nonexclusive, transferable, royalty free, perpetual, irrevocable and sublicensable right to use, copy, modify, adapt, publish, perform, translate, create derivative works from, distribute and display such Non-Personal Content. You also permit other users to access, view, store or reproduce your Non-Personal Content for that user’s personal use. You represent and warrant that you own or otherwise control all of the rights to the Non-Personal Content that you post and that you will indemnify Cercacor for all claims resulting from Non-Personal Content you supply. You acknowledge that your use of or reliance upon other users’ Non-Personal Content is at your own risk.

Our Rights

Any attempted use that is in violation of these Terms of Use may result in the immediate termination of your ability to use some or all of Our Service.

We are not obliged to monitor access or use of Our Service, Our Content, Your PI or your Non-Personal Content or to review, edit or delete any of Our Content, Your PI, or your Non-Personal Content, but we have the right to do so for the purpose of operating Our Service, to ensure compliance with these Terms of Use, and to comply with applicable law or other legal requirements. We may consult with and disclose unlawful conduct to law enforcement authorities; and pursuant to valid legal process, we may cooperate with law enforcement authorities to prosecute users who violate the law. We reserve the right, but are not required, to remove or disable access to Our Service, Our Content, Your PI, Forums, or your Non-Personal Content at any time and without notice, and at our sole discretion, if we determine that Your PI, your Non-Personal Content or your use of Our Service or Forum is objectionable or in violation of these Terms of Use. We have the right to investigate violations of these Terms of Use and any conduct that affects Our Service.

Changes to Our Service

We may change or discontinue, temporarily or permanently, any feature or component of Our Service at any time without notice. We are not liable to you or to any third party for any modification, suspension or discontinuance of any feature or component of Our Service. We reserve the right to determine the timing and content of software updates, which may be automatically downloaded and installed by Our Products or applications without prior notice to you.

Limitation of Liability

NEITHER CERCACOR, ITS SUPPLIERS OR LICENSORS, NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SERVICE WILL BE LIABLE FOR ANY DAMAGES WHATSOEVER, INCLUDING BUT NOT LIMITED TO, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, LOST PROFITS, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE, MOBILE DEVICE DAMAGE, SYSTEM FAILURE OR THE COST OF SUBSTITUTE SERVICES ARISING OUT OF OR IN CONNECTION WITH THE USE OF OR INABILITY TO USE OUR SERVICE AND OUR CONTENT, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT CERCACOR IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE EXCLUSION OR LIMITATION MAY NOT APPLY TO YOU, IN WHICH CASE SUCH EXCLUSION OR LIMITATION APPLIES TO THE FULLEST EXTENT ALLOWABLE UNDER THE APPLICABLE LAW.
IN NO EVENT WILL CERCACOR’S TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OF USE OR FROM THE USE OF OR INABILITY TO USE THE SERVICE EXCEED THE AMOUNTS YOU HAVE PAID TO CERCACOR FOR USE OF OUR SERVICE.

Indemnity

You will indemnify and hold harmless Cercacor and its officers, directors, employees and agents, from and against any claims, disputes, demands, liabilities, damages, losses, and costs and expenses, including, without limitation, reasonable legal and accounting fees arising out of or in any way connected with (i) your access to or use of Our Service, (ii) Your PI, or (iii) your breach of any warranties made by you hereunder or your violation of any other provision of these Terms of Use. 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.

Disclaimer of Warranties

OUR SERVICE (OTHER THAN OUR PRODUCT) IS PROVIDED “AS-IS”, WITHOUT ANY WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, WE EXPLICITLY DISCLAIM ALL WARRANTIES, INCLUDING BUT NOT LIMITED TO, THE WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE.

We make no warranty that Our Service, Our Content or Forums will meet your requirements or be available on an uninterrupted, secure, or error-free basis. We make no representations or warranties regarding the quality, accuracy, timeliness, completeness or reliability of Our Service, Our Content or Forums. Any use of Our Service, Our Content or Forums is at your own risk.

We will use reasonable care in providing Our Service (including Our Cloud Service), but, to the maximum extent permitted by applicable law, WE DO NOT GUARANTEE OR WARRANT THAT ANY DATA YOU MAY STORE OR ACCESS THROUGH THE SERVICE WILL NOT BE SUBJECT TO INADVERTENT CORRUPTION, LOSS OR DELETION, AND WE SHALL NOT BE LIABLE SHOULD SUCH CORRUPTION, LOSS OR DELETION OCCUR. It is your responsibility to maintain appropriate alternate backup of your data.

Our Product is covered by a limited warranty.

Termination

If you violate these Terms of Use, we reserve the right to deactivate your account or terminate your right to use Our Service, at our sole discretion, at any time and without notice or liability to you. Upon any such termination, we may delete Your PI, your Non-Personal Content and other information relating to your account. You may cancel your account at any time by contacting us at support@cercacor.com or by calling us at 1 (800) 610-8522 and selecting Support.

Copyright Policy

We respect the intellectual property rights of others and we expect our users to do the same. It is our policy, in our sole discretion and when appropriate, to terminate accounts of users who may infringe or repeatedly infringe the rights of copyright holders.
To submit a copyright infringement notification to us, please submit a notification pursuant to the Digital Millennium Copyright Act ("DMCA") by providing the below-specified Agent with the following information in writing:
• A physical signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
• Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are covered by a single notification, a representative list of such works.
• Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material.
• Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted.
• A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.
• A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

You acknowledge that if you fail to comply with all of the requirements of the preceding paragraph, your DMCA notice may not be valid. Please see 17 U.S.C. § 512 for more information regarding the DMCA and DMCA notifications.

Our Agent to Receive Notification of Claimed Copyright Infringement can be reached as follows:

By Email: legal@cercacor.com
By Mail:
DMCA Designated Agent
Attn: Legal Department
Cercacor Laboratories, Inc.
40 Parker
Irvine, CA 92618

Export Control

The United States and certain other countries control the export of products and information. You agree to comply with such restrictions and not to export or re-export Our Product, Our Content or other portion of Our Service to countries or persons prohibited under export control laws. By purchasing Our Product or by accessing our Service, you are agreeing that you are not in a country where such export is prohibited and that you are not on the U.S. Commerce Department's Table of Denial Orders or the U.S. Treasury Department's list of Specially Designated Nationals. You are responsible for compliance with the laws of your local jurisdiction regarding the import, export, or re-export of Our Product, Our Content or our Service.

General

Except as otherwise stated herein, these Terms of Use constitute the entire and exclusive understanding and agreement between Cercacor and you regarding Our Service, and these Terms of Use supersede and replace any and all prior oral or written understandings between Cercacor and you regarding Our Service and Our Content. If for any reason a court of competent jurisdiction finds any provision of these Terms of Use invalid or unenforceable, that provision will be enforced to the maximum extent possible and the other provisions of these Terms of Use will remain in full force and effect.

Except to the extent provided below in this paragraph, all legal issues arising from or related to the use of Our Service or Our Content will be construed in accordance with and determined by the laws of the State of California applicable to contracts entered into and performed within the State of California without respect to its conflict of laws principles. By using Our Service, you agree that the exclusive forum for any claims or causes of action arising out of your use of Our Service is the United States District Court for the District of California, or any California State court, sitting in Orange County, California, USA. You hereby irrevocably waive, to the fullest extent permitted by law, any objection which you may now or hereafter have to the laying of the venue of any such proceeding brought in such a court and any claim that any such proceeding brought in such a court has been brought in an inconvenient forum.

You may not assign or transfer these Terms of Use, by operation of law or otherwise, without Cercacor’s prior written consent. Any attempt by you to assign or transfer these Terms of Use without such consent will be null. Cercacor may freely assign or transfer these Terms of Use without restriction. Subject to the foregoing, these Terms of Use will bind and inure to the benefit of the parties, their successors and permitted assigns.
Any notices or other communications provided by Cercacor under these Terms of Use, including those regarding modifications to these Terms of Use, will be posted on our website.

Cercacor’s failure to enforce any right or provision of these Terms of Use 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 Cercacor. Except as expressly set forth in these Terms of Use, the exercise by either party of any of its remedies under these Terms of Use will be without prejudice to its other remedies under these Terms of Use or otherwise.

Contact Us

Please contact us if you have any questions about these Terms of Use.

Cercacor Laboratories, Inc.
Attn: Legal Department
40 Parker
Irvine, CA 92618
legal@cercacor.com