Terms of Use

Last Updated: 24 October 2017

We are pleased to offer you access to the spirosure.com website, its associated services (including without limitation Fenom CONNECT, fenom-connect.com, a cloud-based ecosystem for the collection and sharing of data between doctors and patients as part of an asthma management program), mobile applications (“Apps”) and their features (collectively, the “Online Services”) operated by Spirosure Inc. (“Company”) conditioned on your acceptance without modification of the following Terms of Use.

The following Terms of Use for the Online Services form a legal contract between you, an individual user, whether using the Online Services on behalf of yourself or another legal entity (collectively or individually “Users”) and the Company regarding your use of the Online Services. Together, Users and the Company are each referred to herein individually as a “Party” or collectively as the “Parties”. When using the Online Services, you may be subject to any additional posted guidelines or rules applicable to specific Online Services and features which may be posted from time to time (the “Guidelines”). All Guidelines are hereby incorporated by reference into these Terms of Use.

BEFORE USING THE ONLINE SERVICES, PLEASE READ THE FOLLOWING TERMS OF USE CAREFULLY. BY REGISTERING FOR AND/OR ACCESSING, BROWSING, OR USING THE ONLINE SERVICES, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THE FOLLOWING TERMS, INCLUDING THE GUIDELINES, AND ANY FUTURE MODIFICATIONS (COLLECTIVELY, THE “TERMS OF USE” OR “TERMS”). IF AT ANY TIME YOU DO NOT AGREE TO THESE TERMS, PLEASE IMMEDIATELY TERMINATE YOUR USE OF THE ONLINE SERVICES.

1. Eligibility. The Online Services are not intended for anyone under the age of 18. You represent that you meet the eligibility requirements in this Section and confirm that you are over the age of 18.

2. Privacy. Your privacy is important to the Company. The Company’s Privacy Policy (https://spirosure.com/privacy-notice) is hereby incorporated into these Terms by reference. Please read this policy carefully for information relating to the Company’s collection, use, and disclosure of your personal information.

3. Modification of the Terms. From time to time, the Company may change, modify, add, or remove portions of the Terms, and reserves the right to do so at its sole discretion.  If we modify the Terms, we will make them available through the Online Services, and indicate the date of the latest revision.  We encourage users to review the Terms periodically for changes.  In the event that the modifications materially alter your rights or obligations hereunder we will make reasonable efforts to notify you of the change.  For example, we may send a message to your email address, if we have one on file, or generate a pop-up or similar notification when you access the Online Services for the first time after such material changes are made.  All amended Terms automatically take effect 5 days after they are made available through the Online Services, except that (i) disputes between you and Company will be governed by the version of the Terms that was in effect on the date the dispute arose and (ii) if you do not agree with any changes to the Terms, you may terminate these Terms by ceasing use of the Online Services.  Your continued use of the Online Services after revised Terms have become effective indicates that you have read, understood and agreed to the current version of the Terms.

4. Online Services Access and Use. 

(a) Grant and Restrictions.  The Company grants you permission to use the Online Services as set forth in these Terms, provided that and for so long as (i) you use the Online Services solely for your personal or business use; (ii) except as expressly permitted in these Terms, you do not download, reproduce, redistribute, retransmit, publish, resell, distribute, publicly display or otherwise exploit any portion of the Online Services in any medium without the Company’s prior written authorisation; (iii) you do not alter or modify any part of the Online Services other than as may be reasonably necessary to use the Online Services for its intended purposes; (iv) you do not engage in any of the prohibited uses described below; and (v) you otherwise fully comply with these Terms. The Online Services are controlled and offered by the Company from its facilities in the United States.

(b) No Medical Advice.  You acknowledge that the Online Services are designed in part to enable you to obtain consultations for designated medical conditions by facilitating the connection between you and a licensed healthcare provider (a “Provider”).  Your Provider is solely responsible for providing you with medical care. The Company acts as a technology platform and neither controls nor interferes with the practice of medicine by Providers, each of whom is responsible for the medical services he or she provides.  The Online Services are not intended to be used as medical advice, diagnosis, or treatment of any medical condition or health problem, and you should seek all such medical advice, diagnosis, or treatment from your Provider.  Your use of the Online Services does not create an express or implied physician-patient relationship between you and the Company or its agents.  You should not rely solely on the Online Services when choosing a treatment plan or evaluating any other medical advice regarding any disease or medical condition.  The Company strongly urges that you to seek additional opinions from physicians in connection with any and all medical decisions, including testing, diagnosis and treatment options that may be available to you and independently verify any information on which you intend to rely with respect to such decisions.  The Company makes no guarantees whatsoever, express or implied, regarding the accuracy, completeness, timeliness, or usefulness of the Online Services.  The Company does not assume any risk whatsoever for your use of the Online Services or the results thereof.  In using the Online Services, you agree that the Company shall not be liable or otherwise responsible for any decision made or any action taken or any action not taken due to your use of the Online Services.  The Company does not assume any responsibility for any medical treatment of individuals using the Online Services.  You assume the risk of the limitations inherent in the Online Services and understand that no warranty or guarantee is made concerning any particular result.  THE MEDICAL CARE YOU RECEIVE FROM YOUR PROVIDER AS FACILITATED BY THE ONLINE SERVICES IS NOT A SUBSTITUTE FOR OTHER MEDICAL TREATMENT YOU MAY NEED. IF YOU ARE EXPERIENCING A MEDICAL EMERGENCY, CALL THE EMERGENCY SERVICES OR SEEK EMERGENCY MEDICAL HELP.

(c) Obligations of Providing Users.  If you use the Online Services in your capacity as a healthcare provider to patient users, you are also referred to herein as a “Providing User” and all provisions of this Agreement applicable to Providing Users shall apply to you.  Providing Users shall ensure that the individual patient or appropriate representative (as the case may be) has signed a patient consent which complies with all applicable laws and regulations of the Providing User’s home jurisdiction applicable to the use of the Online Services in connection with such patient’s medical care, and (a) authorises the Providing User to provide medical care to the patient utilising the Online Services, (b) authorises release and transmittal of the patient’s healthcare and other personal information via the Online Services, (c) authorises the Company and Providing User to retain copies of the patient’s information, (d) acknowledges that the medical care provided utilising the Online Services will not be based on any in-person evaluation or examination, (e) confirms that the patient has not been given any assurances that the Online Services will benefit the patient or his or her care or treatment, (f) confirms that it is the responsibility of the Providing User, and not Company, to be responsible for the patient’s diagnosis, care or treatment, and for the delivery of any required notification to the patient in connection therewith.  All information received by or disclosed to Providing Users with respect to patients in connection with the use of the Online Services shall be protected by Providing Users in accordance with all applicable laws all regulations of the Providing User’s home jurisdiction.

(d) Third Party Fees.  You understand and acknowledge that third party fees may apply to your use of the Apps, including without limitation fees charged by your mobile Online Services provider for network access, data transmission, or other similar fees.  You are solely responsible for all such fees. Please note that transmitting certain data to the Online Services or Apps may be data intensive, and you should confirm your data usage plan details with your network operator.

(e) Location-Based Services.  Some of the features of the Apps may now or in the future enable the Company to access your location in order to provide the Online Services based on your location (“Location-based Services”).  In order to use certain Location-based Services, you must enable certain features of your mobile phone, such as GPS, Wi-Fi, and Bluetooth, which enable the Company to identify your location through a variety of means, including GPS location, IP address, cell tower location, geo-fencing technology, or detection by physical on-location Wi-Fi or Bluetooth sensors, as available.  To the extent your location is collected through Wi-Fi or Bluetooth sensors, such sensors, and the associated data Online Services, may be provided by a third party, and you agree and acknowledge that such third party may access such information for the purpose of providing such data Online Services to the Company.  You will be given the option to automatically enable the provision of some Location-based Services through the Apps, and to enable or disable such Location-based Services at any time through the App’s Settings menu.  If you choose to disable any Location-based Services on your device and/or opt out of any Location-based Services through the App’s Settings menu, you will not be able to utilise certain features of the Apps.  By enabling Location-based Services on your device, you agree and acknowledge that (i) device data we collect from you is directly relevant to your use of the Apps, (ii) the Company may provide Location-based Services related to and based on your then-current location, and (iii) the Company may use any such information collected in connection with the provision of Location-based Services in connection with its provision of the Apps.  PLEASE NOTE THAT LOCATION DATA MAY NOT ALWAYS BE ACCURATE, AND THE COMPANY DISCLAIMS ANY AND ALL WARRANTIES RELATED TO LOCATION-BASED SERVICES.

(f) NOTICE REGARDING APPLE.  If you are using the Apps on an iOS-based device, you agree to and acknowledge that this Agreement is between you and Company only, not with Apple, Inc. (“Apple”), and Apple is not responsible for the Apps and the content thereof.  Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Online Services.  In the event of any failure of the App to conform to any applicable warranty, you may notify Apple and Apple will refund any applicable purchase price for the Apps to you; and, to the maximum extent permitted by applicable law, Apple has no other warranty obligation whatsoever with respect to the Apps.  Apple is not responsible for addressing any claims by you or any third party relating to the Apps or your possession and/or use of the Apps, including, but not limited to: (i) product liability claims; (ii) any claim that the Apps fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.  Apple is not responsible for the investigation, defence, settlement and discharge of any third party claim that the Apps and/or your possession and use of the Apps infringe that third party’s intellectual property rights.  You agree to comply with any applicable third party terms, when using the Apps.  Apple, and Apple’s subsidiaries, are third party beneficiaries of this Agreement, and upon your acceptance of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third party beneficiary of this Agreement.  You hereby represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.

5. Ownership; Proprietary Rights. The Online Services including without limitation any methods of operation, moral rights, documentation, software, content, visual interfaces, interactive features, information, graphics, design, compilation, computer code, products, and all other elements of the Online Services that are provided by Company (“Company Materials”) are owned and/or licensed by the Company. Except as expressly authorised by the Company, you agree not to sell, license, distribute, copy, modify, publicly perform or display, transmit, publish, edit, adapt, create derivative works from, or otherwise make unauthorised use of the Online Services or the Company Materials. The Company reserves all rights not expressly granted in these Terms. You shall not acquire any right, title, or interest to the Company Materials, except for the limited rights set forth in these Terms.

6. Account Information. In order to access certain of the Online Services, you will have to create an account. You acknowledge, consent, and agree that the Company may access, preserve and disclose your account information if required to do so by law or in a good faith belief that such access preservation or disclosure is reasonably necessary to (i) comply with legal process; (ii) enforce the Terms; (iii) provide certain customised features of the Online Services to you, if any; (iv) respond if you contact Company for any reason; or (v) protect the rights, property, or personal safety of Company, its other Users, and the public. 

7. Password. If you register you will be asked to provide a password. As you will be responsible for all activities that occur under your password, you should keep your password confidential. You are solely responsible for maintaining the confidentiality of your account and password and for restricting access to your computer and mobile devices, and you agree to accept responsibility for all activities that occur under your account or password. If you have reason to believe that your account is no longer secure (for example, in the event of a loss, theft, or unauthorised disclosure or use of your account ID or password), you shall immediately notify the Company. YOU ARE SOLELY LIABLE FOR LOSSES INCURRED BY YOU, THE COMPANY OR OTHERS DUE TO ANY UNAUTHORISED USE OF YOUR ACCOUNT.

8. Links and Third Party Websites; Integrated Services. The Company, Users and other third parties may provide links on the Online Services to other sites, including the content therein (“Reference Sites”). The Company has no control over such Reference Sites or their content, and therefore makes no claim or representation regarding, and expressly disclaims responsibility for, the accuracy, quality, legality, nature, availability, or reliability of Reference Sites or other content linked to by the Online Services. The Company provides links to you only as a convenience, and the inclusion of any link on the Online Services does not imply our affiliation, endorsement, or adoption of the linked Reference Site or other content or any information therein. ACCESS AND USE OF REFERENCE SITES, INCLUDING THE INFORMATION, CONTENT, MATERIAL, PRODUCTS, AND ONLINE SERVICES ON REFERENCE SITES OR AVAILABLE THROUGH REFERENCE SITES, IS SOLELY AT YOUR OWN RISK. Our terms and policies do not govern your use of any site other than the Online Services. You should review applicable terms and policies, including the privacy and data gathering practices, of any Reference Sites.

9. Online Services Availability. The Company may make changes to or discontinue any of the media, products, or services available within the Online Services at any time, and without notice. The media, products, or services on the Online Services may be out of date, and the Company makes no commitment to update these materials on the Online Services.

10. Prohibited Uses of the Online Services.

(a) As a condition of your use of the Online Services, you hereby represent and warrant that you will not use the Online Services for any purpose that is unlawful or prohibited (including, without limitation, the prohibitions in this Section) by these Terms.

(b) Any use by you of any of the Company Materials and Online Services other than for your personal or business use is strictly prohibited. You agree not to reproduce, duplicate, copy, sell, trade, resell, distribute, or exploit any portion of the Online Services for any purpose other than for your personal or business use.

(c) You agree not to use the Online Services if you do not meet the eligibility requirements described in Section 1 above.

(d) You agree not to use cheats, exploits, automation software, bots, hacks, mods or any unauthorised third party software designed to modify or interfere with the Online Services.

(e) You agree not to intentionally interfere with or damage, impair or disable the operation of the Online Services or any User’s enjoyment of them by any means, including but not limited to uploading or otherwise disseminating viruses, worms, spyware, adware, or other malicious code, or placing a disproportionate load on the Online Services with the intended result of denying Online Services to other Users.

(f) You agree not to remove, circumvent, disable, damage or otherwise interfere with any security-related features of the Online Services, features that prevent or restrict the use or copying of any part of the Online Services, or features that enforce limitations on the use of the Online Services.

(g) You agree not to attempt to gain unauthorised access to the Online Services or any part of it, other accounts, computer systems or networks connected to the Online Services or any part of it, through hacking, password mining or any other means or interfere or attempt to interfere with the proper working of the Online Services or any activities conducted through the Online Services.

(h) You agree not to obtain or attempt to obtain any materials or information through any means not intentionally made available through the Online Services. You agree neither to modify the Online Services in any manner or form, nor to use modified versions of the Online Services, including (without limitation) for the purpose of obtaining unauthorised access to the Online Services.

(i) You agree that you will not use any robot, spider, scraper, or other automated means to access the Online Services for any purpose without our express written permission or bypass our robot exclusion headers or other measures we may use to prevent or restrict access to the Online Services.

(j) You agree not to utilise framing techniques to enclose any trademark, logo, or other Company Materials without our express written consent. You agree not to use any meta tags or any other “hidden text” utilising the Company’s name or trademarks without the Company’s express written consent.

(k) You agree not to use any Company logos, graphics, or trademarks as part of the link without our express written consent.

(l) You agree not to reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Online Services or any part thereof, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation.

(m) You agree not to modify, adapt, translate, or create derivative works based upon the Online Services or any part thereof, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation.

(n) You agree not to impersonate another person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity.

(o) You agree to monitor your user account to restrict use by minors, and you will deny access to children under the age of 13. You accept full responsibility for any unauthorised use of the Online Services by minors in connection with your user account. You are responsible for any use of your credit card or other payment instrument (e.g. Paypal) by minors.

(p) You agree not to have more than one user account, at any given time, and shall not create a user account using a false identity or information, or on behalf of someone other than yourself.

(q) You agree not to have a user account or use the Online Services if you have previously been removed by the Company or previously been banned from using the Online Services.

(r) You agree not to collect, harvest or post anyone’s private information, including personally identifiable information (whether in text, image or video form), identification documents, or financial information through the Online Services.

(s) You agree not to upload or transmit or attempt to upload or transmit, without the Company’s express permission, any material that acts as a passive or active information collection or transmission mechanism, including, without limitation, clear graphics interchange formats (“gifs”), 1x1 pixels, web bugs, cookies or other similar devices (sometimes referred to as “spyware,” “passive collection mechanisms” or “pcms”).

(t) You agree not to engage in any act that the Company deems to be in conflict with the spirit or intent of the Online Services, including but not limited to circumventing or manipulating these Terms, our Online Services rules, Online Services mechanics or policies.

(u) You agree not to make improper use of the Company’s support services, including by submitting false abuse reports or using profane and abusive language in your communications with our support personnel.

11. Feedback. You agree that any feedback, analysis, suggestions and comments to Company provided by you (collectively, “Feedback”) will become the property of Company. AS FURTHER CONSIDERATION FOR YOUR ACCESS TO THE ONLINE SERVICES, THE USER HEREBY ASSIGNS TO THE COMPANY ALL RIGHTS, TITLE AND INTEREST, INCLUDING ALL INTELLECTUAL PROPERTY RIGHTS, IN AND TO THE FEEDBACK. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THE USER AGREES THAT THE COMPANY SHALL HAVE THE PERPETUAL, IRREVOCABLE AND WORLDWIDE RIGHT TO USE, COPY, DISPLAY, PERFORM, TRANSLATE, MODIFY, LICENSE, SUBLICENSE AND OTHERWISE EXPLOIT ALL OR PART OF THE FEEDBACK OR ANY DERIVATIVE THEREOF IN ANY EMBODIMENT, MANNER OR MEDIA NOW KNOWN OR HEREAFTER DEVISED WITHOUT ANY REMUNERATION, COMPENSATION OR CREDIT TO The USER. The User represents and warrants that the User has the right to make the foregoing assignment and to grant to the Company the rights granted under this Section and that any Feedback which is provided by the User to the Company does not infringe any third-party intellectual property rights. Notwithstanding the foregoing assignment, the Company grants to you a non-exclusive, non-transferable, non-sublicensable, worldwide, perpetual and irrevocable license to use the Feedback for your own personal, non-commercial purposes that do not compete, directly or indirectly, with our use of such Feedback.

12. Terms of Use Violations; Termination.  You agree that the Company, in its sole discretion, may terminate any account (or any part thereof) you may have through the Online Services or your use of the Online Services. You agree that your access to the Online Services or any account you may have or portion thereof may be terminated without prior notice, and you agree that the Company shall not be liable to you or any third-party for any such termination. These remedies are in addition to any other remedies the Company may have at law or in equity.

13. INDEMNIFICATION; HOLD HARMLESS. YOU AGREE TO INDEMNIFY AND HOLD HARMLESS THE COMPANY, AND ITS PARENT, SUBSIDIARIES, AFFILIATES OR ANY RELATED COMPANIES (INCLUDING THOSE WHICH SHARE SUBSTANTIALLY COMMON OWNERSHIP), AND THE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS AND REPRESENTATIVES OF ANY OF THEM FROM ANY AND ALL CLAIMS, LOSSES, OBLIGATIONS, DAMAGES, LIABILITIES, COSTS, DEBT, AND EXPENSES (INCLUDING ATTORNEY’S FEES) ARISING OUT OF (I) YOUR USE OR MISUSE OF THE ONLINE SERVICES; (II) YOUR VIOLATION OF THESE TERMS; (III) YOUR VIOLATION OF THE RIGHTS OF ANY OTHER PERSON OR ENTITY; (IV) YOUR BREACH OF THE FOREGOING REPRESENTATIONS, WARRANTIES, AND COVENANTS; AND (V) ANY UNAUTHORISED USE OF YOUR ACCOUNT NOT CAUSED BY COMPANY. THE COMPANY RESERVES THE RIGHT, AT YOUR EXPENSE, TO ASSUME THE EXCLUSIVE DEFENCE AND CONTROL OF ANY MATTER FOR WHICH YOU ARE REQUIRED TO INDEMNIFY US AND YOU AGREE TO COOPERATE WITH OUR DEFENCE OF THESE CLAIMS. YOU AGREE NOT TO SETTLE ANY MATTER GIVING RISE TO YOUR INDEMNIFICATION OBLIGATIONS WITHOUT THE PRIOR WRITTEN CONSENT OF THE COMPANY. THE COMPANY WILL USE REASONABLE EFFORTS TO NOTIFY YOU OF ANY SUCH CLAIM, ACTION, OR PROCEEDING UPON BECOMING AWARE OF IT.

14. DISCLAIMERS; NO WARRANTIES.

(a) ACKNOWLEDGEMENT. YOU EXPRESSLY ACKNOWLEDGE THAT AS USED IN THIS SECTION 14, AND SECTIONS 15 AND 16 BELOW, THE TERM COMPANY INCLUDES THE COMPANY’S PARENT, SUBSIDIARY, AFFILIATED AND OTHER RELATED COMPANIES (INCLUDING THOSE WHICH SHARE SUBSTANTIALLY COMMON OWNERSHIP) AND EACH OF THEIR OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, MEMBERS, AGENTS AND SUBCONTRACTORS.

(B) NO WARRANTIES. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, THE COMPANY DISCLAIMS ALL WARRANTIES, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE COMPANY OR THROUGH THE ONLINE SERVICES, WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN.

(C) “AS IS” AND “AS AVAILABLE” AND “WITH ALL FAULTS.” YOU EXPRESSLY AGREE THAT THE USE OF THE ONLINE SERVICES IS AT YOUR SOLE RISK. THE ONLINE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE”, “WITH ALL FAULTS” BASIS AND WITHOUT WARRANTIES OR REPRESENTATIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED.

(D) ONLINE SERVICES OPERATION. THE COMPANY DOES NOT WARRANT THAT THE COMPANY MATERIALS, THE ONLINE SERVICES, OR ANY OTHER INFORMATION OFFERED ON OR THROUGH THE ONLINE SERVICES OR ANY REFERENCE SITES WILL BE UNINTERRUPTED, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS AND DOES NOT WARRANT THAT ANY OF THE FOREGOING WILL BE CORRECTED.

(E) ACCURACY. THE COMPANY MAKES NO GUARANTEES WHATSOEVER, EXPRESS OR IMPLIED, REGARDING THE ACCURACY, COMPLETENESS, TIMELINESS, OR USEFULNESS OF ANY INFORMATION CONTAINED OR REFERENCED IN THE ONLINE SERVICES.  HEALTH-RELATED INFORMATION AND TECHNOLOGY CHANGE FREQUENTLY AND THEREFORE INFORMATION CONTAINED IN THE ONLINE SERVICES MAY BE OUTDATED, INCOMPLETE OR INCORRECT.  TGHE COMPANY DOES NOT ASSUME ANY RISK WHATSOEVER FOR YOUR USE OF THE ONLINE SERVICES OR THE INFORMATION CONTAINED THEREIN.  IN USING THE ONLINE SERVICES, YOU AGREE THAT NEITHER THE COMPANY NOR ANY OTHER PARTY IS OR WILL BE LIABLE OR OTHERWISE RESPONSIBLE FOR ANY DECISION MADE OR ANY ACTION TAKEN OR ANY ACTION NOT TAKEN DUE TO YOUR USE OR RELIANCE ON ANY INFORMATION PRESENTED AS PART OF THE ONLINE SERVICES OR AS A RESULT OF USING THE ONLINE SERVICES.

(F) HARM TO YOUR COMPUTER OR MOBILE DEVICE. YOU UNDERSTAND AND AGREE THAT YOUR USING, ACCESSING, DOWNLOADING, OR OTHERWISE OBTAINING INFORMATION, MATERIALS, OR DATA THROUGH THE ONLINE SERVICES (INCLUDING RSS FEEDS) OR ANY REFERENCE SITES IS AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE) OR LOSS OF DATA THAT RESULTS FROM THE USE OR DOWNLOAD OF, OR OTHER ACCESS TO SUCH MATERIAL OR DATA.

15. LIMITATION OF LIABILITY AND DAMAGES.

(A) LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCES, AND UNDER NO LEGAL THEORY, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, SHALL THE COMPANY OR ITS THIRD PARTY PARTNERS, LICENSORS OR SUPPLIERS, BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, DATA OR USE OR COST OF COVER) ARISING OUT OF OR RELATING TO THESE TERMS OR THAT RESULT FROM YOUR USE OF, OR THE INABILITY TO USE THE ONLINE SERVICES, OR ANY OTHER INTERACTIONS WITH THE COMPANY, EVEN IF THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

(B) LIMITATION OF DAMAGES. IN NO EVENT SHALL THE COMPANY OR ITS THIRD PARTY PARTNERS, LICENSORS OR SUPPLIERS’ TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THESE TERMS OR YOUR USE OF THE ONLINE SERVICES (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), WARRANTY, OR OTHERWISE) EXCEED THE GREATER OF ONE HUNDRED DOLLARS (USD $100) OR ONE-HALF OF THE ANNUAL FEES PAID BY YOU (IF APPLICABLE) IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE THAT SUCH CLAIM AROSE.

(C) THIRD PARTY PRODUCTS AND ONLINE SERVICES. SOME USERS MAY USE THE ONLINE SERVICES TO MARKET PRODUCTS AND/OR ONLINE SERVICES. THE ABOVE LIMITATIONS SHALL ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY REASON OF ANY SUCH PRODUCTS OR ONLINE SERVICES MARKETED, SOLD OR PROVIDED BY USERS, OR OTHERWISE BY THIRD PARTIES OTHER THAN THE COMPANY AND RECEIVED BY YOU THROUGH OR ADVERTISED ON THE ONLINE SERVICES OR THIRD PARTY SITES, INCLUDING WITHOUT LIMITATION ANY REFERENCE SITES.

16. LIMITATIONS BY APPLICABLE LAW; BASIS OF THE BARGAIN.

(A) LIMITATIONS BY APPLICABLE LAW. CERTAIN JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF YOU RESIDE IN SUCH A JURISDICTION, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS. THE LIMITATIONS OR EXCLUSIONS OF WARRANTIES, REMEDIES, OR LIABILITY CONTAINED IN THESE TERMS APPLY TO YOU TO THE FULLEST EXTENT SUCH LIMITATIONS OR EXCLUSIONS ARE PERMITTED UNDER THE LAWS OF THE JURISDICTION IN WHICH YOU ARE LOCATED.

(B) BASIS OF THE BARGAIN. YOU ACKNOWLEDGE AND AGREE THAT THE COMPANY HAS OFFERED ITS PRODUCTS AND ONLINE SERVICES AND ENTERED INTO THESE TERMS IN RELIANCE UPON THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN, THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN YOU AND THE COMPANY, AND THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN YOU AND THE COMPANY. YOU ACKNOWLEDGE AND AGREE THAT COMPANY WOULD NOT BE ABLE TO PROVIDE THE ONLINE SERVICES TO YOU ON AN ECONOMICALLY REASONABLE BASIS WITHOUT THESE LIMITATIONS.

17. Digital Millennium Copyright Act Compliance.

(a) Infringement Claims. If you are a copyright owner or an agent thereof, and believe that any content of the Online Services infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA”) by providing our Copyright Agent with the following information in writing (see 17 U.S.C 512(c)(3) for further details).

(i) A physical or electronic signature of a person authorised to act on behalf of the owner of an exclusive right that is allegedly infringed;

(ii) Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are covered by a single notification, a representative listing of such works or a link or URL to all such works;

(iii) Identification of the material that is claimed to be infringing or to be the subject of infringing activity on the Online Services and that is to be removed or access to which is to be disabled, including the link or URL for all such material on the Online Services;

(iv) Information reasonably sufficient to permit the Company 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;

(v) A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorised by the copyright owner, its agent, or the law; and

(vi) A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorised to act on behalf of the owner of an exclusive right that is allegedly infringed.

Company’s designated Copyright Agent to receive notifications of claimed infringement is:

Software Department
c/o Spirosure Inc.
7020 Koll Center Parkway, Suite 110
Pleasanton, CA 94566-3107, USA
email: dmca@spirosure.com

FAILURE TO INCLUDE ALL OF THE ABOVE INFORMATION, ESPECIALLY SPECIFIC INFORMATION ABOUT WHERE INFRINGING CONTENT MAY BE FOUND, WILL RESULT IN A DELAY IN THE PROCESSING OF YOUR DMCA NOTIFICATION AND MAY RESULT IN YOUR HAVING TO REPEAT SOME OR ALL OF THE ABOVE PROCESS.

(b) Notice And Takedown. If we receive proper notification of claimed copyright infringement, we will respond expeditiously by removing, or disabling access to, the material that is claimed to be infringing, as described below, or to be the subject of infringing activity. We will also comply with the appropriate provisions of the DMCA in the event a counter-notification is received, as described below.

18.  Dispute Resolution

IN THE EVENT OF ANY CONTROVERSY OR CLAIM ARISING OUT OF OR RELATING TO ANY PROVISION OF THESE TERMS OF USE OR THE BREACH THEREOF, THE PARTIES WILL TRY TO SETTLE THEIR DIFFERENCES AMICABLY BY THEMSELVES.  THEREAFTER, ANY DISAGREEMENTS THAT CONTINUE FOR MORE THAN SIXTY (60) DAYS SHALL BE SUBMITTED FOR ARBITRATION CONDUCTED UNDER THE RULES AND PROCEDURES OF THE JUDICIAL ARBITRATION AND MEDIATION SERVICE (“JAMS”) BY ONE (1) ARBITRATOR APPOINTED IN ACCORDANCE WITH SAID RULES.  ANY SUCH ARBITRATION SHALL BE HELD IN ALAMEDA COUNTY, CALIFORNIA.  THE ARBITRATOR SHALL DETERMINE WHAT DISCOVERY WILL BE PERMITTED, CONSISTENT WITH THE GOAL OF LIMITING THE COST AND TIME WHICH THE PARTIES MUST EXPEND FOR DISCOVERY; PROVIDED THE ARBITRATOR SHALL PERMIT SUCH DISCOVERY AS THE ARBITRATOR DEEMS NECESSARY TO PERMIT AN EQUITABLE RESOLUTION OF THE DISPUTE.  ANY WRITTEN EVIDENCE ORIGINALLY IN A LANGUAGE OTHER THAN ENGLISH SHALL BE SUBMITTED IN ENGLISH TRANSLATION ACCOMPANIED BY THE ORIGINAL OR A TRUE COPY THEREOF.  THE COSTS OF THE ARBITRATION, INCLUDING ADMINISTRATIVE AND ARBITRATOR’S FEES, SHALL BE SHARED EQUALLY BY THE PARTIES, AND EACH PARTY SHALL BEAR ITS OWN COSTS AND ATTORNEYS’ AND WITNESSES’ FEES INCURRED IN CONNECTION WITH THE ARBITRATION.  THE DECISION OF THE ARBITRATOR SHALL BE WRITTEN, FINAL, NON-APPEALABLE, CONCLUSIVE AND BINDING ON THE PARTIES TO THE ARBITRATION.  ANY AWARD MAY BE ENTERED IN A COURT OF COMPETENT JURISDICTION FOR A JUDICIAL RECOGNITION OF THE DECISION AND APPLICABLE ORDERS OF ENFORCEMENT.  NOTWITHSTANDING THE FOREGOING, EITHER PARTY MAY APPLY TO ANY COURT OF COMPETENT JURISDICTION FOR THE COUNTY OF ALAMEDA AND STATE OF CALIFORNIA FOR INJUNCTIVE RELIEF OR OTHER PROVISIONAL RELIEF WITHOUT BREACH OF THIS SECTION 18.

19.  Miscellaneous.

(a) Notice. The Company may provide you with notices, including those regarding changes to these Terms, by email, regular mail, or postings on the Online Services. If Notice is by e-mail or mail, it will be provided to the e-mail or regular mailing address provided by you with your account information and it is your responsibility to update such account information for any changes. Notice to you will be deemed given twenty-four hours after an email is sent, unless Company is notified that the email address is invalid, and if through postal mail, three days after the date of mailing.

(b) Governing Law. These Terms shall be governed by and construed in accordance with the laws of the State of California, without giving effect to any principles of conflicts of law.

(c) Waiver. A provision of these Terms may be waived only by a written instrument executed by the party entitled to the benefit of such provision. The failure of Company to exercise or enforce any right or provision of these Terms will not constitute a waiver of such right or provision.

(d) Severability. If any provision of these Terms shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from these Terms and shall not affect the validity and enforceability of any remaining provisions.

(e) Assignment. The Terms and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Company without restriction. Any assignment attempted to be made in violation of these Terms shall be void.

(f) No Relationship. You agree that no joint venture, partnership, employment, or agency relationship exists between you and Company as a result of these Terms or use of the Online Services. You further acknowledge that by submitting User Content or other Contributed Content, no confidential, fiduciary, contractually implied or other relationship is created between you and Company other than pursuant to these Terms.

(g) Headings. The heading references herein are for convenience purposes only, do not constitute a part of these Terms, and shall not be deemed to limit or affect any of the provisions hereof.

(h) Entire Agreement. This is the entire agreement between you and Company relating to the subject matter herein and supersedes all previous communications, representations, understandings and agreements, either oral or written, between the parties with respect to said subject matter. These Terms shall not be modified except in writing, signed by both parties, or by a change to these Terms made by the Company as set forth in Section 3 above.

(i) Language.  The English language version of these Terms shall govern and control any translations of these Terms into any other language.

(j) CLAIMS. YOU AGREE THAT ANY CAUSE OF ACTION BROUGHT BY YOU ARISING OUT OF OR RELATED TO THE ONLINE SERVICES MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.

(k) Disclosures. The Online Services hereunder are offered by Spirosure Inc., located at 7020 Koll Center Parkway, Suite 110, Pleasanton, CA 94566-3107, USA.