OPUM End User License Agreement
Last Updated 31st July, 2020
OPUM Technologies Limited (“OPUM,” “we,” or “us,” as applicable) makes available an integrated care platform (the “Platform”) to end-users (“you”). The Platform consists of (a) a smart knee brace (the “Product”), (b) electronics hardware attachable to the Product or other third-party knee braces (the “Hardware”), (c) software (including firmware) embedded onto the Hardware (the “Embedded Software”) and (d) a software-as-a-services dashboard accessible via login on your mobile or other electronic device (the “Services”). This OPUM End User License Agreement (this “Agreement”) governs your access to, and use of, the Platform and all portions thereof.
PLEASE READ THIS AGREEMENT CAREFULLY, INCLUDING THE MANDATORY ARBITRATION PROVISION IN SECTION 12, WHICH REQUIRES THAT DISPUTES BE RESOLVED BY FINAL AND BINDING ARBITRATION ON AN INDIVIDUAL BASIS, NOT A CLASS-WIDE OR CONSOLIDATED BASIS. IF YOU DO NOT WISH TO BE SUBJECT TO ARBITRATION, YOU MAY OPT OUT OF THE ARBITRATION PROVISION BY FOLLOWING THE INSTRUCTIONS PROVIDED IN SECTION 12.
BY CREATING AN ACCOUNT ON THE SERVICES, YOU (i) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT, AND (ii) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS. IF YOU DO NOT AGREE TO THIS AGREEMENT, YOU MAY NOT USE THE PLATFORM OR ANY PORTIONS THEREOF. THE EMBEDDED SOFTWARE AND THE SERVICES ARE LICENSED, NOT SOLD, TO YOU.
We may make changes to this Agreement from time to time. If we make changes, we will provide you with notice of such changes, such as by sending an email, providing a notice through the Services, or updating the date at the top of this Agreement. Unless we state otherwise in our notice, the amended Agreement will be effective immediately, and your continued use of the Platform after we provide such notice will confirm your acceptance of the changes. If you do not agree to the amended Agreement, you must stop using the Platform.
1. Privacy. For information about how we collect, use, share or otherwise process information about you, please see our Privacy Policy.
2. Eligibility, Accounts, Payment.
a. Eligibility. You must be at least 13 years of age to use the Platform or any portion thereof. If you are under 18 years of age (or the age of legal majority where you live), you may use the Platform and any portion thereof only under the supervision of a parent or legal guardian who agrees to be bound by this Agreement. If you are a parent or legal guardian of a user under the age of 18 (or the age of legal majority), you agree to be fully responsible for the acts or omissions of such user in relation to the Platform and any portion thereof. If you use the Platform or any portion thereof on behalf of another person or entity, (a) all references to “you” throughout this Agreement will include that person or entity, (b) you represent that you are authorized to accept this Agreement on that person’s or entity’s behalf, and (c) in the event you or the person or entity violates this Agreement, the person or entity agrees to be responsible to us.
b. Accounts. You will need to register for an account to access the Services. When you register for an account, you will provide accurate account information and promptly update this information if it changes. You also will maintain the security of your account and promptly notify us if you discover or suspect that someone has accessed your account without your permission. If you permit others to use your account credentials, you are responsible for the activities of such users that occur in connection with your account. We reserve the right to reclaim usernames, including on behalf of businesses or individuals that hold legal claim, including trademark rights, in those usernames.
c. Payment. You may be required to pay a recurring subscription service fee to access the Services, which is charged each month to the payment method you have on file. All fees are in U.S. Dollars and are non-refundable. The fees we charge for using the Services are disclosed to you when you register for an account to access the Services and are listed on our website. We may change our fees from time to time on 30 days’ advance notice to you via email or via the Services. We will charge the service fee each month to the payment method you have on file. You must have a payment method on file and pay all fees and applicable taxes associated with the Services by the payment due date. You represent and warrant that you are authorized to use the payment method you designate via the Services and authorize us to charge all fees to that method. If your payment method fails or your payment is past due, your right to use the Services may be suspended. We also may collect fees owed by charging other payment methods on file with us or retain collection agencies and legal counsel. In addition, if your payment is past due, you will be subject to late fees, including (unless and to the extent prohibited by law) a late charge of 1.5% per month. OPUM, or the collection agencies we retain, may also report information about your account to credit bureaus, and as a result, late payments, missed payments, or other defaults on your account may be reflected in your credit report.
3. License. Subject to your compliance with this Agreement, we grant you a non-exclusive, non-transferable, non-sublicensable license to (a) use one copy of the Embedded Software, in executable object code form only, solely on the Product that you have purchased or another third-party knee brace with which the Hardware and such Embedded Software are compatible and (b) access and use the Services on the mobile or other device you own or are authorized to control (your “Device”), in each case solely for your internal, non-commercial purposes.
4. Restrictions. You agree not to, and you will not permit others to, (a) license, sell, resell, rent, lease, assign, distribute, transmit, host, outsource, disclose or otherwise commercially exploit the Platform or any portion thereof or make the Platform or any portion thereof available to any third party, (b) access or use the Platform or any portion thereof for any purpose other than as permitted in this Agreement, (c) remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in the Platform or any portion thereof, (d) copy, reproduce, republish, modify, make derivative works of, disassemble, reverse compile, or reverse engineer the Platform or any portion thereof, or (e) upload, transmit, or distribute any computer viruses, worms, or software intended to damage or alter the Platform or any portion thereof. You may not release the results of any performance or functional evaluation of the Embedded Software or Services to any third party without prior written approval of OPUM for each such release. You may not access or use the Platform or any portion thereof in order to build a competitive service or product. You must use the Platform and all portions thereof in accordance with applicable law. OPUM owns the Embedded Software and Services, and all and any and all Intellectual Property Rights embodied in or related to the foregoing. For purposes of this Agreement, “Intellectual Property Rights” means patent rights, copyrights, moral rights, trademark rights, trade secret rights, and any other form of intellectual property rights recognized in any jurisdiction, including applications and registrations for any of the foregoing.
5. Your Content. The Services may allow you and other users to create, post, store and share content, including messages, text, photos, videos and other materials (collectively, “User Content”). Except for the license you grant below, you retain all rights in and to your User Content, as between you and OPUM. You grant us a perpetual, irrevocable, nonexclusive, royalty-free, worldwide, fully paid, and sublicensable license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, publicly perform and display your User Content and any name, username or likeness provided in connection with your User Content in all media formats and channels now known or later developed without compensation to you. When you post or otherwise share User Content on or through the Services, you understand that your User Content and any associated information (such as your username) may be visible to others. You may not create, post, store or share any User Content that violates this Agreement or for which you do not have all the rights necessary to grant us the license described above. You represent and warrant that your User Content, and our use of such content as permitted by this Agreement, will not violate any rights of or cause injury to any person or entity. Although we have no obligation to screen, edit or monitor User Content, we may delete or remove User Content at any time and for any reason with or without notice. Without limiting the foregoing, you may not create, post, store or share any User Content that: (a) is unlawful, libelous, defamatory, obscene, pornographic, indecent, lewd, suggestive, harassing, threatening, invasive of privacy or publicity rights, abusive, inflammatory or fraudulent; (b) would constitute, encourage or provide instructions for a criminal offense, violate the rights of any party or otherwise create liability or violate any local, state, national or international law; (c) may infringe any Intellectual Property Rights or other rights of any party; (d) contains or depicts any statements, remarks or claims that do not reflect your honest views and experiences; (e) impersonates, or misrepresents your affiliation with, any person or entity; (f) contains any unsolicited promotions, political campaigning, advertising or solicitations; (g) contains any private or personal information of a third party without such third party’s consent; (h) contains any viruses, corrupted data or other harmful, disruptive or destructive files or content; or (i) in our sole judgment, is objectionable, restricts or inhibits any other person from using or enjoying the Services, or may expose us or others to any harm or liability of any type. Enforcement of this Section 5 is solely at our discretion, and failure to enforce this section in some instances does not constitute a waiver of our right to enforce it in other instances. In addition, this Section 5 does not create any private right of action on the part of any third party or any reasonable expectation that the Services will not contain any content that is prohibited by such rules.
6. DMCA. In accordance with the Digital Millennium Copyright Act and other applicable law, we have adopted a policy of terminating, in appropriate circumstances, the accounts of users who repeatedly infringe the intellectual property rights of others. If you believe that anything on the Services infringes any copyright that you own or control, you may notify OPUM’s designated agent as follows:
Designated Agent: OPUM Data Security & Privacy Officer
Address: 49 Symonds St
Auckland, 1010, NZ
Telephone Number: +1 (858) 333 5092 (from USA)/0800-220 7070 (from NZ)
E-Mail Address: suport@opumtechnologies.com
Please see 17 U.S.C. § 512(c)(3) for the requirements of a proper notification. Also, please note that if you knowingly misrepresent that any activity or material on the Services is infringing, you may be liable to OPUM for certain costs and damages.
7. Feedback. You may voluntarily post, submit or otherwise communicate to us any questions, comments, suggestions, ideas, original or creative materials or other information about OPUM or the Platform or any portions thereof (collectively, “Feedback”). You understand that we may use such Feedback for any purpose, commercial or otherwise, without acknowledgment or compensation to you, including, without limitation, to develop, copy, publish, or improve the Feedback in our sole discretion. You understand that we may treat Feedback as nonconfidential.
8. Term and Termination. This Agreement begins on the date you create an account on the Services (the “Effective Date”) and will continue until terminated as set forth herein. We reserve the right to terminate this Agreement, modify the Embedded Software or Services, or suspend or stop providing all or portions of the Embedded Software or Services at any time. You may terminate this Agreement at any time by closing your account. Notwithstanding any other provisions of this Agreement, this sentence and Sections 1, 4, 5, 7, 9, 10, 11, 12, 13, and 14 survive any termination of this Agreement.
9. Third-Party Services; Disclaimers. You acknowledge and agree that (a) the use and availability of the Platform and any portions thereof are dependent on third-party products, services, vendors and service providers (including, without limitation, knee braces and/or other medical devices or equipment produced or made available by third parties) (the “Third-Party Services”), (b) the Third-Party Services may not operate in a reliable manner and may impact the way the Platform and any portions thereof operate, and (c) OPUM is not responsible for damages or losses due to the operation of the Third-Party Services. YOUR USE OF THE PLATFORM IS AT YOUR SOLE RISK. THE PLATFORM, ANY PORTIONS THEREOF, AND ANY CONTENT THEREIN IS PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. IN ADDITION, OPUM DOES NOT REPRESENT OR WARRANT THAT THE PLATFORM, ANY PORTIONS THEREOF, OR ANY CONTENT THEREIN IS ACCURATE, COMPLETE, RELIABLE, CURRENT OR ERROR-FREE. WHILE OPUM ATTEMPTS TO MAKE YOUR USE OF THE PLATFORM SAFE, WE CANNOT AND DO NOT REPRESENT OR WARRANT THAT THE PLATFORM OR ANY PORTIONS THEREOF ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOU ASSUME THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE PLATFORM AND ALL PORTIONS THEREOF. You acknowledge and agree that (i) OPUM is not a healthcare provider and does not provide any form of medical care, opinion, diagnosis, treatment, or advice, and (ii) the Platform (and all portions thereof) is for informational purposes only and is not intended as a substitute for professional medical care, opinion, diagnosis, treatment, or advice. You should not use the Platform or any portion thereof for diagnosing or treating a health problem or disease. Always seek the advice of your physician or other qualified health provider before using the Platform or any portions thereof. You expressly acknowledge and agree that you are not entering into a doctor-patient or other healthcare provider-patient relationship with OPUM.
10. Indemnity. To the fullest extent permitted by applicable law, you will indemnify, defend and hold harmless OPUM and our officers, directors, agents, partners, resellers, customers, and employees from and against any losses, liabilities, claims, demands, damages, expenses or costs arising out of or related to your (a) User Content or Feedback, (b) violation of this Agreement, (c) violation, misappropriation or infringement of any rights of another (including Intellectual Property Rights or privacy rights), or (d) your conduct in connection with the Services.
11. Limitations of Liability. To the fullest extent permitted by applicable law, OPUM will not be liable to you under any theory of liability—whether based in contract, tort, negligence, strict liability, warranty, or otherwise—for any indirect, consequential, exemplary, incidental, punitive or special damages or lost profits, even if OPUM has been advised of the possibility of such damages. The total liability of OPUM for any claim arising out of or relating to this Agreement or the Platform, regardless of the form of the action, is limited to $100. Multiple claims will not expand this limitation. This Section 11 will be given full effect even if any remedy specified in this Agreement is deemed to have failed of its essential purpose.
12. Dispute Resolution; Binding Arbitration. Please read the following section carefully because it requires you to arbitrate certain disputes and claims with OPUM and limits the manner in which you can seek relief from us, unless you opt out of arbitration by following the instructions set forth below. No class or representative actions or arbitrations are allowed under this arbitration agreement. In addition, arbitration precludes you from suing in court or having a jury trial.
a. No Representative Actions. You and OPUM agree that any dispute arising out of or related to this Agreement or our Platform (or any portions thereof) is personal to you and OPUM and that any dispute will be resolved solely through individual action, and will not be brought as a class arbitration, class action or any other type of representative proceeding.
b. Arbitration of Disputes. Except for small claims disputes in which you or OPUM seeks to bring an individual action in small claims court located in the county of your billing address or disputes in which you or OPUM seeks injunctive or other equitable relief for the alleged unlawful use of intellectual property, you and OPUM waive your rights to a jury trial and to have any dispute arising out of or related to this Agreement or our Platform (or any portion thereof) resolved in court. Instead, for any dispute or claim that you have against OPUM or relating in any way to the Platform (or any portion thereof), you agree to first contact OPUM and attempt to resolve the claim informally by sending a written notice of your claim (“Notice”) to OPUM by email at support@opumtechnologies.com. The Notice must (a) include your name, residence address, email address, and telephone number; (b) describe the nature and basis of the claim; and (c) set forth the specific relief sought. Our notice to you will be similar in form to that described above. If you and OPUM cannot reach an agreement to resolve the claim within thirty (30) days after such Notice is received, then either party may submit the dispute to binding arbitration administered by JAMS or, under the limited circumstances set forth above, in court. All disputes submitted to JAMS will be resolved through confidential, binding arbitration before one arbitrator. Arbitration proceedings will be held in San Diego, California in accordance with the JAMS Streamlined Arbitration Rules and Procedures (“JAMS Rules”). The most recent version of the JAMS Rules are available on the JAMS website and are hereby incorporated by reference. You either acknowledge and agree that you have read and understand the JAMS Rules or waive your opportunity to read the JAMS Rules and waive any claim that the JAMS Rules are unfair or should not apply for any reason.
c. FAA. You and OPUM agree that this Agreement affects interstate commerce and that the enforceability of this Section 12 will be substantively and procedurally governed by the Federal Arbitration Act, 9 U.S.C. § 1, et seq. (the “FAA”), to the maximum extent permitted by applicable law. As limited by the FAA, this Agreement and the JAMS Rules, the arbitrator will have exclusive authority to make all procedural and substantive decisions regarding any dispute and to grant any remedy that would otherwise be available in court, including the power to determine the question of arbitrability. The arbitrator may conduct only an individual arbitration and may not consolidate more than one individual’s claims, preside over any type of class or representative proceeding or preside over any proceeding involving more than one individual.
d. Arbitrator. The arbitrator, OPUM, and you will maintain the confidentiality of any arbitration proceedings, judgments and awards, including, but not limited to, all information gathered, prepared and presented for purposes of the arbitration or related to the dispute(s) therein. The arbitrator will have the authority to make appropriate rulings to safeguard confidentiality, unless the law provides to the contrary. The duty of confidentiality does not apply to the extent that disclosure is necessary to prepare for or conduct the arbitration hearing on the merits, in connection with a court application for a preliminary remedy or in connection with a judicial challenge to an arbitration award or its enforcement, or to the extent that disclosure is otherwise required by law or judicial decision.
e. Filing Fees. You and OPUM agree that for any arbitration you initiate, you will pay the filing fee and OPUM will pay the remaining JAMS fees and costs. For any arbitration initiated by OPUM, OPUM will pay all JAMS fees and costs. You and OPUM agree that the state or federal courts sitting in San Diego, California have exclusive jurisdiction over any appeals and the enforcement of an arbitration award.
f. Time for Filing. Any claim arising out of or related to this Agreement or the Platform (or any portion thereof) must be filed within one year after such claim arose; otherwise, the claim is permanently barred, which means that neither you nor OPUM will have the right to assert the claim.
g. Opting Out. You have the right to opt out of binding arbitration within 30 days of the date you first accepted the terms of this Section 12 by sending an email to support@opumtechnologies.com. In order to be effective, the opt-out notice must include your full name and address and clearly indicate your intent to opt out of binding arbitration. By opting out of binding arbitration, you are agreeing to resolve disputes in accordance with Section 14.
h. Severability. If any portion of this Section 12 is found to be unenforceable or unlawful for any reason, (a) the unenforceable or unlawful provision shall be severed from this Agreement; (b) severance of the unenforceable or unlawful provision shall have no impact whatsoever on the remainder of this Section 12 or the parties’ ability to compel arbitration of any remaining claims on an individual basis pursuant to this Section 12; and (c) to the extent that any claims must therefore proceed on a class, collective, consolidated, or representative basis, such claims must be litigated in a civil court of competent jurisdiction and not in arbitration, and the parties agree that litigation of those claims shall be stayed pending the outcome of any individual claims in arbitration. Further, if any part of this Section 12 is found to prohibit an individual claim seeking public injunctive relief, that provision will have no effect to the extent such relief is allowed to be sought out of arbitration, and the remainder of this Section 12 will be enforceable.
13. Additional Terms Applicable to Mobile Devices.
The following terms apply if you install, access or use the Services on any Device that contains the iOS mobile operating system (the “iOS App”) developed by Apple Inc. (“Apple”).
Acknowledgement. You acknowledge that this Agreement is concluded solely between us, and not with Apple, and OPUM, not Apple, is solely responsible for the iOS App and the content thereof. You further acknowledge that the usage rules for the iOS App are subject to any additional restrictions set forth in the Usage Rules for the Apple iOS App Store Terms of Service (the “Usage Rules”) as of the date you download the iOS App, and in the event of any conflict, the Usage Rules in the App Store will govern if they are more restrictive. You acknowledge and agree that you have had the opportunity to review the Usage Rules.
Scope of License. The license granted to you is limited to a non-transferable license to use the iOS App on any iPhone, iPod touch or iPad that you own or control as permitted by the Usage Rules.
Maintenance and Support. You and OPUM acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the iOS App.
Warranty. You acknowledge that Apple is not responsible for any product warranties, whether express or implied by law, with respect to the iOS App. In the event of any failure of the iOS App to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price, if any, paid to Apple for the iOS App by you, and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the iOS App. The parties acknowledge that to the extent that there are any applicable warranties, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any such applicable warranty would be the sole responsibility of OPUM. However, you understand and agree that in accordance with this Agreement, OPUM has disclaimed all warranties of any kind with respect to the iOS App, and therefore, there are no warranties applicable to the iOS App.
Product Claims. You and OPUM acknowledge that as between Apple and OPUM, OPUM, not Apple, is responsible for addressing any claims relating to the iOS App or your possession and/or use of the iOS App, including, but not limited to (a) product liability claims, (b) any claim that the iOS App fails to conform to any applicable legal or regulatory requirement, and (c) claims arising under consumer protection or similar legislation.
Intellectual Property Rights. The parties acknowledge that, in the event of any third-party claim that the iOS App or your possession and use of the iOS App infringe that third party’s Intellectual Property Rights, OPUM, and not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such infringement claim to the extent required under this Agreement.
Legal Compliance. You represent and warrant that (a) 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 (b) you are not listed on any U.S. Government list of prohibited or restricted parties.
Developer Name and Address. Any questions, complaints or claims with respect to the iOS App should be directed to:
OPUM Technologies Limited
49 Symonds St
Auckland 1010
New Zealand
Third-Party Terms of Agreement. You agree to comply with any applicable third-party terms when using the Services.
Third-Party Beneficiary. The parties acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of this Agreement, and that, 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 thereof.
The following terms apply if you install, access or use the Services on any Device that contains the Android mobile operating system (the “Android App”) developed by Google, Inc. (“Google”):
· You acknowledge that this Agreement is between you and us only, and not with Google.
· Your use of our Android App must comply with Google’s then-current Android Market Terms of Service.
· Google is only a provider of the Android Market where you obtained the Android App. We, and not Google, are solely responsible for our Android App and the services and content available thereon. Google has no obligation or liability to you with respect to our Android App or this Agreement.
· You acknowledge and agree that Google is a third-party beneficiary to this Agreement as it relates to our Android App.
14. General. This Agreement constitutes the entire agreement between you and OPUM relating to your access to and use of the Platform. Any dispute arising from this Agreement or your use of the Platform will be governed by the laws of the State of California, without regard to its internal conflict of law rules. Any dispute between the parties that is not subject to arbitration or cannot be heard in small claims court will be resolved in the state or federal courts sitting in San Diego, California. If any provision or part of a provision of this Agreement is unlawful, void or unenforceable, that provision or part of the provision is deemed severable from this Agreement and does not affect the validity and enforceability of any remaining provisions. No failure or delay (in whole or in part) on the part of a party to exercise any right or remedy hereunder will operate as a waiver thereof or effect any other right or remedy. All rights and remedies hereunder are cumulative and are not exclusive of any other rights or remedies provided hereunder or by law. The waiver of one breach or default or any delay in exercising any rights will not constitute a waiver of any subsequent breach or default. Neither this Agreement nor any right or duty under this Agreement may be transferred, assigned or delegated by you, by operation of law or otherwise, without the prior written consent of OPUM, and any attempted transfer, assignment or delegation without such consent will be void and without effect. OPUM may freely transfer, assign or delegate this Agreement, in whole or in part, without your prior written consent. OPUM is not responsible for any loss or harm related to your inability to access or use the Platform or any portion thereof. The parties disclaim application of the United Nations Convention on Contracts for the International Sale of Goods.