TERMS OF SERVICE
Last Revised: July 28, 2017
These Terms of Service (“Terms”) Apply to your access and use of the mobile Application (the “App”), website (“Site”), and other online products and services (collectively, the “Service”) of Transplant Hero LLC. (“Transplant Hero”, “Transplant Hero Guardian”, “we”, “us”, or “our”).
ACCEPTING THESE TERMS
BY DOWNLOADING THE APP OR OTHERWISE ACCESSING OR USING THE SERVICE, YOU AGREE TO BE BOUND BY ALL OF THE TERMS BELOW.
Please read all of the Terms before you use the Service. Should you not understand the Terms and Conditions, please contact Transplant Hero LLC. Failure to agree to all of the terms listed below will result in denying you the use of the Service.
CHANGES TO THESE TERMS
We reserve the right to change these Terms as we deem necessary, to ensure that we continue to produce and offer you the highest quality App. For example, we may need to change these Terms if we come out with a new feature. Again, any changes to the Terms are so that Transplant Hero LLC can stay current and offer you the most updated App in an ever-evolving market. In the event a change is made to the Terms, we will notify you by revising the date at the top of the policy and, in some cases, we will provide you with additional notice (such as adding a statement to our homepage or sending you an email notification). We encourage you to review these Terms periodically to stay informed about our practices.
Whenever we make changes to these Terms, they are effective immediately when the revised Terms are posted unless we notify you otherwise. If you continue to use the Service after the revised Terms have been posted, then you will be deemed to have accepted the changes to these Terms.
When using the Transplant Hero® App services for the first time, the client will be asked for name and an email address for possible communication. This is the only form of identifying information that is used in this app. Of note, these identifiers are optional for use of the App.
The client expressly agrees that Transplant Hero LLC stores multiple data points using third party software in a responsible manner and processes it (or has it processed by third parties) for analysis and/or scientific purposes only. Scientific publication is de-identified in accordance with the standard criteria for hospital internal review board approval.
The sharing of protected health information within the App using Transplant Hero Guardian is for the expressed transactional use of family and friends. Invitation of a Transplant Hero Guardian implies consent of sharing protected health information; Transplant Hero LLC is not liable for any breech of confidentiality as it relates to this exchange. Transplant Hero Guardian is not to be used by covered entities.
In accordance with HIPAA, Transplant Hero LLC does not relay protected health information to covered entities within the App’s mobile framework . Should the user opt to share their personal health information using third party mobile applications, it is at the sole discretion of the user and indemnifies Transplant Hero LLC against liability.
Initial and ongoing use
The client will be initially prompted to input their medication, dose and schedule. Of note, this is purely voluntary as the Transplant Hero App mainly acts a personal medical log. When using the App’s Services on an ongoing basis, this data will be stored so as to alert the user when the medication is due.
DESCRIPTION OF THE SERVICE
The Transplant Hero App, shall function to assist users in taking their medications in the peri-operative period by utilizing an alarm set to a medication schedule. Within the Transplant Hero App there is a functional platform called Transplant Hero Guardian™. The Transplant Hero Guardian feature allows other parties (family and friends) or other non-covered entities to access an individual’s health related data for which permission has been granted. Granting of permission is implied when the individual solicits other parties through the Transplant Hero Guardian feature to view their health related data.
RIGHT TO USE THE SERVICE
On the condition that you fully comply with these Terms, Transplant Hero LLC grants you a limited, nonexclusive, non-transferable and revocable license to access and use the Transplant Hero App for your own personal, non-commercial use. However, the Transplant Hero App may only be used on mobile devices that you own or control. The Terms of this license will also govern any upgrades provided by Transplant Hero LLC that replace and/or supplement the original App, unless the upgrade is accompanied by a separate license, in which case the terms of that license will govern.
Except as expressly authorized by these Terms, you may not: (a) modify, disclose, alter, translate or create derivative works of the Transplant Hero App; (b) license, sublicense, resell, distribute, lease, rent, lend, transfer, assign or otherwise dispose of the Service; (c) disassemble, decompile or reverse engineer any of the software components of the Service; (d) copy, frame or mirror any part of the Service; (e) interfere with or disrupt the integrity or performance of the Service; or (f) attempt to gain unauthorized access to the Service or its related systems or networks.
Your use of the Service is at your own risk. Transplant Hero LLC is not responsible or liable for the conduct of, or your interactions with, any other users (whether online or offline) or for any related damage or harm.
TRANSPLANT HERO LLC RIGHTS
As between you and Transplant Hero LLC, all information, materials and content of the service, including text, graphics, data, formatting, graphs, designs, HTML, look and feel, photographs, music, sounds, images, software, videos, designs, typefaces, source and object code, format, queries, algorithms and other content is owned by Transplant Hero LLC or is used with permission.
The Transplant Hero App is a medical alarm used to assist the user in remembering to take their immunosuppressive medications. In no way should the Transplant Hero App replace the clinical recommendations and instructions of medical professionals. As such, the Transplant Hero App should serve as an adjunct to the clinical care of the user, but is not an electronic medical record or medication schedule. Moreover, Transplant Hero LLC is not liable for user medication errors arising from incongruence with the user’s medication schedule, App/Service malfunction or mobile device failure. Consult your physician immediately if questions arise regarding your medication dose scheduling.
LIMITATION OF LIABILITY
EXCEPT AS REQUIRED OTHERWISE BY APPLICABLE LAW, IN NO EVENT WILL TRANSPLANT HERO LLC BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DIRECT, SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THE SERVICE OR ANY OTHER SERVICE AND CONTENT INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THE SERVICE REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF THESE DAMAGES OR ARE AWARE OF THE POSSIBILITY OF THESE DAMAGES. FOR ANY LOSS OR DAMAGE THAT IS NOT EXCLUDED UNDER THESE TERMS, THE TOTAL LIABILITY OF TRANSPLANT HERO LLC AND ITS AFFILIATES, AGENTS, EMPLOYEES AND INVESTORS IS LIMITED TO $100. NOTHING IN THESE TERMS AFFECT YOUR STATUTORY RIGHTS AS A CONSUMER.
You will defend, indemnify, and hold us harmless from and against any actual or threatened suits, actions, proceedings (at law or in equity), claims, damages, payments, deficiencies, fines, judgments, settlements, liabilities, losses, costs, and expenses (including reasonable attorneys’ fees, costs, penalties, interest, and disbursements) arising from or related to any conduct with respect to the Service or violation (or alleged violation) of these Terms or the rights of any third party by you or any person using your Transplant Hero LLC account.
THIRD PARTY SOFTWARE
The software you download consists of a package of components, including certain third party software provided under separate third party license terms. Your use of this third party software in conjunction with the App in a manner consistent with the terms of these Terms is permitted, however, you may have broader rights under the Applicable third party license terms, and nothing in these Terms is intended to impose further restrictions on your use of this third party software.
CHANGES TO THE SERVICE
Transplant Hero LLC reserves the right in our discretion to review, improve, change or discontinue, temporarily or permanently, the service and/or any features, information, materials or content on the Service with or without providing notice to you. Transplant Hero LLC will not be liable to you or any third party for any changes or discontinuance of the service or any part of the Service.
CONSENT TO ELECTRONIC COMMUNICATIONS
By using the Service, you agree that we may communicate with you electronically regarding your use of the Service and that any notices, agreements, disclosures or other communications that we send to you electronically will satisfy any legal communication requirements, including that the communications be in writing. To withdraw your consent from receiving electronic notice, please notify us at: firstname.lastname@example.org
SUSPENSION AND TERMINATION
Transplant Hero LLC may suspend or terminate your rights to access or use the Service (including the App) for any reason or for no reason at all and with or without notice at the discretion of Transplant Hero LLC. Suspension or termination may include restricting access to and use of the App. All of the terms of these Terms (excluding the license grant) will survive any termination or suspension.
GOVERNING LAW; ARBITRATION
PLEASE READ THE FOLLOWING PARAGRAPHS CAREFULLY BECAUSE THEY REQUIRE YOU TO ARBITRATE DISPUTES WITH TRANSPLANT HERO LLC AND LIMIT THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM TRANSPLANT HERO LLC.
These Terms shall be governed by and construed in accordance with the laws of the State of New York and the United States of America, without resort to any conflict of law provisions. In the event of any controversy or claim arising out of or relating in any way to these Terms or the Service, you and Transplant Hero LLC agree to consult and negotiate with each other and, recognizing your mutual interests, try to reach a solution satisfactory to both parties. If we do not reach settlement within a period of 60 days, then either of us may, by notice to the other demand mediation under the mediation rules of the American Arbitration Association in New York, New York. We both give up our right to litigate our disputes and may not proceed to arbitration without first trying mediation, but you and Transplant Hero LLC are NOT required to arbitrate any dispute in which either party seeks equitable and other relief from the alleged unlawful use of copyrights, trademarks, trade names, logos, trade Transplant Hero LLCs or patents. Whether the dispute is heard in arbitration or in court, you and Transplant Hero LLC will not commence against the other a class action, class arbitration or other representative action or proceeding.
If settlement is not reached within 60 days after service of a written demand for mediation, any unresolved controversy or claim will be resolved by arbitration in accordance with the rules of the American Arbitration Association before a single arbitrator in New York, New York. The language of all proceedings and filings will be English. The arbitrator will render a written opinion including findings of fact and law and the award and/or determination of the arbitrator will be binding on the parties, and their respective administrators and assigns, and will not be subject to Appeal. Judgment may be entered upon the award of the arbitrator in any court of competent jurisdiction. The expenses of the arbitration will be shared equally by the parties unless the arbitration determines that the expenses will be otherwise assessed and the prevailing party may be awarded its attorneys’ fees and expenses by the arbitrator. It is the intent of the parties that, barring extraordinary circumstances, arbitration proceedings will be concluded within 90 days from the date the arbitrator is appointed. The arbitrator may extend this time limit only if failure to do so would unduly prejudice the rights of the parties. Failure to adhere to this time limit will not constitute a basis for challenging the award. Consistent with the expedited nature of arbitration, pre-hearing information exchange will be limited to the reasonable production of relevant, non-privileged documents, carried out expeditiously.
For any disputes that are not handled by arbitration, you agree that any action at law or in equity arising out of or relating to these Terms shall be filed only in the state and federal courts located in New York County, New York and you hereby irrevocably and unconditionally consent and submit to the exclusive jurisdiction of such courts over any suit, action or proceeding arising out of these Terms or the use or the service.
Enforcement of these Terms is solely at Transplant Hero LLC discretion. Failure to enforce any part of these Terms in some instances does not constitute a waiver of our right to enforce the same or other part of these Terms in other instances. If any provision of these Terms is or becomes unlawful, void or otherwise unenforceable (including the warranty disclaimers and liability limitations above), then that provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision, and the remaining provisions of these Terms will continue in full force and effect. As used in these Terms, “including” means “including (without limitation).” The section headings these Terms and are for reference purposes only and will not affect the meaning or interpretation of these Terms.
These Terms (and the other policies and terms referred to above) make up the entire agreement between you and us regarding the Service, and they supersede any prior agreements that may have been made.
If you have any questions about these Terms, please email us at: email@example.com
NOTICE REGARDING APPLE
Notwithstanding any terms to the contrary in these Terms, the following additional Terms will apply to the download of the App for use on the iPhone, iPod Touch or iPad:
You and Transplant Hero LLC acknowledge that the terms are solely between you and Transplant Hero LLC, and not with Apple, Inc. (“Apple”), and that Transplant Hero LLC, not Apple, is solely responsible for the Service, the content thereof, maintenance, support services and warranty therefore, and addressing any claims relating thereto (e.g., product liability, legal compliance or intellectual property infringement). You acknowledge and agree that the availability of the App is dependent on the third party from which you received the App, e.g., the Apple iPhone App Store (“App Store”). You agree to pay all fees charged by the App Store in connection with the App (if any). You further acknowledge that the usage rules for the App are subject to any additional restrictions set forth in the Usage Rules for the Apple App Store Terms of Service (“Apple Usage Rules”) as of the date you download the App. In the event of any conflict between the terms and conditions of the Apple Usage Rules and the terms and conditions of these Terms, the terms and conditions of the Apple Usage Rules will govern if they are more restrictive.
SCOPE OF LICENSE
The license granted to you is limited to a non-transferable license to use the App on any iPhone, iPod Touch or iPad that you own or control as permitted by the Apple Usage Rules.
MAINTENANCE AND SUPPORT
Transplant Hero LLC is solely responsible for providing maintenance and support services with respect to the App. You acknowledge and agree that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App.
You acknowledge and agree that Apple is not responsible for any product warranties, whether express or implied by law, with respect to the App.
In the event of any failure of the 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 App by you, and to the maximum extent permitted by Applicable law, Apple will have no other warranty obligation whatsoever with respect to the App. You also acknowledge and agree that to the extent that there are any Applicable warranties, or any other claims, losses, liabilities, damages, cost or expenses attributable to any failure to conform to any such Applicable warranty, such will be the sole responsibility of Transplant Hero LLC. However, you understand and agree that, in accordance with these Terms, Transplant Hero LLC has disclaimed all warranties of any kind with respect to the App, and therefore, there are no warranties Applicable to the App, except those implied by law.
You and Transplant Hero LLC acknowledge and agree that as between Apple and Transplant Hero LLC, Transplant Hero LLC, not Apple, is responsible for addressing any of your claims or any third party claims relating to the App or your possession and/or use of the App, including, but not limited to (a) product liability claims, (b) any claim that the App fails to conform to any Applicable legal or regulatory requirement, and (c) claims arising under consumer protection or similar legislation.
INTELLECTUAL PROPERTY RIGHTS
You and Transplant Hero LLC acknowledge and agree that, in the event of any third party claim that the App or your possession and use of the App infringes that third party’s intellectual property rights, Transplant Hero LLC, and not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required under these Terms.
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 end-user questions, complaints or claims with respect to the App should be directed to:
Transplant Hero LLC
THIRD PARTY BENEFICIARY
The parties acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of these Terms, and that, upon your acceptance of the terms and conditions of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce any of the terms and conditions of these Terms against you as a third party beneficiary thereof. However, the right of Transplant Hero LLC to terminate, rescind or make any change to these Terms is not subject to the consent of any other person.