Updated October 14, 2021
Thank you for choosing to use Eko’s Mobile Application, Eko Core Device(s), Eko Duo Device(s) (collectively “Devices”), Eko analysis tools, Eko Telemedicine, and/or Eko’s web services (“Application”)! These Terms of Service are a legal contract between You (“you/your” or “User”) and Eko Health, Inc. and govern your use of the Services and all of the text, data, information, software, graphics, photographs, functionality, and more (all of which We refer to as “Materials”) that We may make available to You through the software, whether you access the software through our website at https://app.ekodevices.com or our mobile application, Eko App. The Services are owned by Eko Health, Inc. and its subsidiaries or afﬁliates involved in providing and supporting the Services (collectively, “We”, “Us” or “Eko”). The Device and the Application are all referred to as the “Services” in these Terms.
By continuing to use the Services, you agree as follows:
You are at least 18 years old;
You understand and intend that this Agreement is a legally binding agreement and the equivalent of a signed, written contract;
You will use the Services in a manner consistent with applicable laws and regulations and these Terms of Service, as they may be amended by Eko from time to time;
You are adhering to all international, national and/or state laws/regulations, including data protection laws that govern your use and transmission of personal information included health data to Eko; and
You understand, accept, and have received these Terms, and acknowledge and demonstrate that you can access these Terms at will.
IF YOU ARE NOT ELIGIBLE, OR DO NOT AGREE TO THE TERMS, THEN YOU DO NOT HAVE OUR PERMISSION TO USE THE SERVICE. DO NOT LOG IN TO THE SYSTEM AND IMMEDIATELY DELETE ALL INSTALLED FILES, IF ANY, OF THE ACCOMPANYING SERVICES AND MATERIALS FROM YOUR COMPUTER OR MOBILE DEVICE.
THE EKO MOBILE APPLICATIONS, EKO CORE DEVICE(S), EKO DUO DEVICE(S), EKO ANALYSIS TOOLS, EKO TELEMEDICINE, AND WEB SERVICES (HEREAFTER, THE “APPLICATION”) ARE AVAILABLE TO USERS IN THE UNITED STATES OF AMERICA (USA) AND CERTAIN OTHER COUNTRIES. THE APPLICATION IS INTENDED TO BE USED AS A PART OF A PHYSICAL ASSESSMENT OR MONITORING OF A PATIENT BY HEALTHCARE PROFESSIONALS FOR DIAGNOSTIC DECISION SUPPORT.
ARBITRATION NOTICE: EXCEPT IF YOU OPT-OUT AND EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN THE ARBITRATION SECTION BELOW, YOU AGREE THAT DISPUTES BETWEEN YOU AND EKO WILL BE RESOLVED BY A BINDING, INDIVIDUAL ARBITRATION. YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION. YOU CAN OPT OUT OF THE AGREEMENT TO ARBITRATE BY CONTACTING email@example.com WITHIN 30 DAYS OF ACCEPTING THESE TERMS.
1.0 PURPOSE OF THE SERVICES
Our software is provided to You subject to these Terms and any other agreements entered into between You and Eko.
For providers, the software is provided in order to:
Automatically transmit a patient’s lung sounds, heart sounds, ECG data, and data analysis to the patient’s provider, and
Allow providers to access the transmitted data and Eko’s wireless, mobile, and web-based management systems and technologies.
NOTE: Eko is not a healthcare provider nor do We provide any healthcare services. We are not a health insurance company and We are not licensed to sell health insurance.
2.0 NO MEDICAL ADVICE
Our Services provide an online option for providers and patients to communicate about medical conditions that are not serious or life threatening and do not present an emergency. It is NOT intended for use in connection with active patient monitoring to allow immediate clinical action or continuous monitoring by a health care provider or the patient.
THE SERVICES CANNOT AND ARE NOT DESIGNED, INTENDED OR APPROPRIATE TO REPLACE THE PROVIDER-PATIENT RELATIONSHIP OR TO ADDRESS SERIOUS, EMERGENCY, OR LIFE-THREATENING MEDICAL CONDITIONS AND SHOULD NOT BE USED IN THOSE CIRCUMSTANCES. PATIENTS SHOULD ALWAYS TALK TO THEIR HEALTHCARE PROVIDER(S) FOR DIAGNOSIS AND TREATMENT, INCLUDING INFORMATION REGARDING WHICH DRUGS, THERAPY, OR OTHER TREATMENT MAY BE APPROPRIATE FOR THEM.
Eko is not liable in any way for any malpractice or substandard treatment a provider provides. You are using the Services at your own risk.
Any content provided or accessed through the Services, including without limitation information provided by Eko’s staff in response to questions you may submit through the Services, is for informational purposes only, and is not intended to cover all possible uses, directions, precautions, drug interactions, or adverse effects. Please consult your doctor or other qualiﬁed health care provider if you have any questions about a medical condition, or before taking any drug, changing your diet, or commencing or discontinuing any course of treatment. Never disregard, avoid, or delay in obtaining medical advice from a doctor or other qualified healthcare provider because of something posted on our Services.
EKO DOES NOT ENDORSE OR RECOMMEND ANY PROVIDER, AND WE DO NOT CONFIRM THE CREDENTIALS OF ANY PROVIDERS. WE DO NOT CONTROL THE MEDICAL ADVICE THE PROVIDER GIVES, AND WE DO NOT HAVE ACCESS TO OR USE ANY OF THAT ADVICE. IT IS YOUR RESPONSIBILITY TO SEPARATELY CONFIRM THAT A HEALTHCARE PROVIDER IS PROPERLY LICENSED.
3.0 FOR PROVIDERS
If you are a Provider, You agree that You are responsible for obtaining appropriate consent from a patient in order to collect their personal data or personal information through the Services, to the extent required under each applicable law. At a minimum, the consent you obtain from patients shall include: 1) a description of the Devices and the Services; 2) a description of the information you will collect through the Services; 3) the fact that Eko will have access to the patient’s information; 4) the fact that the patient’s information may be transferred outside of their home country for processing purposes; and 5) a weblink or a physical copy to Eko’s Privacy Notice.
4.0 REGISTRATION; TERM OF REGISTRATION
4.1. Registration through the Application
You must be a registered user with Eko in order to use the Services. You may register through the Eko Mobile Application or through the Eko website. By submitting the information requested in the Eko Mobile Application or Eko website, You may access and use the Services to view certain data pertaining to You as made available by Eko.
By registering for an account, You represent and warrant:
Your registration data is true, accurate, current, and complete;
You will update your registration as needed data to make sure it is accurate;
You meet all of the eligibility requirements set forth below; and
You are authorized to create an account (either for yourself or on behalf of another person
DO NOT USE THE SERVICES WHERE PROHIBITED BY LAW. YOU UNDERSTAND THAT YOUR USE OF THE SERVICES MAY INVOLVE OR REQUIRE THE TRANSMISSION OF SIGNIFICANT AMOUNTS OF DATA. YOU ARE RESPONSIBLE FOR ALL DATA CHARGES THAT MAY BE CHARGED BY YOUR WIRELESS CARRIER OR INTERNET SERVICE PROVIDER OR THAT MAY OTHERWISE ARISE FROM YOUR USE OF THE SERVICES.
4.2. Modification and Termination of Services
Eko reserves the right to terminate accounts for any reason it deems appropriate including, but not limited to, a belief that Your conduct or Your use of the Services violates applicable laws or is harmful to the interests of Eko or any other users. Eko also may place limits on, modify, suspend or terminate the Services generally, and may suspend or terminate Your use of the Services if You fail to comply with this Agreement or otherwise in accordance with Eko’s internal policies. This suspension or termination may delete Your information, files, and other previously available content. In addition, Eko may, at any time, modify, discontinue or terminate the Services or modify these Terms, without prior notice to you. If we modify these Terms, we will post the changes on our website or Eko Mobile Application. If you continue to use the Services after we have let you know about the changes, you agree to be bound by the modified Terms. If the changes are not acceptable to you, you should immediately stop using the Services. If Eko terminates the Services or Your use of the Services, this Agreement will also terminate, but Sections 2, 3, 4, 5, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, and 18 shall continue to be effective after this Agreement is terminated.
You must be at least 13 years of age to use the Service. By agreeing to these Terms, you represent and warrant to us that: (a) You are at least 13 years of age; (b) You have not previously been suspended or removed from the Service; and (c) Your registration and Your use of the Service is in compliance with all applicable laws and regulations in your local jurisdiction. If you are using the Service on behalf of an entity, organization, or company, You represent and warrant that You have the authority to bind that organization to these Terms and You agree to be bound by these Terms on behalf of that organization.
4.5 Keeping your Information Secure
You need to provide Eko with a valid, working e-mail address to access and use the Services. When you register, you will create a password for your account. Your e-mail address and password and any codes assigned to you are your “User Information.” When you create an account with us, you guarantee that the information you provide is accurate, complete, and current.
(A) Keep Your User Information private,
(B) Do not allow another person to use your User Information to access the Services, and
(C) Do not allow another person to use your Device(s).
To protect your conﬁdential healthcare information, it is good practice to enable touch ID, ﬁngerprint ID, Face ID, and/or a passcode on your smartphone.
If You do not do the above and Eko suffers damages as a result, you will be responsible for all of those damages. You agree to immediately notify Eko in writing by email of any unauthorized use of your User Information or any other breach of security.
All of your communications using the Services can and will be monitored, captured, recorded, and transmitted to government authorities if we decide it is necessary, and we do not have to notify you.
Some features of the Services may be subject to different Terms. If you use those features, you agree to be bound by the additional terms applicable to such features. If any such additional terms conflict with these Terms, the additional terms will govern with respect to such features.
5.0 YOUR USE OF THE SERVICES5.
You shall use the Application and Website in strict compliance with (1) these Terms; (2) any additional applicable instructions, guidelines or policies issued by Eko, including those posted within the Eko Mobile Application or on the website; and (3) all applicable laws, rules and regulations (collectively, “Laws”).
5.2 Use Prohibitions
You agree to use the Website and Application only for their intended purpose. You must use the Services in compliance with all privacy, data protection, intellectual property, and other applicable laws.
While using the Services, you shall not:
(A) Post, upload, publish, submit, transmit or otherwise make available any content that You do not have a right to make available;
(B) Use, display, mirror or frame the Services, or any individual element within the Services, Eko or Eko’s name, any Eko trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without Eko’s express written consent;
(C) Access, tamper with, or use non-public areas of the Services, Eko’s computer systems, or the technical delivery systems of Eko’s service providers;
(D) Attempt to probe, scan, or test the vulnerability of any Eko system or network or breach any security or authentication measures;
(E) Avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by Eko or any third party to protect the Services;
(F) Attempt to access or search the Services or download materials from the Services through the use of any engine, software, tool, agent, device, or mechanism (including scripts, bots, spiders, scrapers, crawlers, data mining tools or the like) other than the software and/or search agents provided by Eko or other generally available third party web browsers;
(G) Send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters or other form of solicitation;
(H) Use any meta tags or other hidden text or metadata utilizing an Eko trademark, logo, URL, or product name without Eko’s express written consent;
(I) Use the Services or materials for any commercial purpose, research purposes, or the benefit of any third party or in any manner not permitted by these Terms;
(J) Forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Services or materials to send altered, deceptive or false source-identifying information;
(K) Attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Services or materials;
(L) Interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the Services;
(M) Collect or store any personally identifiable information (not your own) or for providers, not your patients, from the Services;
(N) Impersonate or misrepresent your affiliation with any person or entity;(O) Violate any applicable law or regulation; or
(P) Encourage or enable any other individual to do any of the above.
5.3 Computer Equipment; Browser Access and Internet Services
With the exception of the Devices provided to you, you are responsible for obtaining, installing, maintaining and operating all software, hardware or other equipment (collectively, “Systems”) necessary for you to access and use the Services. This includes, without limitation, obtaining internet services, using up to date web-browsers and the best commercially available encryption, antivirus, anti-spyware, and internet security software. There are always certain security and access availability risks associated with using open networks such as the Internet, and you expressly assume such risks. You are responsible for the data security of the Systems used to access the Services and for the transmission and receipt of information using such Systems. We are not responsible for any errors or problems that arise from the malfunction or failure of the Internet or your System.
6.0 INTELLECTUAL PROPERTY RIGHTS; RESTRICTIONS ON USE
6.1. Ownership of the Services and Related Data
The Services and all materials on the Services are owned or licensed by Eko. We grant to You, for Your personal purposes only, a nonexclusive, limited, and revocable right to access and use the Services during the term of this agreement, so long as you comply with these Terms. You agree not to use the Services for any other purpose, including commercial purposes, research purposes, such as co-branding, framing, linking, or reselling any portion of the Services without our prior written consent.
You may access, download or print the materials available through the Services for non-commercial purposes and solely within the scope allowable by these Terms. You may not use the materials for any other purpose without our express written permission. Any unauthorized use of words or images from the Services may violate copyright laws, trademark laws, laws of privacy and publicity, and civil and criminal statutes.
You may not use Eko’s name, trademarks, service marks or logos or those of third parties appearing on the Services in any advertising or publicity, or otherwise to indicate Eko’s or such third party’s sponsorship of or afﬁliation with any product or service without express written permission of Eko or such third party.
6.2. The Eko Findings and Reports
You may use the Application to generate reports of findings using the heart or body sound data. Any reports provided by Eko do not suggest a diagnosis. The interpreted report is intended as information for You and to be used as a tool to provide proper diagnosis and treatment taking into account the patient’s complete medical history. Analysis and diagnosis based on the data can only be accomplished by a physician.
6.3. Regional Telemedicine Restrictions
Due to telemedicine restrictions, Your location may restrict Your ability to use the Application for telehealth purposes. Since you are using a mobile device to collect Your data or patient data, it is your responsibility to ensure the Application is legal according to Your local telemedicine laws. This section applies only to Eko telemedicine purposes and does not apply to Remote Patient Monitoring or other functions of the Services that are not restricted by current telemedicine laws and regulations.
You have the option to obtain a data recording from the Eko device at any time. Your heart and body sound recordings are subject to multiple factors related to your health and activities. Eko makes no guarantees of the accuracy or clinical significance of the interpretation of the data. You explicitly consent to sharing data with the third-party electronic health record systems (EHRs) according to terms described in the Eko Privacy Notice located at https://support.ekohealth.com/hc/en-us/articles/13156748616731-Privacy-Policy.
We welcome and encourage you to provide us with feedback, comments and suggestions for improvements to the Services, Devices or materials (“Feedback”). You may submit Feedback by emailing us at firstname.lastname@example.org. If you submit any Feedback to us, we will own all intellectual property rights in such Feedback and may use such Feedback for any lawful purpose.
7.1. Privacy Notice
7.2. For EEA customers
To the extent that your use of the Services involves the transfer of data from data controllers in the EEA and to the extent that Eko acts as a controller of that data, you and Eko are both controllers, or Eko is a processor. In this case, the Data Processing Agreement, as set forth at https://www.ekohealth.com/pages/gdpr shall apply.
To the extent that your use of the Services involves the transfer of data to Eko to process on your behalf, you are the data controller and Eko is the data processor. Eko will process the data in accordance with the Standard Contractual Clauses (the “Processor SCCs”) set forth in the European Commission’s Decision 2021/914/EU, which are available at https://eur-lex.europa.eu/eli/dec_impl/2021/914/oj?uri=CELEX:32021D0914&locale=en. By agreeing to these Terms and using the Service, you agree to comply with your obligations as the data exporter under the Processor SCCs and the Data Processing Agreement.
For purposes of the Processor SCCs:
You are the data exporter by virtue of your use of the Services and transfer of patient data to Eko via the Services.
Eko is the data importer by virtue of its receipt and storage of that data.
The personal data you transfer to Eko concern (1) your account information and (2) your patients and their health data, which is considered a “special category of data” under GDPR.
With respect to the data that Eko processes on your behalf, you represent and warrant that you have have established an appropriate legal basis or bases to allow Eko to process such data.
8.0 REPRESENTATIONS, COVENANTS AND WARRANTIES
8.1. Warranty Disclaimers
YOU EXPRESSLY UNDERSTAND AND AGREE THAT: (A) YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK, AND THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THESE TERMS OR EXPRESSLY STATED ELSEWHERE BY EKO, EKO MAKES NO REPRESENTATIONS, COVENANTS OR WARRANTIES AND OFFERS NO OTHER CONDITIONS, EXPRESS OR IMPLIED, REGARDING ANY MATTER, INCLUDING (1) THE MERCHANTABILITY, SUITABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, NON-INFRINGEMENT OR RESULTS TO BE DERIVED FROM THE USE OF THE APPLICATION, WEBSITE OR ANY DATA SERVICE, SOFTWARE, HARDWARE, DELIVERABLE, WORK PRODUCT OR OTHER MATERIALS RELATED TO THE APPLICATION OR WEBSITE, OR THE AVAILABILITY OF ANY OF THE FOREGOING; OR (2) WHETHER THE INFORMATION AVAILABLE ON OR TRANSMITTED BY THE APPLICATION OR WEBSITE IS TRUE, COMPLETE OR ACCURATE. YOU SPECIFICALLY ACKNOWLEDGE AND AGREE THAT EKO IS NOT RESPONSIBLE FOR ANY HEALTHCARE OR RELATED DECISIONS MADE BY YOU OR YOUR HEALTHCARE PROFESSIONAL BASED UPON DATA COLLECTED, TRANSMITTED OR DISPLAYED BY OR ON THE APPLICATION OR WEBSITE, WHETHER SUCH DATA IS ACCURATE OR INACCURATE. FURTHER, EKO DOES NOT REPRESENT, COVENANT OR WARRANT THAT ACCESS TO OR SERVICES PROVIDED BY THE APPLICATION OR WEBSITE WILL BE UNINTERRUPTED OR ERROR-FREE. YOU ACKNOWLEDGE AND AGREE THAT THERE ARE RISKS INHERENT TO TRANSMITTING INFORMATION OVER AND STORING INFORMATION ON THE INTERNET AND THAT EKO IS NOT RESPONSIBLE FOR ANY LOSSES OF YOUR DATA, CONFIDENTIALITY OR PRIVACY IN CONNECTION THEREWITH.
9.1. Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER EKO NOR ANY OTHER PERSON OR ENTITY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SERVICES OR MATERIALS SHALL BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RESULTING FROM YOUR USE OF THE SERVICES, OR BASED UPON ANY BREACH OF ANY EXPRESS OR IMPLIED WARRANTY, BREACH OF CONTRACT (INCLUDING THESE TERMS AND ANY ADDITIONAL INSTRUCTIONS, GUIDELINES OR POLICIES ISSUED BY EKO, INCLUDING THOSE POSTED IN THE APPLICATION OR ON THE WEBSITE), NEGLIGENCE, TORT OR ANY OTHER LEGAL THEORY (COLLECTIVELY, THE “EXCLUDED DAMAGES”). FOR THE AVOIDANCE OF DOUBT, THE EXCLUDED DAMAGES ALSO INCLUDE WITHOUT LIMITATION, LOSS OF SAVINGS OR REVENUE; LOSS OF PROFIT; LOSS OF USE; LOSS OF LIFE OR HEALTH, THE CLAIMS OF THIRD PARTIES; AND ANY COST OF ANY SUBSTITUTE EQUIPMENT OR SERVICES.
IF YOU ARE NOT SATISFIED WITH THE SERVICES, THE MATERIALS, OR THE TERMS, YOU SHOULD DISCONTINUE USING THEM – THIS IS YOUR ONLY REMEDY. BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SOME OF THESE LIMITATIONS MAY NOT APPLY TO YOU. IN SUCH STATES, EKO’S LIABILITY IS LIMITED AND WARRANTIES ARE EXCLUDED TO THE GREATEST EXTENT PERMITTED BY LAW, BUT SHALL, IN NO EVENT, EXCEED $100.00. YOU MUST BRING ANY CLAIM ARISING FROM THE USAGE OF THE SERVICES OR MATERIALS WITHIN ONE (1) YEAR OF THE EVENT FROM WHICH THE CLAIM AROSE.
At its option, Eko may seek all remedies available to it under law and in equity, including injunctive relief in the form of specific performance to enforce these Terms, including any additional instructions, guidelines or policies issued by Eko, including those posted in the Application or on the Website, and/or actions for damages.
10.1. Indemnity by You
You agree to indemnify, defend and hold harmless Eko, its clients, and its suppliers and their respective afﬁliates, employees, ofﬁcers, directors, agents, servants and representatives of each from any liability, loss, claim, suit, damage, and expense (including reasonable attorneys’ fees and expenses) arising out of or in any way connected with your access to or use of the Services or Eko’s materials, your violation of these Terms, or any negligent or wrongful conduct by you or related to your account by you or any other person accessing the Services or Eko materials through your account.
11.0 DISPUTE RESOLUTION
If you or Eko has any dispute regarding these Terms, including but not limited to any alleged breach of these Terms, the parties will submit the dispute to binding arbitration in California before a single arbitrator, in accordance with rules and procedures of the American Arbitration Association. The arbitrator may, but does not have to, award legal fees, arbitrator’s fees and costs and other costs incurred by the party that does not win the dispute. Any arbitration will be strictly confidential and neither party will disclose to any person (other than necessary to carry out the arbitration) the existence of the dispute or any aspect of the dispute.
11.2. Governing Law
To the fullest extent permitted pursuant to applicable law, these Terms are governed by the laws of the State of California without regard to conflict of law principles. If a lawsuit or court proceeding is permitted under these Terms, then you and Eko agree to submit to the personal and exclusive jurisdiction of the state courts and federal courts located within Santa Clara County, California for the purpose of litigating any dispute. If you are a consumer located in the EU, such jurisdiction of the Santa Clara County courts will be non-exclusive.
12.1. General Legal Provisions
If any provision of this Agreement is determined to be invalid, illegal or unenforceable, the remaining provisions of the Agreement remain in full force, provided that the essential terms and conditions of this Agreement remain valid, binding and enforceable and the economic and legal substance of the transactions contemplated by the Agreement are materially preserved.
The United States export control laws regulate the export and re-export of technology originating in the United States. This includes the electronic transmission of information and software to foreign countries and to certain foreign nationals. You agree to abide by these laws and their regulations.
Nothing in this agreement creates an agency, partnership, or joint venture. Failure to enforce any provision will not constitute a waiver of that provision.
You may not assign these Terms (or any rights, benefits or obligations hereunder) by operation of law or otherwise without the prior written consent of Eko, which may be withheld at Eko’s sole discretion. Any attempted assignment by You that does not comply with the terms of this Section shall be null and void. Eko may assign these Terms and Conditions, in whole or in part, to any third party in its sole discretion.
The Service is offered by Eko Health, Inc. You may contact us by emailing us at email@example.com.
Eko Health, Inc.
2100 Powell Street, Suite 300
Emeryville, CA 94608