Eko Health, Inc., together with its subsidiaries and affiliates (collectively, “Eko”), is an intended third-party beneficiary of the end user license agreement (“Third Party EULA”) into which these Eko Connect End User License Terms ("Eko Connect Terms”) are incorporated.
These Eko Connect Terms are a legal contract between You as an end user (“you/your” or “User”) and Eko, that govern your use of products, applications and services owned or operated by Eko (collectively, the “Eko Services”), and all of Eko’s documentation, text, data, information, software, graphics, photographs, and functionality (“Eko Materials”) that are made available to You, to the extent you access the Eko Services or the Eko Materials via mobile applications, software, websites, systems, or services provided by an authorized third party (a “Third Party Service”).
By accepting the Third Party EULA and/or accessing or using Eko Services or Eko Materials via a Third Party Service, you are further accepting and agreeing to be bound by these Eko Connect Terms and the Eko Privacy Policy. If you do not agree to these Eko Connect Terms or the Eko Privacy Policy, then you are not permitted to use any Eko Services or Eko Materials via a Third Party Service.
If you access Eko Services directly, and not through a Third Party Service (e.g. via use of the Eko mobile application or Eko web sites), such use will be governed by Eko’s standard Terms of Service (accessible at https://support.ekohealth.com/hc/en-us/articles/13156765697563-Terms-of-Service).
These Eko Connect Terms may be updated by Eko from time to time, with or without prior notification to you. If Eko modifies these Eko Connect Terms, the changes will be posted to Eko’s standard Terms of Service.
The Eko Services are provided in order to
- Automatically transmit and store a patient’s lung sounds, heart sounds, ECG data, data analysis and/or other data; and
- Allow patients and/or Providers to access the transmitted data.
NOTE: Eko is not a healthcare provider nor does Eko provide any healthcare services. Eko is not a health insurance company and Eko is not licensed to sell health insurance.
Eko Does NOT Provide Medical Advice. The Eko Services provide an online option for healthcare providers (each, a “Provider”) and patients to communicate about medical conditions that are not serious or life threatening and do not present an emergency. The Eko Services are 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. Any content provided or accessed through the Eko Services is for informational purposes only, and is not intended to cover all possible uses, directions, precautions, drug interactions, or adverse effects.
THE EKO 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, to patients or to Providers, for any malpractice or substandard treatment a Provider provides. You are using the Eko Services at your own risk.
1.0 YOUR USE OF THE SERVICES
1.1 Generally
You shall use the Eko Services in strict compliance with (1) these Eko Connect Terms; (2) any additional applicable instructions, guidelines or policies issued by Eko, including those posted within the Third Party Services; and (3) all applicable laws, rules and regulations (collectively, “Laws”).
1.2 Use Prohibitions
You agree to use the Eko Services only for their intended purpose. You must use the Eko Services in compliance with all privacy, data protection, intellectual property, and other applicable laws.
While using the Eko 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) Access, tamper with, or use non-public areas of the Eko Services, Eko’s computer systems, or the technical delivery systems of Eko’s service providers;
(C) Attempt to probe, scan, or test the vulnerability of any Eko system or network or breach any security or authentication measures;
(D) Avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by Eko or any third party to protect the Eko Services;
(E) Attempt to access or search the Eko Services or download materials from the Eko 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 provided by Eko or an authorized Third Party Service;
(F) Use the Eko Services to send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters or other form of solicitation;
(G) 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;
(H) Use the Eko Services or Eko Materials in any manner not permitted by these Terms;
(I) Attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Eko Services or Eko Materials;
(J) 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 Eko Services;
(K) Collect or store any personally identifiable information from the Eko Services unless such information belongs to You or, if you are a licensed Provider, your patients;
(L) Impersonate or misrepresent your affiliation with any person or entity;
(M) Violate any applicable law or regulation; or
(N) Encourage or enable any other individual to do any of the above.
Eko may investigate violations of any of the above to the fullest extent of the law, including cooperation with law enforcement authorities in connection with certain violations of these Terms. We have no obligation to monitor your access to the Eko Services, however, we may do so for the purpose of operating the Eko Services to ensure your compliance with these Terms and the Privacy Policy, or to comply with applicable law or the order or requirement of a court, administrative agency or other governmental body. Eko reserves the right to, at any time and without prior notice, remove or disable access to the Eko Services and Eko Materials to the extent Eko decides such access has been used in violation of these Terms, the Privacy Policy, or in a manner otherwise harmful to the Eko Services.
2.0 INTELLECTUAL PROPERTY RIGHTS; RESTRICTIONS ON USE
2.1. Ownership of the Services and Related Data
The Eko Services and all materials on the Eko 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 Eko Services via authorized Third Party Services when permitted by this agreement, the Third Party EULA, and any other license agreements involving the Eko Services, so long as you comply with these Terms. You, as an end user, agree not to use the Eko Services for any other purpose, including commercial purposes, such as co-branding, framing, linking, or reselling any portion of the Eko Services without our prior written consent.
You may access, download or print the Eko Materials for non-commercial purposes and solely within the scope allowable by these Eko Connect Terms. You may not use the Eko Materials for any other purpose without our express written permission. Any unauthorized use of words or images from the Eko 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 Eko 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.
As between you and Eko, you own your Personal Information and any other content that you post on or through the Eko Services. For Eko to provide you with the Eko Services, you grant to Eko a perpetual, non-exclusive, fully paid and royalty-free, transferable, sublicensable, worldwide license to use your content solely for the purpose of providing the Eko Services. You also agree to allow Eko to de-identify and anonymize your content, including without limitation, your personal health information, and to use or disclose such de-identified information for purposes of Eko’s management, operations, or administration of its business and the Services, as further described in the Privacy Policy.
2.2 User Content
By creating, posting, or sharing data, sound, and images on or through the Eko Services (“Your User Content”), and subject to the Privacy Notice, you grant Eko a perpetual, irrevocable, worldwide, non-exclusive, sub-licensable, royalty-free, fully paid up, transferable license to reproduce, distribute, publicly display, publicly perform, create derivative works of, and otherwise use and modify Your User Content for the purposes of providing and enhancing the Eko Services, or other Eko products and services. We may also create anonymized data and images from Your User Content, and such data and images will no longer be Your User Content. In the course of providing the Eko Services, Your User Content may be modified, altered or manipulated in various ways, and you waive any rights you may have to object to such modification, alteration or manipulation. This license will terminate after you stop using the Eko Services. Eko reserves the right to refuse to accept, post, display, or transmit any of Your User Content in its sole discretion.
You represent and warrant that: (a) you own the content posted by you on or through the Eko Services or otherwise have the right to grant the license set forth in these Terms, (b) the posting and use of Your User Content on or through the Eko Services does not violate the privacy rights, publicity rights, copyrights, contract rights, intellectual property rights, or any other rights of any person, and (c) the posting of Your User Content on the Eko Services does not result in a breach of contract between you and a third party. You agree to pay for all royalties, fees, and any other monies owing any person by reason of content you post on or through the Eko Services. You also acknowledge and agree that Your User Content is non-confidential and non-proprietary.
Eko may review and remove Your User Content at any time for any reason, including for activity which, in its sole judgment: violates these Terms; violates applicable laws, rules, or regulations; is abusive, disruptive, offensive or illegal; or violates the rights of, or harms or threatens the safety of, users of the Eko Services.
2.3. The Eko Findings and Reports
You may use the Eko Services 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.
2.4. Regional Telemedicine Restrictions
Due to telemedicine restrictions, Your location may restrict Your ability to use the Eko Services for telehealth purposes. Since you are using a mobile device to collect Your data, it is your responsibility to ensure the Eko Services are 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 Eko Services that are not restricted by current telemedicine laws and regulations.
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://ekohealth.com/privacy.
3.0 PRIVACY NOTICE
3.1. Privacy Notice
Eko respects the information you provide to us. Please see our Privacy Policy for an explanation of how we collect and handle your personal information that is not subject to HIPAA, the Health Insurance Portability and Accountability Act, which is the primary federal law governing health privacy. By accessing or using the Eko Services, or by downloading or uploading any content from or through the Eko Services, you acknowledge and agree to the provisions of the Privacy Policy and affirm that the Privacy Policy is a part of these Terms.
By using the Services and accepting these Terms, you acknowledge that Eko will share your Personal Information collected by the Eko Services with your Provider, and may share it with other third parties for those purposes described in the Privacy Policy.
We are not responsible for nor liable to you or any third party for a healthcare provider’s treatment of Personal Information, including any collection, use, disclosure, storage, loss, theft or misuse of your Personal Information, whether or not such treatment violates applicable law or the Provider’s Notice of Privacy Practices.
4.0 SUSPENSION AND TERMINATION
4.1. Suspension and Termination
If you breach any of these Terms, we may suspend or disable or terminate your access to the Eko Services, without prior notice to you. There may be other instances where Eko may need to terminate your access to the Eko Services that are not related to any of your actions or inactions. Eko reserves the right to terminate your access to and use of the Eko Services and Eko Materials at any time, with or without cause.
4.2. Effect of Termination
If Eko or You terminate your access to the Eko Services: (a) You will no longer be authorized to access or use the Eko Services or otherwise use any of the features or services offered by or through the Eko Services; and (b) Eko may delete any data associated with You.
5.0 REPRESENTATIONS, COVENANTS AND WARRANTIES
5.1. Warranty Disclaimers
YOU EXPRESSLY UNDERSTAND AND AGREE THAT: (A) YOUR USE OF THE EKO SERVICES IS AT YOUR SOLE RISK, AND THE EKO 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 EKO SERVICES OR ANY DATA SERVICE, SOFTWARE, HARDWARE, DELIVERABLE, WORK PRODUCT OR OTHER MATERIALS RELATED TO THE EKO SERVICES, OR THE AVAILABILITY OF ANY OF THE FOREGOING; OR (2) WHETHER THE INFORMATION AVAILABLE ON OR TRANSMITTED BY THE EKO SERVICES 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 EKO SERVICES, WHETHER SUCH DATA IS ACCURATE OR INACCURATE. FURTHER, EKO DOES NOT REPRESENT, COVENANT OR WARRANT THAT ACCESS TO OR SERVICES PROVIDED BY THE EKO SERVICES 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.
6.0 LIABILITY
6.1. 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 EKO SERVICES OR EKO 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 THEM, 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), 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 EKO SERVICES, THE MATERIALS, OR THE TERMS, YOU SHOULD DISCONTINUE USING THEM – THIS IS YOUR ONLY REMEDY WITH RESPECT TO EKO. 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 EKO SERVICES OR EKO MATERIALS WITHIN ONE (1) YEAR OF THE EVENT FROM WHICH THE CLAIM AROSE.
6.2. Remedies
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 Eko Connect Terms and any additional instructions, guidelines or policies issued by Eko.
7.0 INDEMNITIES
7.1. 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 Eko Services or Eko Materials, your violation of these Eko Connect Terms, or any negligent or wrongful conduct by you or related to your account by you or any other person accessing the Eko Services or Eko Materials through your account.
8.0 DISPUTE RESOLUTION
8.1. Disputes
If you or Eko has any dispute regarding these Eko Connect Terms, including but not limited to any alleged breach of these Eko Connect 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.
8.2. Governing Law
To the fullest extent permitted pursuant to applicable law, these Eko Connect 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 Eko Connect Terms, then you and Eko agree to submit to the personal and exclusive jurisdiction of the state courts and federal courts located within Alameda County, California for the purpose of litigating any dispute. If you are a consumer located in the EU, such jurisdiction of the Alameda County courts will be non-exclusive.
9.0 GENERAL
9.1. General Legal Provisions
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.
9.2 Contact
The Eko Services are offered by Eko Health, Inc. You may contact Eko by email to contact@ekohealth.com, or at Eko Health, Inc., 2100 Powell Street, Suite 300, Emeryville, CA 94608.