RESPIRITM MOBILE APPLICATION AND SERVICE
PLEASE NOTE THESE TERMS INCLUDE A CLASS ACTION AND JURY TRIAL WAIVER THAT MAY AFFECT YOUR RIGHTS.
The App and Services help you track and log your wheeze recordings , including associated symptoms, triggers and medication usage.. It is designed to be used in conjunction with the wheezo® breath sensor device, which must be either provided or purchased separately.
THE APP AND SERVICES ARE NOT DESIGNED TO PROVIDE YOU ANY MEDICAL DIAGNOSES, TREATMENT, PREVENTION OR ADVICE. YOU SHOULD ALWAYS CONSULT A LICENSED PHYSICIAN OR OTHER HEALTH CARE PROFESSIONAL TO DIAGNOSE OR TREAT CONDITION. YOU SHOULD CALL 911 IF YOU ARE HAVING A MEDICAL EMERGENCY.
Please note that further indications and disclaimers regarding use of the App and wheezo® device will be indicated in the App, material provides with the device or on our website. Please be sure read those materials before using the App or device.
You can download and register the App in a couple of different ways. If the wheezo® device is prescribed by your health care provider, your account will be created by your healthcare provider via our Health Portal. Alternatively, if you purchase a wheezo® device from a pharmacy or other retail location, you can create your own account for the App.
Our App and Services may evolve and change over time. For this reason, we may from time to time modify, amend or vary these Terms (collectively, “Modifications”) to cover new Services or to comply with changes in the law. Please check these Terms regularly to ensure you are aware of any Modifications made by us. If you continue to use this App and Services, you are deemed to have accepted such Modifications. If you do not agree to such Modifications, you should discontinue use and uninstall the App.
We may from time to time need to update the App or send fixes for any errors or bugs in the App. YOU AGREE THAT WE CAN SEND SUCH UPDATES TO THE APP DIRECTLY TO YOUR MOBILE DEVICE.
3. App Store Terms
The App may be available for download from one or more platforms, such as Apple iTunes or Google Play (“App Stores”). Your download, installation, access to or use of the App is also bound by the terms and conditions and privacy policies of the applicable App Store (“App Store Terms”). If there is any conflict between these Terms and the App Store Terms, then these Terms will prevail.
This App is independent of and is not associated, affiliated, sponsored, endorsed or in any way linked to any App Store. You and we acknowledge that these Terms are entered into between you and us only, and not with any App Store, and we, not the App Store, are solely responsible for the App and the content thereof to the extent specified in these Terms.
You and we acknowledge that we, not the relevant App Store, are responsible for addressing any claims of you or any third party relating to the App or your possession and/or use of the App, including, but not limited to: (i) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (ii) claims arising under consumer protection or similar legislation.
You and we acknowledge and agree that the relevant App Store, and that App Store’s subsidiaries, are third-party beneficiaries of these Terms, and that, upon your acceptance of these Terms, that App Store will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third-party beneficiary thereof.
4. Equipment and Mobile Devices
You are responsible for operating and maintaining the mobile devices necessary to access the App and Services, including paying for any cellular data or internet access your mobile network provider (“Mobile Provider”). You also agree to purchase and maintain the wheezo® device that is necessary to use the App and obtain the Services. You acknowledge that you may be charged by your Mobile Provider for data services while using certain features of the App or any other third-party charges as may arise and you accept sole responsibility for such charges. If you are not the bill payer for the Device (defined below) being used to access the App or Services, you will be assumed to have received permission from the bill payer for using the App or Services. You must also ensure that your use of the App is not in violation of your mobile device agreement or any wireless data service agreement.
5. Eligibility and Registration
You must be at least 13 years of age and a resident in the United States to use the App and our Services; if you are under the age of 13, then you must have the consent of your parent or legal guardian to use the App and our Services. We may require evidence of such parent or legal guardian consent before authorizing use by a child under the age of 13. In the typical case, the child would be registered for the App and Services through its health care provider and with the participation and consent of the parent or legal guardian; we may request confirmation that such consent was obtained before allowing registration of the child. You further affirm that (a) you are not a resident of (or will use the App or Services in) a country that the U.S. government has embargoed for use of the Services, nor are you named on the U.S. Treasury Department’s list of Specially Designated Nationals or any other applicable trade sanctioning regulations and (b) you are fully able and competent (or if you are under the age of majority, you have the consent of your parent or legal guardian) to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in these Terms, and to abide by and comply with these Terms.
You can onboard, register and use the App only with the wheezo® device. You can create an account through your health care provider using our “Health Portal”. This version of the App may have additional features such as a digitized Asthma Action plan. If you purchase the wheezo® device from your pharmacy or other retail location, you can create your own account but you will not get any disease specific features. You agree to provide complete and accurate information when registering to use the App and registering to become a member to use our Services and to keep that information updated. You are responsible for maintaining the confidentiality of your user name and password (“User Credentials”) and for notifying us immediately of any loss or unauthorized use of your User Credentials. You are responsible for all activities on your account whether authorized or not.
You represent that:
- you own or control the necessary rights in and to any content provided by you, including any information, designs, images, animations, videos, audio files, fonts, logos, illustrations, compositions, artworks, interfaces, text, literary works and any other materials (“User Content”) that you provide to the App or Services;
- you will fully comply with all applicable laws and agreements which govern your use of the App and Services; and
- you will not use the App and Services in violation of any law or for any fraudulent or illegal activity.
7. Push Notifications
You acknowledge that we may need to notify users of the App about the App or Services through the use of push notifications; We may also send users push notifications with offers and promotions about our products and services and Third-Party Services. By agreeing to these Terms, you consent to receiving such push notifications to the extent consent is required by applicable law. You can opt-out of marketing push notifications, but not transaction or administrative-related notifications relating to the Services, your account or the App. Please note that opting out of receiving push notifications may impact your use of the Services.
8. Subscription and Fees
The App and Services may be provided to you free of charge for a limited trial period. After that trial period, we may charge you a subscription fee (e.g. monthly) to use the App and the Services. You authorize us to charge your credit card or other payment method for any recurring subscription fees. Different subscription fees may apply depending on the particular subscription plan you select. You also agree to pay all sales, use, VAT or other taxes on the subscription and use of the App and Services, except for taxes on our income.
Subscriptions will automatically renew for the next applicable subscription period unless you notify us prior to the end of the subscription term that you wish to cancel. All subscription fees are non-refundable.
Provided you are in compliance with these Terms, Respiri hereby grants you a non-exclusive, non-transferable, revocable license to download and use one copy of the App for your personal, non-commercial use and only on an approved Apple or Android device (“Device”) as permitted by the applicable App Store Terms and in accordance with these Terms and to access the Services through the App (“User License”). All other rights in the App and Services are reserved by Respiri. In the event of your breach of these Terms, we will be entitled to terminate the User License immediately.
You agree not to (i) modify, adapt or translate the App or Services or attempt to reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the App or Services; (ii) remove any copyright notice, trade mark, legend, logo or product identification from the App, App Content or Services; (iii) modify, translate or prepare derivative works of the App, App Content or Services, or any portion thereof; (iv) make any commercial use of the App; or (v) rent, lease, distribute or lend the App, App Content or Services to third parties.
10. Intellectual Property and Feedback
Wheezo® and its associated logos are the trademarks of Respiri Limited. (“Respiri Trademarks”). The App and any emojis, expressions, artwork, information, video, audio, text, or other content provided through the App or Services (“App Content”) are owned by Respiri, Inc. Other trademarks, service marks, graphics and logos used in connection with the App are the trademarks of their respective owners (collectively “Third Party Trademarks”). The Respiri Trademarks, App and App Content and Third Party Trademarks may not be copied, imitated or used, in whole or in part, without the prior written permission of Respiri or the applicable trademark holder. The Services, App and the App Content are protected by copyright, trademark, patent and other intellectual property and proprietary rights, which are reserved to Respiri and its licensors. We welcome your comments, suggestions, ideas or other feedback (“Feedback”) about our App or Services. If you provide Feedback, you agree that we can use that Feedback for any purposes, including to improve the App or Services, without further obligation (including payment) to you.
11. User Content
The App may contain features that allow you to post or provide User Content. You own your User Content. However, in order to provide you the Services, you grant to Respiri the worldwide, perpetual, irrevocable, fully transferable, fully paid up and royalty-free right and license to use the User Content in connection with the Services, including reproducing, distributing, publishing, modifying, publicly displaying and making derivative works of your User Content. However, we will not use your User Content for marketing purposes unless we have express permission to do so. Please note that User Content may be made publicly available to other users or to the public at large and so you should not disclose any content that you do not wish to be made public.
12. Prohibited Uses
We want to make the App and Services a safe and secure place for our users. For this reason, we must prohibit certain kinds of activities and conduct. You agree not to use the App or Services in any way, provide User Content, or engage in any conduct that:
- is unlawful, illegal or unauthorized;
- is defamatory of any other person;
- is obscene, sexually explicit or offensive;
- advertises or promotes any other product or business;
- is likely to harass, upset, embarrass, alarm or annoy any other person;
- is likely to disrupt our service in any way; or
- promotes discrimination based on race, sex, religion, nationality, disability, sexual orientation or age;
- infringes any copyright, trademark, trade secret, or other proprietary right of any other person; or
advocates, promotes or assists any violence or any unlawful act.
You further agree not to:
- publish and/or make any use of the App or Services on any website, media, network or system other than those provided by us, and/or frame, “deep link”, “page scrape”, mirror and/or create a browser or border environment around any of the App or Services (or any part thereof);
- use any “robot”, “spider” or other automatic device, program, script, algorithm, or methodology, or any similar or equivalent manual process, to access, acquire, copy, or monitor any portion of the App or Services (or any of its data), or in any way reproduce or circumvent the navigational structure or presentation of any of the App or Services to obtain or attempt to obtain any materials, documents, services or information through any means not purposely made available through the App or Services;
- purchase search engine or other pay-per-click keywords (such as Google AdWords), or domain names that use our name or the Respiri Trademarks and/or variations and misspellings thereof;
- impersonate any person or entity or provide false information on the App or Services, whether directly or indirectly, or otherwise disguise your identity or the origin of any message or transmittal you send to us and/or any of our other visitors or users;
- falsely state or otherwise misrepresent your affiliation with any person or entity, or falsely express or imply that we or any third party endorses you, or any statement you make;
- reverse look-up, trace, or seek to trace another user of the App or Services, or otherwise interfere with or violate any other user’s right to privacy or other rights, or harvest or collect personally identifiable information about visitors or users of the App or Services without their express and informed consent;
- disable, circumvent, bypass or otherwise avoid any measures used to prevent or restrict access to the App or Services or the account of another user or any other systems or networks connected to the Services, by hacking, password mining, or other illegitimate or prohibited means;
- probe, scan, or test the vulnerability of the App or Services or any network connected to the Services;
- upload to the App or Services or otherwise use them to design, develop, distribute and/or otherwise transmit or execute, any virus, worm, Trojan Horse, time bomb, web bug, spyware, malware, or any other computer code, file, or program that may or is intended to damage or hijack the operation of any hardware, software, or telecommunications equipment, or any other actually or potentially harmful, disruptive, or invasive code or component;
- take any action that may impose an unreasonable or disproportionately large load on the infrastructure of the App or Services or our systems or networks connected to the Services, or otherwise interfere with or disrupt the operation of any of the App or Services, or the servers or networks that host them or make them available, or disobey any requirements, procedures, policies, or regulations of such servers or networks; or
- use the App or any of the Services in connection with any form of spam, unsolicited mail, fraud, scam, phishing, “chain letters”, “pyramid schemes” or similar conduct, or otherwise engage in unethical marketing or advertising.
We reserve the right, but do not have the obligation, at our sole discretion to edit, delete, remove or block any User Content that violates these Terms, including without limitation Section 12. In addition, we reserve the right at our sole discretion to terminate any user’s access to the App and the Services if they violate this Section 12 or any other provision of these Terms.
13. Third Party Links
You are responsible for your User Content and your activities on the App. In light of this, we need to be protected from claims relating to that User Content and your activities. You agree to defend, indemnify, and hold harmless Respiri, and its parent company, affiliates, officers, directors, employees, and agents (collectively, “Indemnitees”) against any lawsuit, liability, injuries, damages or expense (including attorney’s fees) arising from your use of the App, User Content or breach of these Terms. Basically, this means that if we get sued because of something you posted or some action you took on the App, you will defend that lawsuit and pay any damages awarded or settlements entered into. The Indemnitees reserve the right to control the defense and settlement of any third-party claim for which you indemnify Indemnitees under these Terms and you will assist us in exercising such rights.
15. Disclaimer of Warranties
We provide the App and Services on an ‘as is’ and ‘as available’ basis without any promises or representations, express or implied. In particular, Respiri does not warrant or make any representation regarding the validity, accuracy, reliability or availability of the App or the App Content or that the App will treat, cure or improve your asthma or respiratory condition. To the fullest extent permitted by applicable law, Respiri hereby excludes all warranties, whether express or implied, including any warranties of merchantability, fitness for a particular use, or that the App, Services or App Content is of satisfactory quality, non-infringing, is free of defects, or is able to operate on an uninterrupted basis, or that the use of the App, App Content or Services by you is in compliance with laws or that any information that you transmit in connection with the App or Services will be successfully, accurately or securely transmitted.
16. Limitation of Liability
NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY OF ANY KIND, TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER RESPIRI NOR ANY OF THE INDEMNITEES ARE RESPONSIBLE OR LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE, OR OTHER DAMAGES (INCLUDING WITHOUT LIMITATION ANY LOSS OF PROFITS, LOST SAVINGS, OR LOSS OF DATA) OR LIABILITIES UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHER THEORY ARISING OUT OF OR RELATING IN ANY MANNER TO THE APP OR SERVICES, AND/OR ANY LINKED WEBSITE, WHETHER OR NOT WE HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES OR LIABILITIES. YOUR SOLE REMEDY WITH RESPECT TO THE APP OR SERVICES IS TO STOP USING THE APP OR SERVICES, AS APPLICABLE.
SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN WARRANTIES AND/OR LIABILITIES, SO CERTAIN OF THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU.
17. Governing Law, Dispute Resolution, Class Action and Jury Trial Waiver
These Terms shall be governed by the laws of the State of Victoria, Australia, without regard to its choice of law principles. We and you irrevocably submit to the jurisdiction of the courts in in the State of Victoria, Australia. WE AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. IN ADDITION, WE EACH AGREE TO WAIVE ANY RIGHT TO A TRIAL BY JURY.
These Terms are effective unless and until terminated by Respiri. You may discontinue any further use of the App and associated Services, but these Terms will continue to apply to your use of the App and Services prior to such discontinuance. We also may terminate or suspend these Terms, at any time, without notice and accordingly deny you access to the App and associated Services, for any reason, including without limitation, if at our sole discretion you fail to comply with any provision of these Terms or your use is harmful to the interests of another user of the App. Upon any termination of the Terms by either you or us, you must promptly uninstall the App and cease using the Services. The restrictions in Section 9 and Sections 10 through 21 will continue to apply even after the Terms, App or Services have been terminated or suspended.
19. Intellectual Property Claims
We respect the intellectual property rights of others and require that users of our App and Services do the same. In accordance with the Digital Millennium Copyright Act of 1998, Title 17 of the United States Code, Section 512 (“DMCA”), we will respond promptly to claims of copyright infringement that are reported to the agent that we have designated to receive notifications of claims infringement (its “Designated Agent”). Our Designated Agent is:
Attention: Intellectual Property Claims
Level 9, 432 St Kilda Road Melbourne Australia 3004
To be sure the matter is handled immediately, your written notice must:
- Contain your physical or electronic signature;
- Identify the copyrighted work or other intellectual property alleged to have been infringed;
- Identify the allegedly infringing material in a sufficiently precise manner to allow us to locate that material;
- Contain adequate information by which we can contact you (including postal address, telephone number, and e-mail address);
- Contain a statement that you have a good faith belief that use of the copyrighted material or other intellectual property is not authorized by the owner, the owner’s agent or the law;
- Contain a statement that the information in the written notice is accurate; and
- Contain a statement, under penalty of perjury, that you are authorized to act on behalf of the
copyright or other intellectual property right owner.
Unless the notice pertains to copyright or other intellectual property infringement, the Agent will be unable to address the listed concern.
Submitting a DMCA Counter-Notification
We will notify you that we have removed or disabled access to copyright-protected material that you provided, if such removal is pursuant to a validly received DMCA take-down notice. In response, you may provide our Agent with a written counter-notification that includes the following information:
- Your physical or electronic signature;
- Identification of the material that has been removed or to which access has been disabled, and the location at which the material appeared before it was removed or access to it was disabled;
- A statement from you under the penalty of perjury, that you have a good faith belief that the material was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled; and
- Your name, physical address and telephone number, and a statement that you consent to the jurisdiction of a court for the judicial district in which your physical address is located, or if your physical address is outside of the United States, for any judicial district in which we may be located, and that you will accept service of process from the person who provided notification of allegedly infringing material or an agent of such person.
We reserve the right, in our sole discretion, to terminate the account or access of any user of the App and Services who is the subject of repeated DMCA or other infringement notifications.