Terms of Service
Terms of Service
IMPORTANT—PLEASE READ CAREFULLY: This Terms of Service Agreement (“Agreement”) is a legal contract between You and Sway Medical, Inc., (“Sway”) that covers your use of the Sway Application, which includes computer software and, as applicable, associated media, databases, printed materials, “online” or electronic documentation and Sway’s website (collectively the “Software“).
BY INSTALLING OR OTHERWISE USING THE SOFTWARE, YOU AGREE TOBE BOUND BY THE TERMS OF THIS AGREEMENT AND ANY ADDITIONAL TERMS FOUND ON swaymedical.com/terms and www.swaymedical.com/privacy-policy INCLUDING THE WARRANTY DISCLAIMERS, LIMITATIONS OF LIABILITY AND TERMINATION PROVISIONS BELOW.
IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT AND/OR THE ADDITIONAL TERMS, DO NOT INSTALL OR USE THE SOFTWARE, AND EXIT NOW.
IF YOU ARE NOT WILLING OR UNABLE TO ACCEPT THESE TERMS AND CONDITIONS, YOU SHOULD CLICK THE “DISAGREE” BUTTON BELOW. IF YOU DO NOT ACCEPT THESE TERMS YOU WILL NOT BE GRANTED ACCESS TO USE THE SOFTWARE OR SWAY’S WEB SITE (swaymedical.com, or the“SITE”). USE OF THE SOFTWARE WITHOUT SIGNIFYING YOUR AGREEMENT TO THESE TERMS INTHE MANNER INDICATED ABOVE IS STRICTLY PROHIBITED.
In the event that there is any conflict between the terms of this Agreement and the terms of a written agreement between You and Sway, the terms of the written agreement shall control.
ADDITIONAL TERMS
This Agreement, together with the Additional Terms, as they might change from time-to-time, shall constitute the entire agreement(collectively the Agreement).
NOT MEDICAL ADVICE
The Software and the Site, including any data collected while using the Software, the results and analyses thereof, and materials appearing on the Site, are provided to You for informational purposes only and do not constitute medical advice. If You believe You or Your test subject have suffered a concussion or are affected by some other medical condition, whether or not the Software test results support this belief, You should immediately stop using the Software and seek professional medical advice or consult with a qualified medical professional.
DISCLAIMER OF WARRANTIES
THE SOFTWARE AND THE SITE ARE COPYRIGHTED AND LICENSED (NOT SOLD). THIS AGREEMENT REPRESENTS THE ENTIRE AGREEMENT CONCERNING THE SOFTWARE BETWEEN YOU AND SWAY, AND IT SUPERSEDES ANY PRIOR PROPOSAL,REPRESENTATION, OR UNDERSTANDING BETWEEN THE PARTIES.
THE SOFTWARE IS LICENSED “WHERE IS” AND “AS IS,” AND SWAY DISCLAIMS ANY AND ALL WARRANTIES TO THE EXTENT PERMITTED BY LAW, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES AS TO THE ACCURACY, RELIABILITY, COMPLETENESS, OR CORRECTNESS OF THE SOFTWARE, AND OF ANY TEST RESULTS.
TO THE EXTENT PERMITTED BY LAW, SWAY DISCLAIMS, AMONG OTHERS, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND ALL WARRANTIES ARISING FORM COURSE OF DEALING OR USAGE OF TRADE.
YOU ACKNOWLEDGE THAT THERE ARE RISKS INHERENT IN THE USE OFTHE SOFTWARE, HARDWARE AND INTERNET CONNECTIVITY THAT MAY RESULT IN INTERRUPTIONS OR ERRORS IN THE SERVICE, LOSS OF PRIVACY, CONFIDENTIALITY,INFORMATION OR PROPERTY, AS WELL AS OTHER LOSSES, DAMAGES OR ADVERSE OCCURRENCES, REGARDLESS OF THE MEASURES TAKEN TO AVOID SUCH OCCURRENCES.
IN NO EVENT WILL SWAY BE LIABLE TO YOU OR ANY THIRD PARTYIN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, FOR ANY INDIRECT, INCIDENTAL,SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE, INACCURATE OR INCOMPLETE TEST RESULTS, LOST PROFITS OR DAMAGES EXTENDING FROM THE LOSS OR CORRUPTION OF DATA, AND CLAIMS RELATED TO TEST RESULTS, EVEN IF SWAY HAS BEEN ADVISED OF THE POSSIBILITY OFSUCH DAMAGES. SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
LICENSE GRANT
Upon execution of an order form or entry into a similar contractual arrangement signed by You and by Sway (“Order Form”, hereinafter),Sway hereby grants to You, and You accept, a limited nonexclusive and nontransferable personal right and license to use the Software, without a right to sublicense, during the term set out in the Order Form and according to the terms set out herein and in the Order Form (collectively, the “License”). This includes the right to install the Sway Mobile Application on user devices and use same solely according to the Permitted Purposes. The license granted extends only to use of the Software in connection with services offered by Sway. All other uses are strictly prohibited.
“Permitted Purposes” means the use by a User, in accordance with the Documentation and the terms of this Agreement (including any applicable usage limits set forth in the Order Form) of the Sway Software, in object code form only, solely for Customer’s own internal business purposes.
An “Authorized User” is an employee, agent, contractor, service provider, or other party contractually bound to You who is a qualified medical professional, and has been trained in the use of the Sway Software operating it with Your permission. You agree that you are directly responsible and fully liable for any actions taken by an Authorized User when using the Software.
The Software may only be used by an authorized User. Use by an individual other than an authorized User is not permitted without separate authorization from Sway.
Sway reserves the right to refuse service, terminate anAuthorized User’s or Your account, remove or edit content, or cancel logins inits sole and absolute discretion.
Unless otherwise agreed to by the parties, the License shall also extend to any future upgrades, updates, or revisions of the Software provided by Sway to You.
SWAY’S RIGHTS
You acknowledge and agree that the Software is property of Sway and is protected under copyright and / or patent law both in the U.S. and in countries foreign thereto. You further acknowledge and agree that all right, title, and interest in and to theSoftware, including intellectual property rights associated therewith, are and shall remain with Sway. This Agreement does not convey to You an interest in or to the Software, but only a limited right of use revocable in accordance with the terms of this Agreement.
RIGHTS TO DATA
You and Sway acknowledge that each Party has certain obligations under the Health Insurance Portability and Accountability Act of1996 (“HIPAA”), as amended, including those provisions of the American Recovery and Reinvestment Act of 2009 (“ARRA”), and the regulations implementing the requirements to maintain privacy and security of Protected Health Information(“PHI”) and Personally Identifiable Information (“PII”) found at 45 C.F.R. Parts 160,162, and 164 (“HIPAARegulations”). Additionally, certain Profile Data may be subject to the FamilyEducational Rights and Privacy Act (FERPA), which governs the privacy of student education records. You and Sway acknowledge that obligations under thisAgreement may require compliance with FERPA statutes, depending on the nature of the data involved.
Certain information and data that is obtained from a test subject before and/or during tests performed using the Software is transmitted to Sway over the Internet and stored in its computers (the “Profile Data”).Profile Data consists of measured or acquired data associated with a specific individual. Profile Data may contain PHI or PII and is the exclusive property of Sway. Sway shall not use PHI or PII of a subject except in furtherance of this Agreement.
De-Identified Information or De-Identified Data means any de-identification of PII or PHI of Profile Data that is completed pursuant to the Safe Harbor method set forth in 45 C.F.R. Section 164.514(b)(2). De-Identified Data does not and will not contain or comprise PHI or PII.
Sway is free to use for any purpose measured or acquired De-IdentifiedData collected by You. That is data that has been (i) collected pursuant to this Agreement and (ii) that is not tied to You or to a particular user, person, or customer, or has otherwise been de-identified. Sway may, at its sole discretion, share anonymous aggregate statistical or numerical data with third parties. Sway may not share PII or PHI with third parties without consent of the You or the individual whose data is being shared.
DATA OF MINOR CHILDREN
According to 42 USC 619(2), a minor child is an individual who is under the age of 18 or who is under age 19 and is enrolled full-time asa student in secondary school (or an equivalent vocational or technical school). Sway does not knowingly collector solicit personal information from a minor child or knowingly allow such a person to register to utilize the Software.
You recognize and acknowledge that Sway has no control over the individuals that You choose to test using the Software. If You collect data from a minor child, You hereby give Sway Your consent on behalf of the parents or other adult responsible for said minor child to receive and store during the Term PII and/or PHI from that minor child collected by the Software pursuant to the terms of the License.Where such data is subject to FERPA, You additionally confirm that You have obtained all necessary consents or authorizations required under FERPA to permit Sway to receive and store such data.
YOUR ACCOUNT
You may be given an account and/or password that grants You access to the Software and/or additional features accessible through the Site. You are responsible for maintaining the confidentiality of Your account or password. You may not transfer this account or the License granted hereunder to a third party without prior written consent of Sway. You agree to accept full responsibility for all activities that occur under your account or password. Sway reserves the right to refuse service, terminate accounts, remove or edit content, in its sole discretion.
RESTRICTIONS
You agree that You may not modify, adapt, translate, reverse engineer, or create derivative works based upon the Software or any part thereof or assist others in doing same. You also agree that You may not reverse assemble, reverse compile, or otherwise translate the Software or any portion thereof or assist others in doing same.
You further agree that You will not assign, sublicense, transfer, pledge, lease, rent, loan, or share your rights under this Agreement.
You still further agree that You may not use the Software for the direct benefit of, or for purpose of rendering services to, any third party business entities or organizations.
AMENDMENTS TO THE AGREEMENT
Sway may amend this Agreement at any time by posting the amended terms on the Site at swaymedical.com/terms. Except as stated elsewhere, all amended terms shall automatically be effective 30 days after they are initially posted. Additionally, we will endeavor to notify You of any such change using the contact information thatYou provided to us when You register on the site.
ADDITIONAL TERMS
TERM
License is effective upon your acceptance of its terms and conditions and your successful activation of the Software with Sway, and shall continue until terminated. Either party may terminate the License at anytime upon thirty (30) days advance written notice to the other party. Sway may terminate the License with or without notice to You at any time and for any reason.
DISPUTE RESOLUTION
This Agreement and the License shall be governed in all respects by the laws of the State of Oklahoma as they apply to agreements entered into and to be performed entirely within Oklahoma between Oklahoma residents, without regard to conflict of law provisions. You agree that any claim or dispute You may have against Sway must be resolved by a court located in Tulsa County, Oklahoma, except as otherwise agreed by the parties. You agree to submit to the personal jurisdiction of the courts located within Tulsa County, Oklahoma, for the purpose of litigating all such claims or disputes.
NO AGENCY
No agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this Agreement.
AMENDMENTS TO THE AGREEMENT
Sway may amend this Agreement at any time by posting the amended terms on the Site at swaymedical.com/terms. Except as stated elsewhere, all amended terms shall automatically be effective 30 days after they are initially posted. Additionally, we will endeavor to notify You of any such change using the contact information thatYou provided to us when You register on the site.
This Agreement may not be otherwise amended except in a writing signed by You and Sway. This Agreement sets forth the entire understanding and agreement between us with respect to the subject matter hereof. The following Sections survive any termination of this Agreement:Disclaimers, Release, Liability, Indemnity, Restrictions, Dispute Resolution, and Proprietary Information.
LIMITATION OF LIABILITY
Sway’s cumulative liability to You or any other party for any loss or damages resulting from any claims, demands, or actions arising out of or relating to this Agreement or the Software shall not exceed the license fee paid to Sway for the use of the Software and Site, if any.
Under no circumstances shall Sway be responsible for user error including, but not limited to, erroneous data input, misuse of theSoftware or Site, incorrect interpretation of data or missing data. Sway shall additionally not be responsible for errors in the transmission or storage of your data that are beyond its control or supervision.
PRIVACY POLICY
When You create your login as a prerequisite to using theSoftware and the Site, Sway will ask You to provide certain personal information which will be stored and retained by Sway. Additionally, certain information and data that is obtained before and/or during tests performed using the Software may be transmitted to Sway and stored. All information and data collected by Sway is owned and used by Sway and Sway reserves the right to use the information and data for any internal purpose.
Information that is collected in aggregate is information that is not tied to You or to any particular person. This sort of information is primarily used for internal purposes in evaluating and improving the effectiveness of the Software and the databases it utilizes. Sway may, at its sole discretion, share this aggregate information with third parties.
Sway uses the information that You provide for purposes such as responding to your requests, improving our products, helping us serve you better, and communicating with you.
Sway will not share Your personal information with any third party without your prior permission, except in response to an order from a court of competent jurisdiction or in similar circumstances. Sway may use your e-mail and physical addresses to send information to you that we think might be of interest to you.
Sway will not sell, rent, swap or authorize any third party to use the information or data in a way that personally identifies You without your permission. Additional aspects of Sway’s privacy policy may be found at www.swaymedical.com/privacy, which are made a party of and incorporated into this document as if fully set out at this point.
PROPRIETARY INFORMATION
The Software and all information and materials related thereto constitute proprietary information and trade secrets of Sway. You shall use your best efforts to insure the confidentiality of the Software and all related materials and information supplied by Sway.
You warrant that You will not disclose, use, modify, copy, or reproduce the Software or any of the information or materials supplied by Sway except in accordance with this Agreement or after first obtaining the written permission of Sway.
You specifically agree to prevent your employees, agents, attorneys and representatives, if any, from disclosing such proprietary information and shall hold Sway harmless and protect and indemnify Sway in the event of any disclosure by such persons.
The non-disclosure provisions of this section shall continue beyond the term of the contract and shall be binding and enforceable even after termination of this Agreement.
INDEMNITY
You agree that to the extent permitted the laws of Your state You will indemnify and hold Sway (including our officers, directors, agents, subsidiaries, joint ventures and employees), harmless from any claim or demand, including reasonable attorneys’ fees, made by any third party due to or arising out of your breach of this Agreement, or Your violation of any law or the rights of a third party using the Software. If your state prohibits your organization from offering any sort of indemnity in connection with this agreement, this provision is null and void.
Subject to the limitation below, Sway agrees to defend, indemnify, and hold You, and your officers, directors, agents, and employees, harmless against all costs, expenses, and losses (including reasonable attorney fees and costs) incurred through claims of third parties against You based on any third-party claim for infringement of Sway’s intellectual property rights based on Your use of the Sway’s Software. In the event of any such action, suit, or proceeding, You agree to promptly notify Sway of the claim, and to provide Sway with all reasonable authority and assistance required by Sway for the defense and settlement of such claim. In such event, Sway will have the option, at its expense, to defend or settle such claim.
UNDER NO CIRCUMSTANCE SHALL SWAY’S LIABILITY UNDER THIS AGREEMENT FOR ANY REASON EXCEED THE AMOUNT THAT SWAY HAS BEEN PAID BY YOU UNDER THIS AGREEMENT AT THE TIME THE CLAIM IS MADE. EXCEPT AS OTHERWISE PROVIDED BY APPLICABLE LAW, NO CLAIM REGARDLESS OF FORM, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT MAY BE BROUGHT BY YOU MORE THAN TWO (2) YEARS AFTER THE CAUSE OF ACTION HAS OCCURRED.
The rights to indemnification provided herein shall constitute the exclusive remedy of You and Sway with respect to matters in anyway relating to third-party claims for infringement arising in connection herewith, whether under any laws, at common law or otherwise.
IN NO CASE WILL SWAY BE LIABLE FOR ANY CONSEQUENTIAL OR INCIDENTAL DAMAGES OR FOR ANY LOST PROFITS OR LOST REVENUES.
TRADEMARKS
SWAY™, SWAY BALANCE™, and SWAY MEDICAL™, SWAY SPORTS™ and additional trademarks identified at swaymedical.com are trademarks of Sway. All rights reserved. No right, license, or interest to such trademarks are granted hereunder, and You agree that no such right, license, or interest shall be asserted by You with respect to such trademarks.
GOVERNING LAW
This Agreement shall be construed and governed in accordance with the laws of the State of Oklahoma, without regard to the choice of law provisions of that state, and all actions, regardless of the form or nature of such, to enforce this license or for the breach of same shall be brought within on (1) year from the occurrence of the grounds for such action in either state or federal court in Tulsa County, Oklahoma.
COSTS OF LITIGATION
If any action is brought by either party to this Agreement against the other party regarding the subject matter hereof, the prevailing party shall be entitled to recover, in addition to any other relief granted, reasonable attorney fees and expenses of litigation.
SEVERABILITY
Should any term of this Agreement be declared void or unenforceable by any court of competent jurisdiction, such declaration shall have no effect on the remaining terms hereof.
NO WAIVER
The failure of either party to enforce any rights granted hereunder or to take action against the other party in the event of any breach hereunder shall not be deemed a waiver by that party as to subsequent enforcement of rights or subsequent actions in the event of future breaches.
It is specifically agreed that the breach of this Agreement, and in particular the section concerning non-disclosure of proprietary information, will result in irreparable injury and the party who claims such a breach shall be entitled to specific performance and injunctive relief to correct and enjoin such breach in addition to all other remedies which might be available.
CANCELLATION/REFUND POLICY
If you are not satisfied with any Sway product purchased directly from Sway (swaymedical.com),contact support@swaymedical.com within30 days of your purchase to inquire about a refund or to cancel your account. Refunds requested more than 30 days following a purchase will not be issued.
The Sway refund policy applies only to accounts purchased through swaymedical.com or directly from the Sway Medical sales team. If you purchased Sway through a third party, any request for cancellation or refund must be made through the third party from which it was purchased.