CYMEDICA PROVIDER PORTAL TERMS OF SERVICE
Last updated: March 04, 2022
Welcome to the CyMedica Provider Portal (the “Provider Portal”). We’ve developed these Terms of Service (the “Terms”) to detail as clearly as possible the respective rights, duties and obligations of CyMedica Orthopedics, Inc. ("CyMedica"), its licensors, suppliers providing any or part of the services described herein and all subsidiaries, affiliates, directors, officers, employees, consultants, and agents of CyMedica (“Affiliates”), and you (the “Provider” or “You”). These Terms govern your use of the Provider Portal and form a legally binding agreement between CyMedica and You.
We recommend that you read the following Terms carefully and urge you to print or save a copy of these Terms for your records and to review it with your legal and other advisers prior to acceptance. Should you have any questions on our Services or the terms provided in these Terms, feel free to contact us at customerservice@cymedicaortho.com.
By clicking the “I AGREE” option, creating an account, or utilizing the Provider Portal or Services (as defined below), You (or, if applicable, the entity you are acting for or on behalf of) accept the terms, obligations, rights and conditions specified here and acknowledge that doing so forms a legally binding agreement between You and CyMedica to abide by these Terms.
IF YOU ARE ENTERING INTO THESE TERMS ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND THE ENTITY TO ALL TERMS AND CONDITIONS OF THESE TERMS AND, “YOU” AND “YOUR” IN THESE TERMS SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY OR IF YOU DO NOT AGREE TO ALL THE TERMS AND CONDITIONS IN THESE TERMS, YOU MAY NOT SELECT THE “I AGREE” BUTTON AND MAY NOT USE THE SERVICES.
If you do not agree with the terms and conditions below, do not click the “I AGREE” option, do not create an account, and do not use the Provider Portal or Services. If you do not agree with these terms and conditions in full, you are not authorized to use the Services for any purpose whatsoever.
1. Additional Terms
(i) Acceptable Use Policy. You agree to abide by CyMedica’s Acceptable Use Policy, (the “Acceptable Use Policy” or “AUP”), as modified from time to time, available at https://secure.cy-motion.com/aup, and hereby incorporated into these Terms. You further agree not to use, promote aid or direct others to use the Provider Portal or Services, as defined in Section 2, in conflict with the Acceptable Use Policy or these Terms. The Provider Portal and Services are not designed or intended for use in any situation where failure or fault of any kind of the Provider Portal or Services could lead to death or serious bodily injury of any person, or to severe physical or environmental damage (collectively, “High Risk Use”). USE OF THE PROVIDER PORTAL OR SERVICES IN, OR IN CONJUNCTION WITH HIGH RISK USE, IS STRICTLY PROHIBITED. CyMedica reserves the right, but assumes no obligation, to investigate any violation of the Acceptable Use Policy or any misuse of the Provider Portal or Services. You acknowledge that we may report to appropriate law enforcement officials, regulators, or other appropriate third parties any activity we suspect violates any law or regulation. We also may cooperate with appropriate law enforcement agencies, regulators, or other appropriate third parties, as requested, by providing network and systems information related to alleged violations of these Terms.
(ii) Privacy Policy. The Privacy Policy, which is incorporated into the Terms, governs the way CyMedica collects, uses, discloses and protects information You provide to CyMedica while using the Provider Portal and Services. The Privacy Policy is available at https://secure.cy-motion.com/privacy.
(iii) Business Associate Agreement. All provider organizations that use CyMedica (“Provider Organization) are required to enter into a Business Associate Agreement (“BAA”) with CyMedica in accordance with the Health Information Portability and Accountability Act (“HIPAA”). If You are the first Provider to create an account for Your Provider Organization, and You have the authority to bind your Provider Organization contractually, You will be prompted upon Your acceptance of the Terms to review and sign the BAA. IF YOU DO NOT HAVE SUCH AUTHORITY, YOU MAY NOT USE THE SERVICES UNTIL YOUR ORGANIZATION ENTERS INTO A BAA WITH CYMEDICA. Once your Provider Organization has entered into a BAA with CyMedica, you are required to use the Provider Portal and the App in accordance with the BAA.
2. Provider Portal Services; Account.
The Provider Portal provides You with access to information, data and patient health information transmitted to the CyMedica e-vive™ App (the “Patient Dashboard”) by the patient and/or collected by the Patient’s device.
Provider Portal services include all plans, features and offerings offered by CyMedica, as modified from time to time by CyMedica, in its sole discretion, that You use by way of your CyMedica Provider Portal user account, including, but not limited to, the Patient Dashboard, Provider Notes and Note Tool (the “Services”). You may access and use the Provider Portal and Services solely in accordance with these Terms, and You agree to comply with all applicable laws, rules, and regulations, including any other policies incorporated into these Terms, such as the CyMedica Privacy Policy, as they may be updated from time to time.
(i) Your Account. To access the Services, You must create a Provider Portal account by providing a valid e-mail address, contact information, and all other information requested by CyMedica when creating an account ( “Personal Information”) and creating a password. You are solely responsible for ensuring that your Personal Information remains accurate and current. You may only create one account per email address. You are responsible for all activities that occur under Your account, regardless of whether the activities are undertaken by You, Your employees or a third party (including your contractors or agents) and CyMedica and its Affiliates are not responsible for unauthorized access to or use of your account. YOU MUST CONTACT US IMMEDIATELY if You believe an unauthorized third party may be using Your account or if Your account information is lost or stolen. You may terminate Your account and these Terms at any time in accordance with Section 6 of these Terms.
By creating an account, You represent and warrant:
(a) Your registration data is true, accurate, current, and complete.
(b) You are at least 18 years of age.
(c) You will update Your registration data as necessary to make sure it remains accurate at all times.
(d) You are authorized to create an account.
DO NOT USE THE PROVIDER PORTAL OR SERVICES WHERE PROHIBITED BY LAW. YOU UNDERSTAND THAT YOUR USE OF THE PROVIDER PORTAL AND/OR 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 PROVIDER PORTAL OR SERVICES.
Your email address and password are Your “User Information.” You alone must:
(a) Keep Your User Information private, and
(b) Not allow another person to use Your User Information to access the Services.
You are responsible for informing CyMedica immediately of any actual or potential unauthorized use of or access to Your User Information or to the Provider Portal or the Services. Passwords are subject to cancellation or suspension. If You do not comply with the above and CyMedica suffers damages as a result, You will be responsible for all of those damages.
(ii) Access to the Patient Dashboard. To access the Patient Dashboard, you must enter your account email address and password, and we may require two-factor authentication on a device if you have not previously used that device to access the Provider Portal. To view your patient’s information, you must enter your patient’s CyMedica e-vive™ System Device Identification Number (“Device ID”) and the patient’s entered Date of Birth (“DOB”). You are responsible for maintaining the confidentiality of any Device ID, DOB, and PIN, as well as the privacy of the patient information accessed on the Patient Dashboard. Except to the extent caused by our breach of this Agreement or as required by applicable state, federal and local laws, rules and regulations, CyMedica and our Affiliates are not responsible for unauthorized access to or use of Device IDs. YOU MUST CONTACT US IMMEDIATELY IF YOU BELIEVE AN UNAUTHORIZED THIRD PARTY MAY BE USING DEVICE IDS.
3. Not Intended for Emergency Communications
The CyMedica e-vive™ System provides a streamlined control of Neuromuscular Stimulation (NMES) and Transcutaneous Electrical Nerve Stimulation (TENS) products and provides the infrastructure to allow sharing of device and progress information with You and Your patients’ other providers via the e-vive Mobile App and the Provider Portal.
THE PROVIDER PORTAL AND THE SERVICES CANNOT AND ARE NOT DESIGNED, INTENDED OR APPROPRIATE TO REPLACE THE RELATIONSHIP YOU HAVE WITH YOUR PATIENTS OR TO ADDRESS SERIOUS, EMERGENCY, OR LIFE-THREATENING MEDICAL CONDITIONS AND SHOULD NOT BE USED IN THOSE CIRCUMSTANCES. NO PART OF THE PROVIDER PORTAL OR THE SERVICES SHOULD BE USED FOR EMERGENCY COMMUNICATION WITH YOUR PATIENTS OR WITH OTHER PROVIDERS. YOU ARE RESPONSIBLE FOR THE DIAGNOSIS AND TREATMENT OF YOUR PATIENTS.
4. Not Medical Advice
The Provider Portal and the Services provide an online option for reviewing health data and analytics regarding participating patients. They are NOT intended for use in connection with active patient monitoring to allow immediate clinical action or continuous monitoring by a healthcare provider or the patient.
The Content (as defined in Section 12 below) in the Provider Portal and Patient Dashboard does not constitute medical advice of any kind and it is not intended to be, and should not be, used to diagnose or identify treatment for a medical or mental health condition. The Content should not be construed as an attempt to offer or render a medical or mental health opinion or otherwise engage in the practice of medicine by CyMedica. CyMedica is not liable in any way for any malpractice or substandard treatment You as a Provider may provide. You are using the Services at Your own risk.
CYMEDICA DOES NOT RECOMMEND, REFER, ENDORSE, VERIFY, EVALUATE OR GUARANTEE ANY ADVICE, INFORMATION, TREATMENT, INSTITUTION, PRODUCT, PHYSICIAN, SURGEON, OPINION OR OTHER INFORMATION OR SERVICES PROVIDED BY ANY PHYSICIAN, SURGEON OR OTHER PRACTITIONER USING THE SITE, AND NOTHING IN THE PROVIDER PORTAL SERVICES CONSTITUTES AS A REFERRAL, ENDORSEMENT, RECOMMENDATION OR GUARANTEE OF ANY MEDICAL PROFESSIONAL OR COURSE OF TREATMENT. CYMEDICA DOES MAKES NO GUARANTEE OF THE VALIDITY, ACCURACY, COMPLETENESS, SAFETY, LEGALITY, QUALITY, OR APPLICABILITY OF THE CONTENT OR ANYTHING SAID OR WRITTEN BY ANY PHYSICIAN OR ANY ADVICE PROVIDED. CYMEDICA WILL NOT BE LIABLE FOR ANY DAMAGES SUSTAINED DUE YOUR RELIANCE ON SUCH INFORMATION OR ADVICE PROVIDED BY ANY OTHER PROVIDER IN CONNECTION WITH THE USE OF THE PROVIDER PORTAL OR SERVICES.
5. Right to Change These Terms
CyMedica may modify, discontinue or terminate the Provider Portal or the Services according to the services agreement between You and CyMedica and may modify these Terms without prior notice to You. If we modify these Terms, we will post the changes on our website or send the changes to You at the email address You provided to us when You registered Your account. If You continue to use the Provider Portal and/or 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.
Some features of the Services may be subject to different terms and conditions. If You use those features, You agree to be bound by the additional terms of use applicable to such features. If any such additional terms conflict with these Terms, the additional terms will govern with respect to such features.
5. Parameters of Provider Portal and Services
The Provider Portal and Services are intended for You to conveniently observe Your patient’s personal electrical stimulation treatments, range of motion assessments, and other information such as pain levels, activity levels, patient reported outcomes, and other related information provided by Your patient through the CyMedica e-vive™ System and e-vive Mobile App (the “App”).
The Provider Portal and App offer two types of functions: (i) Review and analysis of patient data concerning electrical stimulation, range of motion, and other relevant health data (Health Data Features); and (ii) those that are intended to be used for educational, recreational, and non-medical purposes (Wellness Data Feature). The Wellness Data are not intended for the purpose of diagnosis, treatment, or identification of any particular disease, condition or function of the body.
Health Data: The e-vive™ System, which is used in conjunction with the Provider Portal and App, is a prescription medical device cleared by the Food and Drug Administration (“FDA”) in the USA and is intended to be used under the direction of a healthcare provider. Please refer to the User Manual for more information regarding the intended use of e-vive™ System. The electrical stimulation features of the App, which is intended for use as an accessory to the e-vive™ System and other medical devices, is the only feature intended for and approved for medical use.
Wellness Data: The App offers features that allow patients and Providers to track progress related to muscle stimulation, range of motion, activity level, and pain levels. In addition, the App provides Users with simple tools to organize and track health information, and is intended to help patient Users store, document, display, show, transfer, or communicate their rehabilitation progress to their Providers who have created accounts on the Provider Portal. These features are informational only and are not intended for use in the diagnosis of disease or other conditions, or the cure, mitigation, treatment, or prevention of disease, nor are they intended to affect the structure or any function of the body.
The information on the Provider Portal may not always be accurate or up-to-date, and should not be relied upon as accurate by You or Your patient. The accuracy of the data analysis returned to You is dependent upon the accuracy of the information entered by the patient in the App and other behavioral and environmental factors, and as such, any and all results, reports, data or feedback provided are not guaranteed.
6. Access to Services; Suspension and Termination. Subject to Your compliance with these Terms, CyMedica grants You a non-exclusive, revocable right to access and use the Services. CyMedica reserves the right to temporarily suspend or permanently discontinue, with or without notice, Your access and/or use of the Provider Portal and/or the Services at any time should CyMedica reasonably believe that such action is required, or to avoid an imminent threat of harm to CyMedica, its Affiliates, other Providers or any third party.
7. Ownership of Intellectual Property and Services. The Provider Portal and Services are licensed, not sold, solely for use by Provider in accordance with these Terms. Except as specifically set forth in these Terms, CyMedica and its Affiliates retain all right, title, and interest, including all intellectual property and moral rights, relating to or embodied in the Provider Portal and Services, including without limitation all technology, hardware, software, systems and copies of the foregoing relating to the Provider Portal or Services. All graphics, logos, service marks, and trade names, including third-party names, product names, and brand names (collectively, the “Marks”) relating to the Provider Portal and Services are the trademarks of CyMedica and/or its Affiliates. You are prohibited from using any Marks without prior written permission from CyMedica or the appropriate Affiliates, determined in CyMedica’s or such Affiliate’s sole and exclusive discretion. CyMedica reserves all rights and interests not expressly granted in these Terms, and no direct or indirect ownership interest or license right in or to CyMedica’s or Affiliates’ Marks, the Provider Portal, the Services or any other CyMedica or Affiliate intellectual property is granted to Provider or implied in these Terms.
8. Restrictions. You shall not reverse engineer, decompile, disassemble, translate, or attempt to learn the source code of the Provider Portal or Services. Unless expressly set forth herein, You may not use, copy, modify, create derivative works of, distribute, sell, assign, pledge, sublicense, lease, loan, rent, timeshare, deliver, or otherwise transfer, directly or indirectly, the Provider Portal (in whole or in part) or any rights in the Services. You may not resell or act as a service bureau for the Services or any component thereof. You may not remove from the Provider Portal or Services, or alter or add, any Marks or copyright notices or other proprietary rights markings.
9. Maintenance. CyMedica will perform regular maintenance on the Provider Portal or Services, at its sole discretion, and Your access to or use of the Provider Portal or Services may be restricted while such maintenance is being performed. In certain circumstances, CyMedica may need to perform emergency maintenance and will, to the extent reasonably possible, provide advance notice of such emergencies.
10. Electronic Communications; Notices. The Services are conducted electronically and You agree that CyMedica may communicate electronically with You via the email address associated with Your account for any matters relating to the Services or Provider Portal, including but not limited to information and notifications regarding Service updates, incentive and rewards programs, training opportunities and ways to more efficiently use the Services, and legal notices of any kind, including cancellation of Your account, unless prohibited by law.
11. Internet Services; Hardware. 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 Provider Portal and 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 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 Systems.
11. Updates; Applicable Terms and Authorization for Auto Updates. CyMedica may provide, in its sole discretion, any updates, supplements, add-on components, features, or other functionality or messages related thereto, including without limitation alterations of functionality, features, storage, security, availability, content, and other information relating to the Provider Portal or Services (collectively, “Updates”) that it deems reasonable or necessary. Such Updates may be subject to additional terms and conditions, and by continuing to use the Provider Portal and/or the Services after such Updates, you agree to abide by such additional terms and conditions. You hereby authorize CyMedica to, in accordance with CyMedica’s standard operating procedures, automatically and in good faith transmit, install, and otherwise provide Updates to the Provider Portal upon Your access to the Provider Portal or Services without further notice or consent.
12. Privacy and Security. CyMedica is responsible for protecting the security of the information available on or created using the Provider Portal, including information available on the Patient Dashboard (“Content”), in our possession and will maintain commercially reasonable administrative, technical, and physical procedures to protect all the personal information that is stored with CyMedica from unauthorized access and accidental loss or modification. CyMedica respects the information You provide to us. We will only use and disclose this information to allow Your use of the Provider Portal and Services. Please read our Privacy Policy to better understand how we use the information you provide to us.
13. Your Data Security Obligations. You are fully responsible for the security of your Personal Information and account information in your possession. You agree that you are solely responsible for complying with all applicable state and federal laws and rules in connection with Your collection, security, and dissemination of any protected health information (PHI), as that term is defined in HIPAA, that You access, view, download, print, or otherwise obtain from the Provider Portal.
14. Ownership of Content; Limited License to Content. You agree that you do not claim ownership of any Content. As between CyMedica and You, CyMedica is the Content owner or applicable Licensor. In connection with our provision of the Provider Portal and Services to You, except as otherwise provided in these Terms, as between CyMedica and its Affiliates, on the one hand, and You, on the other hand, CyMedica retains all right, title, and interest in and to the Content. You are hereby granted by Licensor a nonexclusive, worldwide, royalty-free, fully-paid, revocable, non-transferable license to display, access, use and copy Content solely for the purpose viewing and analyzing data and communicating with patients.
Notwithstanding the foregoing, CyMedica will not access, use, or disclose any Content except as permissible under the BAA and as necessary to perform the Services, including but not limited to the following: (i) during a Services interruption as necessary to restore applicable Content at Your request; (ii) as necessary to provide remote support to You; or (iii) as reasonably deemed necessary or advisable by CyMedica, at its sole but reasonable discretion, to conform to applicable legal requirements or to comply with legal process.
15. Representations and Warranties About Content. You represent that You will not publish, post, upload, record, or otherwise distribute or transmit Content using the Provider Portal or Services that:
(a) infringes or would infringe any copyright, patent, trademark, trade secret, or other proprietary right of any party, or any rights of publicity or privacy of any party;
(b) violates any law, statute, ordinance, or regulation (including without limitation the laws and regulations governing export control, unfair competition, anti-discrimination, false advertising, privacy, or data security);
(c) is profane, defamatory, libelous, obscene, indecent, threatening, harassing, or otherwise unlawful;
(d) is harmful to minors or pornographic;
(e) contains any viruses, Trojan horses, worms, time bombs, malware, cancelbots, corrupted files, or any other similar software, data, or programs that may damage, delete, detrimentally interfere with, surreptitiously intercept, or expropriate any system, data, personal information, or property of another;
(f) is materially false, misleading, or inaccurate; or
(g) that You do not have a right to reproduce, display, or transmit under any law or under contractual or fiduciary relationships.
16. Retention of Content. As long as Your account is active, You shall be responsible for managing and retaining any of the Content you require to retain for purposes of maintaining patient medical records. Other than as required by applicable law or legal process or as otherwise agreed, CyMedica shall not be responsible for retaining any of the Content in the event Your account is terminated or for archiving purposes. For the avoidance of doubt, CyMedica does not provide record keeping or other archival services. Provider will keep copies of all Content delivered or entered by Provider on the Provider Portal.
17. Submissions. You may submit questions or comments to CyMedica from time to time. CyMedica reserves the right to use in whole or part the content of any such questions or comments and all such communications, comments, feedback, suggestions, ideas, and other submissions related to the Provider Portal or Services submitted to CyMedica, excluding Your Personal Information (collectively, “Submissions”) will become and shall thereafter remain CyMedica's property, and all worldwide right, title, and interest in all copyrights and other intellectual property in all Submissions are assigned (and in the future deemed to be assigned) by You to CyMedica.
18. Copyright Policy. CyMedica respect copyright law and expects its users to do the same. It is CyMedica’s policy to terminate, in appropriate circumstances, any user or other account holder who is believed to have infringed on the rights of copyright holders.
(a) Digital Millennium Copyright Act (DMCA) Notifications for intellectual property infringement.
If you believe that your work is the subject of copyright infringement and/or trademark infringement and appears in our App, please provide CyMedica’s designated agent (listed below) the following information:
- A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
- Identification of the copyrighted and/or trademarked work claimed to have been infringed, or, if multiple works at a single online site are covered by a single notification, a representative list of such works at that site.
- Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled via the App, and information reasonably sufficient to permit CyMedica to locate such material.
- Information reasonably sufficient to permit CyMedica to contact you as the complaining party, such as an address, telephone number, and, if available, an email address at which you may be contacted.
- A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright and/or trademark owner, its agent, or the law.
- A statement that the information in the notification is accurate and, under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
CyMedica’s agent for notice of claims of copyright or trademark infringement on this App can be reached at customerservice@cymedicaortho.com.
Please also note that for copyright infringements under Section 512(f) of the Copyright Act, any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability.
(b) 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 valid DMCA take-down notice that we have received. If you receive such notice from us, you may provide us with a counter-notification in writing to CyMedica designated agent that includes all of 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 CyMedica 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.
(c) Termination of Repeat Infringers
CyMedica reserves the right, in its sole discretion, to terminate the account or access of any user of our Application who is the subject of repeated DMCA or other infringement notifications
18. Confidentiality. You may use CyMedica Confidential Information solely in connection with Your use of Services, as permitted under these Terms, and will not disclose any CyMedica Confidential Information at any time. You will hold in strict confidence and not use or disclose to any third party any Confidential Information of CyMedica, other than as permitted by these Terms. You will take all reasonable measures to avoid disclosure or unauthorized use of Confidential Information, but in no event less than a reasonable degree of care. You will not issue any press release or make any other public communication with respect to these Terms or your use of the Services. For purposes of these Terms, Confidential Information means all nonpublic information disclosed by CyMedica and its Affiliates that is designated as confidential or that, given the nature of the information or circumstances surrounding its disclosure, reasonably should be understood to be confidential. Confidential Information includes: (a) nonpublic information relating to a party’s technology, customers, business plans, promotional and marketing activities, finances and other business affairs; (b) third-party information that a party is obligated to keep confidential; and (c) the nature, content and existence of discussions or negotiations between the parties. Confidential Information does not include any information that: (i) is or becomes publicly available without breach of these Terms; (ii) can be shown by documentation to have been known to the receiving party at the time of receipt from the disclosing party; (iii) is received from a third party who did not acquire or disclose the same by a wrongful or tortious act; or (iv) can be shown by documentation to have been independently developed by a party without reference to the other party’s Confidential Information.
19. Compliance with Applicable Law. You agree (i) not to use the Provider Portal or Services for any illegal purposes and (ii) to comply with all applicable local, state, national, and international laws and regulations, including without limitation laws relating to recording conversations, privacy, data protection and public displays or performances, and United States export laws and regulations regarding the transmission of technical data exported from the United States through the Provider Portal or Services. You further agree that these Terms do not require CyMedica or any of its Affiliates to exercise any right or remedy in order to benefit or protect anyone, although CyMedica reserves the right to do so in its sole discretion.
20. Indemnification. You agree to defend, indemnify, and hold harmless CyMedica from and against any and all claims and liabilities (including, but not limited to, fees, costs and other reasonable expenses of attorneys and expert witnesses, but excluding any loss, liabilities, costs, damages or other expenses attributable solely to CyMedica’s gross negligence or willful misconduct) made by any third party related to or arising from: (i) Your use of the Provider Portal or Services (including without limitation, any person accessing the Services using Your Personal Information or the patient Device ID with or without Your permission), (ii) any actual or alleged violation of these Terms or applicable law, and/or (iii) any actual or alleged infringement or violation (by You or any person accessing the Services using Your Personal Information or the patient Device ID with or without Your permission) of any intellectual property or privacy or other right of any person or entity. Notwithstanding the foregoing, Your potential indemnification liability shall exclude, to the extent permitted by applicable state, federal or international laws, any special, incidental, punitive or consequential damages to CyMedica or its Affiliates other than those arising from or related to Your negligent or willful: (x) misappropriation of Content or trade secrets; (y) actual or alleged infringement of a third party’s intellectual property rights; or (z) breach of Your confidentiality obligations described in these Terms and any other agreement(s) between you and CyMedica.
21. DISCLAIMER OF WARRANTIES. THE PROVIDER PORTAL AND ALL SERVICES ARE PROVIDED AS IS AND WITH ALL FAULTS AND WITHOUT ANY WARRANTY BEYOND THE SOLE AND LIMITED WARRANTY THAT SERVICES WILL PERFORM SUBSTANTIALLY AS DESCRIBED IN APPLICABLE CYMEDICA DOCUMENTATION. EXCEPT AS OTHERWISE PROVIDED IN THIS SECTION, EACH OF CYMEDICA AND ITS AFFILIATES HEREBY DISCLAIMS ALL WARRANTIES, CONDITIONS, AND DUTIES OF ANY KIND (IF ANY), EXPRESS, IMPLIED, OR STATUTORY, UNLESS PROHIBITED BY LAW, INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, TITLE, INFRINGEMENT, OR FITNESS FOR ANY PARTICULAR PURPOSE, OF ACCURACY, OF SYSTEM INTEGRATION OR COMPATIBILITY, OR OF WORKMANLIKE EFFORT. THE FOREGOING DISCLAIMERS INCLUDE, WITHOUT LIMITATION, ANY WARRANTY, DUTY, OR CONDITION THAT: THE PROVIDER PORTAL OR SERVICES WILL BE UNINTERRUPTED, RELIABLE, AVAILABLE AT ANY PARTICULAR TIME, SECURE, ERROR-FREE, VIRUS-FREE, OR CORRESPOND TO ANY CONDITION; THAT MESSAGES OR REQUESTS WILL BE DELIVERED; THAT DEFECTS WILL BE CORRECTED; OR THAT THE PROVIDER PORTAL OR SERVICES, ANY CONTENT, SYSTEMS, SERVERS, AND INFORMATION THAT IS IN OR UTILIZED BY THE PROVIDER PORTAL AND/OR SERVICES WILL BE FREE OF HARMFUL ASPECTS.
22. LIMITATION ON LIABILITY. TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, CYMEDICA AND ITS AFFILIATES AND EACH OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, REPRESENTATIVES AND AGENTS, ARE NOT LIABLE FOR ANY DIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, INDIRECT OR PUNITIVE DAMAGES ARISING OUT OF YOUR ACCESS TO, OR USE OF, OR INABILITY TO ACCESS OR USE THE PROVIDER PORTAL OR SERVICES, OR OUT OF YOUR NEGLIGENT DISCLOSURE OR OTHER RELEASE OF PERSONAL INFORMATION OR CONTENT, INCLUDING WITHOUT LIMITATION DAMAGES FOR HARM TO BUSINESS, LOST PROFITS, LOST DATA, LOST SAVINGS, OR LOST REVENUES, HOWEVER SUCH DAMAGES ARE CAUSED AND WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER THEORY OF LIABILITY. THE FOREGOING LIMITATIONS SHALL APPLY REGARDLESS OF WHETHER CYMEDICA OR AFFILIATES OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, REPRESENTATIVES AND AGENTS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
IN THE EVENT YOU TRANSMIT, INTRODUCE, OR OTHERWISE CAUSE ANY TECHNICAL DISRUPTION OF THE PROVIDER PORTAL, YOU AGREE TO BE RESPONSIBLE FOR ANY AND ALL LIABILITIES AND COSTS AND EXPENSES (INCLUDING ATTORNEYS’ FEES AND EXPENSES) ARISING FROM ANY AND ALL CLAIMS BROUGHT BY THIRD PARTIES BASED UPON SUCH TECHNICAL DISRUPTIONS. "TECHNICAL DISRUPTION" MEANS DISTRIBUTION OF UNSOLICITED ADVERTISING OR CHAIN LETTERS, PROPAGATION OF COMPUTER WORMS, VIRUSES OR OTHER HARMFUL CODE, AND/OR USING THE SITE TO MAKE UNAUTHORIZED ENTRY TO ANY OTHER MACHINE ACCESSIBLE VIA THE SITE. YOU ARE FURTHER SOLELY RESPONSIBLE FOR THE CONTENT CONTAINED IN ANY TRANSMISSIONS USING THE PROVIDER PORTAL AND AGREE NOT TO UPLOAD, POST OR OTHERWISE MAKE AVAILABLE ON THE PROVIDER PORTAL ANY MATERIAL PROTECTED BY A PROPRIETARY RIGHT OF A THIRD PARTY WITHOUT FIRST OBTAINING THE EXPRESS PERMISSION OF THE OWNER OF SUCH PROPRIETARY RIGHT. YOU SHALL BE SOLELY LIABLE FOR ANY DAMAGES, LOSSES, COSTS OR EXPENSES (INCLUDING ATTORNEYS' FEES AND EXPENSES) ARISING OUT OF INFRINGEMENT OF PROPRIETARY RIGHTS OR ANY OTHER HARM ARISING FROM THE UPLOADING, POSTING OR OTHER SUBMISSION OF CONTENT BY YOU.
IF YOU ARE NOT SATISFIED WITH THE PROVIDER PORTAL, THE SERVICES, 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, CYMEDICA’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.
24. Dispute Resolution by Binding Arbitration.
PLEASE READ THIS SECTION CAREFULLY AS IT AFFECTS YOUR RIGHTS.
Most User concerns can be resolved quickly and to the User’s satisfaction by emailing User support. In the unlikely event that our User care team is unable to resolve a complaint you may have (or if CyMedica has not been able to resolve a dispute it has with you after attempting to do so informally), including but not limited to any alleged breach of these Terms, we each agree to resolve the dispute through binding arbitration in the state of Arizona before a single arbitrator, in accordance with the rules and procedures of the American Arbitration Association. Arbitration, which is often cheaper, faster and less formal than a lawsuit in court, uses a neutral arbitrator instead of a judge or jury. Arbitrators can award the same damages and relief that a court can award, and may, but do 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 under these Terms will take place on an individual basis; class arbitrations and class actions are not permitted. 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.
25. Feedback. We welcome and encourage You to provide us with feedback, comments and suggestions for improvements to the Provider Portal or the Services (“Feedback”). You may submit Feedback by emailing us at customerservice@cymedicaortho.com. If You submit any Feedback to us, CyMedica will own all intellectual property rights in such Feedback and may use such Feedback for any lawful purpose.
25. Miscellaneous; Severability.
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.
26. Force Majeure. CyMedica and its Affiliates will not be liable for non-performance or delay in performance caused by any event reasonably beyond the control of such party including, but not limited to wars, hostilities, revolutions, riots, civil commotion, acts of terrorism, national emergency, epidemics, fire, flood, earthquake, force of nature, explosion, embargo, any act of God, or any other event of a similar nature.
27. Third Party Beneficiaries; Assignment. The Affiliates are third party beneficiaries to these Terms. There are no other third party beneficiaries to these Terms. You may not assign or transfer these Terms, by operation of law or otherwise, without CyMedica’s prior written consent. Any attempt by You to assign or transfer these Terms, without such consent, will be null and void. CyMedica may assign or transfer these Terms, at its sole discretion, without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.
29. Entire Agreement. These Terms, including any additional documents incorporated by reference, constitutes the entire agreement of the parties with respect to the Provider Portal and Services and supersedes all other (prior or contemporaneous) communications and proposals, whether electronic, oral, or non-electronic, between CyMedica and You regarding them. CyMedica’s performance of these Terms is subject to existing laws and legal process, and You agree that CyMedica may comply with law enforcement or regulatory requests or requirements notwithstanding any contrary term of these Terms or that policy. A printed or electronic version of these Terms and of any notice given to You in electronic form will be admissible in judicial or administrative proceedings based upon or relating to these Terms to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
Contact Information
CyMedica Orthopedics, Inc. is incorporated in Delaware and headquartered in Arizona.
CyMedica Orthopedics, Inc.
2120 East 6th Street, Ste. 8
Tempe, AZ 85288
Specific questions and comments should be directed to us via email at customerservice@cymedicaortho.com. While we make every effort to respond to all emails within 1 business week, we cannot guarantee a response to every electronic communication.
CY-0300-002 Rev. F
