AF-SEEN Programme Terms and Conditions
1.
This Atrial Fibrillation Tele-ScrEENing Programme (also known as "AF-SEEN Programme") (“Programme") is a community-screening programme hosted by the Hong Kong Society for Rehabilitation (“HKSR”), with Roche Diagnostics (Hong Kong) Limited (“Roche”, a pharmaceutical and biotech company) as the sponsor of the Programme, Qompium NV (“Qompium”) as the provider of the FibriCheck software (“FibriCheck”) used in the Programme, eSmartHealth Limited (“eSmartHealth”, together with HKSR, Roche, Qompium as the “Parties”) as the provider of the DrGo App (“App”) used in the Programme and Dr. Chan Ngai-Yin (Cardiologist) as the medical adviser of the Programme. The Programme shall run in the Hong Kong Special Administrative Region (“Hong Kong”).
2.
The Programme aims to provide a 14-day free usage of a heart rhythm checking via the App, utilising FibriCheck (a heart rhythm checking software powered by Qompium, which has been integrated into the App), to up to 100,000 citizens in Hong Kong for atrial fibrillation (“AF”) screening, with a hope to identify the disease early and prompt the disease management. Participants are free to use FibriCheck via the App to measure their heart rhythm at will within the 14-day period. Participants are recommended to perform heart rhythm measurement at least 2 times a day (in the morning and at dusk), or whenever AF symptoms (e.g. heart palpitations or shortness of breath) are experienced.
3.
Enrolment of the Programme is expected to start at 9:00 am on 12 December 2022 and end at 11:59 pm on 30 April 2023 (Hong Kong time, subject to the system display time), subject to adjustment as HKSR may advise (“Programme Period”).
4.
To participate in the Programme, participants must be aged 18 or above and are required to register with DrGo on the App and join the Programme within the Programme Period. Participants are deemed to have read and agree to be bound by all relevant terms and conditions of the Programme, including (a) the prevailing version of these “AF-SEEN Programme Terms and Conditions”; (b) the “eSmartHealth Personal Information Collection Statement of the Programme”; and (c) the prevailing version of the “FibriCheck Terms of Use” (all available on DrGo website at www.drgo.com.hk and the App). Participants shall also comply with the “FibriCheck Service Instructions of Use” (available on the DrGo website and the App) when using FibriCheck via the App. By continuing to be registered or use the services under the Programme, participants are deemed to have accepted any updated terms and conditions. If there is any discrepancy between the “AF-SEEN Programme Terms and Conditions” and the “FibriCheck Terms of Use” or the “FibriCheck Service Instructions of Use”, the provisions of the “AF-SEEN Programme Terms and Conditions” shall prevail, unless HKSR or eSH advises otherwise.
5.
DrGo and the App are provided by eSmartHealth, but the FibriCheck service (which has been integrated into the App for the purpose of the Programme) is provided by Qompium. The registration with DrGo and use of services under DrGo are subject to relevant terms and conditions, including the prevailing version of the “DrGo Terms and Conditions” (available on DrGo website and the App). By continuing to be registered or use the services under DrGo, DrGo users are deemed to have accepted any updated “DrGo Terms and Conditions”.
6.
Each participant of the Programme will be assigned a Patient ID, which will be shown in the FibriCheck results available on participants’ DrGo account.
7.
Follow-up service will be provided by HKSR to participants who are detected with possible AF (up to 1,000 participants, as expected under the Programme) from using FibriCheck via the App (each a “Follow-up Participant”). HKSR’s designated nurse or staff will contact Follow-up Participants by phone or email, advising them to go to the nearest HKSR’s Community Rehabilitation Network (“CRN”) Centre for further follow-up. Participants known to harbour AF prior to the Programme are not eligible for the follow-up service and will not be contacted. Participants with cardiac arrhythmias / abnormalities beyond possible AF, as indicated by the FibriCheck result, will also not be followed up. These ineligible participants are advised to seek medical attention as needed. If the number of Follow-up Participants exceeds the expected number, HKSR reserves the right to adjust the participation quota or end the Programme early.
8.
HKSR will lend each Follow-up Participant a portable electrocardiogram (“ECG”) device (model: AliveCor KardiaMobile® 6L) during the Follow-up Participant’s visit to the CRN Centre for 14-day free use, as well as provide an extra 14-day free use of FibriCheck via the App. Each Follow-up Participant is recommended to take a measurement on the ECG device at least twice a day, in conjunction with measuring their heart rhythm with FibriCheck via the App, or whenever AF symptoms are experienced.
9.
Within one week after the said 14-day period, Follow-up Participants are required to return the ECG device in clean and good working condition to a CRN Centre or as directed by HKSR. A participant is liable to pay a fine of HK$100 for any late return of the device, or pay the relevant fee for any damaged, non-working or unclean device or any non-return of the device, as HKSR may advise the participant.
10.
Upon the return of the ECG device, HKSR will extract Follow-up Participants’ ECG non-personally identifiable data from the device and send the same to HKSR’s designated doctors of the Programme for review, analysis and/or research purpose. A report of the AF screening result, with doctor’s comments (if any), may be made available to Follow-up Participants on the App.
11.
If normal heart rhythm results are recorded through the App, HKSR may invite up to 500 participants of such group on a random basis for the same or similar follow-up arrangements as those with suspected AF results.
12.
If the screening report is suggestive of AF for a Follow-up Participant, HKSR’s nurse or staff will contact the participant by phone or email in around 6 months’ time after the issuing of the report for a survey on the disease management status.
13.
Participants must ensure that any information provided for the purpose of the Programme (including but not limited to the participant's personal data) is correct, complete and true. No one shall intentionally conceal or provide false information, fraudulently use or embezzle other people's information, or mislead any Parties or any doctor of the Programme in any way, in order to obtain support from the Programme. If HKSR or eSmartHealth is of the view that a participant has or may have violated any terms and conditions of the Programme, the participant’s participation will be disqualified, and each of HKSR and eSmartHealth may take measures as it deems appropriate, which may include, but not limited to, withdrawing any support or service and claiming the participant for any loss and damage it (or any of its staff, representative or agent) may have incurred or suffered.
14.
Participants agree that aggregate anonymous data which is extracted from the Programme will be used by third parties (such as Dr. Chan Ngai-Yin or other designated doctor(s)) for academic research, policy discussion and/or public education purposes and any research results may be published and shared with the Parties.
15
eSmartHealth may, for and on behalf HKSR, send an email to each participant to the participant’s DrGo registered email address, requesting the participant to provide the participant’s relevant medical history and other relevant data directly to HKSR for the said academic research, policy discussion and/or public education purposes. Participants agree to only provide non-personally identifiable data in response to the said email directly to HKSR.
16.
Participants agree that they will remain in Hong Kong during their participation of the Programme, including but not limited to when they download the App, register with DrGo, perform each heart rhythm and ECG measurement.
17.
Any personal data of any participant of the Programme obtained by HKSR under the Programme shall be collected, used and retained by HKSR in accordance with the requirements of the Personal Data (Privacy) Ordinance (Chapter 486 of the Laws of Hong Kong) and HKSR Privacy Policy Statement (available at HKSR website at www.rehabsociety.org.hk). Any personal data, medical data, screening report results and other information collected in the Programme will be used for the Programme and/or liaison purposes. After the Programme ends, unless it is required to be retained by law, HKSR will permanently destroy or anonymise all information collected through the Programme. HKSR reserves the right to share such anonymised information with other third parties for research and development, policy setting, as well as public education purposes.
18.
Except as expressly stated in the “AF-SEEN Programme Terms and Conditions”, HKSR’s responsibility to participants under the Programme is limited to the support provided under the Programme and eSmartHealth’s responsibility to participants under the Programme is limited to the App available to participants under the Programme, provided that eSmartHealth shall not be liable in any way for any loss or damage which any party or any person may incur or suffer in connection with FibriCheck (which is integrated into the App) or the ECG device or their respective readings or results or any goods or services provided by HKSR, Roche or Qompium in connection with the Programme. Neither HKSR nor eSmartHealth is not responsible for any fees that participants may need to pay in connection with the participant’s participation in the Programme, including but not limited to consultation fees, travel expenses, and follow-up or testing expenses after the completion of the Programme, if any.
19.
Support, goods and services provided under the Programme cannot be exchanged for cash, other products or services, or set off against other fees and refunds.
20.
The Programme is for eligible participants only. Participants may not transfer or resell any support, goods or services provided under the Programme to any party.
21.
Please contact HKSR if any participant would like to withdraw from participation of the Programme.
22.
Any information in connection with the Programme given by any Party or any doctor relating to the screening report or made available on the App are for participants’ reference only. Such information shall in no way constitute professional medical advice. Participants are advised to seek advice from medical professionals for all information about their health and conditions. Participants understand and agree that neither HKSR nor eSmartHealth shall be held responsible for the results of the screening reports, any information in connection with the Programme given by HKSR or eSmartHealth, or the health condition of the participants.
23.
The Programme does not provide any medical services. None of the Parties and any doctors under the Programme intends to establish any fiduciary duty with any participant, including between doctors and their patients.
24.
Without limiting other provisions of the “AF-SEEN Programme Terms and Conditions”, all support, goods and services provided under the Programme are provided to participants on an “as is” and an “as available” basis, without warranty or condition of any kind, either expressed or implied, and all representations and warranties in connection with the Parties, any doctors under the Programme and the support, goods and services under the Programme are excluded to the fullest extent permissible under any applicable law. To the maximum extent permitted under applicable law, each of the Parties shall not be liable in any way in connection with the Programme, whether in contract, warranty, tort or otherwise.
25.
None of the Parties shall be liable or deemed in default for failure to fulfil any obligation under the Programme due to causes beyond its reasonable control. Such causes or conditions shall include, but shall not be limited to, acts of God, acts of the Government, fires, floods, epidemics, quarantine restrictions, strikes, civic unrests, shortages of labour or materials, freight embargoes, unusually severe weather, electrical power failures, telecommunication or internet backbone outages, failure of an internet access provider or other similar causes beyond our control, and none of the Parties shall be liable for losses, expenses or damages, ordinary, special, remote or consequential, resulting directly or indirectly from such causes.
26.
HKSR and/or eSmartHealth reserves the right to modify, suspend or terminate the Programme and the “AF-SEEN Programme Terms and Conditions” at any time without prior notice or reason. The “AF-SEEN Programme Terms and Conditions”, as amended, are effective immediately upon uploading to the relevant website or app.
27.
The contents of the Programme and the “AF-SEEN Programme Terms and Conditions” shall be governed and construed by the laws of the Hong Kong Special Administrative Region. If there is any dispute related to the content of the Programme and the “AF-SEEN Programme Terms and Conditions”, HKSR and/or eSmartHealth reserve(s) all the right of final interpretation and decision.
eSmartHealth Personal Information Collection Statement of the Programme
The personal data and other information which you may provide in relation to the Programme (collectively, the “Data”) will be collected, used and retained by eSmartHealth Limited (“eSmartHealth”) as a result of or in connection with the Programme, in accordance with the requirements of the Personal Data (Privacy) Ordinance (Chapter 486 of the Laws of Hong Kong) and other applicable laws, rules and regulations. The details of the collection, compilation, retention, use, disclosure and processing of the Data and any further information about the Programme are set out in the applicable terms and conditions of the Programme, this “eSmartHealth’s Personal Information Collection Statement of the Programme” and the “eSmartHealth Privacy Statement” (available on eSmartHealth website: www.esmarthealth.com, DrGo website: www.drgo.com.hk, and DrGo App). Your Data may be disclosed to, used by and/or retained by, at all times to the extent permitted under applicable laws, licences, rules, and regulations, other members of the HKT Group (being HKT Limited, its subsidiaries, affiliates and associated companies) (HKT Limited is a company incorporated in the Cayman Islands with limited liability), their respective agents and service providers (including, without limitation, delivery companies, insurance companies, software or platform developers, and debt collection agents), relevant parties of the Programme (such as the Hong Kong Society for Rehabilitation (“HKSR”)) for purposes in connection with the Programme, including, without limitation, processing your registration, enabling your participation of the Programme, contacting you to request for certain data for the purpose of academic research, policy discussion and/or public education purposes, and other purposes to which you may have consented at any time. eSmartHealth may also be ordered by regulatory bodies, government authorities and courts of law in different jurisdictions to disclose the Data in order to comply with legal obligations and duties imposed on eSmartHealth. It is obligatory for you to provide certain Data for the purpose of the Programme. eSmartHealth may not be able to let you participate in the Programme if you do not provide the corresponding Data upon request. Any Data collected directly by relevant parties of the Programme (such as HKSR) in connection with the Programme may be subject to the privacy policy statements and/or personal information collection statements issued by such parties. You are entitled to access, correct or enquire about your personal data being held by eSmartHealth. For any such request, please do so by writing to eSmartHealth's Privacy Compliance Officer by letter to GPO Box 9896, Hong Kong or by email to privacy@pccw.com.
FibriCheck Terms of Use
1.5.0
2022-05-09
The present terms of use (the “Terms of Use”) are supplied electronically for the use of the FibriCheck Services (as defined hereafter).
By using the FibriCheck Services, you accept our Terms of Use. So please make sure you carefully read the Terms of Use before using the application.
1. Summary
You find Terms of Use long, difficult and full of legalese? We do too. However, we find it important to inform you about the way you can make use of the FibriCheck Services. That’s why we made this 2-minute-read summary for you. This summary will provide you with the necessary information and all you need to know in no-time!
1.1 First things first, who are we?
  • The FibriCheck Services are managed by Qompium NV, a company incorporated under Belgian law, having its registered address at Kempische Steenweg 303/27, 3500 Hasselt, Belgium (“Qompium”).
  • Qompium NV has developed a software solution to determine heart rhythm conditions, with a primary focus on the timely detection of atrial fibrillation (“FibriCheck Services” or “FibriCheck”).
  • FibriCheck is certified as a medical device in Europe (CE-Class IIa), USA (FDA-cleared), Australia (TGA-cleared) and Saudi Arabia (SFDA-cleared).
  • A diagnosis though is always made by a physician and FibriCheck can never replace any medical advice, diagnosis or treatment. If you think you may have a medical emergency, please contact your physician or emergency services immediately.
    1.2 When and how can you use the FibriCheck Services?
  • To use FibriCheck, you must accept our Terms of Use. They set out the rules for using our FibriCheck Services.
  • To subscribe to FibriCheck, you must be at least 18 years old.
  • You may only use our service as it’s intended and you are together with us, responsible for the confidentiality of your use.
  • If you violate our Terms of Use, you risk no longer being able to use FibriCheck.
    1.3 Also important to know:
  • Qompium will always remain the owner of the services (including the FibriCheck Services) and of all related intellectual property rights.
  • The liability of Qompium with regard to its services (including the FibriCheck Services) is excluded and limited to the maximum extent permitted by law and we do not provide any warranties.
  • Our Terms of Use may be updated from time to time.
  • For more information regarding your use of FibriCheck, we invite you to read our complete Terms of Use, where everything is explained in detail.
    2. Introduction
    Welcome to FibriCheck, an innovative application to detect cardiac arrhythmias, provided by Qompium (also “FibriCheck” or “We” or “Us”).
    The use of the FibriCheck Services is subject to your agreement with all our Terms of Use. The FibriCheck Services are managed by Qompium.
    We may modify these Terms of Use at any time, and such modifications shall be effective immediately upon posting the modified Terms of Use of the FibriCheck Services. By continuing to use FibriCheck Services, you are deemed to have accepted any updated terms and conditions.
    If you do not accept these updated Terms of Use or do not wish to be bound by changes following posted notices you should discontinue use of the FibriCheck Services.
    Please review the Terms of Use carefully before using the FibriCheck Services. In addition to these Terms of Use, the FibriCheck Services are also governed by our Instructions for Use, which form your integral contractual relation with FibriCheck.
    If you have any questions about the FibriCheck Services or the Terms of Use, please contact us via support@fibricheck.com.
    3. FibriCheck Services
    FibriCheck is an application that determines heart rhythm conditions, with a primary focus on the timely detection of atrial fibrillation.
    FibriCheck is available as a separate application in several countries, but You are using the FibriCheck Services integrated into a third party application that you use. Through this application, you will be able to perform FibriCheck measurements and to receive an analysis on the presence of cardiac arrhythmias.
    The goal of the FibriCheck Services is to help you to timely detect cardiac arrhythmias by monitoring and tracking your heart rhythm over time and to provide you with the opportunity to assess your cardiovascular risk profile.
    The FibriCheck Services allow you to perform an unlimited amount of measurements via the third party application during the activation period (set at 14 days). Measurements are performed by placing the finger on the camera of your mobile device for 60 seconds. During this measurement we are detecting the pulse waveform using the optical light and detector of the mobile device. The measurements will then be assessed by the FibriCheck algorithms for the presence of cardiac arrhythmias, whereby we focus on detecting atrial fibrillation. All the measurements labelled orange or red will be revised by the Expert Review Team for confirmation. FibriCheck will provide feedback when your measurement has been revised by FibriCheck’s expert review team (the “Expert Review Team”).
    The findings obtained by the Expert Review Team are exclusively intended for information purposes and under no circumstances do they replace personal diagnostics, consultations, care or treatment by medical or other medically trained personnel. The possibility of a misinterpretation by the medical technicians cannot be ruled out. The Expert Review service is not designed to be an aid in either decision-making for acute states or for real-time monitoring of vital functions. The Expert Review Team and its executive bodies, executives, employees, vicarious agents, partners, affiliates and licensors assume no responsibility whatsoever for decisions made by you based on the information, such as decisions as to whether or not to consult caregivers or accept treatment by medical or healthcare professionals. These FibriCheck Services do not render, nor are they intended as a substitute for the provision of any medical care.
    At the end of your FibriCheck use, you will receive a full comprehensive report, including the details of your measurements, educational information and statistics. Furthermore, the report will include details about the preferred next steps to take. Your report will be available in the third party application.
    The goal of FibriCheck is to help you understand your heart health and does not provide you with a diagnosis for cardiac arrhythmias. If you think you may have a medical emergency, please contact your physician or emergency services immediately.
    It is advisable that the healthcare facility verifies related quality certifications of the software.
    4. Applicability
    By accepting the Terms of Use you expressly confirm that you have access to the intended use of the FibriCheck Services as set out in the present Terms of Use. As a result thereof, you confirm and accept that you waive your right of revocation as soon as the FibriCheck Services are supplied by FibriCheck. This means that from this time forward, you are under obligation to comply with the terms and conditions of the present Terms of Use.
    Where the FibriCheck Services or the website https://www.fibricheck.com draws on services from third parties, the terms and conditions of service delivery of the said third parties may apply. By using such services from a third party, you accept the applicable terms and conditions. FibriCheck declines all and any liability for the substance of the terms and conditions of the third parties.
    5. [Intentionally omitted]
    6. [Intentionally omitted]
    7. Use of the FibriCheck Services
    FibriCheck recommends you to read the Instructions for Use before you use the FibriCheck Services. Please note that the FibriCheck Services are not directed towards and may not be used by minors.
    FibriCheck is intended to timely detect cardiac arrhythmias with a focus on atrial Fibrillation. We advise you to not use FibriCheck if:
  • Persons with coloured fingers/wrist (i.e. tattoos, ink); unnaturally coloured fingers/wrist weaken the signal and interfere with the effectiveness of the device (depending on the device).
  • Minors (below 18 years old); the device has not been evaluated in persons where the heart is not fully grown.
  • Persons with conditions causing tremors or the inability to hold their hand still for at least 60 seconds (e.g. Parkinson or dementia) as, in this case, the device cannot process an accurate measurement.
  • Persons with reduced blood flow in the fingertips (e.g. perniosis or callus formation) as FibriCheck will not be able to detect the significant intensity variations induced by the blood flow.
  • Persons that have a disability to perform the measurements according to the Instructions for Use.
  • Persons with cardiac pacemakers, ICDs, or other implanted electronic devices as these can control the natural heart rhythm.
    In order to use all functionalities of FibriCheck, you will need Wi-Fi on your mobile device or mobile Internet connection. Access to Wi-Fi or a mobile Internet connection is your own responsibility. Please make sure your mobile device complies with the minimum system requirements as specified on the download page.
    If your mobile device does not meet these minimum system requirements, we are unable to guarantee that FibriCheck will work properly. FibriCheck declines all and any liability for loss or damage due to the fact that you failed to comply with the aforesaid requirements.
    During your subscription period, we may, in our sole discretion, provide you with updates. For the avoidance of doubt, we are not obligated to provide any updates of the FibriCheck Services.
    8. License - restrictions
    8.1 License by FibriCheck
    During the subscription period and subject to the timely payment of the fees (if applicable), we grant you a non-exclusive, personal, restricted, non-sublicensable and non-transferable license to use the FibriCheck Services in accordance with these Terms of Use ("License"). You are not allowed to use the FibriCheck Services for any commercial purposes or to use the FibriCheck Services, or a component of the foregoing in a manner not authorized by us. You shall use the FibriCheck Services solely in full compliance with (i) the present Terms of Use; (ii) any additional instructions or policies issued by us, including, but not limited to, those posted within the third party application or on our website https://www.fibricheck.com; (iii) any applicable legislation, rules or regulations and (iv) additional documentation provided.
    8.2 Restrictions.
    You agree to use the FibriCheck Services only for their intended use as set forth in this Agreement. Within the limits of the applicable law, you are not permitted to (i) make the FibriCheck Services and/or additional provided documentation available or to sell or rent the FibriCheck Services and/or additional provided documentation to any third parties, without explicit written consent of us; (ii) adapt, alter, translate or modify in any manner the FibriCheck Services or additional provided documentation; (iii) sublicense, lease, rent, loan, distribute, or otherwise transfer the FibriCheck Services or additional provided documentation to any third party; (iv) decompile, reverse engineer, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or the underlying ideas, concepts, algorithms, structure or organization) of the FibriCheck Services or additional provided documentation, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation; (v) use or copy the FibriCheck Services or additional provided documentation except as expressly allowed under this Article 8; (vi) gain unauthorized access to Accounts of other users or the IT equipment or structure of us to provide the FibriCheck Services or additional provided documentation or use the FibriCheck Services or additional provided documentation to conduct or promote any illegal activities; (vii) use the FibriCheck Services or additional provided documentation to generate unsolicited email advertisements or spam; (viii) impersonate any person or entity, or otherwise misrepresent your affiliation with a person or entity; (iv) use any high volume automatic, electronic or manual process to access, search or harvest information from the FibriCheck Services or additional provided documentation (including without limitation robots, spiders or scripts); (x) alter, remove, or obscure any copyright notice, digital watermarks, proprietary legends or other notice included in the FibriCheck Services or additional provided documentation; (xi) intentionally distribute any worms, Trojan horses, corrupted files, or other items of a destructive or deceptive nature or use the FibriCheck Services or additional provided documentation for any unlawful, invasive, infringing, defamatory or fraudulent purpose; or (xii) remove or in any manner circumvent any technical or other protective measures in the FibriCheck Services or additional provided documentation.
    Except as expressly set forth herein, no express or implied license or right of any kind is granted to you regarding the FibriCheck Services or additional provided documentation or any part thereof, including but not limited to any right to obtain possession of any source code, data or other technical material relating to the FibriCheck Services.
    8.3 License by user
    By uploading, creating or otherwise providing information, data or images on or through the FibriCheck Services ("User Content"), you grant us a non-exclusive, royalty-free, worldwide, sublicensable, transferable, license to use, copy, store, modify, transmit and display User Content to the extent necessary to provide and maintain the FibriCheck Services. We reserve the right, but are not obliged, to review and remove any User Content which is deemed to be in violation with the provisions of the Terms of Use or otherwise inappropriate, any rights of third parties or any applicable legislation or regulation.
    9. Ownership
    As between you and us, the FibriCheck Services, our website https://www.fibricheck.com and all additional documentation provide, all worldwide Intellectual Property Rights pertaining thereto, are the exclusive property of us and/or its licensors.
    Intellectual Property Rights are defined as any and all now known or hereafter existing (a) rights associated with works of authorship, including copyrights, mask work rights, and moral rights; (b) trademark or service mark rights; (c) trade secret rights, know-how; (d) patents, patent rights, and industrial property rights; (e) layout design rights, design rights, (f) trade and business names, domain names, database rights, rental rights and any other industrial or intellectual proprietary rights or similar right (whether registered or unregistered); (g) all registrations, applications for registration, renewals, extensions, divisions, improvements or reissues relating to any of these rights and the right to apply for, maintain and enforce any of the preceding items, in each case in any jurisdiction throughout the world;
    All rights in and to the FibriCheck Services and/or additional documentation provided not expressly granted to you in this Terms of Use are reserved by us and our licensors. Except as expressly set forth herein, no express or implied license or right of any kind is granted to you regarding the FibriCheck Services and/or additional documentation provided or any part thereof, including any right to obtain possession of any source code, data or other technical material related to the FibriCheck Services or our website.
    10. Feedback
    It is expressly understood, acknowledged and agreed that you shall, regardless of whether or not formally requested to do, provide to FibriCheck reasonable suggestions, comments and feedback regarding the FibriCheck Services, including but not limited to usability and test results (collectively, “Feedback”). If you provide such Feedback to FibriCheck, you shall grant FibriCheck the following worldwide, non-exclusive, perpetual, irrevocable, royalty free, fully paid up rights:
  • to make, use, copy, modify, sell, distribute, sub-license, and create derivative works of, the Feedback as part of any FibriCheck product, technology, services (including the “FibriCheck Services”), specification or other documentation (individually and collectively, "FibriCheck Product(s)");
  • to publicly perform or display, import, broadcast, transmit, distribute, license, offer to sell, and sell, rent, lease or lend copies of the Feedback (and derivative works thereof) as part of any FibriCheck Product;
    Further, you warrant that its Feedback is not subject to any license terms that would purport to require FibriCheck to comply with any additional obligations with respect to any FibriCheck Products that incorporate any Feedback.
    11. Suspension
    If we become aware or suspects, in our sole discretion, any violation by you of these Terms of Use or any other instructions, guidelines or policies issued by us, then we may suspend or limit your access to the FibriCheck Services. The duration of any suspension by FibriCheck will be until you have cured the breach which caused such suspension or limitation.
    12. Liability
    To the maximum extent permitted under applicable law, our liability arising out of or in connection with the FibriCheck Services under these Terms of Use whether in contract, warranty, tort or otherwise, shall not exceed the amount paid out under our compulsory insurance policy at the date on which the applicable liability claim arises. Nothing in these Term of Use shall limit or exclude our liability for (i) gross negligence; (ii) willful misconduct, (iii) fraud or personal injury.
    To the extent legally permitted under applicable law, we shall not be liable to you or any third party, for any special, indirect, exemplary, punitive, incidental or consequential damages of any nature including, but not limited to damages or costs due to loss of profits, data, revenue, goodwill, production of use, procurement of substitute services, or property damage arising out of or in connection with the FibriCheck Services under these Terms of Use, including but not limited to any miscalculations, or the use, misuse, or inability to use the FibriCheck Services or other documentation provided, regardless of the cause of action or the theory of liability, whether in tort, contract, or otherwise, even if we have been notified of the likelihood of such damages. The limitation in this Article 12.2 shall not apply to the obligations of FibriCheck under Article 13 ("Indemnification").
    You agree that we can only be held liable as per the terms of this Article 12 to the extent damages suffered by you are directly attributable to us. For the avoidance of doubt, we shall not be liable for any claims resulting from (i) your unauthorized use of the FibriCheck Services, (ii) your or any third party's modification of (any parts) of the FibriCheck Services, (iii) your failure to use the most recent version of the FibriCheck Services made available to you or your failure to integrate or install any corrections to the FibriCheck Services issued by us, or (iv) your use of the FibriCheck Services in combination with any non-FibriCheck products or services. The exclusions and limitations of liability under this Article shall operate to the benefit of our affiliates and subcontractors under this Terms of Use to the same extent such provisions operate to our benefit.
    13. Warranties and disclaimers
    13.1 By Us
    Except as expressly provided in this Article 13 and to the maximum extent permitted by applicable law, the FibriCheck Services, including the analysis of your measurements by our algorithm or expert review team are provided "AS IS" and we make no (and hereby disclaims all) other warranties, covenants or representations, or conditions, whether written, oral, express or implied including, without limitation, any implied warranties of satisfactory quality, course of dealing, trade usage or practice, merchantability, suitability, availability, title, noninfringement, or fitness for a particular use or purpose, with respect to the use, misuse, or inability to use the FibriCheck Services, , including the analysis of your measurement by our algorithm or expert review team, (in whole or in part) or any other products or services provided to you by us. We do not warrant that (i) all errors can be corrected, or that access to or operation of the FibriCheck Services shall be uninterrupted, secure, or error-free, and (iii) the information, including but not limited to the analysis of your measurements by our algorithm or expert review team, available on or transmitted by the FibriCheck Services, is true, complete or accurate. You specifically acknowledge and agree that we cannot be held liable for any healthcare or related decisions made by you or your physician based upon the analysis of your measurements by our algorithm or the Expert Review Team, transmitted or displayed by or on the FibriCheck Services whether such data is accurate or inaccurate. You acknowledge and agree that your physician, and not we, is solely responsible for the interpretation of your measurements or other healthcare information related to you. You expressly acknowledge and agree that your use of the FibriCheck Services including the analysis of your measurements, is at your sole risk. You acknowledge and agree that there are risks inherent to transmitting information over and storing information on the internet and that we are not responsible for any losses of your data, including but not limited to the analysis of the measurements and any user content, in connection therewith.
    We shall defend and indemnify you as specified herein against any founded and well-substantiated claims brought by third parties to the extent such claim is based on an infringement of the Intellectual Property Rights of such third party by the FibriCheck Services and excluding any claims resulting from (i) your unauthorized use of the FibriCheck Services, (ii) your or any third party's modification of any of the FibriCheck Services, our website or additional provided documentation, (iii) your failure to use the most recent version of the FibriCheck Services made available to you, or your failure to install any corrections or updates to the FibriCheck Services issued by us, if we indicated that such update or correction was required to prevent a potential infringement, or (iv) your use of the FibriCheck Services in combination with any non-FibriCheck Products or services.
    Such indemnity obligation shall be conditional upon the following: (i) we are given prompt written notice of any such claim; (ii) we are granted sole control of the defense and settlement of such a claim; (iii) upon our request, you fully cooperates with us in the defense and settlement of such a claim, at our expense; and (iv) you make no admission as to our liability in respect of such a claim, nor do you agree to any settlement in respect of such a claim without our prior written consent. Provided these conditions are met, we shall indemnify you for all damages and costs incurred by you as a result of such a claim, as awarded by a competent court of final instance, or as agreed to you pursuant to a settlement agreement.
    In the event the FibriCheck Services, in our reasonable opinion, are likely to or become the subject of a third-party infringement claim (as per this clause 12.1), we shall have the right, at our sole option and expense, to: (i) modify the ((allegedly) infringing part of the) FibriCheck Services so that they become non- infringing while preserving equivalent functionality; (ii) obtain for you a license to continue using the FibriCheck Services in accordance with these Terms of Use; or (iii) terminate the Licence and pay to you an amount equal to a pro rata portion of the Fees for that portion of the FibriCheck Services which is the subject of such infringement.
    The foregoing states the entire liability and obligation of us and the sole remedy of you with respect to any infringement or alleged infringement of any Intellectual Property Rights caused by the FibriCheck Services or any part thereof.
    13.2 By You
    You represent and warrant us that (a) you have the authority to enter into this binding agreement personally and (b) that any User Content provided by you for the use of the FibriCheck Services is accurate and truthful and shall not (i) infringe any Intellectual Property Rights of third parties; (ii) misappropriate any trade secret; (iii) be deceptive, defamatory, obscene, pornographic or unlawful; (iv) contain any viruses, worms or other malicious computer programming codes intended to damage our system or data; or (v) otherwise violate the rights of a third party.
    You agree and acknowledge that we are not obligated to back up any User Content and/or measurements. You agree that any use of the FibriCheck Services contrary to or in violation of the representations and warranties of you in this Article constitutes unauthorized and improper use of the FibriCheck Services
    14. Term and termination
    We shall grant you a license on the FibriCheck Services during your subscription period unless the license is terminated in accordance with Article 14 of these Terms of Use. During your subscription period, you will be eligible to receive all major and minor updates and upgrades for the FibriCheck Services.
    For the avoidance of doubt, in the event you remove the third party application from your mobile device or smartwatch before the expiration of the subscription period, the User is not entitled to a refund of any pre-paid Fees for the remaining period of the subscription.
    Upon expiration of the subscription, any user rights on the FibriCheck Services that were granted to you under these Terms of Use shall automatically expire. After the expiration of your subscription period, you will still be able to access your measurements in the third party application.
    Termination for breach. We may terminate with immediate effect these Terms of Use and your right to access and use the FibriCheck Services (i) if we believes or have reasonable grounds to suspect that you are violating these Terms of Use (including but not limited to any violation of our Intellectual Property Rights) or any other guidelines or policies issued by us or (ii) if you remain suspended for non-payment for more than 60 (sixty) days.
    Effects of termination. Upon the termination of these Terms of Use for any reason whatsoever in accordance with the provisions of these Terms of Use, at the moment of effective termination: (i) you will no longer be authorized to access or use the FibriCheck Services; (ii) FibriCheck may delete data associated with your Account, including but not limited to User content or your measurements (iii) all rights and obligations of us and you under these Terms of Use shall terminate, except those rights and obligations under those sections specifically designated in Article 15.7.
    15. Miscellaneous
    15.1 Force Majeure
    We shall not be liable for any failure or delay in the performance of our obligations with regard to the FibriCheck Services if such delay or failure is due to causes beyond our control, including by not limited to acts of God, war, strikes or labor disputes, embargoes, government orders, telecommunications, network, computer, server or Internet downtime, unauthorized access to our information technology systems by third parties or any other cause beyond our reasonable control (the "Force Majeure Event"). We shall notify you of the nature of such Force Majeure Event and the effect on our ability to perform our obligations under these Terms of Use and how we plan to mitigate the effect of such Force Majeure Event.
    15.2 Entire agreement
    These Terms of Use constitute the entire agreement and understanding between you and us with respect to the subject matter hereof and supersedes all prior oral or written agreements, representations or understandings between you and us relating to the subject matter hereof. No statement, representation, warranty, covenant or agreement of any kind not expressly set forth in these Terms of Use shall affect, or be used to interpret, change or restrict, the express terms and provisions of these Terms of Use.
    15.3 Severability
    If any provision of these Terms of Use are, for any reason, held to be invalid or unenforceable, the other provisions of these Terms of Use will remain enforceable and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
    15.4 Waiver
    Any failure to enforce any provision of these Terms of Use shall not constitute a waiver thereof or of any other provision.
    15.5 Assignment
    You may not assign or transfer these Terms of Use or any rights or obligations to any third party. We shall be free to (i) transfer or assign (part of) its obligations or rights under the Terms of Use to one of its affiliates and (ii) to subcontract performance or the support of the performance of this Terms of Use to our affiliates, to individual contractors and to third party service providers without prior notification to you.
    15.6 Notices
    All notices from us intended for receipt by you shall be deemed delivered and effective when sent to you to your account on the third party application.
    15.7 Survival
    Articles 9, 10, 12, 14, 15.7, 15.8 shall survive any termination or expiration of this Agreement.
    15.8 Governing law and jurisdiction
    Without prejudice to any mandatory legislation, these Terms of Use shall be exclusively governed by and construed in accordance with the laws of Belgium, without giving effect to any of its conflict of law principles or rules. The courts and tribunals of Hasselt shall have sole jurisdiction should any dispute arise relating to these Terms of Use.