These Terms of Service (this “Agreement”) set out the terms on which MedRhythms, Inc., a Delaware corporation, including, as applicable, its subsidiaries, affiliates, agents, designees, vendors, contractors, and subcontractors (collectively, “Company”, “we” or “us”) will provide access to and use of the MedRhythms products and services, including (as applicable) InTandem and Movive, and their associated and ancillary services, websites, platforms, mobile applications, and/or other technology or devices (collectively, the “Service”) to you, a user of the Service (“you” or “User”). You should read this Agreement carefully. By indicating acceptance of this Agreement or by otherwise using the Service, you are entering a legally binding agreement with us. If you do not agree to these terms and conditions, you must not use the Service.
THIS AGREEMENT CREATES A BINDING LEGAL AGREEMENT BETWEEN YOU AND COMPANY AND INCLUDES AN ARBITRATION CLAUSE UNDER WHICH CERTAIN CLAIMS MAY NOT BE BROUGHT IN COURT OR DECIDED BY A JURY. PLEASE READ THIS AGREEMENT CAREFULLY.
1. Use of Service.
1.1. In General. In general, the Service is a tool intended for personal use to support therapy and rehabilitation of neurologic or other injuries or diseases, including with the use of music, by certain patient users (“Patients”). The Service also allows users to access certain information (which may include data, text, or other materials) related to such injuries, diseases, therapy, or rehabilitation, including analyses from the Service of certain patient attributes and progress in therapy or rehabilitation, or related topics.
1.2. Enrollment and Permission to Contact. To use certain parts of the Service, you may be required to provide us with your name, address, email address, and (as applicable) certain medical information. This information will generally be captured in your intake form. We may use or disclose this information in accordance with any authorization you provide to us, as permitted by HIPAA or any other applicable data privacy law, or as otherwise stated under this Agreement and/or our Privacy Policy which is discussed in Section 11. In particular, but not by way of limitation, by using a Service that your healthcare provider has prescribed or ordered, you hereby grant us permission to use this information to contact you via regular mail, electronic mail, text message (SMS), telephone, or voicemail for purposes related to the provision of the Service. These purposes may include, for example, the delivery of a product, customer service, quality assurance, or fee collection. Importantly, if you do not wish to receive voicemails from us related the Service, you may opt-out of voicemails by submitting a request to Company through the contact information listed in Section 18.6.
1.3. Accuracy of Personal Information. You represent and warrant to us that the information described in Section 1.2 that you provide to us will be accurate, current, and complete. You are responsible for your enrollment, and for all your use of the Service including any User credentials or passwords issued to you or chosen by you. You will keep all such credentials and passwords confidential. You agree to notify us immediately of any actual or suspected unauthorized use of your account, or any other breach of security related to your account credentials.
1.4. Hardware. Company may from time to time, in its sole discretion, make mobile phones, tablets, sensors, or other hardware, equipment, devices, or technology (collectively and as applicable, “Hardware”) available on a leased, loaned, or other basis for certain users to use solely with the Service. Unless otherwise specified by Company: (i) except as permitted or required in accordance with applicable law, User will not take title to any Hardware; (ii) User shall not sell, loan, transfer, make available to any third-party, pledge, or encumber the Hardware in any manner; (iii) User shall keep all Hardware in good working condition (except for normal wear and tear), and shall not open or modify the Hardware; (iv) to the extent permitted by law, the Hardware is provided by Company as-is, with all faults; (v) User may only use the Hardware with the Service; and (vi) User shall promptly return the Hardware to Company upon request (or upon any termination of this Agreement, or expiration of applicable prescription or use period) and, if not promptly returned in good working condition when requested or otherwise due in accordance with Company instructions, User shall pay Company the applicable replacement or other Hardware fee specified by Company.
1.5. Medical Disclaimer. It is important to the interests of Company and those who use our Service and Hardware that we and they have a shared understanding about the limits of what the Service can do.
1.5.1. If you think you or someone else is having a medical emergency, you should call 9-1-1 immediately. In general, it is also important to tell your doctor or other healthcare professional if you experience any adverse medical event related to any course of treatment.
1.5.2. The Service, which is the subject of this Agreement, is not a healthcare service. In the context of providing the Service, Company is a technology company as opposed to a healthcare provider. Company’s intent is to never cross the line of becoming (or being perceived as) a healthcare provider or caregiver based on the Service or our interactions with User. Your use of the Service, on its own, does not establish a clinician-patient relationship between you and Company or any employee or contractor of Company.
1.5.3. No information provided or made available by Company through the Service should be interpreted as medical advice or guidance or as a substitute for the medical advice or guidance of a healthcare professional. A healthcare professional should always be consulted for medical guidance or advice before adopting any course of treatment or on any questions regarding treatment. You should never disregard the medical advice or guidance of a healthcare professional or delay in seeking it because of any information provided or made available by Company through the Service. Company specifically disclaims all responsibility or any liability, loss, or risk, personal or otherwise, that is incurred as a consequence, directly or indirectly, of the use of any information provided or made available by Company through the Service.
1.5.4. While Company does employ and contract personnel who may be licensed therapists or other medical providers for the purposes of delivering in-person treatment to certain patients, such in-person treatment is offered separately from the Service and, as a result, is not covered by this Agreement.
1.6. Adult Use. The Service is not directed to individuals under the age of 22, and independent healthcare providers should not prescribe or recommend the Service or any Hardware to any individual under the age of 22 for any reason. The Company does not knowingly collect personal information from children under the age of 22 through the Service.
1.7. Prohibited Conduct. By using the Service, you agree that you will not engage in any of the following activity: (i) use of the Service for any deceptive, harassing, abusive, illegal, threatening, disrespectful, or otherwise objectionable purpose (as determined by Company in its sole discretion), or in violation of this Agreement or any local, state, national, or international law; (ii) violate or encourage others to violate our rights or the rights of third-parties, including intellectual property rights; (iii) interfere in any way with security- or privacy-related features of the Service; (iv) interfere with the operation or any user’s enjoyment of the Service, including by uploading or otherwise disseminating viruses, adware, spyware, worms, or other malicious code or attempting to collect personal information about third-parties without their consent; (v) access, monitor, or copy any content or information of the Service using any robot, spider, scraper, or other automated means or any manual process for any purpose without our express written permission; (vi) perform any fraudulent activity, including impersonating any person or entity, claiming false affiliations, accessing the accounts of other users without permission, or falsifying your identity or any information about you, including age or date of birth; (vii) distribute or otherwise make available any information or other content obtained through the Service to any third-party, except as expressly permitted herein; or (viii) use the Service without authorization, for a commercial purpose, or otherwise in the development, directly or indirectly, of any product, software, or service that offers any functionality that is similar to, or competitive with, the Service.
2. Orders and Fees.
2.1. Financial Responsibility. Your healthcare provider may write a prescription for, or otherwise order, the Service on your behalf in order for you to receive and pursue a course of treatment using the Service. Your personal financial responsibility in connection with the Service will depend on whether you are a member or beneficiary of a public or private third-party healthcare insurer that offers reimbursement for the Service. Company will generally bill you in accordance with applicable law for any outstanding cost of the Service if you have no insurance coverage for the Service, your insurer offers only partial reimbursement for the Service, or you have insurance but choose not to submit a claim for the Service. Similarly, Company will generally bill you in accordance with applicable law in connection with any copay, coinsurance, or deductible that your insurer requires you to pay in order to receive the Service. Notably, treatment with the Service may sometimes continue over the course of several weeks or months, and a healthcare provider may renew prescriptions or orders for the Service on an ongoing basis until treatment concludes. As a result, Company may charge certain User on an extended, regular basis for the Service and Hardware that remains in their possession during the course of the treatment, depending on the length of the User’s treatment and the terms of their insurance coverage.
2.2. General Payment Requirements. If you bear any personal financial responsibility in connection with your use of the Service, you will provide our designated third-party payment provider with accurate and valid credit card or other payment information and update your credit card or other payment information in the event any information provided becomes invalid or incomplete. If any charge is rejected by our payment provider, you are still liable to pay the fees. Through our payment provider, we retain the right to charge interest on any overdue balance at the rate of 1.5% per month, or the maximum amount permitted by law (if lower). You will also be responsible for our reasonable costs of collection, including attorney’s fees, if we deem it necessary to take any legal or administrative action to collect unpaid Fees. We reserve the right to accept, refuse, or cancel any orders placed through or for the Service, without liability or justification. You may contact our designated third-party payment provider if you desire to receive an invoice regarding your applicable fees.
3. Your Data.
3.1. Rights and Company License. You retain your rights in all personal, health, and other information (which may include data, text, or other materials) which you input or upload to the Service, including any such information associated with you that is gathered and uploaded or otherwise transmitted to the Service by our mobile application or Hardware (collectively, “Your Data”), subject to the rights granted below and our rights in Our Property as explained below. You hereby generally consent and agree to grant us a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, fully-paid, transferable license, with the right to sublicense through multiple tiers, to copy, edit, modify, adapt, publish, transmit, distribute, prepare derivative works of, perform, display, and otherwise make use of Your Data in connection with operation and promotion of the Service and any other purposes reasonably related to the Service or our business.
3.2. Contents. Any of Your Data that you upload to the Service must not: (i) contain material from other copyrighted works without the written consent of the owner of such copyrighted material; (ii) infringe any copyright or violate any property rights, rights of privacy or publicity, or any other rights of any third-party; (iii) contain any software viruses, malware, spyware, or any other code, file, or program that is designed to interrupt, destroy, or limit the functionality of any computer software, hardware, or telecommunications equipment; or (iv) except as otherwise expressly permitted by us in writing, contain any advertising, promotional, solicitation, or other commercial material.
3.3. Privacy Waiver. To the extent reasonably necessary or appropriate to effect or support the licenses granted by you above, you hereby waive (or if not waivable, agree not to assert) any rights of privacy or publicity, or any moral rights or other similar rights, with respect to Your Data or PHI. Company shall operate the Service in a manner that provides reasonable information security, consistent with accepted industry standards, for Your Data and PHI, using appropriate administrative, physical, and technical safeguards.
3.4. Aggregation. We may use Your Data to help develop and improve our Service and Hardware. You agree that Company may analyze and process Your Data and PHI, and similar information of other Service users, to create aggregated or anonymized statistics or data that do not identify you or any individual, and Company may during and after the term of this Agreement use and disclose such statistics or data in any manner in its discretion. These aggregated or anonymized statistics or data may be used by Company for any legal purpose, including for improving the Service or selling such statistics or data to third-party commercial entities.
3.5. Representations. You represent and warrant that you have the authority to input Your Data into the Service, and to grant the licenses and rights described in this Section 3. You also represent and warrant that the input of Your Data, and the exercise by Company of the licenses and rights described in this Section 3, do not infringe any third-party privacy, intellectual property, or proprietary rights.
4. Our Ownership Rights.
4.1. Company Property. The Service, including all aspects of MedRhythms’ products and services and their associated and ancillary services, websites, platforms, mobile applications, and/or other technology or devices that interact with the Service (including Our Property, as defined below), is the property of, and owned by, Company or its licensors. All the software, algorithms, functionality, inventions, concepts, text, images, sound, music, videos, marks, logos, compilations, and technology (including applicable Hardware) used to deliver the Service or otherwise embodied in, displayed through, provided directly or indirectly (e.g., emails or other communications from us to you) via, or relating to the Service are “Our Property.” For clarity, any formats, templates, methodologies, rules, algorithms, and software used to create Your Data are Our Property. Except as otherwise expressly permitted by this Agreement, any unauthorized or unapproved use, copying, making derivative works, transmitting, posting, linking, deep linking, framing, redistribution, sale, decompilation, modification, reverse engineering, translation, or disassembly of Our Property is prohibited. You acknowledge that Our Property has been created, compiled, developed, and maintained by us at great expense of time and money such that misappropriation or unauthorized disclosure or use of Our Property by others for commercial gain would unfairly and irreparably harm us in a manner for which damages would not be an adequate remedy, and you consent to our obtaining injunctive relief to restrain any breach or threatened breach of this Agreement, without any requirement to post bond. You may be subject to criminal or civil penalties for violation of this paragraph.
4.2. Trademarks. The marks “MedRhythms” and “InTandem” and “Movive” and any associated logos, are registered or unregistered trademarks or service marks of Company or its licensors. You may not use them, or any of our other marks or logos, in any manner, including any use that is likely to cause confusion or that disparages or discredits us, without our consent. The Service may also feature the trademarks, service marks, and logos of third-parties, and each owner retains all rights in such marks. Any use of such marks, or any others displayed on the Service, will inure solely to the benefit of their respective owners.
4.3. Permitted Purpose. Subject to the terms and conditions herein, we grant you the non-exclusive, limited, revocable right to access and use Our Property solely to the extent necessary for you to use the Service for your own personal purposes (your “Permitted Purpose”), as permitted by this Agreement. We reserve all other rights. For clarity and without limiting other obligations herein, User shall not distribute or otherwise commercialize Our Property.
4.4. Infringement Claims. If you believe that any information or materials available through the Service infringe your copyright, you (or your agent) may send us notice requesting that the information or materials be removed. Notice must be provided in writing and must include: (i) a signature of the person authorized to act on behalf of the owner of the copyright interest; (ii) identification of the copyrighted work that you claim has been infringed; (iii) the location of the work you claim is infringing (e.g., URL) or enough detail that we may find it; (iv) your name, address, telephone number, and email address; (v) a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and (vi) a statement, made under penalty of perjury, that the information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf. Notices should be sent to Company by way of the contact information set forth in Section 18.6 of this Agreement.
5. Feedback. If you provide to us (directly or indirectly, and by any means) any comments, feedback, suggestions, ideas, complaints, or other submissions related to the Service (collectively “Feedback“), the Feedback will be the sole property of Company. You represent and warrant that any Feedback that you submit to us is original to you, made in compliance with applicable laws and does not violate any right of any third-party, including intellectual property rights. We will be entitled to use, reproduce, disclose, publish, distribute, and otherwise exploit in any manner, all Feedback, without restriction and without compensating you in any way. We are and shall be under no obligation to maintain any Feedback in confidence, or to respond to any Feedback. In particular, but not by way of limitation, we will be entitled to provide your Feedback to any federal or state government agency pursuant to any applicable rules or legal reporting requirements. For example, we may report Feedback relating to adverse events, complaints, or issues with the Service to the United States Food and Drug Administration (“FDA”) to the extent required under its electronic Medical Device Reporting rules, which are described on the FDA’s publicly available website.
6. Warranty and Disclaimers. The Service is subject to the warranties, if any, described in Company’s Returns and Warranty Policy, which is available upon request and hereby incorporated into this Agreement. By using the Service, you represent and warrant that you have reviewed and understood the warranties set forth in the InTandem/Movive Returns and Warranty Policy
7. Limitation of Liability. UNDER NO CIRCUMSTANCES WILL YOU BE ENTITLED TO RECOVER FROM US ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, PUNITIVE OR SPECIAL DAMAGES (INCLUDING DAMAGES FOR LOSS OF BUSINESS, LOSS OF REVENUE, LOSS OF DATA, OR LOSS OF USE), WHETHER BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE SERVICE, OUR PROPERTY, OR HARDWARE, EVEN IF WE HAVE BEEN INFORMED OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION OF LIABILITY WILL APPLY EVEN IF ANY WARRANTY DESCRIBED IN SECTION 6 FAILS IN ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR CERTAIN TYPES OF DAMAGES AND, IN THOSE JURIDICTIONS, COMPANY’S LIABILITY UNDER THIS AGREEMENT SHALL BE TO THE GREATEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW.
8. Cloud Services. You acknowledge that the Service is, or may from time to time be, hosted by third-party cloud providers, which may change at the sole discretion of Company (the “Cloud Providers”), and that your use of the Service is subject to any applicable restrictions or requirements imposed by the Cloud Providers. Company shall not be responsible or liable to you for any act, omission, or failure of any Cloud Provider.
9. Other Third-Party Services. The Service may depend upon, interact with or enable access to third-parties’ information, services, websites, platforms, mobile applications, and/or other technology or devices (each, a “Third-Party Service”), which may in each case be accompanied by separate terms of use. We provide such links as a convenience, and do not control or endorse any Third-Party Service. We are not responsible for the content or transmission of any Third-Party Service or for ensuring that a Third-Party Service is error and/or virus free. Use of each Third-Party Service may require that you accept its separate terms of use. You should comply with these separate terms of use when using the Third-Party Service and our Service.
10. Indemnity. You will indemnify and hold us, and our licensors, providers, contractors, and agents, harmless against any and all claims, actions, proceedings, suits, liabilities, losses, damages, costs, and expenses (including attorneys’ fees) (collectively, “Liabilities”) brought by any third-party that arise out of or relate to: (i) your access to, inability to access, use of, or alleged use of the Service (including the upload of Your Data to the Service), or your reliance on any content on the Service or other information found on the Service for any purpose; (ii) your violation of any condition, obligation, representation, or warranty set forth in this Agreement or any applicable law or regulation; (iii) your violation of any third-party right, including any intellectual property right, publicity, confidentiality, property, or privacy right; or (iv) any disputes or issues between you and any third-party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and in such case, you agree to cooperate with our defense of such claim. Without limitation of the foregoing, if we receive a subpoena or similar requirement to disclose Your Data issued by any court or governmental authority, and we are not a party to the proceeding in question, you will reimburse us for our reasonable costs and expenses of complying with such subpoena, including time spent by our personnel and our attorneys at time and materials rates.
11. Privacy Policy. We operate the Service under our Privacy Policy, which is publicly available on product website(s) and hereby incorporated into this Agreement. Each party shall comply with the Privacy Policy.
12. Suspension and Termination. You may terminate this Agreement at any time by ceasing to use the Service and returning the Hardware. We reserve the right to suspend your account (if any) and/or access to the Service at any time if we believe you are in breach of this Agreement. We reserve the right to terminate this Agreement or to cease to offer the Service at any time on written notice to you (including by email to users or posting to publicly available product website(s)), for any reason or no reason. Any accrued obligations and remedies hereunder, and any other sections of this Agreement that by that nature should reasonably survive, shall survive the termination or expiration of this Agreement. We have no obligation to return any of Your Data to you upon termination, so you should retain copies of all of Your Data that you upload to the Service.
13. Modification of Service and Agreement. We reserve the right to modify the Service or amend this Agreement at any time. In the event of any such modification or amendment, we will notify users by sending them an email, and further provide general notice by posting to publicly available product website(s). We encourage you to return to these websites and review this Agreement from time to time so you are aware of the most recent amendments. You agree that your continued use of the Service constitutes your ongoing agreement to the as-amended version of the Agreement which is in effect at the time you use the Service. If you do not agree to any amended Agreement that we publish, you must terminate your account and cease using the Service.
14. Dispute Resolution. We will attempt to resolve disputes with you to your satisfaction. If, however, a matter arises that cannot be resolved promptly between you and us, you agree that any disputes arising out of or relating to the Service or this Agreement (including the validity and scope of the agreement to arbitrate and any disputes with other users of the Service) shall be resolved exclusively by final and binding arbitration administered by the American Arbitration Association (“AAA”) under the Federal Arbitration Act, and shall be conducted before a single arbitrator pursuant to the applicable Rules and Procedures established by the AAA. You agree that the arbitration shall be held in Boston, Massachusetts, unless the AAA or the arbitrator shall determine that venue in such city is unreasonably burdensome, in which case the AAA or the arbitrator shall select a venue that is not unreasonably burdensome to both you and us. You agree that, if the AAA shall be unavailable or decline to administer the arbitration, and the parties do not agree on a substitute, a substitute administrator or arbitrator shall be appointed by the court. The arbitrator may render early or summary disposition of some or all issues, after the parties have had a reasonable opportunity to make submissions on these issues. At Company’s option, this provision shall not apply to claims of patent, trademark, or copyright infringement or misappropriation of trade secrets (collectively, “IP Claims”). In addition, you or we may elect to bring an individual claim in a small claims court, but we do not hereby agree to any personal jurisdiction that is otherwise lacking.
YOU ARE WAIVING YOUR RIGHTS TO HAVE YOUR CASE DECIDED BY A JURY AND TO PARTICIPATE IN A CLASS, MASS, REPRESENTATIVE, PRIVATE ATTORNEY GENERAL, OR CONSOLIDATED ACTION AGAINST US.
15. Governing Law and Jurisdiction. You agree that all disputes or other matters arising out of or relating to this Agreement, or the use or operation of the Service, will be governed by the substantive laws of the Commonwealth of Massachusetts, without regard to its or any other jurisdiction’s conflicts of laws principles that would apply another law. Any action or proceeding by you relating to any claim arising out of or relating to the Service or this Agreement must commence within the shorter of the applicable statute of limitations or one year after the cause of action has accrued. You further consent to non-exclusive jurisdiction and venue in any federal or state court located within the Commonwealth of Massachusetts, with respect to any suit, claim or cause of action arising out of or relating to the Service or this Agreement, and you shall not bring any such suit, claim, or cause of action except in a court located within the Commonwealth of Massachusetts.
16. Force Majeure. In no event will we be liable for any failure to comply with this Agreement to the extent that such failure arises from factors outside our reasonable control.
17. Compliance with Laws. Company provides the Service for use by persons located in the United States. Company makes no representation, claim, or guarantee that the Service (including any portion or component thereof) is accessible or appropriate or legal under the laws of a particular state or jurisdiction within or outside of the United States. You are solely responsible for reviewing and understanding the laws of the state or jurisdiction in which you are located and determining whether it is permissible for you to use the Service.
18. Miscellaneous Provisions.
18.1. Waiver. No delay or omission by us in exercising any of our rights occurring upon any noncompliance or default by you with respect to any of the terms and conditions of this Agreement will impair any such right or be construed to be a waiver thereof, and a waiver by us of any of the covenants, conditions, or agreements to be performed by you will not be construed to be a waiver of any succeeding breach thereof or of any other covenant, condition, or agreement herein. No waiver will be binding on us unless made in an express writing signed by us.
18.2. Severability. If any provision of this Agreement is found by a court of competent jurisdiction to be invalid or unenforceable, then this Agreement will remain in full force and effect and will be reformed to be valid and enforceable while reflecting the intent of the parties to the greatest extent permitted by law.
18.3. Entire Agreement. Except as otherwise expressly provided herein, this Agreement sets forth the entire agreement between us and you regarding its subject matter, and supersedes all prior promises, agreements, or representations, whether written or oral, regarding such subject matter. Company is permitted to assign, transfer, and subcontract its rights and/or obligations under this Agreement without any notification; however, this Agreement and your rights and obligations hereunder are not assignable, or otherwise transferable or delegable, by you to any third-party without our prior written consent in our sole discretion. Any purported assignment, transfer, or delegation without such consent will be null and void.
18.4. Binding Effect. This Agreement will be binding upon and inure to the benefit of the parties’ successors and permitted assignees. This Agreement may be approved or executed electronically, and your electronic assent or use of the Service shall constitute approval or execution of this Agreement. You agree that the electronic text of this Agreement constitutes a writing and your assent to the terms and conditions hereof constitutes a “signing” for all purposes. There shall be no third-party beneficiaries to this Agreement.
18.5. Headings. As used herein and unless the intent is expressly otherwise in a specific instance, the terms “include,” “includes,” or “including” shall not be limiting and “or” shall not be exclusive. Any section headings herein are for convenience only and do not form a part of, and will not be used in the interpretation of, the substantive provisions of this Agreement.
18.6. Contact Information. If you have any questions regarding this Agreement, please contact us at learnmore@medrhythms.com.
Version: 2503.1