Terms of Use
Last Revised: June 2nd, 2020
1. Background
OpenAir Medical Devices Ltd. (“OpenAir”, “we”, “our”, "us" or the “Company”) welcomes you (the “User(s)” and “you”) to the OpenAir website located at https://www.openairmed.com (the "Website"), to your use of the OpenAir Breathe Device (the "Breathe Device"), and to the OpenAir mobile and online platforms (the “OpenAir App”), through which Users who are Subscribers (as defined below) can access the services the Company offers through use of the Breathe Device (“OpenAir Services”), consisting of assessing the impact of time, place, individual and environmental factors on respiratory function; for individuals and groups via use of OpenAir’s Breathe Device (collectively, the Website, the Breathe Device, the OpenAir App and the OpenAir Services, shall together be referred to hereunder as the “Services”). You may use the Services solely in accordance with the terms and conditions hereunder.
By entering, connecting to, accessing or using the Services and/or by setting up an Account, you acknowledge that you have read and understood the following terms of use (the “Terms of Use”), including the terms of our Privacy Policy (the “Privacy Policy” and collectively with the Terms of Use, the “Terms”) and you agree to be bound by the Terms and to comply with all applicable laws and regulations regarding your use of the Services and acknowledge that these Terms constitute a binding and enforceable legal contract between OpenAir and yourself. Capitalised terms which are not defined herein, shall have the meaning ascribed to them in our Privacy Policy.
IF YOU DO NOT AGREE TO THESE TERMS, PLEASE DO NOT ENTER, CONNECT TO, ACCESS OR USE THE SERVICES OR ANY PART THEREOF IN ANY MANNER.
By acceptance of the Terms, you represent that any and all information you provide us through the Services is true and accurate. The provision of any false or fraudulent information is strictly prohibited. You further consent to receive communications from us electronically. We may communicate with you a variety of ways, such as bye-mail, in-app push notifications, or by notices and messages on the Website. You may revoke your consent to any individually targeted communications at anytime.
2. Ability to Accept Terms
Our Website and App are not structured to attract children under the age of 18 years. If you are under 18 years of age, please do not visit or use the Website or App without the guidance and supervision of your parent or legal guardian who registered to the Services on your behalf.
TO USE THE SERVICES AND OPEN A USER ACCOUNT YOU MUST BE OVER THE AGE OF EIGHTEEN (18). If you are under 18 years old, then your parent or legal guardian must read, understand and accept Terms with respect to your use of the Services prior to any such use.
3. The Services
The Services consist of individual and aggregated analytical information collected from the User as well as third party information that is relevant based on the User’s profile information (including but not limited to location, age, sex, medical history) based on (i) certain User Lung Data (as defined below), as indicated by your proper use of the Breathe Device; and (ii) the User’s input of User’s Physical Information (as defined below) (collectively, the “Personal Physical Profile”). The Services are made available through the use of the Breathe Device which is an OpenAir proprietary spirometer, that measures and analyses a User’s real-time airflow pressure, including but not limited to Lung Capacity, Respiratory Capacity, Exhale volume and CO2 (“Lung Data”).
NOT MEDICAL ADVICE OR HEALTH CARE SERVICES:
OPENAIR DOES NOT DIAGNOSE, TREAT, CURE, OR PREVENT ANY DISEASE NOR DOES IT PROVIDE ANY PROFESSIONAL HEALTH RELATED ADVICE OR ANY MEDICAL DIAGNOSES. THE SERVICES ARE PROVIDED “AS IS” AND ANY INFORMATION GENERATED,PROVIDED OR CONCLUDED USING THE SERVICES IS DEPENDANT ON THE ACCURACY AND RELIABILITY OF INFORMATION ENTERED AND UPLOADED BY YOU. OPEN AIR HAS NO LIABILITY WHATSOEVER WITH RESPECT TO THE INFORMATION AND SUGGESTIONS PROVIDED,GENERATED, OR CONCLUDED IN CONNECTION WITH THE USE OF THE SERVICES. YOU AGREE THAT OPEN AIR IS NOT RESPONSIBLE OR LIABLE TO YOU FOR ANY CLAIM, LOSS, OR DAMAGE ARISING FROM THE SERVICES, AND THE RELIANCE ON ANY INFORMATION OR SUGGESTION PROVIDED THEREBY, BY YOU OR ANY OTHER USER. UNLESS EXPRESSLY PROVIDED OTHERWISE IN THE TERMS, OPENAIR DOES NOT IN ANY WAY ENDORSE OR ASSUME ANY RESPONSIBILITY FOR ANY DECISION MADE OR ACTION TAKEN OR NOT TAKEN WHOLLY OR PARTIALLY IN RELIANCE ON THE SERVICES OR ANY INFORMATION CONVEYED VIA THE SERVICES, OR OBTAINED THEREFROM, NOR FOR ANY LOSS, INJURY, INCONVENIENCE, HARM AND/OR DAMAGE INCURRED AS A RESULT OF, OR IN CONNECTION WITH, THE SERVICE OR USE THEREOF. THE BREATHE DEVICE IS NOT A MEDICAL DEVICE. ANY DECISION OR ACTION YOU TAKE BASED ON ANY OUTPUT AND/OR INFORMATION PROVIDED VIA USE OF THE BREATHE DEVICE IS TAKEN AT YOUR OWN RISK. YOU ACKNOWLEDGE AND AGREE THAT THE USE OF THE SERVICES AND THE BREATHE DEVICE ARE ENTIRELY AT YOUR OWN RISK.
4. Registration and User Account
In order to use the Services and the Breathe Device, you must register and open a User account on the App and/or the Website (the “Account”). Registration must be completed by providing OpenAir with registration information required by OpenAir which may be comprised of: your name, photograph, phone number, e-mail address, date of birth, gender, and other demographic information. You shall provide accurate, complete and up-to-date information in connection with the use of the Services.
During the registration process, you will be required to choose a password and username for your Account. You are solely and fully responsible for maintaining the confidentiality of the login credentials (e-mail, username and password) of your Account and for all activities that occur under your Account.
You agree not to disclose your login credentials to any third party. If you forget your password, you can request through the Services to have a new password issued and sent to your registered e-mail address. Your Account is at risk if you let someone else use it inappropriately and we reserve the right to terminate your Account if we determine that you or anyone using your Account violates these Terms.
You must notify us immediately of any unauthorised use of your Account or login credentials or any other breach of security to which you become aware. We cannot and will not be liable for any loss or damage arising from any failure of yours to comply with the Terms or from any unauthorised use of your Account or any other breach of security. You shall be liable for the losses of OpenAir and/or others due to any such use.
If you wish to modify your Account information, or if you wish to terminate your Account, you may do so on the OpenAir App or by contacting OpenAir support available at support@openairmed.com. Your Account will be terminated within a reasonable time following your request in accordance with the Privacy Policy, and from that date you will no longer be able to access your Account, and without derogating from any right or claim available to OpenAir, any and all permissions, rights and licenses granted to you under these Terms shall be instantly terminated and revoked.
NOTE THAT TERMINATING YOUR ACCOUNT MAY CAUSE THE LOSS AND/OR UNAVAILABILITY OF CONTENT, FEATURES, OR CAPACITY WITH REGARD TO YOUR ACCOUNT. OPENAIR SHALL NOT BE LIABLE IN ANY WAY FOR SUCH UNAVAILABILITY AND/OR LOSS.
5. Initial Set-Up and On-Going Updates.
In order for a User to begin use of the Services, a User must create an initial Personal Profile (the “User Profile”) by following the instructions provided by the OpenAir App, which may include the following: (i) perform an initial calibration of the Breathe Device; (ii) fill out the User Profile registration form; (iii) log user activity (an “Event”) and by allowing the OpenAir App to access and link to other mobile applications such as Apple Health Kit, Samsung Health, etc..; (iv) log any changes to your weight; (v) fill in questionnaires with respect to your personal motivation and/or goal (collectively: “Physical Information”). Please be sure to provide accurate and complete information in preforming all the User Profile activities in order to provide OpenAir with an accurate User Profile.
In order to ensure the Services are best suited to your personal preferences and needs, you may be required to update your User Profile on an ongoing basis in accordance with the on-going changes of your Physical Information.
6. Social Groups
Users may, in their sole discretion, choose to participate in the OpenAir social groups (“Social Groups”), which provides a forum for Users to share their User Profile and/or any part thereof, their stories, photographs and any such other User-Generated Content (as defined below) with other Users. If you do not wish to participation in a Social Group to which you have been invited please do not accept such invitation.
OPENAIR IS NOT RESPONSIBLE FOR ANY USER-GENERATED CONTENT EXCHANGED BY USERS VIA SOCIAL GROUPS.
7. User Representations and Undertakings
You're present and warrant at all times throughout your use of the Services that: (i) you have full authority to agree to these Terms, and there is no restriction, limitation, contractual obligation or statutory obligation which prevents you from fulfilling your obligation under these Terms; (ii) you are and will continue to be in compliance with all applicable laws, rules, and governmental (state, local, and community) and regulatory levies and requirements relating to your use of and access to the Services; (iii) your use of the Services has not been previously blocked, suspended or terminated including under different accounts; (iv) you will not authorise a third party to do any of the foregoing; and (v) you will not infringe or violate the Terms
8. Use Restrictions
There are certain conducts which are strictly prohibited in our Services. Please read the following restrictions carefully. Your failure to comply with the provisions set forth herein may result (at OpenAir’s sole discretion) in the termination of your access to the Services and may also expose you to civil and/or criminal liability.
You may not, and may not allow any third party to: (i) copy, modify, adapt, translate, reverse engineer, decompile, or disassemble any portion of the Services or any of the OpenAir information and resources about the Services, OpenAir’s systems and technology and any other content related thereto (including contact information, videos, text, logos, button icons, images, data compilations, links, other specialised content, documentation, data, related graphics, intellectual property and other features (collectively, the “Content”) or other Intellectual Property (as defined below), in any way or publicly display, perform, or distribute them; (ii) make any use of the Services and/or Content on any website or networked computer environment other than for your personal use in the Website or App, or replicate or copy the Content without OpenAir’s prior written consent; (iii) create a browser or border environment around OpenAir’s Services, Content and any part thereof (no frames or inline linking); (iv) interfere with or violate any other User’s right to privacy or other rights, or harvest or collect personally identifiable information about visitors or users of the Service without their express and informed consent, including using any robot, spider, website search or retrieval application, or other manual or automatic device or process to retrieve, index, or mine, any data or content; (v) use the Services to defame, abuse, harass, stalk, threaten, or otherwise violate the legal rights of others; (vi) transmit or otherwise make available in connection with our Services any virus, worm, Trojan Horse, time bomb, web bug, spyware, or any other computer code, file, or program that may or is intended to damage or hijack the operation of any hardware, software, or telecommunications equipment, or any other actually or potentially harmful, disruptive, or invasive code or component; (vii) interfere with or disrupt the operation of our Services, or the servers or networks that host our Services, or disobey any requirements, procedures, policies, or regulations of such servers or networks; (viii) sell, license, or exploit for any commercial purposes any use of or access to the Services, the Intellectual Property, and the Content including use our Services, the Intellectual Property and/or the Content for non-personal or commercial purposes without OpenAir’s express prior written consent or pursuant to an express written agreement with OpenAir; (ix) frame or mirror any part of the Website without OpenAir’s prior express written authorisation; (x) create a database by systematically downloading and storing all or any of the Content from our Services; (xi) function as a service bureau and provide access to data generated from our Services without the prior written consent of OpenAir; or (xii) to transfer and/or assign the User’s Account’s password, even temporarily, to a third party; (xiii) upload, display, convey and/or otherwise communicate to OpenAir or to any Users, any information, imagery and other content which is proprietary information of any third party without such third party’s explicit consent; or (xv) use our Services for any illegal, immoral or unauthorised purpose.
9. User Generated Content
Certain features of the Services may permit Users to post and edit content, fitness-related data, text, photos, report data gaps or errors and other types of works (collectively, “User Content”) and to publish User Content on the Services. Please ensure that when you use the Services, you respect the rights of others including any intellectual property, other proprietary rights and privacy rights of third parties who may have an interest or right in connection with the User Content you upload and/or provide to OpenAir or the Services. OpenAir will not bear any liability for any loss, damage, cost, or expense suffered or incurred as a result of or in connection with uploading any User Content. Some User Content may only be contributed by you if you have created an Account or if you are a member of a Social Group.
You hereby further acknowledge and agree that the User Content is non-confidential. You understand and agree that you are solely responsible for User Content uploaded by you and the consequences of posting or publishing such User Content, on the Services, in any way. You hereby warrant that User Content uploaded by you is true, current, accurate and complete.
You represent and warrant that you are the rightful owner of the User Content you upload to the Services or that you have (and will continue to have at all times) all the necessary licenses, rights, consents, and permissions from the rightful owners of such User Content and/or the subjects of such User Content (e.g. individuals appearing in any photos uploaded by the User, if such subjects’ consent is required under applicable laws) and that such User Content does not infringe any third party's intellectual property rights or other rights, including without limitation, any privacy rights, publicity rights, copyrights, or any other intellectual property rights.
IT IS THE USER’S SOLE RESPONSIBILITY TO OBTAIN ANY AND ALL CONSENTS REQUIRED UNDER ANY APPLICABLE LAWS, REGARDING THE POSTING OF ANY PERSONAL INFORMATION OF OTHERS WHICH IS PART OF THE USER CONTENT, INCLUDING WITH RESPECT TO THE UPLOADING OF ANY PHOTOS AND TO ADHERE TO ANY APPLICABLE STATE AND FEDERAL LAWS REGARDING SUCH INFORMATION.
Without derogating from the above, you expressly agree that the User Content that you post or upload will not include (i) any spam, unsolicited promotions, advertising, contests or raffles; (ii) content which is unlawful, defamatory, libellous, harassing, offensive, indecent, pornographic, abusive, fraudulent, threatening or vulgar; (iii) content that unlawfully discriminates on the basis of race, origin, ethnicity, nationality, religion, gender, occupation, sexual orientation, illness, physical or mental disability, faith, political view or socio-economical class; (iv) content that encourages criminal behaviour or conduct that would constitute a criminal offence under any law, or could give rise to civil liability or other lawsuit; or (v) content that might reasonably pose a risk to a person’s safety, security or health. The above examples of unlawful and prohibited User Content do not constitute an exhaustive list.
OpenAir is under no obligation to edit or control User Content that you or other Users post or publish, and will not be in any way responsible or liable for User Content. Although OpenAir has no obligation to screen, edit or monitor any of the User Content, OpenAir explicitly reserves the right, at its sole discretion, to remove, edit, or block without giving any prior notice, any User Content available on the Services at any time and for any reason, and you are solely responsible for creating backup copies of and replacing any User Content you post on the Services at your sole expense.
If notified by a User or content owner that User Content allegedly does not conform to these Terms, we may investigate the allegation and determine in our sole discretion whether to remove the User Content, which we reserve the right to do at any time and without notice. When you upload, post, publish or make available any User Content on the Services, you grant to OpenAir an irrevocable, perpetual, non-exclusive, royalty-free, transferable, assignable, fully sub- licensable and worldwide license, to use, reproduce, distribute, transmit, create derivative works of, display, copy, make available to the public and perform that User Content, in connection with the Services, whether through the Internet, mobile devices or otherwise, in any media formats and through any media channels known today and developed in the future. OpenAir shall not bear any liability for any use by any third party of the User Content. In addition, you hereby explicitly waive any moral right you may have in and to the User Content and forever waive and agree not to claim or assert any entitlement to any and all moral rights in any of the User Content.
10. Privacy Policy
OpenAir respects your privacy and is committed to protect the information you share with it. We believe that you have a right to know our practices regarding the information OpenAir collects when you connect to, access or use our Services. Our policy and practices and the type of information collected are described in our Privacy Policy located at https://www.openairmed.com/privacy-policy If you intend to connect to, accessor use our Services you must first read and agree to the Privacy Policy.
11. Payments and Fees
1.1. In addition to the purchase price of the Breathe Device, subscribing to the OpenAir Services (“Subscription”) and Account registration may be subject to payment of certain fees (either onetime payment or periodic) to the Company, as shall be presented to you at the time of subscription/registration (the "Subscription Fees").
1.2. Payments on the Website and the App may be executed via various credit card and other third-party payment service provider that we make available through our Website. By choosing to proceed with a payment via a third party payment service provider, you hereby: (1) agree to review and be bound by such third party payment service providers’ terms of use and privacy policy; and (2) acknowledge that you may need to hold or register an active account in order to complete a payment. We are not responsible or liable for any activities or conduct of a third-party payment service provider.
12. Product Descriptions
We have made every effort so that our Website displays the dimensions and colours of our products as accurately as possible. However, the colours you see in our products will depend on your displaying device (e.g. mobile phone, computer). We do not warrant that the product descriptions are accurate, complete, reliable, current, or error-free. If a product offered by our Website is not as described, your sole remedy is to return it unused and with the full contents of its packaging in accordance with our return policy as described within our “Warranty and Returns Policy” located at https://www.openairmed.com/warranty.)
13. Intellectual Property Rights
OpenAir hereby grants you with a limited, personal, non-exclusive, terminable, non-assignable, non-sublicensable, time limited, non-transferrable license to use the Services subject to the terms and conditions in this agreement. Except for the limited right to access and use the Services as permitted hereunder, and except for ownership of the hardware component of the Breathe Device by purchasers of the Breathe Device, these Terms do not entitle you to any right in and/or to any of the Services, including without limitation the App, the Breathe Device, and/or the Website.
All references in these Terms to the purchase or sale of the OpenAir App, Breathe Devices or of Services or any part thereof, shall include the sale, lease, licensing, rental, subscription or other transfer, conveyance or disposal of any product (including, for the removal of doubt, any related service; however the parties intend and agree that as the OpenAir App, the Breathe Devices and/or Services include software (including, without limitation, any firmware) such software is not being sold, but shall only be licensed in accordance with the terms and conditions of these Terms.
OpenAir’s marks and logo (whether or not registered) and all other proprietary identifiers used by OpenAir in connection with the Service (the “OpenAir Trademarks”) are all trademarks and/or trade names of the Company, whether they are registered or not. All other trademarks, trade names, identifying marks and logos might appear in the service belongs to their right owners (“Third Party Trademarks”). No right, license, or interest to OpenAir Trademarks or Third Party Trademarks is granted hereunder, and you agree that no such right, license, or interest shall be asserted by you with respect to OpenAir’s Trademarks and therefore you will avoid using any of those marks unless such use was specifically authorised in the Terms.
Our Services, the Content and any and all intellectual property rights pertaining thereto, including, but not limited to, inventions, patents and patent applications, trademarks, trade names, logos, copyrightable materials, graphics, text, images, designs (including the "look and feel" of our Services), specifications, methods, procedures, information, know-how, algorithms, data, technical data, interactive features, source and object code, files, interface and trade secrets, whether or not registered or capable of being registered and all enhancements, modifications and derivatives thereof (collectively, “Intellectual Property”), are owned and/or licensed to OpenAir and subject to copyright and other applicable intellectual property rights under UK laws, foreign laws and international conventions.
You are hereby prohibited from removing or deleting any and all copyright notices, restrictions and signs indicating proprietary rights of OpenAir or its licensors, including [®], copyright mark [©] or trademark [™] contained in or accompanying the Content included on the Website, and you represent and warrant that you will abide by all applicable laws in this respect.
14. Availability
Our Services availability and functionality depends on various factors, such as communication networks. OpenAir does not warrant or guarantee that our Services will operate and/or be available at all times without disruption or interruption, or that it will be error-free.
15. Changes to Our Services
OpenAir reserves the right to modify, correct, amend, enhance, improve, make any other changes to, or discontinue, temporarily or permanently our Services (or any part thereof, including but not limited to the Content) without notice, at any time and at its sole discretion. In addition, you hereby acknowledge that the content provided under our Services may be changed, extended in terms of content and form or removed at any time without any notice to you. You agree that OpenAir shall not be liable to you or to any third party for any modification, suspension, or discontinuance of our Services or the content included in our Services.
16. Disclaimer and Warranties
OPENAIR DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE, THE INABILITY TO USE OR OPERATE, OR THE RESULTS OF THE USE OF THE CONTENT AVAILABLE ON OUR SERVICES. YOU AGREE AND ACKNOWLEDGE THAT THE USE OF OUR SERVICES IS ENTIRELY AT YOUR OWN RISK.
OPENAIR DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE RESULTS OF THE BREATHE DEVICE OR THE ACCURACY OF THE USER’S LUNG DATA.
YOU ASSUME FULL RESPONSIBILITY FOR ANY USE OF THE SERVICES NOT IN ACCORDANCE WITH OPENAIR’S INSTRUCTIONS.
OPENAIR SHALL NOT BE LIABLE FOR ANY DAMAGES WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, DIRECT, INDIRECT, SPECIAL,INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, WHETHER IT WAS CAUSED CONSEQUENTLY OR IN CONNECTION WITH THE USE OF THE SERVICES, OR ANY OTHER INFORMATION EMERGING FROM USING THE SERVICE, WHETHER OR NOT OPENAIR HAD BEEN INFORMED OFSUCH POSSIBLE DAMAGE.
OUR SERVICES ARE PROVIDED ON AN “AS IS” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF TITLE ORNON-INFRINGEMENT OR IMPLIED WARRANTIES OF USE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR FUNCTION. OPENAIR DISCLAIMS AND MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE ACCURACY, QUALITY, AVAILABILITY,RELIABILITY, SUITABILITY, COMPLETENESS, TRUTHFULNESS, USEFULNESS, OR EFFECTIVENESS OF ANY CONTENT AVAILABLE ON OUR SERVICES INCLUDING ANY SUGGESTIONS. THE USE OF OUR SERVICES IS ENTIRELY AT YOUR OWN RISK AND OPENAIR SHALL HAVE NO LIABILITY RELATING TO SUCH USE. OPENAIR DISCLAIMS RESPONSIBILITY FOR ANY AND ALL INFORMATION UPLOADED OR COMMUNICATED THROUGH THE SERVICES BY USERS.
OPENAIR DOES NOT WARRANT THAT THE OPERATION OF OUR SERVICES IS OR WILL BE SECURE,ACCURATE, COMPLETE, UNINTERRUPTED, WITHOUT ERROR, OR FREE OF VIRUSES, WORMS,OTHER HARMFUL COMPONENTS, OR OTHER PROGRAM LIMITATIONS.
17. Limitation of Liability
IN NO EVENT SHALL OPENAIR, INCLUDING ITS OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, SUB-CONTRACTORS AND ITS AGENTS BE LIABLE FOR ANY DAMAGES WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, DIRECT, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, WHETHER IN AN ACTION OF CONTRACT, NEGLIGENCE OR OTHER TORTIOUS ACTIONS RESULTING FROM OR ARISING OUT OF OUR SERVICES, OR THE USE OR INABILITY TO USE OUR SERVICES, THE CONTENT, LOSS OF GOODWILL OR PROFITS, THE PERFORMANCE OR FAILURE OF OPENAIR TO PERFORM UNDER THESE TERMS, ANY OTHER ACT OR OMISSION OF OPENAIR BY ANY OTHER CAUSE WHATSOEVER; OR BASED UPON BREACH OF WARRANTY, BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER LEGAL THEORY, REGARDLESS OF WHETHER OPENAIR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
NO ACTION MAY BE BROUGHT BY YOU FOR ANY BREACH OF THESE TERMS MORE THAN ONE (1) YEAR AFTER THE ACCRUAL OF SUCH CAUSE OF ACTION.
SUCH LIMITATIONS, EXCLUSIONS AND DISCLAIMERS SHALL APPLY TO ALL CLAIMS FOR DAMAGES,WHETHER BASED IN AN ACTION OF CONTRACT, WARRANTY, STRICT LIABILITY, NEGLIGENCE,TORT, OR OTHERWISE. YOU HEREBY ACKNOWLEDGE AND AGREE THAT THESE LIMITATIONS OF LIABILITY ARE AGREED ALLOCATIONS OF RISK CONSTITUTING IN PART THE CONSIDERATION FOR OPENAIR’S SERVICES TO YOU, AND SUCH LIMITATIONS WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY, AND EVEN IF OPENAIR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LIABILITIES AND/OR DAMAGES. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION AND IN NO EVENT SHALL OPENAIR’S CUMULATIVE LIABILITY TO YOU EXCEED AMOUNTS PAID TO OPENAIR FOR YOUR USE OF THE SERVICE. IF YOU HAVE NOT MADE ANY PAYMENTS TO OPENAIR FOR THE USE OF THE SERVICE OR IF NO PAYMENTS WERE MADE ON YOUR BEHALF, THEN OPENAIR SHALL NOT HAVE ANY LIABILITY TOWARDS YOU.
18. Indemnification
You agree to defend, indemnify and hold harmless OpenAir from and against any and all claims, damages, obligations, losses, liabilities, costs, debts, and expenses (including but not limited to attorney's fees) made against or incurred by OpenAir arising directly or indirectly from: (i) your use of our Services not in accordance with OpenAir’s instructions; (ii) your violation of any term of these Terms; (iii) any damage of any sort, whether direct, indirect, special or consequential, you may cause to any third party which relates to your use of our Services (including your violation of any third party rights); (iv) any claim for financial remedies or other compensations due to a decision that was taken or not taken or any action that was made or not made based on the Content, output or any other data resulting from the use of the Services; and (v) your violation of any applicable law or regulation.
19. Amendments to the Terms
OpenAir may change the Terms from time to time, at its sole discretion and without any notice. We will notify regarding substantial changes of these Terms on the homepage of the Website and/or the App and/or we will send you an e-mail regarding such changes to the e-mail address that you provided during registration. Such substantial changes will take effect seven (7) days after such notice was provided on our Website or sent via email. Otherwise, all other changes to these Terms are effective as of the stated “Last Revised” date and your continued use of our Services the Last Revised date will constitute acceptance of, and agreement to be bound by, those changes.
20. Termination of the Services
As specified under Section 11, Subscription and Account registration are subject to payment of the Subscription Fees. If you are under a limited Subscription plan, your access rights to the OpenAir Services shall expire upon expiration of your Subscription unless you renew your Subscription by completing payment to OpenAir, of the then applicable Subscription Fees. Unless you notify us of your request to delete your Account as specified in the Privacy Policy, we may maintain your inactive Account including all data and reports therein, in order to allow you to reactivate the Account if you choose to renew your Subscription at a later stage.
At any time, OpenAir may block your access to our Services and/or temporarily or permanently limit your access to our Services, at its sole discretion, in addition to any other remedies that may be available to OpenAir under any applicable law. Such actions by OpenAir may be taken if OpenAir deems that you have breached any of these Terms in any manner.
Additionally, OpenAir may at any time, at its sole discretion, cease the operation of our Services or any part thereof, temporarily or permanently, without giving any prior notice. You agree and acknowledge that OpenAir does not assume any responsibility with respect to, or in connection with the termination of our Services operation and loss of any data except with respect to pre-paid pro-rated fees paid for future access to the Services.
The provisions of Section 7 (User Representations and Undertakings), Section 8 (Use Restrictions), Section 10 (Privacy Policy, including the Privacy Policy referred to therein), Section 13 (Intellectual Property Rights), Section 14 (Availability), Section 16 (Disclaimer and Warranties), Section 17 (Limitation of Liability), Section 18 (Indemnification), Section 20 (Termination of the Service), and Section 23 (General), shall survive the termination or expiration of these Terms.
21. Platform Providers
By downloading the App from a third-party mobile application marketplace (e.g. AppStore), a service provider or distributor (“App Providers”), your use of the App may also be subject to the rules of use of the App Providers (“Rules of Use”). Note that the Rules of Use may apply to you and it is your responsibility to determine whether and to what extent the Rules of Use apply to you. You agree to meet all the Rules of Use of the App Providers that apply to you.
Such App Providers are independent from the Service. You hereby acknowledge that OpenAir has no control over such App Providers, and further acknowledge and agree that OpenAir is not responsible for the availability of App Providers, and does not endorse nor is it responsible or liable for any goods, services, content, advertisements, products, or any materials available on and/or through such App Providers.
22. Misconduct and Copyright Agent
We care for your safety and well-being. If you believe a User acted inappropriately including, but not limited to, offensive, violent or sexually inappropriate behaviour or content, please report immediately such person to the appropriate authorities and to us.
OpenAir respects the intellectual property rights of others. If you believe that your work has been copied in a way that constitutes copyright infringement, please provide the following information in writing to the OpenAir’s Copyright Agent: (i) a physical or electronic signature of a person authorised to act on behalf of the owner of the copyright; (ii) a description of the copyrighted work that you claim has been infringed; (iii) a description of the material that you claim to be infringing or to be the subject of in fringing activity and that is to be removed or access to which is to be disabled and information sufficient to permit OpenAir to locate the material (including URL address or screen capture of such infringing activity); (iv) information so that OpenAir can contact you, such as address, telephone number and e-mail address; (v) a statement that you believe in good faith that use of the material in the manner complained of is not authorized by the copy right owner, its agent, or the law; (vi) a statement that the information in the notification is accurate and, under penalty of perjury, you are the copy right owner or are authorized to act on behalf of the owner of a copyright that is allegedly infringed. OpenAir’s Copyright Agent can be reached at support@openairmed.com
23. General
These Terms do not, and shall not be construed to create any partnership, joint venture, employer- employee, agency, or franchisor-franchisee relationship between the parties hereto. Any claim relating to the Service or use of the Service will be governed by and interpreted in accordance with the applicable laws as described herein. Any dispute arising out of or related to your use of the Website and/or the Service will be brought in, and you hereby consent to the exclusive jurisdictions and venues of the following competent courts and under the following governing law:
a) If your primary residence is in Europe, the law governing the relationship between you and the Company and the exclusive jurisdiction shall be: the laws of England and Wales and the city of London (respectively);
b) If your primary residence is in the USA, the law governing the relationship between you and the Company and the exclusive jurisdiction shall be: the laws of the state of New York and the city of New York (respectively);
If any provision of these Terms is found to be unlawful, void, or for any reason unenforceable, then that provision will be deemed severable from these Terms and will not affect the validity and enforceability of any remaining provision. You may not assign, sublicense or otherwise transfer any or all of your rights or obligations under these Terms without OpenAir's prior express written consent. No waiver by either party of any breach or default hereunder will be deemed to be a waiver of any preceding or subsequent breach or default. Any heading, caption or section title contained herein is inserted only as a matter of convenience, and in no way defines or explains any section or provision hereof. These Terms are the entire terms and conditions between you and OpenAir relating to the subject matter herein and supersedes any and all prior or contempt or otherwise written or oral agreements or understandings between you and OpenAir. Notices to you may be made via email or regular mail. Our Service may also provide notices of changes to these Terms or other matters, by displaying such notices or by providing links to such notices. Without limitation, you agree that a printed version of these Terms and of any notice given in electronic form shall 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.
24. Contact
If you have any questions (or comments) concerning the Terms or the Service, you are welcome to send us an email to the following address, and we will make an effort to reply within a reasonable time frame: support@openairmed.com.
By contacting us, you represent that you are free to do so and that you will not knowingly provide OpenAir with information that infringes upon third parties’ rights, including any intellectual property rights. You further acknowledge that notwithstanding anything herein to the contrary, any and all rights, including intellectual property rights in such information provided, shall belong exclusively to OpenAir, and OpenAir may use or refrain from using any such information at its sole discretion.
Appendix 1 - Use of the Breathe Device
INDICATIONS OF USE
The Breathe Device is intended to measure the forced expiratory volume in 1 sec (FEV1) and the forced vital capacity (FVC) in a forced expiratory manoeuvre. These measures can be used for detection, assessment and monitoring of diseases affecting the lung function, such as Bronchial Asthma, COPD and Cystic Fibrosis. The Breathe Device is intended to be used by:
Healthcare professionals trained to perform spirometry tests on patients of all ages, who are capable of performing a spirometry test.
Adults trained by healthcare professionals or through self-learning who understand how to perform a high quality spirometry test.
Competent adult can assist a child, who is capable of performing the spirometry test, with indicative use in home settings.
LIMITATIONS OF USE & CONTRAINDICATIONS
A spirometry test should only be carried out when the User is at rest (i.e. does not experience shortness of breath) and in good health, and thus in a suitable condition for the test.
An analysis of the results of a spirometry test alone is not sufficient to make a diagnosis of a clinical condition. Test interpretation and suggested treatment must be provided by a physician.
A correct spirometry test depends on the User’s capability to inhale and exhale all air completely and as fast as possible. If these fundamental conditions are not respected then the results obtained during spirometry testing will not be accurate, and therefore the test results are “not acceptable”.
The acceptability of a test is the responsibility of the User. Special attention should be given when testing the elderly, disabled and children.
The device should never be used when it is possible or probable that the validity of the results may be compromised due to any external factors.
Some conditions may pose a relative danger to a patient or affect the validity of spirometry performance and results. These include, but are not limited to the following: unstable cardiovascular status, unstable angina, recent myocardial infarction (within one month) or pulmonary embolism, haemoptysis of unknown origin, recent pneumothorax, thoracic, abdominal or cerebral aneurysms, recent thoracic, abdominal or eye surgery, acute disorders such as nausea or vomiting, severe respiratory distress, physical limitations, cognitive impairment, dementia.