Terms and Conditions


SENSICARDIAC SERVICE AND SOFTWARE END USER AGREEMENT


CAUTION: PLEASE READ THIS SOFTWARE SERVICE LICENSE AGREEMENT CAREFULLY BEFORE INSTALLING OR USING THE SOFTWARE SERVICE. BY INSTALLING OR USING THE SOFTWARE SERVICE, YOU INDICATE YOUR COMPLETE AND UNCONDITIONAL UNDERSTANDING AND ACCEPTANCE OF THE FOLLOWING TERMS AND CONDITIONS. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, PROMPTLY REMOVE THE SOFTWARE SERVICE FROM YOUR COMPUTER AND DESTROY THE ASSOCIATED DOCUMENTATION. IF THE SOFTWARE SERVICE WAS ACCESSED ELECTRONICALLY, CLICK “DISAGREE/DECLINE” NOW.

This is a legal Agreement entered into between Diacoustic Medical Devices (Pty) Ltd (Company Registration Number 2007/034050/07), with its principal place of business at Octo Place A3, Electron Street, Stellenbosch, South Africa (“Diacoustic”) and you, the user of the Software (“you or The User”).

IMPORTANT NOTICE: INSTALLING THE LATEST VERSION OF THE SOFTWARE SERVICE WILL DELETE PRIOR VERSIONS OF THE SOFTWARE INSTALLED ON YOUR COMPUTER.

IMPORTANT NOTICE: THE SOFTWARE SERVICE IS USED TO STORE PERSONAL CLINICAL AND MEDICAL INFORMATION. THE USE, STORAGE AND DISCLOSURE OF INFORMATION SUBMITTED, CREATED OR STORED FOR THE APPLICATION OF THIS SOFTWARE SERVICE, EITHER ELECTRONICALLY OR OTHERWISE, IS SUBJECT TO ALL INTERNATIONAL, NATIONAL, STATE/PROVINCIAL AND LOCAL LAWS, PRACTICES AND REGULATIONS THAT ARE APPLICABLE TO YOU, IN PARTICULAR LAWS, PRACTICES AND REGULATIONS RELATING TO PRIVACY, AND DATA, INCLUDING THE USE, STORAGE, DISCLOSURE AND TRANSMISSION OF INDIVIDUALLY IDENTIFIABLE INFORMATION.

YOU ARE RESPONSIBLE FOR FAMILIARIZING YOURSELF WITH ANY SUCH LAWS, PRACTICES AND REGULATIONS AND FOR MAKING THE NECESSARY ARRANGEMENTS TO IMPLEMENT APPROPRIATE SECURITY MEASURES TO CONTROL ACCESS TO PATIENT DATA SUBMITTED, CREATED AND STORED IN RELATION TO THE SOFTWARE.

IN VIEW OF THE ABOVE, THE SOFTWARE PERMITS THE DISCLOSURE OR SHARING OF HEART SOUND RECORDINGS WITHOUT DISCLOSING THE PATIENT’S IDENTITY AND NO PERSONAL INFORMATION IS EMBEDDED WITHIN THE HEART SOUND FILES.

ACCORDINGLY, YOU HEREBY ASSUME ALL RISKS, RESPONSIBILITIES AND LIABILITIES ASSOCIATED WITH THE USE, STORAGE, DISCLOSURE AND/OR TRANSMISSION OF INFORMATION IN RELATION TO THE SOFTWARE AND DIACOUSTIC IS HEREBY INDEMNIFIED FROM ANY CLAIMS, LOSSES OR DAMAGES RESULTING FROM YOUR ACTIONS OR NEGLIGENCE IN THIS REGARD.

PLEASE CONSULT YOUR INSTITUTION'S INFORMATION TECHNOLOGY DEPARTMENT OR COMPUTER TECHNICIAN TO IMPLEMENT APPROPRIATE SECURITY MEASURES TO PROTECT ACCESS PATIENT DATA CREATED AND STORED USING THIS SOFTWARE SERVICE.


| DEFINITIONS | PURPOSE | OWNERSHIP | BASIS OF USE | PERMITTED LICENSE USE, COPIES AND RESTRICTIONS | TRANSFER OF RIGHTS | SOFTWARE UPDATES AND UPGRADES | NOT FOR RESALE (NFR) COPIES OF THE SOFTWARE | EDUCATIONAL VERSIONS OF THE SOFTWARE | CONSENT TO USE OF DATA | TERMINATION | LIMITED WARRANTY ON MEDIA | DISCLAIMER OF WARRANTIES | TECHNICAL SUPPORT | GOVERNING LAW | COMPLETE AGREEMENT AND GOVERNING LANGUAGE | WAIVER | SEVERABILITY | NOTICES |

DEFINITIONS

"Agreement” means the provisions of this agreement;

“Education Version” means a version of the Software, so identified, for use by students and faculty of educational institutions only;

"Eligible Educational End User" means a student, faculty, staff or administrative member attending and/or employed by an educational institution or facility such as a university, college, and public or private school;

“Intellectual Property Rights” means patents, trademarks, design rights, engineering rights, trade secrets, database rights, moral rights and copyright, whether registered or not, and anything related thereto or similar from time to time; information relating to Diacoustic’s business and method of operation; and any information provided to you through use of the Software or pursuant to its operation;

“Internal Business Use” means use by an authorised person employed by a business entity in rightful possession of a licensed version of the Software;

“Service Provider” or “Diacoustic” or “we/us” means Diacoustic Medical Devices (Pty) Ltd. The company that provides the Service;

“Site Location” means a single building or part of a building used exclusively by the User or his or her business, but also includes a number of buildings or parts of buildings within the same general geographical location but generally associated with the running of a single business, such as a hospital or multi discipline healthcare facility;

“Software” or “Software Service” means the software online or standalone product, data analysis and data hosting services provided or made available by Diacoustic herewith, known as SensiCardiac, on smartphones or any computer, together with any updates or new releases provided by Diacoustic to The User from time to time, corresponding documentation, associated media, printed materials and online or electronic documentation;

“Support” means Diacoustic responding to, advising, correcting, bug-fixing or providing any form of assistance or advice to the User;

“Updates” means any bug fixes, patches security fixes, improvements or modification to the Software; and

“User” or “you” means the person registered and agreed to use the software of Software Service

PURPOSE

These Terms and Conditions are intended to define the contractual relationship entered between the Service Provider and the User.

OWNERSHIP

The Software Service, documentation and any other works accompanying this Agreement are owned by Diacoustic and are protected by international copyright laws and other treaty provisions.

All rights in the Software Service including license keys, licensing rights, and all intellectual property rights belong to Diacoustic. These rights are not transferred as part of this agreement. Specifically, and without limiting the generality of the aforegoing, you acknowledge that no rights are granted to you other than specifically provided for in this Agreement.

Diacoustic and/or Diacoustic's licensor(s) retain full ownership of the Software and the media on which the Software is recorded.

The rights granted under the terms of this Agreement shall also apply to any software upgrades that replace and/or supplement the original Software, unless such upgrade contains a separate license.

BASIS OF USE

Upon acceptance of these terms and conditions and in consideration thereof you will be granted a non-exclusive non-transferable, non-sublicensable, personal license to use the Software, in the case of a private individual, for your own personal or business use or, in the case of a legal entity, for Internal Business Use only. Your use of the Software may also be restricted by specific terms contained in any accompanying addenda to this Agreement, Diacoustic invoice or accompanying documentation.

PRODUCT PLANS AND PAYMENTS

The categories and prices of the currently applicable Software Services are described and quote for on the Diacoustic website.

Diacoustic may choose to temporarily change fees for promotional or new services, and such changes are immediately effective when Diacoustic announces the temporary promotional event or new service.

Any changes to fees for the Software Services that are not temporary or promotional will be affective thirty (30) days after we provide you with notice by posting such changes on the Diacoustic website or via personal email.

You are responsible for paying all fees and applicable taxes associated with the Software Services in a timely manner with a valid payment method. You authorize Diacoustic or its third party payment providers to charge your credit card, charge card, debit card, PayPal, or financial institution account (herein “Payment Method“) for all charges to your accounts with Diacoustic. Your Payment Method will be charged the current fee for the Software Service you choose promptly following the end of your free trial period. To view and manage information relating to your Software Services, including billing and invoice history, please sign into your Diacoustic account.

Unless otherwise stated, all fees are quoted in U.S. Dollars.

When signing up for a Software Service plan, the user will receive one-month free access, limited to 20 (twenty) patient investigation reports.

You agree that your selected Software Service Product will continue in effect unless and until you terminate it or Diacoustic terminates it. Unless so cancelled or terminated, Diacoustic will automatically charge the applicable fee (and any taxes, if applicable) to your Payment Method at the recurring of each billing period. For example, if you choose a Software Service product with a monthly billing plan, you will be billed on the 25th calendar day of each month. A pro rata payment will be charged from the day that you submitted the subscription till the 25th of that month.

Upgrades of your Software Services plan will be immediately effective and will be charged on a pro rata base form submitting the upgrade to the 25th of the current or forthcoming calendar month, which ever the shortest term. Your plan’s credits will be will be upgraded accordingly on a pro rata base as well.

Downgrades of your Software Services plan will only be effective on the 25th of the current month or the 25th of the next month if the downgrade was made after the 25th of the current month. Payment and number of credits will be adjusted accordingly.

Termination of the Software Services plan will only be effective on the end of current monthly cycle of which the termination request was submitted.

Out of plan charges will be applicable if your monthly credits are depleted.

Purchasing the standalone Software product

PERMITTED LICENSE USE, COPIES AND RESTRICTIONS

Unless otherwise established, the Services are accessible only to trained physicians or persons working under the supervision of a trained physician.

To access the service, the User must create – from the Site – an account protected by a password. The User undertakes to provide true, accurate and complete information and to update it regularly.

The registered User must thereafter identify himself in order to access the Software Service.

To be able to utilise the Software Service, the User must have a computer connected to the internet, or a smartphone, also connected to the internet. These costs are borne exclusively by the User.

Diacoustic declines all liability:

in the event of interruption, bugs or other events rendering the Software Service unfit for use;

if the User's computer or smartphone operating system is incompatible with the Software Service;

and more generally for any direct or indirect damages, whatever their cause or nature, resulting from use of the Software Service or the Site.

The Service Provider reserves the right, entirely at its discretion, to temporarily and indefinitely suspend or refuse access to the Software Service by the User if the latter does not comply with these Terms of Use, or for any other reason. In the case of suspension of the Service, even temporary, these Terms of Use remain applicable.

All computers on which the Software has been installed and which are used within the sphere of a patient must be fit for medical use. This implies that the computer must be isolated from the mains power and comply to the IEC 60601-1 standard.

Except as and only to the extent expressly permitted in this Agreement or by applicable law, you may not copy, disassemble, decompile, reverse engineer, disassemble, amend, modify, incorporate, create derivative works of or otherwise change the Software or any part thereof, except as expressly permitted by Diacoustic in writing. Any interoperability information, which you reasonably require, may be obtained from Diacoustic on payment of a reasonable fee covering Diacoustic’s costs in doing so.

No part of the Software including this Agreement may be reproduced, published, transmitted electronically, mechanically or otherwise, transcribed, stored in a retrieval system or translated into any language in any form, by any means, for any purpose other than The User’s personal use, without the express written permission of Diacoustic.

The Software or the use of the Software may be subject to legal or regulatory provisions related to products used in the Health Care Industry in your country of residence. Prior to using the Software, it is your responsibility to ensure that the use of the Software will not violate any legal or regulatory provisions and Diacoustic accepts no responsibility for any failure to do so.

You shall not remove any product identification, legal, copyright, trademark or other proprietary rights notices contained in the Software.

You shall not use the Software for any fraudulent, unlawful or illegal activities.

You will during the continuance of this Agreement:

effect and maintain adequate security measures to safeguard the Software from access, use or copying by any unauthorised person,

retain the Software and all copies thereof under your effective control at all times, and

maintain a full and accurate record of your use, copying and disclosure of Software and shall produce such record to Diacoustic on request from time to time, or in default of any specific requirement by Diacoustic, then in accordance with good data processing practice; and shall allow Diacoustic, on reasonable request, to inspect and take copies of such records from time to time.

TRANSFER OF RIGHTS

You may not rent, lease, lend or sublicense the Software, or any part thereof. You may, however, make a one-time permanent transfer of all of your license rights to the Software to another party, provided that:

the transfer includes the complete Software, including all its component parts, original media, printed materials and this License;

you do not retain any copies of the Software, whether partially or in full, including copies stored on a computer or other storage device; and

the party receiving the Software reads and agrees to accept the terms and conditions of this Agreement.

SOFTWARE UPDATES AND UPGRADES

If an update of the Software becomes available from time to time and is installed, such updated version of the Software will completely replace (full install) a previously licensed version of the Software. Under no circumstances are you allowed to use both old and new versions of the Software at the same time nor may you transfer them separately.

NOT FOR RESALE (NFR) COPIES OF THE SOFTWARE

Notwithstanding other sections of this License, Software labelled or otherwise provided to you on a promotional or NFR basis may only be used for demonstration, testing and evaluation purposes and may not be resold or transferred.

EDUCATIONAL VERSIONS OF THE SOFTWARE

Only Eligible Educational End Users are allowed to be in possession of or use an Educational Version of the Software.

CONSENT TO USE OF DATA

You hereby agree that Diacoustic and its subsidiaries may collect and use technical and related information, including but not limited to technical information about your computer, system and application software, and peripherals, that is gathered periodically to facilitate the provision of software updates, product support and other services to you (if any) related to the Software. Diacoustic may use this information, as long as it is in a form that does not personally identify you, to improve its products or to provide services or technologies to you.

TERMINATION

This Agreement shall commence upon you downloading or installing any part of the Software on a computer or smartphone and shall continue in perpetuity until terminated. Your rights under this License will terminate automatically without notice from Diacoustic if you fail to comply with any term of this Agreement. Upon the termination of this Agreement, you shall immediately cease all use of the Software and destroy all copies, full or partial, of the Software in your possession or under your control.

LIMITED WARRANTY ON MEDIA

Diacoustic warrants the media on which the Software is replicated and delivered by Diacoustic to be free from defects in materials and workmanship under normal use for a period of ninety (90) days from the date of original retail purchase. Your exclusive remedy under this Section shall be, at Diacoustic’s option, a refund of the purchase price of the product containing the Software or replacement of the Software which is returned to Diacoustic or a Diacoustic authorized representative with a copy of the receipt obtained at purchase of the Software.

THIS LIMITED WARRANTY AND ANY IMPLIED WARRANTIES ON THE MEDIA INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, OF SATISFACTORY QUALITY, AND OF FITNESS FOR A PARTICULAR PURPOSE, ARE LIMITED IN DURATION TO NINETY (90) DAYS FROM THE DATE OF ORIGINAL RETAIL PURCHASE. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU. THE LIMITED WARRANTY SET FORTH HEREIN IS THE ONLY WARRANTY MADE TO YOU AND IS PROVIDED IN LIEU OF ANY OTHER WARRANTIES (IF ANY) CREATED BY ANY DOCUMENTATION OR PACKAGING. THIS LIMITED WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY BY JURISDICTION.

DISCLAIMER OF WARRANTIES

This Software Service is provided "AS IS", without any warranty of any kind.

YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE SOFTWARE IS AT YOUR OWN SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU.

The entire and exclusive liability and remedy for breach of this limited warranty shall be limited to replacement of defective media or documentation and shall not include or extend to any claim for or right to recover any other damages, including but not limited to, loss of profit, data, or use of the Software or special, incidental or consequential damages, or other similar claims, even if Diacoustic has been specifically advised of the possibility of such damages. In no event will Diacoustic’s liability for any damages to you or any other person ever exceed the lower of the list price or the actual price paid for the Software, regardless of the form of the claim.

DIACOUSTIC SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES, REPRESENTATIONS, OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. ALL OTHER IMPLIED TERMS ARE EXCLUDED.

Specifically, Diacoustic makes no representation or warranty that the Software Service or any documentation associated with it are "error-free", or meet any of your particular standards, requirements, or needs. The Software Service is not intended to replace the skill and judgement of a qualified medical practitioner and should only be used by people that have been appropriately trained in the Software Service’s functions, capabilities and limitations. You agree to hold harmless, indemnify and defend, at your own cost, Diacoustic from and against any losses, damages, fines and expenses (including attorneys' fees and costs) arising out of or relating to your use of the Software.

THE ENTIRE RISK ARISING OUT OF YOUR USE OF THE SOFTWARE AND DOCUMENTATION REMAINS WITH YOU.

Risk associated with the use of correct medical certified equipment, including the computer on which the Software is installed, remains with you.

SOME JURISDICTIONS MAY NOT ALLOW SOME OF THE ABOVE DISCLAIMERS OF WARRANTIES AND MAY NOT APPLY TO YOU.

TECHNICAL SUPPORT

Diacoustic offers free technical support ("Support") for the lifetime of the Software Service but only to users of licensed instances thereof or valid subscribed users.

Support is available via electronic mail or telephonically on the help line provided, depending on your subscription model. Parameters of subscription models may change from time to time.

All requests for Support must be submitted in English.

The provision of Support does not imply or guarantee that reported faults or errors in the Software will be corrected.

GOVERNING LAW

The laws of the Republic of South Africa shall govern this Agreement.

COMPLETE AGREEMENT AND GOVERNING LANGUAGE

This Agreement constitutes the entire agreement between the parties with respect to the use of the Software Service licensed hereunder and supersedes all prior or contemporaneous understandings regarding such subject matter. No amendment to or modification of this Agreement will be binding unless in writing and signed by both you and Diacoustic. If any translation of this Agreement is made for local requirements and in the event of a dispute between the English and any non-English versions, the English version of this License shall govern.

WAIVER

A waiver of any default hereunder or of any of the terms and conditions of this Agreement shall not be deemed to be a continuing waiver or a waiver of any other default or of any other term or condition, but shall apply solely to the instance to which such waiver is directed.

SEVERABILITY

If any of the provisions or part of a provision of this Agreement is judged to be illegal or unenforceable, the remainder will continue in full force and effect unless the substantive purpose of this Agreement would be frustrated by this, in which case either party may terminate this Agreement forthwith on giving written notice to the other. Where any provision of this Agreement is deemed unenforceable under any applicable local laws, then the offending part shall be deemed excised from this Agreement and replaced by equivalent provisions with the same effect to the fullest extent possible and permitted by such local laws.

NOTICES

Any notice required to be given under this Agreement by either party must be in writing and in the English language, and may be delivered either personally or by recorded delivery post to the address specified above in South Africa and in the case of the latter will be deemed to have been received 3 working days after the date of posting. Notices will be delivered to the principal place of business of either party or to any other address notified in writing by either party to the other for the purpose of receiving notices after the date of this Agreement. In any event notice shall have been deemed to be given after actual receipt of the same by the Company Secretary of either party (or equivalent thereof).

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