Between ImagineCare USA, Inc and End User

This End User License Agreement (“Agreement”) is a binding agreement between the end user (“you”, “your” or “End User”) of the software application and website (as defined herein) and ImagineCare (“MHMH”). This Agreement governs your use of the ImagineCare services (as defined herein) and all related documentation. The ImagineCare Services are licensed, not sold, to you.

BY DOWNLOADING/INSTALLING OR USING THE APPLICATION, YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENT THAT YOU ARE 18 YEARS OF AGE OR OLDER; AND (C) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT DOWNLOAD, INSTALL OR USE THE APPLICATION AND DELETE IT FROM YOUR MOBILE DEVICE.

The ImagineCare Services include a cloud-based application and service platform that enhance care management in a manner tailored to individual needs and informed by the remote medical sensing devices used or worn by the consumer. The Services are meant to augment the services you received from your health care provider by providing a fuller view of your overall health and health status, providing opportunities for earlier intervention as deemed medically appropriate by your provider. The Service does not replace any of your existing physicians’ or other providers’ services, and your receipt of the Services does not create a patient-provider relationship between you and MHMH or any of its affiliates. The Services are not intended to diagnose disease or other conditions, or to cure, mitigate, treat, or prevent disease. ALWAYS SEEK THE ADVICE OF YOUR PHYSICIAN OR OTHER QUALIFIED HEALTH PROVIDER WITH ANY QUESTIONS YOU MAY HAVE REGARDING YOUR HEALTH OR A MEDICAL CONDITION. IF AT ANY TIME YOU BELIEVE YOU ARE EXPERIENCING A MEDICAL EMERGENCY, YOU SHOULD CALL 911. YOU SHOULD NEVER DISREGARD MEDICAL ADVICE OR DELAY SEEKING IT BASED ON YOUR USE OF IMAGINECARE SERVICES.

  1. Definitions.
    1. Customer” means the individual, business unit, or entity that has purchased a license described in Section 2 on your behalf.
    2. Deidentified” means data that has been processed to remove, hide, encrypt, anonymize or aggregate identifying information such that one could not, using reasonable efforts, link such information back to you.
    3. End User Data” means data entered or uploaded by you to the ImagineCare Services.
    4. ImagineCare” means the online software, platform and websites which you can access via the Application and your account that are hosted and maintained by or on behalf of MHMH.
    5. Application” means the downloadable software application offered by MHMH through which your MHMH account is accessed.
    6. Mobile Device” means a smartphone, tablet, or other mobile computing device on which the Application is installable or installed.
    7. Services” means a web-based software platform with interactive tools to record symptoms, medication compliance and other health aspects reported by the end users, and support provided by health navigators and registered nurses.
    8. MHMH Data” means all information, including, but not limited to, data, analyses, measurements, reports, trends, and metrics, generated from, derived from, based on or related to End User Data.
    9. Website” means the website accessible at www.imaginecare.com or via the Application.
  2. License Grant.
    1. MHMH, through the Application, provides the Services to end users and their healthcare providers. Subject to your compliance with the terms of this Agreement, MHMH grants you a personal, limited, terminable, non-exclusive, non-transferable license to:
      1. download, install, and use the Application for your personal, non-commercial use on your Mobile Device strictly in accordance with the Application’s documentation; and
      2. access and use on such Mobile Device the Services made available in or otherwise accessible through the Application, strictly in accordance with this Agreement.
  3. License Restrictions.
    1. You shall not:
      1. copy the Application;
      2. modify, translate, adapt or otherwise create derivative works or improvements, of the Application;
      3. reverse engineer, disassemble, decompile, decode or otherwise attempt to derive or gain access to the source code of the Application, the Services or any part thereof;
      4. remove, delete, alter or obscure any trademarks or any copyright, trademark, patent or other intellectual property or proprietary rights notices from the Application or Services;
      5. rent, lease, lend, sell, sublicense, assign, distribute, publish, publicly perform or display, transfer or otherwise make available the Application or Services or any features or functionality of the Application or Services, to any third party for any reason, including by making the Application or Services available on a network where it is capable of being accessed by more than one device at any time;
      6. remove, disable, circumvent or otherwise create or implement any workaround to any copy protection, rights management or security features in or protecting the Application; or,
      7. upload or introduce any virus or malware to the Services.
    2. You are responsible for keeping your account login credentials (user name and password) confidential and not sharing them with unauthorized users. If you disclose your login credentials to someone, you are responsible for any use, disclosure, additions, deletions and modifications of your End User Data.
  4. Reservation of Rights. You acknowledge and agree that the Application is provided under license, and not sold, to you. You do not acquire any ownership interest in the Application under this Agreement or any other rights thereto other than to use the Application in accordance with the license granted, and subject to all terms, conditions and restrictions, under this Agreement. MHMH and its licensors and service providers reserve and shall retain each of their entire right, title and interest in and to the Application and Services. All rights not specifically granted in this Agreement are reserved by MHMH. MHMH shall own all rights in any functionality, features, modification or customization of the Application.
  5. Collection and Use of Your Information. You acknowledge that when you download, install or use the Application, MHMH may use automatic means (including, for example, cookies and web beacons) to collect information about your Mobile Device and about you or your use of the Application (which is included in the definition of End User Data). You also may be required to provide certain information about yourself as a condition to downloading, installing, or using the Application or certain of its features or functionality. You agree that you will provide true, accurate, current and complete information about yourself, your current medical information and providers, if you have any, and notify MHMH of any changes to such information as necessary. Providing information that is untrue, inaccurate, or incomplete is a violation of the terms and conditions of this Agreement. The Application provides you with opportunities to share information about yourself with others, including a designated health care provider. All information MHMH collects through or in connection with this Application and your use thereof is subject to the ImagineCare Privacy Policy, which is located at www.imaginecare.com/privacy and which may be updated from time to time without notice (“Privacy Policy”). By downloading, installing, using, and providing information to or through this Application, you consent to all use and actions taken by us with respect to your information pursuant to the Privacy Policy. You also consent to any transfer, sale, assignment, conveyance or license by MHMH of your End User Data.
  6. Ownership and Use of Data. All ownership rights in and to the Application shall remain exclusively with MHMH and its licensors, as applicable. Access to the Services is provided to you only to allow you to exercise your rights under this Agreement, and no implied license or right not expressly set forth in this Agreement is granted to you.
    1. End User Data. In connection with the Application, MHMH may collect and maintain End User Data provided by you. You shall own all End User Data. MHMH shall maintain all personally identifiable aspects of all End User Data as confidential pursuant to the Privacy Policy. All third parties authorized by MHMH which may have access to the End User Data shall be under obligations of confidentiality to maintain the End User Data as confidential pursuant to the Privacy Policy. You agree to and do hereby grant to MHMH the irrevocable, perpetual, transferrable right to use, disclose, commercialize, assign, convey, sell, lease, license or transfer any Deidentified End User Data. You agree to and do hereby grant MHMH the perpetual, irrevocable, sublicensable, and transferrable right to grant MHMH and the Customer and their care managers the right to access and view your End User Data, to the extent permitted by law and regulation.
    2. MHMH Data. All MHMH Data is the sole property of MHMH. MHMH has the right to use, collect, store, create, aggregate, mine, analyze, modify, commercialize, assign, convey, sell, lease, license or transfer MHMH Data in any form, for any purpose and in any manner. Any MHMH Data provided to you shall be subject to limitations and restrictions imposed by MHMH’s Privacy Policy and other commercial agreements to which MHMH may be a party.
  7. Geographic Restrictions. The Application and access to MHMH’s Services are provided for access and use only by persons located in the United States. You acknowledge that you may not be able to access all or some of the Services outside of the United States and that access thereto may not be legal by certain persons or in certain countries. If you access the Services from outside the United States, you are responsible for compliance with local laws.
  8. Updates. MHMH may from time to time in its sole discretion develop and provide Application updates, which may include upgrades, bug fixes, patches and other error corrections and/or new features (collectively, including related documentation, “Updates”). Updates may also modify or delete in their entirety certain features and functionality. You agree that MHMH has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality. Based on your Mobile Device settings, when your Mobile Device is connected to the Internet either:
    1. the Application will automatically download and install all available Updates; or
    2. you may receive notice of or be prompted to download and install available Updates.
  9. In order to be able to fully utilize the Application, you must promptly download and install all Updates. You acknowledge that the Application or portions thereof may not properly operate should you fail to do so. You further agree that all Updates will be deemed part of the Application and be subject to all terms and conditions of this Agreement.
  10. Third Party Materials. The Application may display, include or make available third-party content (including data, information, applications and other products services and/or materials) or provide links to third-party websites or services, including through third-party advertising (“Third Party Materials”). You acknowledge and agree that MHMH is not responsible for Third Party Materials, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect thereof. MHMH does not assume and will not have any liability or responsibility to you or any other person or entity for any Third Party Materials. Third Party Materials and links thereto are provided solely as a convenience to you and you access and use them entirely at your own risk and subject to such third parties’ terms and conditions.
  11. Term and Termination.
    1. The term of Agreement commences when you download/install the Application or acknowledge your acceptance, and will continue in effect until terminated by you or MHMH as set forth in herein.
    2. You may terminate this Agreement by deleting the Application and all copies thereof from your Mobile Device.
    3. MHMH may terminate this Agreement at any time without notice if it ceases to support the Application generally or for you in particular, which MHMH may do in its sole discretion. In addition, MHMH may immediately terminate this Agreement with or without any notice if you violate any of the terms and conditions of this Agreement.
    4. Upon termination:
      1. all rights granted to you under this Agreement will also terminate;
      2. you must cease all use of the Application and delete all copies of the Application from your Mobile Device; and
      3. your access to MHMH’s Services, your account and your End User Data will be terminated.
    5. Termination will not limit any of MHMH’s rights or remedies at law or in equity.
  12. Disclaimer of Warranties.
    1. THE APPLICATION IS PROVIDED TO YOU “AS IS, AS AVAILABLE” AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, MHMH, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE APPLICATION, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, MHMH PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE APPLICATION WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR FREE OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
    2. WITHOUT LIMITING THE FOREGOING, NEITHER MHMH NOR ANY MHMH PROVIDER MAKES ANY REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED: (I) AS TO THE OPERATION OR AVAILABILITY OF THE MHMH APPLICATION, OR THE INFORMATION, CONTENT, THE MHMH SOFTWARE, SERVICES, AND MATERIALS OR PRODUCTS INCLUDED THEREIN; (II) THAT THE MHMH APPLICATION OR SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE; (III) AS TO THE ACCURACY, RELIABILITY, OR CURRENCY OF ANY INFORMATION OR CONTENT PROVIDED THROUGH THE MHMH APPLICATION OR SERVICES; OR (IV) THAT THE MHMH APPLICATION, SERVICES, ITS SERVERS, THE CONTENT, OR E-MAILS SENT FROM OR ON BEHALF OF MHMH ARE FREE OF VIRUSES, SCRIPTS, TROJAN HORSES, WORMS, MALWARE, TIMEBOMBS OR OTHER HARMFUL COMPONENTS.
    3. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATIONS ON IMPLIED WARRANTIES OR THE LIMITATIONS ON THE APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.
    4. You agree that MHMH assumes no responsibility for any content you submit, upload, create or make available through the Application.
    5. MHMH is not liable for the acts or omissions of its contractors, vendors and service providers.
  13. Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL MHMH OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, HAVE ANY LIABILITY ARISING FROM OR RELATED TO YOUR USE OF OR INABILITY TO USE THE APPLICATION OR THE CONTENT AND SERVICES FOR:
    1. PERSONAL INJURY, PROPERTY DAMAGE, LOST PROFITS, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OR CORRUPTION DATA, LOSS OF GOODWILL, BUSINESS INTERRUPTION, COMPUTER FAILURE OR MALFUNCTION OR ANY OTHER CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES;
    2. DIRECT DAMAGES IN AMOUNTS THAT IN THE AGGREGATE EXCEED THE GREATER OF (i) THE AMOUNT ACTUALLY PAID BY YOU FOR THE APPLICATION AND (ii) ONE HUNDRED DOLLARS (U.S.). THE FOREGOING LIMITATIONS WILL APPLY WHETHER SUCH DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR MHMH WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY SO SOME OR ALL OF THE ABOVE LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU.
    3. MHMH DOES NOT GUARANTEE THE CONTINUOUS, UNINTERRUPTED OR SECURE ACCESS TO THE MHMH APPLICATION, MHMH SERVICES, OR ANY RELATED SERVICES. THE OPERATION OF THE MHMH APPLICATION MAY BE INTERFERED WITH BY NUMEROUS FACTORS OUTSIDE THE CONTROL OF MHMH.
    4. UNDER NO CIRCUMSTANCES SHALL MHMH BE LIABLE FOR ANY DAMAGES THAT RESULT FROM THE USE OF OR INABILITY TO USE THE MHMH APPLICATION, INCLUDING BUT NOT LIMITED TO RELIANCE BY YOU ON ANY INFORMATION OBTAINED FROM THE MHMH APPLICATION OR THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES OR E-MAIL, ERRORS, DEFECTS, VIRUSES, DELAYS IN OPERATION OR TRANSMISSION, OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT RESULTING FROM ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION, OR UNAUTHORIZED ACCESS TO MHMH RECORDS, PROGRAMS, OR SERVICES. USER HEREBY ACKNOWLEDGES THAT THIS PARAGRAPH SHALL APPLY TO ALL CONTENT, DATA, AND INFORMATION SUBMITTED THROUGH THE APPLICATION AND YOU TO THE MHMH SERVICES AVAILABLE THROUGH THE APPLICATION.
  14. Indemnification. You agree to indemnify, defend and hold harmless MHMH, its affiliates and its and their officers, directors, employees, agents, service providers, successors and assigns from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees, arising from or relating to the Services, your use or misuse of the Application or your breach of this Agreement.
  15. Governing Law. This Agreement is governed by and construed in accordance with the internal laws of the State of New Hampshire without giving effect to any choice or conflict of law provision or rule. Any legal suit, action or proceeding arising out of or related to this Agreement or the Application shall be instituted exclusively in the federal courts of the United States or the courts of the State of New Hampshire in each case located in Grafton County. You waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts.
  16. Limitation of Time to File Claims. ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE APPLICATION MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
  17. Notices. You agree that MHMH may send to you in electronic form any privacy or other notices, disclosures, reports, documents, communications or other records regarding the Services (collectively, “Notices”). MHMH can send you electronic Notices (i) to the e-mail address that you provide to MHMH during registration, or (ii) by posting the Notice on the Application or otherwise through the Website. The delivery of any Notice from MHMH is effective when sent by MHMH, regardless of whether you read the Notice when you receive it or whether you actually receive the delivery. You can withdraw your consent to receive Notices electronically by cancelling or discontinuing your use of the Services.
  18. Entire Agreement. This Agreement constitutes the entire agreement between you and MHMH with respect to the Application and the use of the Services and supersede all prior or contemporaneous understandings and agreements, whether written or oral, with respect thereto. No failure to exercise, and no delay in exercising, on the part of either party, any right or any power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or power hereunder preclude further exercise of that or any other right hereunder. In the event of a conflict between this Agreement and any applicable purchase or other terms, the terms of this Agreement shall govern. If any provision of this Agreement is illegal or unenforceable under applicable law, the remainder of the provision will be amended to achieve as closely as possible the effect of the original term and all other provisions of this Agreement will continue in full force and effect.