Terms of Service
Terms of Service
IMPORTANT—PLEASE READ CAREFULLY: This Terms ofService Agreement (“Agreement”) is a legal contract between You and SwayMedical, Inc., (“Sway”) that covers your use of the Sway Application, whichincludes computer software and, as applicable, associated media, databases,printed materials, “online” or electronic documentation and Sway’s website (collectivelythe “Software“).
BY INSTALLING OR OTHERWISE USING THE SOFTWARE, YOU AGREE TOBE BOUND BY THE TERMS OF THIS AGREEMENT AND ANY ADDITIONAL TERMS FOUND ON swaymedical.com/terms and www.swaymedical.com/privacy-policy INCLUDING THE WARRANTY DISCLAIMERS,LIMITATIONS OF LIABILITY AND TERMINATION PROVISIONS BELOW.
IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT AND/ORTHE ADDITIONAL TERMS, DO NOT INSTALL OR USE THE SOFTWARE, AND EXIT NOW.
IF YOU ARE NOT WILLING OR UNABLE TO ACCEPT THESE TERMS ANDCONDITIONS, YOU SHOULD CLICK THE “DISAGREE” BUTTON BELOW. IF YOU DO NOTACCEPT THESE TERMS YOU WILL NOT BE GRANTED ACCESS TO USE THE SOFTWARE OR SWAY’SWEB SITE (swaymedical.com, or the“SITE”).USE OF THE SOFTWARE WITHOUT SIGNIFYING YOUR AGREEMENT TO THESE TERMS INTHE MANNER INDICATED ABOVE IS STRICTLY PROHIBITED.
In the event that there is any conflict between the termsof this Agreement and the terms of a written agreement between You and Sway,the terms of the written agreement shall control.
ADDITIONAL TERMS
This Agreement, together with the Additional Terms, as theymight change from time-to-time, shall constitute the entire agreement(collectively the Agreement).
NOT MEDICAL ADVICE
The Software and the Site, including any data collectedwhile using the Software, the results and analyses thereof, and materialsappearing on the Site, are provided to You for informational purposes only anddo not constitute medical advice. If You believe You or Your test subjecthave suffered a concussion or are affected by some other medical condition,whether or not the Software test results support this belief, You shouldimmediately stop using the Software and seek professional medical advice or consultwith a qualified medical professional.
DISCLAIMER OF WARRANTIES
THE SOFTWARE AND THE SITE ARE COPYRIGHTED AND LICENSED (NOTSOLD). THIS AGREEMENT REPRESENTS THE ENTIRE AGREEMENT CONCERNING THESOFTWARE BETWEEN YOU AND SWAY, AND IT SUPERSEDES ANY PRIOR PROPOSAL,REPRESENTATION, OR UNDERSTANDING BETWEEN THE PARTIES.
THE SOFTWARE IS LICENSED “WHERE IS” AND “AS IS,” AND SWAY DISCLAIMSANY AND ALL WARRANTIES TO THE EXTENT PERMITTED BY LAW, WHETHER EXPRESS ORIMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES AS TO THE ACCURACY,RELIABILITY, COMPLETENESS, OR CORRECTNESS OF THE SOFTWARE, AND OF ANY TESTRESULTS.
TO THE EXTENT PERMITTED BY LAW, SWAY DISCLAIMS, AMONGOTHERS, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULARPURPOSE, AND ALL WARRANTIES ARISING FORM COURSE OF DEALING OR USAGE OF TRADE.
YOU ACKNOWLEDGE THAT THERE ARE RISKS INHERENT IN THE USE OFTHE SOFTWARE, HARDWARE AND INTERNET CONNECTIVITY THAT MAY RESULT ININTERRUPTIONS OR ERRORS IN THE SERVICE, LOSS OF PRIVACY, CONFIDENTIALITY,INFORMATION OR PROPERTY, AS WELL AS OTHER LOSSES, DAMAGES OR ADVERSEOCCURRENCES, REGARDLESS OF THE MEASURES TAKEN TO AVOID SUCH OCCURRENCES.
IN NO EVENT WILL SWAY BE LIABLE TO YOU OR ANY THIRD PARTYIN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, FOR ANY INDIRECT, INCIDENTAL,SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OF ORINABILITY TO USE THE SOFTWARE, INACCURATE OR INCOMPLETE TEST RESULTS, LOSTPROFITS OR DAMAGES EXTENDING FROM THE LOSS OR CORRUPTION OF DATA, AND CLAIMSRELATED TO TEST RESULTS, EVEN IF SWAY HAS BEEN ADVISED OF THE POSSIBILITY OFSUCH DAMAGES. SOME STATES DO NOT ALLOW THE LIMITATION OREXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVELIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
LICENSE GRANT
Upon execution of an order form or entry into a similarcontractual arrangement signed by You and by Sway (“Order Form”, hereinafter),Sway hereby grants to You, and You accept, a limited nonexclusive andnontransferable personal right and license to use the Software, without a rightto sublicense, during the term set out in the Order Form and according to theterms set out herein and in the Order Form (collectively, the “License”). This includes the right to install the Sway Mobile Application on user devicesand use same solely according to the Permitted Purposes. The license grantedextends only to use of the Software in connection with services offered by Sway. All other uses are strictly prohibited.
“Permitted Purposes” means the use by a User, in accordancewith the Documentation and the terms of this Agreement (including anyapplicable usage limits set forth in the Order Form) of the Sway Software, inobject code form only, solely for Customer’s own internal business purposes.
An “Authorized User” is an employee, agent, contractor,service provider, or other party contractually bound to You who is a qualifiedmedical professional, and has been trained in the use of the Sway Softwareoperating it with Your permission. Youagree that you are directly responsible and fully liable for any actions takenby an Authorized User when using the Software.
The Software may only be used by an authorized User. Use by an individual other than an authorized User is not permittedwithout separate authorization from Sway.
Sway reserves the right to refuse service, terminate anAuthorized User’s or Your account, remove or edit content, or cancel logins inits sole and absolute discretion.
Unless otherwise agreed to by the parties, the License shallalso extend to any future upgrades, updates, or revisions of the Softwareprovided by Sway to You.
SWAY’S RIGHTS
You acknowledge and agree that the Software is theproprietary property of Sway and is protected under copyright and / or patentlaw both in the U.S. and in countries foreign thereto. You furtheracknowledge and agree that all right, title, and interest in and to theSoftware, including intellectual property rights associated therewith, are andshall remain with Sway. This Agreement does not convey to You an interestin or to the Software, but only a limited right of use revocable in accordancewith the terms of this Agreement.
RIGHTS TO DATA
You and Sway acknowledge that each Party has certainobligations under the Health Insurance Portability and Accountability Act of1996 (“HIPAA”), as amended, including those provisions of the American Recoveryand Reinvestment Act of 2009 (“ARRA”), and the regulations implementing therequirements to maintain privacy and security of Protected Health Information(“PHI”) and Personally Identifiable Information (“PII”) found at 45 C.F.R. Parts 160,162, and 164 (“HIPAARegulations”). Additionally, certain Profile Data may be subject to the FamilyEducational Rights and Privacy Act (FERPA), which governs the privacy ofstudent education records. You and Sway acknowledge that obligations under thisAgreement may require compliance with FERPA statutes, depending on the natureof the data involved.
Certain information and data that is obtained from a testsubject before and/or during tests performed using the Software is transmittedto Sway over the Internet and stored in its computers (the “Profile Data”).Profile Data consists of measured or acquired data associated with a specificindividual. Profile Data may contain PHI or PII and is the exclusive propertyof Sway. Sway shall not use PHI or PII of a subject except in furtherance ofthis Agreement.
De-Identified Information or De-Identified Data means anyde-identification of PII or PHI of Profile Data that is completed pursuant tothe Safe Harbor method set forth in 45 C.F.R. Section 164.514(b)(2). De-Identified Data does not and will notcontain or comprise PHI or PII.
Sway is free to use for any purpose measured or acquired De-IdentifiedData collected by You. That is data thathas been (i) collected pursuant to this Agreement and (ii) that is not tied to Youor to a particular user, person, or customer, or has otherwise beende-identified. Sway may, at its sole discretion, share anonymous aggregatestatistical or numerical data with third parties. Sway may not share PII or PHIwith third parties without consent of the You or the individual whose data isbeing shared.
DATA OF MINOR CHILDREN
According to 42 USC 619(2), a minor child is an individualwho is under the age of 18 or who is under age 19 and is enrolled full-time asa student in secondary school (or an equivalent vocational or technicalschool). Sway does not knowingly collector solicit personal information from a minor child or knowingly allow such a personto register to utilize the Software.
You recognize and acknowledge that Sway has no control overthe individuals that You choose to test using the Software. If You collect data from a minor child, You herebygive Sway Your consent on behalf of the parents or other adult responsible forsaid minor child to receive and store during the Term PII and/or PHI from thatminor child collected by the Software pursuant to the terms of the License.Where such data is subject to FERPA, You additionally confirm that You haveobtained all necessary consents or authorizations required under FERPA topermit Sway to receive and store such data.
YOUR ACCOUNT
You may be given an account and/or password that grants Youaccess to the Software and/or additional features accessible through the Site. You are responsible for maintaining the confidentiality of Your accountor password. You may not transfer this account or the License grantedhereunder to a third party without prior written consent of Sway. Youagree to accept full responsibility for all activities that occur under youraccount or password. Sway reserves the right to refuse service, terminateaccounts, remove or edit content, in its sole discretion.
RESTRICTIONS
You agree that You may not modify, adapt, translate, reverseengineer, or create derivative works based upon the Software or any partthereof or assist others in doing same. You also agree that You may notreverse assemble, reverse compile, or otherwise translate the Software or anyportion thereof or assist others in doing same.
You further agree that You will not assign, sublicense,transfer, pledge, lease, rent, loan, or share your rights under this Agreement.
You still further agree that You may not use the Softwarefor the direct benefit of, or for purpose of rendering services to, any thirdparty business entities or organizations.
AMENDMENTS TO THE AGREEMENT
Sway may amend this Agreement at any time by posting theamended terms on the Site at swaymedical.com/terms. Except as stated elsewhere, all amended terms shall automatically beeffective 30 days after they are initially posted. Additionally, we willendeavor to notify You of any such change using the contact information thatYou provided to us when You register on the site.
ADDITIONAL TERMS
TERM
License is effective upon your acceptance of its terms andconditions and your successful activation of the Software with Sway, and shallcontinue until terminated. Either party may terminate the License at anytime upon thirty (30) days advance written notice to the other party. Swaymay terminate the License with or without notice to You at any time and for anyreason.
DISPUTE RESOLUTION
This Agreement and the License shall be governed in allrespects by the laws of the State of Oklahoma as they apply to agreementsentered into and to be performed entirely within Oklahoma between Oklahomaresidents, without regard to conflict of law provisions. You agree that anyclaim or dispute You may have against Sway must be resolved by a court locatedin Tulsa County, Oklahoma, except as otherwise agreed by the parties. You agreeto submit to the personal jurisdiction of the courts located within TulsaCounty, Oklahoma, for the purpose of litigating all such claims or disputes.
NO AGENCY
No agency, partnership, joint venture, employee-employer orfranchiser-franchisee relationship is intended or created by this Agreement.
AMENDMENTS TO THE AGREEMENT
Sway may amend this Agreement at any time by posting theamended terms on the Site at swaymedical.com/terms. Except as stated elsewhere, all amended terms shall automatically beeffective 30 days after they are initially posted. Additionally, we willendeavor to notify You of any such change using the contact information thatYou provided to us when You register on the site.
This Agreement may not be otherwise amended except in awriting signed by You and Sway. This Agreement sets forth the entireunderstanding and agreement between us with respect to the subject matterhereof. The following Sections survive any termination of this Agreement:Disclaimers, Release, Liability, Indemnity, Restrictions, Dispute Resolution,and Proprietary Information.
LIMITATION OF LIABILITY
Sway’s cumulative liability to You or any other party forany loss or damages resulting from any claims, demands, or actions arising outof or relating to this Agreement or the Software shall not exceed the licensefee paid to Sway for the use of the Software and Site, if any.
Under no circumstances shall Sway be responsible for usererror including, but not limited to, erroneous data input, misuse of theSoftware or Site, incorrect interpretation of data or missing data. Sway shalladditionally not be responsible for errors in the transmission or storage ofyour data that are beyond its control or supervision.
PRIVACY POLICY
When You create your login as a prerequisite to using theSoftware and the Site, Sway will ask You to provide certain personalinformation which will be stored and retained by Sway. Additionally,certain information and data that is obtained before and/or during testsperformed using the Software may be transmitted to Sway and stored. Allinformation and data collected by Sway is owned and used by Sway and Sway reservesthe right to use the information and data for any internal purpose.
Information that is collected in aggregate is informationthat is not tied to You or to any particular person. This sort ofinformation is primarily used for internal purposes in evaluating and improvingthe effectiveness of the Software and the databases it utilizes. Sway may, atits sole discretion, share this aggregate information with third parties.
Sway uses the information that You provide for purposes suchas responding to your requests, improving our products, helping us serve youbetter, and communicating with you.
Sway will not share Your personal information with any thirdparty without your prior permission, except in response to an order from acourt of competent jurisdiction or in similar circumstances. Sway may useyour e-mail and physical addresses to send information to you that we thinkmight be of interest to you.
Sway will not sell, rent, swap or authorize any third partyto use the information or data in a way that personally identifies You withoutyour permission. Additional aspects of Sway’s privacy policy may be foundat www.swaymedical.com/privacy,which are made a party of and incorporated into this document as if fully setout at this point.
PROPRIETARY INFORMATION
The Software and all information and materials relatedthereto constitute proprietary information and trade secrets of Sway. Youshall use your best efforts to insure the confidentiality of the Software andall related materials and information supplied by Sway.
You warrant that You will not disclose, use, modify, copy,or reproduce the Software or any of the information or materials supplied by Swayexcept in accordance with this Agreement or after first obtaining the writtenpermission of Sway.
You specifically agree to prevent your employees, agents,attorneys and representatives, if any, from disclosing such proprietaryinformation and shall hold Sway harmless and protect and indemnify Sway in theevent of any disclosure by such persons.
The non-disclosure provisions of this section shall continuebeyond the term of the contract and shall be binding and enforceable even aftertermination of this Agreement.
INDEMNITY
You agree that to the extent permitted the laws of Yourstate You will indemnify and hold Sway (including our officers, directors,agents, subsidiaries, joint ventures and employees), harmless from any claim ordemand, including reasonable attorneys’ fees, made by any third party due to orarising out of your breach of this Agreement, or Your violation of any law orthe rights of a third party using the Software. If your state prohibits your organization from offering any sort of indemnityin connection with this agreement, this provision is null and void.
Subject to the limitation below, Sway agrees to defend,indemnify, and hold You, and your officers, directors, agents, and employees,harmless against all costs, expenses, and losses (including reasonable attorneyfees and costs) incurred through claims of third parties against You based onany third-party claim for infringement of Sway’s intellectual property rightsbased on Your use of the Sway’s Software. In the event of any such action,suit, or proceeding, You agree to promptly notify Sway of the claim, and toprovide Sway with all reasonable authority and assistance required by Sway forthe defense and settlement of such claim. In such event, Sway will have theoption, at its expense, to defend or settle such claim.
UNDER NO CIRCUMSTANCE SHALL SWAY’S LIABILITY UNDER THISAGREEMENT FOR ANY REASON EXCEED THE AMOUNT THAT SWAY HAS BEEN PAID BY YOU UNDERTHIS AGREEMENT AT THE TIME THE CLAIM IS MADE. EXCEPT AS OTHERWISE PROVIDED BYAPPLICABLE LAW, NO CLAIM REGARDLESS OF FORM, ARISING OUT OF OR IN CONNECTIONWITH THIS AGREEMENT MAY BE BROUGHT BY YOU MORE THAN TWO (2) YEARS AFTER THECAUSE OF ACTION HAS OCCURRED.
The rights to indemnification provided herein shallconstitute the exclusive remedy of You and Sway with respect to matters in anyway relating to third-party claims for infringement arising in connectionherewith, whether under any laws, at common law or otherwise.
IN NO CASEWILL SWAY BE LIABLE FOR ANY CONSEQUENTIAL OR INCIDENTAL DAMAGES OR FOR ANY LOSTPROFITS OR LOST REVENUES.
TRADEMARKS
SWAY™, SWAY BALANCE™, and SWAY MEDICAL™, SWAY SPORTS™ andadditional trademarks identified at swaymedical.com aretrademarks of Sway. All rights reserved. No right, license, orinterest to such trademarks are granted hereunder, and You agree that no suchright, license, or interest shall be asserted by You with respect to suchtrademarks.
GOVERNING LAW
This Agreement shall be construed and governed in accordancewith the laws of the State of Oklahoma, without regard to the choice of lawprovisions of that state, and all actions, regardless of the form or nature ofsuch, to enforce this license or for the breach of same shall be brought withinon (1) year from the occurrence of the grounds for such action in either stateor federal court in Tulsa County, Oklahoma.
COSTS OF LITIGATION
If any action is brought by either party to this Agreementagainst the other party regarding the subject matter hereof, the prevailingparty shall be entitled to recover, in addition to any other relief granted,reasonable attorney fees and expenses of litigation.
SEVERABILITY
Should any term of this Agreement be declared void orunenforceable by any court of competent jurisdiction, such declaration shallhave no effect on the remaining terms hereof.
NO WAIVER
The failure of either party to enforce any rights grantedhereunder or to take action against the other party in the event of any breachhereunder shall not be deemed a waiver by that party as to subsequentenforcement of rights or subsequent actions in the event of future breaches.
It is specifically agreed that the breach of this Agreement,and in particular the section concerning non-disclosure of proprietaryinformation, will result in irreparable injury and the party who claims such abreach shall be entitled to specific performance and injunctive relief tocorrect and enjoin such breach in addition to all other remedies which might beavailable.
CANCELLATION/REFUND POLICY
If you are not satisfied with any Sway product purchaseddirectly from Sway (swaymedical.com),contact support@swaymedical.com within30 days of your purchase to inquire about a refund or to cancel your account. Refunds requested more than 30 days following a purchase will not beissued.
The Sway refund policy applies only to accounts purchasedthrough swaymedical.com ordirectly from the Sway Medical sales team. If you purchased Sway througha third party, any request for cancellation or refund must be made through thethird party from which it was purchased.