USER TERMS & CONDITIONS OF SERVICE

Freespira, Inc.

 

THE FREESPIRA SYSTEM (SYSTEM) AND TREATMENT IS AVAILABLE FOR USE ONLY BY OR ON THE ORDER OF A LICENSED HEALTHCARE PROVIDER IN THE UNITED STATES OF AMERICA (USA). THE FREESPIRA APPLICATION (“APP”) IS INTENDED TO ONLY DISPLAY, STORE AND TRANSMIT RESPIRATORY RATE (RR) AND EXHALED CARBON DIOXIDE (CO2) DATA. THE SYSTEM, THE APP AND ANY ASSOCIATED WEBSITE (“WEBSITE”) ARE NOT INTENDED ALONE OR IN COMBINATION TO DIAGNOSE ANY CONDITION OR AUTOMATICALLY ALERT HEALTHCARE PROVIDERS OR PATIENTS TO ANY ABNORMAL CONDITIONS. DATA IS NOT TRANSMITTED IN REAL-TIME. FREESPIRA, INC. DOES NOT AUTOMATICALLY REVIEW, MONITOR, EVALUATE OR ANALYZE ANY INFORMATION GENERATED FROM THE APP. IT IS YOUR RESPONSIBILITY TO REVIEW YOUR DATA WITH YOUR HEALTH CARE PROVIDER.

 

 

Upon confirmation of acceptance of these User Terms & Conditions of Service (“Terms”) or by otherwise accessing or using the System or the App you, the user, understand and agree as follows:

 

1.     TERMS. 

You understand and agree that you are utilizing Freespira solely pursuant to a healthcare provider’s authorization for a course of treatment that includes using Freespira.

By participating in the Freespira program, you hereby authorize Freespira, Inc. to charge your credit card at the start of the rental for all self-pay rental charges or a best estimate of your co-insurance plus deductible contribution.

When you participate in the Freespira program, once your treatment is complete, you must ship all equipment back (per directions). When the system is received data stored on the tablet will be uploaded to a secure website, which is accessible by Freespira, Inc. and your health care provider, if they choose. Only RR and ETCO2 information is uploaded. The system will then be cleared and reset.

If Freespira, Inc.is unable to charge your credit card, Freespira, Inc. will bill you directly and may retain a collection agency or utilize any and all other legal or equitable remedies available to secure payment.

Unless otherwise covered by your insurance plan or another 3rd party, we reserve the right to collect the full cost of the unit or any repair costs (the patient can inquire about the costs associated with Freespira, Inc. directly), in the event the unit is damaged or not returned.

 

2.     WARRANTY.  

Should Freespira (including all parts and accessories) be damaged upon delivery, cease to operate, or otherwise malfunction during the rental period, Freespira, Inc. shall provide the user with a no-charge replacement part, accessory or complete system.

 

3.     LIMITED RIGHT OF CANCELLATION. 

If you elect not to use the System, you must cancel your order prior to commencing sessions at home. Once you commence sessions at home you will not be entitled to receive a refund for cancellation.

 

4.     LICENSE.

Freespira, Inc. hereby grants you a nonexclusive, non-transferable, time-limited license to use the App, Freespira, Inc.’s proprietary software application, resident on the tablet. Your limited rights do not confer any ownership of the App or the System and nothing herein will be construed as a sale of the App and/or the System to you. You may not reverse engineer, disassemble or decompile the App, Freespira, Inc. retains all right, title and interest in and to the App and the System. The App runs on a tablet computer, which is part of the System. You may use the App including any data presented on or by the App on the tablet, or otherwise hosted or stored by Freespira, Inc. for you, only on your own behalf and for lawful and appropriate purposes. You shall not use the App, or any of the data presented on or by the App or stored by Freespira, Inc., for any commercial purpose other than as expressly permitted herein. You will notify Freespira, Inc. immediately upon any suspected unauthorized use of the App. It is your responsibility to present your data to your therapist and to discuss it with your therapist.

 

5.     NOT MEDICAL ADVICE.

Freespira, Inc. does not offer medical advice via the System or otherwise. You should consult your healthcare provider if you have any questions about your condition before commencing, changing or discontinuing use of the System or your individual treatment program. You should not ignore or delay obtaining professional advice in connection with any data generated via the System.

 

6.     OWNERSHIP OF THE APP AND RELATED DATA.

Freespira, Inc. owns and will retain ownership of all rights, title and interest in and to the App, the tablet and the associated website, including (1) all content displayed on the App or the website, to the extent such content is developed by Freespira, Inc. or its third party licensors, including any derivative works of the App or website and any such content; (2) any data presented on or by the App or website or otherwise stored by Freespira, Inc. and its third party providers, except for personal information, that you submit to Freespira, Inc. during the treatment period; and (3) any intellectual property or other proprietary rights comprising any of the foregoing (collectively, “Freespira, Inc. IP”). Neither these Terms nor any disclosure made hereunder grant any license to you under any Freespira, Inc. IP.

 

7.     DISCLAIMER.

EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THESE TERMS, FREESPIRA, INC. MAKES NO REPRESENTATIONS, COVENANTS OR WARRANTIES AND OFFERS NO OTHER CONDITIONS, EXPRESS OR IMPLIED, REGARDING ANY MATTER, INCLUDING (1) THE MERCHANTABILITY, SUITABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, THERAPEUTIC EFFECTIVENESS, NON-INFRINGEMENT OR RESULTS TO BE DERIVED FROM THE USE OF THE SYSTEM, THE APP, WEBSITE OR ANY DATA SERVICE, SOFTWARE, HARDWARE, DELIVERABLE, WORK PRODUCT OR OTHER MATERIALS RELATED TO THE APP OR WEBSITE, OR THE AVAILABILITY OF ANY OF THE FOREGOING; OR (2) WHETHER THE INFORMATION AVAILABLE ON OR TRANSMITTED BY THE APP IS TRUE, COMPLETE OR ACCURATE. YOU SPECIFICALLY ACKNOWLEDGE AND AGREE THAT FREESPIRA, INC. IS NOT RESPONSIBLE FOR ANY HEALTHCARE OR RELATED DECISIONS MADE BY YOU OR YOUR HEALTHCARE PROVIDER BASED UPON DATA COLLECTED, TRANSMITTED OR DISPLAYED BY OR ON THE APP OR WEBSITE, WHETHER SUCH DATA IS ACCURATE OR INACCURATE. FURTHER, FREESPIRA, INC. DOES NOT REPRESENT, COVENANT OR WARRANT THAT ACCESS TO THE APP OR WEBSITE WILL BE UNINTERRUPTED OR ERROR-FREE. YOU ACKNOWLEDGE AND AGREE THAT THERE ARE RISKS INHERENT TO TRANSMITTING INFORMATION OVER AND STORING INFORMATION ON THE INTERNET AND THAT FREESPIRA, INC. IS NOT RESPONSIBLE FOR ANY LOSSES OF YOUR DATA, CONFIDENTIALITY OR PRIVACY IN CONNECTION THEREWITH.

 

8.     LIMITATION ON LIABILITY.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, FREESPIRA, INC. SHALL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RESULTING FROM YOUR USE OF THE APP, THE SYSTEM, OR THE WEBSITE OR BASED UPON ANY BREACH OF ANY EXPRESS OR IMPLIED WARRANTY, BREACH OF CONTRACT INCLUDING THESE TERMS AND ANY ADDITIONAL INSTRUCTIONS, GUIDELINES OR POLICIES ISSUED BY FREESPIRA, INC., INCLUDING THOSE POSTED IN THE APP OR USERS’ MANUAL, IF ANY, NEGLIGENCE, TORT OR ANY OTHER LEGAL THEORY (COLLECTIVELY, THE “EXCLUDED DAMAGES”). FOR THE AVOIDANCE OF DOUBT, THE EXCLUDED DAMAGES ALSO INCLUDE WITHOUT LIMITATION, LOSS OF SAVINGS OR REVENUE; LOSS OF PROFIT; LOSS OF USE; LOSS OF LIFE OR HEALTH, THE CLAIMS OF THIRD PARTIES; AND ANY COST OF ANY SUBSTITUTE EQUIPMENT OR SERVICES. IF FREESPIRA, INC. CANNOT LAWFULLY DISCLAIM LIABILITY FOR ANY OF THE FOREGOING DAMAGES, THEN FREESPIRA, INC. MAXIMUM LIABILITY TO YOU IS LIMITED TO THE PRICE PAID BY YOU TO FREESPIRA, INC. FOR THE RENTAL OF THE SYSTEM. THESE LIMITATIONS APPLY EVEN IF ANY OTHER REMEDIES AVAILABLE TO YOU FAIL OF THEIR ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.

 

9.     INDEMNIFICATION.

You will indemnify and hold harmless Freespira, Inc., its affiliates and their respective current, future or former officers, directors, partners, equity holders, employees, agents, contractors, and their successor or assigns (collectively, the “Freespira, Inc.”) on demand, from and against any and all fines, penalties, liabilities, losses and other damages of any kind whatsoever (including attorneys’ and experts’ fees), incurred by Freespira, Inc., and, if directed by Freespira, Inc., shall defend Freespira, Inc. against (1) all claims that any information, data or other materials provided by you in connection with your use of the App (including your rental of the System and App) or these Terms, or use thereof by Freespira, Inc, infringes, misappropriates or otherwise violates any patent, trademark, copyright, trade secret or other intellectual property or proprietary right of a third party; (2) all claims arising from fraud committed by, or the intentional misconduct, criminal acts or gross negligence of you; and (3) all claims otherwise arising due to a failure by you to comply with any term or condition of these Terms, including any additional instructions, guidelines or policies issued by Freespira, Inc., including those posted in the App or accompanying manuals, if any.

 

10.   DATA PRIVACY.

Freespira, Inc. will not share, sell, rent or trade your personally identifiable information (PII) with or to any third person or party. However, Freespira, Inc. may use your PII internally and may discuss such PII with your health care practitioner or provide your health care practitioner access to your PII.

Further, Freespira, Inc. reserves the right to use any information collected via the System that is anonymized and not personally identifiable, to improve the System, track trends concerning treatment effectiveness or for any other purpose. You hereby authorize Freespira, Inc. to exercise any and all of its rights hereunder. Freespira, Inc.’s privacy practices are further explained in the Privacy Notice, available by contacting privacy@pahealthsciences.com, which is incorporated into these Terms by reference.

 

11.   DISPUTES.

If a dispute arises under these Terms between you and Freespira, Inc. such dispute shall be resolved, at the filing party’s election, in either a small claims court or by final and binding arbitration administered by the National Arbitration Forum or the American Arbitration Association, under their rules for consumer arbitrations. All disputes in arbitration will be handled solely between the named parties, and not on any representative or class basis. ACCORDINGLY, YOU ACKNOWLEDGE THAT YOU MAY NOT HAVE ACCESS TO A COURT (OTHER THAN A SMALL CLAIMS COURT) OR JURY. At its option, Freespira, Inc. may seek all remedies available to it under law and in equity, including injunctive relief in the form of specific performance to enforce these Terms, including any additional instructions, guidelines or policies issued by Freespira, Inc., including those posted in the App or in the Users’ Manual, if any, and/or actions for damages. No action arising out of, in connection with, or relating to these Terms or the subject of these Terms shall be brought by you more than 6 months after the accrual of the cause of action. This period shall not be extended for any reason, except by the written consent of both parties. All statutes or provisions of law which would toll or otherwise affect the running of the period of limitation are hereby waived, and no such statute or provision of law shall operate to extend the period limited in this Section.

 

12.   YOUR REPRESENTATIONS.

You represent, covenant and warrant to Freespira, Inc. that (1) you have been authorized to use the System by a licensed healthcare practitioner; (2) you will use the App as intended; (3) these Terms have been accepted by you and constitute a valid and binding agreement between Freespira, Inc. and you, enforceable against you in accordance with their terms; (4) you will not access or use the App except as expressly permitted by these Terms and any additional instructions, guidelines or policies issued by Freespira, Inc., including those posted in the App or in the Users’ Manual, if any; (5) you will access and use the App in full compliance with applicable law; and (6) all of the information, data and other materials provided by you in support of your use of the System are accurate and truthful in all respects.

 

13.   MODIFICATIONS.

You acknowledge and agree that Freespira, Inc. may, in its sole discretion, modify the App and these Terms (including any instructions, policies or guidelines referenced herein) at any time and in any manner. If you don’t accept these Terms as revised, you may no longer have access to the System or App. You may not amend or modify the App or these Terms under any circumstances.

 

14.   TERMINTION.

Freespira, Inc. may suspend or limit your access to the System and/or App (1) if Freespira, Inc., in its sole discretion, suspects that you are in violation of, or reasonably likely to be in violation of, these Terms or any additional instructions, guidelines or policies issued by Freespira, Inc., including those posted in the App, the website, or Users’ Manual, if any; or (2) in order to comply with applicable law or instructions from any governmental agency or authority.

 

15.   MISCELLANEOUS.

These Terms will be governed and construed in accordance with the laws of the State of Washington, excluding its conflict of law rules. These Terms, together with any additional instructions, guidelines or policies issued by Freespira, Inc., including those posted in the App or on the Website or in any Users’ Manual or documentation accompanying the System, constitute the full and complete agreement and arrangement between Freespira, Inc. and you with respect to your use of the System and may not be modified, rescinded or waived except in writing signed by both Freespira, Inc. and you. If any provision of these Terms shall be held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired.

 

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