Last Revised: [1.10.17]
1. The Services: Device, App and Portal
The various Devices are intended to provide painless, invasive and/or non-invasive medical technology for the collection of various blood related measurements which may include, as more particularly described in the Operation Manual for each Device: TensorTip VSM, TensorTip MTX and TensorTip Glucometer other measurements as may be available in all or some of the Devices from time to time. Using Blue Tooth technology, information collected by your Device is transferred onto the App (a “Reading“). After each Reading the results will be further transmitted to the Portal. Guidelines for the use and maintenance of the Device are provided in the relevant Device Operation Manual. After purchase of the Device, the Services are available to registered Users who opened an Account as defined and described in Section 2 below.
The App is available to registered Users and may include the following features, among others:
Using the applicable mobile device’s blue tooth technology to receive information transmitted from the Device to the User’s mobile device;
Transmission of Reading results to the Portal;
Ability to authorize the Company to further share the Reading results with the User’s selected service providers for review and assessment of the information submitted.
The Portal is available to registered Users and may include the following features, among others
Obtaining statistics and analytics;
Obtain personal health guidelines and recommendations;
Receive therapist’s notes and instructions;
Selectively share data with anyone;
General notifications from the system to users.
Purchasing the Device
THE SERVICES DO NOT AND CANNOT REPLACE PROFESSIONAL MEDICAL ADVICE. THE SERVICES ARE NOT A REMOTE DIAGNOSTIC TOOL. ANY DECISION MADE OR ACTION TAKEN BY YOU BASED ON THE SERVICES OR ITS OUTPUTS ARE AT YOUR SOLE RESPONSIBILITY AND LIABILITY. NOTE: THE APP IS CURRENTLY IN ITS BETA VERSION AND IS UNDERGOING BETA TESTING. THEREFORE, THE APP MAY SUFFER DISRUPTIONS, MAY CONTAIN BUGS AND MAY NOT OPERATE AS DESIGNATED OR INTENDED. YOUR USE OF THE APP CONSTITUTES YOUR AGREEMENT TO PARTICIPATE IN THE APP BETA TESTING.
Please note that the App may only be available for certain operating systems or certain approved hardware (mobile device builds). The User may only download and use the App on a device running validly licensed copies of the operating systems on which the App was designed to operate. To be able to access and/or use the App, or any portion thereof, the User must legally obtain all the applicable or required facilities, utilities, software and equipment at his/her sole risk and expense. In addition, you hereby acknowledge and agree that you may be charged for Internet and data usage charges made through use of the Services, in accordance with the applicable rates charged by your respective third party Internet and data usage service provider as may occur from time to time. Cnoga will not be liable for any Internet and data usage charges which you may be charged by your respective third party Internet and data usage service providers.
The App and/or the Services provide you with additional resources such as text, files, logos, button icons, images, data compilations, links, other specialized content, technical data, documentation, including the Operation Manual, know-how, specifications materials, designs, data, the “look and feel“ of the App and/or the Services, algorithms, source and object code, interface, GUI, interactive features related graphics, illustrations, drawings, animations, and other features available on or through the App, Portal and/or Services (collectively, the “Content“).
ALL RIGHTS IN AND TO THE CONTENT AVAILABLE ON THE APP, THE PORTAL AND/OR THE SERVICES (OTHER THAN THE READINGS) IS RESERVED TO CNOGA OR ITS LICENSORS. TO THE EXTENT LEGALLY PERMISSIBLE, THE APP, THE PORTAL, THE SERVICES AND THE CONTENT AVAILABLE THEREIN ARE PROVIDED ON AN “AS IS” BASIS. CNOGA WILL NOT BE LIABLE FOR ANY DAMAGES OR LOSS INCURRED TO YOU OR ANY OTHER PERSON AS A RESULT OF OR IN CONNECTION WITH YOUR USE OF THE SERVICES, THE APP, THE PORTAL AND/OR THE CONTENT AVAILABLE THEREIN.
2. Purchase of Device on Portal
Users age 18 and up, are entitled to purchase the Device on the Portal. If you are under the age of 18 please read the provisions of Terms carefully and thoroughly with your parents (or other legal guardian). If you (or your parents or legal guardian) do not agree to the Terms, all or part, you are not entitled to use this Portal for any purpose.
The Company may decide to sell or not to sell the Device to any User, in accordance with its sole discretion for any reason.
Users interested in purchasing a Device on the Portal shall be asked to provide their full name, email address, telephone number, title, address for shipping the Device and credit card or PayPal details.
The User undertakes to provide true, accurate, correct and full information, as required in the registration form. In addition, the User undertakes to update the information it provided in the order form in order to keep it correct and accurate.
According to law the User is not obligated to provide the information in the registration form and the User is providing it at its own free will. Nevertheless, if the User does not provide the information in all required fields (marked with an asterisk) it shall not be able to participate in the purchasing of Devices via the Portal.
The Company undertakes to use its best efforts to maintain the information provided by the User and shall not use it in any manner save for the purposes specified in these TERMS.
Supply and Delivery of the Device shall be in accordance with the terms conveyed to the User by the Company directly via e-mail or telephone. The Company reserves the right to notify it is unable to supply the Device for any reason, and in such cases, the Company will promptly notify the User that it is canceling the transaction, and will issue the User a refund.
The prices that appear on the Portal do not include VAT. In any event that the User’s payment is unable to be processed by the credit card company or PayPal, the Company will promptly notify the User that it shall not be supplied the Device and User may be charged a cancellation fee.
All Users must register and create an account (“Account”) in order to use the App and Portal.
In connection with the registration to the Services, you will be required to set up a password. Once the password is set, you can login to the App and the Portal. Uses of the Portal may require your email and password. We reserve the right to change the method of connecting to the Account at any time.
You agree to keep your Account information up to date and accurate and not to misrepresent your identity. You may only use a single account in connection with your Devices. You may not use the accounts of others.
You are solely and fully responsible for maintaining the confidentiality of the password, and Account and for all activities that occur under your Account. You must notify us immediately of any unauthorized use of your Account, password or any other breach of security and in such events you must change your password immediately by (a) the settings of your Account (if applicable) or (b) sending us an email to email@example.com.
If you wish to change your phone, email address, or password and or other details, you may log-in to the Services, and use the user information menu. If you wish to remove your Account you can send us an e-mail of your request to: firstname.lastname@example.org. Your Account will terminate within reasonable time following your request to terminate your Account.
CANCELLING YOUR ACCOUNT MAY CAUSE INABILITY TO ACCESS YOUR ACCOUNT AND/OR THE LOSS OF CERTAIN INFORMATION (INCLUDING, WITHOUT LIMITATION, THE READINGS AND/OR ANY PERSONAL INFORMATION). YOU WILL HAVE A THIRTY (30) DAY PERIOD FROM THE CANCELLATION DATE TO COPY OR EXTRACT ANY INFORMATION WHICH WAS UPLOADED BY YOU TO OUR SERVICESWE DO NOT AND WILL NOT ACCEPT ANY LIABILITY FOR INFORMATION LOSS WHICH OCCURS AFTER THIS THIRTY (30) DAY PERIOD.
3. Use Restrictions
There are certain conducts which conducts, which are strictly prohibited when using the App, the Portal and Services. Please read the following restrictions carefully. Failure to comply with any of the provisions set forth herein may expose a User to civil and/or criminal liability.
YOUR LOG-IN DETAILS (PASSWORD AND EMAIL) ARE PERSONAL AND YOU MAY NOT SHARE THEM WITH OTHERS.
You may not, whether by yourself or anyone on your behalf, unless otherwise explicitly permitted under these Terms: (a) use the App, Portal and/or the Services, the Content and/or the Readings for any illegal, immoral, unlawful and/or unauthorized purposes; (b) use the App, Portal and/or the Services, the Content and/or the Readings for non-personal or commercial purposes other than for the use of the Services, without the Company’s express prior written consent; (c) interfere with or violate rights to privacy and other rights of other Users, or harvest or collect Personal Information about Users without their express consent, whether manually or with the use of any robot, spider, crawler, any search or retrieval application, or use other manual or automatic device, process or method to access the App and retrieve, index and/or data-mine information; (d) interfere with or disrupt the operation of the App or Portal, or the servers or networks that host them, or disobey any laws or regulations or requirements, procedures, policies, or regulations of such servers or networks; (e) falsely state or otherwise misrepresent your affiliation with any person or entity, or express or imply that the Company endorses you, your site, your business or any statement you make, or present false or inaccurate information about the App, the Portal and/or the Services; (f) take any action that imposes, or may impose, an unreasonable or disproportionately large load on our online-platform(s) infrastructure, as determined by us; (g) bypass any measures we may use to prevent or restrict access to the App and/or Portal; (h) copy, modify, alter, adapt, make available, translate, port, reverse engineer, decompile or disassemble any portion of the Content or publicly display, reproduce, create derivative works of, perform, distribute, or otherwise use such Content, other than as permitted under these Terms; (i) copy, distribute, display, execute publicly, make available to the public, reduce to human readable form, decompile, disassemble, adapt, sublicense, make any commercial use, sell, rent, transfer, lend, process, compile, reverse engineer, combine with other software, translate, modify or create derivative works of any material that is subject to the Company’s proprietary rights, including the Company’s Intellectual Property (as defined below) in any way or by any means, unless expressly permitted in the Terms; (j) make any use of the Content on any other site or networked computer environment for any purpose, or replicate or copy the Content without the Company’s prior written consent; (k) create a browser or border environment around the Company Content (no frames or inline linking are allowed); (l) unless otherwise expressly permitted by the Company, sell, license, or exploit for any commercial purposes any use of or access to the App, Portal, Services and/or Content; (m) frame or mirror any part of the App or Portal without the Company’s prior express written authorization; (n) create a database by systematically downloading and storing all or any of the Content or Readings from the App and/or Portal; (o) transmit or otherwise make available in connection with the App or Portal 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; (p) distribute, resell or offer the App, Portal and/or Services for rent or lease or offer any of the above to the public in any manner, or integrate any of the above within a service of your own, without the prior written consent of the Company; (q) access, or attempt to access, the Services other than through the interface that is provided by the Company, without the prior written consent of the Company; (r) remove or disassociate, from the Content and/or the App and/or Portal and/or the Services any copyright, trademark or other proprietary notices contained in such materials (such as ©,™, or ®); (s) use your Account information in any way that endangers the confidentiality of information; (t) infringe and/or violate any of the Terms; and/or (u) ship, transfer, or export the App into any country, or make available or use the App or Portal in any manner, prohibited by applicable laws.
4. Medical Disclaimer
THE CONTENT AVAILABLE THROUGH THE SERVICE, COMMUNICATED TO YOU DIRECTLY OR INDIRECTLY VIA TEXT, EMAIL, OR OTHER METHOD, IS FOR INFORMATIONAL AND EDUCATIONAL PURPOSES ONLY AND IS NOT A SUBSTITUTE FOR THE PROFESSIONAL JUDGMENT OF A HEALTH CARE PROFESSIONAL IN DIAGNOSING AND TREATING PATIENTS. THE COMPANY DOES NOT, THROUGH THE SERVICE, THE DEVICES OR ITS AVAILABLE FUNCTIONS, PROVIDE MEDICAL ADVICE, NOR DOES IT PROVIDE MEDICAL PRESCRIPTIONS, TREATMENTS, OR DIAGNOSTIC SERVICES. ADDITIONALLY, THE USE OF THE CONTENT OBTAINED THROUGH THE SERVICES, , THE DEVICES AND INFORMATION PROVIDED BY THE COMPANY IN CONNECTION WITH YOUR USE OF THE SERVICES OR COMPANY DEVICES, DOES NOT ESTABLISH A PHYSICIAN-PATIENT RELATIONSHIP.
IF YOU HAVE ANY CONCERNS OR QUESTIONS ABOUT YOUR HEALTH, YOU SHOULD ALWAYS CONSULT WITH A PHYSICIAN OR OTHER HEALTHCARE PROFESSIONAL. THE USE OF ANY INFORMATION OR PROGRAMS PROVIDED ON THE SERVICES IS SOLELY AT YOUR OWN RISK, INCLUDING ANY SUCH INFORMATION YOU SHARE WITH A THIRD PARTY HEALTHCARE PROFESSIONAL.
FURTHERMORE, THE DEVICE MUST BE USED ONLY IN ACCORDANCE WITH THE APPLICABLE USER MANUAL.
Be aware of disclaimers appearing in the applicable User Manual, and in particular, those appearing under the headings of Health-Related Information for the invasive add-on component, enclosed here for your convenience:
“Health-Related Information for the invasive add-on component”
“Apply only capillary whole blood samples to test your blood glucose. Applying other substances or plasma, serum will cause incorrect results.
Severe dehydration and excessive water loss may cause false or low results. If you believe you are suffering from severe dehydration, consult your healthcare professional immediately.
If you are experiencing symptoms that are not consistent with your blood glucose test results and you have followed all instructions described in this user’s manual, consult your healthcare professional.
Test results below 50 mg/dL (2.8 mmol/L)*1 may mean low blood glucose (hypoglycemia). Test results greater than 240 mg/dL (13.3 mmol/L)*2 may mean high blood glucose (hyperglycemia). If your results are below 50 mg/dL (2.8 mmol/L) or above 240 mg/dL(13.3 mmol/L), repeat the test, and if the results are still below 50 mg/dL (2.8 mmol/L) or above 240 mg/dL(13.3 mmol/L), follow the treatment advice of your healthcare professional.
Inaccurate results may occur in severely hypertensive individuals or patients in shock.
Inaccurate low results may occur for individuals experiencing a hyperglycemic-hyperosmolar state, with or without ketosis. Critically ill patients should not be tested with blood glucose meters.
Measuring Range 20 – 600 mg/dL (1.1 – 33.3 mmol/L)
Acceptable Hematocrit Range 20~60%.”
Also: ALTERNATIVE SITE TESTING (AST)) of the TensorTip® Glucometer Instruction Guide, for your convenience enclosed herein:
“ ALTERNATIVE SITE TESTING (AST)”
“There are important limitations for doing AST. Please consult your healthcare
Professional before you perform an AST.
What is AST?
Alternative Site Testing (AST) means you can use parts of the body other than your fingertips to check your blood glucose levels. The invasive add-on device allows you to test your palm, forearm, upper arm, calf, or thigh with equivalent results to fingertip testing.
What is the advantage?
Fingertips feel pain more readily as they have a large concentration of nerve endings (receptors). At other body parts, nerve endings are not so concentrated and you will not feel as much pain as you will experience on the fingertip.
When to use AST?
Food, medication, illness, stress and exercise can affect blood glucose levels. Capillary blood at fingertip reflects these changes faster than capillary blood on other parts. Therefore, if you are testing blood glucose level during or immediately after meal, physical exercise or stressful event, take the blood sample from your fingertip only.”
5. Patient Information Disclaimer
You are solely and exclusively responsible for all your communications and interactions with us or with any person, organization or entity with whom you may communicate, interact or engage through the use of the App, the Portal, the Device and/or the Services, including, such entities, organizations or individuals (and their administrators) with whom you may choose to share, and authorize them to receive Reading results and to conduct analysis on such results, and may communicate the analysis back to you.
You understand that certain laws may impose obligations with regard to personal health information and you agree to provide all consent necessary to effectuate the authorizations you provided above.
CNOGA CANNOT AND DOES NOT ASSUME ANY RESPONSIBILITY FOR THE USE OR MISUSE OF PROTECTED HEALTH INFORMATION OR ANY OTHER INFORMATION TRANSMITTED, MONITORED, STORED, OR RECEIVED BY YOU WHILE USING THE SERVICES AND/OR THE DEVICES.
BY UPLOADING OR SUBMITTING INFORMATION, YOU REPRESENT AND WARRANT THAT YOU CAN UPLOAD OR SUBMIT SUCH INFORMATION IN FULL COMPLIANCE WITH ANY APPLICABLE PRIVACY LAWS AND REGULATIONS AND THAT YOU PROVIDED ALL NECESSARY CONSENTS TO SHARE THIS DATA WITH THIRD PARTIES SERVICE PROVIDERS YOU SELECT. WE WILL NOT ASSUME ANY LIABILITY IN THIS RESPECT.
6. Intellectual Property Right
Our Intellectual Property
The App, the Portal, the Device, the Content (excluding Sessions) and the Company’s proprietary assets and any and all intellectual property rights pertaining thereto, including, but not limited to, copyright, inventions, patents and patent applications, trademarks, trade names, domain names, service marks, copyrightable materials and trade secrets, whether or not registered or capable of being registered (collectively, “Intellectual Property”), are owned by and/or licensed to the Company and are protected by applicable copyright and other intellectual property laws and international conventions. All rights not expressly granted to you hereunder are reserved by the Company and its licensors.
Subject to the terms hereof, Cnoga hereby grants to you, and you accept, a personal, nonexclusive, non-commercial, non-transferable, non-sublicensable and fully revocable limited license (i) to download and use the App on your authorized mobile device that you own or control, solely for the limited purpose of using the App for your internal use, and for no other purpose, strictly in accordance with the Terms, the applicable Usage Rules (defined below) and applicable law; and (ii) to use the App, the Device, the Portal and Content provided therein in accordance with the Terms.
The Terms do not convey to you an interest in or to the Company’s Intellectual Property but only a limited revocable right of use in accordance with the Terms. Nothing in the Terms constitutes a waiver of the Company’s Intellectual Property under any law.
To the extent you provide any feedbacks, comments or suggestions to Cnoga (“Feedback“), Cnoga shall have an-exclusive, royalty-free, fully paid up, worldwide, perpetual and irrevocable license to incorporate the Feedback into any Cnoga current or future products, technologies or services and use same for any purpose, all without further compensation to you and without your approval. You agree that all such Feedback shall be deemed non-confidential. Furthermore, you warrant that your Feedback is not subject to any license terms that would purport to require Cnoga to comply with any additional obligations with respect to any Cnoga’s current or future products, technologies or services that incorporate any Feedback.
If Cnoga supplies to you any updates, upgrades and any new versions of the App (“Updates“) according to its then current policies, it may include automatic updating or upgrading of the App, with or without any additional notice to you. You hereby permit Cnoga to deliver these Updates to you and install them automatically on the Device, as part of your continued use of the Services. In the event that such Updates must be manually updated or upgrade by you, then you will be required to download such Updates. If you do not follow Cnoga’s request to update the App to the most current version then Cnoga may not be able to provide you with the Services. These Terms will govern any such Updates, unless they are accompanied by a separate written license agreement which will prevail, and all references herein to the App shall include such Updates. For clarity, Cnoga has no obligation to provide Updates.
Your Intellectual Property
You represent and warrant that you have (and will continue to have) all the necessary licenses, rights, consents, and permissions with respect to the information you transmit or make available via our Services. When you transmit or make available such information on the Portal, you grant to the admin of the Portal a non-exclusive, non-commercial and royalty-free license to access and view such information. Please note that the Company does not monitor such information
You hereby agree that we may retain copies of certain information you transmit or make available via our Services for archival or backup purposes and in order to enforce the Terms, including investigation of potential violations thereof.
7. Trademarks and Trade Names
All marks and logos and all other proprietary identifiers used by the Company in connection with the App, Devices,Portal and/or Services (“Company Trademarks“) are all trademarks, service marks and/or trade names of the Company, whether or not registered, including, without limitation, TensorTip®CoG Combo Glucometers, TensorTip® MTX Matrix, TensorTip® VSM Vital Sign Monitor. All other trademarks, service marks, trade names and logos which may appear on the App, Portal and/or Service belong to their respective owners (“Third Party Marks“). No right, license, or interest to the Company Trademarks and the Third Party Marks is granted hereunder, and you agree that no such right, license, or interest may be asserted by you with respect thereto and therefore you will avoid using any of those marks, except as permitted herein.
8. Special provisions relating to Third Party Component
The App and/or Services and/or Devices may use or include third party software, files and components that are subject to open source and third party license terms (“Third Party Components“). Your right to use such Third Party Components as part of, or in connection with the App, the Portal, the Devices and/or Services is subject to any applicable acknowledgements and license terms accompanying such Third Party Components, contained therein or related thereto. If there is a conflict between the licensing terms of such Third Party Components and these Terms, the licensing terms of the Third Party Components shall prevail in connection with the related Third Party Components. These Terms do not apply to any Third Party Components accompanying or contained in the App, the Devices , the Portal and/or Service and Cnoga disclaims all liability related thereto. You acknowledge that Cnoga is not the author, owner or licensor of any Third Party Components, and that Cnoga makes no warranties or representations, express or implied, as to the quality, capabilities, operations, performance or suitability of Third Party Components. Under no circumstances shall the App, the Devices, the Portal and/or Services or any portion thereof (except for the Third Party Components contained therein) be deemed to be “open source“ or “publicly available“ software.
The App’s, the Portal’s, the Devices (if applicable) and the Services’ availability and functionality depend on various factors, such as software, hardware and the Company’s service providers and contractors. The Company does not warrant or guarantee that the App, the Portal, the Devices and/or the Services will operate at all times without disruption or interruption, or that they will be immune from unauthorized access or error-free.
10. Termination of these Terms
These Terms shall remain in effect until terminated as set forth herein. Your failure to comply herewith shall terminate your license and these Terms. In the event of your failure to comply herewith we may immediately (temporarily or permanently) limit, suspend or otherwise terminate, your Account, and your access to the App and/or Portal without notice. Without limiting the generality of the foregoing, we may terminate or suspend your Account if we believe in our sole discretion that any of the following events occurred: (a) there is a threat to the security or integrity of your Account, our network or our servers; (b) suspension or termination is needed to protect the rights (including without limitation, privacy rights), property or safety of the Company, Users, or the public; (c) we have reasonable grounds to suspect that you do not meet the eligibility requirements specified in Section 1 above; (d) you are using the Services in order to directly compete Cnoga; (e) you have violated any of these Terms; and/or (f) we are required to by law.
If you object to any term hereof, as may be amended from time to time, or become dissatisfied with the Services, you may terminate these Terms at any time by closing your Account, uninstalling our App and stopping your use of our Services/ Devices and this will be your sole remedy in such circumstances.
Upon termination of these Terms: (i) the license and all other rights granted to you hereunder will automatically terminate; (ii) you must immediately cease all use of the App, Portal, Devices and Services, delete and destroy all copies of the App in your possession or control (and to certify such action to Cnoga, if required by it), and (ii) the provisions of these Terms that, by their nature and content must survive the termination of these Terms in order to achieve the fundamental purposes of these Terms shall so survive. Without limiting the generality of the forgoing, the Medical Disclaimer, Patient Information Disclaimer, Intellectual Property, General Disclaimer of Warranties, Limitation of Liability, Indemnification and General sections will survive the termination of the Terms.
We may, but are not obligated to, provide you a notice in the event of termination or suspension of your Account. During the suspension period, you will not have the ability to use or access your Account. In the event that we determine, in our sole discretion, that the reason for suspension of access to your Account has been resolved, we will restore access to your Account.
12. Usage Rules
Since you may be downloading the App from a third party platform, service provider or distributor (“Platform Provider“) your use of the App may also be governed by usage rules which the Platform Provider may have established and which relate to your use of the App (“Usage Rules“). Certain Usage Rules are described below, but other Usage Rules may apply and it is your responsibility to determine what other Usage Rules are applicable to your use of the App. You undertake to comply with all the applicable Platform Provider’s Usage Rules and the Usage Rules applicable to your use of the App are incorporated herein by reference. In the event of a conflict between the Terms and the terms of any applicable Usage Rules, which relates solely to the Platform Provider’s representations, warranties, restrictions on use of the App, obligations, limitation of liability (to the extent applicable to the Platform Provider) and/or other provisions that impose any responsibility on the Platform Provider, the terms of the applicable Platform Provider’s Usage Rules shall prevail. You represent that you are not prohibited by any applicable laws or Usage Rules from downloading and/or using the App. Any download and/or use of the App by anyone prohibited by any applicable laws or Usage Rules from downloading and/or using the App is expressly prohibited.
The following applies to you if you downloaded the App from the Apple App Store (“iTunes-Sourced Software“): You acknowledge and agree that (i) the license granted herein is limited to a non-transferable license to use the iTunes-Sourced Software on an iOS device that you own or control, (ii) these Terms are solely between you and the Company, not Apple Inc. (“Apple“), and that Apple has no responsibility for the iTunes-Sourced Software or content thereof, (iii) your use of the iTunes-Sourced Software must comply with Usage Rules established by Apple, including those set forth in the App Store Terms of Service effective as of the date you enter into these Terms, and (iv) Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the iTunes-Sourced Software.
The Company and you acknowledge that the Company, and not Apple, is responsible for addressing any claims relating to the iTunes-Sourced Software or your possession and/or use thereof, including, but not limited to: (i) product liability claims; (ii) any claim that the iTunes-Sourced Software fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
13. GENERAL DISCLAIMER OF WARRANTIES
TO THE FULLEST EXTENT LEGALLY PERMISSIBLE, THE APP, THE PORTAL, THE SERVICES, THE CONTENT, THE DEVICES AND THE THIRD PARTY COMPONENTS ARE PROVIDED ON AN “AS IS“ AND “AS AVAILABLE“ BASIS, AND CNOGA AND ITS VENDORS, INCLUDING CNOGA’S AND SUCH VENDORS’ OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES, SUBSIDIARIES, LICENSORS, AGENTS AND SUPPLIERS (“COVERED PARTIES“) DISCLAIM ALL WARRANTIES OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO WARRANTIES OF TITLE OR NON-INFRINGEMENT OR IMPLIED WARRANTIES OF USE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND THOSE ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE. YOU MAY HAVE ADDITIONAL CONSUMER RIGHTS UNDER YOUR LOCAL LAWS THAT THESE TERMS CANNOT CHANGE.
IN ADDITION TO OTHER DISCLAIMERS CONTAINED IN THESE TERMS, AND UNLESS OTHERWISE STATED IN THE APPLICABLE, WE DO NOT WARRANT (I) THAT THE USE AND OPERATION OF THE APP, THE PORTAL, THE DEVICE OR SERVICES IS OR WILL BE SECURE, TIMELY, ACCURATE, COMPLETE, UNINTERRUPTED, WITHOUT ERRORS, OR FREE OF VIRUSES, DEFECTS, WORMS, OTHER HARMFUL COMPONENTS OR OTHER PROGRAM LIMITATIONS, (II) THAT WE WILL CORRECT ANY ERRORS OR DEFECTS IN THE APP, THE PORTAL, THE DEVICES AND/OR SERVICES, (III) THAT THE APP WILL BE INTEROPERABLE OR COMPATIBLE WITH YOUR MOBILE DEVICE, OTHER SOFTWARE, HARDWARE, OR ANY EQUIPMENT, AND WE ARE NOT RESPONSIBLE FOR ANY LOSSES SUFFERED RESULTING FROM INTEROPERABILITY OR COMPATIBILITY PROBLEMS, AND/OR (IV) MAKE ANY REPRESENTATION REGARDING THE USE, INABILITY TO USE OR OPERATE, OR THE RESULTS OF THE USE OF THE APP, THE PORTAL, THE DEVICES AND/OR CONTENT (INCLUDING THAT THE RESULTS OF USING THEM WILL MEET YOUR REQUIREMENTS). THE COMPANY HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH REGARD TO THE USE OF THE APP, THE PORTAL, THE DEVICES AND/OR SERVICES, INCLUDING BUT NOT LIMITED TO THEIR AVAILABILITY, RELIABILITY OR QUALITY, AND IT IS NOT AND SHALL NOT BE RESPONSIBLE FOR ANY ERROR, FAULT OR MISTAKE RELATED TO ANY CONTENT AND INFORMATION DISPLAYED WITHIN THEM.
WE ARE NOT RESPONSIBLE AND HAVE NO LIABILITY FOR ANY HARDWARE, SOFTWARE, DEVICE, OR OTHER ITEM OR SERVICE PROVIDED BY ANY PERSON OR ENTITY OTHER THAN THE COMPANY.
WE ARE NOT RESPONSIBLE FOR ANY CONSEQUENCES TO YOU OR OTHERS THAT MAY RESULT FROM TECHNICAL PROBLEMS (INCLUDING WITHOUT LIMITATION IN CONNECTION WITH THE INTERNET SUCH AS SLOW CONNECTIONS, TRAFFIC CONGESTION, OVERLOAD OF SERVERS, DELAYS OR INTERRUPTIONS) OR ANY TELECOMMUNICATIONS OR INTERNET PROVIDERS.
YOU AGREE THAT USE OF THE APP, THE PORTAL, THE SERVICES, THE DEVICES AND/OR THE CONTENT CONTAINED THEREIN IS ENTIRELY AT YOUR OWN RISK.
INASMUCH AS SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSIONS OR LIMITATIONS AS SET FORTH HEREIN, THE FULL EXTENT OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY.
14. LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT LEGALLY PERMISSIBLE, IN NO EVENT SHALL CNOGA, INCLUDING THE COVERED PARTIES, BE LIABLE FOR ANY DAMAGES WHATSOEVER INCLUDING, BUT NOT LIMITED TO, DIRECT, INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING WITHOUT LIMITATION, LOSS OF GOODWILL, PROFITS OR DATA AND BUSINESS INTERRUPTION), UNDER ANY LEGAL THEORY (INCLUDING, WITHOUT LIMITATION, CONTRACT, NEGLIGENCE, TORT OR STRICT LIABILITY), RESULTING FROM OR IN CONNECTION TO THE APP, THE PORTAL, THE SERVICES, THE DEVICES AND/OR THE CONTENT, YOUR USE OR INABILITY TO USE THEM OR THEIR FAILURE TO PERFORM AS REPRESENTED OR EXPECTED, ANY OTHER ACT OR OMISSION OF CNOGA OR ANY OF THE COVERED PARTIES, BY ANY OTHER CAUSE WHATSOEVER; OR BASED UPON BREACH OF WARRANTY, GUARANTEE OR CONDITION, BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY, TORT, OR ANY OTHER LEGAL THEORY, REGARDLESS OF WHETHER CNOGA OR ANY OF THE COVERED PARTIES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
WE SHALL NOT BE LIABLE FOR ANY DAMAGES ARISING FROM ANY TRANSACTION OR ENGAGEMENT BETWEEN YOU AND ANY THIRD PARTY OR FOR ANY INFORMATION PROVIDED BY OR ANY THIRD PARTY.
IN ANY CASE, WITHOUT LIMITING THE GENERALITY OF THE FOREGOING AND TO THE MAXIMUM EXTENT LEGALLY PERMISSIBLE, CNOGA AND THE COVERED PARTIES’ TOTAL AGGREGATE LIABILITY FOR ALL DAMAGES OR LOSSES WHATSOEVER ARISING HEREUNDER OR IN CONNECTION WITH YOUR USE OR INABILITY TO USE THE APP, PORTAL, SERVICES OR CONTENT SHALL BE LIMITED TO ONE HUNDRED DOLLARS (U.S.$100).
INASMUCH AS SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSIONS OR LIMITATIONS AS SET FORTH HEREIN, THE FULL EXTENT OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY.
You agree to defend, indemnify and hold harmless Cnoga and the Covered Parties from and against any and all claims, damages, obligations, losses, liabilities, costs, debts, and expenses (including but not limited to attorney’s fees) arising from: (i) your use, misuse of, inability to use and/or activities in connection with the App, the Portal, the Services, the Devices and/or the Content; (ii) your violation of any of these Terms; (iii) your violation of any third party rights, including without limitation any intellectual property rights or privacy right of such third party in connection with your use of the App, the Portal, the Devices and/or the Services; (iv) any damage of any sort, whether direct, indirect, special or consequential, you may cause to any third party with relation to your misuse of the App, the Portal, the Devices and/or the Services. It is hereby clarified that this defense and indemnification obligation will survive these Terms.
Without derogating from the foregoing, we reserve the right to assume the exclusive defense and control of any matter which is subject to indemnification by you, which will not excuse your indemnity obligations hereunder and in which event you will fully cooperate with us in asserting any available defense. You agree not to settle any matter subject to an indemnification by you without first obtaining our prior express written approval.
16. Export and the Location of the User
The App may be subject to export laws of the Israeli and/or /or may be subject to additional export laws applicable to the User or in the User’s jurisdiction. The User agrees that he/she will not ship, transfer, or export the App and/or the Devices into any country, or make available or use the App and/or the Devices in any manner, prohibited by applicable laws.
In addition, the User represents and warrants that (i) he/she is not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting“ country; and (ii) that the User is not listed on any U.S. Government list of prohibited or restricted parties.
17. Changes to the Terms
(a) These Terms together with any applicable invoice or other document related to the purchase of Devices, constitute the entire terms and conditions between you and the Company relating to the subject matter herein and supersede any and all prior or contemporaneous written or oral agreements or understandings between you and the Company, (b) any claim relating to the App, the Portal, the Content, the Devices or the Services or the use thereof will be governed by and interpreted in accordance with the laws of the State of Israel. Without reference to its conflict-of-laws principles and the United Nations Convention Relating to a Uniform Law on the International Sale of Goods may not be applied, (c) any dispute arising out of or related to the App, the Portal, the Content or the Services will be brought in, and you hereby consent to exclusive jurisdiction and venue in, the competent courts of Tel-Aviv District, Israel. You agree to waive all defenses of lack of personal jurisdiction and forum non-convenience and agree that process may be served in a manner authorized by applicable law or court rule. Notwithstanding the foregoing, Cnoga may seek injunctive relief in any court of competent jurisdiction, (d) these Terms do not, and shall not be construed to create any relationship, partnership, joint venture, employer-employee, agency, or franchisor-franchisee relationship between the parties hereto, (e) 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, (f) YOU ACKNOWLEDGE AND AGREE THAT ANY CAUSE OF ACTION THAT YOU MAY HAVE ARISING OUT OF OR RELATED TO THE APP, THE PORTAL, THE CONTENT THE DEVICES AND/OR THE SERVICES MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED, (g) if any provision hereof is adjudged by any court of competent jurisdiction to be unenforceable, that provision shall be limited or eliminated to the minimum extent necessary so that these Terms shall otherwise remain in full force and effect while most nearly adhering to the intent expressed herein, (h) you may not assign or transfer these Terms (including all rights and obligations hereunder) without our prior written consent and any attempt to do so in violation of the foregoing shall be void. We may assign or transfer these Terms without restriction or notification, (i) no amendment hereof will be binding unless in writing and signed by Cnoga, (j) the parties agree that all correspondence relating to these Terms shall be written in the English language; and (k) Cnoga will not liable for any delay or failure to provide the App, the Portal, the Devices and/or the Services resulting from circumstances or causes beyond the reasonable control of Cnoga (i.e. force majeure).
19. Contact Information
If you have any questions (or comments) concerning the Terms, you are most welcome to send us an e-mail to the following address, and we will make an effort to reply within a reasonable timeframe: SingularSupport@cnoga.com.