Terms of Service
These Terms of Service (this “Agreement”) is a legal agreement between you (both the individual accessing the Service and any single legal entity on behalf of which such individual is acting) (“Company“ or “You”) and DarioHealth Corp. (“Dario”) regarding Company’s use of the Dario Platform to provide Wellness Services (all as defined below).
PLEASE READ THIS AGREEMENT CAREFULLY BEFORE ACCESSING OR USING THE DARIO PLATFORM OR PROVIDING ANY WELLNESS SERVICES. BY CLICKING THE “I ACCEPT” BUTTON LOCATED AT THE BOTTOM OF THIS PAGE OR USING THE DARIO PLATFORM YOU ARE INDICATING THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND ITS TERMS AND CONDITIONS, AND AGREE TO BE LEGALLY BOUND BY THEM. IF YOU DO NOT AGREE TO ANY OF THE TERMS AND CONDITIONS OF THIS AGREEMENT OR ARE NOT AUTHORIZED TO BIND THE COMPANY ON BEHALF OF WHICH YOU ARE ACTING, PLEASE CLICK THE “I DO NOT ACCEPT” BUTTON AND DO NOT ACCESS OR USE THE DARIO PLATFORM. WITHOUT LIMITING THE FOREGOING, ACCESSING OR USING ANY PORTION OF THE DARIO PLATFORM INDICATES THAT YOU ACCEPT THIS AGREEMENT AND REPRESENT THAT YOU ARE AUTHORIZED TO BIND THE COMPANY.
We reserve the right to update these Terms, which shall come into effect only 30 days from the date the notice was posted. These Terms were last updated on November 20, 2019.
- Provision of Services
- Dario is the owner of a proprietary client relationship management platform which includes a mobile device application for patients (the “Application”) and associated websites, provided on a Software-as-a-Service basis (collectively the “Dario Platform”). Subject to the terms and conditions set forth herein, Dario will provide access to certain data collected through the Application from Company’s patients using the Application who have given the Company Consent (as defined below) to provide them Wellness Services (as defined below) and access their information (the “End User(s)”).
- Subject to the terms and conditions herein, Dario hereby grants Company a limited right during the Term: (i) to access and use the Dario Platform, subject to and solely in accordance with the relevant usage limitations (the “Usage Limitations”), for the purpose of providing certain wellness, treatment and healthcare related services to its End Users (the “Wellness Services”); and (ii) for the Provider (as defined below), to access certain End User information collected and processed through such End Users’ use of the Application, including Personal Information (as defined below) and health-related data (collectively, “End User Information”) solely for the purpose of providing the Wellness Services.
- Subject to the terms and conditions herein, Company shall have the right to offer End Users the right to access and use the Application and provide End Users Wellness Services (as defined below) through the Company’s healthcare professional (each, a “Provider”).
- Restrictions. Company shall not (and shall not permit or assist any third party to: (i) represent that it possess any proprietary interest in the Dario Platform; (ii) directly or indirectly, take any action to contest Dario’s intellectual property rights or infringe them in any way, or to claim any intellectual property rights in connection with the Dario Platform, including without limitation and trademarks or goodwill associated therewith; (iii) except as specifically permitted hereunder, use the name, trademarks, trade-names, and logos of Dario; (iv) except as specifically permitted hereunder, use the Dario Platform to provide third parties with managed services or any other services whether or not in return for remuneration of any kind.
- Compliance with Law
- During the term of this Agreement, Company shall comply with any applicable law applicable to its use and distribution of the Dario Platform, the User Information and Company’s Wellness Services. Company is the solely responsible to obtain and shall maintain throughout the Term any and all regulatory approvals, licenses and consents required under any applicable law for the performance of its obligations under this Agreement (including, without limitation, its performance of all marketing and promotional activities) and the Wellness Services.
- In the performance of this Agreement, Company and the Provider may have access to certain personal identifiable information of End Users, or that is otherwise defined as personal information by applicable law (the “Personal Information”). All such Personal Information shall be collected, accessed, stored, protected and used by the Provider or Company solely for the purpose of providing the Wellness Services in a manner that will preserve the confidentiality of the Personal Information. Provider’s and Company’s collection, access, storage, protection and use of Personal Information shall be in strict compliance with all applicable privacy and data security laws, rules and regulations in Israel, the European Union, Canada and the United States, including but not limited to the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) in the United States, the Personal Information Protection and Electronic Documents Act (“PIPEDA”) in Canada, and the applicable information privacy laws that may exist in Canadian Provinces, and the General Data Protection Regulation (the “GDPR”), as applicable. Company shall ensure that Personal Information will not be accessed or used by any Company personnel except the Provider in accordance with the terms hereto.
- The Company shall meet all applicable patient data protection obligations as mandated by HIPAA, all with respect to the processing of Protected Health Information (as defined under HIPAA) for the United States or PIPEDA in Canada, and the applicable information privacy laws that may exist in Canadian Provinces.
- In the event Company is not a “covered entity” as defined under HIPAA, Company agrees to immediately notify Dario and execute and abide by the terms of a Business Associate Agreement that meets the requirements of HIPAA and in a form reasonably agreed to by Dario.
- Company shall obtain any and all authorizations, consents, licenses, assignments and permits, in the manner and form required under applicable law to connect End Users to the Dario Platform, obtain and store End User Information, and provide the Wellness Services, including but not limited to the legally valid consent of the End User for the Company to collect and access his or her End User Information, connect to the End User via the Dario Platform, process End User Information using the Dario Platform and receive Wellness Services (the “Consent”). Company shall not collect or access any End User Information without Consent. Without derogating from the generality of the above, Company shall comply with all applicable federal, state and local regulation concerning marketing and communication, including without limitation, the provisions of the CAN-SPAM Act of 2003, the Telephone Consumer Protection Act of 1991 (TCPA), 16 C.F.R. part 310 – the Telemarketing Sales Rule.
- Company shall ensure that Wellness Services provided to End Users using the Dario Platform shall be provided solely by Providers who are licensed physicians or qualified healthcare professionals with all the necessary authorizations, licenses and permits required under any applicable law. Company shall ensure its Providers are in compliance with the terms and conditions of this Agreement, and it hereby agrees and acknowledges that it is solely and exclusively liable for any act or omission of its Providers in breach of this Agreement, and for any advice or recommendation provided by the Provider to the End User.
- If Company becomes aware of any material inaccuracies and/or omissions in any of the End User Information, it shall provide written notice of such inaccuracy and/or omission to Dario as soon as possible.
- Company will use and maintain appropriate administrative, technical and physical safeguards to protect the confidentiality and integrity of End User Information and to prevent the use or disclosure of the End User Information.
- In no event shall Company, with regard to any of the End User Information: (i) act in a manner inconsistent with the instructions of Dario with regard to the End User Information; (ii) aggregate or de-identify the End User Information except as specifically agreed upon by the Parties; or (iii) sell, encumber, monetize or disclose the End User Information in any manner except as explicitly permitted hereunder.
- Marketing and Promotion. Company shall use commercially reasonable efforts to promote the sale and distribution of the Dario Platform to End Users at all times in a manner that reflects favorably on the goodwill and reputation of Dario. All uses by the Company of Dario trademarks, service marks and trade dress shall be in compliance with Dario policies on the use of such intellectual property, and shall be used only after receiving written approval by Dario, such approval not to be unreasonably withheld. Company shall stay current with respect to information concerning the Company, including but not limited to attending training programs which may be offered by Dario. Without limiting the generality of the foregoing, Company shall not make any representations, warranties or descriptions regarding the performance, functional characteristics or other aspects of the Dario Platform that is beyond those stated in Dario’s then-current and officially approved marketing and promotional materials for the Dario Platform. Company shall not make any representation or warranty on behalf of Dario.
- Fees and Payment
- Service Fees. To the extent Dario will charge fees in consideration for the right to offer the use of the Dario Platform, Company shall pay Dario fees as shall be determined by the parties in a separate written agreement (“Fee”). Dario may suspend or discontinue Company’s access to the Dario Platform due to Company’s failure to pay the Fee by the date due.
- Taxes. Company is solely responsible for payment of any taxes (including, without limitation, sales or use taxes, value-added taxes, employee-related taxes, intangible taxes, and property taxes) resulting from using the Dario Platform.
- Term and Termination; Effect of Termination
- Term and Termination. The term of this Agreement shall terminate as set forth herein or as set forth in a separate agreement between the parties, if applicable (the “Term“).
- Termination for Convenience. This Agreement may be terminated at any time by either party for any reason or no reason by giving the other party written notice ninety (90) days in advance.
- Termination for Cause. Either party may terminate this Agreement upon written notice to the other party, if the other party materially breaches this Agreement and such breach remains uncured for a period of ten (10) days following such notice. Either party may terminate this Agreement immediately, in the Event of Default. Any of the following shall be considered an “Event of Default”: (i) a party is judged bankrupt or insolvent; (ii) a party makes a general assignment for the benefit of its creditors; (iii) a trustee or receiver is appointed for a party or for any of its property; or (iv) any petition by or on behalf of a party is filed under any bankruptcy or similar laws.
- Termination of Access to End User Information.Dario reserves the right to immediately terminate the Company’s access to its End User Information or the Dario Platform if Dario has reason to believe that either party has suffered a security breach, Company has violated any of the terms and conditions of this Agreement, including without limitation accessing any information that Company would not otherwise be authorized to receive pursuant to this Agreement, or disclosing End User Information in violation of this Agreement or applicable law.
- Effect of Termination.Upon termination of this Agreement: (i) the access to any services granted under this Agreement shall terminate and Company shall cease all further use of the Dario Platform; and (ii) any and all End User Information, including any Confidential Information (as defined below) of Dario shall be destroyed or returned to Dario, at the discretion of Dario. Notwithstanding any termination of this Agreement, in the event that any End User Information or Confidential Information cannot feasibly be returned or destroyed, it shall continue to be subject to the provisions of this Agreement with regard to the handling of End User Information including, without limitation, provisions regarding Confidential Information and privacy and security.
- Intellectual Property Rights. All intellectual property rights in the Dario Platform, the End User Information, any part thereof, and any and all derivative works, changes amendments, fixes and improvements to the Dario Platform and the End User Information shall remain exclusively with Dario. Nothing in this Agreement shall constitute a waiver of Dario’s intellectual property rights under any law, or be in any way construed or interpreted as such.
- Mutual Warranties. Each Party represents and warrants that: (i) this Agreement constitutes a legal, valid and binding obligation of it, enforceable against it in accordance with the terms and conditions of this Agreement, and (ii) the execution, delivery and performance of this Agreement will not violate any applicable law, rule or regulation.
- Company Warranties and Obligations. Company hereby warrants and represents that: (i) Company has fully complied with all applicable laws, industry best practices and policies, and any third-party licenses, permits and authorizations required in connection with this Agreement, including but not limited to the provision of Wellness Services and access to the User Information; (ii) it is a Healthcare Provider and Covered Entity (each as defined under HIPAA) and that any disclosure to the Company is for treatment activities, payment activities or health care operations activities, in each case, only to the extent permitted by HIPAA; (iii) any and all Providers have all the authorizations, consents, licenses, assignments and permits required under law in order to provide Wellness Services and collect and access the User Information and use the Dario Platform in compliance with applicable law and this Agreement; (iv) it will maintain adequate and sufficient security measures for the preservation of the secrecy and proprietary nature of the User Information and Confidential Information; (v) it has not and will not offer promise, give, authorize, solicit, accept or promise to accept any undue pecuniary or other advantage, whether in cash or in kind which would be considered to be a violation of all applicable anti-bribery and anti-corruption laws including the U.S. Foreign Corrupt Practices Act of 1977, the U.K. Bribery Act of 2010 and the Israeli Penal Code of 1977, as updated from time to time and will not take any actions which might cause Dario to be in violation of any such applicable anti-bribery laws; and (vi) Company will not sell any products to anyone who is located, organized or resident in any country or territory that is, or whose government currently is, the target of country- or territory-wide sanctions imposed by any United States or Israeli sanctioning authority or that is included in the Specially Designated Nationals and Blocked Persons List, the Foreign Sanctions Evaders List, the Consolidated Sanctions List or any other sanction list that is applicable to the Dario Platform.
- Disclaimer of Warranties
EXCEPT FOR THE WARRANTIES EXPRESSLY PROVIDED IN THIS AGREEMENT, DARIO AND ITS LICENSORS PROVIDE THE USAGE OF THE DARIO PLATFORM AND THE USER INFORMATION ON AN “AS IS” BASIS, WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING THE WARRANTY OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR PARTICULAR PURPOSE CONTINUITY, RELIABILITY, OR ACCURACY, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, DARIO AND ITS LICENSORS DO NOT WARRANT THAT THE DARIO PLATFORM WILL BE DELIVERED OR PERFORMED ERROR-FREE OR WITHOUT INTERRUPTION.
DARIO MAKES NO REPRESENTATIONS OR WARRANTIES WHATSOEVER WITH RESPECT TO CONTENT OR USER INFORMATION REGARDING END USERS, DISEASES, MEDICATIONS OR HEALTH OR MEDICAL INFORMATION WHICH MAY BE AVAILABLE BY MEANS OF THE DARIO PLATFORM. ANY USER INFORMATION PROVIDED BY THE DARIO PLATFORM IS NOT A SUBSTITUTE FOR MEDICAL ADVICE, CARE, DIAGNOSIS OR TREATMENT. THE DARIO PLATFORM OR ITS USE DOES NOT CONSTITUTE THE PRACTICE OF ANY MEDICAL, PARAMEDICAL, NURSING OR OTHER PROFESSIONAL HEALTH CARE ADVICE, DIAGNOSIS OR TREATMENT. USE OF USER INFORMATION ACCESSED BY MEANS OF THE DARIO PLATFORM, AS WELL AS DIAGNOSES, PROGNOSIS OR TREATMENT DECISIONS BASED ON SUCH INFORMATION ARE THE SOLE RESPONSIBILITY OF COMPANY AND ITS PROVIDERS AND DARIO HAS NO LIABILITY WITH RESPECT THERETO, INCLUDING WITHOUT LIMITATION, WITH RESPECT TO WELLNESSSERVICES OFFERED BY COMPANY AND ITS PROVIDERS TO END USERS.
- Limitation of Liability. DARIO’S MAXIMUM AGGREGATE LIABILITY UNDER, ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL NOT EXCEED $500.000. TO THE EXTENT PERMITTED BY LAW, IN NO EVENT WILL DARIO BE LIABLE FOR LOST PROFITS, LOSS OF USE, LOSS OF DATA, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED, AND ON ANY THEORY OF LIABILITY, WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), OR OTHERWISE, WHETHER OR NOT DARIO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- Confidentiality. During the Term hereof, Company may have access to certain non-public proprietary, confidential or trade secret information or data of Dario, whether furnished before or after the Effective Date, and regardless of the manner in which it is furnished, which given the totality of the circumstances, a reasonable person or entity should have reason to believe is proprietary, confidential, or competitively sensitive (together, the “Confidential Information”). All information relating to the Application, the Dario Platform and the User Information will be Confidential Information. Confidential Information shall exclude any information that (i) is now or subsequently becomes generally available in the public domain through no fault or breach on the part of the Company; (ii) the Company can demonstrate in its records to have had rightfully in its possession prior to disclosure of the Confidential Information by Dario; (iii) Company rightfully obtains from a third party who has the right to transfer or disclose it, without default or breach of this Agreement; (iv) the Company can demonstrate in its records to have independently developed, without breach of this Agreement or any use of or reference to the Confidential Information. The Company agrees: (a) not to disclose Dario’s Confidential Information to any third parties other than to its, directors, officers, employees, advisors or consultants (collectively, the “Representatives”) on a strict “need to know” basis only and provided that such Representatives are bound by written agreements to comply with the confidentiality obligations as protective as those contained herein; (b) not to use or reproduce any of the disclosing party’s Confidential Information for any purposes except to carry out its rights and responsibilities under this Agreement; (c) to keep Dario’s Confidential Information confidential using at least the same degree of care it uses to protect its own confidential information, which shall in any event not be less than a reasonable degree of care. Notwithstanding the foregoing, if Company is required by legal process or any applicable law, rule or regulation, to disclose any of Dario’s Confidential Information, then prior to such disclosure, Company will give prompt written notice to Dario so that it may seek a protective order or other appropriate relief. Company‘s obligations with respect to Confidential Information shall expire five years from the date of termination or expiration of this Agreement.
- Indemnification. Company shall indemnify, defend, and hold harmless Dario its directors, officers, employees, agents, and affiliates from any and all claims, damages, costs, expenses, penalties or liabilities (including reasonable attorneys’ fees) arising from or related to Company’s or its Providers’: (i) collection and use of the User Information or use of the Dario Platform; (ii) its provision of Wellness Services; (iii) any breach of this Agreement, including without limitation, the representation and warranties in Section 7 hereof; (iv) any violation of applicable law or regulation; or (v) any violation of third party rights, including without limitation such third party’s intellectual property or privacy rights. Dario shall provide prompt written notice of any claim for which it seeks indemnification from Company. Notice shall be considered prompt so long as Company is not materially prejudiced in its defense of settlement of the claim as a result any delay by Dario in delivering written notice. Company shall control the selection and payment of counsel, and the defense and settlement of any action or proceeding for which it is required to indemnify Dario, although Dario may at its own cost and expense hire additional legal counsel.
- Insurance. Company agrees to obtain and maintain in force and effect reasonable policies of liability insurance or self-insurance to insure itself and its employees, agents, and contractors for liability arising out of activities to be performed under, or in any manner related to, this Agreement. Upon reasonable request Company shall provide relevant information regarding its policies of insurance including, without limitation, coverage limits.
- Governing Law. Any dispute arising out of this Agreement shall be governed by and interpreted in accordance with the laws of the State of New York, without regard to choice or conflict of law provisions or rules, and the competent courts of New York, NY shall have exclusive jurisdiction over this Agreement.
- Injunctive Relief. The Parties agree that money damages may not be a sufficient remedy for a breach of this Agreement and that, in addition to all other available legal or equitable remedies, the non-breaching party will be entitled to seek equitable relief, including injunction and specific performance, for any breach of the provisions of this Agreement, without proof of actual damages.
- Miscellaneous. All notices given under this Agreement shall be in writing and shall be deemed to have been duly given: when delivered, if delivered by messenger during normal business hours of the recipient; when sent, if transmitted by facsimile or e-mail transmission during normal business hours of the recipient; or on the third business day following posting, if posted by international air mail. Company shall not assign or transfer this Agreement, or any part thereof, without the prior review and written consent of Dario, and any such assignment without such written consent shall be void and have no binding effect. No failure or delay by a party in exercising its rights under this Agreement shall operate as a waiver of such rights or estop enforcement thereof, and no waiver of any breach shall constitute a waiver of any prior, concurrent, or subsequent breach or estop enforcement thereof. This Agreement sets forth the entire agreement between the Parties relative to the subject matter hereof. Any representations, promise, or condition, whether oral or written, not incorporated herein shall not be binding upon any party. If any portion of this Agreement shall for any reason be invalid or unenforceable, such portion shall be ineffective only to the extent of such invalidity or unenforceability, and the remaining portions shall remain valid and enforceable and in full force and effect. Nothing contained in this Agreement shall constitute, or be construed to create, a partnership, joint venture, agency or any other relationship other than that of independent contractors to this Agreement.
Last Update November 25, 2019