Swift Skin and Wound App – Terms of Use
Last Modified: May 13, 2021
TERMS OF USE
Welcome to the Swift Medical, Inc. (“Swift Medical”) mobile application Swift Skin & Wound (“App”). Our website is located at https://swiftmedical.com/ (the “Site”). Please read these Terms of Use (the “Terms”) and our Privacy Policy (https://swiftmedical.com/privacy-policy/) (“Privacy Policy”) carefully because they govern your use of our Site, the App, and dashboard or interface (“Swift Dashboard”) that may interact with our services. These Terms and the documents that are referred to herein constitute a binding obligation between you and Swift Medical. To make these Terms easier to read, the Site, our services (including but not limited to any clinical decision support tools, software tools and order sets developed by Swift, third party providers, or their licensors) and the App are collectively called the “Services.”
1a. Agreement to Terms. You are accessing the Services as an authorized user. The organization that has authorized you to use the Services has entered into a licensing agreement with Swift Medical to enable you or other specified individuals to access and use the Services (“License Agreement”). By using our Services, you represent that you have been duly authorized to access and use the Services; that you have been informed of your obligations under the License Agreement; and have agreed to comply with them; and agree to be bound by these Terms of Use.
1b. Priority of Agreements: In the event of a conflict between these Terms and the License Agreement, the License Agreement will prevail.
2. Privacy Policy. Please refer to our Privacy Policy for information on how we collect, receive, process and transmit information from our users. You acknowledge and agree that your use of the Services is subject to our Privacy Policy.
3. Changes to Terms or Services. If we wish to make any material changes to these Terms or the Services, we will only do so in accordance with the terms of the License Agreement. We will notify you of those changes by sending you or your organization an email or other notification, with an indication of when those changes will become effective. It is important that you review the changes to the Terms whenever you are notified of them. If you continue to use the Services after being notified of the changes, you are agreeing to be bound by the updated Terms. If you do not agree to be bound by the updated Terms, then you may not use the Services anymore.
For the purposes of this Section, “material change” shall not include updates to the services made in the ordinary course of business, including usability improvements, functionality enhancements, additional features, or correcting software defects provided that such changes are consistent with the terms of the License Agreement. For these changes, notice may be provided either by email or by posting the change on the Services/notification on the App.
4. Who May Use the Services?
a. Eligibility. You may use the Services only if you have been authorized by your organization, are 18 years or older, capable of forming a binding contract with Swift Medical, and are not barred from using the Services under applicable law. Additionally, use of the Services may require that you be a licensed clinician capable of rendering medical advice or interpreting information obtained from the App to effectuate patient care.
b. Registration and Your Information. If you want to use certain features of the Services you will have to create an account (“Account”).
c. Accuracy of Account Information. It is important that you provide us with accurate, complete and up-to-date information for your Account. You agree to update such information to keep it accurate and complete. If you do not , we might have to suspend or terminate your Account. You agree that you will keep your Account password secret and will not disclose it to anyone and will maintain the security of your Account. You agree to notify us immediately of any unauthorized use of your Account. You are responsible for all activities that occur under your Account, whether or not you know about them.
5. The Swift Medical Services and Disclaimer on Usage. The Services may allow clinicians, among other things, to capture, store and manage certain information about a patient’s wound. Please note that such information is or may be considered identifiable personal information (“PI”) or personal health information (“PHI”) under applicable privacy legislation in Canada or the United States and that applicable law and the entity authorizing you to use the App and to access the Services may have additional restrictions on the use and disclosure of PHI. You acknowledge and agree that Swift is not engaged in diagnosis or treatment, that the Services are not intended to provide or be the sole basis for any treatment recommendations for individual patients or groups of patients; and that the App is not a substitute for the professional judgement of healthcare providers. You agree that you shall apply reasonable clinical judgement when using the Services; and will not rely exclusively on the Services and any results or outputs from such Services when applying such reasonable clinical judgement.
6. Feedback. We welcome feedback, comments and suggestions for improvements to the Services (“Feedback”). You grant to us a non-exclusive, transferable, worldwide, perpetual, irrevocable, fully-paid, royalty-free license, with the right to sublicense, under any and all intellectual property rights that you own or control to use, copy, modify, create derivative works based upon and otherwise exploit the Feedback for any purpose.
7. Content Ownership, Responsibility and Removal
a. Definitions. For purposes of these Terms: (i) “Content” means text, graphics, images, music, software, audio, video, works of authorship of any kind, and information or other materials that are posted, generated, provided or otherwise made available through the Services; and (ii) “User Content” means any Content that Account holders (including you) provide to be made available through the Services. Content includes without limitation User Content.
b. Our Content Ownership. Except as may be set out in the License Agreement, Swift Medical does not claim any ownership rights in any User Content and nothing in these Terms will be deemed to create any Intellectual Property Rights for Swift with respect to User Content or restrict any rights that you may have to use and exploit your User Content. Subject to the foregoing, Swift Medical and its licensors exclusively own all right, title and interest in and to the Services and Content that is not User Content, including all associated intellectual property rights. You acknowledge that the Services and Content are protected by copyright, trademark, and other laws of the United States and foreign countries. You agree not to remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Services or Content.
c. Usage Data. Notwithstanding anything to the contrary and except as may be set out in the License Agreement, you acknowledge and agree that Swift may monitor, collect, use, and store data regarding your use of the Services or components thereof, excluding any Personal Information and Personal Health Information (collectively, the “Usage Data”). You hereby grant Swift an irrevocable, non-exclusive, royalty free, worldwide, perpetual license to the Usage Data for the purpose of providing and enhancing the Services and their respective components.
d. Your Responsibility for User Content. You are solely responsible for all your User Content. You represent and warrant that you own all your User Content or you have all rights that are necessary to grant us the license rights in the Usage Data under these Terms. You also represent and warrant that neither your User Content, nor your use and provision of your User Content to be made available through the Services, nor any use of the Usage Data by Swift Medical on or through the Services will infringe, misappropriate or violate a third party’s intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
e. Removal of User Content. You can remove certain portions of your User Content by specifically deleting it. However, in certain instances, some of your User Content (such as posts or comments you make) may not be completely removed and, subject to compliance with obligations under applicable privacy legislation, copies of your User Content may continue to exist on the Services. We are not responsible or liable for the removal or deletion of (or the failure to remove or delete) any of your User Content.
f. Rights in Content Granted by Swift Medical. Subject to your compliance with these Terms and the License Agreement, Swift Medical grants to you a limited, non-exclusive, non-transferable license, with no right to sublicense, to download, view, copy, display and print the Content solely in connection with your permitted use of the Services.
8. Rights and Terms for Apps.
a. Rights in App Granted by Swift Medical. Subject to these Terms and the terms of the License Agreement, if applicable, Swift Medical grants to you a limited non-exclusive, non-transferable license, with no right to sublicense, to download and install a copy of the App on a mobile device or computer that you own or control and to run such copy of the App. You may not copy the App, except for making a reasonable number of copies for backup or archival purposes. Except as expressly permitted in these Terms, you may not: (i) copy, modify or create derivative works based on the App; (ii) distribute, transfer, sublicense, lease, lend or rent the App to any third party; (iii) reverse engineer, decompile or disassemble the App; or (iv) make the functionality of the App available to multiple users through any means. Swift Medical reserves all rights in and to the App not expressly granted to you under these Terms.
b. Accessing App from App Store. The following terms apply to any App accessed through or downloaded from any app store or distribution platform (like the Apple App Store or Google Play) where the App may now or in the future be made available (each an “App Provider”). You acknowledge and agree that: These Terms are concluded between you and Swift Medical, and not with the App Provider, and Swift Medical (not the App Provider), is solely responsible for the App. The App Provider has no obligation to furnish any maintenance and support services with respect to the App. In the event of any failure of the App to conform to any applicable warranty, you may notify the App Provider, and the App Provider will refund the purchase price for the App to you (if applicable) and, to the maximum extent permitted by applicable law, the App Provider will have no other warranty obligation whatsoever with respect to the App. Any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Swift Medical. The App Provider is not responsible for addressing any claims you have or any claims of any third party relating to the App or your possession and use of the App, including, but not limited to: (i) product liability claims; (ii) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. In the event of any third party claim that the App or your possession and use of that App infringes that third party’s intellectual property rights, Swift Medical will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by these Terms. The App Provider, and its subsidiaries, are third-party beneficiaries of these Terms as related to your license to the App, and that, upon your acceptance of the Terms, the App Provider will have the right (and will be deemed to have accepted the right) to enforce these Terms as related to your license of the App against you as a third-party beneficiary thereof.
You represent and warrant that (i) you are 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) you are not listed on any U.S. Government list of prohibited or restricted parties. You must also comply with all applicable third party terms of service when using the App.
9. General Prohibitions and Swift Medical’s Enforcement Rights. You agree not to do any of the following:
a. Post, upload, publish, submit or transmit any Content that: (i) infringes, misappropriates or violates a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) is fraudulent, false, misleading or deceptive; (iv) is defamatory, obscene, pornographic, vulgar or offensive; (v) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (vi) is violent or threatening or promotes violence or actions that are threatening to any person or entity; or (vii) promotes illegal or harmful activities or substances;
b. Use, display, mirror or frame the Services or any individual element within the Services, Swift Medical’s name, any Swift Medical trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without Swift Medical’s express written consent;
c. Access, tamper with, or use non-public areas of the Services, Swift Medical’s computer systems, or the technical delivery systems of Swift Medical’s providers;
d. Attempt to probe, scan or test the vulnerability of any Swift Medical system or network or breach any security or authentication measures;
e. Avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by Swift Medical or any of Swift Medical’s providers or any other third party (including another user) to protect the Services or Content;
f. Attempt to access or search the Services or Content or download Content from the Services through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools or the like) other than the software and/or search agents provided by Swift Medical or other generally available third-party web browsers;
g. Send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters or other form of solicitation;
h. Use any meta tags or other hidden text or metadata utilizing a Swift Medical trademark, logo URL or product name without Swift Medical’s express written consent;
i. Forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Services or Content to send altered, deceptive or false source identifying information;
j. Attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Services or Content;
k. Interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the Services;
l. Collect or store any personally identifiable information from the Services from other users of the Services without their express permission or as otherwise allowed under applicable law;
m. Impersonate or misrepresent your affiliation with any person or entity;
n. Violate any applicable law or regulation; or
o. Encourage or enable any other individual to do any of the foregoing.
Although we are not obligated to monitor access to or use of the Services or Content or to review or edit any Content, we have the right to do so for the purpose of operating the Services, to ensure compliance with these Terms and to comply with applicable law or other legal requirements. We reserve the right, but are not obligated, to remove or disable access to any Content, at any time and without notice, including, but not limited to, if we, at our sole discretion, consider any Content to be objectionable or in violation of these Terms. We have the right to investigate violations of these Terms or conduct that affects the Services. We may also consult and cooperate with law enforcement authorities to prosecute users who violate the law.
10. Copyright Policy. Swift Medical respects copyright law and expects its users to do the same. It is Swift Medical’s policy to terminate in appropriate circumstances Account holders who repeatedly infringe or are believed to be repeatedly infringing the rights of copyright holders.
11. Links to Third Party Websites or Resources. The Services (including the App) may contain links to third-party websites or resources. We provide these links only as a convenience and are not responsible for the content, products or services on or available from those websites or resources or links displayed on such websites. You acknowledge sole responsibility for and assume all risk arising from, your use of any third-party websites or resources.
12. Termination. Your access to the Services is subject to the terms of the License Agreement. We may terminate your access to and use of the Services, at our sole discretion, with at least 60 Days’ written notice to you. In the event of a material breach of the Terms, Swift may terminate your access to and use of the Services at any time and without notice. You may cancel your Account at any time by following the instructions noted in the Services. Upon any termination, discontinuation or cancellation of the Services or your Account, the following Sections will survive: 6, 7(c), 13, 14, 15, 16 and 17.
13. Warranty Disclaimers. The Services will be provided in accordance with the terms of the License Agreement and are subject to the limitations and disclaimers set out therein, as applicable.
14. Governing Law and Forum Choice. These terms shall be governed by and construed in accordance with the laws of the province of Ontario, without giving effect to its conflict of law provisions. You agree that you will bring any claim or cause of action arising out of your use of the Software or the various services in the courts located within Toronto, Ontario, and you also agree to submit to the personal and non-exclusive jurisdiction of those courts.
15. General Terms.
a. If any provision of these Terms is held invalid or unenforceable by a court of competent jurisdiction, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect. You may not assign or transfer these Terms, by operation of law or otherwise, without Swift Medical’s prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null. Swift Medical may freely assign or transfer these Terms without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns. The parties have expressly required that these terms and all other related documents be drawn up in the English language.
b. Notices. Any notices or other communications provided by Swift Medical under these Terms, including those regarding modifications to these Terms, will be given: (i) via email to the organization; or (ii) by posting to the Services except that notice of a material change to the Terms shall be made by email only. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted.
c. Waiver of Rights. Swift Medical’s failure to enforce any right or provision of these Terms will not be considered a waiver of such right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Swift Medical. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise.
16. Contact Information. If you have any questions about these Terms or the Services, please contact Swift Medical at [email protected].