TERMS AND CONDITIONS

Effective date

The Effective Date of this Terms of Service is January 1, 2014.

These Terms supersede any prior agreements or earlier versions of these Terms between you and Qardio for the use of the Services.

Thanks for using Qardio! These terms of service (“Terms”) cover your use and access to the services, client software and websites (“Services”) provided by Qardio, Inc. Our Privacy Policy explains how we collect and use your information while our Acceptable Use Policy outlines your responsibilities when using our Services. If you do not agree to these Terms, you do not have the right to access or use our Services or purchase any products or services from the Qardio Market. If you do register for or otherwise use our Services, or purchase any products or services from the Qardio Market, you shall be deemed to confirm your acceptance of the Terms and your agreement to be a party to this binding contract. If you’re using our Services for an organization, you’re agreeing to these Terms on behalf of that organization.

By using the Service and purchasing any products in the Qardio Market, you acknowledge, accept and agree with all provisions of the Privacy Policy, including, without limitation, the use and treatment of Your Information in accordance with such Privacy Policy.

The Qardio Service consists of Qardio Software (as defined below), and other products, services and web sites hosted or made available by Qardio, which enable you to do many wonderful things on multiple mobile devices and computer systems (collectively, the “Service”). In exchange for being enabled to use the Service, you agree to abide by these Terms.

Parties of this agreement

You are one party to this contract. Except as explained in our Commercial Terms with respect to certain purchases from the Qardio Market, if you reside in the United States or Canada, then the other party to this contract is Qardio, Inc., a corporation based in California. If you reside in the European Union or Switzerland, then the other party to this contract is Qardio Europe Ltd., a company based in London, United Kingdom (“Qardio Europe”). If you reside outside of the United States, Canada, European Union, or Switzerland, then the other party to this contract is Qardio, Inc.

Qardio, Inc., Qardio Europe Ltd., as applicable, may be referred to in these Terms of Service as “Qardio,” “we” and sometimes “us”. Please review our Commercial Terms for information about additional contract terms relating to the purchase of products from the Qardio Market.

Your Information & Your Permissions

When you use our Services, you provide us with things like your name, email, biometric data and so on (“Your Information”). Your Information is yours. These Terms don’t give us any rights to Your Information except for the limited rights that enable us to offer the Services.

We need your permission to do things like hosting Your Information, backing it up, and sharing it when you ask us to. Our Services also provide you with features that may require our systems to access, store and scan Your Information. You give us permission to do those things, and this permission extends to trusted third parties we work with.

Sharing Your Information

Our Services let you share Your Information with others, so please think carefully about when you share.

Your Responsibilities

We encourage you to use a distinct and non-obvious username and password combination that is different from what you use for other services. You are responsible for maintaining the accuracy, completeness and confidentiality of Your Information, and you will be responsible for all activities that occur under your account, including activities of others to whom you have provided Your Information. We will not be liable for any loss or damage arising from your failure to provide us with accurate information or to keep Your Information secure. If you discover any unauthorized use of Your Information or suspect that anyone may be able to access Your Information, you should immediately change your password and notify our Customer Support team.

In order to use Qardio on a variety of computing devices, you’ll need to install our client software on your computers, tablets and phones. Sorry, but obtaining those devices and paying for their connectivity and data plans is your responsibility. Qardio also has no responsibility for the availability of the Internet and other telecommunication services necessary to access the Services or for the functioning of the Services.

You may not use or otherwise export the Services or any Qardio Software except as authorized by United States law and the laws of the jurisdiction in which the Services is hosted and accessed by you, or where your use any of the Qardio Software. In particular, but without limitation, the Qardio Software may not be (i) exported or re-exported into any U.S. embargoed countries or (ii) provided to or used by anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. By using the Service, you represent and warrant that you are not located in any such country or on any such list, and shall not use the Service in any such country.

Finally, our Services are not intended for and may not be used by people under the age of 14. By using our Services, you are representing to us that you’re over 14.

Software

Some of our Services allow you to download client software (“Software”) which may update automatically. So long as you comply with these Terms, we give you a limited, nonexclusive, nontransferable, revocable license to use the Software, solely to access the Services. To the extent any component of the Software may be offered under an open source license, we’ll make that license available to you and the provisions of that license may expressly override some of these Terms. Unless the following restrictions are prohibited by law, you agree not to reverse engineer or decompile the Services, attempt to do so, or assist anyone in doing so.

Right to Modify the Services

We retain the right, in our sole discretion, to implement new elements as part of and/or ancillary to the Services and any Qardio Software, including changes that may affect the previous mode of operation of the Service. We expect that any such modifications will enhance the overall Service, but it is possible that you may not agree with us. We also reserve the right to establish limits to the nature or size of storage available to you, or your continued ability to access or share, Your Information and other data, and impose other limitations at any time, with or without notice.

In connection with any modification of the Services, Qardio may automatically download software updates on your computers and devices from time to time with the intention of improving, enhancing, repairing and/or further developing the Services. Qardio will endeavor to provide you with the option of whether or not to install the update; however, in certain circumstances (e.g., security risks), Qardio may require you to install the update to continue accessing the Services. In all cases, you agree to permit Qardio to deliver these updates to you (and you to receive them) as part of your use of the Services.

Our intellectual property rights

The Services are protected by copyright, trademark, and other US and foreign laws. These Terms don’t grant you any right, title or interest in the Services, others’ content in the Services, Qardio trademarks, logos and other brand features. We welcome feedback, but note that we may use comments or suggestions without any obligation to you.

Termination

You’re free to stop using our Services at any time. We also reserve the right to suspend or end the Services at any time at our discretion and without notice. For example, we may suspend or terminate your use of the Services if you’re not complying with these Terms, or use the Services in a manner that would cause us legal liability, disrupt the Services or disrupt others’ use of the Services. We reserve the right to terminate and delete your account if you haven’t accessed our Services for 12 consecutive months. We’ll of course provide you with notice via the email address associated with your account before we do so.

Services “AS IS”

We strive to provide great Services, but there are certain things that we can’t guarantee. TO THE FULLEST EXTENT PERMITTED BY LAW, QARDIO AND ITS AFFILIATES, SUPPLIERS AND DISTRIBUTORS MAKE NO WARRANTIES, EITHER EXPRESS OR IMPLIED, ABOUT THE SERVICES. YOUR USE OF THE SERVICES AND THE PURCHASE AND USE OF ANY PRODUCTS ARE ALL AT YOUR SOLE RISK. THE SERVICES ARE PROVIDED “AS IS.” AND PRODUCTS ARE SOLD ON AN “AS IS” AND “AS AVAILABLE” BASIS. WE ALSO DISCLAIM ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. Some states don’t allow the disclaimers in this paragraph, so they may not apply to you.

Limitation of Liability

You also acknowledge that a variety of Qardio actions may impair or prevent you from accessing Your Information or using the Services at certain times and/or in the same way, for limited periods or permanently, and agree that Qardio has no responsibility or liability as a result of any such actions or results, including, without limitation, for the deletion of, or failure to make available to you, any of Your Information. You agree that we shall not be liable to you or to any third party for any modification, suspension or discontinuance of any part of the Services.

TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL QARDIO, ITS AFFILIATES, SUPPLIERS OR DISTRIBUTORS BE LIABLE FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES OR ANY LOSS OF USE, DATA, BUSINESS, OR PROFITS, REGARDLESS OF LEGAL THEORY, WHETHER OR NOT QARDIO HAS BEEN WARNED OF THE POSSIBILITY OF SUCH DAMAGES, AND EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE; (B) AGGREGATE LIABILITY FOR ALL CLAIMS RELATING TO THE SERVICES MORE THAN THE GREATER OF $20 OR THE AMOUNTS PAID BY YOU TO QARDIO FOR THE PAST 12 MONTHS OF THE SERVICES IN QUESTION. Some states don’t allow the types of limitations in this paragraph, so they may not apply to you.

Claims are Time-Barred

You agree that regardless of any statute or law to the contrary or the applicable dispute resolution process, any claim or cause of action you may have arising out of or related to use of the Services or Products or otherwise under these must be filed within one (1) year after such claim or cause of action arose or you hereby agree to be forever barred from bringing such claim.

The provisions of this section, entitled “Claims Are Time-Barred” shall be deemed to constitute a separate written legally binding agreement by and between you and us.

Resolving Disputes

Let’s Try To Sort Things Out First. We want to address your concerns without needing a formal legal case. Before filing a claim against Qardio, you agree to try to resolve the dispute informally by contacting dispute-notice@qardio.com. We’ll try to resolve the dispute informally by contacting you via email. If a dispute is not resolved within 15 days of submission, you or Qardio may bring a formal proceeding.

We Both Agree To Arbitrate

You and Qardio agree to resolve any claims relating to these Terms or the Services through final and binding arbitration, except as set forth under Exceptions to Agreement to Arbitrate below.

Arbitration Procedures

The American Arbitration Association (AAA) will administer the arbitration under its Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes. The arbitration will be held in the United States county where you live or work, San Francisco (CA), or any other location we agree to.

YOU AND QARDIO AGREE, AS PART OF THE ARBITRATION AGREEMENT, THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS PART OF ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. WE REFER TO THIS AS THE “PROHIBITION OF CLASS AND REPRESENTATIVE ACTIONS.” UNLESS BOTH YOU AND WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN YOUR OR OUR CLAIM WITH ANOTHER PERSON’S OR PARTY’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE OR CLASS PROCEEDING. THE ARBITRATOR MAY ONLY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S). ANY RELIEF AWARDED CANNOT AFFECT OTHER QARDIO USERS.

Arbitration Fees and Incentives. The AAA rules will govern payment of all arbitration fees. If you receive an arbitration award that is more favorable than any offer we make to resolve the claim, we will pay you $1,000 in addition to the award.

Exceptions to Agreement to Arbitrate

Either you or Qardio may assert claims, if they qualify, in small claims court in San Francisco (CA). Either party may bring a lawsuit solely for injunctive relief to stop unauthorized use or abuse of the Services, or intellectual property infringement (for example, trademark, trade secret, copyright, or patent rights) without first engaging in arbitration or the informal dispute-resolution process described above.

Judicial forum for disputes

In the event that the agreement to arbitrate is found not to apply to you or your claim:

If you are a resident of the United States or Canada, you and Qardio agree that any judicial proceeding (other than small claims actions) will be brought in the federal or state courts of San Francisco County (CA). Both you and Qardio consent to venue and personal jurisdiction there.
If you are a resident of the European Union or Switzerland, you and Qardio agree that any judicial proceeding (other than small claims actions) will be brought in courts of London, United Kingdom. Both you and Qardio consent to venue and personal jurisdiction there.
If you reside outside of the United States, Canada, the European Union or Switzerland, you and Qardio agree that any judicial proceeding (other than small claims actions) will be brought in the federal or state courts of San Francisco County (CA). Both you and Qardio consent to venue and personal jurisdiction there.

No Class Actions

You may only resolve disputes with us on an individual basis, and may not bring a claim as a plaintiff or a class member in a class, consolidated, or representative action. Class actions, private attorney general actions, and consolidation with other arbitrations aren’t allowed.

Controlling Law

If you are a resident of the United States or Canada, these Terms and the relationship between you and Qardio (including any dispute) shall be governed in all respects by the laws of the State of California, United States of America, as they apply to agreements entered into and to be performed entirely within California between California residents, without regard to its conflict of law provisions.

If you reside in the European Union or Switzerland, these Terms and the relationship between you and Qardio (including any dispute) shall be governed in all respects by the laws of England and shall be considered to have been made and accepted in United Kingdom, without regard to conflict of law provisions.

If you reside outside of the United States, Canada, the European Union or Switzerland, these Terms and the relationship between you and Qardio (including any dispute) shall be governed in all respects by the laws of the State of California, United States of America, as they apply to agreements entered into and to be performed entirely within California between California residents, without regard to its conflict of law provisions.

Entire Agreement

These Terms constitute the entire agreement between you and Qardio with respect to the subject matter of these Terms, and supersede and replace any other prior or contemporaneous agreements, or terms and conditions applicable to the subject matter of these Terms. These Terms create no third party beneficiary rights.

Waiver, Severability & Assignment

Qardio’s failure to enforce a provision is not a waiver of its right to do so later. If a provision is found unenforceable, the remaining provisions of the Terms will remain in full effect and an enforceable term will be substituted reflecting our intent as closely as possible. You may not assign any of your rights under these Terms, and any such attempt will be void. Qardio may assign its rights to any of its affiliates or subsidiaries, or to any successor in interest of any business associated with the Services.

Indemnity

You agree to indemnify and hold Qardio, its subsidiaries, affiliates, officers, agents, employees, advertisers and partners harmless from and against any and all claims, liabilities, damages (actual and consequential), losses and expenses (including legal and other professional fees) arising from or in any way related to any third party claims relating to your use of any of the Services, any violation of these Terms or any other actions connected with your use of the Services (including all actions taken under your account). In the event of such claim, we will provide notice of the claim, suit or action to the contact information we have for the account, provided that any failure to deliver such notice to you shall not eliminate or reduce your indemnification obligation hereunder.

Modifications

Changes in these Terms are almost certain to happen, due to changes in our Service and the laws that apply to us and you. If we make a change, we’ll do our best to provide you with advance notice, although in some situations, such as where a change is required to satisfy applicable legal requirements, an update to these Terms may need to be effective immediately. We’ll announce changes here at our site, and we also may elect to notify you of changes by sending an email to the address you have provided to us. We will also try to explain the reasons for the change.

If we do update these Terms, you are free to decide whether to accept the terms or to stop using our Service; your continued use of the Service after the effectiveness of that update will be deemed to represent your agreement with, and consent to be bound by, the new Terms. For clarity, email or other communications will not constitute an effective written agreement for this purpose.

If, through accessing or using the Services, you utilize or obtain any product or service from a third party, you may additionally be subject to such third party’s terms and conditions applicable thereto, and these Terms shall not affect your legal relationship with such third party.

You acknowledge and agree that each affiliate of Qardio shall be a third party beneficiary to these Terms and that such other companies shall be entitled to directly enforce, and rely upon, any provision of these Terms which confers a benefit on (or provides rights in favor of) them. Other than this, no other person or company shall be a third party beneficiary to these Terms.

Parties of this agreement

The Qardio Europe Ltd. phone number is: +44 20 3289 0294

Finally, the section headings in these Terms of Service are for convenience only and have no legal or contractual effect.