Somatix Terms of Service

August, 2019

The following Terms of Service is an agreement between you and Somatix, Inc. (either “Somatix”, “we” or “us”) and shall govern your (“you”, or the “User”) use of the Somatix SmokeBeat™ Smoking Cessation Monitoring solution and SafeBeing™ – Remote Patient Monitoring solution (each, a “Solution,” and together, the “Solutions”), the SERF™ (Social, Emotional, Rational and Financial) Incentive program, and any other current and future Somatix services and tools (each, a Somatix “Service”).

BY ACCESSING, USING OR INTERACTING WITH THE SERVICE, YOU SIGNIFY ELECTRONICALLY THAT YOU AGREE TO THESE TERMS AND TO THE SOMATIX PRIVACY POLICY (available at Privacy Policy AND ANY OTHER LEGAL NOTICE MADE AVAILABLE THROUGH THE SOLUTION APPLICATIONS (COLLECTIVELY AND SEPARATELY REFERRED TO AS THE “SOMATIX TERMS OF SERVICE”). If you do not agree, do not use the Service.

About the Services.

Somatix is an end-to-end gesture detection platform enabling tracking, analysis and management. It is based on the realization that precision tracking of body motion, and specifically hand gestures, is the key to determining, sorting through and comprehending lifestyle indicators that can impact a person’s physical and emotional state. Utilizing sensors built into a range of wearables, including smartwatches and smartbands, the Somatix gesture detection platform can determine, for example, how many times a day smokers raise their hands up to their mouths, or the Activities of Daily Living (ADLs) of elderly people or other population under care, such as sleep and liquid consumption.

These Somatix Terms of Service will apply to the Users and any third party grant the right to view and\or provide information.

Our SmokeBeat™ Solution is a smoking tracking and monitoring solution enabling improved user compliance and adherence with prescribed cessation therapy.

Our SafeBeing™ Solution is a solution contributing to enhanced well-being of elderly individuals or other population under care via monitoring of their ADLs (Activities of Daily Living), identification of any sign of deterioration in their health, and provision of assistance in emergency situations.

Our Solutions are intended for general audiences and for personal use only. The Solution Applications are a consumer service and are not designed to be used in connection with commercial activities by you.

Types of Accounts. By your use of the Services you may be qualified for a specific type of account:

User Account: the users of the Services, including the person who wears the Wearable.

Viewer Account: for any person that the User allows to receive viewing options about the User’s condition and status.

Admin. Account: for any person that the User allows to receive viewing options about the User’s condition and status and that provides the User with notices about certain personal needs.

Unless otherwise indicated in a specific section of these Terms of Service, all sections are applicable to all Users of our Solutions and to all Services.

No Medical Advice. Somatix provides the Services for informational purposes only. The Service should not be interpreted as medical advice or opinion and should not be used as a substitute for medical advice, diagnosis or treatment. If you require medical advice or services, you should consult your physician. Your use of the Services does not create a doctor-patient relationship between you and Somatix.

You hereby agree that, before using the Services, you shall consult your physician. Reliance on any content or other information provided on or through the Solutions, by Somatix or any third party, is at your own risk and Somatix assumes no liability thereof.

Applicable to: All Services

Applicable to: All Accounts

Hardware and Software Requirements: In order to use the Service, you must have a compatible wearable smartwatch or wristband (the “Wearables”), mobile devices, access to the internet and mobile messaging and data services, and certain necessary software. Obtaining such hardware and software may entail costs to you, as well as wireless, data or text messaging charges which may apply. Check with your carrier to verify whether there are any such fees that may apply to you.

By accessing the Services through an application which was downloaded from an app store such as Google Play, the Apple App Store, etc. (collectively, the “Application Store”) or a similar type of store, you acknowledge, agree and accept that: (1) these Somatix Terms of Service are between Somatix and you and the App Store is not a party to these Somatix Terms of Service; (2) the Application Store has no responsibility for the Solution application or the content of the Solution application; and (3) your use of the Solution must be in compliance with the Application Store’s terms of service.

Changes to the Service. The Somatix Services or any part may be changed, updated, added to, limited or terminated, at any time, temporarily or permanently, without notice, for any reason or no reason by Somatix in its sole discretion (“Updates”). You agree to bear the risks of and hold Somatix harmless from any and all effects that the Updates may have on you and your ability to use the Somatix Services, in whole or in part.

Registration. You agree that you will provide true, accurate, current and complete information about yourself as part of the Service registration process and that you will maintain and promptly update your information to keep it true, accurate, current and complete.

Applicable to: All Services

Applicable to: View Account/Admin. Account

Password Protection. Before completing your registration process you may be required to create a password. The holders of all Accounts and password has the ability and discretion to edit the user details provided in the user profile for such account. For this reason, as well as for other reasons it is very important to choose a difficult password, to keep your password in a safe place and to use updated anti-virus software. It is your responsibility to keep your password and username secure and you are fully responsible for all activities that occur under your password or account. We are not liable for any loss or damage arising from your failure to comply with this section.

Privacy Policy. The Somatix Privacy Policy explains the practices that apply to your information when you use the Service. Your ongoing use of the Service signifies your consent to the Privacy Policy. You can review the Privacy Policy by clicking on the Privacy Policy available at the following link: http://www.Somatix.com/privacy.html.

Children under 13. All of our Service are intended for use by persons 18 years of age and older. If you are under the age of 18, please do not use our Services.

Without derogation from the above, under no circumstances should the Service be used by children under 13 years of age. We do not knowingly collect, use or disclose personal information from children under the age of 13 and do not wish to do so. If you are under 13 years of age, do not use the Service and do not provide any personal information to us. In the event that it comes to our knowledge that a person under the age of 13 is using our Services, we reserve the right to prohibit and block such user from accessing our Services and will make all efforts to promptly delete any personal information.

Applicable to: All Services

License to Use the Service. We grant you a personal, non-exclusive, non-transferable, limited and revocable license to download and install our Solutions and to use the Service subject to the terms of these Somatix Terms of Service. You may not use the Service in a manner that exceeds the rights granted for your use of the Service and its content. Without limitation of the foregoing, you may not reproduce, reprint, copy, store, publicly display, broadcast, transmit, modify, translate, port, publish, sublicense, assign, transfer, sell, loan, make derivative works or otherwise distribute a Service or the content provided therein without our prior written consent. You may not circumvent any mechanisms for preventing the unauthorized reproduction or distribution of a specific Solution or the Service. Your license terminates immediately upon cancellation or termination of your account or if we believe you are in violation of these Terms of Service. You agree that any licensor or provider of the content or information to the Service is a third party beneficiary of these Somatix Terms of Service (“Licensor”), and that such Licensor will have the right to enforce such provisions in its own name, whether at law or in equity, to the same extent as if such Licensor was a party to these Somatix Terms of Service. You agree that you will not raise lack of privity as a defense against any Licensor seeking to enforce the provisions of these Somatix Terms of Service.

Your Responsibilities. You may use the Service for lawful purposes only. You are responsible for all activities under your account, including all legal liability incurred from the use of your Somatix account by you or others. You agree that you will not access or use the Solutions, the Service or the information and content provided therefrom, or otherwise engage in any conduct that:

  • violates or infringes the rights of others including, without limitation, patent, trademark, trade secret, copyright, publicity or other proprietary rights;
  • is unlawful;
  • uses technology or other means to access the Service or content that is not authorized by us;
  • encourages conduct that would constitute a criminal offense, or that gives rise to civil liability; offers, promotes or encourages betting or wagering prohibited by law;
  • violates these Somatix Terms of Service, guidelines or any policy posted on the Service;
  • interferes with any other party’s use and enjoyment of the Service; or
  • publishes misrepresentations or misleading information including, without limitation, with regard to any medical advice or health information.

You agree that we may take any legal and technical remedies to enforce these Somatix Terms of Service, including without limitation, immediate termination of your account or access to any Service if we believe in our discretion you are violating these Somatix Terms of Service.

Applicable to: All Services

Applicable to: All Accounts

Proprietary Rights. Somatix owns all intellectual property in the Somatix Services, the Solutions and the proprietary Somatix gesture detection platform, including but not limited to Somatix’s databases, components and algorithms. You may not modify, publish, transmit, display, participate in the transfer or sale of, create derivative works or in any way exploit the content of the Somatix Services or any portion of such Services. Except as otherwise expressly permitted under copyright law, you may not copy, redistribute, publish, display or commercially exploit any material from the Somatix Services without the express permission of Somatix. No portion of the content available in connection with the Somatix Services may be stored in a computer except for personal and non-commercial use.

Somatix™, SmokeBeat™, SafeBeing™ and the Somatix Logos and/or other Somatix products referenced herein are trademarks and/or servicemarks of Somatix Inc. Other products and companies’ names or marks may be the trademarks or servicemarks of their respective owners. No license is granted to you in these Somatix Terms of Service, either expressly or implicitly, to use any trademark, servicemark, names or logos of Somatix.

Materials You Send or Post. While you retain ownership of all right, title, and interest in any information, documents, content or other material (“Material”) sent by you to Somatix or posted by you in connection with the Services, by sending or posting such Materials you hereby grant Somatix, its affiliates, subsidiaries, assignees, licensees and legal representatives an irrevocable, perpetual, worldwide license to use, reproduce, edit, market, store, distribute, have distributed, publicly and privately display, communicate, publicly and privately perform, transmit, have transmitted, create derivative works based upon, and promote the Materials (as such may be edited and modified by Somatix in its discretion) through the Services and such other products or services as Somatix may designate in any medium now known or hereafter devised, for editorial, commercial, promotional and all other purposes.

You agree that you will not upload, post, submit or send any Material through the Services that: (1) is offensive, harmful, vulgar, sexually explicit, or unlawful; (2) you don’t have a right to transmit under any law, including but not limited to, Material that infringes patent, trademark, trade secret, copyright or other proprietary right or violates any right of privacy or publicity; (3) contains software viruses or any other computer code that may be harmful to Somatix or to internet users in general; (4) is unsolicited advertising, promotional materials or any other forms of solicitation; (5) impersonates in any way any person, entity or Somatix official; (6) collects or stores personal data about other users in any way or form or solicits or harvests passwords or screen names; or (7) is confidential, secret or proprietary information belonging to someone else.

Applicable to: SmokeBeat™

Applicable to: All Accounts

Aggregated Information.

Without derogating from the respective provisions of our Privacy Policy, any statistical or other information that we derive from your use of the Services is considered our proprietary content.

Allowing access to your Account by Others.

You may allow a third party to access your account as a viewer to view your shared information (such as geographic location or step count). We offer this feature in order to enable those close to you, (such as family members, guardian, medical staff, etc.) to be able to view certain information collected on you within the course of the Services, for their purpose. However, we cannot control nor monitor the manner in which such information is used by such third parties, and you are thus required to review any such access permission periodically, and take additional measures in making sure that your information is not abused.

You may allow others to access your account as a personal recommendation provider to provide recommendations for your personal use of the Services (such as notations about medicines that you should take).

Content Provided by Third Parties. The Service may include content provided by Admin. Account users or third parties. We do not endorse these third-party sites, services or content. We are not responsible or liable for any content, products or services, or other material on these third-party sites. SOMATIX DOES NOT: (I) GUARANTEE THE ACCURACY, COMPLETENESS, OR USEFULNESS OF ANY THIRD-PARTY INFORMATION ON THE SERVICE; OR (II) ADOPT, ENDORSE OR ACCEPT RESPONSIBILITY FOR THE ACCURACY OR RELIABILITY OF ANY OPINION, ADVICE OR STATEMENT PROVIDED BY A THIRD-PARTY BY MEANS OF THE SERVICES. UNDER NO CIRCUMSTANCES WILL SOMATIX BE RESPONSIBLE FOR ANY LOSS OR DAMAGE RESULTING FROM YOUR RELIANCE ON INFORMATION OR OTHER CONTENT POSTED ON THE SERVICES OR TRANSMITTED TO OR BY ANY THIRD-PARTY.

Applicable to: All Services

Applicable to: View Account/Admin. Account

You agree that the Service may be supported by advertising. Somatix does not endorse any service or product that may be offered by any third-party advertising through the Somatix Services. Any dealings that you have with advertisers found on the Service are between you and the advertiser and you acknowledge and agree that we are not liable for any loss or claim you may have against an advertiser.

You agree to use the Services at your sole risk and that Somatix shall have no liability to you for information, material or subject matter that is found to be offensive, indecent or objectionable.

Procedure for Making Claims of Copyright Infringement. We respect the intellectual property of others. If you believe that your work has been copied in a way that constitutes copyright infringement, you may file a copyright infringement notice with us. If you are unsure whether there has been an infringement of your copyright in material used in connection with the Services, we suggest that you seek legal advice before reporting the material to Somatix or sending us a counter-notice. This “notice and takedown” process is regulated by statute. The infringement notice sent to us will be forwarded to the user who provided the allegedly infringing material. There may be negative consequences if you falsely allege copyright infringement or report material to Somatix in bad faith, including liability for damages.

If you choose to file a copyright infringement notice, the notice should be in writing and include the following: (1) a description of the copyrighted work that you claim has been infringed, which should include the type of work and any relevant further details (such as the title and date of publication, as applicable); (2) identification of the material that infringes the above copyrighted work. Please provide us with an exact URL of this material; (3) a statement that you believe in good faith that the use of the material used in connection with our Services is not authorized by the owner of the copyright, including a description of the way in which the copyrighted material has been infringed; (4) the country or countries to which your copyright applies; (5) a statement by you, made under penalty of perjury, that all the information in your notice is accurate and that you are authorized to act on behalf of the infringed copyright owner; (6) a way to get back to you- email address and telephone number; (7) your physical or electronic signature.

You can submit your complaint by sending an email to [email protected], or by sending your request to our physical address:

Attn: Copyright Officer
Somatix Inc.
3 Columbus Circle, 15th Floor
New York, NY 10019

Charging Policies. Generally, the Somatix Services are provided to you free of charge. Please note that when using Somatix Services on mobile devices you may be charged by your cellular operator for data or access to the internet. Therefore, please check with your cellular provider of any charges that will apply when using the Somatix Services through your mobile device.

Applicable to: All Services

Applicable to: All Accounts

Support. You understand that your use of the Somatix Services is at your own risk and that Somatix provides no assistance other than the information posted on the Somatix Web site (www.somatix.com). Somatix is under no obligation to provide you with any error corrections, updates, upgrades, bug fixes and/or enhancements of any Somatix Service.

DISCLAIMER. WE PROVIDE THE SERVICE “AS IS” AND WITH ALL FAULTS. WE MAKE NO REPRESENTATIONS WHATSOEVER OR ANY WARRANTIES WITH RESPECT TO THE INFORMATION, MEDICAL, HEALTH, LIFESTYLE OR OTHER INFORMATION PROVIDED THROUGH THE SERVICE. YOU ARE USING THE SERVICE AT YOUR OWN RISK. WE, OUR EMPLOYEES, CONTRACTORS, LICENSORS AND DISTRIBUTORS DISCLAIM ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES THAT THE SERVICE IS FREE OF DEFECTS AND ABLE TO OPERATE ON AN UNINTERRUPTED BASIS, THAT ALL DATA WILL BE SUCCESSFULLY OR SECURELY UPLOADED AND STORED ON THE SERVICE, OR THAT IT WILL MEET YOUR REQUIREMENTS. WE DISCLAIM THE IMPLIED WARRANTIES THAT THE SERVICE IS MERCHANTABLE, OF SATISFACTORY QUALITY, RELIABLE, ACCURATE, FIT FOR A PARTICULAR PURPOSE OR NEED, OR NON-INFRINGING, UNLESS SUCH IMPLIED WARRANTIES ARE LEGALLY INCAPABLE OF EXCLUSION. FURTHER, WE, OUR EMPLOYEES, CONTRACTORS, LICENSORS AND DISTRIBUTORS DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE SERVICE IN TERMS OF ITS CORRECTNESS, ACCURACY, PROFITABILITY OF THE SERVICE, RELIABILITY, SUCCESS IN AIDING YOUR CESSATION OF SMOKING OR OTHER UNHEALTHY HABITS OR OTHERWISE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY US OR AN AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF ANY WARRANTY THAT CANNOT BE DISCLAIMED UNDER APPLICABLE LAW. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THESE SOMATIX TERMS OF SERVICE.

RISK ASSUMPTION. YOU KNOWINGLY AND FREELY ASSUME ALL RISK WHEN USING THE SOLUTION APPLICATIONS AND SERVICES. YOU, ON BEHALF OF YOURSELF, YOUR PERSONAL REPRESENTATIVES AND YOUR HEIRS, HEREBY VOLUNTARILY AGREE TO RELEASE, WAIVE, DISCHARGE, HOLD HARMLESS, DEFEND AND INDEMNIFY SOMATIX AND ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, AFFILIATES, REPRESENTATIVES, SUBLICENSEES, SUCCESSORS, AND ASSIGNS FROM ANY AND ALL CLAIMS, ACTIONS OR LOSSES FOR BODILY INJURY, PROPERTY DAMAGE, WRONGFUL DEATH, EMOTIONAL DISTRESS, LOSS OF SERVICES OR OTHER DAMAGES OR HARM, WHETHER TO YOU OR TO THIRD PARTIES, WHICH MAY RESULT FROM YOUR USE OF THE SERVICES.

LIMITATION OF LIABILITY. WE, OUR LICENSORS AND DISTRIBUTORS HAVE NO LIABILITY WITH RESPECT TO YOUR USE OF THE SERVICE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL WE OR OUR AFFILIATES, DIRECTORS, EMPLOYEES, DISTRIBUTORS, LICENSORS, SUPPLIERS, PARTNERS, AGENTS OR RESELLERS BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES ARISING OUT OF OR IN ANY WAY RELATING TO THESE SOMATIX TERMS OF SERVICE OR THE USE OF OR INABILITY TO USE THE SERVICE, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, LOST PROFITS, LOSS OF DATA, CORRUPTION OF DATA, COMPUTER FAILURE OR MALFUNCTION. YOUR SOLE REMEDY WITH RESPECT TO ANY DISPUTE WITH US OR THE SERVICE IS TO CANCEL YOUR USE OF THE SERVICE.

Indemnification. You agree to defend, indemnify, and hold harmless us and our respective employees, contractors, officers, directors, and agents from all liabilities, claims, and expenses, including attorney’s fees, that arise from your use or misuse of the Service. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will cooperate with us in asserting any available defenses.

International Use. The Services are intended to be used solely in the United States of America, and we make no representation that the Service is appropriate or available for use in any other country, geographic area or jurisdiction where you are located.

Choice of Law and Location for Resolving Disputes. You agree that the laws of the State of New York govern these Somatix Terms of Service and any claim or dispute that you may have against us, without regard to its conflict of laws rules. You further agree that any disputes or claims that you may have against us will be exclusively resolved by a court located in New York County and you agree and submit to the exercise of personal jurisdiction of such courts for the purpose of litigating any such claim or action. You hereby waive any right for a jury trial and/or the filing of, or joining to, any class action suit.

Severability and Integration. These Somatix Terms of Service and any supplemental terms, policies, rules and guidelines posted with respect to the Service constitute the entire agreement between you and us and supersede all previous written or oral agreements.

Termination. Your right to use the Service automatically terminates if you violate these Somatix Terms of Service or any rules or guidelines posted in connection with the Service. We also reserve the right, in our sole discretion, to terminate your access to all or part of the Service, for any reason, with or without notice.

Changes to the Terms of Service. Somatix may change from time to time, these Somatix Terms of Service. You agree that your use of the Service beyond a period of 14 days after a notice of such change has been provided on the Somatix Services for the first time, shall constitute your consent to the new or revised Somatix Terms of Service.

Rights and Remedies. You acknowledge that the Somatix Services contain Somatix’s proprietary and confidential information, and that disclosure of such information or misuse of the Somatix Services will give rise to irreparable injury to Somatix, inadequately compensable in damages. Accordingly, Somatix may seek and obtain injunctive relief against such disclosure or misuse or threatened disclosure or misuse, in addition to any other legal remedies that may be available.

Electronic Delivery Policy and Your Consent. You acknowledge that you are agreeing to these terms online and electronically. You authorize us to provide you with required notices, agreements and information concerning the Service electronically. Somatix may send you (i) notices about your use of the Somatix Services, including any notices concerning violations of use, (ii) updates, and (iii) promotional information to an e-mail address provided by you on or through any of the Somatix Services.

We will provide you our notices either by sending them to the e-mail address that you give to us, text messages to your phone, or by posting the notices on the home page of the Service or on the relevant web page of the applicable service. If you want to withdraw your consent to receive notices electronically, you must discontinue your use of the Service. You acknowledge that the various notes, notices and warnings available on the Somatix Services, are provided as a convenience only. The inclusion of such does not constitute an obligation on Somatix to provide such notes, notices and warnings in other places or features with respect to the Somatix Services.

Survival. The provisions of these Somatix Terms of Service addressing restrictions on use, disclaimers of representations and warranties, indemnity obligations, intellectual property and governing law shall survive the termination of these Somatix Terms of Service and your use of the Somatix Services.

Construction. If any part of these Somatix Terms of Service is held invalid or unenforceable, that portion shall be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of the parties, and the remaining portions shall remain in full force and effect.

Transfer of Rights. Somatix may transfer, assign sublicense or pledge in any manner whatsoever, any of its rights and obligations under these Somatix Terms of Service to a subsidiary, affiliate or successor or to any third party whatsoever, without notifying you or receiving your consent. You shall not transfer, assign, delegate, sublicense or pledge in any manner whatsoever, any of your rights or obligations under these Somatix Terms of Service. For example, and without any limitation, you shall not transfer, assign, sell or offer for sale any Somatix Wearables, nor purchase or receive such Somatix Wearables from any third party.

Headings. The headings and captions used in these Somatix Terms of Service are inserted for convenience only and will not affect the meaning or interpretation of these Somatix Terms of Service.

Copyright (c) 2019 Somatix, Inc. ALL RIGHTS RESERVED