Last Updated: 03/07/20
The Overwatch Terms of Service Agreement (“Agreement”) is a legal agreement between you (“you,” “your”) and Overwatch Digital Health, Inc. and its affiliate or subsidiary entities (collectively, “Overwatch,” “we,” “our” or “us”) governing Overwatch’s iOS and Android epilepsy seizure monitoring applications (each, an “Overwatch App” and collectively, the “Overwatch Apps”), the website located at www.overwatchdh.com (or such other website as Overwatch may designate from time to time)(each, an “Overwatch Platform”) and services offered by or through Overwatch and/or Overwatch’s affiliates or subsidiary entities, including software and/or hardware related services or rights of use, (collectively, the “Overwatch App Services”) and hardware products, devices, or equipment (collectively, the “Products”) that Overwatch may currently or in the future provide or offer. To receive or use the Overwatch Apps, the Overwatch App Services, Products, or your Overwatch Account (as defined below), you must accept all of the terms of this Agreement. If you do not agree with these terms and do not want to be bound by this Agreement, you may not use, access, or order the Overwatch Apps, the Overwatch App Services, Products or your Overwatch Account.
THIS IS A LEGAL AGREEMENT. BY PLACING AN ORDER FOR THE OVERWATCH APPS, OVERWATCH APP SERVICES OR PRODUCTS OR BY ACCESSING, USING AN OVERWATCH PLATFORM, THE OVERWATCH APPS, OVERWATCH APP SERVICES, PRODUCTS, OR YOUR OVERWATCH ACCOUNT, OR BY DOWNLOADING ANY OVERWATCH APP, YOU ARE ACCEPTING AND AGREEING TO THIS AGREEMENT IN ITS ENTIRETY ON BEHALF OF YOURSELF OR ANY USER YOU ARE SIGNING UP IN CONNECTION WITH SUCH ORDER, USE, DOWNLOAD OR ACCESS. YOU REPRESENT, COVENANT AND WARRANT THAT YOU HAVE THE POWER, RIGHT, AUTHORITY, AND CAPACITY TO ACCEPT, AGREE AND ENTER INTO THIS AGREEMENT IN ITS ENTIRETY ON BEHALF OF YOURSELF AND ANY USER YOU ARE SIGNING UP. YOU REPRESENT, COVENANT AND WARRANT THAT YOU ARE OF SUFFICIENT LEGAL AGE IN YOUR JURISDICTION OR RESIDENCE TO ACCEPT, AGREE AND ENTER INTO THIS AGREEMENT IN ITS ENTIRETY.
THIS AGREEMENT INCLUDES A CLASS ACTION WAIVER AND A WAIVER OF JURY TRIALS AND REQUIRES BINDING ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES. THIS AGREEMENT LIMITS THE REMEDIES THAT MAY BE AVAILABLE TO YOU IN THE EVENT OF A DISPUTE. IF YOU SUBSCRIBE TO THE OVERWATCH APP, OVERWATCH APP SERVICES OR PRODUCTS FOR A TERM (THE “INITIAL TERM”), THEN THIS AGREEMENT WILL BE AUTOMATICALLY RENEWED FOR ADDITIONAL PERIODS OF THE SAME DURATION AS THE INITIAL TERM AT OVERWATCH’S THEN-CURRENT FEES FOR SUCH OVERWATCH APP, OVERWATCH APP SERVICES OR PRODUCTS UNLESS YOU OPT OUT OF THE AUTORENEWAL IN ACCORDANCE WITH SECTION BELOW OR UNLESS OVERWATCH GIVES YOU NOTICE THAT IT HAS ELECTED NOT TO RENEW THIS AGREEMENT (IN ITS SOLE AND EXCLUSIVE DISCRETION).
- “Account Activity” means the payments made to the Overwatch Account within the last 30 days.
- “Android” means the “Android” operating system used in various mobile phones and smartwatches.
- “Credit Card Gateway” means a third-party service that you may choose to sign up with that handles the processing of credit card transactions.
- “Dispute” means a dispute or claim between arising out of or relating to an Overwatch Platform, the Overwatch Apps, Overwatch App Services, Products, the Overwatch Account, this Agreement or these Terms of Service.
- “Intellectual Property Rights” means all trademark, trade dress and service mark rights, patent rights, shop rights, mask work right, copyright rights, rights of publicity, goodwill, moral rights, trade secret rights and any and all other intellectual property rights as they may currently exist or exist in the future, and all applications thereof and registrations, renewals and extensions thereof, under the laws of any jurisdiction.
- “iOS” means Apple’s “iOS” operating system used on the Apple Smartwatch, iPhone or any other Apple-branded products.
- “Monthly Monitoring Fees” means the monthly subscription fees paid for access to and for the continued use of the Overwatch App Services.
- “Overwatch Account” means an account that is created that allows you to access the Overwatch App, Overwatch App Services or Products provided by Overwatch.
- “Overwatch Platform” means the website located at www.overwatchdh.com or any other online platform, domain or sub-domain owned and/or operated by or on behalf of Overwatch for purposes of marketing, advertising or creating an online presence for Overwatch and/or its products and services.
- “Software License” means the software license between you and Overwatch to allow you to use the Overwatch Apps, Products or Services.
- “User Content” means any content uploaded or changed by you, including but not limited to, text, photos, and other information.
- “User Data” means any data obtained, created or modified from the use of an Overwatch Platform, the Overwatch Apps, Overwatch App Services or Products including but not limited to, patient or user data, financial data, transaction data, order data, credit card signatures, and logs.
Promotional Offer Terms and Conditions
These promotional offer terms and conditions (these “Promotional Terms and Conditions”) apply to Overwatch’s Promotional Offer (the “Promotional Offer”), which is made to you by Overwatch. The Promotional Offer entitles you to a period of one (1) month free Overwatch App Service (the “Introductory Trial Period”).
If you decide that you do not want to continue using the Overwatch App Service following the Introductory Trial Period, you have to cancel your subscription by logging into your Overwatch Account or by contacting our Customer Care Team at (833) 316-6114 prior to the end of the Introductory Trial Period. Otherwise, at the end of the Introductory Trial Period, your Overwatch App Service will automatically renew every month at the regular Monthly Monitoring Fee and the payment method you provided will automatically be charged the Monthly Monitoring Fee each month until you cancel (Monthly Monitoring Fees are not pro-rated for partial months).
If Overwatch increases the Monthly Monitoring Fee for the Overwatch App Service following the Introductory Trial Period, we will provide you with notice. Price changes will take effect at the start of the next subscription period following the date of the announced price change. By continuing to use the Overwatch App Service after the price change takes effect, you accept the new Monthly Monitoring Fee. You may only use the Promotional Offer once. If you have previously subscribed to the Promotional Offer, you are ineligible subscribe again. The Overwatch App Service may only be used on iPhone iOS 6S Plus (or later) and only on approved cellular carriers in the United States.
Overwatch is offering a limited number of Promotional Offers and reserves the right to cancel or discontinue this program at any time, for any reason and without any prior notice.
The section headings contained in this Agreement are for reference purposes only and shall not in any way be used to construe meaning, intent or affect the interpretation of this Agreement.
To utilize the Overwatch App and the Overwatch App Services, you will need to create an Overwatch Account. During registration you will be asked for your personal information and information for your designated caregivers. The information that you submit to create your Overwatch Account must be complete, accurate and up to date. You must also keep this information in your Overwatch Account up to date during the term of the subscription (including any renewals). If you open a Overwatch Account for another individual, you represent, covenant and warrant that you are an authorized representative of such individual with the authority to bind the entity to this Agreement, and that you agree to this Agreement in its entirety on their behalf. We reserve the right to suspend or terminate any Overwatch Account that fails to comply with the account registration requirements or that we find to contain information that is untrue, inaccurate, incomplete, or outdated. We reserve the right to suspend or terminate any Overwatch Account, revoke any Software License and delete all data associated with any Overwatch Account without prior notice if there has been no Account Activity in any Overwatch Account for a period of 180 days. You are responsible for all activities that occur under the Overwatch Account that you created. You agree to immediately notify Overwatch of any unauthorized use or suspected unauthorized use of the Overwatch Account or any other breach of security or strange or unusual activity.
Overwatch App Services
The Overwatch App Services may include software applications and web-based software. You must install any and all software application and web-based software updates as advised by us in order to continue using the Overwatch App Services. From time to time, older hardware or computer programs may no longer be compatible with the latest software applications and web-based software updates. It is your responsibility to upgrade any hardware or computer programs as needed to continue using the Services.
Mobile Devices and Third-Party Carriers
Use of an Overwatch Platform, Overwatch Account, the Overwatch App and the Overwatch App Services requires compatible mobile devices and an internet connection that meets certain minimum speed requirements for which you are responsible for providing. You are solely responsible for any fees, including Internet connection or mobile fees, that are incurred when accessing the Overwatch Apps, the Overwatch App Services, Products or an Overwatch Account. You are responsible for determining the compatibility of the Overwatch Apps, the Overwatch App Services, or Products with other products and services you use. Overwatch is not liable for any required or necessary agreements with the mobile device provider or internet service provider and does not warrant that the Overwatch App Services or the Overwatch Account will be compatible with your mobile device provider or your internet service provider. Any mobile device that has been illegally altered or modified in any way is not a compatible device. You understand and accept that use of such a device is prohibited, a violation of the terms of this Agreement, and could result in the suspension or termination of your Overwatch Account.
Unauthorized, Improper or Illegal Use
If it is determined that an Overwatch Account has been used for potential or actual immoral, unsuitable, injurious, destructive, improper, illegal or criminal purposes you acknowledge and authorize Overwatch to share any information about you, your Overwatch Account, your use of the Overwatch Apps, Overwatch App Services or Products and any other data deemed necessary or appropriate by Overwatch (in its sole and exclusive discretion) to the appropriate law enforcement agencies. In addition, you acknowledge and authorize Overwatch to share any information that has been provided to Overwatch and any other data requested by a third-party in response to answering or responding to a valid subpoena issued by a court or administrative agency. You are responsible for verifying that the Overwatch Apps, Overwatch App Services, Products, or your Overwatch Account and their functionality comply with all applicable laws, including but not limited to local, state, and federal laws, that may govern their usage or the features contained therein. You agree that you will not use the Overwatch Apps, Overwatch App Services, Products, or your Overwatch Account or certain features contained within therein if it is not legal to do so in your location. You agree to not to pursue any damages or remedies against Overwatch relating to or arising out of the same. You are solely responsible for your use of the Overwatch Apps, Overwatch App Services, Products, or your Overwatch Account and the features therein, and you agree that such use by you is a waiver of any claims you may have against Overwatch in the event such their usage, or the features contained therein violate any applicable local, state, or federal laws.
Overwatch’s Monthly Monitoring Fees do not include Taxes (as defined below), unless expressly indicated otherwise by Overwatch on an invoice. If any Overwatch Apps, Overwatch App Services or Products or payments for any Overwatch Apps, Overwatch App Services, or Products, under this Agreement are subject to Tax in any jurisdiction and you have not remitted the applicable Tax to Overwatch, you will be responsible for the payment of such Tax and any related penalties or interest to the relevant tax authority. You represent and covenant that you will indemnify Overwatch and its affiliates or subsidiary entities for any liability or expense that Overwatch or its affiliates or subsidiary entities may incur in connection with such Taxes, including penalties, late charges or interest. For purposes of this section, “Tax” or “Taxes” shall mean any and all sales, use, property, value added, or other transactional taxes, duties, levies or other amounts arising out of or related to your purchase, subscription to or use of the Overwatch Apps, Overwatch App Services, or Products. Taxes do not include Overwatch’s income taxes in the United States of America. You agree to make all payments of Monthly Monitoring Fees to Overwatch in United States dollars free and clear of, and without reduction for, any Taxes.
Monthly Monitoring Fees
In order to access or use the Overwatch Apps, Overwatch App Services or the Overwatch Account you agree to pay all Monthly Monitoring Fees to Overwatch as agreed in writing by Overwatch in an order with you. Except as set forth in this Agreement, all Monthly Monitoring Fees are nonrefundable and are not pro-rated for a partial month. We reserve the right to change the Monthly Monitoring Fees for any subsequent subscription period upon notice to you. If you do not consent to the increase in the Monthly Monitoring Fees, you will need to cancel your subscription.
By providing a credit card or other payment method, you represent and warrant that you are authorized to use the designated payment method and that you authorize us (or our third-party payment processor) to immediately charge your credit card or other payment method for all fees and charges due and payable to Overwatch hereunder and that no additional notice or consent is required. If the credit card or payment method you provide cannot be verified, is invalid or is otherwise not acceptable, your use of the Overwatch App or the Overwatch App Services may be suspended or terminated. In the event you want to change or update payment information associated with your Overwatch Account, you can do so at any time by logging into your Overwatch Account and editing your payment information.
Your monthly subscription for the Overwatch App Services will continue indefinitely until terminated in accordance with this Agreement. You agree that your monthly subscription will be subject to this automatic renewal feature unless you cancel your subscription at any time prior to end of the month by contacting our Customer Care at (833) 316-6114 or if Overwatch notifies you that it is not renewing your monthly subscription (in its sole and exclusive discretion). If you do not wish your monthly subscription to renew automatically, or if you want to change or cancel your monthly subscription, please contact Customer Care at (833) 316-6114. You may also cancel your monthly subscription by logging into your Overwatch Account. If you cancel your monthly subscription, you may use your monthly subscription until the end of that month; your subscription will not be renewed thereafter. However, you will not be eligible for a prorated refund of any portion of the monthly subscription fee paid for the then current subscription period. By subscribing, you authorize us (or our third-party payment processor) to immediately charge your credit card or payment method at the beginning of your monthly subscription period, and again at the beginning of any subsequent monthly subscription period.
You acknowledge and agree that Overwatch will charge all applicable fees and charges due to the credit card or other form of non-invoice payment method that you provided to Overwatch upon order placement and prior to shipment of any Products.
Overwatch may use third party service providers for payment services (e.g., credit card transaction processing, merchant settlement, and related services). Where applicable, you agree to be bound by such third-party payment processors’ terms and conditions in connection with such services. You hereby consent to provide and authorize Overwatch and any third-party payment processor to share any information and payment instructions you provide to the extent required to complete the payment transactions in accordance with this Agreement, including personal, financial, credit card payment, and transaction information.
Overwatch reserves the right to include and utilize tools, capabilities and methods in our software and applications to allow remote access to the devices or computers that contain the software or application or the computer network to which the devices or computers are connected. We may use this remote access functionality to log in to the devices or computers to monitor, modify, alter or otherwise manipulate the data on the remote device for the purpose of providing technical support and ensuring that the Overwatch App Services function as intended.
By accepting this Agreement, you acknowledge and accept that Overwatch will post disclosures and notices required by law and any other information deemed pertinent by electronic means to include on any Overwatch Platform, via email, or in your Overwatch Account. For contractual purposes, you (i) consent to receive communications from Overwatch in an electronic form; and (ii) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Overwatch provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights. These notices will be considered received after 24 hours of posting on an Overwatch Platform, immediately upon transmission to your Overwatch Account, or notice via email and your continued use of the Overwatch App Services.
Where Overwatch requires that you provide an email address, you are responsible for providing Overwatch with your most current email address. In the event that the last email address you provided to Overwatch is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by this Agreement, Overwatch’s dispatch of the email containing such notice will nonetheless constitute effective notice. You may give written notice to Overwatch at the following address: 17440 Dallas Parkway, Suite 230, Dallas, Texas 75287. Such notice shall be deemed given when received by Overwatch by letter delivered by nationally recognized overnight delivery service or first-class postage prepaid mail at the above address.
You understand that you are able to upload or customize User Content and do so willingly without any obligation. You also agree that any User Content uploaded or customized is your own or you have explicit permission from the owner of the content to use it in connection with the Overwatch App Service. You hereby grant, and you represent and warrant that you have the right to grant, to us a fully paid, royalty free, perpetual, irrevocable, worldwide, nonexclusive, and fully sublicensable license to license, reproduce, distribute, modify, adapt, publicly display and perform, prepare derivative works of, incorporate into other works, and otherwise use your User Content (in whole or in part) for the purposes of including your User Content in the Overwatch App Services and operating, providing and promoting the Overwatch App Services.
- We reserve the right to edit, modify or delete User Content at our discretion.
- We may use any User Content for advertising or any other purposes.
- We take no responsibility and are not liable for any loss or damage to User Content.
- We reserve the right to edit, modify or delete User Data at our discretion.
- We take no responsibility and are not liable for any loss or damage to User Data.
Copyright and Trademark Infringement
Overwatch respects and honors trademark and copyright rights of others and we ask that you do the same. Any valid notices of copyright or trademark infringement to Overwatch may be responded to with suspension or termination of the Overwatch App Services of any Overwatch Account who violates the copyrights and trademarks of others.
Overwatch utilizes policies, procedures, and technical measures to protect your personal information from accidental loss or malicious acquisition, use, alteration, or access. Overwatch cannot guarantee that unauthorized personnel will never be able to access your information by circumventing or breaking the measures in place to prevent such activity. Your acknowledgement of this Agreement represents your understanding that you provide your personal information at your own risk.
This Agreement commences on the date when you first use the Overwatch App Services and continues on a month to month basis (or for any subscription term you select from our then current offerings e.g., annual), unless terminated earlier in accordance with this Agreement. The monthly subscription term will automatically renew in accordance with this Agreement.
Overwatch may permanently or temporarily terminate, suspend, or otherwise refuse to permit your access to an Overwatch Platform, the Overwatch App Services or the Overwatch Account without any notice and liability for any reason, including if in Overwatch’s sole determination you materially violate any provision of this Agreement.
Upon termination of this Agreement for any reason, you must immediately stop using the Overwatch App Services and your license to use the Overwatch App Services provided under this Agreement shall end. Overwatch may delete User Content and User Data stored on Overwatch’s servers upon your termination of this Agreement and Overwatch will not be liable to you or any third party for termination of access to the Overwatch App Services.
Subject to this Agreement, we grant you a nontransferable, nonexclusive, without rights of sublicense, revocable, limited use license to use and access, solely for your own personal, noncommercial use (i) the Overwatch App on any compatible device that you own or control, and (ii) the other aspects of the Overwatch App Services. Furthermore, with respect to any Overwatch App accessed through or downloaded from the Google Play Store or Apple App Store (each an “App Store” and references to the App Store include the corporate entity and its subsidiaries making the App Store available to you), you agree to comply with all applicable third party terms of the App Store (the “Usage Rules”) when using any Overwatch App. To the extent the terms of this Agreement provide for usage rules that are less restrictive than or otherwise in conflict with the Usage Rules, the more restrictive term applies.
The rights granted to you in this Agreement are subject to the following restrictions: (i) you agree not to license, sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit the Overwatch App Services or any leased or rented Products; (ii) you agree not to modify, make derivative works of, disassemble, reverse compile, or reverse engineer any part of the Overwatch Apps, Overwatch App Services, or Products except to the extent such restriction is prohibited by law; (iii) you agree not to access an Overwatch Platform, the Overwatch App Services in order to build a similar or competitive service; (iv) except as expressly stated herein, no part of an Overwatch Platform, the Overwatch App or the Overwatch App Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted, or transmitted in any form or by any means; (v) you agree not to upload, transmit, or distribute any computer viruses, worms, or any software intended to damage or alter a computer or communication network, computer, handheld mobile device, data, an Overwatch Platform, the Overwatch App Services or any other system, device or property of Overwatch’s; (vi) you agree not to interfere with, disrupt, or attempt to gain unauthorized access to, the servers or networks connected to an Overwatch Platform, the Overwatch App Services or violate the regulations, policies, or procedures of such networks; (vii) you agree not to access (or attempt to access) any Overwatch Platform or the Overwatch App Services by means other than through the interface that is provided by Overwatch; and (viii) you agree not to remove, obscure or alter any proprietary rights notices (including copyrights and trademark notices) which may be contained in or displayed in connection with the Overwatch Apps, Overwatch App Services, or the Products. Any future release, update, or other addition to functionality of the Overwatch App or the Overwatch App Services shall be subject to this Agreement.
You acknowledge and agree that the availability of the Overwatch App and the Overwatch App Services is dependent on the App Store from which you received the Overwatch App license. You and Overwatch acknowledge that this Agreement is between you and Overwatch and not with the App Store and that Overwatch, and not the App Store, is responsible for the Overwatch Apps and the content thereof. Overwatch is responsible for providing any maintenance and support services with respect to the Overwatch App and/or the Overwatch App Services and the App Store has no obligation whatsoever to furnish any maintenance and support services with respect to the Overwatch App and/or the Overwatch App Services. Overwatch is solely responsible for any product warranties, whether express or implied by law, to the extent not effectively disclaimed. In the event of any failure of the Overwatch App and/or the Overwatch App Services to conform to any applicable warranty the App Stores will not have any warranty obligation whatsoever with respect to the Overwatch App, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be Overwatch’s sole responsibility. You and Overwatch acknowledge that Overwatch, and not the App Store, is responsible for addressing any claims relating to the Overwatch App and/or the Overwatch App Services or your possession and/or use of thereof, including, but not limited to: (i) product liability claims; (ii) any claim that the Overwatch App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. You and Overwatch acknowledge that, in the event of any third-party claim that the Overwatch App infringes or your possession and use of that Overwatch App that third party’s intellectual property rights, Overwatch, and not the App Store, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
Ownership of the Overwatch App Services
The Overwatch App Services are licensed and not sold. Overwatch reserves all rights not expressly granted to you in this Agreement. This Agreement does not grant you any rights to Overwatch’s service marks or trademarks, or any other intellectual property rights. The Overwatch App Services are protected by intellectual property laws, including but not limited to trademark, patent, trade secret and copyright laws. Overwatch owns all Intellectual Property Rights in any Overwatch Platform, the Overwatch App and the Overwatch App Services. There are no implied licenses granted under this Agreement.
Any ideas, suggestions or comments submitted, including but not limited to ideas for new products or ways to improve the Overwatch App Services, is gratuitous and at your own risk and that we have no obligations (including without limitation obligations of confidentiality) with respect to such feedback. You agree that we may use the feedback in any way and that you waive any right to any compensation or other benefit from our use of the idea.
You will indemnify, defend, and hold us, our officers, executives, agents, independent contractors, representatives and employees harmless from and against any and all claims, losses, damages, claims, judgments, penalties, interest, tax assessments, and expense arising from any claim, action, audit, investigation, inquiry, or other proceeding instituted by a person or entity that arises out of or relates to: (i) any actual or alleged breach of your representations, warranties, or obligations set forth in this Agreement; (ii) your use of, or inability to use the Overwatch Apps, Overwatch App Services, or the Products; (iii) your violation of any law, rule or regulation of the United States or any other country; (iv) any person’s or entity’s access and/or use of an Overwatch Platform, the Overwatch Apps, Overwatch App Services or Products with your unique username or password; (v) your violation of any third-party right, including without limitation any right of privacy, publicity rights or Intellectual Property Rights.
You acknowledge and agree that products, services or technology provided by Overwatch are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, reexport, or transfer Overwatch products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.
Representation and Warranties
You represent and warrant to Overwatch that: (i) you are eighteen (18) years of age or older; (ii) you are eligible to register yourself or the individual you are signing up to use the Overwatch App and have the power, ability, and right to enter into a perform under this Agreement; (iii) the name used to create the Overwatch Account is your name or the name of the individual you signed up to use the Overwatch App who will utilize the Overwatch App and the Overwatch App Services; (iv) you (or they) will not, directly or indirectly, use the Overwatch Apps, Overwatch App Services, or the Products for illegal, immoral or fraudulent activity or to interfere with the Overwatch App or the Overwatch App Services; (v) your (or their) use of any Overwatch Platform, the Overwatch Apps, Overwatch App Services, or Products will comply with this Agreement.
YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT, To the maximum extent permitted by applicable law, USE OF THE OVERWATCH APPS, OVERWATCH APP SERVICES, OR PRODUCTS IS AT YOUR SOLE RISK AND THE OVERWATCH APPS, OVERWATCH APP SERVICES AND PRODUCTS AND ANY CONTENT THEREIN OR INFORMATION PROVIDED BY the OVERWATCH APPS, OVERWATCH APP SERVICES, AND PRODUCTS is provided on an “As Is” and “As Available” basis, WITH ALL FAULTS AND without any guarantee or warranty of any kind, STATUTORY, expressed or implied, including without limitation THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, OR NONINFRINGEMENT, all of which ARE EXPRESSLY disclaimed. No oral or written information or advice from Overwatch will create a warranty not expressly stated herein. Without limiting the foregoing, Overwatch does not warrant that the OVERWATCH APPS, OVERWATCH APP SERIVCES, OR PRODUCTS ARE reliable, correct, or accurate; that the OVERWATCH APPS, OVERWATCH APP SERVICES, OR PRODUCTS ARE virus free or contain no harmful components or code; that the OVERWATCH APPS, OVERWATCH APP SERVICES, OR PRODUCTS will be available at any given time or location, secure, or uninterrupted; that the OVERWATCH APPS, OVERWATCH APP SERVICES, OR PRODUCTS will meet your requirements; or that any defects or errors will be corrected. if permitted in Overwatch’s agreements with third-party suppliers, Overwatch will flow down to you any warranties applicable to the OVERWATCH APPS, OVERWATCH APP SERVICES, OR PRODUCTS provided by such third-party suppliers. OVERWATCH DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY APP, PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD-PARTY THROUGH OR IN CONNECTION WITH THE OVERWATCH APPS, OVERWATCH APP SERVICES, OR PRODUCTS.
Limitation of Liability
To the maximum extent permitted by applicable law, under no circumstances is Overwatch liable for any direct, indirect, punitive, incidental, special, consequential, or exemplary damages, including without limitation damages for lost profits, goodwill, use, data, or other intangible losses, that result from the use of, inability to use, or unavailability of an Overwatch Platform, the Overwatch Apps, Overwatch App Services, or Products. Under no circumstances will Overwatch be liable for any damage or loss resulting from hacking, tampering, or otherwise illegally tampering or using an Overwatch Platform, the Overwatch Apps, Overwatch App Services, or Products or your Overwatch Account, or the information contained therein. To the maximum extent permitted by applicable law, Overwatch assumes no responsibility or liability for any (i) Any unauthorized access to or use of our secure servers and/or any and all personal information stored therein; (ii) any interruption or termination of communication to or from an Overwatch Platform, the Overwatch Apps, Overwatch App Services, or Products; (iii) any bugs, viruses, worms, trojan horses, or the like that may be transmitted to or through an Overwatch Platform, the Overwatch Apps, Overwatch App Services, or Products; (iv) any errors or missing information in any content or data or for any loss or damage incurred as a result of the use of any content or data posted, emailed, transferred, transmitted, or otherwise made available through an Overwatch Platform, the Apps, Products or Services; (v) any medical conditions effects arising out of or related to the use of the Overwatch App and/or the Overwatch App Services. This limitation of liability section applies regardless of whether the alleged liability is based on contract, tort, negligence, strict liability, or any other basis, even if Overwatch has been advised of the possibility of such damages.
ACCESS TO, AND USE OF, AN OVERWATCH PLATFORM, THE OVERWATCH APPS, OVERWATCH APP SERVICES, OR PRODUCTS IS AT YOUR OWN DISCRETION AND RISK, AND THAT OVERWATCH WILL NOT BE RESPONSIBLE FOR ANY DAMAGE OR HARM RESULTING THEREFROM TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, OVERWATCH’S LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION), WILL AT ALL TIMES BE LIMITED TO THE GREATER OF (I) THE MONTHLY MONITORING FEES PAID BY YOU TO OVERWATCH IN THE PRECEDING TWELVE (12) MONTHS OR (II) TWO HUNDRED FIFTY U.S. DOLLARS (U.S. $250.00). THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE THIS LIMIT.
IF YOU BECOME DISSATISFIED IN ANY WAY WITH THE OVERWATCH APPS, OVERWATCH APP SERVICES, OR PRODUCTS THIS AGREEMENT, YOUR SOLE AND EXCLUSIVE REMEDY IS TO STOP YOUR USE THEREOF.
SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN OVERWATCH AND YOU AND IN SUCH JURISDICTIONS, THE LIABILITY OF OVERWATCH IS LIMITED TO THE FULLEST EXTENT PERMITTED BY SUCH STATE LAW.
No Warranties or Liability for Beta-Testing of New Overwatch Apps, Overwatch App Services, or Products
From time to time, we may request, and you may agree (at your sole discretion) to beta-test new Overwatch Apps, Overwatch App Services, or Products that we intend to release (each, a “New Offering”). During the period when you are beta-testing a New Offering, you agree to: (i) Utilize the New Offering in the same manner in which you have used previous Overwatch Apps, Overwatch App Services, or Products from Overwatch; (ii) Promptly notify Overwatch of any operational or other issues arising out of or related to your usage of the New Offering; and (iii) Make yourself reasonably available to assist Overwatch in trouble-shooting any operational, reporting, processing or other issues with a New Offering.
You acknowledge and agree that Overwatch shall not be liable to you for consequential, exemplary, incidental, direct or indirect damages (including legal fees and expenses or cost of replacement) or loss of profits, data, goodwill or opportunities in connection with your beta-testing of a New Offering.
You further acknowledge and agree that there are no warranties (express, implied or statutory), including, without limitation, all warranties of merchantabilty, fitness for a particular purpose and any warranties arising from course of performance and that Overwatch does not warrant that any New Offering will be error-free, uninterrupted, virus-free or secure.
By agreeing to beta-test a New Offering, you fully and forever release and discharge Overwatch, all predecessors and successors, subsidiaries, affiliates, assigns, officers, directors, trustees, executives, agents and attorneys (past and present) from any and all claims, demands, liens, agreements, contracts, covenants, actions, suits, causes of action, obligations, controversies, debts, costs, expenses, damages, judgments, orders and liabilities, of whatever kind or nature, direct or indirect, in law, equity or otherwise, whether known or unknown, arising out of or related to your beta-testing of such New Offering.
This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you without Overwatch’s prior written consent, but may be assigned by Overwatch without restriction and without your consent. Any assignment or transfer in violation of the foregoing will be null and void.
Disputes & Arbitration
In the event that a dispute arises, you agree that you will contact Overwatch to give us the opportunity to resolve the dispute. Either party may request arbitration if your dispute cannot be resolved within 60 days after presenting the dispute to the other party. All disputes that cannot be resolved informally (excluding claims for injunctive or other equitable relief as set forth below) shall be resolved by binding arbitration on an individual basis under the terms of this Section. This Section applies to you and Overwatch, and to any subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of the Overwatch App, Overwatch App Services, or Products or the Overwatch Account provided under this Agreement.
The arbitration of any Dispute shall be initiated through the American Arbitration Association and conducted in accordance with the then current and applicable rules of the American Arbitration Association (the “Arbitration Rules”) as modified by this Agreement. The arbitration shall be conducted by a single, neutral arbitrator. Any claims or disputes where the total amount of the award sought is less than Two Thousand U.S. Dollars (US $2,000.00) may be resolved through binding non-appearance-based arbitration, at the option of the party seeking relief. For claims or disputes where the total amount of the award sought is Two Thousand U.S. Dollars (US $2,000.00) or more, the right to a hearing will be determined by the Arbitration Rules. The arbitration hearing will be held in Collin County, Texas, and unless the parties jointly agree otherwise. If you reside outside of the U.S., the arbitrator shall give the parties reasonable notice of the date, time and place of any oral hearing.
The arbitrator may not award relief in excess of or contrary to what this agreement provides, order consolidation or arbitration on a class wide or representative basis, award punitive or consequential damages or any other damages aside from the prevailing party’s actual damages, or order injunctive or declaratory relief, except that the arbitrator may award on an individual basis damages required by statute and may order injunctive or declaratory relief pursuant to an applicable consumer protection statute. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Any arbitration shall be confidential, and neither you, nor Overwatch nor the arbitrator may disclose the existence, content or results of any arbitration, except as may be required by law or for purposes of enforcement or appeal of the arbitration award. If any portion of this Section is determined by a court to be inapplicable or invalid, then the remainder shall still be given full force and effect.
Each party shall bear its own costs (including attorney’s fees) and disbursements arising out of the arbitration and shall pay an equal share of the fees and costs of the American Arbitration Association.
Notwithstanding the foregoing, Overwatch may seek injunctive or other equitable relief to protect its confidential information and intellectual property rights in any court of competent jurisdiction.
ALL DISPUTES MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, INSTEAD ELECTING THAT ALL CLAIMS AND DISPUTES SHALL BE RESOLVED BY ARBITRATION UNDER THIS SECTION. ARBITRATION PROCEDURES ARE TYPICALLY MORE LIMITED, MORE EFFICIENT AND LESS COSTLY THAN RULES APPLICABLE IN A COURT AND ARE SUBJECT TO VERY LIMITED REVIEW BY A COURT. IN THE EVENT ANY LITIGATION SHOULD ARISE BETWEEN YOU AND OVERWATCH IN ANY STATE OR FEDERAL COURT IN A SUIT TO VACATE OR ENFORCE AN ARBITRATION AWARD OR OTHERWISE, YOU AND OVERWATCH WAIVE ALL RIGHTS TO A JURY TRIAL, INSTEAD ELECTING THAT THE DISPUTE BE RESOLVED BY A JUDGE. IN ANY CIRCUMSTANCES WHERE THIS AGREEMENT PERMITS THE PARTIES TO LITIGATE IN COURT, THE PARTIES HEREBY AGREE TO SUBMIT TO THE PERSONAL JURISDICTION OF THE COURTS LOCATED WITHIN COLLIN COUNTY, TEXAS, FOR SUCH PURPOSE AND WAIVE ANY ARGUMENTS FOR FORUM NON CONVIENS.
This Agreement shall be governed by and construed in accordance with the laws of the State of Texas, consistent with the Federal Arbitration Act, without regard to conflict of law principles. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
Time to Initiate a Dispute
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, YOU AND OVERWATCH AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE OVERWATCH APP, THE OVERWATCH APP SERVICES, OR THE PRODUCTS OR TO THIS AGREEMENT MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
Right to Amend
Overwatch reserves the right to alter or add to the terms of this Agreement at any time, and to delete, discontinue, change, or impose conditions at our sole discretion on any feature or function of the Overwatch App, Overwatch App Services, or Products with or without notice that we determine to be reasonable in the circumstances, including such notice on our website at www.overwatchdh.com or any other affiliated website maintained by us. Any use of the Overwatch App, the Overwatch App Services or Products after our publication of any changes shall constitute your acceptance of this Agreement as modified.
Third-Party Products and Services
Apple is a registered trademark of Apple Inc., Android is a trademark of Google Inc.
Proper use of the Apple Watch is governed by Apple’s safety instructions. Failure to follow these safety instructions could result in fire, electric shock, injury, or damage to Apple Watch or other property. Before using the Apple Watch, read all of Apple’s safety information at: https://support.apple.com/guide/watch/important-safety-information-apdcf2ff54e9/watchos
Waiver. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
Consumer Complaints. In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 9525210.
Severability. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will remain enforceable, and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
Entire Agreement. This Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.
Force Majeure. Overwatch shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
Questions, Complaints, Claims. If you have any questions, complaints or claims with respect to this Agreement or the Services, please contact us at: Overwatch Digital Health, Inc. 17440 Dallas Parkway, Suite 230, Dallas, Texas 75287 or at 833-316-6114. We will do our best to address your concerns. If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.
All provisions of this Agreement which by their nature should survive, shall survive termination of this Agreement or the Overwatch Account, including without limitation, ownership provisions, warranty disclaimers, limitation of liability and the arbitration agreement.