eDiary terms of service
1.1 Introduction
The present set of Terms of Use (hereinafter the "Agreement") is an agreement between you ("you" or "user") and Salvia BioElectronics BV Salvia BioElectronics Pty Ltd (“Salvia”, “we”, “us” and “our”). This Agreement is applicable to all users of the Salvia eDiary application (“eDiary”).
Before using the eDiary, you should carefully read and ensure to fully understand the terms of this Agreement.
By downloading, clicking "agree" or “OK” and/or using the eDiary, you are deemed to have read, understood, and agreed to this Agreement and to be bound by its terms. If you do not agree to this Agreement, you should forego the use of eDiary.
1.2 User account, Accuracy & Security
1.2.1 Creating a user account
When you access and use certain parts of the eDiary you will be asked to create a user account and to provide information that personally identifies you. After successfully creating your user account, you should use it to log in and provide data items.
1.2.2 Information Accuracy
We will only process the user account set up information you provide for the purposes of verification of your identity. We will not process that information for unrelated purposes. You represent and warrant that all user information that you provide in connection with your user account and your use of the eDiary is current, complete, and accurate, and you agree that you will update that information as necessary to maintain its completeness and accuracy by updating your personal profile. You agree that you will not submit any fake contents (including without limitation any username or profile) to impersonate another person, whether actual or fictitious, or allow a third party to do so.
1.2.3 User account Security
You will be asked to provide a email address, subject ID, and possibly other information and/or to perform certain steps, to secure your user account. You may not use the subject ID of any other person, nor may you share your subject ID and email address, nor may you circumvent any authentication mechanism requiring the entry of email address, subject IDs, or any other information to gain unauthorized access to the eDiary. You agree to notify us immediately of any unauthorized use of your user account. We shall not be liable for any loss that you incur because of someone else using your user account, either with or without your knowledge. You may be held liable for losses incurred by us, our affiliates, officers, directors, employees, consultants, agents, and representatives due to you knowingly or negligently allowing someone else's use of your user account.
1.3 Privacy Policy
By using the eDiary, you represent and warrant that you have read and understood and agree to be bound by our Privacy Policy (the “Privacy Policy”). It is available here: https://www.mysalvia.com/article/ediary-privacypolicy.
1.4 Eligibility
By accessing and/or using the eDiary, you represent and warrant that: (i) you are at least eighteen (18) years of age and of legal age in your jurisdiction if different, as applicable, and are otherwise legally qualified to enter into a contract under applicable law; and that (ii) you are enrolled as study participant in a clinical investigation (“CI”) of a Salvia product and have been authorized to use the eDiary for a limited purpose communicated to you.
1.5 Data Capture and Transmission
The following data capture and transmission steps are taken during use of the application
- Initial Setup: User enters their subject ID and configures destination email address during first-time app launch, settings are stored locally for future sessions.
- Data Entry: User inputs session data (start time, end time, intensity level, and therapy type). Data is saved locally on device
- Export: User either shares or emails the data in excel format. Excel file is generated with session data in structured format. Email option automatically attaches Excel file and pre-fills the designated email address.
- Transmission: User reviews email content and attachment before sending, upon confirmation, email with Excel data is transmitted to Clinical Center.
1.6 License to Use Service
Subject to your compliance with this Agreement, we grant you a non-exclusive, non-sublicensable, revocable as stated in this Agreement, non-transferable license to access the features of the eDiary for your personal use. This license does not include, and you must not: (i) reproduce, duplicate, copy or otherwise exploit material on eDiary for a commercial purpose; (ii) edit or otherwise modify any material on eDiary; (iii) redistribute elements of eDiary except for content specifically and expressly made available for redistribution. Unless otherwise stated, Salvia owns the intellectual property rights in the eDiary and all rights not expressly granted in this Agreement are reserved by us.
1.7 Use Consent
By using the eDiary, you confirm that you agree that it be used as part of the CI.
1.8 Prohibited Conduct
We impose certain restrictions on your use of the eDiary. You shall not use the eDiary in any way that causes, or may cause, damage to Salvia or in any way which is unlawful, illegal, fraudulent or harmful. You shall not use the eDiary to copy, store, host, transmit, send, use, publish or distribute any material which consists of (or is linked to) any spyware, computer virus, Trojan horse, worm, keystroke logger, rootkit or other malicious computer software. You shall not conduct any systematic or automated data collection activities (including without limitation scraping, data mining, data extraction and data harvesting) on or in relation to eDiary without our express written consent. You shall not engage in any of the following conduct on the eDiary, which is expressly prohibited: (a) providing false, misleading, or inaccurate information to us or any other person in connection with eDiary; (b) impersonating, or otherwise misrepresenting affiliation, connection, or association with, any person or entity; (c) accessing contents or data not intended for you, or logging into a server or user account that you are not authorized to access; (d) attempting to probe, scan, or test the vulnerability of eDiary, or any associated system or network, or breaching security or authentication measures without proper authorization; (e) interfering or attempt to interfere with the use of the eDiary by any other user, host, or network, including (without limitation) by submitting malware or exploiting software vulnerabilities; (f) forging, modifying, or falsifying any network packet or protocol header or metadata in any connection with, or transmission to the eDiary; (g) creating additional user accounts to promote your (or another's) business, or causing others to do so; or (h) paying anyone for interactions on eDiary. You shall not use the eDiary to transmit or send unsolicited commercial communications. You shall not use the eDiary for any purposes related to marketing.
1.9 User Content
1.9.1 Definition and Terms
In this Agreement, "your user content" means material (including without limitation, text, images, audio material, video material and audio-visual material as may be applicable) that you capture in the eDiary, for whatever purpose. You grant to us a worldwide, irrevocable, exclusive, royalty-free license to use, reproduce, adapt, publish, translate and distribute your user content in any existing or future media; you also grant to us the right to sub-license these rights, and the right to bring an action for infringement of these rights. Your user content must not be illegal or unlawful, must not infringe any third party's legal rights, and must not be capable of giving rise to legal action whether against you or us or a third party (in each case under any applicable law). You must not submit any user content to the eDiary that is or has ever been the subject of any threatened or actual legal proceedings or other similar complaints. By design, the eDiary does not allow us to, and we do not undertake to, monitor the collection and submission of content through the eDiary.
1.9.2 Provision to Principal Investigator
It is intended that your user content, including your identifiable personal data if applicable, is provided only to the CI Principal Investigator and that no non-anonymized data item is provided to us. In the improbable case that we receive any non-anonymized personal data on you, they will be dealt with in accordance with our Privacy Policy.
1.9.3 Confidentiality
You will keep your user content confidential and will not disclose it to any third party.
1.10 Limited Warranties; Limitation of Liability
1.10.1 Basic Warranty
Salvia warrants that the eDiary will perform as described. Other than the previous sentence and to the extent permitted by applicable law, we, on behalf of ourselves and our licensors and agents, expressly disclaims any and all warranties, express or implied, regarding the eDiary, arising by operation of law or otherwise, including without limitation any and all implied warranties of merchantability, fitness for a particular purpose, non-infringement, no encumbrance, or title, in addition to any warranties arising from a course of dealing, usage, or trade practice. Neither we nor our licensors or agents warrant that the eDiary will meet any requirements, or that the operation of the eDiary will not be uninterrupted. Other than as per the first sentence of this section and as provided by applicable law, we disclaim all implied liability for damages arising out of the furnishing of the eDiary pursuant to this Agreement, including without limitation, mistakes, omissions, interruptions, delays, tortious conduct, errors, representations, or other defects arising out of the failure to furnish the eDiary, whether caused by acts of commission or omission, or any other damage occurring. We shall not be liable for any indirect, incidental, special, consequential, or punitive damages (including without limitation damages for lost profits or lost revenues), whether caused by the acts or omissions of us or our users or their agents or representatives.
1.10.2 Your Responsibility for Loss or Damage
You agree that your use of the eDiary is under your control and responsibility. You will not hold us or our licensors and agents, as applicable, responsible for any loss or damage that results from your access to and/or use of the eDiary, including without limitation any loss or damage to any of your computers, mobile devices, including without limitations tablets and/or smartphones, or data.
1.10.3 Limitation of Liability
Subject to applicable law and to the other terms of this Agreement, in no event shall we or our licensors or agents be liable to you for any claims arising from your use with the eDiary, including without limitation for special, incidental, or consequential damages, lost profits, lost data or confidential or other information, loss of privacy, costs of procurement of substitute goods or services, failure to meet any duty including without limitation of good faith or of reasonable care, negligence, or otherwise, regardless of the foreseeability of those damages or of any advice or notice given to us or our licensors and agents arising out of or in connection with your use of the eDiary. This limitation shall apply regardless of whether the damages arise out of breach of contract, tort, or any other legal theory or form of action. You agree that this limitation of liability represents a reasonable allocation of risk and is a fundamental element of the basis of the bargain between you and us.
1.10.4 Application of Disclaimers
The above disclaimers, waivers, and limitations do not in any way limit any other disclaimer of warranties or any other limitation of liability in any other agreement between you and us or between you and any of our licensors and agents. Some jurisdictions may not allow the exclusion of certain implied warranties or the limitation of certain damages, so some of the above disclaimers, waivers, and limitations of liability may not apply to you. Our licensors and agents are intended third-party beneficiaries of these disclaimers, waivers, and limitations. No advice or information, whether oral or written, obtained by you through the eDiary or otherwise shall alter any of the disclaimers or limitations stated in this Section 1.10.
1.10.5 No Advice. Not a Medical Device.
Nothing in the eDiary constitutes, or is meant to constitute, advice of any kind. If you require advice in relation to any legal, financial or medical matter you should consult an appropriate professional. The eDiary was determined not to be a regulated medical device under applicable law.
1.11 Consent to Receive Electronic Communications from Us
By creating a user account and providing your email address to us, you expressly agree to receive electronic and other communications from us, over the short term and periodically, including email communications. These communications will be about eDiary use only.
1.12 Intellectual Property
1.12.1 Miscellaneous
You represent and warrant that, when using the eDiary, you will obey all applicable laws and respect the intellectual property rights of others. Your use of the eDiary is at all times subject to relevant intellectual property rights and laws. You agree not to upload, post, transmit, display, perform, or distribute any content, information, or other materials in violation of any third party's copyrights, trademarks, or other intellectual property or proprietary rights.
1.12.2 Trademarks
Salvia BioElectronics BV, Salvia and MySalvia (collectively, the "Marks") are trademarks or registered trademarks or tradenames of Salvia BioElectronics BV. Other trademarks, graphics, logos, and domain names appearing anywhere on, through, or in connection with the eDiary may be the trademarks of third parties. Neither your use of the eDiary nor this Agreement grant you any right, title, or interest in, or any license to reproduce or otherwise use, the Marks or any third-party trademarks, graphics, logos, or domain names. You agree that any goodwill in the Marks generated as a result of your use of the eDiary will inure to the benefit of Salvia, and you agree to assign, and do assign, all such goodwill to Salvia. You shall not at any time, nor shall you assist others to, challenge Salvia’s right, title, or interest in, or the validity of, the Marks.
1.12.3 Copyrights
All content of, and other materials available through, the eDiary, including without limitation logos, design, text, graphics, and other files, and their selection, arrangement, and organization, are either owned by Salvia or are the property of our licensors. Except as explicitly provided, neither your use of the eDiary nor this Agreement grant you any right, title, or interest in any such materials.
1.13 Uploading Contents
As part of user uploading of data to the eDiary, you represent and warrant that any material uploaded or used is yours, or you have the necessary rights, licences and permissions to submit such content. You further represent and warrant that you shall not upload contents that breaches third party rights, or is otherwise illegal for you to possess where you are located or would be unlawful if displayed or offered for download on the website.
1.14 Other Parties
The eDiary is for use as part of services provided by third parties ("Third Party Services") including health care providers and institutions to whom/which data captured in the eDiary are to be sent by you according to and subject to your informed consent as part of the CI. We do not have control over the content and performance of Third Party Services. We have not reviewed, and cannot review or control, the equipment, including hardware, computer software or other goods or services used or made available for Third Party Services. Accordingly, we cannot and do not make any representation as to Third Party Services accuracy, contents, fitness, lawfulness, or quality of the information, material, goods, or services available through Third Party Services other than as governed by the terms governing the CI.
1.15 Indemnity
Without limiting any indemnification provision of this Agreement and to the extent in compliance with applicable law, you (the "Indemnitor") agree to defend, indemnify, and hold harmless us (collectively, the "Indemnitees") from and against any and all claims, actions, demands, causes of action, and other proceedings (individually, "Claim", and collectively, "Claims"), including but not limited to legal costs and fees, and providing sole and exclusive control of the defense of any action to us arising out of or relating to your breach of this Agreement or your violation or alleged violation of applicable law. The Indemnitees each have the individual right, but not the obligation, to participate through counsel of their choice in any defense by you of any Claim as to which you are required to defend, indemnify, or hold harmless any, each, and/or all Indemnitees. You may not settle any Claim without our prior written consent.
1.16 Termination
1.16.1 Termination
Without limiting any other provision of this Agreement, we reserve the right to, in our sole discretion and without notice or liability, interrupt or deny the use of the eDiary to any person for any or no reason, including without limitation for any breach or suspected breach of any representation, warranty, or covenant contained in this Agreement, or of any applicable law or regulation. This Agreement shall automatically terminate if you breach any of this Agreement's representations, warranties, or covenants. Such termination shall be automatic and shall not require any action by us.
1.16.2 Effect of Termination
Any termination of this Agreement automatically terminates all rights and licenses granted to you under this Agreement, including all rights to use the eDiary. Upon termination, we may, but have no obligation to, in our sole discretion, rescind any services and/or delete all your personal information and any other files or information that you made available or that otherwise relates to your use of the eDiary. Upon termination, you shall cease any use of the eDiary. After termination, we reserve the right to exercise whatever means it deems necessary to prevent your unauthorized use of the eDiary.
1.16.3 Survival
Upon termination, all rights and obligations created by this Agreement will terminate, except that the following Sections will survive any termination of this Agreement: Sections 1.1-1.4 and 1.7–1.19.
1.17 Notices
All notices required or permitted to be given under this Agreement must be in writing. We shall give any notice by email sent to the most recent email address, if any, provided by the intended recipient to us. You agree that any notice received from us electronically satisfies any legal requirement that such notice is in writing. You bear the sole responsibility of ensuring that your email address on file with us is accurate, current and operational, and notice to you shall be deemed effective upon the sending by us of an email to that address. You shall give any notice to us by submitting said notice to us at support@mysalvia.com.
1.18 Miscellaneous
1.18.1 Assignment
We may transfer, sub-contract or otherwise deal with our rights and/or obligations under the Agreement without notifying you or obtaining your consent. You may not transfer, sub-contract or otherwise deal with your rights and/or obligations under the Agreement.
1.18.2 Severability
If a provision of the Agreement is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions will continue in effect. If any unlawful and/or unenforceable provision would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the provision will continue in effect.
1.18.3 No Waiver
A waiver by either party of any term of this Agreement, or any breach, in any one instance, will not waive that term or any later breach.
1.18.4 Independent Contractors
You and we are independent parties, and no agency, partnership, joint venture, or employee-employer relationship is intended or created by this Agreement.
1.18.5 No Third-Party Beneficiaries
There are no third-party beneficiaries to this Agreement, with the exception of the Indemnitees, and our licensors and agents to the extent stated in this Agreement.
1.18.6 Entire Agreement
This Agreement, together with our Privacy Policy, constitute the entire agreement between you and us in relation to your use of the eDiary, and supersede any previous or other agreements and other terms in respect of your use of the eDiary.
1.18.7 Changes to the Agreement
If we decide to change the Agreement, we will update the modification date at the beginning of the Agreement. If the change is material, we will provide you with notice pursuant to Section 1.18.
1.18.8 Contact Us
If you have any questions about our Terms of Use, please contact us at support@mysalvia.com.
1.19 Dispute Resolution
This Agreement is governed by the laws of the The Netherlands or, to the extent required by local law, by applicable local law in the location of user’s residence. Any dispute, controversy or claim arising out of or relating to this Agreement, or the breach, termination or invalidity thereof, shall be settled by the competent court at our head office, currently Eindhoven, The Netherlands or, to the extent required by local law, by the competent court at location of user’s residence.