CALIBRE BIOMETRICS LLC
TERMS OF SERVICE
Effective: May 31, 2021
PLEASE READ TERMS OF SERVICE CAREFULLY BEFORE USING THE CALIBRE® RESPIRATORY ODOMETER, CALIBRE APP AND SERVICES.
The CALIBRE® Respiratory Odometer (“CALIBRE DEVICE”) is a wearable, transparent, breath-measuring device that measures and tracks your respiratory metabolism. Information collected by the CALIBRE DEVICE is viewable via the CALIBRE APP that you download onto your smartphone, tablet or other device. The CALIBRE DEVICE and CALIBRE APP are provided by CALIBRE BIOMETRICS LLC (“CALIBRE”, or “we”, “us” or “our”).
These Terms of Service (“Terms”) governs your access to and use of the CALIBREDEVICE and the CALIBRE APP or our websites that post this policy, and including Information and services made available to you through the CALIBRE APP (the “Services”)
The current version of these Terms is indicted by the Effective Date listed above. CALBIRE may revise and update these Terms at any time. Your continued use of the CALIBRE DEVICE, the CALIBRE APP and Services signifies that you agree to these changes.
BE ADVISED: THE CALIBRE DEVICE, CALIBRE APP AND SERVICES DO NOT CONSTITUTE MEDICAL ADVICE. IF YOU THINK YOU MAY HAVE A MEDICAL EMERGENCY, CALL YOUR DOCTOR OR YOUR LOCAL EMERGENCY NUMBER FOR IMMEDIATE MEDICAL ASSISTANCE.
All contents of the CALIBRE APP and the Services (the “Content”), such as text, graphics, images, and other material and information are for informational purposes only and is not intended to be a substitute for professional medical advice, diagnosis, or treatment. Always seek the advice of your physician or other qualified health provider with any questions you may have regarding a medical or other health condition. Never disregard professional medical advice or delay in seeking it because of something you may have read in the CALIBRE APP or Services.
CALIBRE does not recommend or endorse any specific tests, physicians, products, procedures, opinions, or other information that may be available on the CALIBRE APP or any associated online information. Any reliance on any information provided by the CALIBRE DEVICE, CALIBRE APP, CALIBRE, CALIBRE employees, or the Services is solely at your own risk.
Use of the CALIBRE DEVICE, CALIBRE APP and Services
You may only connect to the CALIBRE APP and Services using (i) a CALIBRE DEVICE that is manufactured, distributed, or sold by CALIBRE itself or through its authorized resellers or agents; (ii) our mobile applications and software, or approved third-party applications, software, or devices; or (iii) our websites (“Authorized Connections”). You may not connect to the CALIBRE APP or Services with any device that is not manufactured, distributed, or sold by CALIBRE itself or through its authorized resellers or agents (such as a knock off or counterfeit version of a CALIBRE DEVICE); otherwise intends to resemble or purports to be a CALIBRE DEVICE or any unauthorized application or third-party connection. Any violation or attempted violation of this provision may result in the immediate termination of your ability to access the CALIBRE APP and Services. If you have questions about whether a product or application qualifies as an Authorized Connection, please contact us at firstname.lastname@example.org.
Persons under the age of 13, or any higher minimum age in the jurisdiction where that person resides, are not permitted to access or use the CALIBRE DEVICE, CALIBRE APP and Services unless their parent or legal guardian has consented in accordance with applicable law. Additionally, you cannot access or use the CALIBRE DEVICE, CALIBRE APP and Services if you are barred from receiving services under applicable law or have previously been suspended or removed by us.
Creating an Account
Full use of the CALIBRE DEVICE, the CALIBRE APP and Services requires that you register and create an account by providing us with information such as your full name and a valid email address, as well as a strong password. You are responsible for all activity that occurs in association with your account. CALIBRE is not liable for any loss or damages caused by your failure to maintain the confidentiality of your account credentials.
Full use of the CALIBRE DEVICE, the CALIBRE APP and Services is dependent upon your use of a supported mobile device and Internet access. The maintenance and security of this equipment may influence the performance of the CALIBRE DEVICE, the CALIBRE APP and Services, and it is your responsibility to ensure the equipment’s functionality. You are responsible for all Internet access charges. Please check with your Internet provider for information on possible Internet data usage charges.
Our Enforcement Rights
We reserve the right (but are not required) to remove or disable access to the CALIBRE DEVICE, the CALIBRE APP and Services at any time and without notice, and at our sole discretion, if we determine that your use is in violation of these Terms or applicable law. We have the right to investigate violations of these Terms and any conduct that affects the CALIBRE DEVICE, the CALIBRE APP or Services, and in response may take any action we may deem appropriate in our sole discretion.
Use at Your Own Risk
Your use of the CALIBRE DEVICE, the CALIBRE APP and Services is at your own risk. We are not responsible for the accuracy, reliability, availability, effectiveness, or correct use of information you receive through the CALIBLRE APP or Services, which may change from time to time or vary by geographic location. Maps and other GPS data, including data relating to your current location, may be unavailable, inaccurate, or incomplete.
Use of the CALIBRE DEVICE, the CALIBRE APP and Services should not replace your good judgment and common sense. Please read and comply with all safety notices that accompany your use of the CALIBRE DEVICE, the CALIBRE APP and Services.
Terms of Sale; Returns and Warranty
CALIBRE’s Terms of Sale and Returns and Warranty Policy apply to purchases of the CALIBRE DEVICE from us or from an authorized reseller or agent. The Terms of Sale are incorporated into and made a part of these Terms. All orders placed are subject to CALIBRE’s acceptance. We may accept, decline, or place limits on your order for any reason.
Subscription. To use the APP and access the Services, you may be required to have a valid Subscription, which are offered on either a monthly or annual basis. To purchase a Subscription, you will need to provide certain information, including your name, credit or debit card number, phone number and billing address. You may pay for your Subscription via credit card, debit card or any other manner then available through our designated third-party payment processor(s). By submitting your payment information, you authorize us to charge the applicable payment method at our convenience but within no more than thirty (30) days of credit card authorization. You represent that you will not use any credit card, debit card or other form of payment unless you have all necessary authorization to do so. We assume that because Subscription orders require a valid payment method, only persons 18 years old or over are purchasing a Subscription and providing us and our payment processor(s) with the information requested during the order process. We shall not be liable in the event your children or others acting with or without your permission use your credit card, debit card or other means of payment for a Subscription (and to the extent your minor children make any such purchases, you hereby represent and warrant that they are authorized to do so); however you may report any unauthorized use to us, and we will use reasonable measures within our control to help prevent future unauthorized use of your credit card, debit card or other form of payment.
Automatically Renewing Subscriptions. Your Subscription term may vary, for example, with monthly or annual automatic renewal terms (a “Subscription Term”), as described in the course of your transaction. Your Subscription will automatically renew for additional Subscription Terms as long as your Subscription continues, until you cancel it or we suspend or stop providing the Subscription in accordance with these Terms. Unless otherwise indicated by us, you will be charged prior to, or at the beginning of, each renewal term. Before charging you for a renewed Subscription Term, we will notify you of the applicable fees, and the renewal will occur at the price then in effect for the applicable Subscription Term.
Subscription Cancellation. You may cancel your Subscription at any time by notifying us through your account or by sending us an email at email@example.com. Your cancellation will take effect at the end of the current Subscription Term. After cancellation, please note that we may still send you promotional communications about CALIBRE unless you opt out of receiving those communications by following the unsubscribe instructions provided in the communications or email us at firstname.lastname@example.org.
No Refunds on Subscriptions. When you cancel a Subscription, you cancel only future charges for your Subscription. You will not receive a refund for the current Subscription Term you paid for, but you will continue to have full access to that Subscription until the end of that current Subscription Term.
Credits. At any time for any reason, we may provide a refund, discount, or other consideration (“credits”) to some or all of our users. The amount and form of such credits, and the decision to provide them, are at our sole and absolute discretion. The provision of credits in one instance does not entitle you to credits in the future for similar instances, nor does it obligate us to provide credits in the future.
Free Trials. From time to time, we may offer free trials of certain Subscriptions for specified periods of time without payment. If we offer you a free trial, the specific terms of your free trial will be provided in the marketing materials describing the particular trial. Once your free trial ends, we (or our third-party payment processor) will begin billing your designated payment method on a recurring basis for your Subscription (plus any applicable taxes and other charges) for as long as your Subscription continues, unless you cancel your Subscription prior to the end of your free trial. Instructions for canceling your Subscription are described in the sections above. To avoid any charges, you must cancel your Subscription before the end of your free trial period. Before charging you at the end of your free trial period, we will notify you of the applicable fees.
Price Changes. We reserve the right to adjust pricing of our Subscriptions or any components thereof in any manner and at any time. Any price changes will take effect following notice to you.
We reserve the right to suspend or deactivate your account or your access to certain aspects or all of the Services, or to terminate these Terms, at our sole discretion, at any time and without notice or liability to you. You may close your account at any time by contacting us at email@example.com. Upon any termination of these Terms or suspension, termination, or discontinuation of the Services or your account, the following provisions of these Terms will survive: Our Enforcement Rights; Copyright and Limited License for Use of Content; Disclaimers; Limitation of Liability; Trademarks; Indemnification; Dispute Resolution; Jurisdiction; Applicable Law; and Severability.
Alerts and Notifications
As part of your use of the CALIBRE APP and Services, we may send you notifications, text messages, alerts, emails, and other electronic communications (e.g., emails and text messages) to the contact information you provided. You agree to the receipt of these communications. You can control most communications from us by using your account settings. We may need to provide you with certain communications, such as service announcements and administrative messages. You are responsible for any messaging or data fees you may be charged by your wireless carrier. Any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that the communication be in writing.
Copyright and Limited License for Use of Content
The CALIBRE DEVICE, the CALIBRE APP and Services are intended only for your personal, noncommercial use.
All Content posted on the CALIBRE APP or Services is protected by the copyright laws in the United States or another country and labeled accordingly, for example: “©2021, CALIBRE BIOMETRICS LLC, ALL RIGHTS RESERVED” or other copyright or proprietary rights notices that appear on the Content. You are permitted to view or download a single copy of any Content on the CALIBRE APP or Services solely for your personal, noncommercial use. Do not forward any copy you make to another party.
Title to all Content remains with CALIBRE or its licensors, as may be indicated. Any use of the Content not expressly permitted by these Terms is a breach of its terms and conditions and may violate copyright, trademark, or other laws. Content and features on the CALIBRE APP or Services are subject to change or termination without notice in our discretion. All rights not expressly granted herein are reserved to CALIBRE or its licensors.
You are hereby provided a limited, non-exclusive, no-cost, revocable and non-transferable license to access and use the CALIBRE APP, Services and Content as described in these Terms. If you violate any of these terms and conditions, your permission to access or use the Content as described in these Terms automatically terminates and you must immediately destroy any copies you have made of any portion of the Content.
You will not use, sublicense, copy, adapt, modify, translate, disclose, prepare derivative works based upon, distribute, license, sell, rent, lease, assign, transfer, publicly display, publicly perform, transmit, broadcast, or otherwise exploit the Services, Content, or any portion thereof (including any third-party software), except as expressly permitted in these Terms. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by CALIBRE or its licensors, except for the licenses and rights expressly granted in these Terms.
Except to the extent permitted by law, you may not perform, attempt to perform, or encourage or assist others in performing any of the following while accessing or using the CALIBRE DEVICE, the CALIBRE APP and Services: (1) use, display, mirror, or frame the Services, Content or any individual element within the Services or Content, including the layout and design of any page, without CALIBRE’s express written consent; (2) use our name, any trademark or logo, or any proprietary information belonging to us without our express written consent; (3) access or tamper with non-public areas of the CALIBRE APP, Services, our computer systems, or the technical delivery systems of our providers; (4) test the vulnerability of any CALIBRE system or breach any security or authentication measures; (5) circumvent any technological measure implemented by us or any of our providers or any other third party (including another user) to protect the CALIBRE APP, Services or Content; (6) access the CALIBLRE APP, Services or Content through the use of any mechanism other than through the use of an Authorized Connection or API offered by us; or (7) modify, decompile, disassemble, reverse engineer, tamper with, or otherwise attempt to derive the source code of any software that we provide to you or any other part of the CALIBRE APP, Services or Content.
Disclaimers; Limitation of Liability
The CALIBRE APP, Services and Content are provided on an "as is" basis. CALIBRE, ITS LICENSORS, AND ITS SUPPLIERS AND VENDORS, TO THE FULLEST EXTENT PERMITTED BY LAW, DISCLAIM ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTIES' RIGHTS, AND FITNESS FOR PARTICULAR PURPOSE. In addition, CALIBRE, its licensors, and its suppliers and vendors make no representations or warranties regarding the accuracy, reliability, completeness, or timeliness of the Content, software, text, graphics, links, or communications provided on or through the use of the CALIBRE APP or Services. Your use of the CALIBRE DEVICE, the CALIBRE APP, the Services and Content is at your own risk.
In no event shall CALIBRE, its licensors, its suppliers or vendor, or any third parties identified on the CALIBRE APP be liable for any damages (including, without limitation, incidental and consequential damages, personal injury/wrongful death, lost profits, or damages resulting from lost data or business interruption) resulting from the use of or inability to use the CALIBRE DEVICE, CALIBRE APP, Services or the Content, whether based on warranty, contract, tort, or any other legal theory, and whether or not CALIBRE, its licensors, its suppliers or vendors, or any third parties identified on the CALIBRE APP are advised of the possibility of such damages. CALIBRE, its licensors, its suppliers or its vendors or any third parties identified on the CALIBRE APP shall be liable only to the extent of actual damages incurred by you, not to exceed US $100.
CALIBRE, its licensors, its suppliers or vendors, or any third parties identified on the CALIBRE APP, Services or Content are not liable for any personal injury, including death, caused by your use or misuse of the CALIBRE DEVICE, CALIBRE APP, Services or Content. Any claims arising in connection with your use of the CALIBRE DEVICE, CALIBRE APP, Services or Content must be brought within one (1) year of the date of the event giving rise to such action occurred. Remedies under these Terms are exclusive and are limited to those expressly provided for herein.
Access to and use of certain Services may require a username and password you establish to log in to the CALIBRE APP. You must keep your username and password secure and are requested not to disclose them to a third party. Promptly inform us if you believe your account or password has been compromised or if there is any other reason you need to deactivate a password.
Notice and Takedown Procedures; and Copyright Agent
If you believe any materials accessible in the CALIBRE APP or Services or Content infringe your copyright, or a copyright belonging to a third party, you may request removal of those materials (or access thereto) from this web site by contacting CALIBRE's copyright agent (identified below) and providing the following information:
CALIBRE's agent for copyright issues relating to the CALIBRE APP is as follows:
CALIBRE BIOMETRICS LLC
Attn: Copyright Agent
35 Walnut St., Suite 100
Wellesley, MA 02481
In an effort to protect the rights of copyright owners, CALIBRE may terminate, in appropriate circumstances, subscribers and account holders of the CALIBRE APP who are repeat infringers.
All CALIBRE trademarks, service marks, product and service names, and other corporate indicia are the property of CALIBRE BIOMETRICS LLC. You agree not to display or use in any manner any of our trademarks, etc. without our prior permission.
You agree to defend, indemnify, and hold CALIBRE, its officers, directors, employees, agents, licensors, and suppliers, harmless from and against any claims, actions or demands, liabilities and settlements including without limitation, reasonable legal and accounting fees, resulting from, or alleged to result from, your use CALIBRE DEVICE, CALIBRE APP or Services or your violation of these Terms.
Any claim or dispute (excluding claims for injunctive or other equitable relief as set forth below) in connection with the Terms where the total amount of the award sought is less than Five Thousand U.S. Dollars (US $5,000.00) may be resolved in a cost-effective manner through binding non-appearance-based arbitration, at the option of the party seeking relief. Such arbitration shall be initiated through an established alternative dispute resolution provider (“ADR Provider”) that offers arbitration as set forth in this section and under the rules of such ADR Provider, except to the extent such rules are in conflict with the Terms. The party demanding arbitration will propose an ADR Provider and the other party shall not unreasonably withhold consent to use such ADR Provider.
The ADR Provider and the parties must comply with the following rules: (1) the arbitration shall be conducted by telephone, online and/or be solely based on written submissions, the specific manner shall be chosen by the party initiating the arbitration; (2) all arbitration proceedings shall be held in English; (3) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed to by the parties; and (4) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Each party shall bear its own costs (including attorney fees) and disbursements arising out of the arbitration and shall pay an equal share of the fees and costs of the ADR Provider. Notwithstanding the foregoing, ALIBRE may seek injunctive or other equitable relief to protect its intellectual property rights in any court of competent jurisdiction. Please note that the laws of the jurisdiction where you are located may be different from the Commonwealth of Massachusetts law, including the laws governing what can legally be sold, bought, exported, offered or imported. You shall always comply with all the international and domestic laws, ordinances, regulations and statutes that are applicable to your use of the CALIBRE DEVICE, CALIBRE App and Services.
Any other dispute (including whether the claims asserted are arbitrable) shall be referred to and finally determined by binding and confidential arbitration. Arbitration shall be subject to the Federal Arbitration Act and not any state arbitration law. The arbitration shall be conducted before one commercial arbitrator with substantial experience in resolving commercial contract disputes from the American Arbitration Association (“AAA”). As modified by the Terms, and unless otherwise agreed upon by the parties in writing, the arbitration will be governed by the AAA’s Commercial Arbitration Rules and, if the arbitrator deems them applicable, the Supplementary Procedures for Consumer Related Disputes (collectively “Rules and Procedures”).
You are thus GIVING UP YOUR RIGHT TO GO TO COURT to assert or defend your rights EXCEPT for matters that may be taken to small claims court. Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury. You are entitled to a FAIR HEARING, BUT the arbitration procedures are SIMPLER AND MORE LIMITED THAN RULES APPLICABLE IN COURT. Arbitrator decisions are as enforceable as any court order and are subject to VERY LIMITED REVIEW BY A COURT.
You and CALIBRE must abide by the following rules: (1) ANY CLAIMS BROUGHT BY YOU OR CALIBRE MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING; (2) THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, AND MAY NOT AWARD CLASS-WIDE RELIEF; (3) in the event that you are able to demonstrate that the costs of arbitration will be prohibitive as compared to costs of litigation, CALIBRE will pay as much of your filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive as compared to the cost of litigation; (4) CALIBRE also reserves the right in its sole and exclusive discretion to assume responsibility for all of the costs of the arbitration; (5) the arbitrator shall honor claims of privilege and privacy recognized at law; (6) the arbitration shall be confidential, and neither you nor we may disclose the existence, content or results of any arbitration, except as may be required by law or for the purposes of enforcement of the arbitration award; (7) the arbitrator may award any individual relief or individual remedies that are permitted by applicable law; and (8) each side pays its own attorneys’ fees and expenses unless there is a statutory provision that requires the prevailing party to be paid its fees and litigation expenses, and then in such instance, the fees and costs awarded shall be determined by applicable law.
The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. Judgment on the award of the arbitrator may be entered by any court of competent jurisdiction. The arbitrator also shall be authorized to grant any temporary, preliminary or permanent equitable remedy or relief it deems just and equitable and within the scope of the Terms, including, without limitation, an injunction or order for specific performance. The arbitration award shall be final and binding upon the parties without appeal or review except as permitted by the Commonwealth of Massachusetts law or United States federal law.
Notwithstanding the foregoing, either you or CALIBRE may bring an individual action in small claims court. Further, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s patent, copyright, trademark, or trade secret shall not be subject to this arbitration agreement. Such claims shall be exclusively brought in the state or federal courts located in the Commonwealth of Massachusetts. Additionally, notwithstanding this agreement to arbitrate, either party may seek emergency equitable relief before the state or federal courts located in the Commonwealth of Massachusetts, in order to maintain the status quo pending arbitration, and hereby agree to submit to the exclusive personal jurisdiction of the courts located within the Commonwealth of Massachusetts for such purpose. A request for interim measures shall not be deemed a waiver of the right to arbitrate.
With the exception of the prohibition for arbitration on a class or collective basis, if any part of this arbitration provision is deemed to be invalid, unenforceable, or illegal, or otherwise conflicts with the Rules and Procedures, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein. If, however, the prohibition for arbitration on a class or collective basis is found to be invalid, unenforceable or illegal, then the entirety of this arbitration provision shall be null and void, and neither you nor CALIBRE shall be entitled to arbitration. If for any reason, a claim proceeds in court rather than in arbitration, the dispute shall be exclusively brought in state or federal court in the Commonwealth of Massachusetts. By using the CALIBRE DEVICE, CALIBRE APP or Services in any manner, you agree to the above arbitration provision.
For more information on AAA, its Rules and Procedures, and how to file an arbitration claim, you may call AAA at 800-778-7879 or visit the AAA website at http://www.adr.org.
Jurisdiction; Applicable Law; Severability
You expressly agree that exclusive jurisdiction for any dispute with us or in any way relating to your use of the CALIBRE DEVICE, CALIBRE APP, Services or Content is with the federal or state courts the Commonwealth of Massachusetts. You further agree and expressly consent to the exercise of personal jurisdiction in the federal and state courts of the State of Delaware, United States, in connection with any such dispute including any claim involving us, our affiliates, subsidiaries, employees, contractors, officers, directors, or content providers.
These Terms is governed by the laws of the Commonwealth of Massachusetts without reference to its conflict of laws principles. If any provision of these Terms is found to be invalid by any court having competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of these Terms, which shall remain in full force and effect. No waiver of any provision in these Terms shall be deemed a waiver of these Terms in its totality, a further or continuing waiver of such provision or any other provision.
Located in the United States
CALIBRE BIOMETRICS LLC is located in the United States. If you access the CALIBRE APP, Services or Content from outside the United States, you do so at your own risk and are responsible for compliance with the laws of your jurisdiction.