Somatus Inc. Terms of Use

These Terms of Use, together with the documents referenced herein (collectively the “Terms”) apply to the services and information (collectively, the “Services“) that Somatus, Inc. (“Somatus,” “we,” “our“, or “us“) provides to you, including those that we make available through our website at https://www.somatus.com/ (our “Website“) or our mobile app (our “App“) (the Services, together with our Website and App, our “Platform“).

Please read these Terms carefully before using our Website, or downloading, installing, or using the App. These Terms apply to anyone that uses or visits our Platform (collectively, “you“).

By accepting these Terms, you confirm that you are of legal age in your state of residence to form a binding contract and hereby agree to be bound by these Terms.  Our Platform may not be used by anyone who is under 18 years old or not of legal age in your state of residence.

Your Consent to these Terms.

You indicate your consent to these Terms in different ways, depending on your relationship with us, as set forth below.

• Consent by Non-Registered Users.

We have structured our Platform so that you are able to view a limited amount of information available on our Platform and use certain of our Services without registering an account with us. By accessing, downloading, or otherwise using our Platform as a non-registered user, you are acknowledging that you have read and understood, and agree to be legally bound by, these Terms.

• Consent by Registered Users.

Certain of our Services are available only to users who have registered with us and created user accounts (“Registered Users“). For example, in order to access the App, you must be a person enrolled in Somatus’s care management program.   As part of enrollment in the program, you understand and consent to our sending you SMS text messages. To participate in the Services as a Registered User, you must: (i) complete the registration process on our Platform; and (ii) indicate your consent to these Terms in the manner we specify during the registration process. During the registration process, you will be required to provide certain information about you. You agree that the information you provide to us in this process is complete and accurate. If you become a Registered User, and if you obtain a password, please keep in mind that we will treat anyone who uses your username and password as “you”. We will provide this user with all of the rights and privileges that we provide to you, and we will hold you responsible for the activities of a person using your password. Therefore, we recommend that you maintain your username and password in confidence, and that you refrain from disclosing this information to anyone who might “pretend” to be you with respect to the Platform and your participation in the Services. Please notify us immediately if you suspect that someone is using your username and/or password in an inappropriate manner.

• Consent by User Acting in a Representative Capacity.

If you are agreeing to our Terms on behalf of a company or other legal entity (“Your Organization“), then (i) you represent and warrant that you have authority to act on behalf of, and to bind, Your Organization, and (ii) for all purposes in these Terms, the term “you” means Your Organization on whose behalf you are acting.

• Your Consent to Our Privacy Practices.

Your submission of information, including personal information and protected health information, through or in connection with the App (if any) is governed by the terms of our Privacy Policy and our Notice of Privacy Practices, which are hereby incorporated into these Terms by reference, as updated from time to time, available at https://somatus.com/privacy-policy/ (“Privacy Policy”) and at https://somatus.com/notice-of-privacy-practices/.

• Relationship to Other Contracts

The Terms are entered into for the benefit of Somatus and its affiliated companies (the “Somatus Companies”) who may each enforce it against you.  If you do not agree to these Terms you are not permitted to use the Platform, and you must immediately cease downloading, installing, or using the Platform.

These Terms must be read in conjunction with any other agreements into which you and Somatus (and/or other Somatus Companies) may enter concerning the Platform (collectively, the “Other Agreements”).

Informational Use Only.

The content provided in the Website and the educational and nutritional materials available through the App are for informational purposes only. The content is not intended to be a substitute for professional medical advice, diagnosis, or treatment.  Do not use our Platform to make a diagnosis, treat a health problem or replace a physician’s judgment.  Always seek the advice of your physician or other qualified health provider with any questions you may have regarding a medical condition.  Never disregard professional medical advice or delay seeking it because of something you have read or seen on the Platform.  If you think you may have a medical emergency, call your doctor or 911 immediately. Somatus does not recommend or endorse any specific tests, physicians, products, procedures, opinions, or other information that may be mentioned on the Platform.  Reliance on any information or functionality provided via the Website and educational and nutritional materials available through the App is solely at your own risk.  No information used in the Platform should be construed as the practice of medicine.  Any health or wellness coaching provided through the Platform cannot substitute for, and is not an alternative to, medical, psychological, or other healthcare diagnosis and treatment.  Any appointment, lab, pill, or other reminder is to serve only as a back-up reminder to help you remember.  IF YOU HAVE AN EMERGENCY, DO NOT USE THE PLATFORM TO CONTACT SOMATUS OR ANY MEMBER OF YOUR CARE TEAM.  INSTEAD, YOU SHOULD IMMEDIATELY CALL 911 AND REQUEST EMERGENCY CARE ASSISTANCE.

Contact Us; Technical Support; Requirements.

If you experience any technical issues with the Platform, or you would like to contact us regarding these Terms, you may contact Somatus by sending an email to [email protected].

In order to use the App, you must have a compatible device which meets the following minimum specifications: for Apple devices, requires iOS 12.1 or later, and is compatible with iPhone; and for Android, 8.0 and up. Any compatible device to which you download the App will be known as a “Device” for the purposes of these Terms. You confirm that you either own the applicable Device or if not owned by you, you have obtained permission to install and use the App on such Device.  You accept responsibility for any use of the Platform on or in relation to such Device, whether or not such Device is owned by you or such use was made by you.

Acknowledgements

Somatus may change or revise these Terms from time to time in its sole discretion, with or without notice to you.  By continuing to use the Platform, you are agreeing to be bound by any such revisions and should therefore periodically review the then-current terms and conditions.  Your access and use will be subject to the most current version of the Terms.   You will be prompted to agree to the new terms when you access the App.   Your use of the App after such revised Terms are made available will signify your acceptance of such revised Terms and your agreement to be bound by them.

From time to time, updates to the App may be made available through the App Store. Depending on the update, you may not be able to use the App until you have installed the latest version.

Third Party Content

The Platform may contain links to third party websites or third party features (collectively, the “Linked Sites“). Linked Sites may include websites operated by third parties that we engage to provide certain Services on our behalf, such as to process your payments. Somatus does not own these Linked Sites and Somatus does not assume any responsibility or liability for any content, opinions, material available on Linked Sites, or such Linked Sites’ privacy practices with respect to information that you provide to the Linked Sites. Somatus does not endorse the content of any Linked Site or warrant that a Linked Site will be free of computer viruses or other harmful code that can impact your computer or other web-access device. By using the Platform to link to another site (including Linked Sites), you agree and understand that such use is at your own risk.

Be aware that if you submit Personal Information to a Linked Site, then the Personal Information that you submit to the Linked Site shall be governed by the Linked Site’s privacy policy and terms of use, and not by our Privacy Policy or Notice of Privacy Practices; provided, however, if such Linked Site is collecting and/or processing such Personal Information on our behalf, then we will treat the Personal Information in accordance with our Privacy Policy and/or Notice of Privacy Practices.

Grant of Rights to You.

Subject to these Terms, we grant to you a limited, non-exclusive, non-transferrable, worldwide right to access, execute, perform, and otherwise use the Platform solely for your personal use, and provided that you shall not: (i) license, sublicense, sell, resell, distribute, or otherwise commercially exploit the Platform; (ii) modify or make derivative works based upon the Platform; or (iii) reverse engineer, reverse compile, or access the Platform in order to build a competitive product or service. You may access and view the Platform for use solely as provided in these Terms, and you may not modify, copy, distribute, or otherwise use the Platform for any other purposes.

License Restriction

Except as expressly permitted under these Terms, and to the degree not prohibited by applicable law, you agree:

• not to copy, reproduce, republish, reuse, upload, post, transmit or distribute any content of the Platform, including without limitation for public or commercial purposes, including any text, images, audio and video, except as permitted by the Platform’s built-in sharing function;
• not to rent, lease, sub-license, loan, distribute, time-share, or translate the Platform in any way;
• not to make alterations to, or modifications of, the whole or any part of the Platform, or permit the Platform or any part of it to be combined with, or become incorporated in, any other programs;
• not to disassemble, decompile, reverse-engineer or create derivative works based on the whole or any part of the Platform;
• not to access any portion of the Platform protected by copyright, patent, trade secret or other law to build a competitive program;
• not to sell, resell, or exploit the Platform in whole or in part (including object and source code), in any form to any person without prior written consent from us;
• not to remove any copyright, trademark or other proprietary rights notices from the Platform;
• that you represent and warrant that you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and that you are not listed on any U.S. Government list of prohibited or restricted parties.
• not to use the Platform in any unlawful manner, for any unlawful or criminal purpose, or in any manner inconsistent with these Terms, or act fraudulently or maliciously, for example, by hacking into or inserting malicious code, including viruses, or harmful data, into the Platform;
• not to access or attempt to access any other user’s account;
• not to use the Platform to record, post or transmit any information that is defamatory, threatening, abusive, offensive, obscene, indecent, discriminatory or is otherwise objectionable or infringes on third party rights;
• not to use the Platform in a way that could damage, disable, overburden, impair or compromise our systems or security or interfere with other users, or restrict or inhibit any other users from using the Platform (including by hacking or defacing the Platform); and
• not to collect or harvest any information or data from the Platform or our systems or attempt to decipher any transmissions to or from the servers running the Platform, including, without limitation, by using any robot, spider, site search/retrieval application or other manual or automatic device to retrieve, index, “scrape,” “data mine” or in any way gather the Platform content or reproduce or circumvent the navigational structure or presentation of the Platform without our prior written consent.

Intellectual Property Rights

You acknowledge that (i) all intellectual property rights in and to the Platform belong to the Somatus Companies or their licensors, (ii) the rights granted herein are licensed (not sold) to you, and (iii) you have no rights in, or to, the Platform or its content other than the right to use the Platform in accordance with these Terms.

In the event that you elect to share content through the Platform (“Submitted Content“), you agree and acknowledge that (i) all content supplied by you is either original to you, or you have the right to share it with the Somatus Companies, (ii) the Somatus Companies may utilize the content you supply, in whole or in part, in any manner in connection with the App, (iii) any modifications or improvements made to the App or Somatus’ products or services as a result of such content are owned and controlled solely by the Somatus Companies, (iv) you have no right, title or interest in or to the Platform as a result of sharing such content.   Somatus acts only as a passive conduit for your distribution and publication of your Submitted Content. We take no responsibility and assumes no liability for any Submitted Content that you or any other user or third party posts, sends, or otherwise makes available via the Platform. You shall be solely responsible for your Submitted Content and the consequences of posting, publishing, sharing, or otherwise making it available on our Platform. You understand and agree that you may be exposed to content on our Platform that is inaccurate, objectionable, inappropriate for children, or otherwise unsuited to your purpose. Somatus shall not be liable for any damages you allege to incur as a result of or relating to any such content. We expressly reserve the right to refuse to use (or to disable or remove) Submitted Content that we conclude, in our sole discretion, violates these Terms or our Privacy Policy or Notice of Privacy Practices, or is incompatible with the purposes of our Platform or operations.

All trademarks, service marks, trade names, and logos are proprietary to the Somatus Companies or used by Somatus with the permission of its third party providers. Nothing contained on the Platform should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any trademark displayed on this website without the written permission of Somatus.  Your use of the trademarks displayed in the Platform, or any other content in the Platform, except as provided herein, is strictly prohibited.  You acknowledge that you have no right to have access to any portion of the Platform in source code form.

Disclaimer

THE APP IS PROVIDED “AS IS” AND, TO THE EXTENT PERMITTED BY APPLICABLE LAW, SOMATUS AND ITS’ DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, REPRESENTATIVES, LICENSORS, THIRD PARTY PROVIDERS AND AFFILIATES, EXCLUDE ALL REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. ANY RELIANCE ON OR USE OF THE PLATFORM SHALL BE AT YOUR SOLE RISK.  THE SOMATUS COMPANIES SHALL NOT HAVE ANY OBLIGATION TO FURNISH ANY MAINTENANCE AND/OR SUPPORT SERVICES WITH RESPECT TO THE PLATFORM.  WE EXPRESSLY DISCLAIM ANY LIABILITY FOR LOSS OR DAMAGE SUSTAINED BY YOU AS A RESULT OF THE ACCESSING AND USE OF THE PLATFORM.

We make no representation or warranty as to the completeness, accuracy or currentness of information or content provided in the Platform. Such information is also subject to change at any time without notice.

We do not warrant that the functions contained in the Platform will be uninterrupted or error-free, that defects will be corrected or that the Platform is free of viruses or other harmful components. We do not warrant or make any representations regarding the use or the results of the use of the Platform.  You agree to conduct your own due diligence to assess the accuracy, reliability and quality of all content provided by the Platform.

You (and not us) assume the entire cost of all necessary servicing, repair or correction in respect of your Device.

Some states do not allow the above disclaimers, so they may not apply to you.

Availability

We reserve the right, temporarily or permanently, in whole or in part, to modify, suspend or discontinue the Platform without notice for any reason without liability to you, except where prohibited by applicable law.

In addition, you acknowledge that the Platform and content are provided over the Internet and mobile networks and so the quality and availability of the Platform and content may be affected by factors outside our reasonable control. Accordingly, we do not accept any responsibility for any connectivity issues that you may experience when using the Platform or content.  In addition, you acknowledge and agree that you (and not us) are responsible for obtaining and maintaining all telecommunications, broadband and computer hardware, equipment and services needed to access and use the Platform and content, and for paying any data charges that may be charged to you by your network provider in connection with your use of the Platform and content.  In the event you choose to share information from the Platform by utilizing SMS/text functionality, you acknowledge and agree that you (and not us) are responsible for paying any related fees that may be charged to you by your network or telecommunications provider.  You acknowledge that Somatus does not guarantee that communications between patients and care team members or providers occurs in real-time.

Limitation Of Liability

You agree that you use the Platform and its content at your own risk. You further understand and agree that we are not responsible or liable for your illegal, unauthorized, or improper use of information transmitted, monitored, stored or received using the Platform.

TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT SHALL WE BE LIABLE TO YOU PERSONALLY FOR ANY LOSS, INJURY OR DAMAGES (INCLUDING BUT NOT LIMITED TO ANY SPECIAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES, LOST PROFITS, LOST REVENUES, LOST DATA, OR OTHER INCIDENTAL DAMAGES) ARISING OUT OF THE USE, INABILITY TO USE, OR THE RESULTS OF USE OF THE PLATFORM OR CONTENT.  IN NO EVENT WILL SOMATUS LIABILITY TO YOU ARISING UNDER THESE TERMS EXCEED FIFTY DOLLARS ($50).

Indemnification.

To the extent permitted by applicable law, you agree to indemnify us for any claims, actions, demands, losses, liabilities, damages, costs and expenses (including legal expenses and other costs, such as attorneys’ fees) reasonably incurred by us that arise out of your use of the Platform or content in breach of these Terms other than those which arise from our gross negligence or our willful or reckless misconduct. We reserve the right to assume the exclusive defense and control of any claim brought by a third party in connection with your use of the Platform and you agree to assist and co-operate with us in relation to any such claim.

Termination. 

We reserve the right at any time to (i) monitor your use of the Platform, and (ii) terminate or suspend your use of some or all portions of the Platform if you engage in activities that we conclude, in our discretion, violate these Terms, our Privacy Policy, Notice of Privacy Practices, or Other Agreements. Although we have no – and assume no – obligation to monitor activities on the Platform, we may employ filters designed to detect and block inappropriate content under our Terms. We reserve the right to request edits or to remove any information or material, in whole or in part, that we believe, in our sole discretion, is incompatible with our Terms. IF YOU DO NOT REMOVE OBJECTIONABLE CONTENT IN RESPONSE TO OUR REASONABLE REQUESTS, THEN WE RESERVE THE RIGHT TO TERMINATE YOUR USE OF SOME OR ALL OF THE PLATFORM OR SERVICES, AND TO REMOVE THE CONTENT AT ISSUE.

Our Terms are based in many instances on principles of applicable law. Accordingly, users who violate our Terms may be exposed under these laws to criminal charges, and civil liability to harmed parties for compensatory damages and attorney’s fees. Somatus reserves the right at all times to disclose information that it deems necessary to satisfy any applicable law, regulation, legal process, or governmental request, consistent with our Privacy Policy and Notice of Privacy Practices.

Somatus is not responsible or liable for user conduct or any information provided by users. You are solely responsible for your conduct, information, and interaction with other Platform users, both online or offline. We have no obligation to become involved in disputes between Platform users. If you have a dispute with another Platform user, then you release the Somatus Companies (and our subsidiaries, affiliates, officers, directors, agents, and employees) from claims, demands, and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such dispute.

The Somatus Companies may block, terminate or suspend your access to the App at any time without notice for any reason in its sole discretion, even if access continues to be allowed to others. Upon termination, you must cease use of the App and remove it from all applicable Devices.

If you believe that a user has acted inappropriately, then you may report your concerns by contacting us as set out below.

Events Outside Our Control 

We will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under these Terms that is caused by any act or event beyond our reasonable control, including your acts or omissions, any failure of public or private telecommunications networks, acts of God, war, riot, embargoes, epidemics, pandemics, acts of civil or military authorities, fire, earthquake, floods, accidents, strikes, or shortages of transportation, facilities, fuel, energy, labor or material.

Third-Party Beneficiaries And App Store.

You acknowledge that the availability of the App may be dependent on the App Store from which you receive the App.  You acknowledge these Terms are between you and Somatus and not with the App Store.  The App Store is not responsible for the App, the content thereof, maintenance, support services, and warranty therefor, and addressing any claims relating thereto (e.g., product liability, legal compliance, or intellectual property infringement).  You acknowledge that the operators of the App Store (and its subsidiaries) are third party beneficiaries to these Terms and will have the right to enforce these Terms against you.

Any dispute or claim relating in any way to your use of the Platform will be resolved by binding arbitration, rather than in court, except that you may assert claims in small claims court if your claims qualify. The Federal Arbitration Act and federal arbitration law apply to this agreement.

There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages) and must follow the Terms as a court would.

To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to us at:

1861 International Drive

Suite 600

McLean, VA 22102

Attention:  Chief Legal Officer

The arbitration will be conducted by the American Arbitration Association (AAA) under its rules, including the AAA’s Supplementary Procedures for Consumer-Related Disputes.  The AAA’s rules are available at www.adr.org or by calling 1-800-778-7879. Payment of all filing, administration and arbitrator fees will be governed by the AAA’s rules. We will reimburse those fees for claims totaling less than $10,000 unless the arbitrator determines the claims are frivolous.  Likewise, Somatus will not seek attorneys’ fees and costs in arbitration unless the arbitrator determines the claims are frivolous. You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the county where you live or at another mutually agreed location.

We each agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action.  If for any reason a claim proceeds in court rather than in arbitration we each waive any right to a jury trial.  We also both agree that you or we may bring suit in court to enjoin infringement or other misuse of intellectual property rights.

Law And Jurisdiction

To the extent permitted by applicable law, these Terms are governed and construed by the laws of the Commonwealth of Virginia, U.S.A. and you consent to the non-exclusive jurisdiction of the Virginia courts.  You agree not to bring any proceeding other than in the state and federal courts residing in Virginia.  We retain the right to bring proceedings against you for breach of these Terms in any state and your country of residence or other relevant country. The parties agree the application to this Agreement of the United Nations Convention on Contracts for the International Sale of Goods is hereby expressly excluded.

Government End Users

If you are a U.S. Government end user, we are licensing the App to you as a “Commercial Item” as that term is defined in the U.S. Code of Federal Regulations (see 48 C.F.R. § 2.101), and the rights we grant you to the App are the same as the rights we grant to all others under these Terms.

Other Important Terms

Certain Services may be subject to additional or different terms and conditions. We will notify you if a Service is subject to terms and conditions that differ from these Terms, and you will have the opportunity to decline to participate in such Service if you do not agree with the differing terms and conditions.

We may transfer our rights and obligations under these Terms to another organization, but this will not affect your rights or your obligations under these Terms. You may not transfer your rights or obligations under these Terms.

If we fail to insist that you perform any of your obligations under these Terms, or if we do not enforce our rights against you, or if we delay in doing so, that will not mean that we have waived our rights against you and will not mean that you do not have to comply with those obligations.

Each of the conditions of these Terms operates separately. If any court or competent authority decides that any of them are unlawful or unenforceable, the remaining conditions will remain in full force and effect.

These Terms constitute the entire agreement between us with respect to your use of the App. Such Terms supersede all prior understandings or agreements between us.  In addition, in entering into these Terms you have not relied on and (in the absence of fraud) you shall have no right or remedy in respect of any statement, representation, assurance or warranty other than as set out in these Terms.

Except to the extent specified in sections 16 and 18.1 hereof, or otherwise permitted by applicable law, a person or entity who is not party to these Terms may not enforce these Terms.

No agency, partnership, joint venture or employment relationship is created as a result of these Terms and neither of us has any authority of any kind to bind the other in any respect.

Any right or obligation that by its nature or intent is intended to survive the termination or expiration of these Term shall survive such termination or expiration of these Terms.

Effective Date.

The effective date of these Terms of Use is March 1, 2023.

Copyright and Legal Notice.

Copyright © 2023 Somatus, LLC. All Rights Reserved.