LATITUDE™ NXT Mobile App Terms of Use

Updated June 2014

These LATITUDE^® Mobile Application Terms of Use (“Terms of Use”) are made by and between: (a) you, or the entity on whose behalf you are acting (“Licensee” or “you” or “your”), and (b) Cardiac Pacemakers, Inc. (“CPI”) and Boston Scientific Corporation on behalf of itself and its affiliates (collectively, “Boston Scientific”).

A. Licensee and one or more Boston Scientific entities are currently parties to the LATITUDE License Agreement (the “LATITUDE Agreement”) under which those Boston Scientific entities grant Licensee rights to access and use certain Boston Scientific cardiac devices as part of an integrated system (the “LATITUDE System”).

B. Licensee now wishes to access and use a mobile version of the LATITUDE System (“Mobile Application”) through Licensee’s personal mobile device (“Mobile Device”), and Boston Scientific is willing to allow Licensee such access and use in accordance with these Terms of Use.  FOR THE AVOIDANCE OF DOUBT, LICENSEE’S ACCESS TO AND USE OF THE MOBILE APPLICATION IS GOVERNED BY BOTH THESE TERMS OF USE AND BY THE LATITUDE AGREEMENT. 

C. In order for you to use the Mobile Application, you must comply with: (i) the LATITUDE Agreement; (ii) these Terms of Use; and (iii) if you are a covered entity as defined in the privacy regulations issued pursuant to the Health Insurance Portability and Accountability Act of 1996, the Business Associate Agreement attached to the LATITUDE Agreement, which will apply to the Mobile Application.  

D. Boston Scientific may amend these Terms of Use at any time by posting the revised Terms of Use on the Mobile Application.  You can see when these Terms of Use were last revised by referring to the “Updated” legend above.  Boston Scientific recommends that you print a copy of these Terms of Use for your files. You may need to copy the Agreement and paste it into a word processing document in order to print it.

BY USING THE MOBILE APPLICATION, LICENSEE ACKNOWLEDGES THAT (I) LICENSEE HAS READ THESE TERMS OF USE, UNDERSTANDS THEM, AND AGREES TO BE BOUND BY THEM, AND  (II) IF YOU ARE AN INDIVIDUAL, THEN YOU HEREBY REPRESENT THAT YOU ARE AN EMPLOYEE OR AGENT OF LICENSEE AND HAVE THE AUTHORITY TO BE BOUND BY THESE TERMS OF USE ON BEHALF OF LICENSEE.

IF LICENSEE DOES NOT AGREE TO THESE TERMS OF USE, THEN (I) BOSTON SCIENTIFIC IS UNWILLING TO GRANT THE LICENSE TO THE MOBILE APPLICATION, AND (II) YOU MAY NOT DOWNLOAD OR USE THE MOBILE APPLICATION. 

1. License Grant. Boston Scientific grants Licensee a personal, nonexclusive, nontransferable, non-sublicensable license to access and use the Mobile Application through the Mobile Device within the United States for use strictly in accordance within the authorized scope and license to the LATITUDE System as permitted in the LATITUDE Agreement. Licensee acknowledges that it has the sole responsibility for any fees or charges, including data charges, incurred by it in connection with its use of the Mobile Application.
   
   
2. Restrictions.  Because the Mobile Application is a modified version of the LATITUDE System, all provisions of the LATITUDE Agreement governing Licensee’s use of the LATITUDE System also govern Licensee’s use of the Mobile Application, and Licensee’s use of the Mobile Application is subject to the terms of the LATITUDE Agreement, which is incorporated by this reference as if set forth fully herein.  These Terms of Use do not limit or modify the terms of the LATITUDE Agreement.  Licensee agrees not to use the Mobile Application for any other purpose, and agrees not to reverse engineer, copy, create derivative works, or otherwise use or modify the Mobile Application, except to access the LATITUDE System as explicitly permitted by these Terms of Use.
   
   
3. Patient Care. Licensee acknowledges and agrees that: (i) the Mobile Application is not intended to be used, and will not be used, interventionally during medical emergencies; (ii) the Mobile Application is not a patient health care service, and does not replace in any way the medical judgment of Licensee or its physicians; (iii) the Mobile Application itself (as opposed to data and reports derived therefrom) does not constitute the patient’s legally-defined medical record (electronic or otherwise) or any portion thereof; and (iv) the medical professionals using the Mobile Application (including but not limited to physician Licensees) and their agents are solely responsible for: (a) the degree of care, skill, adequacy, effectiveness and manner of use of the Mobile Application in the care and treatment of patients; (b) complying with any and all laws, regulations and payor requirements relating to medical and health services and the use of the Mobile Application, including with respect to the practice of telemedicine; and (c) the accuracy, completeness and integrity of any data that is manually input into the Mobile Application.  Licensee acknowledges that the Mobile Application is not the exclusive method of viewing information from the LATITUDE System.  Licensee further acknowledges that Boston Scientific is not, and shall not be deemed to be, a provider of patient health care services by virtue of its provision of access the Mobile Application. 
   
   
4. Term. The term of Licensee’s license to and use of the Mobile Application is coterminous with the term of the LATITUDE Agreement, unless these Terms of Use are terminated sooner as set forth below.  These Terms of Use shall immediately and automatically terminate upon expiration or termination of the LATITUDE Agreement.  In addition, Boston Scientific may terminate these Terms of Use upon written notice to Licensee upon thirty (30) days’ notice.  Licensee may terminate these Terms of Use by uninstalling the Mobile Application (and Licensee may use the standard uninstall processes as may be available through the Mobile Device).  Upon termination of these Terms of Use, the license granted under Section 1 will immediately terminate. Notwithstanding the termination or expiration of these Terms of Use, the rights and duties of the parties under Sections 4 through 10 (inclusive) will survive termination or expiration and remain in full force and effect.
   
   
5. Privacy. Licensee’s use of the Mobile Application is governed by Boston Scientific’s privacy policy found here: https://www.bostonscientific.com/en-US/privacy-policy.html (“Privacy Policy”).  The Privacy Policy covers Boston Scientific’s collection, storage, use and distribution of data and information transmitted from the Mobile Device.  In addition, Boston Scientific may collect non-personally identifiable or anonymous information about Licensee through the Mobile Application, including the date and time of access to the Mobile Application, the phone network associated with the Mobile Device, the Mobile Device’s operating system or platform, the type of Mobile Device used, the Mobile Device’s unique device ID, the features of the Mobile Application accessed, the Internet Protocol (IP) address of the Mobile Device, the type of browser being used, and information about the way Licensee uses the Mobile Application (collectively “Aggregate Information”).  Aggregate Information does not include Personal data as that term is used in the Privacy Policy.  Boston Scientific’s use of the Aggregate Information is subject to the terms of the Privacy Policy. The Licensee can stop all collection of information by the Mobile Application by uninstalling the Mobile Application.  Licensee can program the Mobile Device so that it does not store certain of this information while using the Mobile Application. 
   
   
6. Security. Licensee is solely responsible for maintaining the confidentiality of its Mobile Application user name and password.  Licensee must notify Boston Scientific immediately of any unauthorized use of Licensee’s account information.  Boston Scientific is not responsible for any losses arising out of the unauthorized use of Licensee’s account or Mobile Device, and Licensee will indemnify and hold Boston Scientific harmless from and against any losses, damages, claims or liabilities relating to the improper, unauthorized or illegal uses of Licensee’s account.
   
   
7. Intellectual Property. “Boston Scientific Property” has the meaning ascribed to it in the LATITUDE Agreement, and also includes the Mobile Application (including without limitation (a) all formats, structure, design, tools, and all related software, documentation, ideas, methods, methodologies therein, (b) any tools, databases, software, invention, development, methodology or innovation conceived, developed or supplied by Boston Scientific in providing support or maintenance for the Mobile Application, and (c) any and all derivative works, enhancements or other modifications to any of the above).  Subject only to the license granted in these Terms of Use, as between Boston Scientific and Licensee, Boston Scientific is the sole and exclusive owner of all intellectual property rights in and to the Mobile Application.  Boston Scientific may use all suggestions, feedback, improvements, or the like that Licensee provides to Boston Scientific or otherwise makes with respect to the Mobile Application, without any obligation to Licensee.
   
   
8. Disclaimer.  THE MOBILE APPLICATION IS MADE “AS AVAILABLE” AND “AS IS” AND Boston Scientific does not MAKE ANY WARRANTIES WITH RESPECT TO THE MOBILE APPLICATION.  BOSTON SCIENTIFIC DOES NOT warrant that Licensee’s use of the MOBILE APPLICATION will be error-free, virus-free, AVAILABLE or uninterrupted OR SUPPORTED. Boston Scientific hereby disclaims all implied warranties, conditions and other terms, whether statutory, arising from course of dealing, or otherwise, including without limitation terms as to quality, merchantability, fitness for a particular purpose, TITLE and non-infringement. The Mobile Application may be subject to limitations, delays, and other problems inherent in the use of the Internet, mobile devices and electronic communications and mail delivery systems.  Boston Scientific is not responsible for any delays, delivery failures or other damages resulting from such problems.  Boston Scientific reserves the right to do any of the following, at any time, without notice: (1) modify, suspend or terminate operation of or access to the Mobile Application, or any portion thereof; and (2) interrupt the operation of the Mobile Application, or any portion thereof, as necessary to perform routine or non-routine maintenance, error correction, or other changes, or to comply with laws.  LICENSEE ACKNOWLEDGES THAT ITS USE OF THE MOBILE APPLICATION DOES NOT RELIEVE LICENSEE FROM USING ITS BEST MEDICAL JUDGMENT TO DETERMINE A PROPER COURSE OF TREATMENT FOR PATIENTS.
   
   
9. Limitations of Liability. in no event will BOSTON SCIENTIFIC be liable for any indirect, special, punitive, or consequential damages of any kind or nature whatsoever, suffered by LICENSEE or any third party, including, without limitation, lost profits, business interruptions or other economic loss arising, or any use or failure to use the MOBILE APPLICATION. Boston Scientific will not be liable for any damages arising out of or related to the accuracy or completeness of DATA processed through the mobile application OR ANY losses, liabilities or claims incurred or arising in connection with the provision by Licensee or any referring physician or agent of incorrect or misleading DATA or services or the acts or omissions of Licensee, any referring physician, or agent, whether suffered by Licensee or any third-party.
   
   
10. General Terms. These Terms of Use and the LATITUDE Agreement and the Privacy Policy set forth the entire agreement between the parties and supersede any and all prior agreements or representations, written or oral, of the parties with respect to the Mobile Application. If any provision of these Terms of Use is found invalid or unenforceable by a court of competent jurisdiction, the remaining portions will remain in full force and effect. These Terms of Use will be construed under the laws of the State of Minnesota, without regard to its conflicts of law principles. The parties hereby disclaim the application of the U.N. Convention on Contracts for the International Sale of Goods. All notices, consents, waivers and other communications under these Terms of Use must be made in accordance with the notice provision of the LATITUDE Agreement. These Terms of Use may not be modified except by a written instrument signed by both parties.  A printed version of these Terms of Use and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to the Terms of Use to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.  No forbearance or delay by either party in enforcing its rights shall prejudice or restrict the rights of that party, and no waiver of any such rights or of any breach of any contractual terms shall be deemed to be a waiver of any other right or of any later breach.  Licensee may not assign these Terms of Use to any third party; these Terms of Use shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.