CellScope Terms of Service

  1. Definitions

    • "CellScope" means CellScope, Inc., whose principal place of business is located at 530 Howard St. Suite 300 San Francisco, CA 94105.
    • "R&D" means research and development activities performed by CellScope on User data. These activities may include, but are not limited to, improving our Services or Products; offering new products or services; performing quality control activities; and conducting data and/or image and video analysis which may lead to and/or include commercialization with a third-party.
    • "Research" means scientific research that CellScope performs alone or in conjunction with third-party contractors with the intent to publish in peer-reviewed scientific journals. Research uses only Image Data and Self-Reported Information from Users who have consented as “consent” is defined in the applicable Consent Document. Research activities do not include R&D.
    • “Product” or “Products” means all equipment, hardware or devices that are manufactured or delivered or provided by CellScope; this includes but is not limited to the CellScope “Oto” modular otoscope, and any successor or subsequent version or model of any CellScope equipment, hardware or devices.
    • "Service" or "Services" means all software, website or web platform communication amenities or portals; any information or access to information provided or facilitated by CellScope’s web-based portals or platforms to provide support for a Product or information derived or transmitted by a Product; and/or any other services provided by CellScope.
    • “Third Party Service or Services” may or may not involve consulting or medical services provided by a physician or other healthcare provider, using Internet or telemedicine or other electronic communication.
    • "Personal Information" is information that can be used to identify User, either alone or in combination with other information. CellScope collects and stores the following types of Personal Information:

      • "Aggregated Data" means a collection of data from some or all CellScope users, including, but not limited to, Image Data and Self-Reported Information (CellScope will endeavor to remove all Registration Information and other Personal Information other than Self-Reported Information from the Aggregated Data sufficient to minimize the possibility of exposing individual-level information while still providing evidence for scientific research purposes).
      • "Image Data" means any images or videos captured using Services or Products provided by CellScope.
      • "Registration Information" means the information that User provides when registering for and/or purchasing Services or Products provided by CellScope (e.g. name, email, address, user ID and password, and payment information).
      • "Self-Reported Information" means all information that User enters into surveys, forms, or features while signed in to CellScope accounts including, but not limited to, health information, disease conditions, treatment information, healthcare provider identification, other health-related information, personal traits, ethnicity, family history, and other information. Self-Reported Information is subject to Research only if User consents as described in the applicable Consent Document.
      • "Medical Practice" means any health care provider offering health care services to individuals accessing CellScope Services or Products.
      • "User" or "Users" means any Individual or Medical Practice authorized by CellScope to utilize the Services and Products provided by CellScope, including those individuals acting on behalf of an authorized User, individuals with legal authorization for User, and employees or agents of Medical Practice.
      • "User Content" means all information, data, text, photographs, graphics, video, software, music, audio, messages, or other materials—other than Self-Reported Information—generated by Users of Services or Products provided by CellScope, and transmitted, whether publicly or privately, to or through CellScope.
      • "Web Behavior Information" means all information related to usage of the CellScope website (e.g. browser type, domains, page views) collected through log files, cookies, and web beacon technology.
  2. Acceptance of Terms

    Use of Services or Products provided by CellScope (excluding any services provided by CellScope under a separate agreement) is subject to the terms of the legal agreement between User and CellScope set forth in these Terms of Service ("TOS"). Except as specified herein, these TOS apply to any use of the Services or Products provided by CellScope, including but not limited to: (a) capturing video or images with CellScope Products; (b) uploading additional information and interacting with it on the CellScope website; and/or (c) creating and using a free CellScope account without capturing a video or image or providing additional information. In order to use the Services or Products provided by CellScope, User must first agree to the TOS. A User may not use the Services or Products if he or she does not accept the TOS. To accept the TOS, User must: (1) click to accept or agree to the TOS, where this option is made available by CellScope for any Services or Products; or (2) actually use the Services or Products. In that case, User acknowledges and agrees that CellScope will treat any use of the Services or Products as acceptance of the TOS from that point onwards. In addition, when using particular CellScope Services or Products, User is subject to any guidelines or rules applicable to such services that may be posted from time to time. All such guidelines or rules are hereby incorporated by reference into the TOS. CellScope also may offer other services from time to time that are governed by different terms of service.

  3. Prerequisites

    1. Whether User captures his or her own video or image, or does so for anyone for whom User has legal authority to agree, or otherwise provides his or her own information, User may not use the Services or Products provided by CellScope and may not accept the TOS if User is: (1) not of legal age to form a binding contract with CellScope; or (2) barred from receiving the Services or Products under the laws of the jurisdiction in which User is a resident, or in which he or she uses the Services or Products provided by CellScope.
    2. In addition to the conditions above, if User contributes or otherwise provides his or her information, User must be eighteen years of age or older to agree to these TOS on behalf of User or those for whom User has legal authority to agree.
    3. In addition to the conditions above, if User contributes or otherwise provides his or her information, User must be eighteen (18) years of age or older. Furthermore, to agree to these TOS on behalf of User or those for whom User has legal authority to agree, that individual must be eighteen (18) years of age or older.
  4. Description of the Services or Products

    The Services or Products provided by CellScope include access to the CellScope public website and associated services, including the collection and analysis of User’s ear video or skin video or image. Unless explicitly stated otherwise, each new feature that augments or enhances the current Services or Products shall be subject to the TOS. Third Party Service or Services, and Third Party Use or Uses, while not provided by CellScope, may or may not involve third party consulting or medical services provided by a physician or other healthcare provider, using Internet or telemedicine or other electronic communication.

    Users acknowledge and agree that the Services or Products are provided "AS-IS" and are based on the current technology in use by CellScope at the time of the purchase or viewing. As research progresses and scientific knowledge and technology evolve, CellScope is constantly innovating in order to provide the best possible experience for its Users. User acknowledges and agrees that the form and nature of the Services or Products provided by CellScope may change without prior notice. As part of this continuing innovation, User acknowledges and agrees that CellScope may stop (permanently or temporarily) providing some Services or Products (or any features within the Services or Products) to Users generally at CellScope's sole discretion, without prior notice. User may stop using the Services or Products at any time. User does not need to specifically inform CellScope when he or she stops using the Services or Products unless requesting closure of an account. CellScope assumes no responsibility for the use of Services or Products outside the terms of this TOS or other applicable terms.

    In order to use the Services or Products, User must obtain Internet access, either directly or through devices that access web-based content, and pay any service fees associated with such access. User is solely responsible for paying such fees. If User uses Services or Products provided by CellScope on a cellular network (rather than via Wi-Fi), standard data rates or roaming may apply, according to the wireless plan. CellScope is not responsible for any device connection, data transmission charges, or roaming charges incurred when Services and Products are used.

    In addition, User must provide all equipment necessary to make such Internet connection, including a computer and modem or other access device. User is solely responsible for providing such equipment. User acknowledges and agrees that while CellScope may not currently have set a fixed upper limit on the number of transmissions that can be sent or received through the Services or Products or on the amount of storage space used for the provision of any Service/Products, such fixed upper limits may be set by CellScope at any time, at CellScope's sole discretion.

  5. Risks and Considerations Regarding Services or Products

    User should not change his or her health behaviors solely on the basis of information from CellScope. The information from CellScope does not replace or substitute consultation or treatment with a physician or other trained healthcare provider, or any Third Party Service. Make sure to seek the advice of a physician or other trained healthcare provider regarding the information generated by Services and Products provided by CellScope, and to discuss videos and images with a physician or other trained healthcare provider before acting upon the information resulting from Services or Products provided by CellScope. User should contact a physician or other trained healthcare provider with any questions or concerns about the information generated by Services or Products provided by CellScope.

    Services or Products are for research, informational, and educational use only. CellScope does not provide medical advice, diagnosis or treatment.The Information provided by CellScope is for research, informational, and educational use only. This means two things: (1) Any information provided that is based on images or videos captured with any CellScope Product have not been clinically validated, and the technology used to date has not been widely used for clinical testing; and (2) The Services or Products are not intended to be used as a substitute for professional medical advice. Users should always seek the advice of a physician or other trained healthcare provider with any questions regarding diagnosis, cure, treatment, mitigation, or prevention of any disease or other medical condition or impairment or the status of User’s health.

    CellScope is not a healthcare provider, and does not diagnose any condition, recommend or endorse any specific courses of action, resources, tests, physicians or other healthcare providers, drugs, biologics, medical devices or other products, procedures, opinions, or other information that may be mentioned on the CellScope website. As explained on the CellScope website, CellScope believes that (1) visual representations of the ear canal and tympanic membrane and/or any other body part are only part of the picture of any individual's state of being; and (2) only a trained physician or other healthcare provider can assess User’s current state of health or disease, taking into account many factors, including in some cases, images and videos taken with a CellScope Product, as well as User’s current symptoms, if any. Reliance on any information provided by Services or Products provided by CellScope, CellScope employees, others appearing on the CellScope website at the invitation of CellScope, or other visitors to the CellScope website is solely at User’s own risk.

    CellScope is licensed by the State of California’s Food and Drug Board as a Medical Device Manufacturer of Class 1 Medical Devices. Therefore, CellScope is not universally licensed by all state, federal, or international authorities. In addition, there are certain jurisdictions in which CellScope does not offer our Services or Products since it does not have the required licenses.

    User should not share any sensitive health information when communicating with CellScope’s support and customer service team. Health information should be shared with User’s medical provider, an appropriate healthcare professional, or directly with CellScope via our secure app and server. The designated support and customer service teams are not healthcare professionals and cannot offer medical advice.

  6. User Representations

    By accessing or using Services or Products, User agrees to, acknowledges, and represents as follows:

    1. User understands that information learned or acquired during the provision of Services or Use of Products provided by CellScope, designed to diagnose, prevent, or treat any condition or disease or to ascertain the state of User’s health is intended for research, informational, and educational purposes only.
    2. User acknowledges that CellScope urges Users to seek the advice of a physician or other trained healthcare provider regarding any questions or concerns that arise from captured information, including, but not limited to, images and video taken with Services or Products provided by CellScope. User further acknowledges that CellScope is not responsible for any advice acquired from a physician or other trained healthcare provider.
    3. User gives permission to CellScope, its contractors, successors and assignees to perform image processing or analyzing services on images extracted from the videos captured by using the Application.
    4. User gives permission to CellScope, its contractors, successors and assignees to use any Image Data and other Personal Information (with personalized identifiable data removed) as publishable material, marketing advertising material and/or for commercial use at any time including after the closure of User’s account.
    5. User represents that he or she is eighteen (18) years of age or older.
    6. User guarantees that any video or image provided either is his or her own; or, if User is agreeing to these TOS on behalf of a person for whom they have legal authorization, User confirms that the video or image of that person will be correctly represented or labeled.
    7. Any User outside the U.S. that provides an image or video confirms that this act is not subject to any export ban or restriction in the country in which User resides.
    8. User warrants that he or she is not acting on behalf an insurance company or an employer attempting to obtain information about an insured person or an employee.
    9. User takes sole responsibility for all possible consequences resulting from sharing with others access to videos or images captured and Self-Reported Information.
    10. User understands that all Personal Information will be stored in CellScope databases and will be processed in accordance with the CellScope Privacy Statement.
    11. Waiver of Property Rights. User understands that by taking images or videos with CellScope’s Services or Products, or providing Self-Reported Information, he or she acquires no rights in any research or commercial products that may be developed by CellScope or its collaborating partners. User specifically understands that he or she will not receive compensation for any research or commercial products that include or result from any image, video or Self-Reported Information.
  7. User agrees and warrants that he or she has the authority, under the laws of the state or jurisdiction of User’s residency, to provide these representations. In case of breach of any one of these representations CellScope has the right to suspend or terminate User’s account and refuse any and all current or future use of the Services or Products (or any portion thereof) and User agrees to defend and indemnify CellScope and its affiliates against any liability, costs, or damages arising out of the breach of the representation.
  8. Account Creation, Customer Account, Password, and Security Obligations

    In consideration of use of the Services or Products, User agrees to: (1) provide true, accurate, current, and complete Registration Information as prompted by the Service; and (2) maintain and promptly update the Registration Information to keep it truthful, accurate, current, and complete. If any Registration Information is untrue, inaccurate, not current, or incomplete, or if CellScope has reasonable grounds to suspect that such information is untrue, inaccurate, not current, or incomplete, CellScope has the right to suspend or terminate the associated account and refuse any and all current or future use of the Services or Products (or any portion thereof).

    After purchase of Services or Products provided by CellScope, User will create a password and account designation. User is responsible for maintaining the confidentiality of the password and account, and is fully responsible for all activities that occur under his or her password or account. If User allows third parties to access the CellScope website through his or her username and password, User agrees to defend and indemnify CellScope and its affiliates against any liability, costs, or damages, including attorneys’ fees, arising out of claims or suits by such third parties based upon or relating to such access and use. User agrees to: (1) immediately notify CellScope of any unauthorized use of his or her password or account, or any other breach of security; and (2) ensure that User exits from his or her account at the end of each session. CellScope cannot and will not be liable for any loss or damage arising from User’s failure to comply with this Section.

  9. CellScope Privacy Statement and Disclosure of Information

    In order to use the Services or Products, User must first acknowledge and agree to the Privacy Statement. User cannot use the Services or Products without first accepting the Privacy Statement. User can acknowledge and agree to the Privacy Statement by (1) clicking to accept or agree to the Privacy Statement, where this option is made available by CellScope for any Service; or by (2) actually using the Services or Products.

    User acknowledges and agrees that CellScope has the right to monitor any use of its systems by its personnel at any time and maintain copies documenting such monitoring. Our Privacy Statement sets forth the only expectations of privacy any individual should have in terms of usage of the Services or Products, website, or other systems. If User has given consent for Image Data and Self-Reported Information to be used in Research as described in the applicable Consent Document, we may include User’s Image Data and Self-Reported Information in the Aggregated Data we disclose to third parties for the purpose of publication in a peer-reviewed scientific journal. If User does not consent to participate in Research, CellScope may still include User’s Image Data and Self-Reported Information (after removal of all personalized identifiable information) in Aggregated Data disclosed to third-party non-profit and/or commercial research partners who will not publish that information in a peer-reviewed scientific journal. CellScope will never release individual-level Image Data and/or Self-Reported Information to any third party without first asking for and receiving User’s express written consent to do so, unless required by law. Further, User acknowledges and agrees that CellScope is free to preserve and disclose any and all Personal Information to law enforcement agencies or others if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (1) comply with legal process (such as a judicial proceeding, court order, or government inquiry) or obligations that CellScope may owe pursuant to ethical and other professional rules, laws, and regulations; (2) enforce the CellScope TOS; (3) respond to claims that any content violates the rights of third parties; or (4) protect the rights, property, or personal safety of CellScope, its employees, its Users, its clients, and the public. In such event we will notify User through the contact information provided to us in advance, unless doing so would violate the law or a court order. User understands that the technical processing and transmission of the Services or Products, including Personal Information, may involve (1) transmissions over various networks; and (2) changes to conform and adapt to technical requirements of connecting networks, or devices. Finally, CellScope may, in its sole discretion, restrict access to the website for any reason.

    Please refer to CellScope’s Privacy Statement to read about data protection related to storage and use information. See CellScope’s complete Privacy Statement here.

  10. Limited Use License

    User acknowledges that all User Content, whether publicly posted or privately transmitted, is the sole responsibility of the person from which such User Content originated. This means that User, and not CellScope, is entirely responsible for all User Content that is uploaded, posted, emailed, or otherwise transmitted via the Services or Products.

    User acknowledges that the Services or Products content presented as part of the Services or Products, whether original Services or Products content or sponsored content within the Services or Products, is protected by copyright and/or other intellectual property rights that are owned by CellScope and/or the sponsors who provide that content to CellScope (or by other persons or companies on their behalf).

    CellScope grants User a Limited Use License to copy and distribute free of charge, for non-commercial purposes only, any of the Services or Products content, provided that User: (i) provides the Services or Products content as it appears on the CellScope website with no changes, including, but not limited to, presenting selections which might tend to misrepresent the substance of the Services or Products content; (ii) include the following attribution on the first page of any materials User distributes: “© CellScope, Inc. 2011-2013. All rights reserved; distributed pursuant to a Limited Use License from CellScope”; (iii) agree User has no right to offer anyone else any further right with respect to this Services or Products content.

    Aside from the Limited Use License provided in this paragraph, User may not modify, rent, lease, loan, sell, distribute, or create derivative works based on this Services or Products content (either in whole or in part) unless User has been specifically granted authorization in writing by CellScope or by the owners of that content, in a separate agreement.

  11. User Conduct — Unlawful and Prohibited Use

    As a condition of User’s use of the Services or Products, User warrants to CellScope that the use will not be for any purpose that is unlawful or prohibited by these terms, conditions, or notices. User may not use the Services or Products in any manner that could damage, disable, overburden, or impair the Services or Products, or interfere with any other party's use and enjoyment of the Services or Products. User may not obtain or attempt to obtain any materials or information through any means not intentionally made available or provided for through the Services or Products. Furthermore, User agrees not to use the Services or Products to: (1) upload, post, email, or otherwise transmit any material that is derogatory, defamatory, obscene, or offensive, such as slurs, epithets, or anything that might reasonably be construed as harassment or disparagement based on race, color, national origin, sex, sexual orientation, age, disability, religious or political beliefs, or other statutorily protected status; (2) impersonate any person or entity, including, but not limited to, anyone affiliated with CellScope, or falsely state or otherwise misrepresent User’s affiliation with a person or entity; (3) add User’s own headers, forge headers, or otherwise manipulate identifiers in order to disguise the origin of any content transmitted through the Service; (4) "stalk" or otherwise harass another; (5) upload, post, email, or otherwise transmit any content that User does not have a right to transmit under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements); (6) download any file posted by another user of the Services or Products that User knows, or reasonably should know, cannot legally be distributed in such manner; (7) upload, post, email or otherwise transmit any content that infringes any patent, trademark, trade secret, copyright, or other proprietary rights ("Rights") of CellScope or any other party; (8) harm minors in any way; (9) advertise or offer to sell or buy any goods or services for any business purpose, unless such area specifically allows such messages; (10) upload, post, email, or otherwise transmit any unsolicited or unauthorized advertising, promotional materials, "junk mail," "spam," "chain letters," "pyramid schemes," or any other form of solicitation, except in those areas that are designated for such purpose and only to the extent such content is authorized by law; (11) upload, post, email, or otherwise transmit any material that contains software viruses or any other computer code, files, or programs designed to interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment; (12) interfere with or disrupt the Services or Products or servers or networks connected to the Services or Products, or disobey any requirements, procedures, policies, or regulations of networks connected to the Service; (13) violate these Terms of Service, any code of conduct or other guidelines which may be applicable for any particular area of the Services or Products or have been communicated to User by anyone affiliated with CellScope; or (14) intentionally or unintentionally violate any applicable local, state, national, or international law, or any regulations having the force of law.

    User acknowledges and agrees that CellScope Products and Services are designed and intended to be used exclusively on a combined basis. Using a non-CellScope product with a CellScope Service, or, using a Product with a service not provided by CellScope, can lead to product/service incompatibility errors and privacy breaches that may harm User or others. Therefore (i)any use of a Service in connection with any product not manufactured or provided by CellScope; or (ii) any use of a Product in connection with any software or information or consulting service provided by a person or entity other than CellScope; shall in either event cause any applicable warranty to be automatically and immediately void, and shall constitute a breach of this TOS or any other applicable contract with CellScope.

    User acknowledges and agrees that Services and Products are designed and intended to be used exclusively on a combined basis. Using a non-CellScope product with a CellScope Service, or, using a Product with a service not provided by CellScope, can lead to product/service incompatibility errors and privacy breaches that may harm User or others. Therefore (i) any use of a Service in connection with any product not manufactured or provided by CellScope; or (ii) any use of a Product in connection with any software or information or consulting service provided by a person or entity not authorized by CellScope; shall in either event cause any applicable warranty to be automatically and immediately void, and shall constitute a breach of this TOS or any other applicable contract with CellScope.

    CellScope will be wholly responsible for the collection of any state and/or federal taxes associated with the provision and delivery of any Services and/or Products provided by CellScope.

    User acknowledges and agrees that he or she is solely responsible for (and that CellScope has no responsibility to User or to any third party for) any breach of his or her obligations under the TOS and for the consequences (including any loss or damage which CellScope may suffer) of any such breach. In case of breach of any one of these agreements, CellScope has the right to suspend or terminate User’s account and refuse any and all current or future use of the Services or Products (or any portion thereof), and User agrees and promises to defend and indemnify CellScope and its affiliates against any liability, costs, or damages arising out of the breach of the representation.

    If User violates the terms of this Section and/or CellScope has a reasonable ground to suspect that User has violated the terms of this Section, CellScope has the right to suspend or terminate User’s account and refuse any and all current or future use of the Services or Products (or any portion thereof).

  12. Applicable Laws and Regulations

    Recognizing the global nature of the Internet, User agrees to comply with all local rules regarding online conduct and acceptable content. Specifically, User will comply with all applicable laws regarding the transmission of technical data exported from the United States or the country from which User accesses Services or Products online.

  13. Material Posted Through the Services or Products

    CellScope does not control any of User Content posted via the Services or Products and, as such, does not guarantee the accuracy, integrity, or quality of such non-CellScope content. User understands that by using the Services or Products, he or she may be exposed to content that is offensive, indecent, or objectionable. Under no circumstances will CellScope be liable in any way for any non-CellScope content, including, but not limited to, any errors or omissions in any such content, or for any loss or damage of any kind incurred as a result of the use of any such content posted, emailed, or otherwise transmitted via the Services or Products.

    User acknowledges that CellScope and its designees shall have the right (but not the obligation) in their sole discretion to pre-screen, review, filter, modify, refuse, or move any content that is available via the Services or Products. Without limiting the foregoing, CellScope and its designees shall have the right to remove any content that violates the TOS or is deemed by CellScope, in its sole discretion, to be otherwise objectionable. User acknowledges and agrees that User must evaluate, and bear all risks associated with, the use of any content, including any reliance on the accuracy, completeness, or usefulness of such content.

  14. Material Provided to CellScope — User’s Proprietary Rights

    User Content. CellScope does not claim ownership of User Content provided to CellScope (including feedback and suggestions) or posted, uploaded, inputted, or submitted to the Services or Products. Unless otherwise specified, User retains copyright and any other rights User already holds over User Content that User creates and submits, posts, or displays on or through the Services or Products. However, by submitting, posting, or displaying User Content, User gives CellScope, its affiliated companies, sublicensees (including but not limited to sublicensees who avail themselves of the Limited Use License granted in Section 9 above) and successors and assigns a perpetual, irrevocable, worldwide, royalty-free, and non-exclusive license to reproduce, adapt, modify, translate, publish, publicly perform, publicly display, distribute, reproduce, edit, reformat, and create derivative works from any User Content that User submits, posts, or displays on or through the Services or Products. User acknowledges and agrees that this license includes a right for CellScope to make such User Content available to other companies, organizations, or individuals with whom CellScope has relationships, and to use such User Content in connection with the provision of those Services.

    User understands that CellScope, in performing the required technical steps to provide the Services or Products to Users, may (a) transmit or distribute User Content over various public networks and in various media; and (b) make such changes to User Content as are necessary to conform and adapt that content to the technical requirements of connecting networks, devices, services, or media. User acknowledges and agrees that this license shall permit CellScope to take these actions. User represents and warrants to CellScope that User has all the rights, power, and authority necessary to grant the above license.

    Waiver of Property Rights. As stated above, User understands that by providing any sample, having images and video data processed, accessing Image Data, or providing Self-Reported Information, User acquires no rights in any research or commercial products that may be developed by CellScope or its collaborating partners. User specifically understands that User will not receive compensation for any research or commercial products that include or result from Image Data or Self-Reported Information.

  15. Indemnity

    User agrees to defend and hold CellScope, and its subsidiaries, affiliates, officers, agents, contractors, partners, employees, successors, and assigns harmless from any claim, or demand, including reasonable attorneys' fees, made by any third party due to or arising out of User Content that User submits, posts to, or transmits through the Service; User’s use of the Service; User’s connection to the Service; User’s violation of the TOS; or User’s violation of any rights of another.

    If User takes an image or video or otherwise uploads information, User will defend and hold harmless CellScope, its employees, contractors, successors, and assigns from any liability arising out of the use or disclosure of any information obtained from analyzing User’s videos or images, which is disclosed to User consistent with our Privacy Statement, or results from any third-party add-ons to tools provided by CellScope.

    In addition, if User chooses to provide images and/or Self-Reported Information to third parties—whether individuals to whom User facilitates access, intentionally or inadvertently, or to third parties for diagnostic or other purposes—User agrees to defend and hold harmless CellScope, its employees, contractors, successors, and assigns from any and all liability arising from such disclosure or use of such image data and/or Self-Reported Information. Specifically, User agrees to defend and hold harmless CellScope, its employees, contractors, successors, and assigns from any and all liability for any damages resulting from advice acquired from a physician or other trained healthcare provider while using Internet or telemedicine or other electronic communication, or User’s failure to comply with advice provided by Third Party Service providers.

  16. No Resale of Services or Products

    Other than pursuant to the terms of the Limited Use License in Section 9 of this TOS or unless otherwise agreed in a separate agreement between User and CellScope, User agrees not to display, distribute, license, perform, publish, reproduce, duplicate, copy, create derivative works from, modify, sell, resell, exploit, transfer, or transmit for any commercial purposes, all or any portion of the Services or Products, use of the Services or Products, or access to the Services or Products.

  17. General Practices Regarding Use and Storage

    User acknowledges that CellScope may establish general practices and limits concerning use of the Services or Products, including, without limitation, the maximum number of days that Personal Information and Services or Products content will be retained by the Services or Products, the maximum disk space that will be allotted on CellScope's servers on User’s behalf, and the maximum number of times (and the maximum duration for which) User may access the Services or Products in a given period of time. User acknowledges and agrees that CellScope has no responsibility or liability for the deletion of or failure to store any messages, other communications, or other content maintained or transmitted by the Services or Products; or for the loss of image data due to malfunction or destruction of data servers or other catastrophic events. User further acknowledges that CellScope reserves the right to change these general practices and limits in its sole discretion.

  18. Modifications to Services or Products

    CellScope reserves the right at any time, and from time to time, to modify or discontinue, temporarily or permanently, the Services or Products (or any part thereof) with or without notice. User acknowledges and agrees that CellScope shall not be liable to User or to any third party for any modification, suspension, or discontinuance of the Services or Products.

    The Software that User uses may automatically download and install updates from CellScope. These updates are designed to improve, enhance, and further develop the Services or Products and may take the form of bug fixes, enhanced functions, new software modules, and completely new versions. User agrees to receive such updates (and permit CellScope to deliver them) as part of User’s use of the Services or Products.

    User acknowledges that CellScope may offer different or additional technologies or features to collect and/or interpret image data in the future, and that User’s initial purchase of the Services or Products does not entitle User to any different or additional technologies or features for collection or interpretation of Image Data without fee, and that User will have to pay additional fees in order to have Image Data processed, and/or interpreted using any future or additional technologies or features.

  19. Termination

    The TOS will continue to apply until terminated by either User or CellScope, as set out in this Section.

    To terminate a legal agreement with CellScope, User may do so by notifying CellScope at any time in writing, which will entail closing User’s accounts for all of the Services or Products used by User. The notice should be sent, in writing, to CellScope's address, which is set out at the beginning of the TOS, or online via the Contact Form. If notice is provided online, CellScope will send User an email asking that User to confirm the request to close an account, and User’s notice will be effective following receipt of a second email confirmation from User.

    CellScope may at any time, terminate its legal agreement with User (and in conjunction therewith, User’s password and account(s)) if: (1) User has breached any provision of the TOS (or have acted in manner which shows that User does not intend to, or are unable to comply with, the provisions of the TOS); (2) CellScope is required to do so by law (for example, where the provision of the Services or Products is, or becomes, unlawful); (3) the partner with whom CellScope offered the Services or Products has terminated its relationship with CellScope or ceased to offer the Services or Products to User; (4) CellScope decides to stop providing the Services or Products to Users in the country or state in which User resides or from which User uses the Services or Products; or (5) the provision of the Services or Products to User by CellScope is, in CellScope's opinion, no longer commercially viable.

    Any suspected fraudulent, abusive, or illegal activity that may be grounds for termination of User’s use of the Services or Products may be referred to appropriate law enforcement authorities. User acknowledges and agrees that CellScope shall not be liable to User or to any third party for any termination of User’s access to the Services or Products, regardless of the reason for termination.

  20. Survival of Terms

    When the TOS come to an end, all of the legal rights, obligations, and liabilities that User and CellScope have benefited from, been subject to (or which have accrued over time while the TOS have been in force) or which are expressed to continue indefinitely, shall be unaffected by this cessation, and the provisions of sections 1.(Definitions); 2.(Acceptance of Terms); 3.(Prerequisites); 4.(Description of the Services or Products); 5.(Risks and Considerations Regarding CellScope Services or Products); 6.(Representations); 7.(Account Creation, Customer Account, Password and Security Obligations); 8.(CellScope Privacy Statement); 10.(Customer Conduct — Unlawful and Prohibited Use); 11.(Export Control and Applicable Laws and Regulations); 12.(Material Posted through the Services or Products); 13.(Material Provided to CellScope — User’s Proprietary Rights); 14.(Indemnity); 15.(No Resale of Services or Products);18.(Termination); 19.(Survival of Terms); 20.(Dealings with Information Providers and Listed Resources); 21.(Hyperlinks and CellScope Website); 22.(CellScope Proprietary Rights); 23.(DISCLAIMER OF WARRANTIES); 24.(LIMITATION OF LIABILITY); 25.(Notice); 27.(Violation or Suspected Violation of TOS); and 28.(Miscellaneous) shall continue to apply to such rights, obligations, and liabilities indefinitely.

  21. Dealings with Information Providers and Listed Resources

    User’s correspondence or business dealings with—or participation in promotions of—information providers, vendors, and/or resources found on or through the Services or Products, including payment and delivery of related goods or services, and any other terms, conditions, warranties, or representations associated with such dealings, are solely between User and such information provider or resource. User acknowledges and agrees that CellScope shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such information provider or resources on the Services or Products.

  22. Hyperlinks and the CellScope Website

    The Services or Products provide, and third parties may provide, links to other sites and resources on the Internet. Because CellScope has no control over such sites and resources, User acknowledges and agrees that CellScope is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for any content, advertising, products, or other materials on or available from such sites or resources. User further acknowledges and agrees that CellScope shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods, or services available on or through any such hyperlinked site or resource.

  23. CellScope's Proprietary Rights

    User acknowledges and agrees that CellScope (or CellScope's licensors, as applicable) own all legal right, title, and interest in and to the Services or Products, including any intellectual property rights which exist in the Services or Products (whether those rights happen to be registered or not, and wherever in the world those rights may exist). User further acknowledges that the Services or Products may contain information which is designated confidential by CellScope and that User shall not disclose such information without CellScope's prior written consent.

    User acknowledges and agrees that the Services or Products and any necessary software used in connection with the Services or Products ("Software") contain proprietary and confidential information that is protected by applicable intellectual property and other laws. User further acknowledges and agrees that information presented to User through the Services or Products or sponsors is protected by copyrights, trademarks, service marks, patents, or other proprietary rights and laws. Except as expressly authorized by CellScope, User agrees not to—and not to permit anyone else to—modify, rent, lease, loan, sell, distribute, or create derivative works of, reverse engineer, decompile, or otherwise attempt to extract the source code of the Services or Products or Software or any part thereof, in whole or in part. Software, if any, that is made available to download from the Services or Products, excluding software that may be made available by end-users through the Services or Products, is the copyrighted work of CellScope and/or its suppliers. User’s use of the Software is governed by the terms of the end user license agreement, if any, which accompanies or is included with the Software ("License Agreement"). User may not install or use any Software that is accompanied by or includes a License Agreement before first agreeing to the License Agreement terms.

    CellScope, Inc., CellScope, and other CellScope logos and product and service names are registered trademarks of CellScope and these marks, together with any other CellScope trade names, service marks, logos, domain names, and other distinctive brand features, are the "CellScope Marks". Unless User has agreed otherwise in writing with CellScope, other than through the Limited Use License in Section 9, nothing in the TOS gives User a right to use any CellScope Marks and User agrees not to display, or use in any manner, CellScope Marks.

    User agrees that he or she shall not remove, obscure, or alter any proprietary rights notices (including copyright and trademark notices) that may be affixed to or contained within the Services or Products.

    Unless User has been expressly authorized to do so in writing by CellScope, User agrees that in using the Services or Products, User will not use any trade mark, service mark, trade name, logo of any company, or organization in a way that is likely or intended to cause confusion about the owner or authorized user of such marks, names, or logos.

    For any Software not accompanied by a License Agreement, CellScope grants User a personal, non-transferable, and non-exclusive right and license to use the object code of its Software on a single computer. User may not (and may not allow any third party to) copy, modify, create a derivative work of, reverse engineer, reverse assemble, or otherwise attempt to discover any source code, sell, assign, sublicense, grant a security interest in, or otherwise transfer any right in the Software unless this is expressly permitted or required by law, or unless User has been specifically granted authority to do so, in writing. This license is for the sole purpose of enabling User to use and enjoy the benefit of the Services or Products provided by CellScope, in the manner permitted by the TOS. Unless CellScope has given User specific permission in writing to do so, User may not assign (or grant a sublicense of) User’s rights to use the Software, grant a security interest in or over User’s rights to use the Software, or otherwise transfer any part of User’s rights to use the Software. User agrees not to modify the Software in any manner or form, or to use modified versions of the Software, including (without limitation) for the purpose of obtaining unauthorized access to the Services or Products. User agrees not to access the Services or Products by any means other than through the interface that is provided by CellScope for use in accessing the Services or Products. Any rights not expressly granted herein are reserved.

  24. Disclaimer of Warranties

    USER EXPRESSLY ACKNOWLEDGES AND AGREES THAT: (1) USER’S USE OF THE SERVICES AND PRODUCTS ARE AT USER’S SOLE RISK. THE SERVICES AND PRODUCTS ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. CELLSCOPE EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. (2) CELLSCOPE MAKES NO WARRANTY THAT (a) THE SERVICES AND PRODUCTS WILL MEET USER’S REQUIREMENTS; (b) THE SERVICES AND PRODUCTS WILL BE UNINTERRUPTED, TIMELY, UNFAILINGLY SECURE, OR ERROR-FREE; (c) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES AND PRODUCTS WILL BE ACCURATE OR RELIABLE; (d) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY USER THROUGH THE SERVICES AND PRODUCTS WILL MEET USER’S EXPECTATIONS; AND (e) ANY ERRORS IN THE SOFTWARE WILL BE CORRECTED. (3) ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES AND PRODUCTS IS DONE AT USER’S OWN DISCRETION AND RISK, AND THAT USER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO USER’S COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL. (4) NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY USER FROM CELLSCOPE OR THROUGH OR FROM THE SERVICES AND PRODUCTS SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TOS. (5) USER SHOULD ALWAYS USE CAUTION WHEN GIVING OUT ANY PERSONALLY IDENTIFYING INFORMATION ABOUT USER OR THOSE FOR WHOM USER HAS LEGAL AUTHORITY. CELLSCOPE DOES NOT CONTROL OR ENDORSE ANY ACTIONS RESULTING FROM USER’S PARTICIPATION IN THE SERVICES AND PRODUCTS AND, THEREFORE, CELLSCOPE SPECIFICALLY DISCLAIMS ANY LIABILITY WITH REGARD TO ANY ACTIONS RESULTING FROM USER’S PARTICIPATION IN THE SERVICES. USER’S FAILURE TO FULLY COMPLY WITH THE TOS RESULTS IN THE AUTOMATIC TERMINATION OF ANY WARRANTY APPLICABLE TO THE SERVICES AND PRODUCTS. (6) CELLSCOPE MAKES NO WARRANTY FOR ANY SERVICES OR PRODUCTS OBTAINED FROM THIRD PARTIES NOT AUTHORIZED BY CELLSCOPE TO USE SERVICES OR PRODUCTS PROVIDED TO USER BY CELLSCOPE.
  25. Limitation of Liability

    WITHIN THE LIMITS ALLOWED BY APPLICABLE LAWS, USER EXPRESSLY ACKNOWLEDGES AND AGREES THAT CELLSCOPE SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES (EVEN IF CELLSCOPE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (a) THE USE OR THE INABILITY TO USE THE SERVICES; (b) ANY ACTION USER TAKES BASED ON THE INFORMATION RECEIVED IN THROUGH OR FROM THE SERVICES; (c) USER’S FAILURE TO KEEP USER’S PASSWORD OR ACCOUNT DETAILS SECURE AND CONFIDENTIAL; (d) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION, OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICES; (e) UNAUTHORIZED ACCESS TO OR ALTERATION OF USER’S TRANSMISSIONS OR DATA; (f) THE IMPROPER AUTHORIZATION FOR THE SERVICES BY SOMEONE CLAIMING SUCH AUTHORITY; OR (g) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICES.
  26. Notice

    Notices to User may be made via either email or regular mail. CellScope may also provide notices of changes to the TOS or other matters by displaying notices or links to notices to User generally on or through the Services or Products.

    Official notices related to this TOS must be sent to CellScope at:

    CellScope, Inc.
    ATTN: Legal Counsel
    530 Howard St.
    Suite 300
    San Francisco, CA 94105

    Additionally, CellScope accepts service of process at this address. Any notices provided without compliance with this section on Notices shall have no legal effect.

  27. Changes to the Terms of Service

    CellScope may make changes to the TOS from time to time. When these changes are made, CellScope will make a new copy of the TOS available on its website and any new additional terms will be made available to User from within, or through, the affected Services or Products.

    User acknowledges and agrees that CellScope may treat any use of the Services or Products after the date on which the TOS have changed as an acceptance by User of the updated TOS in effect as of the date of User’s usage.

  28. Violation or Suspected Violation of Terms of Service

    If User violates the terms of these TOS and/or CellScope has reasonable grounds to suspect that User has violated these TOS, CellScope has the right to suspend or terminate User’s account and refuse any and all current or future use of the Services or Products (or any portion thereof).

  29. Miscellaneous

    1. Entire Agreement. The TOS constitute the entire agreement between User and CellScope and govern User’s use of the Services or Products, superseding any prior agreements between User and CellScope on this subject. User also may be subject to additional terms and conditions that may apply upon the use of affiliate services, third-party content, or third-party software.
    2. Applicable law and arbitration. Except for any disputes relating to intellectual property rights, obligations, or any infringement claims, any disputes with CellScope arising out of or relating to the Agreement ("Disputes") shall be governed by California law regardless of User’s country of origin or where User accesses CellScope, and notwithstanding of any conflicts of law principles and the United Nations Convention for the International Sale of Goods. Any Disputes shall be resolved by final and binding arbitration under the rules and auspices of the American Arbitration Association, to be held in San Francisco, California, in English, with a written decision stating legal reasoning issued by the arbitrator(s) at either party's request, and with arbitration costs and reasonable documented attorneys' costs of both parties to be borne by the party that ultimately loses. Either party may obtain injunctive relief (preliminary or permanent) and orders to compel arbitration or enforce arbitral awards in any court of competent jurisdiction.
    3. Waiver. The failure of CellScope to exercise or enforce any right or provision of the TOS shall not constitute a waiver of such right or provision. If any provision of the TOS is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of the TOS remain in full force and effect.
    4. Term for cause of action. User agrees that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Services or Products or the TOS must be filed within one (1) year after such claim or cause of action arose or be forever barred.
    5. Admissibility of printed version. A printed version of this agreement, and of any notice given in electronic form, shall be admissible in judicial or administrative proceedings based upon or relating to this agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
    6. Section titles. The section titles in the TOS are for convenience only and have no legal or contractual effect.
    7. Severability Clause. If any portion of these TOS is found to be unenforceable, the remaining portion will remain in full force and effect.
    8. Amendments. We reserve the right to modify, supplement, or replace the terms of the Agreement, effective upon posting at www.cellscope.com or notifying User otherwise. If User does not want to agree to changes to the Agreement, User can terminate the Agreement at any time per Section 18 (Termination).
    9. Assignment. User may not assign or delegate any rights or obligations under the Agreement. Any purported assignment and delegation shall be ineffective. We may freely assign or delegate all rights and obligations under the Agreement, fully or partially without notice to User. We may also substitute, by way of unilateral novation, effective upon notice to User, CellScope for any third party that assumes our rights and obligations under this Agreement.
  30. Ecommerce Policy

    CellScope uses a secure, third-party service for credit card processing and accepts the following forms of payment:  Visa, MasterCard, American Express, JCB, Discover, and Diners Club. For consumer users, Flexible Savings Accounts (FSA) and Health Savings Accounts (HSA) are also acceptable forms of payment because the Oto HOME is a medical device. As part of the purchase process, the purchaser or user agrees to allow CellScope to store the payment card for future service interactions made through the CellScope mobile app that have proper account authentication.

  31. Shipment Policy

    1. Shipment time: We strive to get your orders to you as quickly as possible. We offer standard shipping via USPS Priority Mail free with the purchase of a product. We do not offer express shipping. Most orders are shipped 4-5 business days after they have been placed and processed. We estimate for most orders to arrive within 6-8 business days after the order has been processed.
    2. Shipping Procedures: We will send you a shipping confirmation email when your order has shipped. The email will include the USPS tracking number. You will be sent a shipping confirmation email with a tracking number for every shipment.

      We process, ship, and deliver packages Monday through Friday. At this time, we do not offer shipping on Saturday, Sunday, or holidays.

      • Your order may be delayed if your shipping address is different from your billing address (we use this additional time to help ensure the security of your credit information).
      • Most items are available to ship in 4-5 business days unless otherwise noted.

      If you have any special requests in processing your order or questions about your shipment please send us an email at support@cellscope.com and we look forward in helping you with your request.

Updated November, 2015.

LB071 Rev F