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PLEASE READ THE TERMS AND CONDITIONS CAREFULLY. THIS AGREEMENT INCLUDES AND INCORPORATES BY REFERENCE OTHER AGREEMENTS, INCLUDING PAINDRAINER’S US EULA AND US PRIVACY POLICY. BY CLICKING “ACCEPT” OR ACCESSING THE APPLICATION, YOU AGREE TO BE BOUND BY THE TERMS. BY ACCEPTING THESE TERMS OR BY USING THE PAINDRAINER SERVICE, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THE FOLLOWING TERMS AND CONDITIONS, INCLUDING THE PRIVACY POLICY AND THE EULA (TOGETHER, THE “TERMS”).
IF YOU ARE NOT ELIGIBLE, OR DO NOT AGREE TO THE TERMS OF SERVICE, THEN YOU DO NOT HAVE PERMISSION TO INSTALL OR USE THE SERVICE.
These terms and conditions ("User Terms") apply to the cloud-based smartphone application Paindrainer® PD1 ("App" or"Paindrainer App"), Paindrainer's website www.paindrainer.com ("Website") and the digital services offered on the Website, including the cloud based Paindrainer Care Portal for health care professionals (“HCP”) and related analytics, collectively referred to as the "Service".
The Service is intended for adult users in the USA ("User"). It is owned, operated, and provided by Paindrainer AB, a Swedish corporation with a place of business at Medicon Village, SE-223 81 LUND, Sweden, and registered with organization number 559156-5196 ("Paindrainer").
Only Users residing with a valid postal address in the USA have the right to use the Service.
Paindrainer is a digital self-management device, for users with chronic pain, intended to support planning of activities based on the users’ individual input of performed activities and pain experience, aiming to alleviate pain.
Intended users: Paindrainer App is intended for adults with chronic pain. Chronic pain is defined as non-malignant pain that lasts for longer than three months beyond the expected period of healing. Paindrainer Care Portal should only be used by health care professionals. Use of the Services requires ability to use and understand digital applications.
The Service is intended for prescription to adults with known chronic pain, by a healthcare professional. The service has not been tested and it is not intended for pediatric use. Rx ONLY.
Paindrainer is not intended for addressing acute pain or malignant painand is not indicated for individuals dealing with significant psychiatric conditions, severe anxiety, or major depression disorder.
Note that the Service does not constitute healthcare, is not a diagnostic tool, and Paindrainer AB is not a healthcare provider. The Service is not intended to replace advice or decisions of healthcare professionals. Furthermore, the Service is not intended for the treatment of acute injuries or illnesses. Paindrainer encourages the User to seek direct contact with the nearest hospital or other healthcare provider in case of acute illness or injury.
In case of emergency, call 911.
The Service is designed to assist the User in understanding the relationship between the User's activities and the User's pain, with the aim of reducing the impact of pain on the User's daily activities and providing the User with the opportunity to enhance their activity capacity, thereby improving the User's quality of life.
The User understands, agrees, and accepts that Paindrainer has the right to implement updates and new versions of the Service at any time or to make changes to the Service or the way the Service is provided.
To use the Service, the User must create a user account with Paindrainer("User Account") and log in to it. When creating a User Account,Paindrainer will request certain information about the User. The User Account shall be strictly personal, and the User may not transfer the User Account to anyone else or allow anyone else to use the Service through the User Account.
The User is responsible for protecting their login credentials from unauthorized access. If the User has reason to believe that someone else has gained access to the User Account, the User must immediately notify Paindrainer. Paindrainer has the right to block access to the User Account if there is reason to believe that an unauthorized person has accessed the User Account or that the User Account is being misused.
Paindrainer has the right to immediately suspend the User's access to the Service if Paindrainer has reason to believe that the User is violating these User Terms or if the User's use of the User Account contravenes applicable legislation or has harmful or adverse effects on the Service.
By creating a User Account, the User obtains a non-exclusive, non-transferable, and fully revocable right to access and use the Service for its Intended purpose and for the User's personal and non-commercial use in accordance with these User Terms and the EULA. The User is always obligated to follow the instructions for use provided by Paindrainer.
To enable accurate identification, the User commits to providing Paindrainer with the correct and complete information required for the Service, including name, address, phone number, and email address. The User undertakes to ensure accuracy and correctness of identification details, and other data provided to Paindrainer.
The User is responsible for all activity within the scope of the Service. Paindrainer assumes no responsibility for unauthorized access to the Service resulting from the User's negligence.
In the event of misuse of the Service, the User is obliged to compensate Paindrainer for any damage resulting from such misuse. Furthermore, the User shall compensate Paindrainer for any damage arising from the User's use of the Service in violation of applicable legislation or these User Terms.
The User guarantees that the Service will not be used in ways or for purposes that violate applicable legislation or these User Terms.
By using the Service the User agrees not to:
· use or access the Service (a) from a jurisdiction where such use or access is not authorized, (b) for any illegal purpose, or (c) in violation of any local, state, national, or international law;
· conduct activities that may be harmful to others or that could damage Paindrainer’s reputation;
· violate, or encourage others to violate, any right of a third party, including by infringing or misappropriating any third-party intellectual property right, or disclosing personal information about another person;
· post, upload, or distribute marketing or advertising links or content, or any User Content or other content that is unlawful, defamatory, libelous, inaccurate, or that a reasonable person could deem to be objectionable, profane, indecent, pornographic, harassing, threatening, embarrassing, hateful, or otherwise inappropriate;
· use scrapers, robots, or otherdata gathering devices on or through the Service, or frame or otherwise provide the Service to third parties without explicit permission by Paindrainer;
· interfere with security-related features of the Service, including by: (a) disabling or circumventing features that prevent or limit use or copying of any content; or (b) reverse engineering, decompiling, or otherwise attempting to discover the source code of any portion of the Service, including the app(s), except to the extent that such activity is expressly permitted by applicable law not withstanding this restriction;
· interfere with the operation of the Service or any user’s enjoyment of the Service, including by: (a) uploading or otherwise disseminating any virus, adware, spyware, worm, or other maliciouscode; (b) making any unsolicited offer or advertisement to another user of the Service; (c) attempting to collect personal information, including health information, about another user or third party without their consent; or (d) interfering with or disrupting any network, equipment, or server connected to or used to provide the Service, or violating any regulation, policy, or procedure of any such network, equipment, or server;
· perform any fraudulent activity including impersonating any person or entity, claiming a false affiliation, accessing any other Paindrainer service or account without permission, or falsifying account registration information;
· modify, translate, or create derivative works, adaptations, or compilations of, or based on, the Service or part thereof, or use, copy or reproduce the Service or any part thereof other than as expressly permitted in these Terms;
· assign, sublicense, lease, sell, grant a security interest in, or otherwise transfer the access granted under these Terms or any right or ability to view, access, or use any Material.
During use of the Service Paindrainer will collect personal information and personal health information (PHI). For information on how personal data is handled and how cookies are collected in connection with the use of the Service, please refer to Paindrainer's US Privacy Policy.
Paindrainer owns all rights, including intellectual property rights, to the Service, including but not limited to software and design, as well as all material and content generated in the Service or made available by Paindrainer through third-party licenses. The User does not acquire any intellectual property rights to the Service or to any material created in the Service. This means, among other things, that Paindrainer remains the owner of all its intellectual property rights and trademarks, such as copyrights, design rights, trademarks, and other registered and unregistered rights. Nothing in the User Terms shall be construed as a transfer, in whole or in part, of any of these rights to the User.
Material and other content made available by the User in the Service or generated in the Service belongs to Paindrainer. If intellectual property rights arise as a result of the User's use of the Service, these intellectual property rights belong exclusively to Paindrainer.
Paindrainer and the User each have the right to terminate the agreement for the Service at any time.
The User can terminate their account by following the instructions in Profile/Account Settings in the App, whereby the User Account is closed ("Cancellation"). Upon Cancellation, the User's Personal Data (defined in the Privacy Policy) will be stored for twenty-four (24) months to facilitate a quick resumption of the Service.
These User Terms apply as long as the User has an active User Account. The User Account remains active until the day when (i) the User cancels their registration, (ii) Paindrainer disables the User from the Service, or (iii) the Service is otherwise shut down by Paindrainer.
Paindrainer does not provide any warranties, whether explicit or implied, regarding the content, functionality, or availability of the Service. Continuous, uninterrupted, or secure access to the Service is not guaranteed, and Paindrainer is not liable for any technical issues. There is no assurance that technical errors will be promptly rectified or that the Service and its essential servers are free of harmful components. Technical disruptions may impede the User's ability to utilize the Service, and Paindrainer bears no responsibility for the availability of the Service, technical disruptions, or data loss unless mandated by law. Except as required by mandatory law, Paindrainer is not obligated to compensate the User for errors, deficiencies, data loss, or other contractual breaches on its part.
To the maximum extent permitted by mandatory legislation, Paindrainer disclaims liability to the User for any direct, indirect, or other damages, including but not limited to lost profit, loss of income, decreased revenue, interruption, or goodwill losses arising from or related to the User's use of the Service, the material within the Service, or other users' use of the Service. This limitation of liability also extends to the User's potential liability towards third parties.
Paindrainer is not accountable for errors resulting from the User's actions or any situation for which the User is responsible.
NOTE THAT PAINDRAINER IS NOT RESPONSIBLE NOR CAN BE HELD LIABLE FOR THE ADVICE GIVEN BY ANY EXTERNAL HEALTHCARE PROVIDER IN THE CONTEXT OF THE SERVICE. THE PRESCRIBING HEALTHCARE PROFESSIONALS ARE SUBJECT TO APPLICABLE UNITED STATES HEALTHCARE LAWS AND REGULATIONS.
In any case, Paindrainer's total liability to the User, unless intent or gross negligence is proven, shall be limited to a maximum of $2,500. The User's claim for compensation must be asserted without undue delay and within two (2) months from the discovery or should have discovered the damage.
The User is responsible towards Paindrainer and shall indemnify Paindrainer against all claims, costs (including reasonable legal costs),damages, expenses, compensation, and losses incurred by Paindrainer or a thirdparty due to the User's use of the Service in violation of applicable law or otherwise breaching these User Terms, including but not limited to the misuse of the Service.
Paindrainer reserves the right to modify the User Terms and Privacy Policy at any time. In the event of significant changes, Paindrainer will notify the User through appropriate channels, such as posting on the Website, sending emails, or using notifications in the Service. The User is obligated by the terms and conditions applicable at the time of account creation unless Paindrainer has communicated changes or additions.
Any alterations become effective upon publication on the Website, in the Service, or when the User becomes aware of the change. By continuing to use the Service, the User is considered to have accepted the updated terms. However, if the User chooses not to accept the amended terms, they must inform Paindrainer, leading to the immediate expiration of access to the Service.
Furthermore, Paindrainer reserves the right to decide at any time to modify, suspend, or temporarily or permanently discontinue Paindrainer's provision of the Service without prior notice to the User, or as required by changes in applicable legislation or regulatory decisions. The User accepts that Paindrainer is not liable to the User or any third party for such modification, interruption, or termination.
The User may not assign or transfer any rights, obligations, or licenses arising from these User Terms.
To fulfill its obligations under these User Terms, Paindrainer has the right to use subcontractors. Paindrainer may also assign and transfer these User Terms to another party without the User's consent and without prior notice to the User.
If Paindrainer's fulfillment of its obligations under the User Terms is substantially hindered or prevented due to circumstances that Paindrainer could not control and the consequences of which Paindrainer could not reasonably have avoided or overcome, such as a general labor dispute, fire, war or the threatof war, terrorist attack, natural disaster, pandemic, restrictions in the energy supply, changed regulatory requirements, government intervention, and errors or delays in services from suppliers/subcontractors due to such circumstances, this shall constitute a ground for release from liability, resulting in exemption from damages and other consequences.
The performance of this Agreement shall be governed by and construed in accordance with the domestic laws of New York. Venue for any disputes shall be the state and federal courts of New York County, New York.
If the User has any questions, remarks or complaints, notifications should be sent to [email protected]
Users also have the option to contact Paindrainer by mail or telephone:
Paindrainer AB
Medicon Village
SE-223 81 Lund
Sweden
Tel: +46 766-324222
The User accepts that all communication from Paindrainer may take place electronically. Paindrainer may contact the User via email, messages and push notifications via the Application, SMS, or phone calls. Messages sent to the User shall be deemed to have been received by the User when Paindrainer sends them.
January 17, 2024
