For the purposes of this Agreement:
This Agreement is effective until terminated. You or the Company may terminate this Agreement at any time for any reason, with or without cause. You may terminate by disabling your Profile, uninstalling and destroying all copies of the App. The Company may immediately terminate this Agreement at any time at its sole discretion with or without notice to you. Additionally, your rights under this Agreement will terminate automatically if you fail to comply with any term(s) of this Agreement. Upon termination, all legal rights and licenses granted to you hereunder shall terminate immediately and you shall cease all use of the App, uninstall and destroy all copies of the App and any related documentation.
Subject to and conditioned upon the Company’s retained rights and all other terms and conditions set forth in this Agreement, the Company offers the App as soon as practicable after registration. In order to access the App you will need to register your profile through your Bariatric surgeon who shall input your personal details, surgery details, medical data, discharge report, starting weight, target weight and height. An OAC (Online Authorization Code) shall be generated by the doctor and sent to your registered mobile number, using which you will be able to download and access the Mutelcor digital health mobile app. You will also have the option to enter in additional information such as name, email and phone number, if you so choose. You are responsible for maintaining the confidentiality of both your password and your Profile and are fully responsible for all activities that occur under your password and your Profile. You agree that you will not store any sensitive data including but not limited to, social security numbers, credit card data, or any other personal identifiable information except those required to create your Profile. You agree to immediately notify the Company of any unauthorized uses of your Profile or the App or any other breaches of security. The Company cannot and will not be liable for any loss or damage from your failure to comply with this security obligation. You acknowledge and agree that under no circumstances will the Company be liable, in any way, for any acts or omissions by you, including any damages of any kind incurred as a result of such acts or omissions.
With this App you can:
Track your weight loss journey, log activities, log food, log weight, enter and send clinical data and vital signs measurements, upload medical reports, view health data trends, view activity log, view your health dashboard, receive e-prescriptions, receive nutrition plan, connect wearable devices, book appointment with your bariatric surgeon, set medication reminder, initiate chat or send message to the doctor.
Use of the App is subject to the following conditions and restrictions:
The information provided by the App is for informational convenience only.
4.1. The App
4.1.1. The Company hereby grants, and you hereby accept, a nontransferable, revocable, non-sub licensable, and non-exclusive, limited license to download and use the App and all related documentation for your own personal, non-commercial use during the term of this Agreement. The App is licensed, not sold, and any rights not expressly granted herein shall be reserved for the Company. Source code or other information pertaining to the logic design of the App is specifically excluded from the license granted hereunder.
4.1.2. You recognize that the App and all related information, including but not limited to any and all updates, improvements, modifications, enhancements, and information related to installation of the App, are proprietary, and that all rights thereto, including copyright, are owned by the Company or, if sublicensed by the Company, by the respective owners of the App. You further acknowledge that you have been advised that the App, including updates, improvements, modifications, enhancements, and information related to installation, constitutes a trade secret of the Company, is protected by civil and criminal law, and by the law of copyright, is valuable and confidential to the Company, and that its use and disclosure must be carefully and continuously controlled.
4.1.3. The Company or, if sublicensed by the Company, the respective owners of the App shall at all times retain title to the App and all related information, including all updates, improvements, modifications and enhancements, furnished to you hereunder.
4.1.4. The App supplied hereunder is for your personal, non-commercial use. The App is to be used only for the purposes specified in this Agreement and specifically as restricted in the following two subparagraphs of this Section 3.
184.108.40.206. You will not: (i) reproduce, copy, distribute or make the App or related documentation available over a network where it could be used by multiple devices at the same time, or permit anyone else to reproduce, copy, distribute or make the App or related documentation available over a network where it could be used by multiple devices at the same time whether such App or documentation is in written, magnetic or any other form, except pursuant to reasonable backup procedures, or for your use pursuant to this Agreement, nor; (ii) create or attempt to create, or permit others to create or attempt to create, by disassembling, reverse engineering or otherwise, the source programs or any part thereof from the object program or from other information (whether oral, written, tangible or intangible) made available to you under this Agreement.
220.127.116.11. You agree to notify the Company forthwith if you obtain information as to any unauthorized possession, use or disclosure of the App or documentation by any person or entity, and further agree to cooperate with the Company at the Company’s expense, in protecting the Company’s proprietary rights.
4.1.5. The Company may provide you with the ability to or otherwise necessitate the download of certain third-party software (the "Third Party Software"). The license conditions governing the use of the Third Party Software may differ from the Company’s own software licenses. Customers of the Company are bound by the conditions of all licenses pertaining to such Third Party Software and should make themselves familiar with their terms and conditions. THE PROVISION AND OFFERING OF SUCH THIRD PARTY SOFTWARE BY THE COMPANY DOES NOT CONSTITUTE AN ENDORSEMENT OF THE THIRD PARTY SOFTWARE, NOR CAN THE COMPANY MAKE ANY REPRESENTATIONS OR WARRANTIES REGARDING THE USE AND FUNCTIONALITY OF SUCH THIRD PARTY SOFTWARE.
4.1.6. In the event of termination of this Agreement, or upon any act which shall give rise to the Company’s right to terminate, or upon the expiration of the license for the App which is subject to a limited-duration license, any and all licenses granted under this Section 3 shall terminate automatically, and you will remove, erase or destroy the App and documentation and all copies thereof, wherever located, without demand or notice.
4.1.7. The Company may stop providing the App or any updates thereto, including but not limited to the Third-Party Software, at any time without notice or any further liability to you.
4.2 Data Privacy
4.2.1. The information you provide with the App will be used solely for facilitating contact with your existing Provider or for personally tracking your condition and/or progress.
4.2.2. Your information will not be used by the App for any purpose other than facilitating communication between you and a Provider. The App and the Company are committed to patient privacy but cannot control the use of your mobile device. Some of the App features may prepopulate your information as a convenience, but the App nor the Company will be responsible should your device be lost or stolen, nor is Company responsible for any network security related to internet communications or cellular communications. If you have any concerns about your privacy or the security of your information, you should not download, install or use the App.
4.3. Independence from Platforms
4.3.1. The App is independent of any platform on which it is located. The App is not associated, affiliated, sponsored, endorsed or in any way linked to any platform operator, including, without limitation, Apple, Google, Android (each being an "Operator").
4.3.2. Your download, installation, access to or use of the App is also bound by the terms and conditions of the Operator.
4.3.3. You and the Company acknowledge that this Agreement is concluded between you and the Company only, and not with an Operator, and the Company, not those Operators, is solely responsible for the App and the content thereof to the extent specified in this Agreement.
THE COMPANY AGGREGATES INFORMATION THROUGH RESOURCES AND INFORMATION PROVIDED BY YOUR DOCTOR, CLINIC, OR HEALTHCARE PROVIDER. THE APP AND INFORMATION PRESENTED VIA THE APP, INCLUDING TEXT, GRAPHICS, AUDIO, VIDEO, LINKS OR OTHER DIGITAL MEDIA ARE PROVIDED ON AN "AS IS" BASIS WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. YOU EXPRESSLY AGREE THAT THE USE OF THE APP IS AT YOUR SOLE RISK. THE COMPANY DOES NOT WARRANT THAT THE APP WILL BE UNINTERRUPTED OR ERROR FREE, NOR DOES THE COMPANY MAKE ANY WARRANTY AS TO ANY RESULTS THAT MAY BE OBTAINED BY USE OF THE APP. NO WARRANTY IS MADE BY THE COMPANY REGARDING ANY INFORMATION, SERVICES OR PRODUCTS PROVIDED THROUGH OR IN CONNECTION WITH THIS AGREEMENT, AND THE COMPANY HEREBY EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, INCLUDING WITHOUT LIMITATION: (1) ANY WARRANTIES AS TO THE AVAILABILITY, QUALITY, QUANTITY, OR CONTENT OF INFORMATION, SERVICES OR GOODS PROVIDED TO YOU HEREUNDER; AND (2) ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. THE COMPANY DOES NOT GUARANTEE THAT ANY CONTENT, INFORMATION, SOFTWARE OR OTHER MATERIAL ACCESSIBLE THROUGH THE APP WILL BE FREE OF VIRUSES, "WORMS", "TROJAN HORSES", OR OTHER HARMFUL COMPONENTS.
YOUR SOLE AND EXCLUSIVE REMEDY HEREUNDER SHALL BE FOR YOU TO DISCONTINUE YOUR USE OF THE APP AND TERMINATE THIS AGREEMENT. IN NO CASE SHALL THE COMPANY, ITS DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS OR CONTRACTORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING FROM YOUR USE OF OR OTHERWISE RELATING TO THE APP. SOME COUNTRIES, STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES. IN SUCH COUNTRIES, STATES OR JURISDICTIONS, THE COMPANY’S LIABILITY SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW. EXCEPT AS EXPRESSLY SET FORTH IN ANY SEPARATE SOFTWARE LICENSE OR IN THIS AGREEMENT, THE COMPANY DOES NOT ENDORSE, WARRANT OR GUARANTEE ANY THIRD-PARTY PRODUCT OR SERVICE OFFERED OR OTHERWISE ACCESSED USING THE APP, AND THE COMPANY WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND ANY THIRD PARTIES. YOU HEREBY RELEASE THE COMPANY FROM ANY AND ALL OBLIGATIONS, LIABILITY AND CLAIMS IN EXCESS OF THESE LIABILITY LIMITATIONS. THE TOTAL LIABILITY OF THE COMPANY FOR BREACH OF WARRANTY ARISING OUT OF CONTRACT, NEGLIGENCE OR STRICT LIABILITY IN TORT, OR ANY OTHER CLAIM RELATING TO THIS AGREEMENT SHALL BE LIMITED TO ZERO EUROS.
7.1 You acknowledge that only you may use the App and/or your Profile and you agree and warrant that you shall not permit anyone else to use the App and/or your Profile or authorize any third party to access the App and/or your Profile on your behalf. You are responsible for all activity that takes place with respect to the App and/or your Profile, and you agree that in the event the Company believes or has reason to believe, in its sole discretion, that you have breached this Agreement or any of the warranties in this Section 6, the Company may, without prior notice to you and in the Company’s sole and exclusive discretion, suspend the use of the App and/or your Profile and/or terminate this Agreement, without any liability of any kind. As more completely set forth in Sections 5, 6 and 9, you waive any and all claims you may have, now and forever, against the Company relating to any action taken under this Section 6.1, and agree to indemnify and hold harmless the Company from and against any claims brought by third parties as a result of your Data or your use of the App.
7.2. You agree and warrant that your use of the App, shall at all times comply with your warranties under this Section 6 as well as all relevant laws.
7.3. You agree and warrant that you will not use the App to transmit messages which: display, contain or link to any harmful matter or indecent materials or communications which are available to, or accessible by, minors; display or contain any material that consists of obscene content, including but not limited to content involving or by a performer who is portrayed or made to appear as a person under the age of eighteen years of age or which could otherwise result in harm to minors, all as determined in the Company’s sole discretion.
7.4. You agree and warrant that you shall not damage, disable, overburden, or impair the App; interfere with anyone else’s use or enjoyment of the App; or interfere with, defame, or abuse the Company or its officers, employees, or agents.
7.5. You affirmatively represent, agree and warrant that your data and the use or distribution of your data does not infringe the intellectual property rights of others, including, but not limited to, copyrights, trademark and service mark rights, patent rights and rights of publicity, in Germany and rest of the world.
7.6. You agree and warrant that your data shall not constitute or contain or link to material: which is libelous, slanderous, or defamatory; which violates the right of publicity or privacy of any party; or which will violate or infringe upon or will otherwise give rise to any adverse claim with respect to any common law or other right of any person or other entity, including, without limitation, privacy rights and all other personal and proprietary rights.
7.7. You agree and warrant that your data shall not contain or link to any material which is offensive, harmful, violent, threatening, abusive or hateful, in the Company’s sole discretion.
7.8. You agree and warrant that any and all material(s) of every kind which you store or transmit using the App shall at all times be free from any and all damaging software defects, including, but not limited to, software "viruses", "worms", "Trojan Horses," and other source code anomalies, which may cause software or hardware disruption or failure, reduced computer operating speed, or compromise any security system.
7.9. You agree and warrant that you shall not engage in any false, deceptive or fraudulent activities in association with your use of the App.
7.10. You agree and warrant that you shall not resell or redistribute the App or any part thereof, including but not limited to your Profile, notifications, alerts, or use any unauthorized means to modify or reroute the App (or to attempt same).
7.11. You represent and warrant that you are over eighteen years of age and are fully competent to enter into this Agreement. To download, install, access or use the App, you must be 18 years of age or over. If you are under 18 and you wish to use download, install, access or use the App, you must get consent from your parent or guardian before doing so.
7.12. You represent and warrant that you are not a national or resident of any country subject to embargo restrictions, and that you are not listed in the "Entity List" or "Denied Persons List" maintained by the Department of Commerce or the list of "Specially Designated Nationals and Blocked Persons" maintained by the Department of Treasury. You further acknowledge that you are not a national or resident of a country whose name is otherwise omitted from the registration form for the Company Services.
7.13. You grant to the Company and to the Company’s Affiliates a perpetual, irrevocable, fully-paid up, nonexclusive, transferable, and worldwide license to use all of your Data in the performance of the Company services and in any other manner related thereto or otherwise permitted under this agreement.
8.1 "Mutelcor” “Mutelcor Digital Health" and BPDA (Bariatric Patient Data Analytics) are service marks of the Company, all rights reserved. The trademarks, logos, and service marks displayed on this app (collectively, the "Marks") belong to the Company and/or its affiliates or third parties which have licensed those rights to the Company ("Partners"); The Company retains all rights to the marks and nothing in this Agreement grants you or anyone else any right whatsoever to the use of the marks. You may not use, reproduce, or display any marks without their owner’s prior written consent. All other trademarks, product names, and company names and logos appearing on the Company’s web site and app are the property of their respective owners.
8.2 Unless expressly stated otherwise on the Company web site, you should assume that all content, images, and materials appearing on this app (collectively the "Company Content") are the sole property of the Company. Both German and international copyright and other intellectual property laws and treaties protect such Company Content. You may not use, reproduce, display, or sell any Company Content without the Company’s prior written consent. You may not link to any page or frame any portion of the Company’s website or app in such a way as to remove, cover, alter, or obscure the Company’s trademarks or as would otherwise confuse viewers as to the origin of the content.
You agree that you shall fully defend and indemnify the Company, including its officers, directors, owners, managing agents, attorneys, shareholders, related entities, heirs, and assigns, from any and all claims, demands, actions, suits, losses, liabilities, damages, injuries, fines penalties, costs and expenses, attorneys" fees, arbitration fees, mediation fees, expert expenses, and all other consequences of every kind, directly or indirectly resulting from any and all failure(s) of you or your agent(s) to fully comply with all duties, obligations and other provisions set forth in this Agreement, including, but not limited to, your warranties set forth in Section 6 or your violation of a third party’s intellectual property rights. You further agree to defend, indemnify and hold harmless the Company, including its officers, directors, owners, managing agents, attorneys, shareholders, related entities, heirs, and assigns, from and against any and all claims, demands, actions, suits, losses, liabilities, damages, injuries, fines, penalties, costs and expenses, including, without limitation, reasonable attorneys" fees, arising out of any property damage or recoverable economic loss incurred by a third party, to the extent such damage or loss is caused by any act or omission of you or your agents in connection with the performance of this Agreement. You agree that the Company shall have the right to participate in the defense of any such claim through counsel of its own choosing at your expense.
Nothing in this Agreement is intended by the Parties to create or constitute an agency, joint or collaborative venture, or partnership of any kind between the Company and you, nor shall anything in this Agreement be construed as constituting or creating any such agency, joint or collaborative venture, or partnership between the Company and you. The Company shall have no control or ownership interests of any kind in your business. The Company shall have no direct financial or other interest in, nor in any way "own" any online venture pertaining to your use of the App. The Company’s relationship to you shall be restricted to matters pertaining to the provision of the App as set forth in this agreement.
Any and all services which are or may be provided to you by the Company pursuant to this Agreement, including the licensure of rights herein, are not exclusive and nothing in this Agreement shall limit or restrict the Company from providing similar services and granting similar licenses to third parties regardless of whether such third parties are competitors of you. Nothing in this Agreement shall limit or restrict the Company from engaging in any activities similar to yours or in competition with you.
12.1.1. comply with legal process or other legal requirements;
12.1.2. protect and defend the rights or property of the Company or its officers, agents, affiliates, licensees, and customers; or
12.1.3. carry out its obligations under or enforce this Agreement; or
12.1.4. investigate violations of this Agreement or assist with criminal or civil investigations.
12.2. INTERNATIONAL CUSTOMERS UNDERSTAND AND AGREE THAT THE COMPANY MAY DISCLOSE PERSONAL INFORMATION ABOUT THEM AND THEIR PROFILE PURSUANT TO THIS SECTION, AND WAIVE ANY RIGHTS TO PRIVACY OR PROTECTION OF PERSONAL DATA RELATING TO SUCH INFORMATION TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW INCLUDING BUT NOT LIMITED TO THE LAW IN THE JURISDICTION YOU RESIDE.
In case any one or more of the provisions contained in this Agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision hereof, and this Agreement shall be construed as if such invalid, illegal or unenforceable provision(s) had never been included. The invalidity or unenforceability of any provision(s) of this Agreement shall not affect the validity or enforceability of any other provision.
Failure of the Company at any time to enforce any of the specific provisions of this Agreement shall not preclude any other or further enforcement of such provision(s) or the exercise of any other right hereunder. No waiver of a breach of this Agreement shall be valid unless made in writing and signed by duly authorized representative of the Company.
15.1. The Company may provide notice to you via sms to the mobile phone or e-mail sent to the e-mail address associated with your Profile at the time such notice is sent. Such notice is deemed effective at the date and time of transmission, whether you receive it or not, and shall be deemed written notice for the purposes of this Agreement.
15.2. You may provide notice to the Company by personal delivery; by addressing the notice as indicated below and depositing the same by registered or certified mail, postage prepaid, in the mail; or by courier. Such notice, statement or other document so delivered to the Company, except as this Agreement expressly provides otherwise, shall be conclusively deemed to have been given when first personally delivered, on the date of delivery or on the first date of receipt. Notice may not be sent to the Company via e-mail.
16.1. In the event of "force majeure" (as defined below), the Company may terminate this Agreement without liability to you. For purposes of the Agreement, "force majeure" shall mean circumstances or occurrences beyond the Company’s reasonable control, whether or not foreseeable at the time of entering into the Agreement, in consequence of which the Company cannot reasonably be required to perform its obligations hereunder or otherwise perform its obligations under the Agreement. Such circumstances or occurrences include, but are not limited to: acts of God, war, civil war, insurrection, fires, floods, labor disputes, epidemics, governmental regulations and/or similar acts, embargoes, termination or temporary unavailability of any computer hardware or software, server, or network on which the App is located or maintained or through which the App is provided, and non-availability of any permits, licenses and/or authorizations required by governmental authority.
16.2. The Company reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the App (or any part thereof) with or without notice, including the right to cease all business operations in your country or elsewhere. You agree that the Company shall not be liable to you or to any third party for any modification, suspension or discontinuance of the App.
This Agreement and the rights pertaining hereto may not be assigned, resold, or otherwise transferred in whole or in part by you without the Company’s prior written consent. In particular, you may not sell accounts or subaccounts to third parties. Notwithstanding the above, this Agreement shall be binding upon your successors and assigns, if any. The Company may assign or license any or all of its rights and/or obligations hereunder in its free, sole, and unfettered discretion, without consent by or notice to you.
18.1. YOU AGREE TO NEGOTIATE WITH THE COMPANY IN GOOD FAITH TO RESOLVE OR SETTLE ANY CLAIM OR DISPUTE IN ANY WAY RELATING TO OR CONCERNING THIS AGREEMENT.
18.2. ANY AND ALL DISPUTES WHICH ARE NOT FIRST RESOLVED INFORMALLY MUST BE BROUGHT IN EITHER THE COURT OF GERMANY, WHICH COURTS SHALL HAVE EXCLUSIVE JURISDICTION OVER ANY LEGAL ACTION OR PROCEEDING ARISING OUT OF OR IN ANY WAY RELATING TO THIS AGREEMENT AND/OR YOUR ACCOUNT(S) WITH THE COMPANY. You and we irrevocably consent to personal jurisdiction and venue in such courts and you waive any challenge which you have or which may hereafter arise to personal jurisdiction or venue in such courts. You further agree that the Company shall be entitled to collect its attorneys" fees, costs and other expenses in the event that the Company acts to enforce this forum selection clause, regardless of whether the Company prevails in the underlying action.
18.3. In addition to the foregoing, YOU HEREBY AGREE THAT AS A PART OF THE CONSIDERATION FOR THIS AGREEMENT, YOU WAIVE THE RIGHT TO A TRIAL BY JURY FOR ANY DISPUTE ARISING BETWEEN YOU AND THE COMPANY THAT IS IN ANY WAY RELATED TO THE SUBJECT MATTER OF THIS AGREEMENT AND/OR YOUR PROFILE(S) WITH THE COMPANY, and that such waiver shall be enforceable up to and including the day that trial is to start. Should any legal fees, costs, or other expenses be incurred by the Company with regard to enforcement of this jury waiver provision, the Company shall be entitled to recover such legal fees, costs, or other expenses without regard to whether the Company prevails in the underlying case.
18.4. Neither you nor the Company may be a representative of other potential claimants or a class of potential claimants in any dispute concerning or relating to this Agreement, nor may two or more individuals" disputes be consolidated or otherwise determined in one proceeding. YOU AND THE COMPANY ACKNOWLEDGE THAT THIS SECTION WAIVES ANY RIGHT TO PARTICIPATION AS A PLAINTIFF OR AS A CLASS MEMBER IN ANY CLASS ACTION
18.5. This Agreement shall be interpreted according to the laws of Germany, without regard to conflicts of law principles.
This agreement shall be binding upon and inure to the benefit of the Parties" respective heirs, personal representatives, executors, administrators, successors and assigns.
This Agreement constitutes the entire agreement of the Parties with respect to the subject matter hereof, and supersedes and cancels all other prior agreements, discussion, or representations, whether written or oral. No officer, employee or representative of the Company has any authority to make any representation or promise in connection with this Agreement or the subject matter thereof which is not contained expressly in this Agreement, and you hereby acknowledge and agree that you have not executed this Agreement in reliance upon any such representation or promise. This Agreement is solely for the benefit of you and the Company.
21.2. You may not modify this Agreement, in whole or in part, and any such modification or attempt to modify shall not be enforceable unless reduced to writing and signed by a duly authorized representative of the Company. No additional or conflicting term in any other document used by you will have any legal effect.
You agree 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 Service or this Agreement must be filed within one year after such claim or cause of action arose or be forever barred.
The Company is headquartered in Duisburg, Germany. Correspondence sent by mail, courier, or personal service should be to the following address:
Phone: +49 203 7299 60 70 | Fax: +49 203 7299 60 71 | Web: www.mutelcor.com
Geschäftsführer / Director: Alok Gauba | Sitz / Registered office: Duisburg | Amtsgericht / Commercial registry: Duisburg, HRB 30198