Terms of Use

Last Updated on February 12, 2018

Quell® and its related services are offered to you by NeuroMetrix, Inc. (“NeuroMetrix”) 1000 Winter Street, Waltham, MA, 02451.

The following Terms of Use govern your access to and use of Quell, including the websites www.neurometrix.com and www.quellrelief.com, (the “Websites”); Quell wearable technology; the software embedded in our Quell devices; the Quell mobile applications (the “App”); and the Quell Health Cloud (collectively called” the “Quell Services”). Also, specific terms and conditions may apply to specific content, data, materials, or information you may upload, or transactions concluded through the the Quell Services. Such specific terms may be in addition to these Terms of Use and may, only to the extent expressly specified, supersede these Terms of Use.

Please read these Terms of use carefully.

1. Acceptance of Terms of Use
By using any of the Quell Services you agree to be legally bound by these Terms of Use and all terms and conditions contained herein. If you do NOT agree to all of these terms, you should NOT access any or use any of the Quell Services.

2. End User License Agreement
The use of the App and any embedded software is governed by the following end user license agreement. By downloading and using the App, you acknowledge that this end user license agreement is between you and NeuroMetrix, not Apple and Google, and that NeuroMetrix, not Apple and Google, is solely responsible for the App.

Scope of License: Subject to these Terms of Use, NeuroMetrix grants you a non-transferrable, non-exclusive license to use the Quell Services for your personal use. Also subject to these Terms of Use, Neurometrix grants you a non-transferrable, non-exclusive license to use a copy of the App downloaded solely in connection with the Quell Services to your iPhone, iPad, Android or other device. Certain Restrictions: The rights granted to you by these Terms of Use are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit any Quell Services or the App; (b) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the Quell Services or the App, except to the extent the foregoing restrictions are expressly prohibited by applicable law; (c) you shall not access the Quell Services or the App in order to build a similar or competitive service or application; (d) except as expressly stated herein, no part of the Quell Services or the App may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means, or (e) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in any Quell services or the App. Any future release, update, or other addition to functionality of the Quell Services or the App shall be subject to these Terms of Use, unless otherwise provided in terms associated with such addition.

Modification: NeuroMetrix reserves the right, at any time, to modify, suspend, or discontinue the Quell Services or the App or any part thereof with or without notice. In the future we may offer additional services, features, functionalities and in-App purchases. You agree that NeuroMetrix will not be liable to you or to any third party for any modification, suspension, or discontinuance of the Quell Services or the App or any part thereof.

Ownership: The App and embedded software provided to you as part of the Quell services is licensed to you and not sold. NeuroMetrix (and its licensors, where applicable) own all right, title and interest, including all related intellectual property rights, in and to the Quell Services and the App. These Terms of Use are not a sale and they do not convey to you any rights of ownership in or related to the App or embedded software. The Quell and NeuroMetrix names, logos, and the product names associated with the Quell Services belong to NeuroMetrix (or its licensors, where applicable), and no right or license is granted to use them by implication, estoppel or otherwise. NeuroMetrix (and its licensors, where applicable) reserve all rights not granted in these Terms of Use. The embedded software is made available for use by the end user only. Any further copying, reproduction or redistribution of the software is expressly prohibited.

3. Additional Mobile Application Terms:
The following additional terms and conditions apply to you if you are using the App from the Apple App Store or Google Play Store (collectively know as the Application Store). To the extent the other terms and conditions of these Terms of Use are less restrictive than, or otherwise conflict with, the terms and conditions of this Section 3, the more restrictive or conflicting terms and conditions in this Section 3 apply, but solely with respect to Apps from the Application Store, as applicable.

Mobile Application Maintenance and Support: NeuroMetrix is solely responsible for providing any maintenance and support services with respect to the App, as specified in these Terms of Use (if any), or as required under applicable law. NeuroMetrix and you acknowledge that Apple or Google have no obligation whatsoever to furnish any maintenance and support services with respect to the App. Neurometrix is not responsible for device or hardware failures and does not guarantee that the App will work on all devices, especially older devices with unsupported operating systems.

Mobile Application Warranty: NeuroMetrix is solely responsible for any product warranties, whether express or implied by law, to the extent not effectively disclaimed. In the event of any failure of the App to conform to any applicable warranty, you may notify the Application Store, and the Application Store may refund the purchase price of the App to you; and to the maximum extent permitted by applicable law, Apple or Google will have no other warranty obligation whatsoever with respect to the App, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be NeuroMetrix ‘s sole responsibility.

Mobile Application Product Claims: NeuroMetrix and you acknowledge that NeuroMetrix, not Apple or Google, is responsible for addressing any claims of you or any third party relating to the App or your possession and/or use of the App, including, but not limited to: (i) product liability claims; (ii) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.

Intellectual Property Rights: NeuroMetrix and you acknowledge that, in the event of any third party claim that the App or your possession and use of the App infringes that third party’s intellectual property rights, NeuroMetrix, not Apple Or Google, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
Developer Name and Address: NeuroMetrix’s contact information for any end-user questions, complaints or claims with respect to the App is 1000 Winter Street, Waltham, MA, 02451.

Third Party Beneficiary: You agree that Apple, Google and their subsidiariesare a third party beneficiary of these Terms of Use and will have the right to enforce these Terms of Use.

4. Modification of Terms
These Terms of Use may be amended by NeuroMetrix at any time. The amended Terms of Use will be effective upon posting. By continuing to use the Quell Services and access the Websites after that posting, you will be agreeing to abide by the modified terms. We advise you to check back often to see if there have been any modifications of terms. . The date of the most recent updates to these Terms of Use is at the beginning of the Terms of Use. NeuroMetrix reserves the right to discontinue or make changes or updates with respect to the Websites or their content at any time without notice. NeuroMetrix reserves the right to restrict, refuse or terminate access of any person to the Websites, the Quell Services, or any part thereof effective immediately without notice at any time and for any reason whatsoever at its own discretion.

5. Privacy Policy
Any personal information collected through the Quell Services is subject NeuroMetrix’s Privacy Policy. . By browsing, accessing, or otherwise using the Websites and/or the Quell Services, you accept, without qualification, the Privacy Policy.

6. Disclaimers
ALL INFORMATION (INCLUDING, WITHOUT LIMITATION, TEXT, IMAGES, GRAPHICS, LINKS, AND OTHER MATERIALS) ON THE THE QUELL SERVICES IS PROVIDED “AS IS” AND “AS AVAILABLE”. NEUROMETRIX EXPRESSLY DISCLAIMS TO THE EXTENT PERMITTED BY LAW ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, OR NON-INFRINGEMENT, OR AS TO THE OPERATION OF THE QUELL SERVICES, OR THE CONTENT OR USER CONTENT OF THE QUELL SERVICES. NeuroMetrix does not make any representations that (i) the Quell Services will meet your requirements, (ii) the Quell Services will be uninterrupted, timely, secure, or error free (iii) the results that may be obtained from the use of the Quell Services (including any information and materials on the Websites) will be correct, complete, accurate, reliable, or otherwise meet your requirements. NeuroMetrix has no liability for interruptions or omissions in Internet, network or hosting services. NeuroMetrix does not warrant that the Quell Services or the services which make the Quell Services available or electronic communications sent by NeuroMetrix are free from viruses or any other harmful elements. Any material downloaded through the use of the Quell Services is done at your own discretion and risk. You alone are responsible for any damage to your computer or loss of data that occurs from the download of any such material.

We are not an investment advisor. No part of the Websites or the Quell Services is intended to constitute investment advice.

7. Who Can Use Quell?
You may use the Quell Services if you are 18 years of age or older or under parental or legal guardian supervision and not barred from receiving services under applicable law.

8. Optional Equipment
While not required for pain relief, some functionality of the Quell Services is dependent upon your use of a supported mobile device. The maintenance and security of this equipment may influence the performance of the Quell Services and it is your responsibility to ensure the equipment’s functionality.

9. Acceptable Use Policy
By submitting any content to the Quell Services, you agree that the material will be constructive relevant and consistent with the intended use of the Quell Services. The content will not contain any item that may be unlawful or unfit for publication, including but not limited to items that (1) may be libelous, defamatory or injurious to another person or entity, (2) may cause harm to any person or property or otherwise defame or harass any person or organization, (3) may violate any legal rights of any person (including right to privacy or publicity), (4) are pornographic, obscene, profane, vulgar, indecent, or threatening, (5) are culturally, ethnically, or otherwise objectionable, or (6) suggest or encourage any illegal activity.

You will use reasonable efforts to scan and remove any viruses or other contaminating or destructive features before submitting any content to the Websites. You also will not post chain letters, pyramid schemes, surveys or solicitations through the Websites. You will not forge headers or manipulate identifies or other data in order to disguise the origin of any content transmitted through the Websites or to manipulate your presence on the Websites. You will not interfere with or disrupt our Websites, servers, networks or the Quell. You will not take any action that imposes an unreasonable or disproportionately large load on our infrastructure.

You agree, represent and warrant that any content submitted to the Websites does not infringe any proprietary right of another, such as but not limited to copyrights, trademarks or patents, or any confidentiality obligation.

You acknowledge and agree that any of your ideas, submissions or discussions or any other self-produced content provided by you within the Websites that is not the subject of intellectual property right protection may be used by any other user without compensation or attribution. NeuroMetrix is not obligated to monitor or enforce any intellectual property right of yours.

You hereby grant to NeuroMetrix a worldwide, irrevocable, royalty free, non-exclusive, and transferable license to use, reproduce, prepare derivative works of, distribute, publicly perform, publicly display, transmit and publish self-produced content, on the Websites or in other NeuroMetrix marketing or public relations materials.

You alone are responsible for your own content and the consequences of posting submitting and/or publishing it. NeuroMetrix may, but is not obligated to, review and monitor, before and/or after submitting any content you produce. However, you acknowledge that it is impossible for us to monitor or review all user content. Without limitation, NeuroMetrix will not and cannot be held responsible for the accuracy, completeness, quality or validity of self-produced content posted by third parties on the website.

NeuroMetrix does not endorse any self-produced content or any opinion, recommendation, or advice expressed therein, and NeuroMetrix expressly disclaims any and all liability in connection with user content.

NeuroMetrix has the sole right and ability to edit and/or remove messages or any other end user content which are objectionable, improper or in breach of these Terms of Use for any reason at any time without notice or consent. Any user who believes that content is objectionable or improper is encouraged to contact NeuroMetrix immediately. When you contact NeuroMetrix, we will make reasonable efforts to take the action as we deem necessary within a reasonable period of time, if we decide, in our sole discretion, that action is necessary. Since editing or removing content is a manual process, you are advised that, if we agree to remove or edit content, we may not be able to remove or edit the content immediately.

10. Use of the Quell Services At Your Own Risk
Our goal is to share helpful and accurate information through the Quell Services, but we make no endorsement, representation or warranty of any kind about any of the Quell content, information service or recommendations. We are not responsible for the accuracy, reliability, effectiveness, or correct use of the information you receive through the Quell Services.

11. Consult Your Doctor if you have Concerns Regarding the Quell Services
Quell is a FDA cleared medical device for treatment of chronic pain. THE INFORMATION PROVIDED BY THE QUELL SERVICES IS NOT INTENDED TO DIAGNOSE, CURE OR PREVENT ANY DISEASE. IF YOU EXPERIENCE A MEDICAL EMERGENCY, STOP USING THE QUELL SERVICES AND CONSULT A MEDICAL PROFESSIONAL. IF YOU EXPERIENCE A MEDICAL EMERGENCY, CALL 911.

12. Limitation of Liability
IN NO EVENT SHALL WE BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, PUNITIVE, SPECIAL, INCIDENTAL OR OTHER DAMAGES RESULTING FROM, ARISING OUT OF OR IN CONNECTION WITH THE ACCESS, USE OF, OR INABILITY TO ACCESS OR USE QUELL SERVICES, THE WEBSITES CONTENT OR ANY SELF-PRODUCED CONTENT, EVEN IF NEUROMETRIX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES EXCEPT TO THE EXTENT SUCH DAMAGES ARISE AS A RESULT OF FRAUD OR FRAUDULENT MISREPRESENTATION ON THE PART OF NEUROMETRIX.

If you live in a country or state that does not allow any of the above exclusions or limitations of liability or any of the disclaimers of warranties in Section 6 above, such exclusions or limitations will not apply to you but only to the extent such exclusions or limitations are not allowed. In such case, such exclusions or limitations shall be limited to the greatest extent permitted by applicable law.

13. Third Party Content/Software
NeuroMetrix is not responsible for the content of any site, app, services and resources (collectively called “third party resources”) owned by a third party that may be linked to the Quell Services. Any link on the Websites or the App to another site is not an endorsement of such other site. No judgment or warranty is made with respect to the accuracy, timeliness, or suitability of the content of any site to which we may link, and we take no responsibility for it.

Any software made available for download from or through the Quell Services is licensed subject to the terms of any applicable license agreement. Except as specified in the license agreement, the software is made available for use by end users only. Any further copying, reproduction or redistribution of the software is expressly prohibited. WARRANTIES, IF ANY, WITH RESPECT TO SUCH SOFTWARE SHALL ONLY APPLY AS EXPRESSLY SPECIFIED IN THE APPLICABLE LICENSE AGREEMENT. NEUROMETRIX HEREBY EXPRESSLY DISCLAIMS ALL FURTHER REPRESENTATIONS AND WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE OR NON-INFRINGEMENT WITH RESPECT TO THE SOFTWARE.

14. Copyright and Trademarks
Copyright and all other proprietary rights in content provided by NeuroMetrix, the software to operate and manage the Quell Services, the compilation of data on the Quell Services, and the order, sequence and arrangement of the Websites, all belong to NeuroMetrix.

NEUROMETRIX, Quell and all other registered trademarks of NeuroMetrix are important assets of the company. Proper use of these trademarks is important and you should follow the instructions of NeuroMetrix when referencing our company’s products and services.

The use and registration of the NeuroMetrix and Quell name is exclusively reserved to our company. You may not register nor use a company name, statutory name, trade name, domain name or other name, indication or description, of which the NeuroMetrix or Quell name or any name similar to it or any name which consists of a part of the NeuroMetrix name forms part nor shall it include any other registered trademark owned by NeuroMetrix.

15. Proprietary Rights in the Websites
The Websites are public by nature and any information submitted on them shall be deemed non-confidential. You acknowledge that submission of any inventions embodied in any self-submitted content provided by you shall constitute a public disclosure or “publication” of such invention under applicable patent laws.

You acknowledge that any self-produced content disclosed and/or discussed on the website may be made the subject of patents, copyrights, trademarks and other intellectual property rights of NeuroMetrix. If you consider using any ideas, proposals, suggestions, improvements, solutions or other self-produced content submitted to the website, you are responsible to undertake appropriate intellectual property clearance before engaging in any such use.

16. Creating an Account
Some aspects of the Quell Services require that you set up an account including your email address and a strong password. You are responsible for all activity that occurs in association with your account. NeuroMetrix is not liable for any loss or damages caused by your failure to maintain the confidentiality of your account credentials.

17. Additional Policies Apply to Product Orders
NeuroMetrix’s terms of sale, return policy and warranty apply to purchases made on the Quell Relief Store. All orders placed are subject to NeuroMetrix’s acceptance. We may accept, decline or place limits on an order for any reason.

18. Contests and Giveaways
Additional terms and conditions may apply to contests, giveaways and other promotions sponsored by NeuroMetrix and its partners. It is your responsibility to carefully review those terms and conditions.

19. You Agree to Receive Alerts and Notifications
As part of your use of the Quell Services, you may receive notifications, text messages, alerts, or emails. You agree to the receipt of these communications. You can control receipt of non-service related communications from your account settings. You are responsible for any messaging or data fees you may be charged by your wireless carrier.

20. Termination
If you violate these Terms, we reserve the right to deactivate your account, at our sole discretion, at any time and without notice or liability to you. Upon any such termination, we may delete your content and other information related to your account. You may cancel your account at any time by contacting Customer Support at 1-800-204-6577 or CustomerCare@QuellRelief.com

21. U.S. Copyright Infringement Claims
If you know or suspect that any of the materials on the Websites (including but not limited to materials posted by other users) have been used or copied in a way that constitutes copyright infringement, please send notice to NeuroMetrix, including the following, to the extent available:
•A physical or electronic signature of the copyright owner or person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
•Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
•Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material;
•Information reasonably sufficient to permit us to contact you, such as address, telephone number, and, if available, an electronic mail address at which you may be contacted;
•A statement by you that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law;
•A statement that the information in the notification is accurate to the best of your knowledge and submitted in good faith.

22. Indemnification and Release
You agree to indemnify and hold harmless NeuroMetrix and each of their respective officers, directors, employees, shareholders, legal representatives, agents, successors and assigns, from and against any damages, liabilities, costs and expenses (including reasonable attorneys’ and professionals’ fees and litigation costs) that arise out of or in any way connected with (i) your access to or use of the Quell Services, (ii) your content, or (iii) your breach of any warranties made by you hereunder or your violation of any other provision of these Terms. In the event of any complaint or legal action arising from any message, or any other self-produced content posted by you, NeuroMetrix reserves the right to reveal your identity and any other information NeuroMetrix may have about you.

If you have a dispute with one or more users, you release NeuroMetrix and their officers, directors, employees, shareholders, legal representatives, agents, successors and assigns from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes.

23. Changes to the Quell Services
NeuroMetrix may change or discontinue, temporarily or permanently, any feature or component of the Quell Services at any time without notice. NeuroMetrix is not liable to you or to any third party for any modification, suspension or discontinuance of any feature or component of the Quell Services. We will have no responsibility to store or delete any content and/or self-produced content submitted to the Websites. We reserve the right to determine the timing and content of software updates, which may be automatically downloaded and installed by Quell products without prior notice to you.

24. NeuroMetrix Products
The Quell Services may contain references to specific NeuroMetrix products and services that may not be (readily) available in a particular country. Any such reference does not imply or warrant that any such products or services shall be available at any time in any particular country.

25. Dispute Resolution
These Terms of Use shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, U.S.A. Any dispute relating in any way to your use of Quell Services or your purchase or license through NeuroMetrix shall be submitted to confidential arbitration in Massachusetts except that to the extent you have in any manner violated or threatened to violate our intellectual property rights, we may seek injunctive or other appropriate relief in any state or federal court having jurisdiction. You hereby consent to, and waive all defenses of lack of personal jurisdiction and forum non conveniens with respect to venue and jurisdiction in the state and federal courts of Massachusetts. Arbitration under these Terms of Use shall be conducted pursuant to the Commercial Arbitration Rules then prevailing at the American Arbitration Association. The arbitrator’s award shall be final and binding and may be entered as a judgment in any court of competent jurisdiction. To the fullest extent permitted by applicable law, no arbitration under these Terms of Use shall be joined to an arbitration involving any other party subject to these Terms of Use, whether through class action proceedings or otherwise. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of, related to or connected with the use of the Quell Services or these Terms of Use must be filed within one (1) year after such claim or cause of action arose or be forever banned. No right or remedy of ours shall be exclusive of any other, whether at law or in equity, including without limitation, damages, injunctive relief, attorneys’ fees and expenses. No instance of waiver by us of our rights or remedies under these Terms of Use shall imply any obligation to grant any similar, future or other waiver.

26. Severability
If any provision of these Terms of Use is held to be invalid or unenforceable, then the invalid or unenforceable provision will be replaced by a valid, enforceable provision that most closely matches the intent of the original provision and the remaining provisions shall be enforced.

27. No Waiver
No failure on the part of NeuroMetrix to enforce any part of these Terms of Use shall constitute a waiver of any of NeuroMetrix’ rights under these Terms of Use, whether for past or future actions on the part of any person. Neither the receipt of any funds by NeuroMetrix nor the reliance of any person on NeuroMetrix’ actions shall be deemed to constitute a waiver of any part of these Terms of Use. Only a specific, written waiver signed by an authorized representative of NeuroMetrix shall have any legal effect whatsoever.

28. Headings
The headings of the sections of the Terms of Use are inserted for convenience only and shall not constitute a part hereof or affect in any way the meaning or interpretation of the Terms of Use.

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