Terms of Service

Please read these terms carefully before using any Cairns Health products.

Your use of Cairns Health products confirms your unconditional acceptance of the following terms, the Cairns Health privacy policy located here, the Cairns Health data collection policy located here, and the Cairns Health mobile privacy policy located here (collectively, the "Privacy Policies"). If you do not accept these terms, do not use the website or any services, software, apps, devices, or other Cairns Health products provided by Cairns Health.

Cairns Health provides the services for you to track, manage, and share your health information. The Cairns Health platform and services are provided solely as a passive monitoring, support, and communication tool. You should consult your healthcare provider prior to using the Cairns Health platform or services if you have any existing physical or mental conditions. The Cairns Health platform may not be a good fit for you, or may even be unsafe, if you have certain sleep disorders, certain mental health disorders, suffer from seizures, are employed based on a rotating shift schedule, or suffer from severe memory problems. Please contact your healthcare provider before accepting these terms and commencing your use of the Cairns Health platform and services.

Please read these terms carefully, as they contain an agreement to arbitrate, which requires that you and Cairns Health arbitrate certain claims by binding, individual arbitration instead of going to court, and limits class action claims, unless you opt out of the agreement to arbitrate as described in Section 17 of these terms.

You must click "I agree" or otherwise subscribe to the services only if you agree to be legally bound by all terms and conditions of this agreement. If you are viewing this on your mobile device, you can also view this agreement via a web browser at: https://www.cairns.ai/help/terms-of-service. Your acceptance of this agreement creates a legally binding contract between you and Cairns Health, and governs your use of the website and Cairns Health’s devices and services. If you do not agree with any aspect of this agreement, subject to the foregoing, then do not press "I agree," in which case you may not subscribe to the Cairns Health services.

Definitions

“Affiliate” means any corporation or entity of either Party, which is owned or controlled by or under common control with a Party.  For purposes of this definition, “ control ” shall mean the right to exercise directly or indirectly, more than fifty percent (50%) of the voting rights attributable to the shares of the corporation or entity or the power to direct or cause the direction of the management or policies of the corporation or entity.

“Content” means any text content, notification, email, video, image or audio, or any other content or any combination thereof, in each case, that we make publicly available or which we permit you to access, whether created by us, you or a third party.

“Device” means the Cairns Health device leased by you in connection with your subscription to the Services.

“Documentation” means any proprietary user documentation made available to you by Cairns Health for use with the Cairns Health Platform, including any documentation available online or otherwise, as amended or updated by Cairns Health from time to time in its discretion.

“Embedded Software”  means software provided by Cairns Health on the Device or for downloading to the Device.

“Cairns Health platform” means the Cairns Health Device, app, systems and technology underlying the performance of the Services.

“Intellectual Property Rights”  shall mean all intellectual property rights or similar proprietary rights, including (a) patent rights and utility models, (b) copyrights and database rights, (c) trademarks, trade names, domain names and trade dress and the goodwill associated therewith, (d) trade secrets, (e) mask works, and (f) industrial design rights; in each case, including any registrations of, applications to register, and renewals and extensions of, any of the foregoing in any jurisdiction in the world.

“Party” means Cairns Health or you and “Parties” means Cairns Health and you.

“Service  Fees” means the fees for the Services as set forth in the applicable Subscription Order.

“Services” means Cairns Health’s provision to you of Cairns Health’s program as a subscriber to the Cairns Health platform as contemplated under a Subscription Order.

“Subscription Effective Date” means the date on which Cairns Health ships the Device(s) set forth in the Subscription Order for a subscription to the Services or, if the ship date is not available, the date that is thirty (30) days after that date on which a Subscription Order is placed for a subscription to the Services.

“Subscription Order” means an order to subscribe to the Services hereunder as agreed by both you and Cairns Health from time to time, which shall specify (i) the Device to be leased by you, (ii) the Subscription Term for the Services to be provided hereunder, and (iii) the Service Fees associated with such subscription.

“Subscription Term” means the subscription period set forth in the Subscription Order for the Services and any renewals thereof or, if no such period is set forth in the Subscription Order, the one (1) month period commencing on the date of your registration for the Services and any renewals thereof.

“User Information”  means information submitted by you through the Cairns Health platform.

No Medical Advice

The Services and any results or content displayed via the Services, whether provided by Cairns Health or third parties, do not provide medical advice and are not intended to be a substitute for (i) advice from your doctor or other medical professionals, or any diagnosis or treatment or (ii) a visit, call or consultation with your doctor or other medical professionals. The Services do not and are not intended to treat or prevent any medical condition and the Services are not a medical device. The Services are not intended to diagnose, treat, cure, or prevent any disease or medical condition. The Services are for informational purposes only and cannot replace the services of physicians or medical professionals. All content available through the Services is for general informational purposes only. Use of the Services, or communication with Cairns Health via the internet, e-mail or other means, does not create any doctor-patient relationship.

The Cairns Health Platform and the Services are not a substitute for medical evaluations, diagnosis, advice, care, treatment, or therapy.  If you have any health related questions, please call or see your doctor or other healthcare provider.  You should never disregard medical advice or delay in seeking medical advice because of any content presented on the Services, and you should not use the Services or any content on the Services for diagnosing or treating a health problem.

All information provided by Cairns Health in connection with any communications with you, is intended to be for general information purposes only, and is in no way intended to create a provider-patient relationship as defined by state or federal law and should not be construed as medical advice.

Eligibility

You affirm that you are of legal age and that you are otherwise fully able and competent to enter into these Terms and to abide by and comply with these Terms. You represent that you are over 18 years of age.

Use of Services

Beta Service.  You acknowledge that the Services are in beta, pre-release form, and as such will contain bugs, may not operate consistently or perform all intended functions, and may cause errors, data loss or other problems.  You hereby assume all risks associated with the use of the Services and reliance on any data, information or recommendations provided or received through the Services.  The Services are made available in beta, pre-release form for such time period as Cairns Health may elect in its sole discretion, and such availability may end at any time and without notice.

Modification of Services. We may change and update our Services at any time. We may add or remove features including without limitation making free Services paid Services and vice versa. We will endeavor to give you appropriate advance notice about any major changes, although you understand that we may stop, suspend or change our Services at any time without prior notice.

Suspension of Services. We may alter, suspend or discontinue our Services in whole or in part, at any time and for any reason, without notice. Our Services may also periodically become unavailable due to maintenance or malfunction of computer equipment or for other reasons. In order to use our Services, you must have a computer with Internet access that can access our Website or a compatible mobile device enabled with any mobile application we may provide.  Except for the Device leased by you under your Subscription, Cairns Health shall not be responsible for supplying any hardware, software or other equipment to you under these Terms.

Configuration. The Cairns Health Device and the App work together, and the Device may be configured via the App. When you configure your Device, you will be able to assign a name to the Device.

Accurate Information. You agree that the information you provide to Cairns Health at all times will be true, accurate, current, and complete. To use the App, and register your Device, you will be asked to provide your name, email address, location information such as your city or country, phone number, self-reported information about your sleep habits, such as what time you go to bed, what time you get out of bed, and whether you sleep with a partner, the collection of which is subject to the terms of the Privacy Policies. To use the Services, you may be asked to enter a user ID or password that has been provided to you. You are solely responsible for maintaining the confidentiality of your Device portal, user ID, and password, and you agree to accept responsibility for all activities that occur on your device or with your Device. Cairns Health currently makes the Services available over the Internet. You shall provide at your own expense, all necessary telephone lines, Internet connections, equipment, software (including a compatible web browser), and services for you to effectively access the Services. You are responsible for upgrading and configuring your internal systems (e.g. network settings, Internet routing, fire walls, and web browsers) to be and remain compatible with and optimize the performance of the Services.

Prohibited Conduct. BY USING THE SERVICES YOU REPRESENT AND WARRANT THAT YOU WILL NOT: (a) make available copyrighted material that is not your own or that you do not have the legal right to distribute, display and otherwise make available to others; (b) harass, threaten, or defraud other Services users; (c) make available content that is threatening, embarrassing, hateful, racially or ethnically insulting, defamatory, pornographic, violates the intellectual property rights, privacy rights or other legal rights of third parties or is otherwise inappropriate; (d) impersonate another person or access another user's PIN or Device without that person's permission; (e) share passwords issued by Cairns Health or PINs with any third party or encourage any other user to do so; (f) misrepresent the source, identity, or content of information transmitted in connection with your use of the Services; (g) use the Services for any unlawful purpose or in violation of any applicable law or regulation; (h) upload material that is damaging to computer systems or data of Cairns Health or other users of the Services (e.g. a virus, Trojan horse, or other malicious code); or (i) use the Services to advertise any product or service that is prohibited or regulated by applicable laws or regulations, or to engage in any false or misleading or otherwise unlawful or objectionable advertising practice.

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You may not use the Services in any manner that in Cairns Health’s sole discretion could damage, disable, overburden, or impair them or interfere with any other party's use and enjoyment of the Services. You may not attempt to gain unauthorized access to the Services, other accounts, computer systems or networks connected to the Services, or any part of them, through hacking, password mining or any other means or interfere or attempt to interfere with the proper working of the Services or any activities conducted on the Services. You may not obtain or attempt to obtain any materials or information through any means not intentionally made available through the Services. The Services may contain systems designed to restrict or regulate access to the Services.

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Location-Based Services. The Services may provide features that enable Cairns Health to tailor your experience based on the Device’s location. In order to use Location-based Services, you must allow Cairns Health access to your localized position, which Cairns Health may access through a variety of means, including, if available, GPS, IP address, cellular tower, and/or other location identifiers now known or later developed, none of which are transmitted to Cairns Health by the Device. If you choose to disable Location-based services on your Device, you will not be able to utilize certain features of the Services. You agree and acknowledge that: (i) Cairns Health may collect device data from your Device, none of which contains personally identifiable information, in connection with the Services and your use of the App, and (ii) if enabled, your Device may provide Location-based Services related to your then-current location for the duration of your session. You acknowledge and agree that Cairns Health does not guarantee the accuracy of any location information, and your use of any Location-based Services is at your sole risk.

Telecommunications. When using the Services, your telecommunications carrier’s normal rates and charges apply. Unless otherwise set forth in these Terms, we are not responsible for any charges you incur from your telecommunications carrier or otherwise as a result of use of our Services. You are responsible for ensuring that, at all times while using our Services, you are not in violation of any agreement with your telecommunications carrier.

Acknowledgement for You to Receive Communications. You hereby agree: (i) to receive communications, including emails, text messages, push notifications, mail and telephone calls, that are related to our Services; that any communications from us may also include marketing materials from us or from third parties; and that any notices, agreements, disclosures or other communications that we send to you electronically are deemed to satisfy any legal communication requirements. You may opt out from receiving our communications by emailing support@cairns.ai or selecting to unsubscribe as may be provided in the applicable correspondence. In addition, we may allow you to opt in to receive certain communications regarding certain Account activity (any such settings, “ Notification Settings ”). You may change any Notification Settings through your Account at any time.

App Use

License. The Cairns Health mobile application (the “ App ”) is licensed, not sold or otherwise transferred, to you. Subject to your acceptance of, and ongoing compliance with, these Terms (including payment of any applicable license fees and compliance with all license restrictions) and all applicable laws, Cairns Health hereby grants you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to install and use one copy of the App in object code format, solely for your personal use, on iOS or Android devices that you own or control. You may not use the App on any device that you do not own or control, and you may not distribute or make the App available over a network where they could be used by multiple devices at the same time. You may not rent, lease, lend, sell, reproduce, redistribute or sublicense the App. You may not copy, decompile, reverse engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the App, any updates, or any part thereof (except as and only to the extent that any foregoing restriction is prohibited by applicable law. These Terms, together with Cairns Health Privacy Policy, Cairns Health Data Collection Policy and the Cairns Health Mobile Privacy Policy, will govern any upgrades provided by Cairns Health that replace and/or supplement the original App, unless such upgrade is accompanied by a separate license in which case that license will govern.

Consent to Use of Data. You agree that Cairns Health may collect and use technical data and related information, including, but not limited to, technical information about the Device, system and application software, and peripherals, that is gathered periodically to facilitate the provision of the Services, including software updates, product support and other services to you (if any) related to the App or Services. Cairns Health may use this and other information you provide for a variety of purposes.  You also agree and acknowledge that Cairns Health may collect (i) radar and sound information, as well as information relating to other external factors, such as temperature, humidity, light, vibration, air quality, and pressure through the Device pursuant to the Cairns Health Data Collection Policy and (ii) information from you directly when you provide it to us through the App, from third parties pursuant to your permission or consent and about you and your smartphone or other device automatically when you use, access, or interact with our App pursuant to the Cairns Health Mobile Privacy Policy. To learn more about Cairns Health’s policies with respect to the collection, use and disclosure of information, please review the Cairns Health Privacy Policy, Cairns Health Data Collection Policy and Cairns Health Mobile Privacy Policy.

Notice Regarding Apple and Google. You acknowledge that these Terms are between you and Cairns Health only, not with Apple or Google or any other third party, and neither Apple nor Google or any other third party is responsible for the App and the content thereof. Neither Apple nor Google has any obligation whatsoever to furnish any maintenance and support services with respect to the App. Neither Apple nor Google has any other warranty obligation whatsoever with respect to the App, and neither is responsible for addressing any claims by 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. Neither Apple nor Google is responsible for the investigation, defense, settlement and discharge of any third party claim that the App or your possession and use of the App infringes that third party intellectual property rights. You agree to comply with any applicable third party terms, when using the App. Apple, Google and their subsidiaries, are third party beneficiaries of these Terms, and upon your acceptance of the Terms, Apple and Google will have the right (and will be deemed to have accepted the right) to enforce the Terms against you as a third party beneficiary of the Terms. You hereby represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a terrorist supporting country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. This license is subject to applicable Apple and Google Store Terms and Conditions.

Messaging. The Services and the App may allow you to upload certain Content and may also allow you to communicate with us using a communication system made available through the App (which may be third-party applications). You understand that we are not responsible for any such Content, including without limitation the content of your communications through the App or any other messaging, audio or video-conferencing tools that we may from time to time make available.  Except as otherwise provided in these Terms, you retain all intellectual property rights in, and are responsible for, the Content that you share with us; however, you agree that Cairns Health shall be entitled to use all content shared by you on the Cairns Health Platform to provide the Services to you and for internal research and development and improvement of the Cairns Health Platform.

Website Contents and Specifications; Inappropriate Material.

All features, content, specifications, products, and prices of products and services described or depicted on the Cairns Health website (collectively “ Website ”) are subject to change at any time without notice. The inclusion of any products or services on the Website at a particular time does not imply or warrant that these products or services will be available for purchase at any time. It is your responsibility to ascertain and obey all applicable local, state, federal, and international laws (including minimum age requirements) in regard to the possession, use, and sale of any item purchased from the Website. By placing an order, you represent that the products ordered will be used only in a lawful manner

Accuracy of Information. Cairns Health uses reasonable efforts to ensure that information on the Website is complete, accurate, and current. Despite Cairns Health’s efforts, the information on the Website may occasionally be inaccurate, incomplete, or out of date. Cairns Health makes no representation as to the completeness, accuracy, or currency of any information on the Website.

Use of Website.  The Website, including its design, text, graphics, content visual material, and all information contained on the Website (“ Information ”), is copyrighted and protected by worldwide copyright laws and treaty provisions. Cairns Health authorizes you to view and download copies of this Information only for your personal, non-commercial use, subject to the following conditions: (1) you must retain, on all copies of the Information downloaded, all copyright and other proprietary notices contained in such Information; (2) you may not modify the Information in any way, reproduce, publicly display, distribute, or otherwise use such Information for any public or commercial purpose; and (3) you must not transfer the Information to any other person unless you give them notice of, and they agree to accept, the obligations arising under these terms and conditions of use. You agree to abide by all additional restrictions displayed on the Website as it may be updated from time to time.  Except as expressly provided herein, or as may be otherwise agreed by the parties in writing, Cairns Health does not grant any express or implied right or license to you under any patents, design patents, trademarks, copyrights, or trade secret information.

Third Party Links.  From time to time, the Website may contain links to websites that are not owned, operated or controlled by Cairns Health or its Affiliates. Cairns Health does not make any representation whatsoever regarding the content of any other website, which you may access from the Website. When you access a non-Cairns Health website, please understand that it is independent from Cairns Health and that Cairns Health does not have any control over the content on that website. A link to a non-Cairns Health website does not mean that Cairns Health endorses or accepts any responsibility for the content or use of such website. All such links are provided solely as a convenience to you. If you use these links, you will leave the Website. Neither Cairns Health nor any of its Affiliates are responsible for any content, materials or other information located on or accessible from any other website. Neither Cairns Health nor any of its Affiliates endorse, guarantee, or make any representations or warranties regarding any other websites, or any content, materials or other information located or accessible from any other websites, or the results that you may obtain from using any other websites. If you decide to access any other websites linked to or from the Website, you do so entirely at your own risk. Please also review the terms and conditions of any other website that you access from the Website, as they may be different from these Terms.  The contents of the Website are ©Cairns Health Inc. All rights reserved.

Trademarks.  Cairns Health may own or otherwise have rights to a number of trademarks. Those trademarks followed by a TM are registered trademarks of Cairns Health in the United States; all other marks are trademarks or common law marks of Cairns Health in the United States, except as noted below. Failure of a mark to appear on the Website does not mean that Cairns Health does not use the mark, nor does it mean that the product is not actively marketed or is not significant within its relevant market. Other trademarks, trade names, and service marks used or displayed on the Website are the registered and unregistered trademarks, trade names and service marks of their respective owners. Nothing contained on the Website grants or should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any trademarks, trade names, service marks or logos displayed on the Website without the written permission of Cairns Health or such other owner.

Linking to the Website. Creating or maintaining any link from another website to any page on the Website without Cairns Health’s prior written permission is prohibited. Running or displaying the Website or any information or material displayed on the Website in frames or through similar means on another website without Cairns Health’s prior written permission is prohibited. Any permitted links to the Website must comply with all applicable laws, rules, and regulations.

Inappropriate Material.  You are prohibited from posting or transmitting any unlawful, threatening, defamatory, libelous, obscene, pornographic, or profane material or any material through the Services that could constitute or encourage conduct that would be considered a criminal offense or give rise to civil liability, or otherwise violate any law. In addition to any remedies that Cairns Health may have at law or in equity, if Cairns Health determines, in Cairns Health’s sole discretion, that you have violated or are likely to violate the foregoing prohibitions, Cairns Health may take any action Cairns Health deems necessary to cure or prevent the violation, including without limitation, the immediate removal of the related materials from the Website. Cairns Health will fully cooperate with any law enforcement authorities or court order or subpoena requesting or directing Cairns Health to disclose the identity of anyone posting such materials.

User Information.  Information that you transmit to us or that we collect from You through the Device or the App, and our use of such information, is subject to the terms of the Privacy Policies.

Access to Embedded Software and the Cairns Health Platform

Access and Use to Cairns Health Platform.  Subject to the terms and conditions of this Agreement, Cairns Health hereby grants to you during the Subscription Term a limited, non-exclusive, non-transferable right, without the right to sublicense, to access and use the Services via the Device in accordance with the Documentation, solely for your personal purposes.  For the avoidance of doubt, you will not have the right to access or use the Cairns Health Platform except for the access and use of Services through the Cairns Health Platform as provided in this Section 7.1.

License to the Embedded Software.  Subject to the terms and conditions of this Agreement, Cairns Health hereby grants to you a limited, non-exclusive, non-transferable right, without the right to sublicense, to use the Embedded Software solely for use of the Device for your personal purposes.  For the avoidance of doubt, the Embedded Software will be provided in executable form only and not in source code form.  All Embedded Software provided may only be used on the particular Device provided by Cairns Health.

Restrictions.   You shall not, directly or indirectly, and you shall not permit any third party to, (i) reverse engineer, decompile, disassemble or otherwise attempt to discover the object code, source code or underlying ideas or algorithms of the Cairns Health Platform or Embedded Software; (ii) modify, translate, or create derivative works based on any element of the Cairns Health Platform, Embedded Software or any related documentation; (iii) rent, lease, distribute, sell, resell, assign, or otherwise transfer its rights to use the Services, Cairns Health Platform or Embedded Software; (iv) use the Services, Cairns Health Platform or Embedded Software for timesharing purposes or otherwise for the benefit of any person or entity other than for your benefit; (v) remove any proprietary notices from the Documentation; (vi) publish or disclose to third parties any evaluation of the Services, Cairns Health Platform or Embedded Software without Cairns Health’s prior written consent; (vii) use the Services, Cairns Health Platform or Embedded Software for any purpose other than its intended purpose; (viii) interfere with or disrupt the integrity or performance of the Services, Cairns Health Platform or Embedded Software; or (ix) attempt to gain unauthorized access to the Services, Cairns Health Platform or Embedded Software.  You are not licensed to, and shall not, install any other product or software on the Device, nor may you de- install the software from the Device.

No Circumvention of Security.  You shall not circumvent or otherwise interfere with any user authentication or security of the Device or Cairns Health Platform.  You will immediately notify Cairns Health of any breach, or attempted breach, of security known to you.

Remote Diagnostics. You agree that the Device may (i) transmit to Cairns Health technical and related information about your use of the Device which may include, without limitation, system performance, capacity usage, hardware faults, internet protocol address, hardware identification, operating system, application software, peripheral hardware, and other non- personally identifiable Device usage statistics to trouble shoot the Device, as well as (ii) facilitate the provisioning of updates, upgrades, support, invoicing or online services (including the provision of notices from Cairns Health to you via the Device), and to enhance, improve, and develop current and future Cairns Health products and services. Such transmissions and/or notices may be on a daily or other periodic basis, or upon a failure or crash of the Device.

Automatic Software Updates. Cairns Health may from time to time develop patches, bug fixes, updates, upgrades and other modifications to improve or otherwise modify the performance of the Device and related services (“ Updates ”). These Updates may affect or erase data on the Device or change or reset settings on the Device. These Updates may be automatically installed without providing any additional notice or receiving any additional consent if you have connected the Device to the Internet. You consent to these automatic Updates. If you do not want these Updates, do not connect the Device to the Internet or to a mobile device. You acknowledge that it may be necessary to install Updates in order for the Device (or any component thereof) to operate properly and to access all updated features of the Device. In certain circumstances you may be entitled to request removal or disabling of Updates; however, Cairns Health is not responsible for the operation of, providing support to, Devices that do not contain Updates.

Cairns Health Device

Lease of Devices. Cairns Health hereby leases to you, during the Subscription Term, the Device set forth in each Subscription Order.  Except as may be otherwise agreed by Cairns Health, you are responsible for installation and use of the Device(s).  When you enter into a Subscription, the Device will be shipped to a valid address designated by you. Risk of loss for items ordered from Cairns Health will pass to you upon delivery of the items to Cairns Health’s common carrier until you return it to us. You are responsible for filing any claims with carriers for damaged or lost shipments, without limiting the warranty commitments set forth below.  Within thirty (30) days following the expiration or termination of the Subscription Term, you must return the Device, in its original condition without damage, to Cairns Health using the return label provided by Cairns Health to you.  In the event that you fail to return the Device to Cairns Health in accordance with this Section 8.1(a), Cairns Health may invoice you for the replacement cost of the Device in an amount of up to $240 (the “Device Replacement Charge”).

Title to all Embedded Software and Intellectual Property Rights in the Devices shall remain the sole and exclusive property of Cairns Health and its licensors, and you shall not take any action inconsistent with such title and ownership.  You are not licensed to copy, access or use the Embedded Software in the Devices, except to use such Devices as set forth in this Agreement.  You shall not, and shall not permit any third party to, copy or reverse engineer the Devices or Embedded Software therein, or remove or obscure any proprietary marks on or in the Devices, except as Cairns Health may approve on a case-by-case basis or as agreed by the Parties.

Fees and Payment Terms

Service Fees.  You shall pay to Cairns Health the Service Fees for the Subscription Term as set forth in the Subscription Order.

Payment Terms.  We may use a third party payment service to bill you through an online account for the Service Fees or the Device Replacement Charge in lieu of directly processing your credit card information.  By submitting your payment account information, you grant us the right to store and process your information with the third party payment service, which may change from time to time; you agree that we will not be responsible for any failure of the third party to adequately protect such information.  The processing of payments will be subject to the terms, conditions and privacy policies of such third party payment service in addition to these Terms.  You agree that we may change the third party payment service and move your information to other service providers that encrypt your information using transport layer security (TLS) or comparable security technology.  Other than as may be expressly set forth in a Subscription Order, we have no obligation to provide refunds or credits, but may grant them in certain circumstances in our sole discretion.

Taxes.  You shall pay all applicable sales (unless an exemption certificate is furnished by you to Cairns Health), use and value-added taxes (but not taxes imposed on Cairns Health’s net income) with respect to this Agreement or furnish Cairns Health with evidence acceptable to the taxing authority to sustain an exemption therefrom.  All payments under this Agreement shall be made free and clear of (and without deduction for or grossed up for, as applicable) any withholding or other taxes levied by any country or jurisdiction on payments to be made pursuant to this Agreement that applicable law requires to withhold.

Representations and Warranties

No Cairns Health Warranties Disclaimer.
Your use of the website, app, devices, Cairns Health platform, services, and any software, services, or applications made available in conjunction with or through the Cairns Health platform are provided "as is" and without warranties of any kind, either express or implied. To the fullest extent permissible pursuant to applicable law, Cairns Health, and its suppliers, licensors, and partners, disclaim all warranties, express or implied, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, non-infringement of proprietary rights, and title. Your use of the website, app, devices, Cairns Health platform, services, and any other Cairns Health products is at your own risk.

Cairns Health, and its suppliers, licensors, and partners, do not warrant that the features contained in the Cairns Health platform or services will be uninterrupted or error-free, that defects will be corrected, or that the service or the server that makes it available is free of viruses or other harmful components. You acknowledge and agree that the Cairns Health platform and services (as with technology generally) may have errors (or "bugs") and may encounter unexpected technical problems. Accordingly, from time to time, you may experience downtime and errors in the operation, functionality, or performance of the Cairns Health platform, services, or products.

Cairns Health, and its suppliers, licensors, and partners, do not warrant or make any representations regarding the use or the results of the use of the Cairns Health platform or services in terms of their correctness, accuracy, reliability, or otherwise. You understand and agree that you download or otherwise obtain media, material, or other data through the use of the Cairns Health platform or services at your own discretion and risk, and that you will be solely responsible for any damage to your computer system or loss of data that results from such material or data.

Certain state laws do not allow limitations on implied warranties or the exclusion or limitation of certain damages. If these laws apply to you, some or all of the above disclaimers, exclusions, or limitations may not apply to you, and you might have additional rights.

User Information Warranty. You represent and warrant to Cairns Health that you have the right, including in respect of all relevant Intellectual Property Rights and applicable data privacy and other laws, to provide Cairns Health access to and use of the User Information, including without limitation for use in connection with the Cairns Health Platform and all other Services.

Indemnification

You agree to indemnify, defend, and hold Cairns Health, its Affiliates, contractors, employees, agents and its Affiliates, suppliers, licensors, and partners harmless from any claims, losses, damages, liabilities, including legal fees and expenses, arising out of your use or misuse of the Apps or Services, your communications, transactions, or dealings with third parties initiated through the Services, your violation of these Terms or any law or regulation, or any breach of the representations, warranties, and covenants made by you in the Terms. Cairns Health reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify Cairns Health, and you agree to cooperate with Cairns Health’s defense of these claims. Cairns Health will use reasonable efforts to notify you of any such claim, action, or proceeding upon becoming aware of it.

Confidentiality

Confidential Information.   “Confidential Information”  means any and all non-public information disclosed by Cairns Health to you in any form or medium, whether oral, written, graphical or electronic, pursuant to this Agreement, that is marked confidential and proprietary, or that the Cairns Health identifies as confidential and proprietary, or that by the nature of the circumstances surrounding the disclosure or receipt ought to be treated as confidential and proprietary information, including but not limited to: (i) techniques, sketches, drawings, models, inventions (whether or not patented or patentable), know-how, processes, apparatus, formulae, equipment, algorithms, software programs, software source documents, APIs, and other creative works (whether or not copyrighted or copyrightable); (ii) information concerning research, experimental work, development, design details and specifications, engineering, financial information, procurement requirements, purchasing, manufacturing, customer lists, business forecasts, sales and merchandising and marketing plans and information; (iii) proprietary or confidential information of any third party who may disclose such information to Cairns Health or you in the course of Cairns Health’s business; and (iv) the terms of this Agreement and any Subscription Orders. Confidential Information of Cairns Health shall include the Cairns Health Platform and Services. Confidential Information also includes all summaries and abstracts of Confidential Information.

Non-Disclosure. You acknowledge that in the course of the performance of this Agreement, you may obtain the Confidential Information of Cairns Health.  You shall, at all times, both during the Term and thereafter, keep in confidence and trust all of Cairns Health’s Confidential Information received by it.  You shall not use the Confidential Information of Cairns Health other than as necessary to fulfill your obligations or to exercise your rights under the terms of this Agreement.  Each Party agrees to secure and protect the other Party’s Confidential Information with the same degree of care and in a manner consistent with the maintenance of such Party’s own Confidential Information (but in no event less than reasonable care), and to take appropriate action by instruction or agreement with its employees, Affiliates or other agents who are permitted access to the other Party’s Confidential Information to satisfy its obligations under this Section.  You shall not disclose Confidential Information of Cairns Health to any person or entity other than its officers, employees, Affiliates and agents who need access to such Confidential Information in order to effect the intent of this Agreement and who are subject to confidentiality obligations at least as stringent as the obligations set forth in this Agreement.

Exceptions to Confidential Information .  The obligations set forth in Section 12.2 (Non-Disclosure) shall not apply to the extent that Confidential Information includes information which:  (i) was known by you prior to receipt from Cairns Health either itself or through receipt directly or indirectly from a source other than one having an obligation of confidentiality to Cairns Health; (ii) was developed by you without use of Cairns Health’s Confidential Information; or (iii) becomes publicly known or otherwise ceases to be secret or confidential, except as a result of a breach of this Agreement or any obligation of confidentiality by you.  Nothing in this Agreement shall prevent you from disclosing Confidential Information to the extent you are legally compelled to do so by any governmental investigative or judicial agency pursuant to proceedings over which such agency has jurisdiction; provided, however, that prior to any such disclosure, you shall (i) assert the confidential nature of the Confidential Information to the agency; (ii) immediately notify Cairns Health in writing of the agency’s order or request to disclose; and (iii) cooperate fully with Cairns Health in protecting against any such disclosure and/or obtaining a protective order narrowing the scope of the compelled disclosure and protecting its confidentiality.

Proprietary Rights

Ownership. You acknowledge that the Cairns Health Platform and the Services, and all Intellectual Property Rights therein or in the Device, are the sole and exclusive property of Cairns Health and its licensors. Cairns Health acknowledges that the User Information, and all Intellectual Property Rights therein, is the sole and exclusive property of you. Each Party retains all other rights not expressly granted in this Agreement.

Cairns Health Developments.  All inventions, works of authorship and developments conceived, created, written, or generated by or on behalf of Cairns Health, whether solely or jointly, including without limitation, in connection with Cairns Health’s performance of the Services hereunder, (“ Cairns Health Developments ”) including all Intellectual Property Rights therein, shall be the sole and exclusive property of Cairns Health.

Usage Data. Notwithstanding anything else in the Agreement or otherwise, Cairns Health may monitor your use of the Device, Services and Cairns Health Platform and use data and information related to your use of the Services in an aggregate or de-identified manner, including to compile statistical and performance information related to the provision and operation of, and to improve, the Device, Cairns Health Platform and Services.  You agree that Cairns Health may make such data and information publicly available, and use such information to the extent and in the manner required by applicable law or regulation and/or for purposes of data gathering, analysis, service enhancement and marketing, provided that such data and information does not identify you.  Cairns Health retains all Intellectual Property Rights in such data and information.

Limited Feedback License.

You hereby grant to Cairns Health, at no charge, a non-exclusive, royalty-free, worldwide, transferable, sublicensable (through one or more tiers), perpetual, irrevocable license under your Intellectual Property Rights in and to suggestions, comments and other forms of feedback (“ Feedback ”) regarding the Website, Devices, Cairns Health Platform and Cairns Health Developments provided by or on your behalf to Cairns Health, including Feedback regarding features, usability and use, and bug reports, to reproduce, perform, display, create derivative works of the Feedback and distribute such Feedback and/or derivative works in the Cairns Health Platform or any other products or services.  Feedback is provided “as is” without warranty of any kind and shall not include any of your Confidential Information.

Submissions.  Cairns Health requests that no visitors to this site submit or send any original creative materials, including but not limited to submissions of suggestions, ideas or concepts related to current or future products or business ideas. If at Cairns Health’s request you send certain specific submissions (e.g., customer reviews) or, despite Cairns Health’s request that you not send Cairns Health any other creative materials, you send Cairns Health creative suggestions, ideas, notes, drawings, concepts, or other information (collectively the “ Submissions ”), the Submissions shall be deemed and shall remain the property of Cairns Health in perpetuity. By making any Submission, the sender automatically grants, or warrants that the owner of such material expressly grants Cairns Health the royalty-free, perpetual, irrevocable, non-exclusive right and license to use, reproduce, modify, adapt, publish, translate, and distribute such material (in whole or in part) throughout the universe and/or to incorporate it in other works in any form, media, or technology now known or hereafter developed, for the full term of any copyright, trademark or patent that may exist in such material for any purpose that Cairns Health chooses, whether internal, public, commercial, or otherwise, without any compensation, credit, or notice to the sender whatsoever. The sender waives all so-called “moral rights” in all Submissions. The sender further waives the right to make any claims against Cairns Health relating to unsolicited submissions, including, but not limited to, unfair competition, breach of implied contract, or breach of confidentiality.

Limitation of Liability

No Consequential Damages. Cairns Health does not assume any responsibility, and Cairns Health will not be liable, for any damages to, or any viruses that may infect, your computer, telecommunication equipment, or other property caused by or arising from your access to, use of, or browsing the Website, Services or Device.   Cairns Health and its licensors shall not be liable for any indirect, incidental, special, consequential, or punitive damages, or any damages for lost data, business interruption, lost profits, lost revenue, or lost business, arising out of or in connection with this agreement or the use of the website, app, devices, Cairns Health platform, services, or other products, even if Cairns Health or its licensors have been advised of the possibility of such damages, including without limitation, any such damages arising out of the licensing, provision, or use of the Cairns Health platform or other services. Cairns Health will not be liable for the cost of procurement of substitute goods or services.

Limits on Liability.  In the event of any problem with your use of the Cairns Health platform or services, you agree that your sole remedy is to cease using the Cairns Health platform or services. You hereby release Cairns Health and its licensors from all obligations, liability, claims, or demands (including with respect to claims relating to property damage, embarrassment, physical injury, mental injury, emotional injury, and death) relating to the website, Cairns Health platform, services, or other Cairns Health products, and this agreement, whether based upon warranty, contract, tort (including negligence), or otherwise, even if Cairns Health has been advised of the possibility of such damages or losses, in each case to the maximum extent permitted by applicable law.

Essential Purpose.  You acknowledge that the terms in this Section 14 (Limitation of Liability) are an essential basis of the bargain described in this Agreement and that, were Cairns Health to assume any further liability, the fees payable hereunder would out of necessity, be set much higher.  The limitations in this Section 14 (Limitation of Liability) shall apply to the maximum extent permitted by applicable law and shall apply even if an exclusive or limited remedy stated herein fails of its essential purpose.

Term and Termination

Except as set forth in Section 15.2, Section 15.3 and Section 15.4 with respect to your subscription to the Services, you or Cairns Health may suspend or terminate your account or your use of the Website or the Services at any time, for any reason or for no reason. You are personally liable for any orders placed or charges incurred through your account prior to termination. Cairns Health reserves the right to change, suspend, or discontinue all or any aspect of the Website at any time without notice.

Subscription Term.  The term of any subscription to the Services shall commence on the Subscription Effective Date and continue until the expiration or termination of the initial Subscription Term for Services (“ Initial Subscription Term ”) and each Renewal Subscription Term (as defined below), unless earlier terminated as provided in this Agreement. The Subscription Term will automatically renew for subsequent terms of one (1) month (each, a “ Renewal Subscription Term ”) unless either party notifies the other Party of nonrenewal at least ten (10) days prior to the end of the Initial   Subscription Term or then current Renewal Subscription Term, as applicable.  If you timely notify Cairns Health of your nonrenewal, your subscription will continue and you may use the Cairns Health Portal and Services until the end of the Initial   Subscription Term or then current Renewal Subscription Term, as applicable, and your subscription will not be renewed after that period expires. You will not be eligible for a prorated refund of any portion of the Service Fees paid or payable for the Initial   Subscription Term or then current Renewal Subscription Term, as applicable.  If you do not timely notify Cairns Health of your nonrenewal, the nonrenewal will be effective as of the end of the subsequent Renewal Subscription Term, you will be charged Service Fees for such Renewal Subscription Term and your subscription will not be renewed after such Renewal Subscription Term expires.

Termination for Cause.  Either Party may terminate this Agreement (and the Subscription Term) upon written notice to the other Party in the event the other Party (a) becomes insolvent or bankrupt or admits its inability to pay its debts as they mature, makes an assignment for the benefit of its creditors or ceases to function as a going concern or to conduct its operations in the normal course of business and such termination shall occur immediately upon notice; or (b) commits a material breach of any provision of this Agreement and does not remedy such breach within thirty (30) days after receipt of notice from the non-defaulting Party or such other period as the Parties may agree.

Effects of Termination.  Upon expiration or termination of this Agreement, (i) your use of and access to the Services and Cairns Health Platform and the performance of all Services shall cease; (ii) all Subscription Orders shall terminate; and (iii) all fees and other amounts owed under this Agreement shall be immediately due and payable by Subscriber. In addition, within ten (10) days after the effective date of termination you shall (a) return to Cairns Health or at Cairns Health’s option, you shall destroy, all items of Confidential Information then in your possession or control, including any copies, extracts or portions thereof, and (b) upon request shall certify in writing to Cairns Health that it has complied with the foregoing. Following such 10-day period, Cairns Health shall have no obligation to maintain or provide any User Information and may thereafter in its sole discretion unless legally prohibited, delete all User Information in its systems or otherwise in its possession or under its control.  Within thirty (30) days following the expiration or termination of the Subscription Term, you must also return the Device, in its original condition without damage, to Cairns Health using the return label provided by Cairns Health to you.  You will be responsible for the cost of repairing any returned Device to its original condition (other than for ordinary wear and tear).

Survival.  This Section 15.6 (Survival) and Sections 1 (Definitions), 7 (Access to Embedded Software and the Cairns Health Platform), 9 (Service Fees and Payments), 10 (Representations and Warranties), 11 (Indemnification), 12 (Confidentiality), 13 (Proprietary Rights), 14 (Limitation of Liability), 15.4 (Effects of Termination), 16 (Miscellaneous), and 17 (Agreement to Arbitrate; Waiver of Class Action), as well as any accrued obligations, shall survive any termination or expiration of this Agreement.

Miscellaneous

Notices.  All notices and other communications under this Agreement shall be in writing and may be given by any of the following methods: (a) personal delivery; (b) registered or certified mail, postage prepaid, return receipt requested; (c) reputable overnight delivery service or (d) email. Notices shall be sent to Cairns Health at the appropriate party at the address provided in the applicable Subscription Order.

Amendment; Waiver.  Except with respect to Sections 15.2 and 15.3, these Terms may be revised at any time by Cairns Health by updating this posting. You should visit this page from time to time to review the then current Terms because they are binding on you. Certain provisions of these Terms may be superseded by legal notices or terms located on particular pages of the Website.

Use of Your Name.  If you do not wish to be identified as a customer of Cairns Health, you may send an email to customer support (support@cairns.ai) to request to be removed from publicly available customer lists and Cairns Health will remove you from such list.

Severability.  The provisions of these Terms are intended to be interpreted in a manner which makes them valid, legal, and enforceable. In the event any provision of the provisions are found to be partially or wholly invalid, illegal or unenforceable, such provisions shall be modified or restricted to the extent and in the manner necessary to render them valid, legal, and enforceable. It is expressly understood and agreed between the parties that such modification or restriction may be accomplished unilaterally by Cairns Health, or alternatively, by disposition of a court of law or arbitrator. If such provisions cannot under any circumstances be so modified or restricted, they shall be excised from these Terms without affecting the validity, legality or enforceability of any of the remaining provisions.

Governing Law.  These Terms, and any dispute between you and us, shall be governed by the laws of the State of California without regard to principles of conflicts of law that would result in the application of the law of any other jurisdiction, except that the Federal Arbitration Act shall govern the interpretation and enforcement of the arbitration provisions set forth below. Unless you and we agree otherwise, in the event that this Section 17.5 is found not to apply to you or to a particular claim or dispute, either as a result of your decision to opt-out of the Arbitration Procedures or as a result of a decision by the arbitrator or a court order, you agree that any claim or dispute that has arisen or may arise between you and us must be resolved exclusively by a state or federal court located in the District Court for the Northern District of California except that you or we are permitted (a) to bring small claims actions in state court in the county in which you reside if such court has a small claims procedure and if such court is located in the United States of America; (b) to bring claims for injunctive relief in any court having jurisdiction over the parties; or (c) to seek enforcement of a judgment in any court having jurisdiction over the parties. To the extent permitted by law, you and we agree to waive trial by jury in any court proceeding.

Attorneys’ Fees.  In any action to enforce this Agreement, the prevailing Party shall be awarded all court costs and reasonable attorneys’ fees incurred, including such costs and attorneys’ fees incurred in enforcing and collecting any judgment.

Force Majeure. Neither Party shall be liable for any failure or delay in performance under this Agreement due to fire, explosion, earthquake, storm, flood or other weather; unavailability of necessary utilities or raw materials; Internet service provider failures or delays, or denial of service attacks; war, civil unrest, acts of terror, insurrection, riot, acts of God or the public enemy; strikes or other labor problems; the Covid-19 pandemic or any other epidemic or pandemic or outbreak of infectious disease; any law, act, order, proclamation, decree, regulation, ordinance, or instructions of government or other public authorities, or judgment or decree of a court of competent jurisdiction (not arising out of breach by such Party of this Agreement), including in response to the Covid-19 pandemic, any other epidemic or pandemic or outbreak of infectious disease; or any other event beyond the reasonable control of the Party whose performance is to be excused.

Assignment.  Neither Party may assign its rights or obligations under this Agreement, whether voluntarily or by operation of law or otherwise, without the other Party’s prior written consent. Notwithstanding the foregoing, either Party may assign this Agreement in connection with an acquisition, sale or transfer of all or substantially all of its assets, stock or business by sale, merger, consolidation, or similar transaction. Any purported assignment or transfer in violation of this section shall be void. Subject to the foregoing restrictions, this Agreement will bind and benefit the Parties and their successors and permitted assigns.

Relationship of the Parties.  Cairns Health is an independent contractor to you. There is no relationship of agency, partnership, joint venture, employment, or franchise between the Parties.  Neither Party has the authority to bind the other or to incur any obligation on its behalf.

No Third Party Beneficiaries. This Agreement is not intended to create a benefit to any Party other than the Parties hereto and the indemnitees set forth in Section 11, and no Party other than a Party hereto may bring an action hereunder.

Construction of Agreement.  Each Party acknowledges that it has had the opportunity to have legal counsel review this Agreement and to negotiate its terms and conditions.  Should any questions of construction or interpretation of this Agreement arise, then the Parties agree that no presumption shall be applied against the Party drafting this Agreement or any portion thereof and that the language of this Agreement shall, in all cases, be construed as a whole according to its fair meaning and not strictly for or against either Party.

Entire Agreement.  This Agreement, including all Subscription Orders, the Cairns Health Privacy Policy, Cairns Health Data Collection Policy and the Cairns Health Mobile Privacy Policy (as may be amended from time to time), constitutes the entire agreement between the Parties relating to this subject matter and supersedes all prior or simultaneous understandings, representations, discussions, negotiations, and agreements, whether written or oral.

Export. The Device, Services and Cairns Health Platform utilize software and technology that may be subject to United States and foreign export controls. You acknowledge and agree that the Services shall not be used, and neither the Device nor any of the underlying information, software, or technology may be transferred or otherwise exported or re-exported to countries as to which the United States maintains an embargo (collectively, “ Embargoed Countries ”), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury’s List of Specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders (collectively, “ Designated Nationals ”). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. By using the Services, you represent and warrant that you are not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. The Cairns Health Platform may use encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations, 15 C.F.R. Parts 730-774 and Council Regulation (EC) No. 1334/2000. You agree to comply strictly with all applicable export laws and assume sole responsibility for obtaining licenses to export or re-export as may be required. Cairns Health and its licensors make no representation that the Services are appropriate or available for use in other locations. Any diversion of the User Information or Processed Data contrary to law is prohibited. None of the User Information or Processed Data, nor any information acquired through the use of the Services, is or will be used for nuclear activities, chemical or biological weapons, or missile projects.

Additional Assistance.  If you do not understand any of the foregoing Terms or if you have any questions or comments, please contact Cairns Health at support@cairns.ai.

Agreement to Arbitrate; Waiver 
of Class Action

Mandatory Arbitration of Disputes; Arbitration Procedures. Except if you opt-out or for disputes relating to your or our intellectual property (such as trademarks, trade dress, domain names, trade secrets, copyrights and patents) or for items (a)–(c) set forth in Section 17.5 (Governing Law; Dispute Resolutions), you agree that all disputes between you and us (whether or not such dispute involves a third party) arising out of or relating to these Terms, our Services, and/or our Privacy Policies shall be finally resolved by arbitration before a single arbitrator conducted in the English language in the State of California under the Commercial Arbitration Rules of the American Arbitration Association (“ AAA ”) and you and we hereby expressly waive trial by jury. You and we shall appoint as sole arbitrator a person mutually agreed by you and us or, if you and we cannot agree within thirty (30) days of either party’s request for arbitration, such single arbitrator shall be selected by the AAA upon the request of either party. The parties shall bear equally the cost of the arbitration (except that the prevailing party shall be entitled to an award of reasonable attorneys' fees incurred in connection with the arbitration in such an amount as may be determined by the arbitrator). All decisions of the arbitrator shall be final and binding on both parties and enforceable in any court of competent jurisdiction. Notwithstanding the foregoing, application may be made to any court for a judicial acceptance of the award or order of enforcement. Under no circumstances shall the arbitrator be authorized to award damages, remedies or awards that conflict with these Terms.

Class Action Waiver. Any claims brought by you or us must be brought in such party’s individual capacity, and not as a plaintiff or class member in any purported class or representative proceeding.  You agree and acknowledge that neither you nor we will participate in a class action or class-wide arbitration for any claims covered by these Terms.  You hereby waive any and all rights to bring any claims related to these Terms and/or our Privacy Policies as a plaintiff or class member in any purported class or representative proceeding.  You understand and agree that you may bring claims only on your own behalf.

Opt-out. You may opt out of this Agreement to Arbitrate. If you do so, neither you nor we can require the other to participate in an arbitration proceeding. To opt out, you must notify us in writing within thirty (30) days of the date that you first became subject to this arbitration provision. The opt-out notice must state that you do not agree to the Agreement to Arbitrate and must include your name, address, phone number, your Cairns Health account, if applicable, to which the opt-out applies and a clear statement that you want to opt out of this Agreement to Arbitrate. You must sign the opt-out notice for it to be effective. This procedure is the only way you can opt out of the Agreement to Arbitrate. You must use this address to opt out: Cairns Health ATTN: Arbitration Out-Out, 11811 San Vicente Boulevard, Los Angeles, CA 90049.

Effect of Changes on Arbitration. Notwithstanding any provision in these Terms to the contrary, you and we agree that if we make any change to the Arbitration Procedures (other than a change to any notice address or Website link provided herein) in the future, that change shall not apply to any claim that was filed in a legal proceeding against us prior to the effective date of the change. Moreover, if we seek to terminate the Arbitration Procedures from these Terms, such termination shall not be effective until thirty (30) days after the version of these Terms not containing the Arbitration Procedures is posted to our Website, and shall not be effective as to any claim that was filed in a legal proceeding against us prior to the effective date of removal.

Survival. In accordance with Section 16.6 (Survival), this Section 18 (Agreement to Arbitrate; Waiver of Class Action) will survive the termination of your relationship with us.