End-User Agreement
USER AGREEMENT
This agreement was updated in March 2023.
Doc Ref: 1301-2 (practitioner) V3
Introduction and Terms used
This agreement is between Omega Diagnostics Ltd, a company incorporated and registered in Scotland (company number SC107178) with its registered office at Omega House, 1 Exchange Crescent, Conference Square, Edinburgh, Scotland, EH3 8UL, ("we", "us" or "our") and you, the user ("User", "you" or "your") of MyHealthTracker Pro by Omega app (the "App") for the purpose of granting a licence to use the App under and in accordance with these terms and conditions (the "User Agreement").
The ways in which you can use the App and Services may also be controlled by the Apple's Appstore's rules and policies [https://www.apple.com/uk/app-store/] or the Google Play store rules and policies [https://play.google.com/store/]. The Appstore sets out the relevant requirements for use of this App, including the type of mobile telephone or handheld device, the minimum of amount of memory required and the type of operating system needed.
Before registering with the App, you must agree to accept all the terms of this User Agreement. Any person who does not agree to this User Agreement, or who ceases to agree to the terms of this User Agreement must not use the App.
The User Agreement is a legally binding agreement between you and Omega Diagnostics Ltd. You agree to these terms either by using the Services or by ticking to accept the terms of this User Agreement where the option is made available to you whichever occurs first.
You acknowledge and agree that you have read and do agree to comply with the following policies which are hereby incorporated by reference into, and made part of this User Agreement: Privacy & Back-Up Policy (www.myhealthtracker.com/privacy)
Definitions:
“MyHealthTracker Pro by Omega”
the online cloud computing platform and mobile application owned or properly licensed by Omega Diagnostics Ltd for the provision of the Services;
“Services”
the services provided by Us via MyHealthTracker Pro by Omega on the terms of this User Agreement;
“User Account”
the user account that you will create when you register to use the Services;
‘User Agreement’
means the terms and conditions of supply set out herein; and
“User Data”
the data inputted or provided (directly or indirectly) by you, or by us on your behalf for the purpose of using the Services or facilitating your use of the Services.
A. General Conditions
Licence to use MyHealthTracker Pro by Omega
1.1 Omega Diagnostics Ltd grants you, the User, a limited non-exclusive revocable licence without right to sublicence to access and make use of the App, but not to download (other than page caching) or modify it, or any portion of it, except with express written consent of Omega Diagnostics Ltd. This licence does not include any resale or commercial use of the App or its contents; any derivative use of the App or its contents; any downloading or copying of account information (other than download of your own information for your own use); or any use of data mining, robots, or similar data gathering and extraction tools.
1.2 You acknowledge and agree that we and/or our licensors own all intellectual property rights in the App and the Services. Except as expressly stated herein, this User Agreement does not grant the User any rights to, or in, patents, copyrights, database rights, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the App or Services
1.3 You grant us the right to access your User Account for the purposes of providing our Services, monitoring, improvement, or upgrade.
Use of MyHealthTracker Pro by Omega
1.4 If you want to use our Services you must set up a User Account. To do this you will be required to provide us with certain information, which may include details of your identity and contact information. Any information which you provide us when you set up your User Account and/or Profile and any updates or other details you provide us from time to time, altogether are defined as, “User Details”.
1.5 To register with Omega Diagnostics Ltd, all of the User Details you provide must be correct. Omega Diagnostics Ltd will send communications to Users to their registered e-mail address in their Omega Diagnostics Ltd account. You must warrant this information to be true and agree to update your information immediately following any change in the details that Omega Diagnostics Ltd is holding on your account.
1.6 If Omega Diagnostics Ltd subsequently finds that it has been provided with information that is incorrect or misleading, Omega Diagnostics Ltd reserves the right immediately to cancel the account without prior notice.
1.7 There are some things which you are not entitled to do on the App. You agree:
1.7.1 not to access (or attempt to access) any part of the App:
1.7.1.1 by any means other than through the interface provided by us;
1.7.1.2 through any automated means, including use of scripts, robots, spiders, scrapers or web crawlers (unless such use has been expressly permitted in writing by us); and
1.7.1.3 unless you have registered in accordance with clause 1.4 above; and
1.7.2 that you will not (a) take any action that imposes, or may impose (in each case in our sole discretion) an unreasonable or disproportionately large load on our infrastructure; (b) (save to the extent permitted by governing law) copy, duplicate, reproduce, rent, lease, loan, sell, trade, resell, modify, create derivative works, distribute or publicly display any part of the App without prior written consent from us; (c) interfere or attempt to interfere with the proper working of the App or any activities conducted via the App; (d) bypass any measures we may use to prevent or restrict access to the App; and (e) attempt to reverse engineer, decompile or otherwise seek to obtain access to any source code in the App ; and that you will not engage in any activity that interferes with or disrupts our Services or the servers and networks that are connected to the App.
1.7.3 not use the App or any Service in any unlawful manner, for any unlawful purpose, or in any manner inconsistent with these terms, or act fraudulently or maliciously, for example, by hacking into or inserting malicious code, such as viruses, or harmful data, into the App, any Service or any operating system;
1.7.4 not infringe our intellectual property rights or those of any third party in relation to your use of the App or any Service, including by the submission of any material(to the extent that such use is not licensed by these terms);
1.7.5 not transmit any material that is defamatory, offensive or otherwise objectionable in relation to your use of the App or any Service;
1.7.6 not use the App or any Service in a way that could damage, disable, overburden, impair or compromise our systems or security or interfere with other users; and
1.7.6.1 not collect or harvest any information or data from any Service or our systems or attempt to decipher any transmissions to or from the servers running any service.
1.7.7 that you may view, download and print pages from the App for your information only. You are not authorised to use any information from the App for any other purpose and specifically not to take any action which may cause damage or loss to Omega Diagnostics Ltd in any way whatsoever.
1.7.8 not to republish, sell or rent any material from the App without getting written consent from Omega Diagnostics Ltd. This includes photographs.
1.8 For persons registering a business entity, you must represent that you have authority to legally bind the business entity and warrant that the information provided by you in relation to the business entity is correct - including registered office address, phone numbers, business information, tax/vat numbers and agree to update this information should there be any change in the details that Omega Diagnostics Ltd is holding on your account. You must also comply with all applicable laws relating to online trading.
Our right to update the App or make changes to the Services
1.9 From time to time we may automatically update the App and change the Services to improve performance, enhance functionality, reflect changes to the operating system or address security issues. Alternatively we may ask you to update the App for these reasons
1.10 If you choose not to install such updates or if you opt out of automatic updates you may not be able to continue using the App and the Services.
Our right to reject, terminate or suspend
1.11 Omega Diagnostics Ltd reserves the right to delay or reject any registration with the App. If your application is rejected Omega Diagnostics Ltd has no obligation to give a reason for rejection but will generally inform you by email.
1.12 Omega Diagnostics Ltd may close an account, and/or suspend or terminate the App at any time, in its sole discretion, without cause or notice to you or any penalty or liability for doing so.
1.13 Omega Diagnostics Ltd, in its sole discretion, may suspend or terminate your account(s) if Omega Diagnostics Ltd suspects or has reason to believe and/or if a person otherwise claims that you have violated the law or breached any term of this User Agreement. In addition to the foregoing, and all other rights and remedies available to Omega Diagnostics Ltd at law or in equity and notwithstanding anything in the User Agreement to the contrary, in the event you breach any term of this User Agreement, or your account becomes dormant or inactive and/or has a negative balance, Omega Diagnostics Ltd will have the right to immediately suspend or terminate your User Account and your rights to access, use and/or otherwise participate in the Omega Diagnostics Ltd. Without limiting the foregoing, Omega Diagnostics Ltd shall have the right to immediately terminate your access and use of the App, or any portion thereof, in the event of any conduct which Omega Diagnostics Ltd, in its sole discretion, considers to be unacceptable.
1.14 In the event of termination for any reason including but not limited to clauses 1.11 – 1.13. Upon such termination, you agree to:
1.14.1 immediately cease all use of the App and Omega Diagnostics Ltd intellectual property licensed in clause 1.1 of this User Agreement;
1.14.2 delete or remove the App from all devices in your possession and immediately destroy all copies of the App which you have and confirm to us that you have done this.
We may remotely access your devices and remove the App from them and cease providing you with access to the Services.
We may remotely access your devices and remove the App from them and cease providing you with access to the Services.
Limitation of Liability
1.16 You acknowledge and agree that the App and the Services have not been developed or customised for your specific requirements and that you alone must determine its suitability for your purpose. Any results, conclusions and statements comprised in the App cannot be guaranteed. Omega Diagnostics Ltd offers the App service on an "AS IS" basis. We hereby disclaim to the fullest extent permitted by law all warranties, conditions, terms, undertakings and representation of any kind, express or implied, statutory or otherwise in connection with Omega Diagnostics Ltd. This includes any implied warranties of merchantability, fitness for a particular purpose, title and non-infringement and without limitation direct, indirect, incidental damages, consequential damages, or loss of data, associated with use of the App and/or its non-availability.
1.17 We recommend that you back up any content and data used in connection with the App, to protect yourself in case of problems with the App or the Service. We shall not be liable for the deletion of or failure to store any content or data maintained or transmitted by or through your use of the App or our Services.
1.18 The App and the Services are provided for general information and entertainment purposes only. They do not offer advice on which you should rely. You must obtain professional or specialist advice before taking, or refraining from, any action on the basis of information obtained from the App or the Services. Although we make reasonable efforts to update the information provided by the App and the Service, we make no representations, warranties or guarantees, whether express or implied, that such information is accurate, complete or up to date or that any such errors will be corrected by Omega Diagnostics Ltd. You are solely responsible for all costs, expenses and damage associated with your use of the App or Services. Exclusion of warranties may not be valid in certain jurisdictions and for the purposes of this disclaimer, the interpretation of any liability exclusions shall be interpreted in accordance with Scots Law.
1.19 Subject to the terms and conditions of this User Agreement and Omega Diagnostics Ltd's policies and procedures, Omega Diagnostics Ltd shall use commercially reasonable efforts to provide the App in a manner that will not be disruptive. You acknowledge and agree that from time-to-time the App may be inaccessible or inoperable for reasons including, without limitation: (i) equipment malfunctions; (ii) periodic maintenance procedures or repairs that Omega Diagnostics Ltd may undertake from time to time; or (iii) causes beyond the reasonable control of Omega Diagnostics Ltd or that are reasonably unforeseeable by Omega Diagnostics Ltd, including, without limitation, interruption or failure of telecommunication or digital transmission links, hostile network attacks, network congestion or other failures. You acknowledge and agree that Omega Diagnostics Ltd is not liable for these periodic interruptions in availability of the App and further acknowledge that Omega Diagnostics Ltd does not guarantee access to the App on a continuous and uninterrupted basis.
1.20 Subject to clause 1.15 above, Omega Diagnostics Ltd hereby excludes all liability in respect of any loss or damage suffered by you and arising out of or in connection with the use of our App or the Services. Specifically, Omega Diagnostics Ltd is not liable for:
1.20.1 any effect which the use of our App or Services may have on any software you use.
1.20.2 damage that you could have avoided by following our advice to apply an update offered to you free of charge or for damage that was caused by you failing to correctly follow installation instructions or to have in place the minimum system requirements advised by us.
1.21 You agree and acknowledge that you are in a better position than us to foresee and evaluate any potential damage or loss which you may suffer in connection with your use of our Services; that we cannot adequately insure its potential liability to you; and that, accordingly, the exclusions and limitations contained in clauses 1.16 – 1.20 are reasonable. You also undertake at all times to mitigate any such damage or loss.
1.22 You agree to indemnify us against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by us, arising out of any breach of this User Agreement by you.
Security
1.23 You are responsible for the security of your account information and log in and password details. You should take all necessary steps to ensure that the password is kept confidential and secure and should inform Omega Diagnostics Ltd immediately if you have any reason to believe that your password has become known to anyone else, or if the password is being, or is likely to be, used in an unauthorised manner. You agree to accept responsibility for all activities that occur under your account or password and agree not to sell, transfer or assign your subscription or any rights granted to you by Omega Diagnostics Ltd. Omega Diagnostics Ltd shall not be liable for any loss or damage arising from your Failure to comply with this clause 1.23. If you allow third parties to access the Services through your username and password, you will indemnify Omega Diagnostics Ltd and its affiliates against any liability, costs, or damages, including legal fees, arising out of claims or suits by such third parties based upon or relating to such access and use.
Privacy
1.24 Omega Diagnostics Ltd shall, in making its services available, comply with its Privacy Policy relating to the privacy and security of the User Data: (https://www.myhealthtracker.co.uk/privacy). This Privacy Policy may be amended from time to time by Omega Diagnostics Ltd in its sole discretion. You shall be notified of any changes to the Privacy Policy.
User Data
1.25 Each User shall own all rights, title and interest in and to all of their User Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the User Data.
1.26 Omega Diagnostics Ltd shall follow its archiving procedures for User Data as set out in its Back-Up Policy (https://www.myhealthtracker.co.uk/privacy). In the event of any loss or damage to User Data, the sole and exclusive remedy shall be for Omega Diagnostics Ltd to use reasonable commercial endeavours to restore the lost or damaged User Data from the latest back-up of such User Data maintained by Omega Diagnostics Ltd in accordance with the archiving procedure described in its Back-Up Policy. Omega Diagnostics Ltd shall implement and maintain appropriate technical and organisational measures to protect User Data from loss or damage through the use of encryption and the enforcement of data access control policies, complying where applicable with statutory data protection obligations. Omega Diagnostics Ltd shall not be responsible for any loss, destruction, alteration or disclosure of User Data caused by any third party (except those third parties sub-contracted by Omega Diagnostics Ltd to perform services related to User Data maintenance and back-up).
Use of Data
1.27 You grant us the right to extract your User Data in an anonymised form for the following purposes only:
1.27.1 identifying marketing trends; or
1.27.2 identifying user patterns.
We confirm that the procedure adopted by us to anonymise the User Data is in line with good industry practice.
General
1.28 Any notice required or permitted to be given by either party to the other under this User Agreement shall be in writing in the English language and emailed/texted to the respective other party to the following contact addresses
1.28.1 Omega Diagnostics Ltd: the email address given for notices or other communication on our website.
1.28.2 User: the email address/SMS given for delivery/download of or your access to the App or to such other contact, email address/SMS as we each may hereafter specify to the other.
1.29 Notices will be deemed to have been duly given and received on the first working day following such emailing/texting, or if applicable, additionally provable (though not required) by a valid confirmed email/SMS from that recipient party or email acknowledgement that the email/SMS has been opened/received.
1.30 No waiver by Omega Diagnostics Ltd of any breach of this User Agreement by any User shall be considered as a waiver of any subsequent breach of the same or any other provision.
1.31 Even if we delay in enforcing this contract, we can still enforce it later. If we do not insist immediately that you do anything you are required to do under these terms, or if we delay in taking steps against you in respect of your breaking this contract, that will not mean that you do not have to do those things and it will not prevent us taking steps against you at a later date.
1.32 If any of the provisions of this Agreement are judged to be illegal or unenforceable, the continuation in full force and effect of the remainder will not be prejudiced. All clauses relating to licence and ownership, proprietary rights, confidentiality, warranties, non-exclusivity, non-solicitation and waiver shall survive the termination or expiry of this Agreement.
1.33 These terms represent the entire agreement between you and us in relation to the subject matter of these terms and neither of you nor us has relied upon any statement or representation made by the other in agreeing to enter this Agreement.
1.34 No party shall be liable to the other or be deemed to be in breach of the User Agreement by reason of any delay in performing, or any failure to perform, any of its obligations in relation to the Event, if the delay or failure beyond that party’s reasonable control. Without prejudice to the generality of the foregoing, the following shall be regarded as causes beyond either party’s reasonable control:
1.34.1 Act of God, explosion, flood, tempest, fire or accident;
1.34.2 epidemic or pandemic;
1.34.3 war or threat of war, sabotage, insurrection, civil disturbance or requisition;
1.34.4 acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority;
1.34.5 import or export regulations or embargoes;
1.34.6 bail-in measures taken by a regulatory or governmental authority to restructure a bank’s debts, the result of which is the confiscation of a depositor’s funds which would otherwise have been applied in satisfying the obligations of the depositor under the terms of this User Agreement;
1.34.7 strikes, lock-outs or other industrial actions or trade disputes (whether involving employees or either Omega Diagnostics Ltd or of a third party);
1.34.8 difficulties in obtaining raw materials, labour, fuel, parts or machinery; or
1.34.9 power failure or breakdown in machinery.
1.35 You may not assign this User Agreement or any of your rights and duties hereunder without the prior written consent of Omega Diagnostics Ltd. This User Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns
1.36 This User Agreement does not give rise to any third party rights under the Contract (Third party Rights) (Scotland) Act 2017 to enforce any term of this User Agreement.
Changes and Variations in the Agreement.
1.37 Omega Diagnostics Ltd reserves the right to amend this User Agreement at its sole discretion. Amendments can be made by the posting of changes to this page or by e-mail. It is your responsibility to understand any such changes. The continued use of the App will require that the User accepts any amendments to this User Agreement. Omega Diagnostics Ltd has no requirement to notify Users of these amendments beyond posting them to this User Agreement.
Governing Law
1.38 This User Agreement shall be governed by and construed in accordance with the laws of Scotland. We both agree to submit to the exclusive jurisdiction of the Scottish Courts.