GENERAL TERMS AND CONDITIONS OF USE FOR THE “PERSONA MEDICAL” APP
Thank you for using the “Persona Medical” app. This app is provided by Magnatone Hearing Aid Corp. dba Persona Medical, based at 170 N. Cypress Way, Casselberry, FL 32707 USA (“Persona”). Use of the app is subject to the following general terms and conditions of use (“Terms and Conditions of Use”). Please read the Terms and Conditions of Use carefully before using the app.
1. General / Functionalities of the Persona Medical app
1.1 The object of the contract is the free provision of the Persona Medical app by Persona.
1.2 Functionalities of the app include the operation of your hearing aids via a mobile end device (e.g. smartphone, tablet), in particular the adjustment of changes based on the situation or changes to sound, the selection of previously defined or customized stored hearing programs as well as the display of information specific to the hearing aid (e.g. battery status, name of the hearing aid).
1.3 Using the app, your hearing aids can be integrated into the functions of your mobile end device. These functions include the entertainment and communication functions that you use, such as audio streaming, telephone services and location services.
1.4 The Persona Medical app can only be used in conjunction with Persona Medical hearing aids by consumers of Persona Medical hearing aids.
1.5 Persona reserves the right to modify these Terms and Conditions of Use at any time effective for the future and to adapt them to align with technical or legal developments as well as new service offers. By using the app you agree to the Terms and Conditions of Use in the applicable version.
1.6 The provisions in these Terms and Conditions of Use also apply to any future versions of the Persona Medical app insofar as these new versions do not stipulate any modified terms.
2 Using the Persona Medical app
2.1 You must accept these Terms and Conditions of Use to use the Persona Medical app. Accepting these terms results in a contract between you and Persona covering the use of the app (“Persona Medical app contract”). You can access the text for these Terms and Conditions of Use at any time via the corresponding menu point in the Persona Medical app.
2.2 Only consumers as defined by the Federal Trade Commission are authorized to use the Persona Medical app.
2.3 The installation of the Persona Medical app and comprehensive use of all its functionalities requires that your mobile end device transmit data. The scope and frequency of the data transmission depend, among other things, on the type and scope of the use of the functionalities. The user shall bear all connection costs arising from data transmission. The amount of these costs will depend on the agreement between you and your respective provider. In the case of frequent use, a flat rate contract is recommended. The costs of setting up an appropriate Internet connection as well as maintaining it are borne by the user and are not part of the services provided by Persona. These costs fall solely under the contractual agreement between you and your Internet provider.
2.4 A compatible mobile end device is required to use the Persona Medical app. You can find the system requirements in the instructions of the respective app store (Apple App Store and Google Play Store). The Persona Medical app can be used on either iOS or Android mobile end devices.
3. Granting of rights
3.1 As part of the Persona Medical app contract, Persona grants you a non-exclusive, non-transferable and non-sublicensable right to run, display and use the Persona Medical app on your mobile end devices free of charge. The contractual use of the Persona Medical app comprises the installation, download, display and running of the Persona Medical app.
3.2 You are prohibited from sublicensing the Persona Medical app, loaning it out and/or distributing the Persona Medical app or the right to use the Persona Medical app in any other form. Neither shall you modify, translate, reverse engineer, decompile, disassemble or ascertain the source code in any other way or prepare any derivative works of the app. The provisions of the Copyright Act shall however remain unaffected. The software underlying the Persona Medical app is intended exclusively for your personal and not commercial use.
3.3 When downloading the Persona Medical app from a third-party provider such as the Apple Store or the Google Play Store, the corresponding terms of the respective third party shall also apply.
3.4 The conditions outlined above also apply to all updates/upgrades and program modifications for the Persona Medical app which are provided to you for download by Persona via the Apple Store or the Google Play Store, provided they are not the subject of a separate license agreement. In that case, only the provisions of the license terms valid for the respective update/upgrade or program change are relevant.
3.5 Should you violate any of the aforementioned terms of this section, Persona has the right to terminate the Persona Medical app contract with you in accordance with clause 11.2. In the case of termination, you are obligated to immediately and completely stop using the app and to delete any and all copies of the Persona Medical app installed on your mobile end devices.
3.6 Persona reserves the right to modify or completely stop providing the app at any time and for any reason, including but not limited to cases in which a third party supplier no longer makes services or content available or the contract between Persona and the respective provider has been terminated for any reason. If Persona discontinues providing the app, the license and your rights pertaining to this license end immediately. The warranty
and liability limitations associated with this contract, however, shall remain intact even after such termination.
4. Intellectual property rights to the Persona Medical app
4.1 Persona alone is entitled to the rights of use of the Persona Medical app. You as user assume no further rights other than the rights expressly granted to you in the Terms and Conditions of Use of the app.
4.2 All elements of the Persona Medical app, i.e. data and material including images, graphics, illustrations, designs, symbols, photos, texts and other figures (“Content”) are the property of Persona or are owned by the licensor of Persona and are protected by copyright, trademark law and/or other rights for the protection of intellectual property.
4.3 Any use and/or distribution of the content of the Persona Medical app that contravenes the provisions laid out in these Terms and Conditions of Use and without the prior express consent of Persona is in violation of the law, is prohibited according to these Terms and Conditions of Use and gives Persona the right to terminate the Persona Medical app contract with you in accordance with clause 11.2.
4.4 It is prohibited to use automated systems or software to extract data from the app, especially for commercial purposes.
5. Third-party services (e.g. Google Maps)
5.1 The Persona Medical app may contain links to third-party content, promotions, websites, services and resources (“third-party services”) that are not controlled by Persona and may allow links to these services or access to and use of these services.
Persona assumes no responsibility for the accessibility, technical usability and freedom of malware for the app, content or transmitted data. The same applies for the correctness, completeness or its suitability for specific purposes. While Persona strives to always be up to date, it is not obliged to update the content of the app.
Inasmuch as the Persona Medical app contains links to third-party websites, Persona has no influence on the current and future design or on the information contained in the linked pages and thus assumes no liability for same. You alone are responsible for the use of this third-party information. Should you determine that Persona has provided links to pages with illegal or questionable information, please notify Persona so they can remove the link as quickly as possible.
8. Termination of the Persona Medical app contract/Blocking the Persona Medical app
8.1 The user relationship for the Persona Medical app is in force indefinitely. You can stop using the app and thus the terminated Persona Medical app contract at any time by deleting the app from your mobile end device. Persona shall not be liable for loss of data (see clause 8.3).
8.2 Persona Medical is entitled to stop operating the app at any time in the future. This applies in particular when (i) it is no longer possible to download the Persona Medical app from the respective app store, (ii) system requirements have changed or (iii) there exist reasons which make it (economically) unreasonable for Persona Medical to continue the Persona Medical app contract. The latter may be the case if Persona is legally prohibited from providing the Persona Medical app, for example. Persona’s right to extraordinary termination shall remain unaffected thereby. Termination can take place in writing or via email.
9. Violation of these Terms and Conditions of Use
In all dealings with Persona you shall undertake to only use the Persona Medical app for purposes not in violation of these Terms and Conditions of Use, that do not violate United States law or infringe upon the rights of third parties. If you allow another person to use the Persona Medical app on your mobile end device, it is your responsibility to perform due diligence and inform that person about these Terms and Conditions of Use and to ensure that they are complied with adequately.
10. International Users
The App is controlled, operated and administered by Persona Medical from our offices within the USA. If you access the Service from a location outside the USA, you are responsible for compliance with all local laws. You agree that you will not use the Persona App in any country or in any manner prohibited by any applicable laws, restrictions or regulations.
You agree to indemnify, defend and hold harmless Persona Medical, its officers, directors, employees, agents and third parties, for any losses, costs, liabilities and expenses (including reasonable attorney’s fees) relating to or arising out of your use of or inability to use the App or www.personamedical.com services, any user postings made by you, your violation of any terms of this Agreement or your violation of any rights of a third party, or your violation of any applicable laws, rules or regulations. Persona Medical reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Persona Medical in asserting any available defenses.
In the event the parties are not able to resolve any dispute between them arising out of or concerning these Terms and Conditions, or any provisions hereof, whether in contract, tort, or otherwise at law or in equity for damages or any other relief, then such dispute shall be resolved only by final and binding arbitration pursuant to the Federal Arbitration Act, conducted by a single neutral arbitrator and administered by the American Arbitration Association, or a similar arbitration service selected by the parties, in a location mutually agreed upon by the parties. The arbitrator’s award shall be final, and judgment may be entered upon it in any court having jurisdiction. In the event that any legal or equitable action, proceeding or arbitration arises out of or concerns these Terms and Conditions, the prevailing party shall be entitled to recover its costs and reasonable attorney’s fees. The parties agree to arbitrate all disputes and claims in regards to these Terms and Conditions or any disputes arising as a result of these Terms and Conditions, whether directly or indirectly, including Tort claims that are a result of these Terms and Conditions. The parties agree that the Federal Arbitration Act governs the interpretation and enforcement of this provision. The entire dispute, including the scope and enforceability of this arbitration provision shall be determined by the Arbitrator. This arbitration provision shall survive the termination of these Terms and Conditions between you and Persona for the use of the Persona Medical app.
14. Class Action Waiver
Any arbitration under these Terms and Conditions will take place on an individual basis; class arbitrations and class/representative/collective actions are not permitted. THE RTIES AGREE THAT A PARTY MAY BRING CLAIMS AGAINST THE OTHER ONLY IN EACH’S INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PUTATIVE CLASS, COLLECTIVE AND/ OR REPRESENTATIVE PROCEED-ING, SUCH AS IN THE FORM OF A PRIVATE ATTORNEY GENERAL ACTION AGAINST THE OTHER. Further, unless both you and Persona agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
15 . Liability Disclaimer
15.1 Given the current state of technology, there is no guarantee that data communication via the Internet will always be error-free and/or available. In particular, maintenance work, reasons of safety and capacity, technical circumstances and events out of the jurisdiction of Persona can lead to the temporary unavailability of the Persona Medical app. In this respect, Persona shall not be liable for the constant and uninterrupted availability of the Persona Medical app.
15.2 Data collected by the app will be saved to your mobile end device. Persona Medical shall not be liable for loss of data if you delete your data or if you delete the app from your mobile end device.
15.3 Neither shall Persona Medical be liable for any technical faults on your mobile end device or crashing of the app.
15.4 THE INFORMATION, SOFTWARE, PRODUCTS, AND SERVICES INCLUDED IN OR AVAILABLE THROUGH THE APP MAY INCLUDE INACCURACIES OR TYPOGRAPHICAL ERRORS. CHANGES ARE PERIODICALLY ADDED TO THE INFORMATION HEREIN. MAGNATONE HEARING AID CORP. DBA PERSONA MEDICAL AND/OR ITS SUPPLIERS MAY MAKE IMPROVEMENTS AND/OR CHANGES IN THE APP AT ANY TIME.
15.5 PERSONA MEDICAL AND/OR ITS SUPPLIERS MAKE NO REPRESENTATIONS ABOUT THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, AND ACCURACY OF THE INFORMATION, SOFTWARE, PRODUCTS, SERVICES AND RELATED GRAPHICS CONTAINED ON THE APP FOR ANY PURPOSE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ALL SUCH INFORMA-TION, SOFTWARE, PRODUCTS, SERVICES AND RELATED GRAPHICS ARE PROVIDED “AS IS” WITH-OUT WARRANTY OR CONDITION OF ANY KIND. PERSONA MEDICAL AND/OR ITS SUPPLIERS HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS WITH REGARD TO THIS INFORMATION, SOFTWARE, PRODUCTS, SERVICES AND RELATED GRAPHICS, INCLUDING ALL IMPLIED WARRAN-TIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
16. Responsible authority and operator of the Persona Medical app
170 N. Cypress Way
Casselberry, FL 32707 USA
Telephone: (407) 339-2422
Email: [email protected]
17. Communication and support
17.1 Should you encounter problems when handling the hearing aids or the app, please contact your hearing care professional.
18.1 You are not authorized to transfer or relinquish your rights and duties from this Persona Medical app contract to third parties.
19.2 These Terms and Conditions of Use conclusively and fully regulate the mutual contractual obligations.
19.3 These Terms and Conditions of Use shall be governed by the laws of the State of Florida, USA.
19.4 Should individual provisions of these Terms and Conditions of Use be or become invalid, the effectiveness of the remaining provisions is hereby not affected. In this case, the parties shall undertake to agree upon an effective substitute clause which comes as close as possible to the invalid provision or the purpose for which the invalid provision was in place. The same applies in the case of a contractual gap.
As of: January 2021