Terms of Service

These Terms of Use (the “Terms”) form a binding agreement between you (including, if applicable, any legal entity which you represent or act for) (collectively, “you” or “User”) and DarioHealth, together with its affiliates and subsidiaries Labstyle Innovation Ltd, UpRight, Dario powered by wayForward, (collectively, “Dario”, “us”, “we”, “our”, or “Company”) and sets forth the terms and conditions governing your access to, and use of, Company websites (the “Site”), Company mobile applications (the “App”), hardware and software devices that we make available (“Devices”), and any services, applications, software, features, content, websites and/or linked pages, offered from time to time by Company in connection therewith, and any other product or service that links to these Terms (collectively, the “Services”). Please read these Terms carefully before using the Services. By accessing or using the Services, by clicking “I accept” or by installing or downloading the App on your mobile device, you agree to be bound by these Terms, as may be amended by us from time to time. If you do not agree to these Terms, please refrain from using the Site, App or the Services.

THESE TERMS CONTAIN A BINDING ARBITRATION PROVISION AND CLASS ACTION WAIVER. Please make sure you read these Terms along with our Privacy Policy (the “Privacy Policy”). Your use of the App, Site or Services shall be deemed to constitute your consent to be legally bound by these Terms and the Privacy Policy, incorporated by reference herein.

 

In the Terms, sometimes we make specific reference to DarioHealth, Dario powered by wayForward, or UpRight Services.  In such cases, those references apply only to the Services specified.  When we use the term ‘Services” generally, we mean all of our collective Services, including DarioHealth, Dario powered by wayForward and UpRight.

Changes To These Terms

We may revise and update these Terms from time to time in our sole discretion. All changes are effective immediately on the date that they are posted to the Services and/or otherwise made available through the Services, and apply to all access to and use of the Services thereafter. Your continued use of the Services following the posting of revised Terms means that you accept and agree to the changes. If you don’t agree to be bound by the updated Terms, then you may not use the Services and you may cancel your Account as described in these Terms.

Our Services

To use certain parts of the Services, you may be required to provide us with certain information, including personal information and health information.  To provide the Services, we may apply certain proprietary methodologies for analysis, processing and transmission of such information. The collection, aggregation and analysis of such information may enables us and approved third party medical providers to provide the Services to you. For details about how we collect and use your information, please see our Privacy Policy.

The Services include information regarding the Company as well as content such as contact information, videos, text, logos, images, data compilations, links, other specialized content, technical data, documentation, know-how, specifications materials, designs, data, the “look and feel” of the Services, algorithms, interface, GUI, interactive features related graphics, illustrations, drawings, animations, and other features obtained from or through the Services (collectively, “Our Content”). We reserve all rights in and to Our Content. You acknowledge that all of Our Content, accessed by you using the Services is at your own risk and you will be solely responsible for any damage or loss to you or any other party resulting therefrom.  To the full extent permitted by law, we make no representations, warranties or guarantees with respect to any of Our Content that you access on or through the Services.

 

DarioHeath Services:   Our DarioHealth Services offer an innovative digital solution for people with chronic conditions that utilizes sophisticated devices (hardware) and software, personalized coaching, and individual support designed to increase engagement and improve clinical outcomes as members work toward life-long behavior change.

 

The DarioHealth App offers health, fitness, and nutritional information, is designed for educational purposes only, and should not be relied upon for diagnostic or treatment purposes. The information provided might not be accurate, full, complete or effective. Accordingly it is not intended to be used for medical diagnosis or treatment or as a substitute for professional medical advice. You are highly advised to consult your physician or qualified health professional regarding any conditions you may have, and appropriate medical treatment. Individual symptoms, situations, and circumstances may vary.

 

Dario powered by wayForward Services:  Our Dario powered by wayForward Services assist Users with identifying potential emotional wellness and mental health challenges and coping with those challenges, including by (i) providing Users access to information relating to emotional wellness and mental health conditions, suggested behavioral treatment options, self-help tools, reminders, assessment reports, survey reports and related information and (ii) enabling users to communicate with third party psychologists, mental health practitioners, health coaches, and related behavioral health professionals (collectively, “Clinicians”). The Clinicians you communicate with may have privacy policies and privacy obligations that are different from those of DarioHealth and Dario powered by wayForward.  Please review these policies before agreement to receive services from the Clinicians.  As further described below, the behavioral health information and the Dario powered by wayForward Services are not medical, psychiatric, or other professional health care advice.  If you use the Dario powered by wayForward Services to obtain health care advice from Clinicians, your informed consent will be required.

NEITHER THE SERVICES GENERALLY NOR THE Dario powered by wayForward SERVICES PROVIDE MEDICAL, PSYCHIATRIC, OR OTHER PROFESSIONAL HEALTH CARE ADVICE; NOR ARE THEY INTENDED TO BE USED TO ASSESS HEALTH CONDITIONS OR SUBSTITUTE FOR PROFESSIONAL MEDICAL ADVICE, OR RELIED UPON FOR DIAGNOSIS OR TREATMENT. Any behavioral health information you receive via the Dario powered by wayForward Services is not medical advice, and is not reviewed or authorized by a physician or healthcare provider.  Use of the Dario powered by wayForward Services does not, and is not intended to, create or constitute, a physician-patient relationship with the Company, its officers, directors, employees, independent contractors, agents, or anyone acting on behalf of the Company. Use of the Dario powered by wayForward Services may offer certain potential benefits (e.g., automated reminders to engage in certain activities), but also presents certain potential risks (e.g., the behavioral health information does not take into account all the specifics of each user’s medical history, the Dario powered by wayForward Services are not able to exercise medical judgment, security protocols could fail, causing a breach of privacy of personal medical information, delays could be caused by malfunctioning of equipment or connections).

BY USING THE Dario powered by wayForward SERVICES, YOU REPRESENT AND WARRANT THAT YOU HAVE HAD THE OPPORTUNITY TO CONSIDER THE RISKS AND BENEFITS OF THE USE OF THE SERVICES, INCLUDING THE BEHAVIORAL HEALTH INFORMATION, AND THAT YOU HAVE PROVIDED VOLUNTARY INFORMED CONSENT TO USE THE Dario powered by wayForward SERVICES AND PROVISION OF THE SERVICES TO YOU.

 

UpRight Services:  The UpRight App offers tracking of your posture while using our UpRight sensor device, or our  “GO” & Necklaces & adhesives (for purposes of this section, each an “Upright Device”) and enables you to subscribe to receive content, training plans, exercises and instructions, articles, questionnaires, recommendations such as videos with exercises and stretches, and motivational content (the “Subscription Service“). The UpRight Device and the necklace accessory or a discreet wearable electronic sensor device which connects through Bluetooth 4.0 to your mobile device to track your posture. When you are slouching or sitting not in an upright posture the UpRight Device gently vibrates to remind you to correct your posture. In order to use the UpRight Device, you must first set it to the position that you feel is optimal for your posture. The UpRight Services may provide you with a personal training program that guides you to sit correctly through a certain period of time, which will be made available via the UpRight App and/or sent to you via email communications. The Subscription Service will be made available via the UpRight App and/or a Site designated by the Company. The UpRight Services may send you push-notifications. You can deactivate the push-notifications at any time by changing the notification settings on your Upright Device.

THE UPRIGHT SERVICES OFFER INFORMATION ABOUT YOUR POSTURE AND ARE DESIGNED AS A TOOL TO ASSIST IN IMPROVING YOUR POSTURE AND WELLBEING BUT ARE NOT INTENDED TO REPLACE CONSULTATION WITH A QUALIFIED HEALTHCARE PROFESSIONAL, AND ARE NOT INTENDED TO SERVE AS A SUBSTITUTE FOR ANY MEDICAL DIAGNOSIS OR TREATMENT.  YOU SHOULD ALWAYS CONSULT WITH A QUALIFIED PERSONAL MEDICAL ADVISOR.

 

Who May Use The Services

We may, in our sole discretion, refuse to offer the Services to any person or entity at any time.  You are solely responsible for ensuring that you comply with all laws, rules and regulations applicable to you in connection with your use of the Services.  You are prohibited from using the Services if your use of the Services is prohibited or conflicts with any applicable law.

Except as otherwise provided, minors between the ages of 13 and 18 may use the Services (or between the ages of 16 or 18 outside of the US), provided that (a) they and their parent/guardian agree to be bound by these Terms; and (b) their parent/guardian is supervising their use of the Services at all times.  Otherwise, you must be at least 18 years old, or the age of legal majority in your jurisdiction of residence, to download, register with and/or use the Services. Additionally, to use Dario powered by wayForward or UpRight Services, you must be at least 18 years old.  Under no circumstances may any user solicit or submit to us or the Services any personal information from children under the age of 13 (or age 16 if you are outside the US).  The Services are not intended to be used by children under the age of 13 (or under age 16 outside the US).

Registration and User Accounts

You may be required to create an account in order to use certain parts or features of the Services (“Account”). Your Account is personal to you, may be used only by you, and you may only have one Account at a time. By creating an Account, you give us permission to contact you about the Services and your use thereof.

You may not use a user name that is misleading or that includes any inappropriate language. We reserve the right to reject any user name and prevent the creation of an Account with any user name in our sole and absolute discretion.  By creating an Account you agree: (i) that the information you provided to create your Account is accurate and complete, (ii) to promptly update and maintain your information with us, and (iii) that the information you are providing is your own or you are providing it on behalf of someone who authorized you to provide their personal information to us for the purposes of communication related to our Services.

You acknowledge and agree that we rely on the user ID and password (the “Account Credentials”) to confirm whether Users accessing and using our Site, App or Services are authorized to do so.  Maintaining the confidentiality of your Account Credentials is your responsibility, and you are responsible for any activity performed by any use of your Account Credentials. You must notify us immediately at support@mydario.com if you become aware that your Account Credentials have been compromised, that your Account is being used without authorization, or of any other breach of security related to your Account. You are solely responsible and solely liable for all actions and activities that occur in your Account using your Account Credentials, and for any User Content (as defined below) uploaded to your Account.

Consent to Communications and Text Messaging

Consent to Communications. By using the Services or providing your contact information to us, you agree that we may communicate with you, including electronically, about the Services and your use thereof. If you wish to unsubscribe from marketing communications from us, please follow the unsubscribe instructions at the bottom of such communication.

SMS Text Messages and Push Notifications. When you register for the Services, we may send you an SMS text message containing a code in order to verify your phone number and may send further SMS text messages and push notifications (“Messages and Notifications”) in order to keep you informed about the Services. By using the Services, you agree to receive Messages and Notifications regarding your use of the Services. SMS text messages are for transactional purposes only. We will obtain your consent if we wish to send you marketing or promotional SMS text messages. Reply “STOP” to stop receiving SMS text messages. We may, however, continue to send you transactional messages such as tracking information or verification codes if you subscribe to additional products and provide your phone number related to those later transactions. Depending on your current carrier plan, you may incur charges for these Messages and Notifications and agree that we are not responsible for any failure of warranty by any such third party. We cannot control certain factors relating to message delivery. You acknowledge that, depending on your mobile carrier’s service, it may not be possible to transmit a text message to you successfully. We have no liability for transmission delays or message failures.

User Generated Content

You may be permitted to input, provide, or otherwise make available certain information in conjunction with any  Device or submit, share, upload, or otherwise make available certain information, messages (including “Messages” defined below), comments, posts, text, photographs, data and other materials  to the Services (collectively, the “User Content”). You represent and warrant that you own or have (and will continue to have) all the necessary licenses, rights, consents, and permissions to use and provide such User Content to us and that such User Content, and our use of such User Content, does not infringe any third party’s intellectual property, privacy, publicity or other rights. Your further represent and warrant that we will not need to obtain licenses from any third party or pay royalties to any third party in order to use such User Content.  You grant to us a worldwide, perpetual, irrevocable, non-exclusive, sublicensable (through multiple tiers), transferable, royalty-free license and right to use, copy, transmit, distribute, publicly perform and display (through all media now known or later created), edit, modify, and make derivative works from your User Content (including, without limitation, translations) for any purpose whatsoever, commercial or otherwise, without compensation to you, to the extent permitted by applicable law.  In addition, you waive any so-called “moral rights” or rights of privacy or publicity in your User Content.  You shall have the sole responsibility for the legitimacy, accuracy and legality of any User Content you submit to us.

You represent and warrant that your User Content is complete and accurate and accurately reflects your use of our Services. We shall have no liability for any loss, damage, cost or expense that you or any third party may suffer or incur as a result of, or in connection with, uploading any User Content. You agree that you will not post or upload any User Content that: (i) infringes, misappropriates or violates a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) is fraudulent, false, misleading or deceptive; (iv) is defamatory, obscene, pornographic, vulgar or offensive; (v) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (vi) is violent or threatening or promotes violence or actions that are threatening to any person, animal, or entity; (vii) exploits minors or (viii) promotes illegal or harmful activities or substances. We have no obligation to screen, edit or monitor any of your User Content, and we explicitly reserve the right to remove and/or edit any User Content on the Services at any time without notice, and for any reason, and you are solely responsible for creating backup copies of your User Content at your sole expense. We may, at our sole discretion, terminate Accounts or remove User Content from the Services if we determine, or suspect, that those Accounts or User Content violate these Terms, any law, or the rights of any third party.

Use Restrictions
For purposes of these Terms, “Content” means all text, graphics, images, music, software, audio, video, works of authorship of any kind, and information or other materials that are posted, generated, provided or otherwise made available through the Services. The Services includes all Content.

You acknowledge and agree that you may not (a) make available or use the Services for the benefit of any third party; (b) sell, resell, license, sublicense, distribute, make available, rent or lease the Services, or exploit the Services for any commercial purposes; (c) use any Services, or any Third Party Services (as defined below), to store or transmit any illegal, immoral, unlawful and/or unauthorized materials or interfere with or violate a third party’s rights to privacy and other rights, or harvest or collect personally identifiable information about third parties without their express consent; (d) use the Services, or any Third Party Services (as defined below), to transmit or otherwise make available any malicious code, including any virus, worm, trojan horse, time bomb, web bug, spyware, or any other computer code, file, or program; (e) interfere with or disrupt the integrity, performance or operation of the Services, or any part thereof; (f) attempt to gain unauthorized access or bypass any measures imposed to prevent or restrict access to the Services; (g) use or take any direct or indirect action that imposes or circumvents any usage limits; (h) copy, modify, distribute, create derivative works, translate, port, reverse engineer, decompile, or disassemble any portion of the Services, or any material that is subject to our proprietary rights or use any of the foregoing to create any software or service similar to the Services; (i) use any User Content of any user or other third party appearing on or through the Services, without our prior written consent; and (j) misrepresent or impersonate any person or provide inaccurate User Content. Any breach of the Terms by you, as shall be determined in our sole discretion, may result in the immediate suspension or termination of your Account, with full reservation of all of our rights and remedies.

Fees

We will provide information on our then-current fees for the Services on the Sites and/or by other means through the Services.  Features and prices are subject to change.  If you purchase a subscription to use the Services, unless otherwise stated, your subscription shall automatically renew at the end of your subscription term for the same number of months as the expiring subscription term, unless cancelled by you in advance as described below.

You may cancel your subscription at any time within your account settings or by contacting us using the contact information provided in these Terms. Your cancellation will take effect immediately or on a date requested by you, and we shall refund a pro-rated portion of any subscription fees pre-paid by you for any unused portion of your then-current subscription term.

In connection with your download, use of, and/or subscription to the Services, you agree to pay all applicable fee(s), taxes and other charges.  You may be asked to provide a payment method (such as a credit, charge or debit card number) in order to activate your account or subscription, along with other payment information, to one of our third party payment processor(s) as described in more detail in the Privacy Policy. You authorize us and our payment processor to charge your payment method for your subscription to the Services, including any recurring charges for automatic renewal of your subscription, and for any other products or services you may purchase from us.

Membership Program Terms

We may provide various membership programs as specified on our shop for independent consumer purchase.  No insurance coverage is necessary, and no prescriptions or co-pay programs are required in order to become a member. Additional terms may apply.

In some cases, memberships are offered through specific contracted employer groups and health plan entities. Qualified participants are notified of eligibility and may enroll as long as deemed eligible from said employer group or health plan. Membership continues until you cancel or are no longer affiliated with the employer or health plan under which you became eligible. Associated costs under this membership are paid directly by the employer group or health plan. You are entitled to participate in and receive a Device, App, or Service for whichever solution(s) outlined in the contract between us and your employer group or health plan. You can get more information about your eligibility by contacting your employer group or health plan.

Throughout the term of your membership in any of our diabetes offerings, glucometer test strips will be shipped based on your frequency of use (please note that our algorithm determines this, and we do not warrant that such algorithm is error-free or has no vulnerabilities.)
In the event that you need test strips sooner, you may contact our support team by calling us at 1-800-895-5921, Monday through Friday 9AM-9PM Eastern Standard Time.

An independently purchased membership will renew automatically upon the end of the membership term. If you wish to cancel your membership, please visit our
Refund and Cancellation Policy.
If we determine, in our sole discretion, that you are using Company products or Services in a misleading, fraudulent or deceptive manner, you hereby agree and acknowledge that we may suspend or cancel your membership at any time.

Membership Loyalty Plan Terms – for DarioHealth Glucometer Users Only

This section applies to Membership Loyalty Plan (the “Plan”) Participants (“Participants”). The Plan is offered by us at our sole discretion. Information about the program is posted on the Site and App or may be obtained by calling 1-800-895-5921. All new Participants in the Plan must accept its terms before they may participate. Except as otherwise expressly prohibited or limited by applicable laws, we may, at any time and with or without notice, modify, amend, supplement, or terminate the Plan and/or its terms. Any such modification, amendment or supplement will be posted on our Site and App. Participants should regularly check the Site and App for any modifications, amendments, or supplements to the Plan and/or its terms. Should the Plan be terminated, all unredeemed Healthies (our rewards program points) will be forfeited without any obligation or liability of Dario, and no Healthies will be honored after the conclusion of the termination notice period, if such a period is announced.

If Dario determines that a Participant has abused any of the Plan’s privileges, failed to comply with any of the Terms, or has made any misrepresentation to Dario, Dario may, in its sole discretion, take such actions as it deems appropriate, including without limitation, suspending such Participant’s privileges under the Plan, revoking any or all of the Healthies in such Participant’s account, and/or revoking the Participant’s participation in the Plan, in each case, with or without advance notice to the Participant, and without liability to Dario.

Throughout the term of your membership in any of our diabetes offerings, glucometer test strips will be shipped based on your frequency of use (please note that our algorithm determines this, and we do not warrant that such algorithm is error-free or has no vulnerabilities.)

In the event that you need test strips sooner, you may contact our support team by calling us at 1-800-895-5921, Monday through Friday 9AM-5PM Eastern Standard Time.

Earning Healthies.  Details on how Participants in the Plan can earn and redeem Healthies is described on the Site and App, via ‘My Profile’.

Use of Healthies.  Plan Participants may redeem their Healthies against vouchers that may be used to obtain certain products available on the App, Participants will receive vouchers at their registered email address with a link that may be used to obtain products through the Dario Shop. Participants retain any Healthies earned while in membership status, even if they subsequently cancel their membership plan.  Upon redemption of Healthies, the Healthies will immediately be deducted from the Participant’s account. Once Healthies are redeemed, they cannot be credited back to a Participant’s account. Healthies have no fixed value, may not be redeemed for cash, and are not transferable to any other individual or entity. Any transfer or attempt to transfer Healthies may result in automatic revocation of the Participant’s Healthies. Dario will not compensate or pay cash for any forfeited, revoked, or unused Healthies.

Vouchers expire one [1] year from the date the voucher is issued. All vouchers must be used by their expiration date to be honored by us.

Participants may not make any commercial use of products purchased through the Plan.

No Refunds.  Products purchased in whole or part using vouchers, and vouchers obtained with Healthies are non-refundable.

Monitoring Participants’ Accounts. Dario reserves the right to monitor the Healthies accounts of all Participants, at any time and without notice, for compliance with terms of the Plan. Dario also may review all Participants’ Healthies balances and transaction history.

Taxes. The Plan is offered to Dario customers free of charge. Healthies may be subject to income or other taxes. The Participant is responsible for paying all such taxes and for making all applicable disclosures to third parties. Dario will not be liable for any tax liability, duty or other charges in connection with the issuance of Healthies.

Not Responsible for Acts, Errors, or Omissions.  Dario is not responsible for: (a) any loss or misdirection of, or delay in receiving, any Participant’s application or Participant’s acceptance of Plan terms or conditions, correspondence, redemption requests or Healthies; (b) theft or unauthorized redemption of Healthies; (c) any acts or omissions of third parties; or (d) any errors in published materials involving the Plan, including, without limitation, any product pricing or typographical errors, errors of description, errors in the redemption and crediting of Healthies from a Participant’s account, and errors in the issuance of vouchers. Without derogation of the foregoing, Dario reserves the right to correct any such errors.

Please contact our support team at any time by calling us at 1-800-895-5921, if you have any questions about the Plan.

Third Party Services and Social Media

We or third parties may offer you third party services as part of the Services (the “Third Party Services”), including but not limited to third party coaching services.  Your use of the Third Party Services is subject to such terms and conditions and specifications offered by each provider of Third Party Services. You acknowledge that we are not the provider of any Third Party Services, nor are we responsible for or endorse any Third Party Services. All Third Party Services are made available “as is” and we make no representation or warranty with respect to them, and we are not responsible for any loss, damage, injury or other matters or any sort incurred as a result of your use of Third Party Services and your interactions and dealings with their providers.

When we make available to our users certain social media features through Facebook, Twitter, Instagram, or other social media sites, you may take such actions as are enabled by those features.  Please be aware that your activities on social media sites, or facilitated by or through social media sites, are subject to the terms and conditions of the applicable social media site(s).  Any Content (including your User Content) provided to social media sites may be processed and used by the applicable social media sites in accordance with their policies and any agreements with us.

Termination or Suspension

You may stop using the Services at any time.  You may also delete your Account at any time. To delete your Account please contact us at: support@mydario.com.  We may verify your request before taking action.

If you cancel or delete your Account, we have no obligation to keep or retain any data or information, including User Content, in your Account, and such data and information, including User Content, may be deleted. We have no liability for the loss of any User Content or data or information in Account when you delete your Account.

Termination of your Account or relationship with us shall not relieve you of your obligations to pay fees or amounts accrued or owing, nor affect any legal rights or obligations which may have arisen under these Terms prior to, or at, the date of termination. We may terminate, limit or suspend your access to all or any part of your Account, or our Services at any time, with or without cause, or with or without prior notice, effective immediately, and such termination may result in the deletion of all information and data, including User Content, associated with your Account and your use of the Services.  Upon termination of your Account: (i) all rights granted to you hereunder will automatically terminate, and (ii) you must immediately cease all use of the Services. All Sections of these Terms which by their nature are meant to survive, shall survive termination of these Terms.

No Medical Advice

DARIO IS NOT A HEALTH CARE PROVIDER AND CANNOT AND DOES NOT DIAGNOSE OR TREAT YOUR HEALTH CONDITIONS. WE PROVIDE NO ENDORSEMENT, REPRESENTATION OR WARRANTY THAT ANY PARTICULAR MEDICATION OR TREATMENT IS OR WILL BE EFFECTIVE OR RIGHT FOR YOU.  The Services, including, but not limited to, all Content obtained from the Services and its licensors, are not intended to be used or viewed as providing medical advice, or as a substitute for consultation with a qualified healthcare provider. The information provided by the Services cannot be the basis for diagnosis of any medical condition or therapy. You are advised to ALWAYS SEEK THE ADVICE OF YOUR DOCTOR OR OTHER QUALIFIED HEALTHCARE PROVIDER REGARDING ANY MEDICAL CONDITION AND BEFORE STARTING ANY NEW TREATMENT OR ALTERING YOUR EXISTING TREATMENT. THE SERVICES ARE NOT INTENDED AS A SUBSTITUTE FOR PROFESSIONAL ADVICE FROM A QUALIFIED HEALTHCARE PROVIDER FAMILIAR WITH YOUR UNIQUE FACTS AND MEDICAL HISTORY. NEVER DISREGARD PROFESSIONAL MEDICAL ADVICE OR DELAY IN SEEKING IT BECAUSE OF SOMETHING YOU READ OR LEARNED FROM THE SERVICES. IF YOU ARE EXPERIENCING A MEDICAL EMERGENCY, YOU SHOULD DIAL “911” OR YOUR LOCAL EMERGENCY SERVICES NUMBER IMMEDIATELY. 

Materials and Content provided as part of the Services are intended to assist you in understanding your health. Reliance on any information provided through the Services is solely at your own risk. We assume no liability or responsibility for damage or injury to persons or property arising from any use of any materials, Content, product, information, ideas, or advice contained in the Services.

You further acknowledge that certain services provided through the Services, including any notifications, depend on information that you input into the Services. We do not recommend or endorse any drug or product, and notifications are not guidance regarding dosing information. The provision of notifications, reminders or alerts with respect to any drug or product is not a recommendation or endorsement. The absence of a notification, reminder, warning and/or alert does not, and should not, be construed to indicate that any activities, food, drugs or other health recommendations are appropriate or effective.

Disclaimer

THE SERVICES AND OUR CONTENT ARE PROVIDED ON AN “AS IS” BASIS. WITHOUT LIMITING THE FOREGOING, WE EXPLICITLY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, REGARDING ANY DEVICE, SITE, APP, SERVICES AND OUR CONTENT, INCLUDING ANY WARRANTIES OF QUALITY, AVAILABILITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. WE MAKE NO, AND DISCLAIM ANY, WARRANTY THAT ANY DEVICE, SITE, APP, SERVICES OR OUR CONTENT WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. WE MAKE NO, AND DISCLAIM ANY, WARRANTY REGARDING THE QUALITY OF ANY DEVICE, SITE, APP, SERVICES OR OUR CONTENT, OR TO THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY THEREOF. THE ABOVE SHALL ALSO APPLY TO ANY INFORMATION YOU MAY RECEIVE FROM US OR THROUGH US AT ANY TIME. YOU HEREBY RELEASE US FROM ANY DAMAGES, CLAIMS OR OTHER CAUSES OF ACTION RELATED IN ANY WAY, DIRECTLY OR INDIRECTLY, TO ANY DEVICE, SITE, APP, SERVICES OR OUR CONTENT.

WITHOUT LIMITING THE FOREGOING, WE FURTHER DISCLAIM ANY WARRANTIES THAT ANY DEVICE, SITE, APP AND/OR SERVICES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOUR USE OF ANY DEVICE, SITE, APP AND SERVICES IS AT YOUR OWN RISK, AND YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER OR MOBILE DEVICE AND/OR ANY DATA LOSS THAT MAY RESULT FROM YOUR USE OF ANY DEVICE, SITE, APP OR SERVICES, INCLUDING WITHOUT LIMITATION, DAMAGE RESULTING FROM COMPUTER VIRUSES. NO COMMUNICATION, INFORMATION OR ADVICE GIVEN BY US OR ANY REPRESENTATIVE OF OURS SHALL CREATE ANY WARRANTY. PLEASE NOTE THAT SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, AND THEREFORE SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. THIS DISCLAIMER CONSTITUTES AN ESSENTIAL PART OF THESE TERMS.

NO CONTENT PUBLISHED ON ANY DEVICE, SITE OR APP, OR THROUGH THE SERVICES, CONSTITUTES A RECOMMENDATION, ENDORSEMENT OR OPINION OF COMPANY. YOU ARE SOLELY AND EXCLUSIVELY RESPONSIBLE FOR ALL YOUR COMMUNICATIONS AND INTERACTIONS WITH US OR WITH ANY PERSON OR ENTITY WITH WHOM YOU MAY COMMUNICATE, INTERACT OR ENGAGE AS A RESULT OF YOUR USE OF ANY DEVICE, SITE, APP AND/OR SERVICES. YOU AGREE AND CONFIRM THAT WE DO NOT, AND DO NOT INTEND TO, MAKE ANY INQUIRIES OF ANY USER, PERSON OR ENTITY OR VERIFY THE INFORMATION ANY USER, PERSON AND/OR ENTITY SUBMITS OR PROVIDES WHILE USING ANY DEVICE, SITE, APP AND/OR SERVICES. YOU AGREE TO TAKE PRECAUTIONS IN ALL COMMUNICATIONS AND INTERACTIONS WITH ANY PERSON OR ENTITY WHETHER MADE ON-LINE OR OFF-LINE.

BY USING THE SERVICES, YOU REPRESENT AND WARRANT THAT YOU HAVE HAD THE OPPORTUNITY TO CONSIDER THE RISKS AND BENEFITS OF THE USE OF THE SERVICES, AND THAT YOU HAVE PROVIDED VOLUNTARY INFORMED CONSENT TO USE THE SERVICES AND PROVISION OF THE SERVICES TO YOU.

Limitation of Liability
In the event of any problem with the Services and/or any Content, you agree that your sole remedy is to cease using the Services. In no event shall we or our subsidiaries, affiliates, directors, officers, employees or any party involved in creating or producing the Services be liable to you for (a) any amount exceeding the fees paid by you to us during the twelve (12) months preceding the occurrence of events giving rise to your claim, or $100 if no fees have been paid by you to us, or (B) any special, indirect, incidental, consequential, punitive or exemplary damages, or any other damages whatsoever, resulting from the use of the Services (or with the delay or inability to use the Services) or any Content or otherwise arising out of using the Services and Content, whether under a theory of breach of contract, tort, strict liability, negligence, or otherwise, even if such party has been advised of the possibility of such damages.  If you live in a jurisdiction that does not allow the exclusion or limitation of liability for consequential or similar damages, the above limitation does not apply to you.

To the extent that one or any aspect of limitations set out above does not apply, all remaining aspects survive.  The exclusions and limitations of damages set forth above are fundamental elements of the basis of the bargain between us and you.

Indemnity
You agree to defend, indemnify, and hold harmless Company, its affiliates and each of its affiliates employees, contractors, directors, suppliers and representatives from all liabilities, losses, claims, and expenses, including, without limitation, reasonable attorney’s fees, that arise from or relate to (i) your access, use or misuse of the Services, including, without limitation, with respect to your User Content and any other information you submit, post or transmit through the Services, (ii) your violation of these Terms or any applicable law, contract, policy, regulation or other obligation, or (iii) your violation of any third party rights, including without limitation any intellectual property rights or privacy right of such third party with respect to your use of the Services. Company reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will assist and fully cooperate with Company in connection therewith.

Intellectual Property

Subject to the limited rights expressly granted hereunder, we and our licensors and third party providers, as may be applicable, reserve all rights, title and interest in and to the Services and Our Content, including all related intellectual property rights therein. No rights are granted to you hereunder other than as expressly set forth herein. Nothing in the Terms constitutes a waiver of the Company’s intellectual property rights under any law.

Feedback and Suggestions

Subject to any applicable terms and conditions set forth in our Privacy Policy, any communication or other material that you send to us, such as any questions, comments, feedback, suggestions, testimonials, or the like, is and will be deemed to be non-confidential and we shall have no obligation of any kind with respect to such information. We shall be free to use any ideas, concepts, know-how or techniques contained in such communication for any purpose whatsoever, including but not limited to, operating, developing, and improving the Services. As further described herein, you are solely responsible for all information you send to us, including, without limitation, its accuracy, truthfulness and non-infringement of any other party’s legal rights.

Trademarks and Trade Name
“Labstyle”, “DarioHealth”, “Dario”, “MyDario”, “mydario.com”, “dariohealth.com”, “UpRight ”, “Dario powered by wayForward”, and any  associated names, marks and logos and all proprietary identifiers used by us in connection with any Device, Site, App and/or Service are our trademarks, service marks and trade names of Company, whether or not registered. No right, license, or interest to such marks is granted hereunder. Other names that are mentioned on any Device, Site and/or App or provided as part of the Services may be trademarks of their respective owners. We reserve all rights that are not expressly granted to you hereunder.

App Usage Rules

If you are downloading the App from a third-party platform, service provider or distributor (“Provider”) your use of the App may also be governed by usage rules which the Provider may have established, and which relate to your use of the App (“Usage Rules”). In addition to the Usage Rules specified below, it is your responsibility to determine what other Usages Rules are applicable to your use of the App. You undertake to comply with all Usage Rules applicable to your use of the App and these are incorporated herein by reference.

Apple Inc.  The following applies to you if you downloaded the App from the Apple App Store (“App Store Sourced Application”): You acknowledge and agree that (i) these Terms are concluded between you and Company only, and not Apple; and (ii) Company, not Apple, is solely responsible for the App Store Sourced Application and content thereof. Your use of the App Store Sourced Application must comply with the App Store Terms of Services. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application. You acknowledge that, to the maximum extent permitted by applicable law, Apple has no other warranty or obligation whatsoever with respect to the Application and all other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty shall be the sole responsibility of Company, to the extent applicable. As between Company and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Company. You acknowledge 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. You and Company acknowledge that, as between Company and Apple, Apple is not responsible for addressing any claims you have or any claims of any third party relating to the App Store Sourced Application or your possession and use of the App Store Sourced Application, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. You and Company acknowledge that, in the event of any third-party claim that the App Store Sourced Application or your possession and use of that App Store Sourced Application infringes that third party’s intellectual property rights, as between Company and Apple, Company, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by these Terms. You and Company acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of these Terms as related to your license of the App Store Sourced Application, and that, upon your acceptance of the Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms as related to your license of the App Store Sourced Application against you as a third-party beneficiary thereof. Without limiting these Terms, you must comply with all applicable third party terms of agreement when using the App Store Sourced Application.

Changes to the Services
We reserve the right to modify, correct, amend, enhance, improve, make any other changes to, or discontinue, temporarily or permanently the Services or any part thereof, without notice, at any time. You agree that your continued use of the Services following such modifications constitutes your acceptance of such modifications. We shall not be liable to you or to any third party for any modification, suspension, or discontinuance of the Services and/or Our Content included therein.

If we supply to you any updates, upgrades and any new versions of the App according to its then current policies, it may include automatic updating or upgrading of the App with or without any additional notice to you and these Terms will govern any such updates unless these are accompanied by a separate license agreement which will prevail, and all references herein to the App shall include such updates. For clarity, Company has no obligation to provide updates.

Status and announcements for the DarioHealth infrastructure are available through the following link: https://status.mydario.com

  1. Security
    DarioHealth Corp. uses commercially reasonable physical, technical and administrative security measures and safeguards to protect the Services. However, since the Internet is not a 100% secure environment, we cannot guarantee, ensure, or warrant the security of the Services or of any User Content or information you transmit to us.
  2. Planned maintenance window
    Planned maintenance to the Services, if required, will typically happen during the standard weekly maintenance windows on Sunday 2:00-9:00 EST, or at other times as determined by DarioHealth. Certain Services may be temporary not available during maintenance. The Dario App can work “offline” and will not be affected from such maintenance.

ARBITRATION CLAUSE & CLASS ACTION WAIVER – APPLICABLE TO THE FULLEST EXTENT PERMITTED BY LAW

Mandatory Arbitration of Disputes.  Any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be determined by arbitration in New York, New York, United States of America, before one arbitrator.  If the dispute, claim or controversy exceeds $250,000, the arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures (the “Rules”), and if not, the arbitration shall be administered by JAMS pursuant to the Rules and in accordance with the Expedited Procedures or similar process set forth in the Rules.  Judgment on the award may be entered in any court having jurisdiction.  This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction.

Attorney’s Fees.  In any arbitration arising out of or related to these Terms, the arbitrator shall award to the prevailing party, if any, the costs and attorneys’ fees reasonably incurred by the prevailing party in connection with the arbitration.  If the arbitrator determines a party to be the prevailing party under circumstances where the prevailing party won on some but not all of the claims and counterclaims, the arbitrator may award the prevailing party an appropriate percentage of the costs and attorneys’ fees reasonably incurred by the prevailing party in connection with the arbitration.

Class Action Waiver.  YOU AND DARIO AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY IN AN INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.  Further, if the parties’ dispute is resolved through arbitration, the arbitrator may not consolidate another person’s claims with your claims and may not otherwise preside over any form of a representative or class proceeding.

Governing Law And Jurisdiction

These Terms shall be governed by the laws of the State of New York, United States of America, without regard to principles of conflicts of law.  The Uniform Commercial Code, the Uniform Computer Information Transaction Act, and the United Nations Convention of Controls for International Sale of Goods shall not apply.

 

Exclusive jurisdiction for all disputes that are not required to be arbitrated will be the state and federal courts located in New York, New York, United States of America, and you consent to the jurisdiction of those courts.

 

Notice To International Users

The Services are operated from the United States and international users of the Services agree to be subject to applicable laws in the United States as set forth in the GOVERNING LAW AND JURISDICTION section above.  Please note that other countries may have laws and regulatory requirements that differ from those in the United States, and if you access the Services from outside the United States, you do so on your own initiative and are responsible for compliance with all local laws.

 

General Terms
These Terms do not create any partnership, employment, agency or other relationship not herein specifically and explicitly stated. These Terms are not intended to, and shall not, be construed to give any third party any interest or rights (including, without limitation, any third party beneficiary rights) with respect to, or in connection with, any agreement or provision contained herein or contemplated hereby. We may assign this Agreement in whole or in part at any time without notice. You may not assign your rights under these Terms, in whole or in part, to any third party without our prior written consent, and any attempt by you to do so shall be null and void. Should any part of these Terms be held invalid or unenforceable, that portion will be construed consistent with applicable law and the remaining portions will remain in full force and effect. Failure by us to enforce any provision of these Terms will not be considered a waiver of the right to enforce such provision. Our rights hereunder will survive any termination or expiration of these Terms. Unless a specific agreement is signed by and between you and us, these Terms constitute the entire and only agreement between you and us, and supersede all prior or contemporaneous agreements, representations, warranties and understandings that relate to the subject matter hereof. In any case where a specific agreement is signed by you and us, its provisions shall supersede the provisions of these Terms.

Force Majeure

Neither you nor us shall be liable for any failure or delay in performance under these Terms (other than for delay in the payment of money due and payable in accordance with these Terms) for causes beyond the party’s reasonable control and not caused by that party’s fault, or negligence, including, but not limited to, “acts of God”, acts of government, flood, fire, civil unrest, acts of terror, pandemics and epidemics, strikes or other labor problems, computer attacks or malicious acts, such as attacks on or through the internet, any internet service provider, telecommunications or hosting facility.

 

Contact Us

If you have questions regarding our Terms, please contact us at: info@mydario.com

Last updated 12/13/2021

All rights reserved, DarioHealth Corp.