mContain Terms of Use

Last updated May 11, 2020.

AGREEMENT TO TERMS

This is a legally binding agreement between you, whether personally or on behalf of another, (you or your) and the Center of Excellence for Mobile Sensor Data-to-Knowledge at the University of Memphis (MD2K, we, us, or our) concerning your use of the Platform.

PLEASE READ THESE TERMS OF USE CAREFULLY. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS OF USE, YOU ARE PROHIBITED FROM USING THE PLATFORM AND YOU MUST DISCONTINUE USE IMMEDIATELY.

IN THE EVENT OF A MEDICAL EMERGENCY, PLEASE CALL EMERGENCY SERVICES. THE PLATFORM IS INTENDED FOR INFORMATIONAL PURPOSES ONLY AND IS NOT DESIGNED FOR USE IN THE DIAGNOSIS OR TREATMENT OF DISEASES OR OTHER CONDITIONS. WE DO NOT AND CANNOT PROVIDE MEDICAL ADVICE. NO CONTENT IS INTENDED TO SERVE AS A SUBSTITUTE FOR MEDICAL ADVICE. PLEASE CONSULT YOUR HEALTHCARE PROVIDER PRIOR TO MAKING ANY DECISIONS RELATED TO YOUR HEALTH.

THE PLATFORM IS INTENDED FOR THOSE RESIDING IN THE UNITED STATES WHO ARE EITHER 18 AND OVER, OR 13 AND OVER WITH THE PERMISSION OF A PARENT OR GUARDIAN. THE PLATFORM IS NOT TO BE USED BY RESIDENTS OF OTHER LOCATIONS, INCLUDING THE EUROPEAN UNION OR THE EUROPEAN ECONOMIC AREA.

We may make changes to these Terms of Use. We will alert you about changes by updating the “Last updated” date and by displaying on the Website, for 30 days after changes are made, a notice stating that the Terms of Use have been updated. You will not receive specific notice of each change. You will be subject to the changes by continued use of the Platform.

These Terms of Use remain in effect unless and until you uninstall the Mobile App from all your devices, and you cease to access the map data on the Website.

DEFINITIONS

“Affiliate” means, as to a party, any other entity that directly or indirectly controls, is under common control with, or is controlled by, such party; as used in this definition, “control” and its derivatives mean possession, directly or indirectly, of power to direct the management or policies of an entity.

“Documentation” means all documentation (whether printed or in an electronic retrieval format) supplied or made available to User by MD2K for use with or in support of the Platform or its implementation, including without limitation any and all revisions, modifications, and updates thereof as may be supplied or made available by MD2K to User while these Terms of Use are effective and all copies thereof made by or on behalf of User.

“Licensed Materials” means the Platform and the Documentation, including any University Content contained therein.

“Loss” means all losses, liabilities, damages, awards, settlements, claims, suits, proceedings, costs and expenses (including reasonable legal fees and disbursements and costs of investigation, litigation, expert witness fees, settlement, judgment, interest, and penalties).

“Platform” means the online services and mobile application offered by MD2K. It includes the mContain mobile application (Mobile App) and its associated websites (mcontain.com, mcontain.info, mcontain.org, and mcontain.md2k.org) (Website), together with any associated software applications, database structures and queries, interfaces, tools, and the like, together with any and all revisions, modifications, and updates thereof, as made available by MD2K to User pursuant to these Terms of Use.

“User” means any entity that uses or accesses the Platform.

“User Data” means all data entered into the Platform by or on behalf of User, as such data is maintained in the Platform from time to time, including any information disclosed by User’s health care providers, including COVID-19 testing centers.

INTELLECTUAL PROPERTY RIGHTS

Unless otherwise indicated, the Licensed Materials are our proprietary property and all source code, databases, functionality, software, website designs, audio, video, text, photographs, and graphics (Content) and the trademarks, service marks, and logos contained therein (Marks) are owned or controlled by us or licensed to us, and are protected by copyright and trademark laws and various other intellectual property rights and unfair competition laws of the United States, foreign jurisdictions, and international conventions. You acknowledge that the foregoing constitutes valuable assets and may also constitute trade secrets.

You may suggest, and other parties may discover, create, find, or invent, improvements or ideas that we may incorporate into the Licensed Materials or other of our products or services. But even if we incorporate such suggestions, discoveries, creations, findings, or inventions into our Licensed Materials, whether or not these items are patentable, the Licensed Materials, even with the incorporations, shall be and remain solely our property and may be used, sold, licensed, or otherwise provided by us to third parties, or published or otherwise publicly disclosed, without notice, attribution, payment of royalties, or liability to you.

You acknowledge and agree that we have and retain exclusive and valid ownership of all anonymized statistical information regarding your use of the Licensed Materials. You assign to us any and all right, title, and interest in such information.

The Content and the Marks are provided “AS IS” for your information and personal use only. Except as expressly provided in these Terms of Use, no part of the Licensed Materials and no Content or Marks may be copied, reproduced, aggregated, republished, uploaded, posted, publicly displayed, encoded, translated, transmitted, distributed, sold, licensed, or otherwise exploited without our express prior written permission.

Notwithstanding anything to the contrary herein, all rights, title and interest in and to any works of the University of Memphis, including without limitation application, software code, text, data, information, photos, graphics, audio, and video material created, gathered, generated and/or provided by the University of Memphis (University Content) shall remain the property of the University and/or its licensors, including without limitation any intellectual property rights which subsist in the University Content.

LIMITED LICENSE TO USER

Provided that you are an intended User, you are granted a revocable, non-exclusive, non-transferable, limited right to install and use the Mobile App on a wireless electronic device owned or controlled by you, and to access and use the Platform in accordance with these Terms of Use. All rights with respect to the Licensed Materials not explicitly granted to User are reserved.

LICENSE TO USE USER DATA

By use of the Mobile App, and for as long as you use the Mobile App, you grant to us a nonexclusive, transferrable, worldwide, royalty-free license to use and disclose data collected from you, as detailed in the Privacy Policy, to:
1. provide, monitor, correct, and improve the Platform, and
2. perform services related to the Platform, including displaying your data in either a de-identified manner such that there is no reasonable basis to believe that the information can be used, alone or in combination with other reasonably available information, to identify you as the source of such data or in an aggregate form.

Even after ceasing use of the Mobile App, you continue to grant us a nonexclusive, transferrable, worldwide, royalty-free license to use the data collected from you, as detailed in the Privacy Policy, to use, reproduce, prepare derivative works of, and distribute aggregated data for any lawful purpose and to grant sublicenses.

You represent and warrant that you own or have legal right and authority, and will continue to own or maintain the legal right and authority, to grant to us the license set forth herein. You agree to indemnify, defend, and hold harmless us and any of our affiliates employees or agents from and against any loss arising from or related to a claim of a third party with respect to a breach of the foregoing representations and warranties.

THIRD-PARTY MATERIALS

The Platform may display, include links to, or otherwise make available other information, content, data, applications or websites from third parties (Third Party Materials). These materials are provided for your convenience and do not signify our endorsement. We do not examine or evaluate the content, accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect of such Third-Party Materials. We have no responsibility for Third-Party Materials.

USER REPRESENTATIONS

By using the Platform, you represent that you:

have read and understand the Privacy Policy,
consent to and authorize, on behalf of yourself and others who may travel with you while the Mobile App’s location services are enabled, the collection, processing, use, and disclosure of information as set forth in the Privacy Policy,
acknowledge and agree that any information disclosed to us pursuant to a HIPAA Authorization Form, or other applicable state medical release form, is no longer protected under HIPAA, its implementing regulations, or any other medical privacy law,
have read, understand, and agree to be bound by these Terms of Use,
are a resident of the United States,
are not a resident of the European Union or the European Economic Area,
are at least 18 years old, and
are either using the Mobile App or Website yourself, or you are the parent or guardian of a minor who is at least 13 years of age and has your permission to use the Mobile App or Website.

If you misrepresent any of these items, we may suspend or terminate your account and refuse any current or future use of the Platform.

USER RESPONSIBILITIES

With respect to accessing and using the Platform, you are responsible for the following:

selecting, obtaining, and maintaining any equipment, items, and ancillary services,
paying all fees or data changes incurred,
complying with all instructions provided by us,
responding to all requests made by us,
using the Mobile App on only one device at a time (so as to improve data integrity),
informing those traveling with you and the device on which you are using the Mobile App that location information is being recorded, and
providing accurate information when choosing to provide COVID-19 test results.

PROHIBITED ACTIVITIES

You may not access or use the Platform for any purpose other than that for which we make the Platform available. The Platform may not be used in connection with any commercial endeavors except those that are specifically approved by us beforehand in writing.

As a User of the Platform, you agree not to:

undertake any efforts to identity or locate other Users of the Platform,
undertake any efforts to identify the results of any other User’s COVID-19 test results,
allow another individual to use your device while the Mobile App is installed,
use the Platform for any illegal or unauthorized purpose,
use the Platform, or any information therein, to harass, discriminate against, or otherwise harm another person, group of persons, or entity,
circumvent, disable, or otherwise interfere with the security-related features of the Platform,
attempt to bypass any measures of the Platform designed to prevent or restrict access,
use the Licensed Materials as part of any effort to compete with us,
decipher, decompile, disassemble, or reverse engineer any of the software comprising or in any way making up a part of the Licensed Materials,
disparage, tarnish, or otherwise harm, in our opinion, us and/or the Platform,
copy, reproduce, distribute, republish, download, display, post or transmit any portion of the Licensed Materials,
make any modification, adaptation, improvement, enhancement, translation, or derivative work from the Licensed Materials,
use the Platform for any revenue generating endeavor, commercial enterprise, or other purpose for which it is not designed or intended,
make the Platform available over a network or other environment permitting access or use by multiple devices or Users at the same time,
knowingly use the Platform to store, receive, or distribute any information that violates any applicable law,
sell, market, license, sublicense, distribute, rent, loan, or otherwise grant to any third party any right to possess or utilize any portion of the Licensed Materials or data associated therewith without our prior written consent,
diminish or infringe upon our intellectual property rights,
interfere with or disrupt the servers or networks connected to the Platform, or
direct or assist any party in attempting to do any of the foregoing.

Neither MD2K nor the University of Memphis shall be liable for any Loss arising out of or because of a User’s prohibited use. Neither MD2K nor the University of Memphis is responsible for any User’s prohibited use of the Licensed Materials.

PLATFORM MANAGEMENT

We may but are not required to:

monitor the Platform for violations of these Terms of Use,
take appropriate legal action against anyone who, in our discretion, violates the law or these Terms of Use, and
manage the Platform in a manner designed to protect our rights and property and to facilitate the proper functioning of the Platform.

MODIFICATIONS, INTERRUPTIONS & ENHANCEMENTS

We may change, modify, or remove contents of the Platform, but we have no obligation to do so. We may also discontinue all or part of the Platform without notice.

We cannot guarantee the Platform will always be available. We may experience hardware, software, or other problems, or the need to perform maintenance related to the Platform, resulting in interruptions, delays, or errors. Nothing in these Terms of Use will be construed to obligate us to maintain and support the Platform or to supply any corrections, updates, or releases in connection therewith.

From time to time, we may implement enhancements to functionality, but we have no obligation to offer you any features or enhanced functionality.

CORRECTIONS

In response to a reported error, we will use all commercially reasonable efforts to correct the error or to provide a reasonable workaround sufficient to alleviate any substantial adverse effect, provided that you assist us as requested.

DISCLAIMER

THE PLATFORM IS PROVIDED ON AN AS-IS AND AS-AVAILABLE BASIS.

USE OF THE PLATFORM IS AT YOUR SOLE RISK.

TO THE FULLEST EXTENT PERMITTED BY LAW, WE DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE PLATFORM AND YOUR USE THEREOF.

WE MAKE NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THE PLATFORM’S CONTENT OR THE CONTENT MADE AVAILABLE VIA THE PLATFORM.

WE ASSUME NO LIABILITY OR RESPONSIBILITY FOR ANY:

ERRORS, MISTAKES, INACCURACIES, OR OMISSIONS IN CONTENT,
PERSONAL INJURY OR PROPERTY DAMAGE RESULTING FROM YOUR ACCESS TO OR USE OF THE PLATFORM,
UNAUTHORIZED ACCESS TO OR USE OF OUR SERVERS OR ANY PERSONAL INFORMATION STORED THEREIN,
INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE PLATFORM,
BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH THE PLATFORM BY A THIRD PARTY, OR
LOSS OR DAMAGE INCURRED AS A RESULT OF THE PLATFORM’S CONTENT OR THE CONTENT MADE AVAILABLE VIA THE PLATFORM.

WE DO NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY HYPERLINKED WEBSITE, OR ANY WEBSITE OR MOBILE APPLICATION FEATURED IN ANY BANNER.

WE ARE NOT RESPONSIBLE FOR MONITORING TRANSACTIONS BETWEEN YOU AND ANY THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES.

LIMITATIONS OF LIABILITY

IN NO EVENT WILL WE OR OUR DIRECTORS, EMPLOYEES, OR AGENTS BE LIABLE UNDER OR IN CONNECTION WITH THESE TERMS OF USE WITH RESPECT TO:

USER’S ACCESS TO, USE OF AND/OR RELIANCE ON THE PLATFORM (WHETHER IN WHOLE OR IN PART), OR
USER’S INABILITY TO ACCESS OR USE THE PLATFORM.

TO THE MAXIMUM EXTENT PERMITTED BY LAW, AND REGARDLESS OF WHETHER WE WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR THAT SUCH LOSSES OR DAMAGES WERE FORESEEABLE, IN NO EVENT WILL WE BE LIABLE UNDER OR IN CONNECTION WITH THESE TERMS OF USE UNDER ANY LEGAL OR EQUITABLE THEORY FOR ANY:

CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES,
INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS,
LOSS OF GOODWILL OR REPUTATION,
USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY, OR
COST OF REPLACEMENT GOODS OR SERVICES.

ANY CLAIMS AGAINST MD2K OR THE UNIVERSITY OF MEMPHIS OR ITS EMPLOYEES SHALL BE HEARD AND DETERMINED BY THE TENNESSEE CLAIMS COMMISSION IN THE MANNER PRESCRIBED BY LAW.

DAMAGES RECOVERABLE AGAINST MD2K OR THE UNIVERSITY SHALL BE EXPRESSLY LIMITED TO CLAIMS PAID BY THE CLAIMS COMMISSION PURSUANT TO T.C.A. SECTION 9-8-301 ET SEQ AND IN NO EVENT WILL THE AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS OF USE EXCEED $500.

INDEMNIFICATION

Unauthorized use of the Platform may give rise to a claim for damages and/or be a criminal offense. User agrees to indemnify, hold harmless and defend MD2K, its Affiliates, and their respective directors, officers, employees, subsidiaries, licensors and content providers, in respect of all damages, costs and expenses, including reasonable legal fees and litigation expenses, arising out of, relating to, or as a result of (1) any breach of these Terms of Use by User; (2) User’s violation of the rights of any third-party; or (3) otherwise in connection with User’s use of the Platform.

CALIFORNIA USERS AND RESIDENTS

If any complaint with us is not satisfactorily resolved, you can contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 North Market Blvd., Suite N 112, Sacramento, California 95834 or by telephone at 800-952-5210 or 916-445-1254.

GOVERNING LAW

Notwithstanding any choice of law, venue or jurisdiction provisions in association with the website or digital service through which User accessed the Platform, or these Terms of Use, these Terms of Use shall be governed by, construed and take effect in accordance with the laws of the State of Tennessee, without application of any conflict of law principles that would refer the matter to another jurisdiction.

MISCELLANEOUS

These Terms of Use constitute the entire agreement between you and us. Our failure to exercise or enforce any right or provision of these Terms of Use shall not operate as a waiver. These Terms of Use operate to the fullest extent permissible by law. We may assign any or all of our rights and obligations to others. We shall not be responsible or liable for any loss, damage, delay, or failure to act caused by any cause beyond our reasonable control. If any provision or part of a provision of these Terms of Use is determined to be unlawful, void, or unenforceable, that provision or part of the provision is severable from these Terms of Use and does not affect the validity and enforceability of any remaining provisions. There is no joint venture, partnership, employment or agency relationship created between you and us as a result of these Terms of Use. You agree that these Terms of Use will not be construed against us by virtue of having drafted them.

CONTACT US

You may contact us at:

Office of Legal Counsel
University of Memphis
201 Administration Bldg,
Memphis, TN 38152
901-678-2155

Unless necessary, please do not provide us with your name, contact information, mContain ID, or any health information.