TERMS AND CONDITIONS NUSHU

1. Effective Date; Applicability; Amendments

• These Terms and conditions become effective on 1st July 2021.
• These Terms and Conditions govern your use of the Magnes Nushu Shoes (“Wearable”), the Nushu App (“App”), the Webportal (“Webportal”) and any services (“Services”) provided by Magnes AG, Hardturmstrasse 253, 8005 Zürich, Switzerland, (“MAGNES”) in connection with the Magnes Nushu (“Wearable”), the App and/or the Webportal.
• MAGNES reserves the right, at any time, to amend these Terms and Conditions for the future insofar as this does not affect essential provisions of the contractual relationship with you and/or these amendments are necessary to take account of developments (e.g. change of law) which could not be foreseen by MAGNES.
• MAGNES will post a notice of any amendments on its website, the App and/or the Webportal and they shall become effective on the publication date. Your further use of the App, the Webportal or the Services following such amendment shall be deemed to constitute your consent to the amendment. By continuing to access the App or use the Services after MAGNES has published any amendment, you agree to such amendment. If the amendment is not acceptable to you, you must cease using the Wearable, the App, the Webportal and the Services.

2. App and Services

• When you purchase the Wearable or purchase services from MAGNES, MAGNES will grant you access to the App. In the App you will be asked as a first step to create a user account by providing certain information such as your name, address, email, phone number etc. You must provide correct and complete information and correct or update such information throughout the contractual relationship with MAGNES as necessary. For minors below 16 years, parental consent has to be provided.
• In order to properly use the App and the Services you will then be asked to provide further information, including certain health data such as weight, height, age. You will find detailed information on the processing of your personal data in MAGNES Privacy Notice.
• The raw data collected by the Wearable can be uploaded into the App by you. The data does not contain any diagnostic or therapeutic recommendations. The App, however, allows you to share the raw data collected in the App with your treating health care professional who may then provide medical advice to you.
• If the respective function is enabled by you, the Wearable will provide haptic notifications (“Notifications”) to you by way of vibration in the Wearable based on the data provided by you in the App and gait data collected by the Wearable. You should not enable this function without consulting your treating medical professional beforehand. Any use of such function is at your own risk. You may deactivate such Notifications at any time by adjusting the settings on the App. The Notifications do not constitute any diagnostic, therapeutic recommendation or medical advice. The Notifications can inform you about gait events such as toe off, heel strike or gait irregularities and can be used for cueing. To the extent legally possible, MAGNES exclude all liability for the suitability of the Notifications.
• MAGNES may further develop the Wearable, the App or the Services at any time and expand or change their respective functionality and issue updates in this respect, but does not assume any contractual obligation to do so. Any updates on the App or the Services will be displayed to you in the App.
• To the extent legally possible, MAGNES shall not be liable to you or to any third party for any modification of the features of the Wearable, the App or the Services.

3. Webportal

• You may use the Webportal if you are a medical professional treating a patient who has purchased the Wearable and has provided its consent to share the data collected by the Wearable with you.
• In the Webportal you will be asked as a first step to create a user account by providing certain information such as your name, email address, and your affiliation. You must provide correct and complete information and correct or update such information throughout the contractual relationship with MAGNES as necessary.
• Medical professionals may use such analyzed data for aiding diagnostics and treatment of the respective patient. Any use of the data for any other purposes is prohibited.

4. User Account

• You must treat your user account access data (including the password) as confidential and must not disclose such data to others. You should change your password at least every 90 days. MAGNES takes appropriate technical and organizational measures to prevent unauthorized access to your user account and the data therein. You must notify MAGNES immediately of any breach of security of your account.
• You agree that MAGNES may use the data you provided in your account in accordance with these Terms and Conditions and the Privacy Policy.
• MAGNES has the right to suspend or terminate your account and refuse current or future use of the Services at any time if you breach any of these Terms and Conditions.

5. MAGNES Content

• MAGNES (or any third party who has granted a license to MAGNES) owns the information, data, text, software, images, graphics, audio, video, messages, posts, tags, or other materials that MAGNES itself makes available as part of the App and in connection with the Services (“MAGNES Content”). MAGNES Content shall not include the data you provided or the data collected by the Wearable.

6. Trademarks

• The trademark MAGNES, the MAGNES logo, the trademark Nushu, the Nushu logo and other MAGNES logos, product and tradenames are owned by MAGNES and you may not use any of them for commercial purposes without MAGNES’s prior written permission. Any third party trademarks or service marks displayed on the App are the property of their respective owners.

7. App Use

• The necessary technical requirements, e.g. required storage space on your mobile device and required software version, can be found in the Magnes Nushu Instructions For Use (IFU).
• The installation and use of the App requires regular data transmission from your mobile device. The connection costs incurred for the data transmission shall be borne by you in accordance with the contract existing between you and your internet access provider.
• By downloading and installing the App, you receive a personal, non-exclusive and non-transferable licence to use the App on your mobile device in accordance with these Terms and Conditions.
• The use of the App and the Services is permitted exclusively for private, non-commercial use.

8. Prohibited Activities

You must not participate directly or indirectly, in any activity in connection with the Wearable or the App, the Webportal or the Services which breaches these Terms and Conditions, including without limitation any of the following activities:

1. Permitting any third party to access the App or to use the Services.
2. Permitting any third party to create an account in or use the Webportal except for the treating medical professional.
3. Infringing the intellectual property rights of any person, including by copying any part of the App, the Webportal, the Services or the MAGNES Content.
4. Copying, modifying, reverse engineering or decompiling the wearable or any parts thereof or any software which forms part of the App.
5. Interfering with the functionality of the Wearable, the App, the Webportal or the Services (e.g., by hacking or introducing viruses).
6. Sending false or intentionally misleading information (such as phishing).
7. Engaging in any commercial activity in respect of the Wearable, the App, the Webportal or the Services.
8. Failing to comply with any applicable laws or regulations.
9. Providing inaccurate data when creating your account.

9. Third Parties

• The App and/or the Webportal may contain links or references to other websites that are not operated by MAGNES.
• Your interactions with such third party are solely between you and such third party on the basis of the terms and conditions of such third party.
• MAGNES is not responsible for the content of these websites and is not liable for damage or injury resulting from the content of these websites.

10. Limitation of Liability

To the maximum extent permitted by law:

• MAGNES makes no warranty that: (a) by using the Wearable, the App, the Webportal or the Services the patient will meet specific health or training objectives; (b) the diagnostic or treatment by a medical professional based on the data collected by the Wearable will be suitable for the patient (c) the App, the Webportal or the Services will be provided uninterrupted.
• Any data and Notification provided by MAGNES through the App are based on data provided by you and the data collected by the Wearable. No diagnostic or therapeutic decision is hereby provided. The data shall be discussed between the patient and its health care professional.
• MAGNES takes no responsibility for any diagnostic, medical or therapeutic advice that may be provided by a health care professional based on the data provided by the patient and collected by the Wearable.
• MAGNES shall not be liable for any loss or damage including without limitation loss of data or loss of revenues (whether direct or indirect), except for MAGNES’ wilful misconduct, gross negligence and mandatory legal responsibility (such as product liability or data protection).

11. Applicable Law and Disputes

These Terms and Conditions shall be governed by Swiss law except its conflict of law rules. The UN Convention on Contracts for the International Sale of Goods (CISG) shall not apply. Any disputes arising under or in connection with the relationship between MAGNES and you shall be finally decided by the courts of Zürich, Switzerland.