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FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT AND/OR QUIET
ENJOYMENT, AS WELL AS ANY IMPLIED WARRANTIES OTHERWISE ARISING OUT OF
COURSE OF DEALING, COURSE OF PERFORMANCE OR TRADE USAGE. PATIENT FURTHER
ACKNOWLEDGES AND AGREES THAT BIOTELEMETRY SHALL NEITHER BE RESPONSIBLE
NOR LIABLE FOR PATIENT’S INABILITY TO ACCESS OR USE THE SERVICE AS A RESULT OF
ANY DEFICIENCY IN THE INTERNET, THE TELEPHONE SERVICE, OR OTHER CONNECTION
BETWEEN BIOTELEMETRY AND PATIENT. PATIENT EXPRESSLY ACKNOWLEDGES AND
AGREES THAT NEITHER THE SYSTEM, NOR THE SERVICE (AS WELL AS ANY SUPPORT
GIVEN BY ANY BIOTELEMETRY SUPPORT STAFF), NOR ANY MATERIAL AVAILABLE
THROUGH PATIENT’S USE OF THE SYSTEM OR SERVICE IS INTENDED TO PROVIDE
PATIENT WITH MEDICAL ADVICE, A DIAGNOSIS OR TREATMENT. PATIENT MUST ALWAYS
SEEK THE ADVICE OF PATIENT’S PHYSICIAN OR OF ANOTHER QUALIFIED MEDICAL
PRACTITIONER WITH ANY QUESTIONS PATIENT MAY HAVE REGARDING A SPECIFIC
MEDICAL CONDITION OR PERCEIVED CONDITION.
4. LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE
LAW: (I) IN NO EVENT SHALL BIOTELEMETRY OR ITS SUBSIDIARIES, AFFILIATES, OFFICERS,
DIRECTORS, EMPLOYEES AND AGENTS, ITS LICENSORS OR SUPPLIERS BE LIABLE TO
PATIENT FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE
DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT INCLUDING, WITHOUT
LIMITATION, LOST PROFITS, COSTS OF DELAY, ANY FAILURE OF DELIVERY, BUSINESS
INTERRUPTION, COSTS OF LOST OR DAMAGED DATA, UNAUTHORIZED DISCLOSURE TO
OR ACCESS OF PATIENT DATA, OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY
PERSONAL INJURY OR PROPERTY DAMAGE CLAIM OR ANY OTHER TYPE OF CLAIM, EVEN
IF BIOTELEMETRY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND, (II)
IN NO EVENT SHALL BIOTELEMETRY’S AGGREGATE LIABILITY UNDER THIS AGREEMENT
EXCEED THE AMOUNT PAID BY PATIENT TO BIOTELEMETRY UNDER THIS AGREEMENT.
THE PARTIES AGREE THAT THE ALLOCATION OF LIABILITY SET FORTH IN THIS SECTION 5
FORMS AN ESSENTIAL BASIS OF BIOTELEMETRY’S WILLINGNESS TO GRANT PATIENT THE
USE OF THE SYSTEM AND ACCESS TO AND USE OF THE SERVICE AND IS INDEPENDENT OF
EACH AND EVERY LIMITED REMEDY THAT PATIENT MAY HAVE.
5. Indemnity. Patient agrees to indemnify and hold harmless BioTelemetry, Inc., it’s
subsidiaries, and its ocers, directors, employees, agents and suppliers from and against
all claims of third parties arising out of or related to Patient’s use or misuse of the System
and/or the Service, or attributable to Patient’s breach of this Agreement. BioTelemetry
shall control the defense and any settlement of such claim, and Patient shall cooperate
with BioTelemetry in defending against such claims.
6. General Provisions. This Agreement may be modied or amended only by a written
instrument signed by Patient and BioTelemetry. Any terms and conditions issued by
Patient shall not be binding on BioTelemetry, Inc., or it’s subsidiaries, ocers, directors,
employees, agents or suppliers, and shall not modify these Terms and Conditions. No
term or provision contained herein shall be deemed waived and no breach excused
unless such waiver or consent shall be in writing and signed by the party against whom
enforcement thereof is sought. Neither party hereto shall be liable to the other for
any failure to perform its obligations under this Agreement due to causes beyond the
reasonable control of that party, including, but not limited to, strikes, boycotts, labor
disputes, embargoes, unavailability of or failures due to telecommunication networks
(including, without limitation, the Internet), acts of God, unavailability of or insucient
utilities, acts of public enemy, acts of governmental authority, oods, riots, or rebellion.
This Agreement shall be governed by and construed solely in accordance with the laws
of the State of Pennsylvania, without reference to its choice of law rules. Any and all
proceedings arising under or in any way relating to this Agreement shall be maintained
in the state or federal courts located in Chester County, Pennsylvania, which courts
shall have exclusive jurisdiction for such purpose, and Patient hereby consents to the
personal jurisdiction of such courts. Patient acknowledges that in the event of an actual
or threatened violation of the terms and conditions of this Agreement, BioTelemetry may
not have an adequate monetary remedy and shall be entitled to seek injunctive relief
without any requirement to post bond, in addition to any other available remedies. If
any term or provision of this Agreement is illegal or unenforceable, it shall be deemed
adjusted to the minimum extent to cure such invalidity or unenforceability and all other
terms and provisions of this Agreement shall remain in full force and eect.