TERMS OF USE

Last update: July 21, 2021.

WARNING – READ CAREFULLY BEFORE ACCESSING OR USING OUR SERVICES

Summary

  1.  Introduction 
  2. Definitions 
  3. Services 
  4. Phelcom Platform – Access and Use  
  5. Users’ Duties 
  6. Intellectual and Industrial Property Rights 
  7. Data protection 
  8. Disclaimer of Warranties 
  9. Disclaimer and Limitation of Liability 
  10. Channels and links to third-party Websites 
  11. File Downloads 
  12. General provisions 
  13. Contact 

1. Introduction 

1.1. Phelcom. These are the terms and Conditions of use (”Terms of Use”) that regulate the use of the Services of Phelcom Technologies LTDA-ME, registered in the CNPJ (National Registry of Legal Entities) no. 24.476.108/0001-13, headquartered at 820, José Missali Street – Jardim Santa Felícia – ZIP code 13.562 – 405 – São Carlos/SP, Brazil, with the email address contato@phelcom.com “PHELCOM”). PHELCOM is the company that owns the Website www.phelcom.com (“Website”), developer and manufacturer of the medical device Eyer Handheld Fundus Camera, automatically integrated to EyerCloud Software – together, they are called “PHELCOM PLATFORM”. You, User, can use PHELCOM’s Services, as either a Patient or Customer. Here we describe the Services we will offer you and the conditions for using  PHELCOM PLATFORM. This is a legal document. We tried to make it as clear as possible, although part of its language includes legal terms.

1.2. User(s) and Customer(s). Before registering as a PHELCOM User, you (or your parent/guardian, if you are under 18) must accept these Terms of Use. In any case, by accessing, accepting and starting to use PHELCOM PLATFORM, whether as a User / Patient or as a Customer, whether free / freemium or through paid subscription service, you acknowledge to have read and accepted these Terms of Use and agree to comply with all of their terms and conditions. These terms are so important that we cannot provide you our Services before you read, understood and accepted them. The User and / or Customer also acknowledges and agrees that access to and use of the PHELCOM PLATFORM will be subject to the terms of use in force when accessing and agreeing to them. In addition, to become a PHELCOM User, you (or your parents/guardians, if you are underage) must have previously read and accepted our Privacy Policy in https://phelcom.com/en/privacy-policy/, as well as freely and explicitly agreed that PHELCOM will process your personal data. 

1.3. Changes and Updates of these Terms of Use. We periodically update these Terms of use, for legal reasons, due to new technologies and features created on our platforms or for other reasons we deem necessary. If you have an active registration in our platform, we will inform you of updates via email or notification. You will be asked to accept the new Terms of Use, under penalty of having your access suspended. Likewise, PHELCOM reserves the right to suspend, interrupt or cease the operation of PHELCOM PLATFORM at any time, as described in these Terms of Use. 

1.4. Authorization for Processing Personal Health Data. By accepting these Terms of Use you allow PHELCOM and its partner Customers to have your personal data collected through PHELCOM PLATFORM and processed, solely to carry out your retinal exam and send the information to the responsible doctor. For this, we use an online system called Eyercloud, which saves your examination and sends it to the doctor to issue your remote diagnosis.

1.5. Purpose for Processing Personal Data. The personal data processed through PHELCOM PLATFORM are confidential and sensitive. They comply with data protection laws, notably the LGDP – General Data Protection Law (Law no. 13.709/2018). PHELCOM PLATFORM aims to perform retinal examinations for the benefit of the patient. The examination is carried out through  Eyer Retinograph and sent to the doctor in charge for analysis through EyerCloud. After the analysis, a remote diagnosis will be issued. The doctor then makes it available to the patient. PHELCOM may also use the data obtained to create its own algorithms, analyze data, create solutions, products and benchmarks, provided the patients’ identity remains preserved.

2. Definitions 

  • Customers / Partners mean all those who subscribe to EyerCloud Manager software, in freemium or paid mode, including doctors, medical or laboratory institutions, clinics and hospitals, that use Phelcom’s Services to carry out retinal exams on patients and/or to manage the obtaining of reports and results of exams carried out with Eyer fundus camera. This definition also includes Professional Technicians hired by Phelcom’s Customers to carry out the referred exams. 
  • Personal Data – means all information/data that you, User and/or Customer, natural person, make available by accessing and using our Website and/or Phelcom software, and that, grouped or not, allow you to be identified. For example: full name, address, birthdate, mother’s name. The means, purposes and goals of data collection are object of a Privacy Policy.
  • Sensitive Data – means all data revealing racial or ethnic origin, political opinions, religious or philosophical convictions, trade union membership, data relating to a person’s sexual life or sexual orientation, as well as health, genetic and biometric data methods, which allow to identify a natural person unequivocally.
  • Qualified Professional Technicians are the field operators trained by Phelcom or Phelcom Customers to properly operate Eyer Handheld Fundus Camera and/or Software in order to perform retinal examinations, including doctors or other healthcare professional technicians.
  • “Eyer Handheld Fundus Camera” is the medical device, equipment registered in the National Health Surveillance Agency (Anvisa), manufactured and developed by Phelcom and installed in a portable phone device (smartphone). Automatically integrated into the EyerCloud Software, it collects personal data and biometric data from patients, specifically focused on capturing retinal images. Together, Eyer Handheld Fundus Camera and EyerCloud Software are called “PHELCOM PLATFORM” herein;
  • Services mean both the content that PHELCOM Website provides and the technological features the Integrated Eyer – Eyercloud system offers. Services can be free or paid.

Free Services / freemium – refer to both the Website content and the EyerCloud Manager Software subscription service, which allows Customers to use the Services up to the limit of 5,000 (five thousand) retinal exams per subscription. 

Paid Services – refer to the EyerCloud Software subscription service that Phelcom offers Customers, when the 5,000-exam limit for a single Subscriber account. They also refer to additional Services such as remote reports and others offered upon Customer acceptance in Eyer and EyerCloud software. 

  • “EyerCloud Software” – is Phelcom’s management software program that receives, processes and stores patient data in the cloud, generating reports and test results for Phelcom Customers and allowing remote diagnoses. Phelcom may provide Customers this software by paid or free monthly subscription/freemium. Together, EyerCloud Software and Eyer Handheld Fundus Camera are called “PHELCOM PLATFORM”.
  • Patient: means the User who benefits from Services that PHELCOM Platform provides.
  • Users: means all individuals who access and use our Services, as well as Patients and Customers, including any Doctor and/or Authorized Professional Technician who handles, operates and powers the Softwares.

3. Services 

3.1. Overview. PHELCOM Services are designed to support patients, not to replace the relationship between you and your personal doctor or other healthcare professional who follows you personally and face-to-face to treat any illnesses. You should contact them directly if you have questions or concerns about your medical treatment, symptoms, physical condition or your health as a whole. 

IMPORTANT!

Never disregard the advice of a medical professional, nor delay seeking medical attention for something you have read and/or sought advice on our Platforms. 

Always seek to consult your doctor or other qualified healthcare professional when you have any questions related to a medical condition.

The health data contained in PHELCOM PLATFORM belong to the patient and are generated through the information entered with Users’ consent. 

PHELCOM is responsible for protecting and keeping custody of the information and data entered in its platform, to the extent defined by law. PHELCOM is not responsible for the information the User shares himself / herself, with either health professionals or any other people or professionals. PHELCOM is not responsible for the loss, theft, transfer (onerous or not), of the mobile, tablet, Eyer Handheld Fundus Camera or any other electronic device that can access PHELCOM PLATFORM.  In these cases, the User must notify PHELCOM, so that we take measures are to prevent any data leaks or access to User Data.

3.2. Compliance. The User can access all Services that PHELCOM provides having agreed to these Terms of Use and to our Privacy Policy. Account accesses of any form other than by PHELCOM Platform or our web portal is forbidden, and any consequences arising from misconduct or use are not PHELCOM’s responsibility, and may suspend the service or terminate the User’s account.

By using the PHELCOM Platform you agree to these Terms. If you do not agree to these terms, you must not use or access our Services. 

4. Phelcom Platform – Access and Use

4.1. Access.  The User (or his/her parents / guardian, if under the age of 18) acknowledges and accepts that the access and use PHELCOM PLATFORM occurs freely and consciously, under his / her sole responsibility. PHELCOM will not be responsible, in any case, for how the User and/or third parties may handle PHELCOM PLATFORM, nor for the damages that may arise. 

4.2. Allowed Website Use. You may access the site, all information, text, images and/or other content that you view or otherwise experience on the Site, solely for non-commercial purposes. That is, only for personal and informational use about PHELCOM’s products and Services, and only as provided in these Terms of Use. The User must have all the necessary equipment for his own internet connection, including computer, mobile device and modem, as well as means to provide his/her Internet access, paying all the related fees. 

4.3. Allowed PHELCOM PLATFORM use. The Customer may access the platform solely to carry out retinal exams, monitor and/or remotely manage Health Data, only in the ways provided for in these Terms of Use and, where applicable, in the agreement between PHELCOM and Customer. It is the Customer’s responsibility to ensure that they have downloaded the correct Eyercloud software version for their device. PHELCOM is not responsible if you do not have a compatible device or have downloaded a Software version incompatible with your device. 

4.4. EyerCloud Software – User Account. Access to EyerCloud Software will be subject to creating a User account, by filling in the fields marked as mandatory on the platform. There, the patient will provide registration data, and create a personal and non-transferable password. In any case, to use the Services  PHELCOM offers, the User (or his/her parents / guardian, if underage) must give PHELCOM his / her free and informed consent to process his / her personal data. PHELCOM reserves the right to accept or reject the request to register a User account, based on the User age (if the User is under 12), or in cases of suspected fraud and violation of the terms of use or Privacy Policy. The data entered by the User to create his / her User Account must be accurate, current and true. 

4.5. Passwords. The User will be fully responsible for the password to grant access to his / her User Account, and for the use of PHELCOM PLATFORM made from it. The User will always be responsible for the custody of his password, including the security of his mobile device, assuming, therefore, any damages that may arise from its misuse, as well as its transfer, disclosure or theft. In the event of forgetting the password or any other circumstances that imply risk of User account access and/or use by unauthorized third parties, the User must notify PHELCOM immediately, so that we can immediately block and replace the password. PHELCOM has no control over the use of any User Account. In any case, the operations prior to the referred communication will be considered as carried out by the User, who will be responsible and pay the expenses and/or damages arising from any unauthorized access and/or use prior to the referred communication. 

4.6. License of Use. Phelcom may grant the Customer a license to use PHELCOM PLATFORM. The license to use  Eyer – EyerCloud integrated system, if granted, is non-transferable, non-exclusive, as long as they remain active in the market and for the geographical area of Brazil. This license may be revoked at any time, without notice, if Phelcom platform is discontinued in Brazil.

4.7. PHELCOM PLATFORM – User Account Cancellation. PHELCOM reserves the right to modify or terminate its Services without prior notice. If PHELCOM cancels access to its Services for violation of these Terms of Use, or for ceasing to provide the service, the User will be notified at the email address registered in his User Account. Patient data history will be stored in accordance with the Privacy Policy.

5. Users’ Duties

5.1. Proper Use. Users and Customers undertake to use PHELCOM PLATFORM properly and lawfully, in accordance with the applicable legislation, to these Terms of Use, to the generally accepted moral and common sense, as well as public order. 

5.2. Users and Customers’ Duties. You agree that you will not:

a. Use the PHELCOM PLATFORM in a way that violates these Terms of use, the Privacy Policy and / or any applicable law;

b. Copy, modify, create a derivative work of, or reverse engineer or assemble PHELCOM PLATFORM, or otherwise attempt to discover any source code, or allow third parties to do so;

c. Sell, assign, sublicense, lease, distribute, license, commercially exploit, grant a warranty or otherwise transfer or provide unauthorized third parties any rights over PHELCOM Services;

d. Use or initiate automated systems, including but not limited to robots, spiders or offline readers, that access PHELCOM PLATFORM to send more requests to PHELCOM servers in a given period than a human could produce in the same period through a conventional online web browser;

e. Use PHELCOM PLATFORM in such a way as to damage, disable or overburden any PHELCOM Website or otherwise interfere with the Website use and usefulness by any third party;

f. Mirror or integrate PHELCOM PLATFORM, or any part thereof, into other Websites, applications or web pages;

g. Access or try to obtain unauthorized or illegal access to PHELCOM PLATFORM, including the data or personal data contained in PHELCOM PLATFORM or in any way tamper with the security of our Services or violate our User Accounts.

h. Try to investigate, verify or test the vulnerability of PHELCOM PLATFORM, or violate security or authentication measures without proper authorization, including logging into a server or account on the PHELCOM Services that you are not authorized to access;

i. Use misleading or false names, addresses, e-mail addresses or subject headers when you want to contact us;

j. Use PHELCOM PLATFORM in a threatening, abusive, offensive, misleading, false, fraudulent or defamatory manner, or upload files that contain vulgar, obscene, indecent or illegal material;

k. Use PHELCOM PLATFORM in any way that infringes intellectual property rights or legal rights of third parties (such as privacy and privacy rights);

l. Download or upload any file that you know, or reasonably should know, that cannot be legally distributed in this way – unless WE have made the referred file available for download, not on third-party links disclosed in the Software;

m. Collect information about others, including e-mail addresses, without their consent;

5.3. Report suspected violations. We encourage Users to report suspected violations of these Terms of Use by sending us an email to contato@phelcom.com

6. Intellectual and Industrial Property Rights 

6.1. No right, title or interest of any content Phelcom produces is transferred to you, whether as a result of downloading such content or in any other way. PHELCOM holds the right to exploit the intellectual property on the PHELCOM PLATFORM as well as all its contents and / or any other elements found or provided therein. This includes, without limitation: texts, graphics, data, images, videos, sounds, illustrations, computer programs, source codes, trademarks, slogans, domain names, databases, business names, flowcharts, audio and video presentations, logos, icons, image-set (trade dress), including PHELCOM’s name, figurative and nominative logos, as the selection and organization of such elements. All them belong exclusively to PHELCOM and may not be copied, imitated, modified or used, in whole or in part, without prior written consent of a PHELCOM legal representative. 

6.2. PHELCOM PLATFORM contents may not be copied, reproduced, modified, republished, uploaded, posted, transmitted, run, or distributed in any way. You agree not to modify, rent, lease, loan, sell, distribute, transmit, divulge or create derivative works based on PHELCOM PLATFORM content, in whole or in part by any means.

6.3. PHELCOM may use and incorporate, into its platforms, suggestions or feedback you provide, without any payment or condition. When we intend to use any testimonial from you, your name or your image on our platforms to advertise our Services, we will ask for your permission in accordance with our Privacy Policy.

6.4. Claims of infringement of intellectual property rights of third parties. PHELCOM respects the intellectual property rights of third parties, and asks its Customers and Users to do the same. PHELCOM may, in its sole discretion, suspend access to or terminate the accounts of Users who violate the intellectual property rights of third parties. If you believe that your work has been copied in a way that constitutes infringement on PHELCOM Website, please send us an email notification: contato@phelcom.com

6.5. To be effective, the terms of the notification must contain information reasonably enough to allow PHELCOM to contact the complaining party, such as address, telephone number and, if available, an electronic mail address at which the complaining party can be contacted.

7. Data Protection

7.1. PHELCOM has adopted a Privacy Policy, which we may change from time to time after prior communicating to you to receive a new acceptance. The Privacy Policy will govern any disclosure or use of your Personal Data and health data. By using the PHELCOM Services, you represent that you have read, understood and agreed to the terms of the Privacy Policy. For more information, or questions about how PHELCOM uses your Personal Data, please refer to our Privacy Policy.

7.2. Use of Data and Disclaimer, and Commercial Use of Data. The imputed data, as well as that generated in Phelcom’s Bi’s and APP, will be used in accordance with the primary purpose for which it was collected, as well as with the contract signed between Phelcom and the Customer. Such information will be properly qualified, sanitized, and archetyped, in accordance with the contractual objectives, which will be defined with the Customer and/or the company that hires PHELCOM Service.

7.3. Confidentiality and Secrecy. PHELCOM will, at no time, share to any company, personnel, private or public body, the individual information of its Users, except if authorized by their owner, and subject to provisions expressed in law, as well as by judicial determination. PHELCOM is, however, allowed to use the data contained in its platforms, always respecting the privacy of its Users and making efforts to secure data by anonymizing them for purposes such as: Scientific Studies, development of algorithms and benchmark.

7.4. Copyright Protection, Notifications, and Procedures for Making Claims of Copyright Infringement. If there is any doubt about possible infringement of your or a third party’s copyright, we kindly ask you to notify us by the means of communication available on the Website and / or on the company’s platforms, and even by physical means at the company’s headquarters, reporting:

1-identification of the document under suspicion of copyright infringement;

2-personal data of the User who raises the question;

3-data of the copyright holder;

4.- E-mail and phone number of the User so that we can communicate the analysis result.

8. Disclaimer of Warranties 

8.1. Availability of Services. PHELCOM does not guarantee the intermittent availability and continuous operation of its platforms. Consequently, PHELCOM shall in no case be liable for any damages that may arise from (i) the lack of availability or accessibility of PHELCOM PLATFORM; (ii) the interruption of the operation of PHELCOM PLATFORM or computer failures, telephone malfunctions, disconnections, delays or blockages caused by deficiencies or overloads in telephone lines, data centers, Internet system or other electronic systems, produced in the course of its operation; and (iii) other damage that third parties may cause by unauthorized intrusions out of PHELCOM’s control. 

8.2. The Services are provided “as is” and use is at your own risk. To the fullest extent of the law, and except as otherwise agreed through specific agreements between you and PHELCOM, PHELCOM makes no representation or warranty of any kind, express or implied, regarding  your use of the Services or any information or content contained therein. 

8.3. Viruses and external elements. PHELCOM does not guarantee the absence of viruses, worms, trojans or other harmful external elements. Consequently, PHELCOM will, in no case, be liable for any damages of any nature that may arise from the presence of viruses or other elements that may produce changes in the physical or logical systems, electronic documents or files of the User. 

8.4. Security. PHELCOM adopts all measures required by law and best security practices to protect its platforms and content against third-party computer attacks. However, PHELCOM does not warrant that unauthorized third parties may not be aware of the conditions, characteristics and circumstances under which the User accesses his User Account. Consequently, PHELCOM will not, in any case, be liable for any damages that may arise from such unauthorized access. By using PHELCOM PLATFORM, you agree not to hold PHELCOM or any of its partners liable for any loss or damage of any kind that you have suffered because of misappropriation, interception, deletion, destruction or use of your data and personal data on our platforms.

9. Disclaimer and Limitation of Liability 

9.1. No advice or information, oral or written, obtained from PHELCOM shall in any way create any warranty not expressly and explicitly stated in this agreement

9.2. To the maximum extent allowed by law, in no event will PHELCOM and its service providers, licensors or suppliers be liable for any direct, indirect, punitive, incidental, special, consequential, exemplary or other damages, including but not limited to damages for coverage or loss of use, data, revenue or profits, arising from or in any way directly related to the use or performance of PHELCOM PLATFORM, or for any content, whether based on contract, negligence, strict liability, lack of any resource to achieve its essential purpose, even if PHELCOM or any PHELCOM supplier has been advised of the possibility of damages. 

9.3. You understand and agree that you are personally responsible for your own use PHELCOM PLATFORM. In the event of misuse or inability to use PHELCOM PLATFORM, or any breach of these Terms of Use, You are subject to indemnify Phelcom. 

9.4. Compensation limit. If, notwithstanding any other provisions of these Terms of use, it is determined that PHELCOM shall assume any liability to a User or third party for any loss, damage or injury, you agree that the total liability of PHELCOM and its employees, directors, managers, affiliates, agents, suppliers, service providers, licensors or suppliers shall in all cases be limited to BRL 5,000 (five thousand Brazilian Reais). Since some States / jurisdictions do not allow the exclusion or limitation of liability for consequential or incidental damages, the above limitation may not apply to you.

10. Channels and Links to Third-party Websites 

10.1. The Website may provide links to other Websites on the Internet that are owned and operated by third parties. We are not responsible for the availability or content located on any third-party Website. Links from PHELCOM’s Website to other Websites do not constitute an endorsement, by PHELCOM, of the content of those Websites. You should contact us if you have any questions regarding such links or in relation to the content hosted on such Websites. Use of these third-party sites is subject to each site’s terms of Use and privacy policies, and we are not responsible for them. We encourage you to review the privacy policies of third party Websites. 

10.2. By providing links to third party Websites, PHELCOM will not investigate the content of such information and does not endorse or warrant their accuracy, opinions or recommendations. To the extent that you make use of any link to any other Website on the internet, you understand and agree that your use of the third party Websites is at your own risk.

11. File Downloads

11.1 PHELCOM cannot guarantee that all files eventually available for download through PHELCOM PLATFORM will be free of virus infection or other harmful computer program.

12. General provisions 

12.1. Full Agreement. These Terms of Use constitute the entire agreement between the parties regarding the subject matter thereof. No waiver, by PHELCOM, of any breach or default set forth herein shall be interpreted as a waiver of any prior or subsequent breach or default. 

12.2. Validity of clauses. If any statement of these Terms of use is found to be invalid or unenforceable, the invalid or unenforceable statement shall not affect the other provisions of these terms of use, which shall remain in full force and effect. 

12.3. Applicable Law and Choice of Court. Any and all disputes relating to these terms of use, PHELCOM’s Privacy Policy, your use of the PHELCOM Website or Platform and any other Phelcom content are governed by and shall be interpreted in accordance with Brazilian laws, disregarding any conflicts of law provisions. You agree to the exclusive jurisdiction of the region of São Carlos, State of São Paulo, for any dispute arising out of or relating to these terms of use, PHELCOM’s Privacy Policy, your use of the PHELCOM PLATFORM or any other Website or content owned by PHELCOM.

13. Contact 

PHELCOM appreciates your questions or comments regarding these Terms of Use. 

If you submit comments, ideas or feedback to us through our channels, you hereby agree that we may use and publicly disclose them, without any restriction or monetary or other compensation to you. We do not waive any right to use similar or related comments, ideas or comments that are previously known to us, developed by us or obtained from sources other than you. When we intend to use any testimonial from you, your name or your image on our platforms to advertise our Services, we will ask for your permission in accordance with our Privacy Policy.

Contact us through the Website, chat, by email contato@phelcom.com or our address below, and we will make all reasonable efforts to reply you promptly, and solve any problem or question. 

Phelcom Technologies LTDA

820, José Missali Street -Jardim Santa Felícia-ZIP Code 13.562 – 405-São Carlos / SP, Brazil