IMPORTANT - READ CAREFULLY: THESE TERMS OF SERVICE AND END-USER LICENSE AGREEMENT ("AGREEMENT") IS A LEGAL AGREEMENT BETWEEN YOU AND MEDIVO INC. OR ANY OF ITS AFFILIATED COMPANIES OR PROPERTIES, INCLUDING PATIENTPATH, MEDIVO MONITOR, WELLAPPS, AND GI MONITOR ("COMPANY") PROVIDING ITS APPLICATION OR APPLICATION -ENABLED SERVICE TO YOU. IN THIS AGREEMENT, "APPLICATION" MEANS ANY APPLICATION, PROGRAMS OR APPLICATIONS PROVIDED TO YOU BY THE COMPANY WHICH IS INSTALLED, ACCESSED OR OTHERWISE USED BY YOU OR YOUR EQUIPMENT OR DEVICES (EACH INCLUDING ANY PRIOR OR FUTURE VERSIONS), AND IT INCLUDES RELATED DOCUMENTATION AND OTHER TEXT; ARTWORK, PHOTOS, VIDEO AND AUDIO CONTENT; AND ALL UPDATES TO ANY OF THESE ITEMS. BY INSTALLING, ACCESSING OR OTHERWISE USING THE APPLICATION, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THESE TERMS, YOU SHOULD STOP USING THE APPLICATION AND PROMPTLY RETURN TO THE COMPANY ANY APPLICATION IN YOUR POSSESSION, INCLUDING ANY PACKAGING AND ALL WRITTEN MATERIALS.
1) GRANT OF LICENSE. If you will use the Application, Company grants to you, subject to the terms and conditions of this Agreement, during the term of this Agreement, the limited, nonexclusive, nontransferrable, nonsublicensable, revocable, worldwide license to install, access, run and execute the Application on one (1) mobile device or equipment owned or controlled by you ("Device") for your internal personal use only (and not for commercial use or resale).
2) COPYRIGHT. The Application is owned by Company or its licensors and is protected by copyright laws of the United States, by laws of other nations, and by international copyright treaties. The Application is licensed, not sold. Except as expressly stated in this Agreement, Company grants you no right or license, express or implied, to the Application or service therein provided ("Service"), including, without limitation, any right to use, copy, publish, display, compile, transmit, broadcast or otherwise exploit the Application or Service. Other than those rights expressly granted herein to you herein, Company reserves all rights in and to the Application and Service, including any and all patent, trademark, copyright, trade secret, intellectual and industrial property rights, now or hereafter known, developed or in existence and in all forms of media throughout the world for Company's use and disposition at its sole discretion without any obligation to you. You are not authorized to use the names of Medivo, PatientPath, Medivo Monitor, GI Monitor, WellApps, +WellApps, MyQOL or any of its trademarks owned or controlled by the Company in any manner whatsoever, absent prior written approval and instruction from the Company.
a) You may not copy the Application except as installed on the Device.
b) You may not sell, rent or lease the Application or otherwise transfer or assign the right to use the Application, or pledge, grant a security interest in, lien on or encumber the Application.
c) You may not use the Service or Application to store or handle any information not owned by you or provided to you with authorized access.
d) You may not use the Service or Application to process or permit to be stored or handled the information of a third party which you are not otherwise authorized access.
e) You may not access the Service or Application with any automated application program other than the Application program on your Device.
f) You may not use the Service or Application for any illegal purpose.
4) COPIES. You may not copy, translate, adapt, modify, alter, decompile, disassemble, or otherwise reverse engineer or create any derivative work of the Application, merge the Application or any part thereof with any other Application or change any Application in whole or in part, nor allow any other party to do so. You must not alter or remove any copyright or other intellectual property notifications applied to the Application. Upon termination of this Agreement for any reason, you will immediately destroy or return to Company the Application and may not use the Application for any reason.
5) THIRD PARTY COMPONENTS. The Application may contain or rely on components that are owned by third parties and have been licensed to Company for distribution within the Application. You may not use third party components in any way whatsoever other than through your authorized use of the Application as a single integrated application.
6) USE OF YOUR INFORMATION. You agree that the Company may collect and use technical and related information, including but not limited to technical information about your Device, software, and peripherals, that is gathered periodically to facilitate the provision of Application updates, product support and other services to you (if any) related to the Services and Application and to verify compliance with the terms of this Agreement. The Company may use this information, as long as it is in a form that does not personally identify you, to improve our products or to provide services or technologies to you.
7) BROWSERS AND OTHER APPLICATION. You represent and warrant that you have all necessary rights in and licenses to any Web browser or other applications necessary to use the Application. You acknowledge that: (a) use of the Application may require use of certain third-party tools or applications; (b) the Application may interact with servers operated by the Company; (c) Company has no obligation to provide you any documentation, including but not limited to, operating manuals, with respect to the Application; and (d) Company is not responsible for any tax consequences of your download or use of the Application, including but not limited to, sales or excise taxes.
8) TERMINATION; SUSPENSION. Either party may terminate this Agreement at any time with or without cause. If you wish to terminate this Agreement and cancel your account with the Company ("Company Account"), you can do so directly within your Company Account as part of the Service. Upon termination, your Company Account will be immediately canceled and you will no longer be able to access your Company Account or information provided by the Company through the Services. In the event you do not receive a response within twenty four (24) hours confirming your cancellation, it is recommended that you re-submit your request or contact us via info@medivo.com for further assistance. The Company, in its sole discretion, has the right to suspend or discontinue your Company Account and modify the Service, or terminate this Agreement and refuse any and all current or future use of the Service, for any reason at any time without prior notice, including for any use of the Application or Service which threatens the security or otherwise harms the Company or others. Upon termination of this Agreement, you must immediately destroy or return to Company the Application and, during any suspension or discontinuance of the Service or termination thereof, may not use the Application for any reason. Termination of this Agreement or suspension of the Company Account will result in the deactivation of your Company Account or your access thereto, and the forfeiture and relinquishment of all current and future content and information in your Company Account or provided through the Services. The Company reserves the right to refuse service to anyone for any reason at any time. The Company shall not be liable to you or to any third party for any modification, price change, suspension or discontinuance of the Service. Upon termination of this Agreement, the following Sections herein shall survive: Sections 2 to 28.
9) WARRANTY DISCLAIMER; PROVIDED INFORMATION. THE INFORMATION ACCESSIBLE BY YOU THROUGH THIS APPLICATION AND SERVICE (INCLUDING ANY INFORMATION LINKED FROM THIS APPLICATION OR SERVICE)("PROVIDED INFORMATION") IS FOR INFORMATIONAL PURPOSES ONLY. THE PROVIDED INFORMATION RELIES UPON AND OTHERWISE IS SUBJECT TO THE CUSTOMER DATA PROVIDED BY THIRD PARTIES AND YOU. THE APPLICATION AND SERVICES (AND PROVIDED INFORMATION) ARE BEING PROVIDED ON AN AS-IS BASIS WITHOUT ANY REPRESENTATION OR WARRANTY. ACCORDINGLY, THE COMPANY DOES NOT ASSERT, AND THE PROVIDED INFORMATION SHALL NOT CONSTITUTE OR CONTAIN, AND COMPANY HEREBY DISCLAIMS, ANY REPRESENTATION, WARRANTY, CERTIFICATION (INCLUDING BUT NOT LIMITED TO ANY EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT OR THOSE ARISING BY LAW, STATUTE, USAGE OF TRADE, COURSE OF DEALING, OR OTHERWISE) OR AGREEMENT, WHETHER AS TO THE ACCURACY, RELIABILTY, SUFFICIENCY, TRUTH, SUITABILITY, QUALITY, VALIDITY, TIMELINESS OR COMPLETENESS OF THE APPLICATION, SERVICES AND PROVIDED INFORMATION (INCLUDING ANY AND ALL CALCULATIONS, TABLES, GRAPHS AND SUMMARIES) OR OTHERWISE. THE COMPANY DOES NOT WARRANT THAT THE SERVICES, APPLICATION OR PROVIDED INFORMATION WILL BE UNINTERRUPTED, ERROR-FREE, SECURE OR WITHOUT DELAY OR FREE FROM DEFECTS, HARMFUL COMPONENTS, VIRUSES OR MALWARE. THE COMPANY DOES NOT WARRANT THAT ANY ERRORS IN THE APPLICATION WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY COMPANY OR A COMPANY REPRESENTATIVE SHALL CREATE A WARRANTY. COMPANY SHALL NOT BE LIABLE FOR ANY DAMAGES SUFFERED AS A RESULT OF USING, MODIFYING, CONTRIBUTING, COPYING, DISTRIBUTING, OR DOWNLOADING THE PROVIDED INFORMATION ON THE APPLICATION OR AS PART OF THE SERVICES. YOU HAVE SOLE RESPONSIBILITY FOR THE ADEQUATE PROTECTION AND BACKUP OF DATA AND/OR EQUIPMENT USED IN CONNECTION WITH THIS APPLICATION OR SERVICES AND YOU WILL NOT MAKE A CLAIM AGAINST COMPANY FOR LOST DATA, RE-RUN TIME, INACCURATE OUTPUT, WORK DELAYS, OR LOST PROFITS RESULTING FROM THE USE OF THE PROVIDED INFORMATION ON THIS APPLICATION OR SERVICE. THE COMPANY DISCLAIMS ALL LIABILITY ARISING OUT OF, RELATED TO OR IN CONNECTION WITH ANY OF THE FOLLOWING: (a) internet or connectivity interruptions or delays; (b) your or any third party's data, equipment, network, servers, applications, properties, cabling, systems, facilities or the Device; (c) scheduled maintenance to the Application or Services; (d) any act or omission by you or any third party; (e) use of the Application or Services which is not permitted hereunder; (f) modifications to the Application by any person other than the Company; and (g) force majeure. Without limiting the generality of the foregoing, you acknowledge and agree that the Service and Provided Information will, from time to time, be subject to interruptions, delays and lag time arising from maintenance, servicing, user activity, user access, connectivity or otherwise and the Company disclaims all liability arising therefrom.
10) NO LIABILITY FOR DAMAGES. The total liability of the Company to you arising out, related to or in connection with this Agreement, the Services or the Application shall not exceed one dollar. You may seek to recover from Company only direct damages as to any claim arising out of, related to or in connection with this Agreement, the Services or the Application. IN NO EVENT WILL COMPANY BE LIABLE TO YOU FOR ANY OTHER DAMAGES, INCLUDING ANY LOSS OF PROFITS, LOSS OF DATA, LOST SAVINGS, OR INCIDENTAL, EXEMPLARY, PUNITIVE, INDIRECT, GENERAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF, RELATED TO OR IN CONNECTION WITH THIS AGREEMENT, THE APPLICATION, THE SERVICES OR YOUR USE OR INABILITY TO USE THE APPLICATION (OR ITS PROVIDED INFORMATION) HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE) EVEN IF THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR THEY ARE FORESEEABLE. THE COMPANY IS NOT RESPONSIBLE FOR CLAIMS BY A THIRD PARTY. SOLELY TO THE EXTENT CERTAIN JURISDICTIONS LIMIT THE EXCLUSION OF DAMAGES OR LIMITATION OF LIABILITY, THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU. IF ANY PART OF THE EXCLUSIONS OF DAMAGES OR LIMITATIONS OF LIABILITY SET FORTH IN THIS AGREEMENT IS UNENFORCEABLE UNDER APPLICABLE LAW, COMPANY'S AGGREGATE LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW, EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE.
11) CONFIDENTIALITY. "Confidential Information" means any proprietary, confidential or trade secret information of the Company and includes the Application and all components thereof. Confidential Information does not include any information which becomes generally known in the public through no fault or omission of you. Unless required by law, you shall not use any Confidential Information other than for the permitted purposes herein and you shall not disclose any Confidential Information to any third party. In the event you are compelled under law to disclose any Confidential Information, you shall provide prompt notice thereof to the Company prior to your disclosure and avail the Company adequate time and reasonable cooperation in order for the Company to seek an adequate remedy to prevent such disclosure.
12) SEVERABILITY. If any provision of this Agreement is declared to be unenforceable, the remainder of this Agreement will continue in full force and effect, and the unenforceable provision will be deemed modified to the extent necessary to comply with the applicable requirements of law, while retaining to the maximum extent permitted by law its intended effect, scope and economic effect.
13) GOVERNING LAW; DISPUTE RESOLUTION. This Agreement shall be governed in all respects by the laws of the state of New York, without regard to conflicts of law. You agree that any controversy or claim arising out of or relating to this Agreement (including the enforceability hereof) shall be settled by mandatory, final and binding arbitration in New York, New York before the American Arbitration Association in accordance with its rules applicable to commercial disputes, provided that Company may seek interim relief in court as it deems necessary to protect its confidential information and intellectual property rights. Any arbitration award rendered pursuant to this provision shall be enforceable worldwide. You agree that venue for any litigation arising under this Agreement or shall be New York County, New York, and you submit to the jurisdiction of the state and federal courts located there.
15) ACCESS CODES. As part of your agreement with Company, you may receive a user name and password (or other means by which you can control access to the data, information and services provided by the Company) as part of your Company Account ("access code"). In such case, you agree to abide by the following terms in this paragraph. You acknowledge that you will be provided or have been provided an access code. You agree that once such access code is provided to you, you shall be solely responsible for maintaining the confidentiality of the access code. Accordingly, you shall be solely and completely responsible for any and all acts or omissions that occur under the access code by you or by any party (other than us) who uses such access code for any purpose whatsoever, whether lawful or unlawful. Without limiting the foregoing, you agree that the access code given to you will be solely used by you. You agree that you will not assign or transfer it to, or commit any act or omission that would result in such access code to be used by, any other party for any purpose whatsoever. You agree to inform Company immediately of any unauthorized use of your access code.
16) INDEMNIFICATION. YOU AGREE TO INDEMNIFY, DEFEND AND HOLD COMPANY HARMLESS FROM ALL CLAIMS, SUITS, ACTIONS, PROCEEDINGS (FORMAL AND INFORMAL), INVESTIGATIONS, JUDGMENTS, DEFICIENCIES, DAMAGES, SETTLEMENTS, LIABILITIES, AND LEGAL AND OTHER EXPENSES SUFFERED BY OR INCURRED BY THE COMPANY, ITS AFFILIATES OR THEIR EMPLOYEES, DIRECTORS, REPRESENTATIVES, CONSULTANTS, OFFICERS, OWNERS OR AGENTS ARISING FROM OR RELATED TO ANY OF THE FOLLOWING: (a) breach or violation by you of this Agreement; (b) personal property damage or personal injury caused by you; (c) your gross negligence or willful misconduct; (d) any breach or violation by you of applicable laws; (e) any of your information or data provided through the Device or the content thereof (including claims of infringement, ownership, libel, defamation, obscenity); (f) use of the Services and Application; and (g) use of the Provided Information and access code by you or others to whom you provided access. Company reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you in which case you agree to cooperate with the Company in asserting any available defense. Any Provided Information provided by the Company as part of the Service is qualified entirely by reference to the original source of the information and you should refer to such original source for qualifications and reference. Such information provided may not be incorporated into any contract. No statement or information shall constitute a legal, business or tax opinion or advice.
17) ADDITIONAL SERVICES. The Service provided does not constitute a commitment to, and Company has no obligation to you to, deliver any additional information, material, code, functionality, enhancement, modification, or update of or support for the Application, although such enhancements, modifications, updates, and support may be made available to you from time to time, may be terminated at any time without notice to you and you bear the sole risk and liability in relying on such information in making any strategic or analytical decisions. The development, release, and timing of any features or functionality of the Application remain at the sole discretion of Company, and all information provided may change without notice.
18) HYPERLINKS. This Application may contain hyperlinks to sites operated by third parties. Access to any other site is at your own risk. Such links are provided as a convenience and the inclusion of such links does not imply an endorsement or guarantee of the products or services of those operators. Company is not responsible for the reliability of such sites nor is Company responsible for any information or other materials on such sites. Company's inclusion of hyperlinks to such sites does not imply any association with their operators. Company does not warrant or endorse and does not assume and will not have any liability or responsibility for any third-party materials or web sites, or for any other materials, products, or services of third parties. You agree that you will not use any third-party materials in a manner that would infringe or violate the rights of any other party, and that Company is not in any way responsible for any such use by you.
19) EXPORT CONTROL. User access to Application is governed by all applicable federal, state and local laws. All information accessed is subject to U.S. export control laws and may also be subject to the laws of the country where you reside. You may not use or otherwise export or reexport the Application except as authorized by United States law and the laws of the jurisdiction in which the Application was obtained. In particular, but without limitation, the Application may not be exported or re-exported (a) into any U.S. embargoed countries or (b) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person's List or Entity List. By using the Application, you represent and warrant that you are not located in any such country or on any such list. You also agree that you will not use these products for any purposes prohibited by United States law, including, without limitation, the development, design, manufacture or production of missiles, or nuclear, chemical or biological weapons.
20) SENSITIVE INFORMATION. You may be granted access to information that is sensitive and personal in nature. You agree to not disclose or use such information except in compliance with applicable laws and in connection with lawful, legitimate, and bona fide purposes.
21) CONSTRUCTION. The headings and captions of this Agreement are provided for convenience only and are intended to have no effect in construing or interpreting this Agreement. The language in all parts of this Agreement shall be in all cases construed according to its fair meaning and not strictly for or against either party. Any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not apply to interpreting this Agreement.
22) RIGHTS CUMULATIVE. The rights and remedies provided by this Agreement are cumulative, and the exercise of any right or remedy by either party hereto (or by its successor), whether pursuant to this Agreement, to any other agreement, or to law, shall not preclude or waive its right to exercise any or all other rights and remedies.
23) FORCE MAJEURE. Neither party shall be liable for any failure or delay in performance under this Agreement (other than for delay in the payment of money due and payable hereunder) to the extent said failures or delays are proximately caused by Acts of God, Government restrictions, acts of terrorism, natural catastrophes, wars, insurrections and/or any other cause beyond the reasonable control of the party whose performance is affected and occurring, provided that, as a condition to the claim of nonliability, the party experiencing the difficulty shall give the other prompt written notice, with full details following the occurrence of the cause relied upon. Dates by which performance obligations are scheduled to be met will be extended for a period of time equal to the time lost due to any delay so caused.
24) NOTICES. Any notice, request, consent or approval required or permitted to be given under this Agreement or pursuant to law shall be sufficient if in writing, and if and when sent by certified or registered mail, with postage prepaid, to the recipient's office.
25) ASSIGNMENT. You shall not be permitted to assign or delegate your rights or duties hereunder to any person. This Agreement is entered into solely for the benefit of Company and you and no other person shall be considered a third party beneficiary to the terms hereof.
26) UCITA and UNCCISG Not applicable. The Uniform Computer Information Transaction Act and United Nations Convention on Contracts for the International Sale of Goods do not govern this Agreement.
27) SEVERABILITY. If one or more of the provisions contained in the Agreement is found to be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions shall not be affected. Such provisions shall be revised only to the extent necessary to make them enforceable.
28) WAIVER. No action of either party, other than express written waiver, may be construed as a waiver of any provision of this Agreement. A delay on the part of either party in the exercise of its rights or remedies will not operate as a waiver of such rights or remedies, and a single or partial exercise by either party of any such rights or remedies will not preclude other or further exercise of that right or remedy. A waiver of a right or remedy on any one occasion will not be construed as a bar to or waiver of rights or remedies on any other occasion.