Minerva Medical Simulation Inc.
Mobile Application End User License Agreement
This Mobile Application End User License Agreement (this “Agreement”) is a legally binding agreement between you (“you”) and Minerva Medical Simulation Inc. (“Company”). This Agreement governs your use of Company’s FULL CODE mobile application (including all related documentation, the “App”). References in this Agreement to “you” or “your” refer to both you and any organization on whose behalf you act, if any.
IMPORTANT- READ CAREFULLY: By clicking the “AGREE” button, or downloading, installing or using the App, you (a) acknowledge that you have read and understand this Agreement, and (b) accept this Agreement and agree that you are legally bound by its terms and conditions. If you do not agree with these terms and conditions, you may not download, install or use the App, and you must immediately delete and permanently purge it from your device (if already downloaded). Your use of the App is subject to the below terms and conditions of this Agreement.
Subject to your compliance with all of the terms of this Agreement, the Company hereby grants you a limited, revocable, non-exclusive, non-transferable, non-sublicensable right to download, install and use one copy of the App for the sole purpose of your personal non-commercial use on any electronic devices you own or control. This Agreement does not provide you with title to or ownership of the App, but only a limited license to use the App in accordance with the terms of this Agreement. All rights that are not expressly granted to you in this Agreement are retained by the Company and its licensors.
The term of this license shall commence upon your earlier installation or use of the App and ends upon the earlier of: (a) you deleting and permanently purging all copies of the App in your possession from any computer, mobile device or other medium on which you have stored or installed it; (b) your failure to comply with the terms or conditions of this Agreement; or (c) Company terminating this license at any time, with or without notice, in its discretion, including if it ceases to support the App. In the event this license terminates for any reason, then all rights and licenses granted to you hereunder shall terminate, you shall cease to use the App, and you shall delete and permanently purge all copies of the App from any computer, mobile device or other medium on which you have stored or installed it. The restrictions and terms in Sections 2 through 7 below shall survive termination of this license and Agreement.
2. Content and Services; Settings
By using the App, you further agree that the Company may change, alter, or modify the settings or configurations on your device used to access the App in order to allow for or optimize your use of the App.
3. Restrictions on Use
You shall not, and shall not permit any third party, to: (i) modify or create any derivative work of the App or any part of the App; (ii) reverse engineer, decompile or disassemble the App, in whole or in part; (iii) use the App for any commercial purpose; (iv) distribute, rent, lease, lend, sell, license, assign, export, import, convey or otherwise grant rights to third parties with regard to the App or any copies or any part of the App; (v) make a copy (other than a backup copy) of the App or any part of the App (other than as expressly permitted herein); (vi) use or install the App on a network or for on-line use; (vii) remove, modify or obscure any copyright, trademark, or other proprietary notice, author attributions, legal notices or other labels appearing within the App; (viii) export or transport the App into any country in violation of any U.S. or other export laws and regulations; or (ix) use the App to develop or market any product, software or service that is functionally similar to or derivative of the App, any of the Content and Services, or any other Company product, software or service.
The App may require an Internet connection to access or enable certain features of the App, authenticate that you have a valid license to the App, or perform other functions. If the device on which the App is installed does not have Internet access and the App does not have the necessary permissions to fully access such Internet access, then the App or certain features of the App may not operate or may cease to function properly, either in whole or in part.
The App may include digital rights management controls and other technical measures to control access to the App, prevent unauthorized copies, or otherwise attempt to prevent anyone from exceeding the limited rights and licenses granted under this Agreement. Only App subject to a valid license can be used to download updates and access any Content and Services. You may not interfere with such access control measures or attempt to disable or circumvent such security features.
4. Ownership and Proprietary Rights
The Company and its licensors are the sole owners of the App and of all right, title and interest therein, including, but not limited to, all copyright, trade secret, patent, trademark and other intellectual property rights in and to the App, and including with respect to the App code, algorithms, graphics, characters, and audiovisual elements that comprise or are displayed by the App. The App is protected by copyright and other intellectual property laws and treaties. The App is licensed, not sold. You acknowledge and agree that any unauthorized use of the App is a violation of this Agreement as well as a violation of intellectual property laws, including, without limitation, copyright laws and trademark laws.
You represent and warrant to the Company that: (i) when downloading and registering this App you have provided, and will continue to provide, information that is correct and current; (ii) your performance under this Agreement and use of the App will comply with all applicable laws, rules and regulations (including, without limitation, export control, privacy and obscenity laws), domestic or foreign; (iii) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (iv) that you are not listed on any U.S. Government list of prohibited or restricted parties.
5. Information Collected by the Company and Privacy
6. Disclaimer of Representations and Warranties; Limitation of Liability
The App is provided “as is” and with all faults, and the Company makes no representation or warranty with respect to the performance or function of the App or with respect to benefits you may attain from use of the App. The Company, to the full extent permitted by applicable law (some jurisdictions limit disclaimers of consumer warranties), hereby disclaims any and all representations and warranties, express or implied, by operation of law or otherwise, regarding or relating to the App or any benefits you may attain from use of the App, including, but not limited to, any warranties of merchantability or fitness for a particular purpose, or of reliability or availability or that the App will be uninterrupted or error free or that it will be interoperable with any other application or service.
To the maximum extent permitted by applicable law, the Company and its licensors will not be liable for any special, incidental, indirect, consequential, exemplary, or punitive damages resulting from your use, misuse or possession of the App, including from the malfunction of or inability to use the App, including, but not limited to, damages to property, computer failure, loss of revenue, profits or goodwill, unauthorized access to or alteration of, or loss of or damage to, your transmissions of data or any other matter relating to the information or content contained within or accessed through the App, personal injuries from any causes of action arising out of or related to this Agreement or the App, whether resulting from breach of contract, tort or other legal liability whatsoever, even if the Company has been advised of the possibility of such damages. The maximum aggregate liability of the Company arising out or relating to this Agreement and your use and possession of the App shall not exceed the total fees paid by you for your license to the App.
THE COMPANY IS NOT A MEDICAL SERVICE AND DOES NOT PROVIDE PROFESSIONAL MEDICAL OR CLINICAL SERVICES OR ADVICE. THE CONTENT AND SERVICES PROVIDED BY THE APP DO NOT CONTAIN OR CONSTITUTE, AND SHOULD NOT BE INTERPRETED AS, MEDICAL OR CLINICAL ADVICE OR OPINION. NO DOCTOR-PATIENT RELATIONSHIP IS CREATED. USE OF THE APP IS NOT FOR MEDICAL EMERGENCIES. IF YOU THINK SOMEONE IS HAVING A MEDICAL EMERGENCY, CALL 911.
No Doctor-Patient Relationship. Any and all Content and Services provided by, in and/or through the App are for informational purposes only. The Company is not a health care provider, and does not provide medical services or render medical advice. Nothing contained in the App should be construed as such advice or diagnosis. The information and reports generated by us should not be interpreted as a substitute for physician consultation, evaluation, or treatment, and the information made available on or through the App should not be relied upon when making medical decisions, or to diagnose or treat a medical or health condition. YOUR USE OF THE APP DOES NOT CREATE A DOCTOR-PATIENT RELATIONSHIP BETWEEN YOU AND THE COMPANY.
No Medical or Clinical Services. You acknowledge and agree that information from the Company does not constitute medical care or clinical services. You should not change your professional behaviors solely on the basis of information from the Company. Make sure to discuss your results with a physician or other health care provider before you act upon the information provided by the App. If you have concerns or questions about information provided by the App, you should contact your physician or other health care provider.
Medicine is an ever-changing science. As new research and clinical experience broaden our knowledge, changes in treatment and drug therapy are required. The authors and publisher of the App have checked with sources believed to be reliable in their efforts to provide information that is complete and generally in accord with the standards accepted at the time of production. However, in view of the possibility of human error or changes in medical science, neither the authors nor the publisher nor any other party who has been involved in the production of the App warrants that the information contained herein is in every respect accurate or complete, and disclaim all responsibility for any errors or omissions or for the results obtained from the use of the information contained in the App. Users are encouraged to confirm the information contained herein with other sources. For example, and in particular, users are advised to check the product information sheet included in the package of each drug they plan to administer to ensure that the information contained in this program is accurate and that changes have not been made in the recommended dose or contraindications for administration. This recommendation is of particular importance in connection with new or infrequently used drugs. Correct application of information in clinical practice is the sole responsibility of the individual practitioner to ensure it is congruent with current and accepted standards of clinical practice.
You should contact the Company concerning any defects or performance issues in the App using the contact information provided below. Company will make reasonable efforts to respond to questions relating to the App, but makes no representation or warranty that it will resolve all questions or that questions will be answered within a given time. Company shall be under no obligation to provide any other support or maintenance services for the App. The market or application store from where you downloaded the App has no responsibility to provide support and maintenance for the App or its installation, and all requests for any support and maintenance, and any complaints, with respect to the App should be addressed to the Company by email at firstname.lastname@example.org.
(a) You may not assign, sublicense, or transfer any of your licenses, rights, or obligations under this Agreement without the written consent of the Company (in its sole discretion). The Company may freely assign this Agreement, in whole or part, including to an affiliate or to a successor in interest to the App. Any assignment, sublicense, or transfer by you in violation of this subsection shall be void and without force or effect. Subject to the foregoing, this Agreement will bind and inure to the benefit of each party’s permitted successors and assigns.
(b) Company may from time to time in its sole discretion develop and provide App updates, which may include new versions, upgrades, bug fixes, patches and other error corrections and/or new features (collectively, including related documentation, “Updates”). Updates may also modify or delete in their entirety certain features and functionality. You agree that Company has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality. Based on your mobile device settings, when your device is connected to the internet either: (1) the App will automatically download and install all available Updates; or (2) you may receive notice of or be prompted to download and install available Updates. You shall promptly download and install all Updates and acknowledge and agree that the App or portions thereof may not properly operate should you fail to do so. You further agree that all Updates will be deemed part of the “App” and be subject to all terms and conditions of this Agreement unless they are subject to a different Company license agreement. The Company reserves the right to discontinue any Content and Services and to discontinue supporting the App or its network, in whole or in part.
(c) You acknowledge that the App may be subject to U.S. export jurisdiction. You agree to comply with all applicable international and national laws that may apply to the App, including the U.S. Export Administration Regulations, as well as end-user, end-use and destination restrictions issued by U.S. and any other applicable governments. The information provided in connection with the App is not intended for distribution to or use by any person or entity in any jurisdiction or country where such distribution or use would be contrary to law or regulation or which would subject the Company to any registration requirement within such jurisdiction or country. This App is controlled by the Company from its offices within the United States of America and the Company makes no representation that the App, or any of the Content and Services, are appropriate or available for use in other locations. Those who choose to access the App from other locations do so on their own initiative and risk and are responsible for compliance with local laws regarding online conduct and acceptable content, if and to the extent local laws are applicable
(d) All questions concerning the validity, operation, interpretation, and construction of the Agreement will be governed by and determined in accordance with the substantive laws of the Commonwealth of Massachusetts without regard to its conflicts of law provisions. The United National Convention for the International Sale of Goods shall not apply.
(e) We will attempt to resolve disputes with users of the App to their satisfaction. If, however, a matter arises that cannot be resolved promptly between you and us, you agree that any disputes arising out of or relating to the App or this Agreement (including the validity and scope of the agreement to arbitrate and any disputes with other users of the App) shall be resolved exclusively by final and binding arbitration administered by the American Arbitration Association (“AAA”) under the Federal Arbitration Act, and shall be conducted before a single arbitrator pursuant to the applicable Rules and Procedures established by the AAA (for information on the AAA and its rules, see adr.org). You agree that the arbitration shall be held in Boston, Massachusetts, unless the AAA or the arbitrator shall determine that venue in such city is unreasonably burdensome, in which case the AAA or the arbitrator shall select a venue that is not unreasonably burdensome to both you and us. You agree that, if the AAA shall be unavailable or decline to administer the arbitration, and the parties do not agree on a substitute, a substitute administrator or arbitrator shall be appointed by the court. This provision shall not apply to claims of patent, trademark, or copyright infringement or misappropriation of trade secrets. In addition, you or we may elect to bring an individual claim in a small claims court, but we do not hereby agree to any personal jurisdiction that is otherwise lacking.
You agree that any arbitration shall not permit claims on a class, mass, representative, or private attorney general basis. You further agree that no claims of other parties may be consolidated with your or our claims in the arbitration without both your and our consent. YOU ARE WAIVING YOUR RIGHTS TO HAVE YOUR CASE DECIDED BY A JURY AND TO PARTICIPATE IN A CLASS, MASS, REPRESENTATIVE, PRIVATE ATTORNEY GENERAL, OR CONSOLIDATED ACTION AGAINST US.
If any part of this Arbitration clause is later deemed invalid as a matter of law, then it shall be severed and the remaining portions of this section shall remain in effect, with the exception that if the preceding paragraph is deemed invalid, then this entire section shall be deemed invalid and the arbitration clause shall be void.
(f) Any delay or failure on the part of the Company to exercise or enforce any rights under this Agreement to which it may be entitled shall not, in any event, be construed as a waiver of the right and privilege to do so at any subsequent time. Any waiver by Company must be in writing to be enforceable, and then shall not apply to any other time, right or privilege. You irrevocably agree that you waive any and all rights to injunctive or other equitable relief.
(g) You agree that regardless of any statute or law to the contrary, any claim or cause of action, arising out of or related to, use of the App or this Agreement must be commenced within one (1) year after such claim or cause of action arose or be forever barred.
(h) This Agreement is the complete and exclusive agreement between you and the Company regarding the App and your license to the App and it supersedes and renders null and void any and all prior agreements, understandings, representations, conditions, and other communications between the Company and you with respect thereto. If any provision of this Agreement is held to be void, invalid, unenforceable or illegal, it shall be severed to the minimum extent required for the other provisions to continue in full force and effect. The Agreement may be modified from time-to-time by the Company at the same time when the App is Upgraded and your continued use of the App after such Upgrade means that you have agreed to accept any changes or modifications made by the Company to this Agreement. Otherwise, this Agreement may only be modified by a writing signed by Company. All section headings contained in this Agreement are for convenience of reference only, do not form a part of this Agreement and are not to be considered in construing or interpreting this Agreement.
(i) This Agreement constitutes a valid and binding agreement between the Company and you, as a user, for the use of the App. You hereby agree and acknowledge that this Agreement covers all your use of the App, whether it be from this installation or from any other device or medium where the App has been installed, by you or by third parties. Furthermore, by installing and continuing to use the App you agree to be bound by the terms of this Agreement and any new versions hereof.
(j) You agree that Company’s licensors are third-party beneficiaries of this Agreement, with the right to enforce relevant provisions relating to their intellectual property.
(k) The App is commercial computer software, as such term is defined in 48 C.F.R. §2.101. Accordingly, if you are an agency of the US Government or any contractor therefor, you receive only those rights with respect to the App as are granted to all other end users under this Agreement, in accordance with (a) 48 C.F.R. §227.7201 through 48 C.F.R. §227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. §12.212, with respect to all other US Government licensees and their contractors.
8. Terms Applicable if Accessing the App Through an Apple Device
If you are accessing or using the App through an Apple device, the following additional terms and conditions are applicable to you and are incorporated into the Agreement by this reference:
(a) To the extent that you are accessing the App through an Apple device, you acknowledge that this Agreement is entered into between you and the Company and, that Apple, Inc. (“Apple”) is not a party to this Agreement other than as third party beneficiary as contemplated by Section 8(h) of this Agreement below. You acknowledge that the Company, and not Apple, is responsible for providing the App and content thereof.
(b) The license to the App granted in Section 1 of this Agreement is further limited to installing and using the App only on an iPhone or iPad that you own or control and as permitted by the Usage Rules set forth in the App Store Terms of Service (see www.apple.com/legal/itunes/us/terms.html). For purposes of clarity, the license granted to you in Section 1 of this Agreement is non-transferable.
(c) You acknowledge that Apple has no obligation whatsoever to furnish any maintenance or any support services to you with respect to the App. To the extent that there are any such maintenance or support obligations under applicable law or the terms of this Agreement, the Company is solely responsible.
(d) In the event of any failure of the App to conform to any applicable warranty (none of which is granted under this Agreement), you may notify Apple, and Apple will refund the purchase price for the App to you (if any); and that, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty (if any after giving effect to the disclaimers or warranty and limitations of liability in this Agreement) will be the Company’s sole responsibility.
(e) Notwithstanding anything to the contrary herein, and subject to the terms in this Agreement, you acknowledge that, solely as between Apple and the Company, the Company, and not Apple is responsible for addressing any claims you or any third party may have relating to the App, or your possession and/or use thereof, including, but not limited, to: (i) product liability claims, (ii) any claim that the App fails to confirm to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. This Agreement does not limit the Company’s liability to you beyond what is permitted by applicable law.
(f) You agree that in the event of a third party claim that the App or your possession and use of the App infringes on a third party’s intellectual property rights, the Company (and not Apple) will be solely responsible for any investigation, defense, settlement and discharge of any such intellectual property infringement claims.
(g) If you have any questions, complaint or claims with respect to the App they should be directed to the Company by email at email@example.com.
(h) You acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of this Agreement, and that, upon your acceptance of the terms and conditions of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third party beneficiary thereof.