BY DOWNLOADING AND INSTALLING THIS MOBILE APPLICATION (THIS “APP”), YOU:(A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS END USER LICENSE AGREEMENT AND TERMS OF USE (THIS “AGREEMENT”); (B) REPRESENT THAT YOU ARE OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT; AND (C) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS. IF YOU DO NOT AGREE TO THESE TERMS, THEN DO NOT DOWNLOAD AND INSTALL THIS APP AND DELETE IT FROM YOUR DEVICES.
1. License Grant. Subject to the terms of this Agreement, AWARE ENTERPRISES, LLC(“Company”) grants you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to download, install and use this APP for your personal, non-commercial use on one or more mobile devices,tablets or computers owned or controlled by you or Customer, as applicable (each, a “Device”), strictly in accordance with this APP’s documentation. You acknowledge that Company has entered into a Customer Agreement with the doctor’s office, hospital or other medical services provider (“Customer”) from which you obtained the invitation to download and install this APP and that all rights you have to use this APP is derivative of and subject to the rights granted to Customer in such Customer Agreement
2. License Restrictions. You shall not: (a) reproduce, transfer, modify, transmit or distribute thisAPP or any source code or documentation with respect to this APP; (b) remove or modify any programmarkings or any notice of Company’s or its licensors’ proprietary rights in this APP or related documentation;(c) modify, make derivative works of, disassemble, decompile or reverse engineer any part of this APP (the foregoing prohibition includes review of data structures or similar materials produced by programs); (d)export, market, promote, license or sell this APP or any of its components, or access or use the software in order to build or support or assist a third party in building or supporting products or services competitive to Company or use this APP to create or develop any service, interface or software that competes with this APP;(e) disable or circumvent any security features of this APP; (f) license, sell, rent, lease, transfer, assign,distribute, display, host, outsource, disclose, permit time sharing or service bureau use or otherwise commercially exploit or make this APP; (g) use this APP in any manner that violates any applicable law; or (h)engage in or permit any use of this APP that does not conform to any documentation related thereto.
3. Reservation of Rights. You acknowledge and agree that this APP is provided under license,and not sold, to you. You do not acquire any ownership interest in this APP under this Agreement, or any other rights thereto other than to use this APP in accordance with, and subject to all terms, conditions and restrictions set forth in, this Agreement and this APP’s documentation. Company and its licensors and service providers, as applicable, reserve and shall retain their respective right, title and interest in and to this APP,including all copyrights, trademarks and other intellectual property rights therein or relating thereto, except as expressly granted to you in this Agreement.
4. Collection and Use of Your Information. You acknowledge that when you download, install or use this APP, Company may use automatic means (including, for example, cookies and web beacons) to collect information about your Devices and about your use of this APP. You also may be required to provide certain information about yourself as a condition to downloading, installing or using this APP or certain of its features or functionality, and this APP will provide you with opportunities to share information about yourself with Customer and Customer’s authorized personnel with access to this APP, including information which constitutes “Protected Health Information,” as such term is defined under the Health Insurance Portability And Accountability Act of 1996 (“HIPAA”) and that this APP will be used to access, store and process such Protected Health Information. Protection and use of any Protected Health Information is governed by HIPAA and a Business Associate Agreement entered into by and between Company and Customer. All information Company collects through, or in connection with, this APP is subject to Company’s Privacy Policy (www.1teamsurgical.com/legal-and-privacy-statement). By downloading, installing, using and providing information to or through this APP, you consent to all actions taken by us with respect to your information in compliance with the Privacy Policy
5. Updates. Company may, from time to time, in its sole discretion, develop and provide orlease APP: (a) updates, which may include minor error corrections, security patches and/or performance improvements of existing functionality (collectively, “Updates”); and/or (b) upgrades of this APP containing new features, functionality and/or performance improvements which may extend the useful life of this APP(“Upgrades”). Company shall determine, in its sole discretion, what constitutes an Update or an Upgrade.Updates and Upgrades may also modify or delete in their entirety certain features and functionality. You agree that Company has no obligation to provide any Updates or Upgrades or to continue to provide or enable any particular features or functionality. Based on your Device settings, when your Device is connected to the internet either: (i) this APP will automatically download and install all available Updates or Upgrades; or (ii)you may receive notice of, or be prompted to, download and install available Updates or Upgrades. You shall promptly download and install all Updates and Upgrades and acknowledge and agree that this APP or portions thereof may not properly operate should you fail to do so. You further agree that all Updates and Upgrades Will be deemed part of this APP and be subject to all terms and conditions of this Agreement.
6. No Included Maintenance and Support. Company may deploy changes, updates enhancements to this APP at any time. Company may provide maintenance and support for this APP, but has no obligation whatsoever to furnish such services to you and may terminate such services at any time without notice.
7. Third-Party Materials. This APP may display, include or make available third-party content(including data, information, applications and other products, services and/or materials) or provide links to third-party websites or services, including through third-party advertising (“Third-Party Materials”). You Acknowledge and agree that Company is not responsible for Third-Party Materials, including their accuracy,completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect thereof.Company does not assume and will not have any liability or responsibility to you or any other person or entity for any Third-Party Materials. Third-Party Materials and links thereto are provided solely as a convenience to you, and you access and use them entirely at your own risk and subject to such third parties’ terms and conditions.
8. Feedback. Company welcomes feedback, comments and suggestions from you for improvements to this APP (“Feedback”). You can submit Feedback to Company by emailing us at info@1teamsurgical.com. You grant to Company a non-exclusive, worldwide, perpetual, irrevocable, fully paid, royalty-free, sub licensable and transferable license under any and all intellectual property rights that you own or control to use, copy, modify, create derivative works based upon and otherwise exploit the Feedback For any purpose.
9. Term and Termination. The term of this Agreement commences when you install this APP and will continue in effect until terminated by you or Company as set forth in this Section 9. You may terminate this Agreement by deleting this APP and all copies thereof from your Devices. Company may terminate this Agreement at any time without notice. In addition, this Agreement will terminate immediately and automatically without any notice: (a) upon the expiration or earlier termination of the Customer Agreement; or (b) if you violate any of the terms and conditions of this Agreement. Upon termination: (i) all rights granted to you under this Agreement will also terminate; and (ii) you must cease all use of this APP and delete all copies of this APP from your Devices. Termination will not limit any of Company’s rights or remedies at law or in equity. The provisions of Sections 2, 4, 8, 10 through 11, 13, and 15 through 19 shall survive termination of this Agreement by any party and for any reason or no reason.
10. Disclaimer of Warranties. THIS APP IS PROVIDED TO YOU “AS-IS” AND WITH ALL FAULTS AND DEFECTS, WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, COMPANY, ON ITS OWN BEHALF AND ON BEHALF OF 3 ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, AS APPLICABLE, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED,STATUTORY OR OTHERWISE, WITH RESPECT TO THIS APP, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING,COURSE OF PERFORMANCE, USAGE OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, COMPANY PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THIS APP WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE OR WORK WITH ANY OTHER SOFTWARE,APPLICATIONS, SYSTEMS OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR-FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
11. Limitation of Liability.TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT, WILL COMPANY OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, AS APPLICABLE, HAVE ANY LIABILITY ARISING FROM, OR RELATED TO, YOUR USE OF, OR INABILITY TO USE, THIS APP OR FOR ANY: (a) PERSONAL INJURY, PROPERTY DAMAGE, LOST PROFITS, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OF DATA, LOSS OF GOODWILL, BUSINESS INTERRUPTION,COMPUTER FAILURE OR MALFUNCTION OR ANY OTHER CONSEQUENTIAL, INCIDENTAL,INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES; AND (b) DIRECT DAMAGES IN AMOUNTS THAT, IN THE AGGREGATE, EXCEED THE AMOUNT ACTUALLY PAID BY YOU FOR THIS APP. THE FOREGOING LIMITATIONS WILL APPLY WHETHER SUCH DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR COMPANY WASADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF, OR RELATING TO, THIS AGREEMENT OR THIS APP MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION OCCURS, OTHERWISE SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
12. Customer Obligations. You acknowledge and agreement that information provided by this APP is intended to assist Customer’s authorized personnel in the performance of their medical and administrative responsibilities, that this APP is not a substitute for such authorized personnel’s medical or otherwise professional judgment, and that such authorized personnel must override the information provided by this APP when necessary in the exercise of such authorized personnel’s medical or otherwise professional judgment.
13. Indemnification. You agree to indemnify, defend and hold harmless Company and its officers, directors, employees, agents, affiliates, successors and assigns from and against any and all losses,damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines,costs or expenses of whatever kind, including reasonable attorneys’ fees, arising from, or relating to, your use or misuse of this APP or your breach of this Agreement, including, but not limited to, the content you submit or make available through this APP.
14. Export Regulation. This APP may be subject to United States export control laws, including the Export Control Reform Act and its associated regulations. You shall not, directly or indirectly, export, reexport or release this APP to, or make this APP accessible from, any jurisdiction or country to which export,re-export or release is prohibited by law, rule or regulation. You shall comply with all applicable federal laws,regulations and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing or otherwise making this APP available outside the United States.
15. Severability. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, then: (a) such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction; and (b) the remainder of the provision will be amended to achieve, as closely as possible, the effect of the original term and all other provisions of this Agreement will continue in full force and effect.
16. Governing Law. This Agreement is governed by, and construed in accordance with, the internal laws of the State of Georgia without giving effect to any choice or conflict of law provision or rule that would require or permit the application of laws of any jurisdiction other than those of the State of Georgia.Any legal suit, action or proceeding arising out of, or related to, this Agreement or this APP shall be instituted exclusively in the federal courts of the United States or the courts of the State of Georgia, in each case, located in the City of Atlanta and County of Fulton. You waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts.
17. Assignment. You may not assign or transfer any rights or obligations under this Agreement,by operation of law or otherwise, without Company’s prior written consent, and any attempt by you to do so,without such consent, will be null and of no effect. Company may freely assign or transfer its rights and obligations under this Agreement without restriction. Subject to the foregoing, this Agreement will be binding upon, and inure to the benefit of, the parties hereto, their successors and permitted assigns.
18. Entire Agreement. This Agreement and our Privacy Policy constitute the entire agreement between you and Company with respect to this APP and supersede all prior or contemporaneous understandings and agreements, whether written or oral, with respect to this APP.
19. Waiver. No failure to exercise, and no delay in exercising, on the part of either party, any right or any power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or power hereunder preclude further exercise of that or any other right hereunder. In the event of conflict between this Agreement and any applicable purchase or other terms, then the terms of this Agreement Shall govern.
20. Changes to this Agreement. Company reserves the right to modify this Agreement at anytime and for any reason. Company will post the most current version of this Agreement at www.1teamsurgical.com/legal-and-privacy-statement. If Company makes material changes to this Agreement, then you will receive notification via this APP. Notwithstanding the foregoing, you are responsible for complying with the updated terms posted online at Company’s website even if these updated terms appear online at Company’s website before being posted on this APP. If you do not agree with changes made to this Agreement, you may terminate this Agreement and discontinue use of the APP, including removing it from all Devices. Your continued use of this APP after Company publishes notice of changes to this Agreement indicates your consent to the updated terms.
