Your use of the mobile app “Pulmonaer” and any successor or related app (the “Licensed Application”) and any Services (as defined below) is subject to these terms of service, as modified from time to time (this “EULA”). The Licensed Application is licensed, not sold, to you for use only under the terms of this non-exclusive license. Pulmonaer Analytics, LLC (“Pulmonaer”) reserves all rights not expressly granted to you. If you do not accept this EULA, do not use the Licensed Application.
- Services; Not Medical Advice. You are licensed to use the Licensed Application solely for the purposes of providing information intended to supplement and assist you in self-managing your asthma or certain other respiratory diseases or conditions without providing specific treatment suggestions as well as providing you with tools to help organize and track your health information and provide general information regarding asthmatic or other respiratory conditions, healthy living and similar information (collectively, the “Services”). You acknowledge and agree that (1) the Licensed Application and/or Services do not constitute medical care, treatment, or advice, (2) you cannot rely on the accuracy, delivery or receipt of any information transmitted or attempted to be transmitted by or through the Licensed Application including, without limitation, for the purpose of communicating medical conditions or making medical judgments or diagnoses; and (3) you must comply with the care and instructions provided by your physician or other medical professional related to any disease or condition. You agree to verify all information provided through the Licensed Application with a qualified medical professional to verify its accuracy, completeness, and appropriateness for your specific situation. Pulmonaer does not practice medicine or any other licensed profession, and does not interfere with the practice of medicine or any other licensed profession by your provider, each of whom is responsible for his or her services and compliance with the requirements applicable to his or her profession and license. Neither Pulmonaer nor any third parties who promote the Licensed Application or Services shall be liable for any professional advice you obtain from a provider, whether or not obtained via the Services. You acknowledge that the Services you receive through the Licensed Application are not intended to replace your provider relationship or standard patient visits. You should seek emergency help or follow-up care when recommended by a provider or when otherwise needed, and continue to consult with your provider as recommended.
- Applicability of EULA. By doing any of the following, you agree to this EULA: (a) clicking “I accept” in the Licensed Application; (b) registering an account in the Licensed Application; or (c) using the Licensed Application. Upon such acceptance, Pulmonaer grants to you a limited, non-exclusive, non-transferable, non- sublicensable license to use the Licensed Application for your use on a personal computer, tablet, or mobile device (each a “Device”) that you own or control and in compliance with this EULA. You consent to receive communications, disclosures and notices sent to you by e-mail from Pulmonaer from time to time. Any Marketplace through which you received the Licensed Application is a third party beneficiary of this EULA and the Marketplace or its parent or subsidiaries may enforce this EULA, up to and including removal of the Licensed Application from the Marketplace and any Device for any violation of this EULA. You may reinstall the Licensed Application on Device(s) that you own and control as permitted by the Marketplace Terms.
- Beta Testing.
a. If you are provided access to or participate in any beta test of the Licensed Application then, notwithstanding anything to the contrary herein, you (a “Beta Tester”) agree to report to Pulmonaer on the performance of the Licensed Application, including but not limited to (i) notifying Pulmonaer promptly via e-mail or phone of any and all problems, issues, and faults related to the Licensed Application and (ii) providing Pulmonaer any ideas for improvements and enhancements for the Licensed Application. Beta Tester further agrees to allow Pulmonaer or its designees to remotely monitor the Licensed Application and collect operational data and usage regarding the Licensed Application.b. BETA TESTER ACKNOWLEDGES AND AGREES THAT THE LICENSED APPLICATION AND ITS COMPONENTS ARE PROVIDED IN “AS-IS” CONDITION. PULMONAER MAKES, AND BETA TESTER RECEIVES, NO WARRANTIES OF ANY KIND IN CONNECTION WITH THE LICENSED APPLICATION, OR MODIFICATIONS OR IMPROVEMENTS THERETO, WHETHER EXPRESS OR IMPLIED PURSUANT TO THIS EULA. PULMONAER SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. IN NO EVENT SHALL PULMONAER BE LIABLE FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES, EVEN IF PULMONAER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
c. Confidentiality. In the course of using the Licensed Application, Beta Tester may obtain information relating to the Licensed Application’s development and Pulmonaer that is of a confidential and proprietary nature (“Confidential Information”). Such Confidential Information may include, but is not limited to, the Licensed Application, ideas, code, enhancements, flowcharts, diagrams, manuals, schematics, development tools, specifications, design documents, trade secrets, know how, invention techniques, processes, data, sales and marketing plans and information, financial information, or business plans. Confidential Information shall not include information that (i) has entered the public domain except where such entry is the result of Beta Tester’s breach of this EULA; (ii) before disclosure hereunder was already in Beta Tester’s possession; or (iii) subsequent to disclosure hereunder is obtained by Beta Tester on a non-confidential basis from a third party who has the right to disclose such information to Beta Tester. Beta Tester shall at all times keep in trust and confidence all Confidential Information, and shall not use such Confidential Information other than as expressly authorized by Pulmonaer under this EULA, nor shall Beta Tester disclose any such Confidential Information to third parties without Pulmonaer’s express written consent unless disclosure is required by law. Beta Tester further agrees to immediately return to Pulmonaer all Confidential Information (including copies thereof) in Beta Tester’s possession, custody, or control upon termination of this EULA for any reason. Without limiting the generality of the foregoing, Beta Tester specifically agrees not to (i) discuss the details, results, or status of the beta test or any features of the Licensed Application with any persons other than Beta Tester’s owners, officers, directors, employees, patients and designated representatives of Beta Tester who have a need to know such information; (ii) demonstrate, copy, sell, or market the product to any third party; (iii) publish or otherwise disclose information relating to performance or quality of the Licensed Application or its components to any third party; or (iv) modify, reuse, disassemble, decompile, reverse engineer, or otherwise translate the Licensed Application or its components, or any portion thereof. Beta Tester’s obligation to protect Confidential Information pursuant to this Section shall survive termination of the EULA.
- Fees and Payments. To the extent required in connection with your use of the Licensed Application, you agree to provide a valid credit card or other valid payment source and to complete all payments which you authorize through your acquisition or usage of the Licensed Application or that you order or request through the Licensed Application and understand that no refunds will be provided to you except as specifically required by the Marketplace Terms or Other Terms. You agree to pay all sales taxes, use taxes, value added taxes, duties, or any other tax imposed by any jurisdiction as a result of this EULA, or your use of the Licensed Application or Services, or any other payments pursuant to this license. Upon termination of this EULA, you will remain obligated to pay for any Services or the Licensed Application provided prior to the date of termination.
- Third Party Content. The Licensed Application may display, include or make available content, data, information, applications or materials from third parties (“Third Party Materials”) or provide links to certain third party web sites. By using the Licensed Application, you acknowledge and agree that Pulmonaer is not responsible for examining or evaluating the content, accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect of such Third Party Materials or web sites. Pulmonaer does not warrant or endorse and does not assume and will not have any liability or responsibility to you or any other person for any third-party services, Third Party Materials or web sites, or for any other materials, products, or services of third parties. Third Party Materials and links to other web sites are provided solely as a convenience to you.
- Restrictions on Use. This EULA does not allow you to use the Licensed Application on any Device(s) that you do not own or control, and you may not distribute or make the Licensed Application available over a network where it could be used by multiple Devices. This EULA governs any upgrades provided by Pulmonaer that replace and/or supplement the Licensed Application, unless such upgrade is accompanied by a separate license in which case the terms of that license will govern. You acknowledge and agree that if Pulmonaer disables access to your account, you may be prevented from accessing the Licensed Application, your account details or any files, information, settings or other content that is contained in your account.
- Privacy and Consent to Use of Data. Pulmonaer is required to comply with the Health Insurance Portability and Accountability Act (“HIPAA”) and maintain safeguards to protect the security of your Personal Data. You hereby consent, as a condition of your use of the Licensed Application or Services, to the collection, use, processing and transfer of certain personal or non-public information about you and your use of the Licensed Application, including health information (“Personal Data”) as described in this EULA. You further agree that Pulmonaer may, in accordance with and subject to the provisions of HIPAA, provide such Personal Data to Pulmonaer’s affiliates, suppliers, vendors and/or their agents and employees and your provider. We devote considerable effort toward ensuring that your Personal Data in the Licensed Application is secure. Please note that Pulmonaer cannot ensure the security or confidentiality of messages sent by email. Information relating to your care or medical condition that is stored in the Licensed Application is stored on servers maintained by Pulmonaer in accordance with HIPAA. You acknowledge that Pulmonaer may de-identify your Personal Data and use any remaining data for any commercial purposes in accordance with HIPAA. Pulmonaer, and its licensors, reserve the right to change, suspend, remove, or disable access to any function in the Licensed Application at any time without notice. In no event will Pulmonaer be liable for the removal of or disabling of access to any such function(s). Pulmonaer may also impose limits on the use of or access to certain function(s), in any case and without notice or liability.
- Responsibility for User Name and Password. You are solely responsible for securing your login credentials. When creating your account, you must provide accurate and complete information. You will be responsible for each and every access or use of the Licensed Application or Services with your user name and password, and Pulmonaer is authorized to accept use of your user name and password as conclusive evidence that you wish to use the Licensed Application and Services, including, without limitation, any subscription fee(s) required for your use of the Services. Pulmonaer shall have no liability or responsibility to monitor the use of your user name and password.
- Termination. The license granted under this EULA is effective until terminated by you or Pulmonaer for any reason or no reason. Your rights under this EULA will terminate automatically upon the earlier of (a) failure to renew, expiration or termination of access to the Services, which may occur without notice; or (b) without notice from Pulmonaer if you fail to comply with any terms of this EULA. You may terminate your license under this EULA by removing and destroying all copies of the Licensed Application from your Device(s) and terminating your user account. Upon termination of the license, you shall cease all use of the Licensed Application, and destroy all copies, full or partial, of the Licensed Application. All pre-paid subscription fees shall be retained in the event of any early termination of this EULA.
- Intellectual Property Rights. You agree that the Licensed Application and the Services, and every component thereof, contain proprietary content, information and material that is owned by Pulmonaer and/or its licensors and protected by applicable intellectual property and other laws, including but not limited to copyright. You agree not to use such proprietary content, information or materials in any way whatsoever except for permitted use of the License Application and Services as set forth herein. No portion of the Licensed Application or Services may be reproduced or copied in any form or by any means. You agree not to modify, rent, lease, loan, sell, distribute, reverse engineer, disassemble, attempt to derive source code, or create derivative works based on the Licensed Application or Services, in any manner, and you shall not exploit the Licensed Application or Services in any unauthorized way whatsoever, including but not limited to, by trespass or burdening network capacity (except as and only to the extent any foregoing restriction is prohibited by applicable law or to the extent as may be required by the licensing terms governing use of any open source components included in the Licensed Application). Any attempt to do so is a violation of the rights of Pulmonaer and its licensors You further agree not to use the Licensed Application or Services in any manner to harass, abuse, stalk, threaten, defame or otherwise infringe or violate the rights of any other party, and that Pulmonaer is not in any way responsible for any such use by you, nor for any harassing, threatening, defamatory, offensive or illegal messages or transmissions that you may receive as a result of using the Licensed Application or any of the Services.
- NO WARRANTY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE LICENSED APPLICATION AND ANY SERVICES PERFORMED OR PROVIDED BY THE LICENSED APPLICATION ARE PROVIDED “AS IS” AND “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT W ARRANTY OF ANY KIND, AND PULMONAER HEREBY DISCLAIMS ALL W ARRANTIES AND CONDITIONS WITH RESPECT TO THE LICENSED APPLICATION, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, AND OF NON-INFRINGEMENT OF THIRD PARTY RIGHTS. PULMONAER DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE LICENSED APPLICATION, THAT THE FUNCTIONS CONTAINED IN, OR SERVICES PROVIDED THROUGH THE LICENSED APPLICA TION WILL MEET YOUR REQUIREMENTS, THA T THE OPERATION OF THE LICENSED APPLICATION WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE LICENSED APPLICATION WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY PULMONAER OR ITS AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. SHOULD THE LICENSED APPLICATION OR SERVICES PROVE DEFECTIVE, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION.
- LIMITATION OF LIABILITY. TO THE FULLEST EXTENT PERMITTED BY LAW, PULMONAER SHALL NOT BE LIABLE FOR PERSONAL INJURY, OR ANY INCIDENTAL, SPECIAL, PUNITIVE, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE LICENSED APPLICATION, SERVICES, AS WELL AS ANY EXERCISES OR OTHER INSTRUCTIONS COMMUNICATED TO YOU THROUGH THE LICENSED APPLICATION, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE) AND EVEN IF Pulmonaer HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. In no event shall Pulmonaer’s total liability to you for all damages (other than as may be required by applicable law in cases involving personal injury) exceed the price paid for the Licensed Application or Services, as applicable, or if no price is paid, an amount of ten dollars ($10.00). The foregoing limitations will apply even if the above stated remedy fails of its essential purpose.
- Indemnification. To the fullest extent permitted by law, you hereby agree to indemnify, defend and hold harmless Pulmonaer and each of its past, present, and/or future owners, directors, officers, managers, agents, employees, representatives, parent entities, subsidiaries, affiliates, related persons and entities and their successors and assigns (collectively the “Indemnitees”) against any and all liability, loss, claims, demands, suits, costs, fees, expenses (including but not limited to reasonable fees and expenses of attorneys and expert witnesses), punitive damages, penalties and civil fines, allegedly or actually arising out of, resulting from or relating to: (a) your breach of any representation or warranty in this EULA, (b) your breach of any covenant or obligation in this EULA, and/or (c) your use of the Licensed Application or Services, whether or not such use is authorized by this EULA, including, without limitation, any claims made by other users of the Licensed Application or the Marketplace through which you acquired the Licensed Application and any other claims made by third parties, due to your use of the Licensed Application or Services.
a. Submissions and Ideas. You grant Pulmonaer and its affiliates a perpetual, worldwide, royalty-free, irrevocable, non-exclusive and fully sub-licensable and assignable license to use any material, information, ideas, concepts, know-how or techniques that is contained in any communication you provide to us for any purpose whatsoever, including but not limited to, commercial purposes, provided that such information does not personally identify you. You grant all such rights in this paragraph for no compensation or other consideration of any sort to you.b. Materials. You represent and warrant that you have obtained all necessary authorizations and releases as applicable, to permit you, or your provider or anyone else as authorized by you, to post any data, information, or other content you provide to Pulmonaer (including any photos, videos, or descriptions) (the “Materials”). Unless you enter into a separate written agreement with Pulmonaer, Pulmonaer does not claim ownership in any Materials you submit, however, by submitting Materials in any form you automatically grant Pulmonaer a royalty-free, world- wide, non-exclusive, fully sub-licensable, and assignable right and license to use, copy, reproduce, modify, adapt,
publish, edit, translate, create derivative works from, transmit, distribute, publicly display and publicly perform such Materials for the purpose of displaying and promoting the Materials, Licensed Application, and/or Services in any media, including, but not limited to, a website operated by, and in any related marketing materials produced by, Pulmonaer and its affiliates.
c. Domestic Use; Language. Pulmonaer makes no representations that any part of the Licensed Application or any Services are appropriate or available for use in locations other than the United States or in languages other than English. You may not use or otherwise export or re-export the Licensed Application except as authorized by United States law
d. Governing Law; Jurisdiction. The laws of the State of Kansas, excluding its conflicts of law rules, govern this EULA and your use of the Licensed Application. You irrevocably submit, consent, and agree to the exclusive venue, jurisdiction, and personal jurisdiction of any Federal or State court located in Johnson County, Kansas for the purpose of any claim brought against Pulmonaer under this EULA or your use of the Licensed Application or Services.
e. Amendments. This EULA may be amended by Pulmonaer at any time and such changes shall be immediately effective upon posting. If you do not agree to any amendment, your sole remedy is to terminate this EULA by providing notice to Pulmonaer and ceasing use of the Licensed Application. If you do not terminate this EULA and continue to use the Licensed Application or Services, then your silence will be deemed acceptance.
f. Survival of EULA. All provisions which by their nature would be deemed to survive, shall survive termination of this EULA for any reason.
g. Assignment; Sublicensing. You may not assign, sublicense, lease or otherwise transfer any part of the Licensed Application or Services to, or permit their use by, any other person without Pulmonaer’s prior written consent. Pulmonaer may assign this EULA without your consent to any other party.
h. Waiver. Pulmonaer’s waiver of any condition or covenant of this EULA, or its failure to exercise a right or remedy available to it, shall not constitute a further waiver of the same or any other condition, covenant, right or remedy.
i. Severability. If any provision of this EULA is held to be invalid, illegal or unenforceable for any reason, such invalidity, illegality or unenforceability shall not effect any other provision hereof and such other provisions shall be interpreted and construed as if the invalid, illegal or unenforceable provisions had never been contained herein.
j. Attorneys’ Fees. In addition to any other right or remedy provided to Pulmonaer in this EULA, if Pulmonaer prevails against you, in whole or in part, in any action to enforce the provisions of this EULA, whether for injunctive relief or damages or both, then in addition to all other damages or relief, Pulmonaer shall also be entitled to recover from you the costs and expenses incurred in the successful pursuit of such action or portion thereof, including reasonable attorneys’ fees.
k. Electronic Signatures. You consent to the use of electronic signatures and electronic records for all transactions between yourself or the entity you represent and Pulmonaer and agree that any such electronic signature shall be sufficient for deeming any agreement, including this agreement, to be an agreement in writing.
l. Contact. If you have any questions or concerns about this EULA or the Licensed Application then please contact [firstname.lastname@example.org].