CellMD® – End User License Agreement
This CellMD® End User License Agreement (“EULA”) sets forth a legally binding agreement between you and Logiciel Asset Science Inc. (“Asset Science”), a corporation duly constituted and organized pursuant to the laws of Quebec, Canada, with its principal office located at 4035 Saint-Ambroise, Suite 407, Montreal, Quebec, Canada H4C 2E1 (“Logiciel Asset Science Inc.” or “we” and permutations thereof).
The provisions of this EULA may be subject to the terms and conditions of any agreement pursuant to which you agree to purchase, license or subscribe to software or other Asset Science products or services (the “Solutions Agreement”). To the extent that there is any conflict or ambiguity between the provisions of this EULA and the Solutions Agreement, the Solutions Agreement shall prevail.
Grant of License
Subject to your compliance with the terms of this EULA and the terms and conditions of the Solutions Agreement, and except as otherwise provided pursuant to the terms and conditions of the Solutions Agreement, Asset Science grants you a personal, revocable, non-exclusive, non-transferable, non-sublicenseable, royalty-free license to install and use CellMD® including any Updates (as herein defined) thereto on any devices running Apple Inc.’s iOS or Google, Inc.’s Android that you own or control and as permitted by the usage rules set forth in the iTunes Store Terms and Conditions or the Google Play Terms of Service, applicable (the “Usage Rules”), solely for personal, non-commercial use. Except as and only to the extent expressly permitted by this EULA, the Solutions Agreement, or applicable law, you may not (i) rent, lease, lend, sell, transfer, assign, sub-license, copy, publish or distribute CellMD®; (ii) decompile, reverse engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of CellMD® or any part thereof, (iii) circumvent any of the technical limitations of CellMD®, or (iv) distribute or make CellMD® available over a network in violation of the Usage Rules. Any attempt to do any of the foregoing is a violation of the rights of Asset Science and its licensors.
Use of CellMD®
The following requirements apply to your use of CellMD®:
- You will not use CellMD® nor any feature thereof for any purpose that is unlawful, tortious, abusive, intrusive on another’s privacy, harassing, libelous, defamatory, embarrassing, obscene, threatening, hateful, or otherwise infringes or violates the rights of any other party.
- You will not use any feature of CellMD® to transmit any computer viruses, worms, trojan horses or other malware, or to trespass or burden network capacity.
- Except as provided herein or in your Solutions Agreement, you will not use CellMD® for any purpose not expressly approved by Asset Science in writing.
- You will not cover, block, or in any way interfere with any Trademarks (as herein defined), watermarks and/or safety features displayed by or contained in CellMD®.
- Any information you provide in connection with your use of CellMD®, whether to us or a third party, shall be accurate, truthful, and complete.
Without prejudice to the limitations of liability set forth in Section 6 hereof, Asset Science is not in any way responsible for any such use by you, nor for any harassing, threatening, defamatory, offensive, infringing or illegal messages or transmissions that you may receive as a result of using CellMD®.
Intellectual Property Rights
- CellMD® and all portions thereof are Asset Science property or our licensors’ property and all rights, title and interest in and to CellMD®, including, without limitation, all intellectual property rights (copyright, patents, rights to patent, trademarks, industrial designs, trade secrets, know-how, inventions, concepts, ideas, processes, techniques and other intellectual property rights, whether or not such rights are legally protected or registered) and any accompanying written or printed materials, are owned by Asset Science or our licensors.
- Unauthorized use of CellMD® may violate intellectual property laws. Elements of CellMD® are protected by copyright, trademark and other provincial, state and federal laws and may not be copied or imitated in whole or in part, by any means.
- Nothing contained in this EULA or the Solutions Agreement shall prevent us from using CellMD®, or any portion thereof, in any form or manner, or from making CellMD®, or any portion thereof, available to any other entity or person at any time and for any purpose. You agree to treat CellMD® in the same manner as any other material protected by intellectual property laws and treaties.
- The trademarks of Asset Science (“Asset Science Trademarks”) used and displayed in connection with CellMD® are trademarks of Asset Science. Other company, product, and service names used in connection with CellMD® may be trademarks owned by others (the “Third-Party Trademarks,” and, collectively with Asset Science Trademarks, the “Trademarks”). You are not granted any license or right to use the Trademarks. All goodwill generated from the use of Trademarks inures to their respective owners’ benefit.
Asset Science may, in its sole discretion, make modifications or provide updates to CellMD® for the purpose of eliminating or otherwise correcting security vulnerabilities or software errors that degrade performance or affect data integrity and submit those updates to you for acceptance (each, an “Update”). For greater certainty, the term “Update” excludes enhancements to CellMD® functionality. If you accept an Update, the terms of this EULA apply to all such Updates. You acknowledge and agree that if you do not accept an Update, Asset Science shall not be responsible for any security vulnerabilities in or improper functioning of CellMD® and any losses arising therefrom, and shall not be responsible for any data loss arising from your use of CellMD®. Notwithstanding the foregoing, Asset Science has no obligation to develop and/or provide Updates to CellMD® apart from the agreed schedule, if any, provided in your Solutions Agreement with Asset Science.
The terms of this license will govern any enhancements to CellMD® functionality (each, an “Upgrade”) provided by Asset Science that replace and/or supplement the original CellMD®, unless such upgrade is accompanied by a separate license in which case the terms of that license will govern.
Subject to the representations or warranties made, if any, under a Solutions Agreement entered into between yourself and Asset Science, if any, Asset Science, Asset Science’s licensors, and each of the foregoing parties’ parents, subsidiaries, shareholders, officers, employees and agents (collectively, “Released Parties”) make no representation or warranty whatsoever regarding the suitability, functionality, performance, availability or operation of CellMD®; and YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF CellMD® IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, AND EFFORT IS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, CellMD® AND ANY SERVICES PERFORMED OR PROVIDED BY CellMD® OR BY ASSET SCIENCE (“SERVICES“) ARE PROVIDED “AS IS” AND “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND THE RELEASED PARTIES HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS WITH RESPECT TO CellMD® AND ANY SERVICES, 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 NONINFRINGEMENT OF THIRD-PARTY RIGHTS. THE RELEASED PARTIES DO NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF CellMD®, THAT THE FUNCTIONS CONTAINED IN OR SERVICES PERFORMED OR PROVIDED BY CellMD® WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF CellMD® OR SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN CellMD® OR SERVICES WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY ASSET SCIENCE LLC, ITS AUTHORIZED REPRESENTATIVE OR ANY OTHER PARTY shall be deemed to alter this disclaimer of warranty or to create any warranty. SHOULD CellMD® OR THE SERVICES PROVE DEFECTIVE, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR, OR CORRECTION. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO YOU.
Limitation of Liability and Indemnification
(a) Except as otherwise provided pursuant to the terms and conditions of the Solutions Agreement entered into between yourself and Asset Science, if any, and to the fullest extent allowed under applicable law, you agree that the Released Parties are not liable to you for damages of any kind, whether based in tort, contract or otherwise, including, without limitation, any direct, indirect, special, incidental, consequential or punitive damages resulting in any way from or in connection with: (i) CellMD® or any services made available through CellMD® (including, without limitation, a third party claim that CellMD® infringes that third party’s intellectual property rights); (ii) any errors or omissions in CellMD®’s technical operation; (iii) any action taken in connection with an investigation by Asset Science, law enforcement or other authorities regarding your use of CellMD®; (iv) any product liability claim; or (v) any claim that CellMD® fails to conform to any applicable legal or regulatory requirement. These limitations apply even if repair or replacement of CellMD® does not fully compensate you for any losses or if any of the Released Parties had been advised of the possibility of such damages and knew or should have known about the possibility of such damages. Some jurisdictions do not allow the limitation of liability for personal injury or of incidental or consequential damages, so certain provisions of this limitation may not apply to you. In no event shall Asset Science’s total liability to you for all damages (other than as may be required by applicable law in cases involving personal injury) exceed the amount of fifty dollars ($50.00). The foregoing limitations will apply even if the above stated remedy fails of its essential purpose.
(b) Except as otherwise provided pursuant to the terms and conditions of the Solutions Agreement entered into between yourself and Asset Science, if any, you agree to indemnify, defend and hold the Released Parties harmless from and against any actual or alleged claims, demands, causes of action, judgments, damages, losses, liabilities, and all costs and expenses of defense (including reasonable attorneys’ fees and court costs) arising out of or relating to: (i) your breach of this Agreement; (ii) your violation of any local, municipal, provincial, federal or international law, rule or regulation; (iii) your use of CellMD®; (iv) information or material posted or transmitted through your device or account, even if not submitted by you; (v) any misrepresentation made by you; (vi) the theft, misappropriation or disclosure of your ID and password; or (vii) your authorization of anyone else to use your ID and password. You will cooperate as fully and as reasonably required in Asset Science’s defense of any claim. Asset Science reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you and you shall not, in any event, settle any matter without the written consent of Asset Science.
Consent to Use Data
You must provide at your own expense the equipment, Internet connections or devices and/or service plans to access and use CellMD®. Asset Science does not guarantee that CellMD® is available in all geographic locations. You acknowledge that when you use CellMD®, your wireless carrier may charge you fees for data, messaging, and/or other wireless access. Check with your carrier to see if there are any such fees that apply to you. YOU ARE SOLELY RESPONSIBLE FOR ANY COSTS YOU INCUR TO ACCESS CellMD® FROM YOUR DEVICE.
(a) CellMD® may permit in-app purchases for various value-added features of CellMD® (each, an “In-App Purchase”), including without limitation the capacity to generate diagnostic reports in portable document format. You acknowledge and agree that you are fully responsible for managing your In-App Purchases and the amount you spend on In-App Purchases within CellMD®. If you are under 18, then you must have your parents’ or guardians’ permission to make any In-App Purchases. By completing an In-App Purchase, you are confirming to us that you have any and all permission that may be necessary in order to allow you to make that In-App Purchase.
(b) In-app Purchases are purchased from and billed by Apple iTunes in-app purchase or Google Play In-app Billing, depending on the app store provider from whom you downloaded CellMD® (each, an “App Store Provider”). You acknowledge and agree that such purchases and all related billing and transaction processes are governed by and subject to those of the applicable App Store Provider’s terms and conditions, EULAs, and privacy policies that are applicable to In-App Purchases. If you make an In-App Purchase, that In-App Purchase cannot be cancelled once it has been initiated. All billing, payment, and transaction inquiries must be directed to Apple iTunes or Google Play, as applicable. Asset Science does not have access to Apple iTunes or Google Play accounts or transactions. If you wish to confirm the type of purchase made, please consult your Apple iTunes or Google Play account or receipt, as applicable.
(c) More information about how you may be able to switch off and/or manage In-App Purchases using your device may be set out in the applicable App Store Provider’s terms and conditions or EULA, in your device’s help settings or online.
(d) If any In-App Purchase is not successfully downloaded or does not work once it has been successfully downloaded, we will, after becoming aware of the fault or being notified of the fault by you, investigate the reason for the fault. We will act reasonably in deciding whether to provide you with a replacement In-App Purchase or issue you with a patch to repair the fault. In no event will we charge you anything further to replace or repair the In-App Purchase. In the unlikely event that we are unable to replace or repair the relevant In-App Purchase or are unable to do so within a reasonable period of time and without significant inconvenience to you, we will authorise the App Store Provider to refund you an amount up to the cost of the relevant In-App Purchase. Alternatively, if you wish to request a refund, you may do so by contacting the App Store Provider directly.
- If you have entered into a Solutions Agreement with Asset Science, you may also be subject to additional terms and conditions that may apply to your use of CellMD®.
- If any provision of this EULA is held to be invalid by any law, rule, order or regulation of any government or by the final determination of any provincial or federal court, such invalidity shall not affect the enforceability of any other provision of this EULA.
- The failure of Asset Science to exercise or enforce any right or provision of this EULA shall not constitute a waiver of such right or provision.
- The section titles in this EULA are for convenience only and have no legal or contractual effect. If any part of this EULA shall be held unenforceable or invalid, such part shall be severed from the rest of this EULA and such invalidity or unenforceability shall not in any way whatsoever prejudice or affect the remaining parts of this EULA which shall continue in full force.
- You may not directly or indirectly export, re-export or transmit CellMD® or related materials (or any part thereof) to any country or to any listed person where such export or transmission is restricted by any applicable regulation, statute or resolution without the prior consent of the competent authority and of Asset Science. By using the Licensed Application, you represent and warrant that you are not located in any such country or named on any such list.
- In particular, but without limitation, CellMD® may not be exported or re-exported (i) into any country that is subject to a U.S. or Canada Government embargo, or that has been designated by the U.S. or Canada Government as a “terrorist supporting” country or (ii) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals, the U.S. Department of Commerce’s Denied Persons List or Entity List or on any other U.S. Government list or similar list maintained by the Canadian authorities of prohibited or restricted parties. By using CellMD®, 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 CellMD® for any purposes prohibited by United States or Canadian law.
- Both you and Asset Science acknowledge and agree that no partnership is formed and neither of you nor Asset Science has the power or the authority to obligate or bind the other.
- The failure of Asset Science to comply with this EULA because of a force majeure event or for any other reason beyond the reasonable control of Asset Science shall not be deemed a breach of this EULA.
- This EULA is effective until terminated by you or Asset Science. Your rights under this EULA will terminate immediately and automatically without notice from Asset Science if (i) the Solutions Agreement expires or is terminated, or (ii) you fail to comply with any term of this EULA. Termination will not limit any of Asset Science’s other rights or remedies at law or in equity. Sections 2, 3, 6, 7, 8, 9, 10 and 11 shall survive termination or expiration of this EULA for any reason.
- Upon termination of this EULA, you shall cease all use of CellMD® and delete and destroy all copies, full or partial, of CellMD®.
- This EULA shall be construed in accordance with and governed by the law of Quebec and the federal laws of Canada applicable therein, notwithstanding any conflict of law provisions, and you agree that any litigation shall be subject to the exclusive jurisdiction of the courts located in Quebec, Canada, provided that, if the Solutions Agreement provides for a different governing law or jurisdiction, then such governing law or jurisdiction shall apply to this EULA in replacement of the applicable provisions of this paragraph 11(k). The United Nations Convention on Contracts for the International Sale of Goods (1980) is hereby excluded in its entirety from this EULA.