END USER LICENSE AGREEMENT
This Agreement is a legal agreement between you, the Client, and True Angle Medical Technologies Inc. (“True Angle”). By clicking “I Agree,” indicating acceptance electronically, installing, accessing or using the Software Tool and Documentation, you agree to these terms. If you do not agree to this Agreement, then you may not use the Software Tool and Documentation.
- True Angle is the exclusive owner of all rights relating to the Mobili-TTM software tool including updates and new releases that will be made available to the Client from time to time (the “Software Tool”) and Documentation (as defined herein), including all intellectual property rights therein, which are designed to assist the Client with his or her swallowing exercises.
- The Client wishes to purchase a license to use the Software Tool and Documentation for his or her own use and in accordance with the terms and conditions contemplated in this Agreement and not for resale or distribution.
- True Angle is willing to provide the Client with the right to use the Software Tool and the Documentation in accordance with the terms and conditions contemplated in this Agreement.
NOW THEREFORE, in consideration of the mutual promises and covenants set forth in this Agreement, and for other good and valuable consideration, the sufficiency of which is hereby acknowledged, the parties hereby agree as follows:
- “Confidential Information” shall mean all non-public, proprietary, confidential information pertaining to or concerning True Angle including (i) the Software Tool and Documentation; (ii) all confidential information relating to the business and affairs of True Angle, including all information relating to its operations and technology, and (ii) the logic, structure, sequence and organisation of the Software Tool, provided that and it shall not include any information that: (i) is or becomes publicly available without a breach of this Agreement; (ii) was lawfully known to the Client without an obligation to keep it confidential; (iii) is received from another source that can disclose it lawfully and without an obligation to keep it confidential; or (iv) is independently developed by the Client.
- “Derivatives” means intellectual property made, invented, created, obtained, conceived of, reduced to practice, fixed in a tangible medium of expression that embody, incorporate any substantial part of, or are material enhancements or improvements to the Software Tool or the Documentation.
- “Documentation” means any instruction manuals and on-line help files regarding the use of the Software Tool, and the specifications, if any, in relation to the Software Tool, all documentation and information, including, without limitation, copies of all user manuals,.
- “Software Tool” has the meaning given to this term in Recital A above.
- License and Grant of Rights
As long as Client meets any applicable payment obligations and complies with this Agreement, True Angle hereby grants to the Client a limited, personal, non-exclusive, non-transferable, revocable license to use the Software Tool and any Documentation for the duration of this Agreement for the Client’s personal use. If Client discontinues paying ongoing subscription license fees, its use will be restricted to the “basic” version of the Software Tool. The Client does not have any license to the Software Tool or the Documentation other than that which is expressly provided to the Client in this Agreement. Except for the limited license granted hereunder, True Angle retains all rights, title, and interest in and to the Software Tool and the Documentation, including any and all intellectual property rights contained therein.
- Restrictions on Grant
- The Software Tool and the Documentation have been developed by True Angle and contain Confidential Information and certain proprietary information, including but not limited to techniques and processes that are protected under copyright, trade secret and other intellectual property laws. Except as otherwise specifically permitted in this Agreement, the Client may not: (a) modify or create any Derivatives of the Software Tool or the Documentation, including translation or localization; (b) copy or otherwise reproduce the Software Tool, the Documentation, or any aspect thereof, except as provided in this Agreement or elsewhere, in writing, by True Angle (and for clarity, the Client may copy any targets, feedback, and tracking provided by the Software Tool, including by taking screen shots or screen prints, and may disclose such information to his or her medical professional(s)); (c) reverse engineer, decompile, modify, translate, reverse-compile, disassemble, reverse assemble, create Derivatives, or otherwise attempt to derive the source code for the Software Tool, the Documentation, or any parts thereof (except to the extent applicable laws specifically prohibit such restriction); (d) transfer the Software Tool, the Documentation, or any parts thereof under any circumstances; (e) remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols, labels, notices, warnings, or disclaimers in or from the Software Tool or the Documentation; (f) loan, rent, lease, give, sell, sublicense, assign, or otherwise transfer the Software Tool or the Documentation, in whole or in part, to any other person, or grant or otherwise transfer or attempt to transfer any rights in, under or to the Software Tool or the Documentation; (g) use the Software Tool to process data for any third party or use or permit the use of the Software Tool or the Documentation to operate a service bureau; or (h) use or permit the use of the Software Tool or the Documentation for any purpose other than the intended purpose contemplated hereunder.
- Failure to comply with any of the restrictions herein will result in automatic termination of this Agreement and the license granted hereby, and will make available to True Angle certain remedies at law, or in equity, under this Agreement. The Client acknowledges that such failure to comply may cause irreparable injury to True Angle for which True Angle would be entitled to seek injunctive relief.
The Software Tool and the Documentation are hosted or otherwise provided by True Angle or its third party service provider. The Client may access and use the Software Tool and the Documentation over the Internet from any connected mobile device. The Client assumes full responsibility for the selection of the Software Tool to achieve the results intended by the Client, the access to and use of the Software Tool and the Documentation, and the results of use of the Software Tool and the Documentation. By using the Software Tool, the Client will be presented with swallowing exercise targets, performance feedback and adherence tracking. The Client is responsible for maintaining a copy of any of his or her information provided by or used by the Software Tool, whether by backup or otherwise, and represents and warrants that any information that the Client inputs or otherwise provides to True Angle or the Software Tool shall be accurate.
- Intellectual Property
- The Software Tool is not open source, and does not contain open source software; it is commercial software. Title, rights, interest and ownership in, of and to the Software Tool, including any and all past, present and future versions of the Software Tool, any Documentation associated with the Software Tool, any and all parts of the programming contained therein, and all copies thereof, including intellectual property rights therein, are owned by and shall remain with True Angle. The Software Tool and the Documentation are copyrighted and are protected by international copyright laws and treaty provisions and trade secrets. The Client agrees to prevent any unauthorized copying of the Software Tool and the Documentation. Except as expressly provided herein, True Angle does not grant any express or implied right to the Client under True Angle’s copyrights, trademarks, trade secrets, or other intellectual property rights.
- This Section shall survive any variation, renewal, termination or expiration of this Agreement.
- In relation to Confidential Information, the Client shall: (i) not disclose such Confidential Information to any other person(ii) keep such Confidential Information confidential; (iiii) not use any Confidential Information for any purpose other than the performance of his or her obligations or exercise of his or her rights under this Agreement; and (iv) not transfer, copy, disclose, provide or otherwise make available such Confidential Information in any form to any third party without True Angle’s prior written consent. Except as expressly provided herein, True Angle does not grant any express or implied right to the Client under True Angle’s Confidential Information.
- This Section shall survive any variation, renewal, termination or expiration of this Agreement. However, the Client may disclose Confidential Information if required to comply with a court order or government demand that has the force of law. Before doing so, the Client shall, when possible, give True Angle enough prior notice to provide a reasonable opportunity for True Angle to seek a protective order.
- The Client understands and agrees that a violation of this Section will result in irreparable harm to True Angle that cannot be adequately remedied by monetary damages alone. The Client further acknowledges and agrees that, in the event of a violation of this Section, True Angle may seek any equitable remedies from a court of competent jurisdiction, including injunctive relief.
- Information Collected
The Client hereby acknowledges and confirms that the Software Tool is designed to collect and use certain information of the Client, including, but not limited to demographics, exercise sessions, health, and medical conditions, but none of which can be used to identify the Client and, as such, True Angle does not collect personal information from the Client. True Angle will use such information for research and analysis purposes to develop and improve its products (including refining its swallowing detection algorithm), and for marketing its products.
- The Client may terminate this Agreement at any time by permanently ceasing to access and use the Software Tool and the Documentation.
- This Agreement and the license rights hereunder will terminate automatically if the Client breaches any of the terms or conditions of this Agreement, and, upon True Angle’s written notification to the Client of such breach, the Client shall promptly stop accessing and using the Software Tool and the Documentation.
- Upon termination of this Agreement, the rights and obligations of the parties shall cease except as expressly set forth in this Agreement. Upon termination, the Client will: (i) discontinue use of the Software Tool and the Documentation; and (ii) destroy documentation and records in the Client’s possession, including the Documentation, the Confidential Information, and all copies thereof.
- Upon termination or expiration of this Agreement, except as may be required by applicable law, True Angle is not responsible for removing any of the Client’s information (which does not include personal information) from its database or records or cause it to remove Client’s information from the records of any third party (such as the Client’s medical professional(s)) to which the Client may have disclosed such information.
- No Warranties and Disclaimer
- THE SOFTWARE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND EXCEPT WHERE EXPRESSLY STATED IN THIS AGREEMENT, TRUE ANGLE HEREBY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OR CONDITIONS IN RESPECT OF QUALITY, CONDUCT, PERFORMANCE, RELIABILITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES AND CONDITIONS, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO THE CLIENT IN THOSE JURISDICTIONS.
- True Angle is not responsible for problems caused by changes in the operating characteristics of the hardware or operating system software of the mobile device that the Client is using to access the Software Tool or the Documentation, nor for any problems in the interaction of the Software Tool or the Documentation with non-True Angle software. The Client shall bear sole responsibility for the proper use and operations, privacy protections, condition, maintenance and routine servicing, of such equipment and software. Furthermore, Client acknowledges and agrees that your use of the Software Tool will utilize, in whole or in part, third party networks to transmit communications, which transmissions may be intercepted by other parties or stored, cached, routed, transmitted or received in any jurisdiction, and True Angle cannot guarantee any minimum level regarding actual performance, speed, reliability, availability, use or consistency based on factors depending on the Internet.
- ALTHOUGH THE SOFTWARE TOOL IS AN EXERCISE SUPPORT TOOL TO HELP USERS MANAGE THEIR SWALLOWING EXERCISE PROGRAM, THE CLIENT ACKNOWLEDGES THAT (1) THE SOFTWARE TOOL AND THE DOCUMENTATION ARE NOT SUBSTITUTES FOR PROFESSIONAL MEDICAL ADVICE, DIAGNOSIS OR TREATMENT, (2) INFORMATION FROM THE SOFTWARE TOOL AND THE DOCUMENTATION IS NOT INTENDED TO PROVIDE PRIMARY RECOMMENDATIONS (THE CLIENT MAY INDEPENDENTLY, AND IS ENCOURAGED BY TRUE ANGLE, TO REVIEW THE BASIS FOR THE SOFTWARE TOOL’S OUTPUT THROUGH THE CLIENT’S OWN RESEARCH), (3) IF THE CLIENT BELIEVES HE OR SHE MAY HAVE A MEDICAL EMERGENCY, THE CLIENT SHOULD IMMEDIATELY CALL A DOCTOR OR DIAL 911, AND (4) THE CLIENT SHOULD TALK TO HIS OR HER DOCTOR BEFORE STARTING ANY SWALLOWING EXERCISE PROGRAM.
- The Client agrees to indemnify and hold True Angle harmless from any claim, loss or liability arising out of the Client’s use of the Software Tool (and the results obtained from such use) and the Documentation, except to the extent caused by True Angle’s gross negligence or willful misconduct. The Client further agrees to notify True Angle of any third party claim, demand or loss relating to the Client’s usage and operations of the Software Tool and the Documentation, whether or not such claim, demand or loss is attributed to True Angle’s conduct, the Client’s conduct, or third party conduct. The Client shall notify True Angle immediately upon gaining knowledge of such claim, demand or loss.
- True Angle agrees to indemnify and hold the Client harmless for any claim, loss or liability arising out of: (i) True Angle’s gross negligence or willful misconduct as it pertains to this Agreement and the Client’s use of the Software Tool and the Documentation; or (ii) the infringement of a Canadian or U.S. copyright or misappropriation of a trade secret through the Client’s use of the Software Tool and the Documentation in accordance with this Agreement.
- For clarity, True Angle will have no obligation to defend and indemnify the Client to the extent that any claim is based upon: (i) use of the Software Tool or the Documentation in a way not contemplated by this Agreement; (ii) modifications to the Software Tool or the Documentation made by the Client that were not approved in writing by True Angle; or (iii) the combination of the use of the Software Tool or the Documentation with software, other technology or materials not approved by True Angle in writing.
- Limitation of Liability
IN NO EVENT SHALL TRUE ANGLE BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE, OR SPECIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE ACCESSING OF AND USE OF THE SOFTWARE TOOL OR THE DOCUMENTATION, THE DELAY OR INABILITY TO USE THE SOFTWARE TOOL OR THE DOCUMENTATION, OR OTHERWISE ARISING FROM THIS AGREEMENT, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF TRUE ANGLE HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. THE TOTAL LIABILITY OF TRUE ANGLE UNDER OR ARISING OUT OF THIS AGREEMENT WITH RESPECT TO THE SOFTWARE TOOL AND THE DOCUMENTATION, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE, SHALL NOT EXCEED, IN THE AGGREGATE, THE AMOUNTS RECEIVED BY TRUE ANGLE FROM THE CLIENT FOR THE SOFTWARE TOOL AND THE DOCUMENTATION, IF ANY. SOME STATES AND COUNTRIES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO THE CLIENT IN THOSE JURISDICTIONS.
- Client Feedback.
Client agrees that True Angle may use Client’s feedback, suggestions, or ideas (“Feedback”) in any way, including in future modifications of the Software Tool, other products or services, advertising or marketing materials. Client grants True Angle a perpetual, worldwide, fully transferable, sub-licensable, non-revocable, fully paid-up, royalty free license to use the Feedback you provide to True Angle in any way.
We reserve the right to change this Agreement at any time, and the changes will be effective when posted on True Angle’s website for the Software Tool or when we notify Client by other means. We may also change or discontinue the Software Tool, in whole or in part. Client’s continued use of the Software indicates your agreement to the changes.
This Agreement, and any rights and licenses granted hereunder may not be assigned by Client without the prior written approval of True Angle but may be assigned without Client’s consent by True Angle to (i) an affiliate, (ii) an acquirer of all or substantially all of its assets, or (iii) a successor by merger or amalgamation. Any purported assignment in violation of this section shall be void.
If any provision of this Agreement is held by a court of competent jurisdiction to be void, invalid, unenforceable or illegal, such provision shall be severed from this Agreement and the remaining provisions will remain in full force and effect.
- Export Restrictions
Client acknowledges that the Software is subject to restrictions and controls imposed by the Export and Import Permits Act (Canada) and regulations enacted under the Export and Import Permits Act as well as the U.S. export controls regulations administered by the U.S. Dept. of Commerce (15 CFR, Chapter VII) and that Client will comply with all applicable laws and regulations. Client will not export or re-export the Software, or portion thereof, directly or indirectly, in violation of the Canadian and U.S. export administration laws and regulations to any country or end user; or to any end user who you know or have reason to know will utilize them in the design, development or production of nuclear, chemical or biological weapons. You further acknowledge that this Software may include technical data subject to such Canada and U.S. export regulations.
- Governing Law
This Agreement shall be governed by and construed in accordance with the laws of the Province of Alberta, Canada, without regard to conflict of laws principles. The courts of Alberta shall have the exclusive jurisdiction and venue with respect to any disputes arising under this Agreement, and the Client hereby expressly consents to the personal jurisdiction of such court.
- Entire Agreement
This Agreement sets forth the entire agreement between the Client and True Angle with respect to the licensing, accessing, and use of the Software Tool and the Documentation, and supersedes all prior agreements, discussions or representations made with respect to the Software Tool and the Documentation. No terms or conditions of this Agreement may be modified except in writing and signed by the parties. The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision hereof.