IMPORTANT – READ THESE TERMS CAREFULLY BEFORE ACCESSING OR USING THIS SOFTWARE APPLICATION. BY ACCESSING OR USING THIS SOFTWARE APPLICATION, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS LICENCE AGREEMENT, THAT YOU UNDERSTAND IT AND THAT YOU AGREE TO BE BOUND BY ITS TERMS. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS LICENCE AGREEMENT, PROMPTLY EXIT THIS PAGE WITHOUT ACCESSING OR USING THE SOFTWARE APPLICATION.
1. Grant of License
Subject to the terms of this Licence Agreement, including, without limitation, payment of all applicable fees, Respironics, Inc. (the 'LICENSOR') grants you, during the term of this Agreement, a limited, non-exclusive, non-transferable licence, without the right to sublicense, to use the program and documentation with which this Licence Agreement is distributed (the 'Software Application') on an iOS-enabled mobile device or Android mobile device that you own or control. The Software Application shall be used only by you, and only for your own personal, non-commercial use.
You have no ownership rights to the Software Application. Rather, you have a limited licence to access and use the Software Application as long as this Licence Agreement remains in full force and effect. Except for the limited licence granted hereunder, the LICENSOR retains all right, title and interest in and to the Software Application and all intellectual property rights therein, and ownership shall remain at all times with the LICENSOR. Any access or use of the Software Application by any other person, business, corporation, government organisation or any other entity is strictly forbidden and is a violation of this Licence Agreement. The Software Application may not be transferred to anyone without the prior written consent of the LICENSOR.
3. Intellectual Property
The Software Application contains material that is protected by intellectual property laws, including, without limitation, copyright law. All rights not expressly granted to you herein are expressly reserved by the LICENSOR. You agree to not remove, and not permit another to remove, any proprietary notices, labels or marks of the LICENSOR from any copy of the Software Application.
You agree not to publish, display, disclose, rent, lease, give away, sell, sublicense, transfer, copy, reproduce, modify, loan, distribute or create derivative works based on the Software Application or any part thereof. You agree not to use the Software Application to process data for any third party or use or permit the use of the Software Application to operate a service bureau. You also agree not to reverse engineer, decompile, translate, adapt or disassemble the Software Application or any part thereof, and you agree not to attempt to derive the source code of the Software Application. You agree not to transmit the Software Application over any network or between any devices except for transmission as necessary to back up the data on your mobile device.
5. Open Source Software
The Software Application may be accompanied by software components that are subject to Open Source License Terms, including without limitation the software components set forth in Exhibit 1. This License Agreement does not apply to any software components that are subject to Open Source License Terms.
Your license rights under this License Agreement do not include any right or license to use, distribute or create derivative works of the Software Application in any manner that would subject the Software Application to Open Source License Terms.
"Open Source License Terms" means terms in any license that require as a condition of use, modification and/or distribution of a work
a. the making available of source code or other materials preferred for modification, or
b. the granting of permission for creating derivative works, or
c. the reproduction of certain notices or license terms in derivative works or accompanying documentation, or
d. the granting of a royalty-free license to any party under intellectual property rights regarding the work and/or any work that contains, is combined with, requires or otherwise is based on the work.
6. Consent to Use of Data
You agree that the LICENSOR may collect and use technical data and related information, including, but not limited to, technical information about your device, system and application software, and peripherals, that is gathered periodically to facilitate the provision of software updates, product support and other services to you (if any) related to the Software Application. The LICENSOR may use this information, as long as it is in a form that does not personally identify you, to improve its products or to provide services or technologies to you.
LICENSOR AND ITS AFFILIATES ASSUME NO LIABILITY FOR ANY DAMAGE OR LOSS RELATED TO ANY USE OF THE SOFTWARE APPLICATION (INCLUDING WITHOUT LIMITATION ON A MOBILE DEVICE OR THROUGH THE LICENSOR'S WEBSITE), INCLUDING, BUT NOT LIMITED TO, ANY INJURY, MEDICAL COMPLICATIONS, DEATH, COSTS, OR OTHER DAMAGES THAT MAY RESULT FROM THE USE OF OR FAILURE TO USE (I) THE SOFTWARE APPLICATION OR (II) THE INFORMATION ENTERED BY YOU OR ANYONE ELSE INTO THE SOFTWARE APPLICATION. YOU EXPRESSLY ACKNOWLEDGE THAT YOU ARE SOLELY RESPONSIBLE FOR ANY INFORMATION (BOTH ITS ACCURACY AND CONTENT) ENTERED INTO ANY FIELD PROVIDED IN THE SOFTWARE APPLICATION.
WITHOUT LIMITING THE FOREGOING, THE SOFTWARE APPLICATION IS PROVIDED "AS IS". ANY USE BY YOU OF THE SOFTWARE APPLICATION IS AT YOUR OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY LAW, LICENSOR DISCLAIMS ALL WARRANTIES OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY IMPLIED WARRANTY OF NON-INFRINGEMENT. LICENSOR DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE APPLICATION WILL MEET ANY REQUIREMENTS OR NEEDS YOU MAY HAVE OR THAT THE SOFTWARE APPLICATION WILL OPERATE ERROR FREE, OR IN AN UNINTERRUPTED FASHION, OR THAT ANY DEFECTS OR ERRORS IN THE SOFTWARE APPLICATION WILL BE CORRECTED, OR THAT THE SOFTWARE APPLICATION IS COMPATIBLE WITH ANY PARTICULAR PLATFORM. SOME JURISDICTIONS DO NOT ALLOW THE WAIVER OR EXCLUSION OF IMPLIED WARRANTIES SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
YOU UNDERSTAND AND AGREE THAT LICENSOR IS NOT ENGAGED IN THE PRACTICE OF MEDICINE AND THAT THE SOFTWARE APPLICATION IS AN INFORMATION TOOL ONLY AND IS NOT A SUBSTITUTE FOR PROFESSIONAL JUDGMENT OF HEALTHCARE PROVIDERS IN DIAGNOSING AND TREATING PATIENTS. YOU SHALL INDEMNIFY LICENSOR AND ITS AFFILIATES FULLY AND HOLD LICENSOR AND ITS AFFILIATES HARMLESS AGAINST ANY LOSSES OR LIABILITY IN CONNECTION WITH ANY CLAIM ARISING DUE TO YOUR USE OF THE SOFTWARE APPLICATION FOR PURPOSES OF DIAGNOSIS OR TREATMENT.
THE SOFTWARE APPLICATION IS NOT INTENDED FOR USE IN A MEDICAL EMERGENCY.
8. Limitation of Liability
IN NO EVENT WILL THE LICENSOR OR ANY OF ITS AFFILIATES, OR ANY AUTHOR OF OR CONTRIBUTOR TO THE SOFTWARE APPLICATION, BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; LOSS OF USE, DATA, OR PROFITS; BUSINESS INTERRUPTION; OR PERSONAL INJURY OR DEATH) HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) ARISING IN ANY WAY OUT OF THE USE OF THE SOFTWARE APPLICATION, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE AGGREGATE LIABILITY OF THE LICENSOR AND ITS AFFILIATES WITH RESPECT TO THE LICENSOR'S OBLIGATIONS UNDER THIS AGREEMENT OR OTHERWISE WITH RESPECT TO THE SOFTWARE APPLICATION OR OTHERWISE SHALL NOT EXCEED THE AMOUNT OF THE LICENCE FEE (IF ANY) PAID BY YOU FOR THE SOFTWARE APPLICATION. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
9. Export Restrictions
THIS LICENCE AGREEMENT IS EXPRESSLY MADE SUBJECT TO ANY LAWS, REGULATIONS, ORDERS OR OTHER RESTRICTIONS ON THE EXPORT FROM THE UNITED STATES OF AMERICA OF THE SOFTWARE APPLICATION OR INFORMATION ABOUT SUCH SOFTWARE APPLICATION WHICH MAY BE IMPOSED FROM TIME TO TIME BY THE GOVERNMENT OF THE UNITED STATES OF AMERICA. YOU SHALL NOT EXPORT THE SOFTWARE APPLICATION OR INFORMATION ABOUT THE SOFTWARE APPLICATION WITHOUT THE PRIOR WRITTEN CONSENT OF THE LICENSOR, AND YOU SHALL BE SOLELY RESPONSIBLE AND LIABLE FOR COMPLIANCE WITH ANY SUCH LAWS, REGULATIONS, ORDERS OR OTHER RESTRICTIONS.
This Licence Agreement is effective until terminated. You may terminate this Licence Agreement at any time by deleting the Software Application from your mobile device. This Licence Agreement shall terminate automatically without notice from the LICENSOR if you fail to comply with any of the terms of this Licence Agreement. Upon termination, you agree to destroy all copies of the Software Application in your possession or under your control. Upon termination of this Licence Agreement for any reason, the licence granted hereunder shall immediately terminate. All other terms and conditions of this Licence Agreement shall survive the termination of this Licence Agreement, and you shall continue to be bound by all such surviving terms and conditions including, without limitation, those relating to ownership, disclaimer and limitation of liability.
11. Other Agreements
You may have obtained a copy of the Software Application from either the Apple Store or the Android Market, in which case you may have already agreed to the terms of another end-user license agreement in connection with the Software Application (hereinafter the "Other EULA"). This License Agreement supersedes and terminates any such Other EULA. This License Agreement shall constitute the entire agreement between you and LICENSOR with respect to the Software Application.
You may have agreements with third parties relating to the use of the device on which the Software Application is run (a 'Third-Party Agreement'). You agree to comply with the terms of any such Third-Party Agreement when using the Software Application. In addition, some mobile phone operators may charge fees related to email messages and incoming or outgoing SMS (or text) messages, or for streaming videos such as those provided on YouTube, that result from your use of the Software Application. These fees are unrelated to the limited licence granted to you hereunder, and payment of such fees is your sole responsibility.
12. Acknowledgements with respect to Apple
You may have obtained a copy of the Software Application from the Apple Store hosted by Apple Inc. ("Apple"), in which case you and LICENSOR acknowledge and agree to the following:
a. that this License Agreement is concluded between You and LICENSOR only, and not with Apple,
b. that LICENSOR, not Apple, is solely responsible for the Software Application and the content thereof,
c. that Apple has no obligation whatsoever to furnish any maintenance or support services with respect to the Software Application,
d. that Apple has no warranty obligations whatsoever with respect to the Software Application,
e. that Apple has no obligations, and is not otherwise responsible, in the event of any claim by you or any third party relating to the Software Application or your possession and/or use of the Software Application, including but not limited to (i) product liability claims, (ii) any claim that the Software Application fails to conform to any applicable legal or regulatory requirement, and (iii) claims arising under consumer protection or similar legislation, and that you will solely look to LICENSOR for remedy, if any, in the event of any such claim (subject to the terms and conditions of this License Agreement including without limitation all disclaimers and limitations of liability),
f. that Apple has no obligations, and is not otherwise responsible, in the event of any third party claim that the Software Application, or your possession and/or use of the Software Application, infringes the intellectual property rights of that third party, and that you will solely look to LICENSOR for remedy, if any, in the event of such third party claim (subject to the terms and conditions of this License Agreement including without limitation all disclaimers and limitations of liability), and
g. that Apple and its subsidiaries are third party beneficiaries of this License Agreement and that, upon your acceptance of the terms and conditions of this License Agreement, Apple will have the right, and will be deemed to have accepted such right, to enforce the License Agreement against you as a third party beneficiary thereof.
13. Legal Compliance
You represent and warrant that (i) 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 (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
14. LICENSOR Contact Information
If you have any questions, complaints, or claims with respect to the Software Application, they should be directed to LICENSOR whose contact information is set forth below.
1010 Murry Ridge Lane
Murrysville, PA 15668
Telephone: 1 (844) 669-9935
To the extent permitted under applicable law, this License Agreement shall be construed, interpreted and governed by the laws of the Commonwealth of Pennsylvania, United States without regard to conflicts of law provisions thereof. Your statutory rights under consumer protection laws in your country may remain unaffected by this choice of law. Any litigation arising from or relating to this License Agreement shall be filed and prosecuted exclusively before a court of competent subject matter jurisdiction in the Commonwealth of Pennsylvania. You hereby consent to the jurisdiction of such courts over you and stipulate to the convenience, efficiency and fairness of proceeding in such courts, and covenant not to assert any objection to proceeding in such courts based on the alleged inconvenience, inefficiency or unfairness of such courts. Any waiver of this License Agreement shall only be effective if it is in writing and signed by you and LICENSOR. LICENSOR reserves the right to amend or modify this License Agreement at any time. If any part of this License Agreement is found invalid or unenforceable by a court of competent jurisdiction, the remainder of this License Agreement shall be interpreted so as to reasonably effect the intention of the parties. The parties hereby agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply to these conditions of use.
For purposes of this License Agreement (but not for purposes of the terms and conditions set forth in Exhibit 1), the term “Affiliate” means, in relation to a Party, any legal entity which is directly or indirectly: (i) owned or controlled by that Party; (ii) owning or controlling that Party; or (iii) owned or controlled by the legal entity owning or controlling that Party, but any such legal entity shall only be considered an Affiliate for as long as such ownership or control exists. For the purpose of this definition, a legal entity shall be deemed to be controlled if: (i) more than 50% (fifty per cent) of its voting stock is owned by the controlling entity; or (ii) the controlling entity has the ability to direct the business activities or appoint the majority of the directors of such legal entity. "
-Last revised 19/09/2017 v2