End User License Agreement
End User License and Consent and Assumption of Risk Agreement
Effective Date: October 10, 2018
BY DOWNLOADING, INSTALLING, AND/OR USING THE SOFTWARE AND/OR ACCESSING AND USING THE AIPORTAL PLATFORM, DOCUMENTATION, AND DATA, YOU (ON BEHALF OF YOURSELF OR AS AN AUTHORIZED REPRESENTATIVE ON BEHALF OF THE USER) AS THE “USER” EXPLICITLY AGREES:
A. TO ALL THE TERMS OF THIS END USER LICENSE EULA (“EULA”) WITH AICARE CORP. (“AICARE”) REGARDING YOUR USE OF THE AIPORTAL PLATFORM, DOCUMENTATION, DATA, AND USER DATA. AICARE INCLUDES BUT IS NOT LIMITED TO ITS DIRECTORS, OFFICERS, EMPLOYEES, CONTRACTORS, AGENTS, SUCCESSOR, AND ASSIGNS.
YOU VOLUNTARILY, KNOWINGLY, AND EXPLICITLY CONSENT TO AND ASSUME ALL RISKS RELATING TO OR RESULTING FROM YOUR USE OF THE AIPORTAL PLATFORM.
- Introduction. AiCare provides to its User the AiPortal Platform consisting of Devices, Software and Service which, in turn, the User uses, and makes available to the User and permits User to use, solely for the User’s internal business purposes, in accordance with the Documentation, this EULA and all applicable laws and regulations. “Devices” means the wearable technology devices, hubs, connective materials, accessories, or other hardware provided to User by AiCare for use with the Services. “Software” means software in object code provided with the Devices (including Updates, Upgrades and derivatives thereof excluding third party software licensed under separate terms and conditions) used with the Devices and Service. “Service” means the AiCare’s cloud-based service used with the Devices and Software. “Documentation” means downloadable technical manuals, and all other user materials including specifications and requirements of the AiPortal Platform expressly excluding marketing and sales collateral and materials. “User” means the named individual who has agreed (directly or through an Authorized Representative) to be bound by the EULA and for whom a properly provisioned account and ID within the AiPortal Platform is issued, permissions established, and Subscription Fees paid to use the AiPortal Platform.
- Explicit Consent and Assumption of Risk. User understands and agrees that, by using the AiPortal Platform, the User:
- Discloses data and information to AiCare, and third parties who are authorized or otherwise have a need to know such data and information (“Third Parties”) including but not limited to personally identifiable information, e.g., name, address, age, educational records, and information regarding physical and mental health and capacity in any form or format (collectively, “User Data”). “Data” includes, for example but not limited to, (i) feedback, data, and information (e.g., heart rate, accelerations, data pertaining to geographical location, motion, or movement, etc.) relating to or resulting from the use of the AiPortal Platform by the User; and (ii) recommendations for risk management and analytics derived from User Data.
- Wears the Device that monitors, tracks, reports, and sends Alerts (e.g., electronic messages or notifications) to User, AiCare, and/or Third Parties based on the Services that User purchased from AiCare.
- Explicitly permits and consents to:
- The collection and storage of User Data including, for example, technical data and/or personal information pertaining to the User.
- Grant, to the extent permitted by applicable governing laws and rules, to AiCare a non-exclusive, fully paid up, perpetual, and worldwide right to edit, alter, copy, exhibit, publish, distribute, or otherwise process, store, and use the User Data, in any form or format, for AiCare’s internal business purposes and all other lawful purposes including but not limited to sending Alerts, to support the product(s) and/or service(s) provided by AiCare, to maintain and improve the product(s) and/or service(s) of AiCare (e.g., the AiPortal Platform), to conduct sales and marketing activities, to develop analytics alone or with third parties, and to use and/or offer for sale resulting data, resulting information, and analytics on a depersonalized basis. Some jurisdictions allow users to withdraw prior consent to processing, modifying, and storing personal information. The aforementioned grant of irrevocable right to process, store, or use the User Data may not apply to you in these jurisdictions if you explicitly choose not to have your User Data so processed, stored, or used.
- User Data to be stored, aggregated, and/or commingled with other data and information from other users of AiPortal Platform.
- Photos, videos, and/or audio of User’s likeness or voice relating to User’s use of the AiPortal Platform to be edited, displayed, exhibited, and otherwise used publicly, in any form or format (e.g., posted on the intranet or Internet) for any lawful purpose; and,
- The audit of User’s use to confirm compliance with this EULA.
- any and all rights or claims to receive any payment in the form of money or other types of compensation or attribution of any kind for providing or allowing the use of the User Data in accordance with this EULA and the right to inspect or approve any use of the User Data in any way or form;
- any and all claims or liability for damages for death, bodily injury, personal injury, or property damage that User may have, or which hereafter accrue to User, against AiCare, directly or indirectly; and,
- any rights and benefits afforded to User by Section 1542 of the Civil Code of the State of California and, in doing so, User understands that User is waiving and relinquishing any right as to claims unknown at the time this waiver is given such as the right to claims which a User does not know or suspect to exist in the User’s favor at the time of accepting this EULA, which if known by the User must have materially affected the User’s settlement.
- (A) Failure, malfunction, or dysfunction of AiCare’s AiPortal Platform or User’s equipment, networks, or systems to send and/or receive an Alert; (B) failure, malfunction, or dysfunction of the Devices, Software or Services or AiCare’s systems or networks; (C) Devices and products causing chafing, scratching, or other personal bodily injury or discomfort; (D) inaccurate and/or incomplete Data or User Data; (E) User outside of parameters of coverage; (F) failure to charge battery; (G) failure to insert charged and operating battery in Device; (H) failure to safeguard password; (I) disclosing or otherwise permitting unauthorized third parties to use User’s password; (J) failure to notify User promptly of any suspected or actual unauthorized use of User’s password; (K) failure to bring Warranty Services matters to Customer’s attention promptly; and (L) suspension or termination of use of the AiPortal Platform, in whole or in part.
- While AiCare uses commercially reasonable practices to guard against the unauthorized use or access of User Data or other confidential or proprietary information, User acknowledges and agrees: (A) the Internet is an open system, and, (B) AiCare, its licensors, and service providers cannot and do not warrant or guarantee that third parties cannot or will not intercept or modify User Data or other confidential or proprietary information.
- User understands that accidents, injuries, or death may arise out of or result from the use of the AiPortal Platform from open and obvious or latent hazards and risks which include but are not limited to errors, defects, interruptions in Services, etc. that may result in bodily injury or death. Nevertheless, Licensee knowingly and voluntarily agrees to assume all such risks of bodily injury or death.
- copy, modify, use, or distribute the Device, Software, Services, Documentation, and Data pertaining to the products and services of AiCare;
- reverse engineer, disassemble, decompile, or otherwise attempt to discover the source code or structure, sequence, and organization of the AiPortal Platform, to the extent permitted by applicable governing law;
- modify, adapt, alter, translate, or create derivative works of the AiPortal Platform or Data collected therefrom;
- rent, lease, or use the AiPortal Platform for timesharing or service bureau purposes, or otherwise on behalf of any third party (e.g. a managed service offering);
- remove, obscure, or alter any proprietary notices on the AiPortal Platform or Documentation thereof or therefor;
- duplicate or reproduce any unauthorized copies of the Documentation;
- use the AiPortal Platform for performing comparisons or other “benchmarking” activities, either alone or in connection with any hardware, software, or services or otherwise permitting a competitor or any third party access or use of the AiPortal Platform or Data;
- use the AiPortal Platform or Data therefor or therefrom, permit use of the AiPortal Platform or Data, or provide User Data in violation of any applicable law, statute, ordinance or regulation (including, without limitation, those governing export control, consumer protection, unfair competition, privacy, anti-discrimination or false advertising), in any manner other than as provided for by this EULA or the Documentation, that is unlawful, tortious, infringing, defamatory, libelous, immoral, pornographic, obscene, vulgar, threatening, harassing, abusive, hateful, or harmful, contains any viruses, Trojan horses, worms, time bombs, cancel bots, or deleterious computer code, files, scripts, agents, or program that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information (“Malware”), that contains any incomplete, false, inaccurate, or misleading information or that constitutes spam or any other form of duplicative and unsolicited messages;
- create Internet “links” to or from the AiPortal Platform or “frame” or “mirror” any of the content which is contained in the AiPortal Platform;
- harvest, collect, gather, or assemble information or data regarding third parties using the AiPortal Platform without AiCare and such third parties’ explicit consent; and
- interfere with, burden, or disrupt the integrity or performance of the AiPortal Platform or the Data therefor or therefrom or content, or interfere with another’s use and enjoyment of the AiPortal Platform.
- Term.This EULA is in effect as of the date on which the products and/or services are purchased by User and remains in effect for the period of time for which all applicable fees are paid by User (“Term”) unless earlier terminated as stated in the agreement between AiCare and the User.
- Suspension. User acknowledges and agrees: (a) AiCare is not obligated to, responsible for, or liable for notifying User of the Term or earlier expiration or termination of the Term for any reason or no reason at all; and (b) notwithstanding any provision to the contrary, and in addition to all other remedies in law or equity, AiCare may suspend the use of the AiPortal Platform, in whole or in part upon reasonable belief of the occurrence of a material breach by User, without notice or liability, until such a material breach of this EULA or any other agreements between AiCare and the User is cured or this EULA or the agreement between AiCare and the Customer is terminated
- Effect of Expiration and Termination. Upon expiration or termination of the EULA for any reason: (i) User shall stop using the AiPortal Platform and return the Devices to AiCare as instructed; (ii) Sections 1,2, 4 – 6, 8.b, 8.c, and 9 – 12 shall survive the termination and expiration of this EULA.
- HIPAA. While AiCare is neither subject to nor governed by HIPAA, the Health Insurance Portability and Accountability Act of 1996 as amended, AiCare uses commercially reasonable efforts to implement best practices as to privacy and security to safeguard User’s Confidential Information
- Use of Confidential Information.User explicitly consents and agrees: (i) to use Confidential Information solely in accordance with the provisions of this EULA; and (i) not to disclose, or permit to be disclosed, either directly or indirectly, any Confidential Information to any third party, without AiCare’s prior written consent. User shall safeguard the Confidential Information using the same measures User uses to protect his or her own Confidential Information, but in no event less than reasonable care. “Confidential Information” means any information disclosed by one party (“Disclosing Party” such as AiCare) to the other (“Recipient” such as User) which is marked or designated as confidential or which should otherwise reasonably be understood or expected by the User to be confidential or proprietary to AiCare and excludes depersonalized data or information. Feedback and benchmarking information is AiCare Confidential Information except to the extent used or disclosed publicly by AiCare.
- Exceptions. Notwithstanding the foregoing, User does not bear responsibility for safeguarding or not disclosing information that is: (i) publicly available, or (ii) obtained from third parties not under confidentiality restrictions. Recipient may disclose the Confidential Information to the extent it is required to disclose such Confidential Information by order of a court of competent jurisdiction or other governmental entity of competent jurisdiction; provided, however, that User shall use reasonable efforts to provide prompt, written, and sufficient advance notice thereof to AiCare to enable AiCare to seek a protective order or otherwise prevent or restrict such disclosure.