End User License Agreement

AiCare Corp.

End User License and Consent and Assumption of Risk Agreement

Effective Date: October 10, 2018

IMPORTANT-READ CAREFULLY:

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.

Unconditionally waives, releases, and discharges AiCare from and against:

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.

Accepts and assumes all risks, expressly, knowingly, and voluntarily, foreseeable or not, relating to or resulting from use of the AiPortal Platform and is solely responsible for User and User’s use of the AiPortal Platform and all decisions made or actions taken or not based on use of the AiPortal Platform. For example,

(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.

Uses best efforts to mitigate risks including but not limited to: (i) ensuring the Device is working properly at all times; (ii) fully charging the batteries; (iii) properly installing fully charged batteries in the Device; (iv) promptly notifying AiCare of suspected or required support or maintenance requirements; or, (v) promptly notifying AiCare of frayed or damaged bands on the Devices.
This Explicit Consent and Assumption of Risk is binding on User’s heirs, representatives, executors, administrators, or any other persons acting on User’s behalf or on behalf of User’s estate or dependents. AiCare reasonably relies on the fact that this Consent and Assumption of Risk has been explicitly, knowingly, and voluntarily given by User or a third party authorized to act on User’s behalf (“Authorized Representative”), and that this Explicit Consent and Assumption of Risk as well as this EULA is binding upon User, User’s heirs, representatives, executors, administrators, or any other persons acting on User’s behalf or on behalf of User’s estate or dependents. This Explicit Consent and Assumption of Risk along with all other terms and conditions in this EULA including but not limited to disclaimers and limitations of liability are material in AiCare’s grant of the right to use the AiPortal Platform and other AiCare’s product(s) and/or service(s) to User.

License. In consideration of User’s Explicit Consent and Assumption of Risk, subject to the terms of this EULA and payment of all applicable fees, AiCare hereby grants User during the Term: (a) a limited, non-sublicensable, non-transferable, non-exclusive license to use: (i) the Software only in conjunction with the Devices and Services, the Software and Devices only in conjunction with the Services and the Services solely for User’s personal purposes in accordance with and subject to this EULA; and, (ii) the EULA only in conjunction with the AiPortal Platform solely for User’s personal purposes; and, (b) the right to access and use the Services to provide User Data, to allow Alerts to be sent, and to use Data only in conjunction with the AiPortal Platform. All rights not expressly granted are reserved to AiCare.
Passwords. To access and use the AiPortal Platform, User will select and may change User’s password. User is responsible for protecting the confidentiality of User’s password. User agrees that AiCare has no liability with regard to the unauthorized use of such password. User agrees to notify AiCare immediately if User has any reason to believe that the security of the account has been compromised and will assist in any investigation, remediation and reporting.
Restrictions. Except as expressly permitted by this EULA, User will not, nor permit anyone else to, directly or indirectly:

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.

Ownership. AiCare retains all right, title, and interest in and to the AiPortal Platform, Documentation, Warranty Services, all Data therefor and therefrom, reports and analysis relating to or resulting from the User Data and any configurations, customizations, modifications, enhancements, improvements, updates, revisions, or derivative works thereof including all Intellectual Property Rights therein or thereto. AiCare is free to use or incorporate any feedback or other suggestions about the AiPortal Platform without any compensation, obligation, or attribution. All rights not expressly granted hereunder are reserved exclusively to AiCare. Users retain ownership of User Data subject to the rights of use granted to AiCare in the EULA. “Intellectual Property Rights” means all past, present, and future rights of the following types, which may exist or be created under the laws of any jurisdiction in the world: (a) rights associated with works of authorship, including exclusive exploitation rights, copyrights, moral rights, and mask work rights; (b) trade secret rights; (c) patent and industrial property rights; (d) trademark, service mark, and trade name rights; (e) other proprietary rights in intellectual property of every kind and nature; and (f) rights in or relating to registrations, renewals, extensions, combinations, divisions, and reissues of, and applications for, any of the rights referred to in clauses (a) through (e) of this sentence.
Warranty Services. AiCare will use commercially reasonable efforts to provide Warranty Services in accordance with the Exhibit C attached to the Sales & Service Agreement between the User and AiCare, provided that User will bring all maintenance and support matters to AiCare’s attention promptly.
Term and Termination.

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.

Confidentiality.

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.

DISCLAIMER OF WARRANTY. USER EXPRESSLY ACKNOWLEGE AND AGREE THAT USE OF THE PRODUCT(S) AND/OR SERVICE(S) IS AT USER’S SOLE RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE PRODUCTS AND SERVICES PERFORMED OR PROVIDED BY AICARE, ITS LICENSORS, AND ITS SERVICE PROVIDERS ARE PROVIDED “AS IS” AND “AS AVAILABLE,” WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND AICARE, ITS LICENSORS, AND ITS SERVICE PROVIDERS HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS WITH RESPECT TO PRODUCTS, SERVICES, DOCUMENTATION, DATA, EITHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, OF NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, AND ANY WARRANTIES ARISING OUT OF THE COURSE OF DEALING OR USAGE OF TRADE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY AICARE, ITS LICENSORS, ITS SERVICE PROVIDERS, OR ITS AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. SHOULD THE LICENSED PRODUCTS OR SERVICES PROVE DEFECTIVE, USER ASSUMES 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. AiCare, its licensors, and its service providers disclaims all warranties with respect to the AiPortal Platform, alerts, data, documentation, and AiCare, its licensors, and its service providers does not warrant that the warranty services will meet USER’S requirements or be available on an uninterrupted, secure, or error-free basis, or with regard to the safety, reliability, durability, quality, accuracy, timeliness OF THE AIPORTAL PLATFORM, DOCUMENTATION, OR DATA. User expressly, knowingly, and voluntarily, assumes all risks relating to or resulting from use of the AiPortal Platform or data therefor or therefrom including but not limited to serious bodily injury or death.
Limitation of Liability. TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL AICARE, ITS LICENSORS, OR ITS SERVICE PROVIDERS BE LIABLE TO USER OR OTHER THIRD PARTIES FOR PERSONAL INJURY OR ANY INDIRECT, INCIDENTAL, EXEMPLARY, SPECIAL, OR CONSEQUENTIAL DAMAGES WHATSOEVER, OR DAMAGES FOR LOSS OF GOODWILL, LOST PROFITS OR USE, LOSS OR CORRUPTION OF ANY OR ALL DATA, SERVICE INTERRUPTION, OR THE COST OF SUBSTITUTE SERVICES, OR ANY OTHER PERSONAL OR COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO USER’S USE OF AICARE’S PRODUCTS OR SERVICES UNDER THIS EULA, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT INCLUDING NEGLIGENCE, PRODUCT LIABILITY, OR OTHER LEGAL THEORY) AND EVEN IF AICARE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU. IN NO EVENT SHALL AICARE, ITS LICENSORS, OR ITS SERVICE PROVIDERS’ TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS EULA OR FROM THE USE OF OR INABILITY TO USE THE AIPORTAL PLATFORM OR DATA EXCEED THE AMOUNTS PAID FOR THE USE OF THE AIPORTAL PLATFORM FOR THE 12 MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE CAUSE OF ACTION AROSE OR $500.00 IF NO AMOUNTS ARE PAID OR PAYABLE HEREUNDER. THE CONSENT AND ASSUMPTION OF RISK, DISCLAIMERS AND LIMITATIONS OF DAMAGES STATED IN THE EULA ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN AICARE AND THE CUSTOMER AND USER.
General Provisions. This EULA and all matters arising out of or relating to this EULA shall be governed by the laws of California, excluding its conflict of law provisions. All disputes arising out of or in connection with this EULA will be subject to the exclusive jurisdiction of the state and federal courts located in Santa Clara County, California and the parties agree and submit to the exclusive jurisdiction and venue of the aforementioned courts. Notwithstanding the foregoing, AiCare may resort to any court of competent jurisdiction for injunctive relief without the need to post bond and in addition to all other rights and remedies. The prevailing party in any legal proceedings or alternative dispute resolution proceedings is entitled to an award of reasonable attorneys’ fees and costs. Written notice is effective upon receipt or rejection by a receiving party. The waiver by either party of any default or breach of this EULA shall not constitute a waiver of any other or subsequent default or breach. If any provision of this EULA is determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that the remaining provisions of this EULA shall otherwise remain in full force and effect. This EULA (including any EULAs, agreements, or policies referenced herein) constitutes the entire EULA between the parties and supersedes all prior or contemporaneous EULAs or representations, written or oral, concerning the subject matter herein. User may not assign this EULA or any rights or obligations hereunder, directly or indirectly, by operation of law or otherwise, without the prior written consent of AiCare, and any attempted assignment in violation of the foregoing shall be null and void. AiCare may assign this EULA to a successor which agrees to be bound by this EULA. This EULA shall inure to the benefit of and be binding upon the parties and their respective permitted successors and assigns. Any required notice under this EULA shall be given in writing and is effective upon receipt at or rejection by the receiving party. This EULA may not be modified or amended except in writing signed by a duly authorized representative of each party except that, from time to time, AiCare may change this EULA into a revised EULA with modifications that are deemed effective on the effective date stated in the revised EULA. No other act, document, usage, or custom shall be deemed to amend or modify this EULA.