THIS END USER LICENSE AGREEMENT (THE “LICENSE AGREEMENT”) IS BETWEEN YOU (“USER” OR “YOU”) AND AUTISM ANALYTICA LLC (“COMPANY”), AND GOVERNS YOUR USE OF COMPANY SOFTWARE AND SERVICES. IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS LICENSE AGREEMENT AND MAY NOT USE THE SOFTWARE AND SERVICES. BY ACCEPTING THIS LICENSE AGREEMENT AND USING THE COMPANY SOFTWARE (DEFINED BELOW), YOU AGREE TO THE TERMS OF THIS LICENSE AGREEMENT. THIS LICENSE AGREEMENT IS EFFECTIVE BETWEEN YOU AND COMPANY AS OF THE DATE OF YOUR FIRST USE OF THE COMPANY SOFTWARE (DEFINED BELOW).
- DEFINITIONS
In addition to the terms defined elsewhere in this License Agreement, the following capitalized and underlined terms shall have the meaning set forth in this Section 1 for purposes of this License Agreement:
“Company Materials” shall mean the Company Software (as defined herein), any manuals, instructions, documentation, data, or other information provided in connection with the Company Software and Services (as defined herein), all content and data made available through the Company Software and Services, all technologies, developments, materials, and inventions associated with the Company Software and Services, and all plans, reports, metrics, data, and information provided or used by Company in connection with the Company Software and Services.
“Company Software” shall mean the software that Company makes available to User and all items of documentation relating to the Company Software provided by Company, along with any updates, fixes, or modifications provided by Company.
“Data” shall mean all data or digital information input into the Company Software. Data shall also include any information provided by User to Company in connection with Your use of the Company Software and Services, including, without limitation,, name, address, email, phone number, login credentials, audiovisual recordings, and questionnaire answers. Data may be collected by third-party hardware and services and received by the Company Software for processing.
“Hardware” shall mean any third-party hardware products, devices, and other accessories that are used by User to download, access, and/or use the Company Software, including, without limitation, a connected device, all of which are owned by third parties and not Company. The Hardware does not include the Company Software or any Company Materials.
“Services” shall mean the provision of and making available for access by User the Company Software through Your login credentials, along with the features, functionality, and services available through the Company Software.
- SERVICES
2.1 Company Software. Subject to the terms and conditions of this License Agreement, Company hereby grants You a personal, non-transferable, non-exclusive, non-sublicensable, and limited right and license to access and use the Company Software during the Term (as defined herein).
2.2 Services. Subject to the terms and conditions of this License Agreement, Company hereby authorizes You to access and use the Services Company supplies or makes available to You, through the use of Your individual login credentials, including Your user name and password during the Term. This authorization is non-exclusive and non-transferable. You will be responsible for any loss, theft, or misuse of its login credentials and/or user name or password.
2.3 Changes to Company Materials and Services. Company reserves the right, in its sole discretion, to make any changes to the Company Materials and Services, including the Company Software, that Company deems necessary or useful to maintain or enhance the quality, delivery, competitive strength, efficiency, and performance of the Company Materials and Services, or to comply with applicable laws.
2.4 Use of Company Software and Services. All access to the Company Software and Services shall be limited to You individually. You agree to access and use the Company Software and Services (a) only as authorized in this License Agreement, and (b) only for internal business purposes or personal healthcare purposes. You shall not (t) use the Company Software and Services for the benefit of any third parties or provide access or use of the Company Software and Services to third parties, (u) transfer or share usernames and passwords assigned to authorized users, (v) use the Company Software and Services in a manner that violates any international, federal, state, or local law or regulation relating to individual privacy, including, without limitation, the federal Health Insurance Portability and Accountability Act of 1996 and its implementing regulations (45 C.F.R. §§160‒164) (“HIPAA”), (w) directly or indirectly sublicense, assign, transfer, sell, rent, lend, lease, or otherwise provide the Company Software and Services or any portion thereof, including, without limitation, any documentation, to any third party, including, without limitation, for any revenue-generating activities, (x) translate, modify, reverse engineer, disassemble, decompile, or make any attempt to ascertain, derive, or obtain the source code for the Company Software and Services, (y) remove, modify, or obscure any patent, copyright, trademark, or other proprietary rights notices, or legends contained in or affixed to the Company Software and Services, including, without limitation, output, metadata file, or online or hard-copy attribution page with any data, or (z) test the vulnerability of the Company Software and Services.
- PROPRIETARY RIGHTS
3.1 Company Materials and Services. Company owns all right, title, and interest in and to the Company Materials and Services, including the Company Software, any documentation provided by Company to User, all upgrades and modifications thereof, and all associated intellectual property rights, including, without limitation, (a) any patent, copyright, trade secret, trademark, and other proprietary rights, in and to the Company Materials and Services, including the Company Software, any documentation, or upgrades or modifications thereof, and (b) any modifications, corrections, bug fixes, updates, improvements, and enhancements to the Company Materials and Services, including the Company Software, any documentation, or upgrades or modifications thereof. User may not copy or distribute the Company Materials and Services, including the Company Software or any part thereof, electronically or otherwise, for any purpose.
3.2 Hardware. All right, title, and interest in and to the Hardware and any associated intellectual property rights therein belong to the applicable third-party providers of such Hardware. Company does not manufacture, own, or control any Hardware that may be used in connection with the Company Software and Services, and You accept all risks responsibility with respect to its use of such Hardware. You shall use the Hardware in accordance with the terms and conditions provided by the third-party providers of such Hardware.
- COLLECTED AND GENERATED DATA
The parties acknowledge that You will provide and generate Data in connection with Your use of the Company Software and Services. This Data may include different types of information relating to You during Your use of the Company Software and Services. In order to access and utilize the Company Software and Services, You hereby agree to the following:
4.1 Grant of License. You hereby grant to Company (to the extent of Your rights therein, if any) a non-exclusive, royalty-free, worldwide, perpetual right, and license to collect, host, use, modify, adapt, copy, store, transmit, adapt, de-identify, reproduce, process, aggregate, and analyze the Data as permitted by applicable law, both during and after the Term of this License Agreement.
4.2 Company Use of Data. Pursuant to the license granted herein, Company will use Data provided and generated by You: (a) to provide the Company Software and the Services to You; (b) to improve the Company Software and Services and Company’s other products and services; (c) training any artificial intelligence or machine learning engine or system of Company; and (d) as otherwise permitted by User.
- TERM AND TERMINATION
5.1 Term. The term of this License Agreement begins on the date that You accept the License Agreement (or a document incorporating this License Agreement by reference) by signature, click-through, or use. Unless terminated earlier as set forth below, the License Agreement will continue in effect until the end of the applicable license or subscription term stated in the applicable agreement signed or otherwise executed by You (such period, the “Term”).
5.2 Termination. In addition to any other express termination right set forth elsewhere in this License Agreement, Company may terminate this License Agreement immediately, effective on written notice to You, if You materially breach any provision of this License Agreement, including without limitation, any of its obligations under Section 2.4 (2.4 Use of Company Software and Services).
- CONFIDENTIALITY
As a result of the relationship created between Company and User by this License Agreement, each party acknowledges that User may become privy to secret or confidential information concerning trade secrets, know how, software programs, source code, executable code, object code, algorithms, business, products, technical data, documentation, specifications, activities, processes, technology, drawings, flow charts, diagrams, customers, suppliers, contracts, finances, personnel, research, plans, business strategies and plans, policies, inventions, confidential information of customers, or other intellectual property, including, without limitation, any invention, writing, idea, discovery, or improvement made or conceived by Company, that is in the possession of and disclosed by Company and received by User, regardless of how the same is disclosed, delivered, obtained, or discovered, whether verbal or writing, pursuant to this License Agreement, (collectively, the “Confidential Information”), the dissemination of which might prove harmful to Company. User agrees that he or she shall not, directly or indirectly, at any time either during the continuation of or following termination of this License Agreement disclose or use the Confidential Information of Company: (a) other than for the purpose of fulfilling his or her obligations under this License Agreement; (b) except to the extent required by applicable law; and (c) except where the Confidential Information has become publicly available through no fault of User. User shall return all such Confidential Information and all copies or recordings of the same to Company immediately upon the request of Company or the termination of this License Agreement.
- REPRESENTATIONS AND WARRANTIES
7.1 Mutual Representations and Warranties. Each party represents and warrants to the other party that: (a) it has the full power and authority to enter into this License Agreement and perform its obligations under this License Agreement; and (b) the execution, delivery, and performance of this License Agreement by it does not violate, conflict with, or constitute a default under any agreement or instrument to which it is a party or by which it is bound, or any applicable law, regulation or order of any court or other tribunal.
7.2 User Representations and Warranties. User further represents and warrants that User: (a) has all necessary rights and licenses to the Hardware not provided by Company that User uses in connection with the Company Software and Services; (b) will not authorize any third party or person to use and/or access the Company Software and the Services through User’s login credentials; and (c) will comply with all other obligations and restrictions with respect to the use of the Company Software and Services as set forth herein.
7.3 DISCLAIMER. EXCEPT AS SET FORTH IN THIS LICENSE AGREEMENT, COMPANY IS PROVIDING THE COMPANY SOFTWARE, SERVICES, AND DELIVERABLES “AS IS.” COMPANY DOES NOT MAKE, AND HEREBY EXPRESSLY DISCLAIMS, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, WITH RESPECT TO THE COMPANY SOFTWARE AND SERVICES OR THEIR PERFORMANCE, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. IN PARTICULAR, COMPANY DOES NOT WARRANT THAT THE COMPANY SOFTWARE OR SERVICES WILL MEET USER’S EXPECTATIONS OR BE SECURE, ACCURATE, ERROR-FREE, OR OPERATE ON AN UNINTERRUPTED BASIS OR IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, OR SYSTEM. WITHOUT LIMITING THE FOREGOING, COMPANY WILL NOT BE LIABLE FOR ANY DEFICIENCIES IN PERFORMANCE OF THE SERVICES ATTRIBUTABLE TO INTERNET FUNCTIONALITY, A FORCE MAJEURE EVENT, USER’S NETWORK OR ACCESS TO THE INTERNET, OR THE ACTS OR OMISSIONS OF USER OR ANY AUTHORIZED PERSONNEL.
- INDEMNITY
8.1 Intellectual Property Indemnification. Company shall indemnify and defend User against any third-party claims that the Company Software, during the Term, infringes any United States patent or registered copyright. In the event a court of competent jurisdiction makes a determination that or Company reasonably believes that there is a potential that the Company Software infringes any United States patent or registered copyright, Company, at its option and expense, shall: (a) modify the infringing portion of the Company Software so as to make it non-infringing; (b) replace the infringing portion of the Company Software; (c) obtain for User the right to continue using the infringing portion of the Company Software; or (d) terminate this License Agreement with respect to the infringing portion of the Company Software, in which case User shall cease using the infringing portion of the Company Software. Company shall have no liability to indemnify and defend User to the extent (x) the alleged infringement is based on infringing information, data, software, applications, services, or programs created or furnished by or on behalf of User, or (y) User uses the Company Software other than in accordance with this License Agreement. The foregoing indemnification obligations are conditioned upon User: (m) notifying Company promptly in writing of any claim or action pursuant to which User is requesting indemnification; (n) giving Company sole control of the defense thereof and any related settlement negotiations; and (o) cooperating and, at Company’s request, assisting in such defense or settlement. This Section 8.1 states Company’s entire liability and User sole and exclusive remedy for claims relating to infringement.
8.2 Disclaimer of Medical Indemnification. Company’s indemnity and defense obligations shall not apply to any medical malpractice claim, damage, loss, or liability.
8.3 User Indemnification. User shall defend, indemnify, and hold Company and its affiliate(s), and their respective directors, trustees, officers, agents, employees, or assigns, harmless from and against any and all claims, demands, losses, liabilities, and expenses (including reasonable attorneys’ fees) to the extent arising out of, resulting from or caused by: (a) the Data, including, without limitation, to any claim that the Data infringes the rights of a third party; (b) User’s use of the Company Software and Services that exceeds the scope of the license granted in the License Agreement; (c) a breach or alleged breach of any representation or warranty of User under this License Agreement; (d) User’s violation of applicable law in relation to this License Agreement; or (e) injury to person or property arising from acts of negligence, bad faith, willful misconduct, or reckless disregard by User relating to this License Agreement. The foregoing indemnification obligations are conditioned upon Company providing User notice of any claim, by a third party, that may be subject to indemnification under this License Agreement. Within a reasonable time after learning of any such claim, User shall provide Company with User’s good-faith evaluation of the claim.
- LIMITATION OF LIABILITY
IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, OR PUNITIVE DAMAGES FOR ANY CAUSE OF ACTION, WHETHER IN CONTRACT, TORT, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST REVENUES, AND LOST BUSINESS OPPORTUNITIES, WHETHER THE OTHER PARTY WAS OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF THESE DAMAGES. COMPANY’S LIABILITY ARISING OUT OF ITS PERFORMANCE UNDER THIS LICENSE AGREEMENT SHALL BE LIMITED TO FIVE HUNDRED DOLLARS ($500).
- MEDICAL DISCLAIMER
USER ACKNOWLEDGES AND AGREES THAT THE COMPANY SOFTWARE IS NOT A DIAGNOSTICS TOOL AND THAT COMPANY IS NOT INTENDING TO, OR ENGAGING IN THE PERFORMANCE OR DELIVERY OF PROVIDING MEDICAL OR HEALTH CARE SERVICES OR ADVICE. ALL DECISIONS REGARDING THE DIAGNOSIS, TREATMENT, AND PLAN OF CARE FOR, AND BILLING OF, PATIENTS SHALL AT ALL TIMES BE AND REMAIN THE SOLE RESPONSIBILITY OF USER AND ITS AUTHORIZED USERS. THE COMPANY SOFTWARE SHOULD IN NO CASE BE DEEMED OR TREATED AS A RECOMMENDATION, ENDORSEMENT, GUARANTEE, OR WARRANTY OF THE PROFESSIONAL SERVICES OF ANY AUTHORIZED USERS OR OTHER PROVIDERS WHO RENDER HEALTH CARE SERVICES. THE COMPANY SOFTWARE IS NOT INTENDED AS A SUBSTITUTE FOR PROFESSIONAL MEDICAL JUDGMENT IN PATIENT DIAGNOSIS OR TREATMENT. COMPANY DOES NOT WARRANT OR GUARANTEE THAT ANY MEDICAL SUBJECT MATTER OR OTHER INFORMATION THAT MAY BE INCLUDED IN ANY DOCUMENTATION, TEMPLATE, REPORT, OR OTHER OUTPUT GENERATED FROM THE COMPANY SOFTWARE OR OTHERWISE MADE AVAILABLE BY COMPANY IS ACCURATE, COMPLETE, CURRENT, OR FIT FOR ANY PURPOSE WHATSOEVER. BY PROVIDING THE COMPANY SOFTWARE AND/OR MAKING ANY SUCH INFORMATION AVAILABLE, COMPANY IS NOT PROVIDING MEDICAL ADVICE AND NONE OF USER OR ITS AUTHORIZED USERS SHALL RELY ON THE COMPANY SOFTWARE OR ANY SUCH INFORMATION AS A MEANS OF DIAGNOSIS OR TREATMENT OF PATIENTS ONESELF OR AS A SUBSTITUTE FOR MEDICAL ADVICE. FURTHER, COMPANY SHALL NOT BE RESPONSIBLE FOR ANY MEDICAL SERVICES PROVIDED BY OR FOR USER OR ANY OF ITS AUTHORIZED USERS, AND USER AND ALL AUTHORIZED USERS SHALL MAINTAIN ALL USUAL AND CUSTOMARY MEDICAL LIABILITY AND MALPRACTICE INSURANCE TO COVER THE PROVISION OF HEALTHCARE AND MEDICAL SERVICES, INCLUDING THOSE DELIVERED IN CONNECTION WITH THE COMPANY SOFTWARE. NOTWITHSTANDING THE FOREGOING, USERS THAT ARE USING THE COMPANY SOFTWARE SOLELY FOR PERSONAL PURPOSES AT THE DIRECTION OF A MEDICAL PROFESSIONAL DO NOT NEED TO MAINTAIN MEDICAL LIABILITY AND MALPRACTICE INSURANCE.
- MISCELLANEOUS PROVISIONS
11.1 Force Majeure. Any loss, damage, or delay in, or failure of, performance by Company shall not constitute a default hereunder, be a ground for termination of this License Agreement, or give rise to any claims for damage against Company if such loss, damage, delay, or failure is attributable in whole or in part to any cause beyond the reasonable control of Company (each, a “Force Majeure Event”). A Force Majeure Event can include, without limitation, acts or omissions of User causing delay, acts of God or the public enemy, compliance with any order, decree, or request of any governmental authority, fires, floods, explosions, accidents, riots, strikes, labor difficulties, or other concerted acts of workmen, power failure or any other cause not within the reasonable control of Company.
11.2 Assignment. This License Agreement may not be assigned by the User without the prior written consent of Company.
11.3 Governing Law; Venue. This License Agreement shall be construed in accordance with New York law without giving effect to the choice or conflicts of law provisions thereof. The parties agree that any legal proceedings which arise under this License Agreement shall be brought in the state or federal courts in Onondaga County, New York. Each Party hereby consents to the exclusive jurisdiction of such courts. Each Party hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this License Agreement.
11.4 Miscellaneous Terms. Section headings are used for convenience only and shall in no way affect the construction or interpretation of this License Agreement. In the event any provision of this License Agreement is deemed by any court of competent jurisdiction to be unenforceable, illegal, or contrary to public policy, the provision found to be unenforceable, illegal, or contrary to public policy shall be stricken and the remainder of the License Agreement shall remain in force. This License Agreement and any attachments hereto constitute the entire agreement and understanding of the parties with respect to the subject matter hereof and supersede all prior agreements and understandings, whether oral or written. Failure of either party at any time or from time to time to exercise any right under this License Agreement shall not be deemed a waiver of such right, nor shall it prevent the party from subsequently asserting or exercising such right. The parties acknowledge, confirm, and agree that they are independent contractors and this License Agreement is not intended to create a joint venture, association, partnership, franchise, principal/agent relationship, or other form of business or relationship. No party will have, nor hold itself out as having, any right, power, or authority to assume, create, or incur any expense, liability, or obligation, express or implied, on behalf of the other party or to act on behalf of the other party in any capacity or in any manner.
BY CLICKING-THROUGH THIS LICENSE AGREEMENT OR OTHERWISE AGREEING BY USE, YOU HEREBY AGREE THAT YOU HAVE REVIEWED, UNDERSTAND, AND AGREE TO THE TERMS AND CONDITIONS OF THIS LICENSE AGREEMENT, AND TO THE EXTENT APPLICABLE, FURTHER AGREE TO ENSURE THAT EACH OF USER’S EMPLOYEES AND OTHER END USERS DO THE SAME.