THIS IS A LEGAL AGREEMENT BETWEEN DIGITAL ARTEFACTS LLC (“LICENSOR”) AND YOU (EITHER “YOU” OR “USER”) THAT STATES THE TERMS BY WHICH LICENSOR GRANTS TO YOU A LICENSE TO USE THE BRAINBASELINE APPLICATION, INCLUDING AS APPLICABLE THE BRAINBASELINE APPLICATIONS AND THE BRAINBASELINE LAB, AND ANY RELATED MATERIALS OR DOCUMENTATION (COLLECTIVELY “LICENSED APPLICATION”). BY INSTALLING OR IN ANY WAY USING THE LICENSED APPLICATIONS YOU ARE AGREEING TO THE TERMS FOUND HEREIN. IF YOU DO NOT AGREE TO THESE TERMS DO NOT INSTALL OR USE THE APPLICATIONS. YOU MUST ACCEPT AND ABIDE BY THESE TERMS AS PRESENTED TO YOU. CHANGES, ADDITIONS, OR DELETIONS ARE NOT ACCEPTABLE, AND LICENSOR MAY REFUSE ACCESS TO THE LICENSED APPLICATION FOR NONCOMPLIANCE WITH ANY PART OF THIS AGREEMENT.
The Licensed Application is licensed, not sold, to you for use only according to the terms and conditions herein (Terms). Your license to Licensed Application is subject to your prior acceptance of these Terms. Your license under these Terms is granted by Licensor. Licensor reserves all rights in and to the Licensed Application not expressly granted to you under these Terms.
LICENSOR RESERVES THE RIGHT TO CHANGE OR MODIFY ANY OF THE TERMS OF THIS AGREEMENT AND ITS PRIVACY POLICY AT ANY TIME AND IN ITS SOLE DISCRETION; provided, however, that no such change or modification shall be in contravention of any right to privacy that User has in any personal information under U. S. federal and state law or similar national laws. Any changes or modifications will be effective immediately upon posting of the revisions. The User waives any right the User may have to receive specific notice of such changes or modifications. Downloading or using the Licensed Application, and continuing to use the Licensed Application, following the posting of these changes or modifications will act as confirmation of the User’s acceptance of such changes or modifications. Accordingly, the User is advised to review the Agreement and Licensor’s Privacy Policy from time to time, and if the User should not agree to any of the changed or modified terms, the User must stop using the Licensed Application.
a. Scope of License: This license granted to you for the Licensed Application by Licensor is limited to, as applicable, (i) in the case of the BrainBaseline Applications, a nontransferable license to use the Licensed Application on any iPad that you own or control and as permitted by the Usage Rules set forth in the App Store Terms and Conditions (the “Usage Rules”), and/or (ii) in the case of BrainBaseline Lab, a nontransferable license to use the BrainBaseline Lab via its website (currently http://www.brainbaseline.com) to create a customized version of the BrainBaseline Application for use by patients/subjects in a cognitive study administered by you. This license does not allow you to use the Licensed Application on any iOS-based device that you do not own or control, and you may not distribute or make the Licensed Application available over a network where it could be used by multiple devices at the same time. You may not rent, lease, lend, sell, redistribute, or sublicense the Licensed Application.
You may not copy (except as expressly permitted by this license and the Usage Rules), decompile, reverse-engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the Licensed Application, any updates, or any part thereof (except as and only to the extent that any foregoing restriction is prohibited by applicable law or to the extent as may be permitted by the licensing terms governing use of any open-sourced components included with the Licensed Application). If you are a User of BrainBaseline Lab or any BrainBaseline Application created using it, you may not use any data provided to you by Licensor to reverse-engineer or attempt to replicate the functionality of the Licensed Application. Any attempt to do so any of the foregoing is a violation of the rights of the Licensor and its licensors. If you breach this restriction, you may be subject to prosecution and damages.
The terms of the license will govern any upgrades provided by Licensor that replace and/or supplement the original Licensed Application, unless such upgrade is accompanied by a separate license in which case the terms of that license will govern.
b. Consent to Use of Data (BrainBaseline Applications): You agree that 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 Licensed Application. You acknowledge and agree that the Licensed Application is designed to test performance on certain cognitive tests and to measure differences in performance over time. In order to do so, the Licensed Application uploads to a database maintained by or for Licensor your device identification number, your test performance data, and profile data including, but not limited to, lifestyle, activity, and biometrics data. Licensor does not undertake to match that information with any additional information that may identify you or another user of the Licensed Application. You authorize Licensor to collect this information and to use it for research or commercial purposes, and to disclose or distribute it to those parties in furtherance of those purposes in a manner consistent with section (c) below and Licensor’s Privacy Policy. You represent and warrant that you have the right to transmit the information and to grant this authorization. You agree that this authorization to Licensor is worldwide, irrevocable, perpetual, transferable, and fully paid-up.
You agree, if you are a user of BrainBaseline Lab and/or any BrainBaseline Application created using it, that you will obtain all necessary consents by patients/subjects in your cognitive study. You acknowledge and agree that the data generated by your patients/subjects will be made available for your investigative use via BrainBaseline Lab but will not be uploaded to Licensor or normed against Licensor’s database of test data absent a separate written agreement with Licensor.
c. Data Collection, Privacy, Transmission and Usage. You understand that the Licensed Application will collect any information entered by the User. No data or information collected by the Licensed Application will be transmitted from the iOS Product to any other party, except as by the User’s own action or as specifically described in the Licensor’s Privacy Policy, or unless otherwise mutually agreed by the User and Licensor or by the User and the administrator of the cognitive study in which the User is participating. Different jurisdictions have different health regulations and, where the law allows, this is an application for personal use and the information is not protected health information. By downloading and using the Licensed Application, and subject to Licensor’s Privacy Policy (or, as applicable, the policy of the administrator of the cognitive study in which the User is participating), the User acknowledges and agrees that the User will be responsible for protecting the privacy and security of the information the User enters, and for deciding to whom the User discloses and gives access to the information, and that Licensor assumes no responsibility, and shall have no liability, for protecting the privacy or security of any information the User enters in using the Licensed Application. The User acknowledges and agrees that Licensor also assumes no responsibility, and shall have no liability, for protecting the privacy or security of any information the User decides to transmit or share with others, either intentionally or unintentionally, whether by electronic mail or other form of transmission. The User is responsible for taking precautions to safeguard his/her data from access by third parties including use of a Passcode Lock for the iOS Product, choosing to encrypt the iOS backup in iTunes, and using the optional separate passcode in the Licensed Application, if provided. The User understands that Licensor cannot retrieve a lost passcode. The User also understands that Licensor does not assume any responsibility for the loss of any data the User enters, for whatever reason.
d. Termination. The license is effective until terminated by you or Licensor. Your rights under this license will terminate automatically without notice from the Licensor if you fail to comply with any term(s) of this license. Upon termination of the license, you shall cease all use of the Licensed Application and destroy all copies, full or partial, of the Licensed Application.
e. Services; Third-Party Materials. The Licensed Application may enable access to Licensor’s and third-party services and websites (collectively and individually, "External Services"). Use of the External Services may require Internet access and your acceptance of additional terms of service.
You understand that by using any of the External Services, you may encounter content that you may deem to be offensive, indecent, or objectionable, and that such content may or may not be identified as having explicit language, and that the results of any search or entering of a particular URL may automatically and unintentionally generate links or references to objectionable material. Nevertheless, you agree that you will use the External Services at your sole risk and that the Licensor shall not have any liability to you for content that you may find offensive, indecent, or objectionable.
Certain External Services may display, include, or make available content, data, information, applications, or materials from third parties (“Third-Party Materials”) or provide links to certain third-party websites. By using the External Services, you acknowledge and agree that the Licensor is not responsible for examining or evaluating the content, accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect of such Third-Party Materials or websites. The Licensor does not warrant or endorse and will not have any liability or responsibility to you or any other person for any third-party External Services, Third-Party Materials or websites, or any other materials, products, or services of third parties. Third-Party Materials and links to other websites are provided solely as a convenience to you. Financial information displayed by any External Services is for general informational purposes only and is not intended to be relied on as investment advice. Before executing any securities transaction based on information obtained through the External Services, you should consult with a financial professional. Location data provided by any External Services is for basic navigational purposes only and is not intended to be relied on in situations where precise location information is needed or where erroneous, inaccurate, or incomplete location data may lead to death, personal injury, or property or environmental damage. Use of real-time route guidance is at your sole risk. Location data may not be accurate. Neither the Licensor nor any of its content providers guarantees the availability, accuracy, completeness, reliability, or timeliness of stock information or location data displayed by any External Services.
You agree that External Services contain proprietary content, information, and material that is protected by applicable intellectual property and other laws, including but not limited to copyright, and that you will not use such proprietary content, information, or materials in any way whatsoever except for permitted use of the External Services. No portion of the External Services may be reproduced in any form or by any means. You agree not to modify, rent, lease, loan, sell, distribute, or create derivative works based on the External Services in any manner, and you shall not exploit the External Services in any unauthorized way whatsoever, including, but not limited to, by trespass or burdening network capacity. You further agree that you will not use the External Services in any manner to harass, abuse, stalk, threaten, defame, or otherwise infringe or violate the rights of any other party, and that the Licensor is not in any way responsible for any such use by you, or for any harassing, threatening, defamatory, offensive, or illegal messages or transmissions that you may receive as a result of using any of the External Services.
In addition, third-party External Services and Third-Party Materials that may be accessed from, displayed on, or linked to from the iPad, iPhone, or iPod touch are not available in all languages or in all countries. The Licensor makes no representation that such External Services and Materials are appropriate or available for use in any particular location. To the extent you choose to access such External Services or Materials, you do so at your own initiative and are responsible for compliance with any applicable laws, including but not limited to applicable local laws. The Licensor, and its licensors, reserve the right to change, suspend, remove, or disable access to any External Services at any time without notice. In no event will the Licensor be liable for the removal or disabling of access to any such External Services. The Licensor may also impose limits on the use of or access to certain External Services, in any case and without notice or liability.
f. NO WARRANTY: YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE LICENSED APPLICATION IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, AND EFFORT IS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE LICENSED APPLICATION AND ANY SERVICES PERFORMED OR PROVIDED BY THE LICENSED APPLICATION (“SERVICES”) ARE PROVIDED “AS IS” AND “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND LICENSOR HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE LICENSED APPLICATION AND ANY SERVICES, EITHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, AND OF NONINFRINGEMENT OF THIRD-PARTY RIGHTS. LICENSOR DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE LICENSED APPLICATION, THAT THE FUNCTIONS CONTAINED IN OR SERVICES PERFORMED OR PROVIDED BY THE LICENSED APPLICATION WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE LICENSED APPLICATION OR SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE LICENSED APPLICATION OR SERVICES WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY LICENSOR OR ITS AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. SHOULD THE LICENSED APPLICATION OR SERVICES PROVE DEFECTIVE, YOU ASSUME 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. In the event of any failure of the Licensed Application to conform to any applicable warranty, such as those implied in law, you may notify Apple, and Apple will refund the purchase price for the Licensed Application to you; and, to the maximum extent permitted by applicable law, neither Apple nor Licensor will have any other warranty obligation whatsoever with respect to the Licensed Application, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty.
g. Limitation of Liability. TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL LICENSOR BE LIABLE FOR PERSONAL INJURY OR ANY INCIDENTAL, SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION, OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE LICENSED APPLICATION, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT, OR OTHERWISE) AND EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 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 Licensor’s total liability to you for all damages (other than as may be required by applicable law in cases involving personal injury) exceed the amount of fifty dollars ($50.00). The foregoing limitations will apply even if the above stated remedy fails of its essential purpose. Apple, to the extent permitted by law, is not responsible for addressing any of your claims or third party claims relating to the Licensed Application or your possession and/or use of that Licensed Application.
h. Indemnity of Licensor. If you are a User of BrainBaseline Lab or any BrainBaseline Application created using it, you agree to indemnify, defend, and hold harmless Licensor from and against any claim arising in connection with your use of BrainBaseline Lab, the BrainBaseline Application(s) you created using it, and/or your cognitive study. Licensor shall have no liability of any kind relating to your use of BrainBaseline Lab, the BrainBaseline Application(s) you created using it, and/or your cognitive study.
i. Apple, and Apple’s subsidiaries, are third party beneficiaries of these Terms, and upon your acceptance of the Terms, Apple will have the right to enforce the Terms against you as a third party beneficiary thereof.
j. You may not use or otherwise export or re-export the Licensed Application except as authorized by United States law and the laws of the jurisdiction in which the Licensed Application was obtained. In particular, but without limitation, the Licensed Application may not be exported or re-exported (a) into any U.S.-embargoed countries or (b) to anyone on the U.S. Treasury Department's Specially Designated Nationals List or the U.S. Department of Commerce Denied Persons List or Entity List. By using the Licensed Application, you represent and warrant that you are not located in any such country or on any such list. You also agree that you will not use these products for any purposes prohibited by United States law, including, without limitation, the development, design, manufacture, or production of nuclear, missile, or chemical or biological weapons.
k. The Licensed Application and related documentation are "Commercial Items", as that term is defined at 48 C.F.R. §2.101, consisting of "Commercial Computer Software" and "Commercial Computer Software Documentation", as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished-rights reserved under the copyright laws of the United States.
l. The laws of the State of California, excluding its conflicts of law rules, govern this license and your use of the Licensed Application. Your use of the Licensed Application may also be subject to other local, state, national, or international laws.
