End User Agreement
1. Grant Of License. Subject to the terms and conditions herein, Crescendo hereby grants to the User a personal, non-transferable and non-exclusive license to install and use the Software on an iOS product that the User owns or controls (the “iOS Product”) and as permitted by the Usage Rules set forth in the Apple App Store Terms of Service, for the purposes of tracking the User’s health status and disease activity.
2. Acknowledgement. The Parties acknowledge that this Agreement is concluded between the Parties, not with Apple, and Crescendo is solely responsible for the Software and the content thereof.
3. Software Use Restrictions. The User shall not sublicense the Software or any portion thereof to any other party, and under no circumstance may the User use or allow the use of the Software in any manner other than as expressly set forth in Section 1. The User shall not modify the Software, incorporate the Software in whole or in part in any other product or create derivative works based on all or part of the Software. The User shall not remove any copyright, trademark, proprietary rights, disclaimer or warning notice included on or embedded in any part of the Software. The User shall not reverse assemble, decompile or disassemble or otherwise reverse engineer any portion of the Software. If the User disposes of any media embodying Software, the User will ensure that the User has completely erased or otherwise destroyed any Software stored on such media. THE SOFTWARE IS NOT INTENDED FOR USE IN ANY SITUATION IN WHICH THE FAILURE OF THE SOFTWARE COULD LEAD TO DEATH OR BODILY INJURY OF ANY TYPE.
4. Copying Restrictions. The User may copy the Software onto the iOS Product, and/or for backup or archival purposes. The User agrees that the User’s use and possession of such copies shall be solely under the terms and conditions of this Agreement.
5. Ownership of Software. The User agrees and acknowledges that (a) Crescendo owns the Software (which includes, but not by way of limitation, any intellectual property, images, algorithms, source code, photographs, animation, video, audio, music and text associated therewith); (b) the Software source code constitutes a valuable trade secret of Crescendo and shall not be disclosed to the User; (c) the Software is licensed, not sold, to the User, and Crescendo transfers no ownership interest in the Software to the User; (d) Crescendo reserves all rights not expressly granted to the User hereunder; and, (e) the Software is protected by international, federal and local law including international treaties relating to protection of copyright and United States Copyright Law. The Software includes, and the terms and conditions herein cover, any updates or upgrades for the Software provided to the User.
6. ASSUMPTION OF RISK. BY USING THE SOFTWARE THE USER ACKNOWLEDGES AND AGREES THAT THE SOFTWARE’S HEALTH-RELATED INFORMATION AND RESOURCES ARE NOT INTENDED TO BE A SUBSTITUTE FOR PROFESSIONAL MEDICAL ADVICE OR FOR THE CARE THAT PATIENTS RECEIVE FROM THEIR PHYSICIANS. THE USER ACKNOWLEDGES AND AGREES THAT IN USING THE SOFTWARE, THE USER IS RESPONSIBLE FOR ASSURING THE SECURITY OF THE DATA THE USER ENTERS; CRESCENDO ASSUMES NO RESPONSIBILITY FOR THE SECURITY OF ANY DATA THE USER ENTERS, NOR FOR THE LOSS OF ANY DATA THE USER ENTERS. SEE SECTION 7.
8. DISCLAIMER OF WARRANTY. CRESCENDO PROVIDES THE SOFTWARE TO THE USER “AS IS” AND WITHOUT WARRANTY OF ANY KIND, EXPRESS, STATUTORY, IMPLIED OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. CRESCENDO MAKES NO REPRESENTATION OR WARRANTY THAT THE SOFTWARE IS ACCURATE, COMPLETE OR UP-TO-DATE. THE PARTIES ACKNOWLEDGE THAT APPLE IS NOT RESPONSIBLE FOR ANY PRODUCT WARRANTIES, WHETHER EXPRESS OR IMPLIED BY LAW, WITH RESPECT TO THE SOFTWARE. CRESCENDO DOES NOT WARRANT THAT THE SOFTWARE WILL OPERATE WITHOUT ERROR, THAT DEFECTS WILL BE CORRECTED OR THAT THE SOFTWARE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. In the event of any failure of the Software to conform to any applicable warranty, the User may notify Apple, and Apple will refund the purchase price (if any) for the Software to the User. THE PARTIES UNDERSTAND THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, APPLE WILL HAVE NO OTHER WARRANTY OBLIGATION WHATSOEVER WITH RESPECT TO THE SOFTWARE. Any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be Crescendo’s sole responsibility.
9. Intellectual Property Rights. The Parties acknowledge that, in the event of any third party claim that the Software or the User’s possession and use of the Software infringes that third party’s intellectual property rights, Crescendo, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim. Notwithstanding the foregoing, the User agrees that the User shall not use the Software in any manner so as to infringe the intellectual property rights of any third party, such as for example uploading to the iOS Product via the Software any copyright-protected works of a third party without that party’s permission.
10. LIMITATION OF LIABILITY. IN NO EVENT SHALL CRESCENDO BE LIABLE TO THE USER FOR ANY DAMAGES RELATED TO THE USER’S USE OF THE SOFTWARE, INCLUDING, WITHOUT LIMITATION, DAMAGES ARISING FROM LOSS OF DATA OR THE TRANSMISSION OF USER’S DATA, AS WELL AS ANY ADVERSE MEDICAL OUTCOME LEADING DIRECTLY OR INDIRECTLY TO ANY INJURY, HOSPITALIZATION OR DEATH BY USING THE SOFTWARE, WHETHER OR NOT CRESCENDO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, ARISING OUT OF THIS AGREEMENT. CRESCENDO EXPRESSLY DISCLAIMS LIABILITY FOR TECHNICAL FAILURES (INCLUDING HARDWARE OR SOFTWARE FAILURES), INCOMPLETE, SCRAMBLED OR DELAYED COMPUTER TRANSMISSIONS AND/OR TECHNICAL INACCURACIES, AS WELL AS UNAUTHORIZED ACCESS OF USER TRANSMISSIONS BY THIRD PARTIES. THE USER AGREES THAT CRESCENDO IS NOT LIABLE TO THE USER IN ANY MANNER WHATSOEVER FOR DECISIONS THE USER MAY MAKE OR ACTIONS TAKEN OR NOT TAKEN IN RELIANCE UPON THE SOFTWARE.
11. Product Claims. The Parties acknowledge that Crescendo, not Apple, is responsible for addressing any of the User’s or a third party’s claims relating to the Software or the User’s possession and/or use of the Software, including, but not limited to: (a) product liability claims; (b) any claim that the Software fails to conform to any applicable legal or regulatory requirement; and (c) claims arising under consumer protection or similar legislation.
12. Maintenance and Support. The Parties acknowledge that Apple and Crescendo have no obligation whatsoever to furnish any maintenance and support services with respect to the Software.
13. Governing Law. This Agreement shall be governed by and interpreted in accordance with the laws of the State of California, excluding its choice of law principles. The Uniform Commercial Code (UCC) and the United Nations Convention on Contracts for the International Sale of Goods shall not apply. Any action or proceeding relating to this Agreement must be brought in a federal or state court located in the State of California, and each Party irrevocably submits to the exclusive jurisdiction and venue of any such court in any such action or proceeding, except that Crescendo may seek injunctive relief in any court having jurisdiction to protect its intellectual property or confidential or proprietary information.
14. Legal Compliance. Both Parties represent and warrant that (a) they 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, (b) they are not listed on any U.S. Government list of prohibited or restricted parties.
15. Developer Name and Address. Any questions, complaints or claims with respect to the Software should be directed to Crescendo Bioscience at firstname.lastname@example.org.
16. Third Party Beneficiary. The Parties acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of this Agreement, and that, upon the User’s acceptance of the terms and conditions of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce the Agreement against the Parties as a third party beneficiary thereof).
17. Third Party Software, Web Sites and Content. As a convenience to Users, Crescendo may provide access to third-party software, web sites and/or content (collectively “Third Party Content”) through the Software. Any agreement relating to the User’s use of such Third Party Content will be solely between the User and the Third Party Content provider. Crescendo makes no representations or warranties that any Third Party Content downloaded through the Software will be free of viruses, worms or Trojan horses or other forms of corruptive code. Crescendo makes no representations or warranties concerning, and is not liable or responsible in any manner for, the performance, effectiveness, accuracy, or any other aspect of any Third Party Content.
18. Complete Agreement; Waiver; Severability. This Agreement constitutes the final, complete, and exclusive agreement between the Parties regarding the subject hereof, and supersedes all prior or contemporaneous agreements, understandings, and communication, whether written or oral. No waiver of any right or obligation contained herein shall be given except in writing signed by the party against whom the waiver is sought to be enforced. If any of the provisions of this Agreement, including changes or modifications that may be made in the future, subject to section 17 herein, are held by a court of competent jurisdiction to be invalid or unenforceable under any applicable statute or rule of law, the remaining terms shall survive and be enforced to the maximum extent permissible by law.