END USER LICENSE AGREEMENT
GILIAN® CONNECT MOBILE SOFTWARE APPLICATION
Version 1.0, April 3, 2019
IMPORTANT - PLEASE READ CAREFULLY
THIS END USER LICENSE AGREEMENT("EULA") is a legally binding agreement between you, the end user ("you" or "Customer"), and Sensidyne, LP, a Florida limited partnershipwith offices at 1000 112th Circle North, Suite 100, St. Petersburg, FL 33716 U.S.A. ("Sensidyne") thatgoverns Customer’s use of the Gilian® CONNECT mobile application (the "Software"), together with any associated user and operation manuals and help files in electronic or hard copy form ("Documentation").
BY CLICKING ON THE "I AGREE" BUTTON, OR BY DOWNLOADING, INSTALLING, COPYING, OR OTHERWISE USING THE SOFTWARE OR DOCUMENTATION, YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTOOD THIS END USER LICENSE AGREEMENT, AND YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT AND TO USE THE SOFTWARE AND DOCUMENTATION SUBJECT TO ALL OF THE TERMS AND CONDITIONS SET FORTH HEREIN.
By clicking on the "I AGREE" button, or downloading, installing, copying, or otherwise using the Software, you are stating to Sensidyne that you personally are at least 18 years of age and are legally authorized by your Customer and/or your employer to accept and enter into this Agreement on Customer’s behalf and to bind Customer and all end-users, including you, to the terms and conditions contained in this EULA.
IF YOU CANNOT AGREE TO ALL OF THE TERMS OF THIS EULA, OR CAN NOT MAKE THE STATEMENTS THAT WOULD BE MADE BY CLICKING THE ["I AGREE"] BUTTON, YOU MUST SELECT THE [NON-ACCEPTANCE] BUTTON AND YOU MUST NOT PROCEED WITH THE INSTALLATION AND/OR USE OF THE SOFTWARE.
Sensidyne reserves the right to change or modify this EULA from time to time. Sensidyne will post any changes to the EULA. The date of the latest changes will be indicated at the top of the document. You are advised to check the EULA periodically for updates. Continued use of the Software following the posting of changes will mean that you agree to be bound by such changes.
1. Grant of License. Subject to Customer’s compliance with all of the terms of this EULA, Sensidyne grants to Customer the following licenses solely for Customer's internal use: (a) a limited, non-exclusive, non-transferable, revocable license to download, install, and use the Software, and any update, upgrade or other modification of the Software as may be released by Sensidyne from time to time at its sole discretion, solely to (i) view data resident on Gilian® pumps using specifically supported mobile devices and operating system software; and (ii) write commands to Gilian pumps using functionality available in the Software’s user interface; and (b)a limited, non-exclusive, non-transferable, revocable license to use the Documentation only in direct connection with the Software. To the extent that any rights licensed hereunder relate to the Software code, such rights are strictly limited to the object code form of the Software, and Customer shall have no right or license to the source code form of any Software provided hereunder.
2. Installation. The Software authorized hereunder is strictly limited to Software obtained either directly from Sensidyne, or through officially supported app stores and channels, and installed on mobile devices owned or operated by Customer, and only by Customer's employees. Use of Software obtained through any other means is unauthorized. Customer shall limit access to the Software or Documentation to its authorized employees. Customer shall advise such employees of the terms of this EULA and shall take all necessary steps to ensure compliance with the EULA terms by such employees.
The conditions of Customer's use of the Software, including but not limited to variables of operating system and application configuration, as well as the ways in which remote third party resources may load, display or retrieve information to or from your device, are beyond Sensidyne's control. Customer's installation and use of the Software is at Customer's sole discretion and risk and that Customer is solely responsible for its use of the Software and any damage to its device(s) or loss of data that results from the installation or use of the Software. Customer is solely responsible for verifying whether a specific use of the Software will cause Customer to be in breach of its obligations to third parties and Sensidyne shall not be liable for any claim or action arising out of such breach.
3. Term; Termination. This EULA will become effective upon the earlier to occur of Customer’s download, installation, or use of the Software and will continue in effect until the earlier to occur of (i) Customer's breach of any of the provisions set forth in this EULA or (ii) Sensidyne withdrawing the Software from general release/availability, at Sensidyne’s sole discretion. Upon the occurrence of any breach by Customer of any provision of this EULA or Sensidyne’s withdrawal of the Software from general release/availability, the license granted hereunder to use the Software and the Documentation will automatically terminate without notice, and Customer shall immediately cease use of the Software and the Documentation. Notwithstanding the foregoing, in the event that Sensidyne withdraws the Software from general release/availability, Sensidyne acknowledges that Software installed hereunder by Customer prior to such withdrawal by Sensidyne may continue to operate on Customer’s device(s) after such withdrawal date. Sensidyne acknowledges that to the extent the Software continues to operate on Customer’s device(s), Customer may continue to use such Software and the licenses granted hereunder shall extend solely to such use; provided, however Customer acknowledges that all such use by Customer and its users shall strictly be at the sole risk and liability of Customer on an as-is basis, and such Software may not remain compatible with updates, upgrades, or other modifications to mobile devices, operating systems, and/or Gilian® pumps. Notwithstanding any termination of this EULA, the provisions of Sections 4, 7, 8, 10 and 14 shall expressly survive such termination and remain in full force and effect.
4. Limitations on Use. Customer shall not, and shall not permit anyone else to, without Sensidyne’s express prior written consent: (i) use the Software except in connection with the use of Gilian® pumps; (ii) modify, reverse engineer, reduce, disassemble, compile, decompile or recompile the Software or otherwise attempt to discover or use the source code, structure, algorithms or ideas underlying the Software; (iii) copy or duplicate, or knowingly permit anyone else to copy or duplicate, the Software or the Documentation, or any component thereof; (iv) modify or create any derivative works of the Software or the Documentation, or any components thereof; (v) remove or modify any trademark, copyright or patent or other proprietary notices, legends, symbols and markings from any copy or part of the Software or the Documentation; or (vi) transfer or disclose the Software or the Documentation to any third parties.
IN NO EVENT IS CUSTOMER AUTHORIZED TO TAKE ANY ACTION IN RELATION TO THE SOFTWARE OR THE DOCUMENTATION THAT VIOLATES ANY APPLICABLE LAWS OR THE TERMS HEREOF.
5. Ownership Retained by Sensidyne. THE SOFTWARE AND DOCUMENTATION ARE PROPRIETARY AND CONFIDENTIAL TO SENSIDYNE OR SENSIDYNE’S LICENSORS AND CONTAIN TRADE SECRETS THEREOF.OWNERSHIP OF ALL INTELLECTUAL PROPERTY RIGHTS IN AND TO THE SOFTWARE ARE AND SHALL REMAIN IN SENSIDYNE OR SENSIDYNE’S LICENSORS.Exceptfor the express license rights granted to Customer in Section 1 above, Customer acknowledges that Sensidyne and/or its licensor(s) exclusively own all right, title and interest in and to the Software and Documentation, including without limitation all worldwide patent, copyright, trade secrets, trademark and proprietary and confidential information rights in and to the Software and Documentation and no other license or transfer of such intellectual property rights in the Software or Documentation shall be implied. The Software and Documentation is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. No ownership rights in the Software or Documentation are transferred to Customer. Nothing in this EULA or associated documents gives Customer any right, title or interest in the Software or Documentation, except for the limited express rights granted in this EULA. The Software is licensed but not sold.
6. Indemnification. Customer shall defend, indemnify, and hold Sensidyne and its officers, directors, agents, representatives, employees, suppliers, and affiliates harmless from any and all sums, claims, costs, duties, suits, actions, losses, damages, legal fees, obligations, liabilities, and liens arising out of (i) the purchase, lease, possession, operation, condition, return, or use of the Software or Documentation, (ii) the performance or nonperformance of any of Customer's obligations hereunder or (iii) any breach of the terms of this EULA by Customer.
7. Software Provided "As-Is"; Limitation of Liability. THE SOFTWARE AND THE DOCUMENTATION ARE PROVIDED ON AN "AS IS" BASIS. SENSIDYNE MAKES NO WARRANTY AS TO THE SOFTWARE OR THE DOCUMENTATION OR THE SOFTWARE'S OPERATION, WHETHER EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, UNINTERRUPTED OR ERROR-FREE OPERATION, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, ORANY WARRANTY ARISING OUT OF ANY COURSE OF DEALING, CUSTOM, OR USAGE OF TRADE. SENSIDYNE MAKES NO WARRANTIES ABOUT THE ACCURACY, INTEGRITY, RELIABILITY, TIMELINESS, OR COMPLETENESS OF THE DATA OR ANY OTHER CONTENT PROVIDED OR ACCESSED THROUGH THE USE OF THE SOFTWARE. THE ENTIRE RISK AS TO THE PERFORMANCE AND USE OF THE SOFTWARE OR DOCUMENTATION IS WITH CUSTOMER.
IN NO EVENT WHATSOEVER WILL SENSIDYNE BE LIABLE TO CUSTOMER OR ANY THIRD PARTY (WHETHER BASED IN CONTRACT, TORT, STRICT LIABILITY OR OTHER THEORY) FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE, THE DOCUMENTATION, OR ANY PORTION THEREOF, INCLUDING BUT NOT LIMITED TO, THE LOSS OF USE OF THE SOFTWARE, INACCURATE RESULTS, LOSS OF PROFITS OR DAMAGES STEMMING FROM LOSS OR CORRUPTION OF DATA OR DATA BEING RENDERED INACCURATE, THE COST OF RECOVERING ANY DATA, DAMAGE TO EQUIPMENT, THE COST OF SUBSTITUTE SOFTWARE OR CLAIMS BY THIRD PARTIES, EVEN IF SENSIDYNE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Without waiving the exclusive governing law clause in Section 10 below, some jurisdictions do not allow exclusion of implied warranties or limitations of liability for incidental or consequential damages, so the foregoing limitations or exclusions may not apply to Customer. In such jurisdictions, the liability of Sensidyne shall be limited to the greatest extent permitted by law. Nothing contained in this EULA shall limit or exclude or purport to limit or exclude any liability where such limitation or exclusion is void or unenforceable or otherwise not permitted under applicable law.
SENSIDYNE'S MAXIMUM LIABILITY FOR DAMAGES FOR ANY CAUSE WHATSOEVER ARISING OUT OF THIS EULA, OR THE USE OF THE SOFTWARE OR DOCUMENTATION, REGARDLESS OF THE MANNER IN WHICH CLAIMED OR THE FORM OF ACTION ALLEGED, IS LIMITED TO THE AMOUNTS ACTUALLY PAID BY CUSTOMER FOR ONE (1) GILIAN® PUMP PURCHASED BY CUSTOMER IN CONNECTION WITH THIS SOFTWARE AND DOCUMENTATION.
8. Third-Party Terms Incorporated by Reference. In addition to terms and conditions set forth elsewhere in this Agreement, Apple, Inc. ("Apple") also requires that this Agreement between you and Sensidyne include the following:
(a) Acknowledgement. You and Sensidyne each hereby acknowledge that this Agreement is concluded between You and Sensidyne only, and not with Apple. Sensidyne, not Apple, is solely responsible for the Software licensed hereunder and the content thereof.
(b) Scope of License on iOS Devices. With respect to any Software downloaded from the Apple App Store, the licenses granted herein are subject to the following additional terms and conditions: the Software may only be installed and used on an Apple-branded product that the end-user owns and controls and as permitted by Apple’s Usage Rules set forth in the Apple App Store Terms of Service, except that such licensed Software may be accessed, acquired, and used by other Apple accounts associated with the end-user via Family Sharing or volume purchasing.
(c) Maintenance and Support. Sensidyne is solely responsible for providing maintenance and support services with respect to the Software as required under applicable law, if any. You and Sensidyne each hereby acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Software.
(c) Warranty. Sensidyne shall be solely responsible for any product warranties not effectively disclaimed hereunder. Notwithstanding anything to the contrary herein, and without limiting the disclaimers and limitations set forth in Section 7 above, in the event of any failure of the Software to conform to any such applicable warranty, you may notify Apple, and Apple will refund the purchase price for the Software to you. To the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Software, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be Sensidyne’s sole responsibility.
(d) Product Claims: To the extent you, or any third party, has any claims relating to the Software or your possession and/or use of the Software including, but not limited to: (i) product liability claims; (ii) any claim that the Software fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation, you and Sensidyne each acknowledge that Sensidyne, not Apple, is responsible for addressing any such claims, subject to the terms and conditions set forth in this Agreement and subject to applicable law.
(e) Intellectual Property Rights. In the event of any third party claim that the Software or your possession and use of the Software infringes that third party’s intellectual property rights, to the extent not effectively disclaimed and/or limited herein, Sensidyne, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim arising under this Agreement or applicable law.
(f) Legal Compliance. You hereby represent and warrant that (i) you 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 (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
(g) Developer Name and Address. All end-user questions, complaints or claims with respect to the Software should be directed to Sensidyne, L.P. at 1000 112th Circle North, Suite 100, St. Petersburg, FL 33716 U.S.A., or via e-mail at [email protected]
(h) Third Party Beneficiary. You and Sensidyne each acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of this Agreement, and, upon your 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 this Agreement against you as a third party beneficiary to this Agreement.
- No User Provided Information. Sensidyne does not require registration with Sensidyne or otherwise require, collect, or otherwise obtain personal information or personal data, such as user name, email address, age, password or any other personally identifiable information, through the Software or as a requirement to download, install, or use the Software.
- On Device Permissions. The Software asks for access on your device to Bluetooth, camera and email contacts functionality on your mobile device in order to function correctly.
Access to Bluetooth is necessary to enable the Software to connect wirelessly to your supported Sensidyne device in order to access and view supported data collect on such device. Data from your supported Sensidyne device remains on such device and is not downloaded, copied, transmitted or stored by or in the Software.
The Software includes a feature that allows end-users to take pictures on their devices and email the pictures from their devices. Access to your device’s camera and your device’s general photo storage is requested to enable the photo taking functionality from the Software and to enable the storage of such photos in your device’s general photo storage. Access to your contacts is requested to support the functionality of emailing photos taken in the Software to recipients who are already in your device’s contact list. The Software is not designed to store any contact information or photos taken from the Software, nor does the Software transmit photos or contact information to Sensidyne, or any person, other than the people to whom the end-user chooses to send the photos.
The information transmitted over Bluetooth, camera images and emails generated by the Software, are only used locally by the Software, transmitted to the end-user’s selected email address(es) and such information is stored remotely or transmitted to Sensidyne, or any party other than the end-user’s selected recipients.
- Does the Software collect precise real time location information of the device? This Software does not collect precise information about the location of your mobile device. Please note that, if your device is set up to associate geographic or other metadata with the photos you take generally on your device, such information will also be included with the photos you take and send through the Software. This is an issue of how your device is configured to operate and Sensidyne does not access, use, or store such information in the Software.
- Do third parties see and/or have access to information obtained by the Software? Other than recipients of emails designated by an end-user, third parties cannot see and/or have access to information obtained by the Software.
- What are my opt-out rights? Because Sensidyne does not collect, use, or store any personal data in the Software, there are no data collection or usage based consents from which to opt-out. You may elect to revoke the device-based permissions referenced above through the general settings for your device at any time; provided, however not all features and functionality of the Software may work as intended if you choose to do so. This is not a subscription service and only program updates will be provided when the program is used. The program can easily be uninstalled using the standard uninstall processes that are available on your mobile device or via the mobile application marketplace or network.
- Data Retention Policy, Managing Your Information. We retain no personal data.
10. Governing Law; Consent to Jurisdiction. This EULA is governed by the laws of the State of Florida, U.S.A., without giving effect to its or any jurisdiction's conflict of laws principles. Each of Customer and Sensidyne disclaim the application of the United Nations Convention on Contracts for the International Sale of Goods. THE CUSTOMER AND SENSIDYNE EXPRESSLY ACKNOWLEDGE AND AGREE TO SUBMIT ALL DISPUTES RELATING TO THIS EULA, THE SOFTWARE OR THE DOCUMENTATION, AND THE USE OR OPERATION OF THE SOFTWARE OR THE DOCUMENTATION, TO THE EXCLUSIVE PERSONAL JURISDICTION AND VENUE OF THE STATE AND FEDERAL COURTS SITUATED IN, OR HAVING JURISDICTION OVER, PINELLAS COUNTY, FLORIDA, U.S.A., EXCEPT WITH RESPECT TO ACTIONS FOR INJUNCTIVE OR EQUITABLE RELIEF, WHICH MAY BE BROUGHT IN ANY SUITABLE JURISDICTION.
11. No Waiver. Sensidyne's failure to insist on strict performance of this EULA or to enforce a default upon the occurrence of any single, repeated, or continuing violation of any particular term or condition hereof, shall not be considered a waiver of Sensidyne's right to insist on strict performance of this EULA or to enforce a default with respect to the violation of any other term or condition or, at any later time or upon any subsequent occurrence, with respect to that particular term or condition.
12. Government Restricted Rights. The Software and the Documentation are “commercial items,” as that term is used in 48 C.F.R. § 2.101, containing “commercial computer software” and/or “commercial computer software documentation,” as such terms are used in 48 C.F.R. § 12.212, and that, consistent with 48 C.F.R. § 12.212 and 48 C.F.R. Subpart 227.72, all U.S. government users acquire the Software and the Documentation with restricted rights and only those rights set forth in this EULA. Use, duplication, reproduction, or disclosure by the U.S. government, including any department, agency or unit thereof, is subject to the restrictions applicable under of the Federal Acquisition Regulation and the Department of Defense Supplement thereto, if applicable, or any successor laws, rules or regulations. Licensor/manufacturer is: Sensidyne, LP, 1000 112th Circle North, Suite 100, St. Petersburg, FL 33716, U.S.A.
13. Miscellaneous. No waiver, change, or amendment of any term or condition of this EULA is effective against Sensidyne unless made in writing and signed by an authorized official of Sensidyne. This EULA constitutes the complete and entire agreement between Customer and Sensidyne and supersedes any prior or contemporaneous agreements or understandings between Customer and Sensidyne, whether oral, written or electronic, regarding the subject matter of this EULA. Further, the parties expressly admit that any term or condition which is, or may be asserted, as material by either party and which is not expressly stated in this EULA, shall not be part of this EULA and shall not be binding on either of the parties hereto. Each party waives all defenses with regard to any such asserted material, term, or conditions not expressly stated within this EULA. The headings of the various sections herein are for convenience of reference only and shall not define, limit or otherwise affect any of the terms or provisions hereof.
14. Export Controls. Customer will be solely responsible for complying fully with all applicable export laws and regulations of the United States and any other relevant jurisdiction with respect to Customer's use of the Software and the Documentation and will assure that neither the Software nor the Documentation, nor any portion or derivative thereof, is exported, directly or indirectly, in violation of United States law.