SOFTWARE LICENSE AGREEMENT FOR VIVICOMPANION APPLICATION
PLEASE READ THIS SOFTWARE LICENSE AGREEMENT (“LICENSE”) CAREFULLY BEFORE USING THE VIVHEALTH SOFTWARE. BY USING THE VIVIHEALTH SOFTWARE, YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS LICENSE. IF YOU DO NOT AGREE TO THE TERMS OF THIS LICENSE, DO NOT INSTALL AND/OR USE THE VIVIHEALTH SOFTWARE.
A. The ViviHealth software, and any third party software, documentation, interfaces, content, fonts and any data accompanying this License whether in read only memory, on any other media or in any other form (collectively the “ViviHealth Software”) are licensed, not sold, to you by Recovery Ally, LLC dba ViviHealth (“ViviHealth”) for use only under the terms of this License. ViviHealth and/or ViviHealth’s licensors retain ownership of the ViviHealth Software itself and reserve all rights not expressly granted to you.
B. ViviHealth, at its discretion, may make available future upgrades or updates to the ViviHealth Software for your compatible iOS or Android device. The ViviHealth Software upgrades and updates, if any, may not necessarily include all existing software features or new features that ViviHealth releases for newer or other models of iOS and Android devices. The terms of this License will govern any software upgrades or updates provided by ViviHealth to the original ViviHealth Software product, unless such upgrade or update is accompanied by a separate license in which case you agree that the terms of that license will govern such upgrade or update.
2. Permitted License Uses and Restrictions.
A. License. Subject to the terms and conditions of this License you are granted a limited, non-transferable, non-exclusive license to install and use the ViviHealth Software on any compatible iOS or Android device that you own or control. You may not distribute or make the ViviHealth Software 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 ViviHealth Software.
B. System Requirements. ViviHealth Software is supported only on hardware that meets specified system requirements as indicated by ViviHealth. Such specifications may be found at www.vivihealth.com/system-requirements.
D. ViviHealth Account. Use of and access to certain features of the ViviHealth Software and certain Services (defined below) may require you to apply for a unique user name and password combination, known as an ViviHealth Access ID. This ViviHealth Access ID may require approval from your health care provider (the “Provider”).
E. No Reverse Engineering. You may not, and you agree not to or enable others to, copy (except as expressly permitted by this License or by the Usage Rules if they are applicable to you), decompile, reverse engineer, disassemble, attempt to derive the source code of, decrypt, modify, or create derivative works of the ViviHealth Software or any services provided by the ViviHealth Software, or any part thereof (except as and only to the extent any foregoing restriction is prohibited by applicable law or to the extent as may be permitted by the licensing terms governing use of open-sourced components included with the ViviHealth Software).
F. Compliance with Laws. You agree to use the ViviHealth Software and the Services (as defined in Section 4 below) in compliance with all applicable laws, including local laws of the state or region in which you reside or in which you download or use the ViviHealth Software and Services.
G. Automatic Updates. If you choose to allow automatic app updates, your device will periodically check with ViviHealth for updates and upgrades to the ViviHealth Software and, if an update or upgrade is available, the update or upgrade will automatically download and install onto your device and, if applicable, your peripheral devices. You can turn off the automatic app updates altogether at any time by changing the automatic app updates settings found within Settings.
3. Consent to Use of Data.
A. Diagnostic and Usage Data. If you opt in to diagnostic and usage collection, you agree that ViviHealth and its subsidiaries and agents may collect, maintain, process and use diagnostic, technical, usage and related information, including but not limited to unique system or hardware identifiers, information about your iOS or Android device, computer, system and application software, and peripherals, that is gathered periodically to provide and improve ViviHealth’s products and services, facilitate the provision of software updates, product support and other services to you (if any) related to the ViviHealth Software, and to verify compliance with the terms of this License. ViviHealth may use this information, as long as it is collected in a form that does not personally identify you, for the purposes described above.
B. Location Data. ViviHealth and its partners and licensors may provide certain services through the ViviHealth Software that rely upon location information. To provide and improve ViviHealth’s services, where available, ViviHealth and its partners and licensors may transmit, collect, maintain, process and use your location data, including the real-time geographic location of your device on which this ViviHealth Software is installed, and you hereby agree and consent to ViviHealth’s and its partners’ and licensors’ collection, use, transmission, processing and maintenance of such location data to provide such services.
In addition, by enabling and or using any location-based services or features provided through the ViviHealth Software, you agree and consent to ViviHealth and its partners and licensees collecting, using, processing and maintaining information related to your account, and any devices registered thereunder, for the purposes of providing such location-based services or feature to you. Such information may include, but is not limited to, your account ID, name, and the geographic location of your device. This information may also be shared with users to whom you have provided permission to locate you. You can withdraw your consent at any time by uninstalling the ViviHealth Software from your device or signing out of the ViviHealth Software. In addition, you may disable location services for the ViviHealth Software for an IOS or Android device by going to the Location Services settings found within Settings on your device.
C. Health Data. ViviHealth and its partners and licensees may provide certain services through the ViviHealth Software that rely upon health information. To provide and improve ViviHealth’s services, where available, ViviHealth and its partners and licensees may transmit, collect, maintain, process and use your health data, including heart rate, heart rate variability, blood oxygen levels and respiration (collectively, “Vitals”) from your device on which this ViviHealth Software is installed, as well as associated wearable devices, and you hereby agree and consent to ViviHealth’s and its partners’ and licensors’ collection, use, transmission, processing and maintenance of such health data to provide such services.
In addition, by enabling and or using any health-based services or features provided through the ViviHealth Software, you agree and consent to ViviHealth and its partners and licensees collecting, using, processing and maintaining information related to your account, and any devices registered thereunder, for the purposes of providing such health-based services or feature to you. Such information may include, but is not limited to, your account Access ID, name, the Vitals and the geographic location of your device. This information may also be shared with users to whom you have provided permission to monitor you. You can withdraw your consent at any time by uninstalling the ViviHealth Software from your device, signing out of the ViviHealth Software or permanently disconnecting the health band.
D. Derivative Data. ViviHealth and its partners and licensees may provide certain services through the ViviHealth Software that rely upon information derived from various underlying data and data sources. To provide and improve ViviHealth’s services, where available, ViviHealth and its partners and licensees may transmit, collect, maintain, process and use derivative data, including any data derived from Vitals, location, surveys, usage, engagement, among various other sources from your device on which this ViviHealth Software is installed, as well as associated wearable devices, and you hereby agree and consent to ViviHealth’s and its partners’ and licensors’ collection, use, transmission, processing and maintenance of such derivative data to provide such services.
F. HIPAA (Health Insurance Portability & Accountability Act). In the event the use of the ViviHealth Software and Services is associated with healthcare and or medical services provided by a licensed Provider, including Personal Health Information (PHI) received from you or created by the Provider, ViviHealth agrees to use appropriate safeguards to prevent use or disclosure of the PHI other than as provided for by this Software License Agreement and the Business Associate Agreement in place between ViviHealth and the Provider. ViviHealth further agrees to comply with the requirements of the Security Rule.
G. Shared Data. You agree that, after giving consent to a third-party person using the ViviCircle app, your personal information and data will be available to them. You can choose at any time to rescind such consent and stop sharing.
4. Services and Third–Party Materials.
A. General. The ViviHealth Software may enable access to ViviHealth’s health monitoring, insights, notifications, self-care and third-party services and web sites (collectively and individually, “Services”). Such Services are meant to be used within the United States. Use of these Services requires Internet access and use of certain Services may require a ViviHealth Access ID, may require you to accept additional terms and may be subject to additional fees. By using the ViviHealth Software or other ViviHealth Service, you agree to the applicable terms of service for that Service.
B. You understand that by using any of the Services, you may encounter content that may be deemed offensive, indecent, or objectionable, which content may or may not be identified as having explicit language. Nevertheless, you agree to use the Services at your sole risk and that ViviHealth shall have no liability to you for content that may be found to be offensive, indecent, or objectionable.
C. Certain 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 web sites. By using the Services, you acknowledge and agree that ViviHealth 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 web sites. ViviHealth, its officers, affiliates and subsidiaries do not warrant or endorse and do not assume and will not have any liability or responsibility to you or any other person for any third-party Services, Third-Party Materials or web sites, or for any other materials, products, or services of third parties. Third-Party Materials and links to other web sites are provided solely as a convenience to you, and you access them at your own risk and subject to such third party’s terms and conditions.
D. To the extent that you upload any content through the use of the Services, you represent that you own all rights in, or have authorization or are otherwise legally permitted to upload, such content and that such content does not violate any terms of service applicable to the Services. You agree that the Services contain proprietary content, information and material that is owned by ViviHealth, the site owner and/or their licensors, and is protected by applicable intellectual property and other laws, including but not limited to copyright. You agree that you will not use such proprietary content, information or materials other than for permitted use of the Services or in any manner that is inconsistent with the terms of this License or that infringes any intellectual property rights of a third party or ViviHealth. No portion of the 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 Services, in any manner, and you shall not exploit the Services in any unauthorized way whatsoever, including but not limited to, using the Services to transmit any computer viruses, worms, trojan horses or other malware, or by trespass or burdening network capacity. You further agree not to use the Services in any manner to harass, abuse, stalk, threaten, defame or otherwise infringe or violate the rights of any other party, and that ViviHealth is not in any way responsible for any such use by you, nor for any harassing, threatening, defamatory, offensive, infringing or illegal messages or transmissions that you may receive as a result of using any of the Services.
E. Services and Third-Party Materials that may be accessed, linked to or displayed through the ViviHealth Software are not available in all languages or in all countries or regions and are meant to be used and accessed only within the United States. ViviHealth makes no representation that such Services and Third-Party Materials are appropriate or available for use in any particular location. To the extent you choose to use or access such Services and Third-Party 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 and privacy and data collection laws. ViviHealth and its licensors reserve the right to change, suspend, remove, or disable access to any Services at any time without notice. In no event will ViviHealth be liable for the removal of or disabling of access to any such Services. ViviHealth may also impose limits on the use of or access to certain Services, in any case and without notice or liability.
The term of Agreement commences when you download or register for the ViviHealth Software and will continue in effect until terminated by you or ViviHealth as set forth in this Section. Your rights under this License will terminate automatically or otherwise cease to be effective without notice from ViviHealth if you fail to comply with any term(s) of this License or if ViviHealth ceases to support the ViviHealth Software. Upon the termination of this License, you shall cease all use of the ViviHealth Software and destroy all copies, full or partial, of the ViviHealth Software. You may terminate this License by deleting devices and by deleting your account. Sections 3, 4, 5, 6, 7, 8, 10 and 11 of this License shall survive any such termination.
6. Disclaimer of Warranties.
A. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, USE OF THE VIVIHEALTH SOFTWARE AND ANY SERVICES PERFORMED BY OR ACCESSED THROUGH THE VIVIHEALTH SOFTWARE IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU.
B. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE VIVIHEALTH SOFTWARE AND SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT
WARRANTY OF ANY KIND, AND VIVIHEALTH AND VIVIHEALTH’S LICENSORS (COLLECTIVELY REFERRED TO AS “VIVIHEALTH” FOR THE PURPOSES OF SECTIONS 6 AND 7) HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE VIVIHEALTH SOFTWARE AND SERVICES, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS.
C. VIVIHEALTH DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE VIVIHEALTH SOFTWARE AND SERVICES, THAT THE FUNCTIONS CONTAINED IN, OR SERVICES PERFORMED OR PROVIDED BY, THE VIVIHEALTH SOFTWARE WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE VIVIHEALTH SOFTWARE OR SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT ANY SERVICES WILL CONTINUE TO BE MADE AVAILABLE, THAT THE VIVIHEALTH SOFTWARE OR SERVICES WILL BE CORRECTED, OR THAT THE VIVIHEALTH SOFTWARE WILL BE COMPATIBLE OR WORK WITH ANY THIRD PARTY SOFTWARE, APPLICATIONS OR THIRD PARTY SERVICES. INSTALLATION OF THIS SOFTWARE MAY AFFECT THE USABILITY OF THIRD PARTY SOFTWARE, APPLICATIONS OR THIRD PARTY SERVICES.
D. YOU FURTHER ACKNOWLEDGE THAT THE VIVIHEALTH SOFTWARE AND SERVICES ARE NOT
INTENDED OR SUITABLE FOR USE IN SITUATIONS OR ENVIRONMENTS WHERE THE FAILURE OR TIME DELAYS OF, OR ERRORS OR INACCURACIES IN THE CONTENT, DATA OR INFORMATION PROVIDED BY, THE VIVIHEALTH SOFTWARE OR SERVICES COULD LEAD TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE.
E. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY VIVIHEALTH OR A VIVIHEALTH AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. SHOULD THE VIVIHEALTH SOFTWARE 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.
F. FURTHER, VIVIHEALTH IS IN NO WAY ENGAGED IN THE PRACTICE OF MEDICINE OR ACTING AS A PHYSICIAN OR OTHER HEALTH CARE PROFESSIONAL OR PROVIDER. NO LICENSED MEDICAL PROFESSIONAL/PATIENT RELATIONSHIP IS CREATED BY USING THE VIVIHEALTH SOFTWARE OR ANY OTHER ASSISTANCE VIVIHEALTH MAY PROVIDE TO YOU. ANY TREATMENT, THERAPY, PROCEDURE, INFORMATION, MEDICATION, PRODUCT OR OTHER INFORMATION REFERENCED BY OR THROUGH THE SERVICES ARE NOT INTENDED AS A RECOMMENDATION OR ENDORSEMENT OF ANY COURSE OF TREATMENT, THERAPY, PROCEDURE, INFORMATION, MEDICATION, PRODUCT OR OTHER INFORMATION. THE ULTIMATE RESPONSIBILITY FOR DIAGNOSING AND TREATING ANY PATIENT RESTS WITH THE PATIENT’S HEALTH CARE PROVIDER. IN ADDITION, THE VIVIHEALTH SOFTWARE IS NOT TO BE RELIED ON AS A LIFE-SAVING SYSTEM IN ANY WAY AND IS NOT INTENDED TO PREDICT EMERGENCY HEALTH OR PSYCHOLOGICAL SITUATIONS THAT MAY RESULT IN ANY PERSON’S INJURY OR DEATH. IF YOU EXPERIENCE A MEDICAL EMERGENCY, IMMEDIATELY CALL A HEALTH CARE PROFESSIONAL AND 9-1-1. ANY USE OF THE VIVIHEALTH SOFTWARE IS SOLELY AT YOUR OWN RISK. NOTHING STATED OR POSTED ON OR AVAILABLE THROUGH THE VIVHEALTH SOFTWARE IS INTENDED TO BE, AND MUST NOT BE TAKEN TO BE, THE PRACTICE OF MEDICINE OR OTHER PROFESSIONAL HEALTH CARE ADVICE OR THE PROVISION OF MEDICAL CARE.
7. Limitation of Liability.
TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW, IN NO EVENT SHALL VIVIHEALTH BE LIABLE FOR PERSONAL INJURY, OR ANY INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, CORRUPTION OR LOSS OF DATA, FAILURE TO TRANSMIT OR RECEIVE ANY DATA, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE VIVIHEALTH SOFTWARE AND SERVICES OR ANY THIRD PARTY SOFTWARE OR APPLICATIONS IN CONJUNCTION WITH THE VIVIHEALTH SOFTWARE, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE) AND EVEN IF VIVIHEALTH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU.
In no event shall ViviHealth’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.
8. Export Control.
You may not use or otherwise export or re-export the ViviHealth Software except as authorized by United States law and the laws of the jurisdiction in which the ViviHealth Software was obtained. In particular, but without limitation, the ViviHealth Software 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 list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. By using the ViviHealth Software, 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 the ViviHealth Software for any purposes prohibited by United States law.
9. Government End Users.
The ViviHealth Software 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.
10. Controlling Law and Severability.
This License will be governed by and construed in accordance with the laws of the State of Texas, excluding its conflict of law principles. This License shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. If for any reason a court of competent jurisdiction finds any provision, or portion thereof, to be unenforceable, the remainder of this License shall continue in full force and effect.
11. Complete Agreement; Governing Language.
This License constitutes the entire agreement between you and ViviHealth relating to the use of the ViviHealth Software and supersedes all prior or contemporaneous understandings regarding such subject matter. No amendment to or modification of this License will be binding unless agreed to in writing by ViviHealth.
12. Third Party Acknowledgements.
Portions of the ViviHealth Software may utilize or include third-party software and other copyrighted material. Acknowledgements, licensing terms and disclaimers for such material are contained in the electronic documentation for the ViviHealth Software, and your use of such material is governed by their respective terms.