Electromedical Products International, Inc. END-USER LICENSE AGREEMENT (UNITED STATES)
Effective Date: January 2022
IMPORTANT – PLEASE READ THE TERMS OF THIS END-USER LICENSE AGREEMENT (THE “EULA”) CAREFULLY. THIS EULA IS A BINDING, CONTRACTUAL AGREEMENT BETWEEN YOU AND ELECTROMEDICAL PRODUCTS INTERNATIONAL, INCORPORATED (“EPI”) AND APPLIES TO YOUR USE, AS APPLICABLE, OF EPI’S ALPHA-STIM® MOBILE APPLICATION, AND/OR ANY OTHER EPI SOFTWARE OR APPLICATION, INCLUDING ALL ENHANCEMENTS, VERSIONS, AND MODIFICATIONS TO THE FOREGOING (EACH AND COLLECTIVELY, THE “SOFTWARE”). THIS EULA APPLIES TO YOUR USE OF THIS SOFTWARE UNDER APPLICABLE UNITED STATES LAWS AND REGULATIONS. THIS EULA DOES NOT APPLY TO YOUR USE OF ANY OTHER EPI PRODUCTS AND SERVICES.
Please note that this EULA is subject to change by EPI in its sole discretion at any time. When changes are made, EPI will provide an updated version of the EULA available in the Software. We will also update the “Last Updated” date at the top of this EULA. Depending on the nature of the update and the applicable data privacy and security laws, EPI may require you to provide an additional consent to the updated EULA in a specified manner before further use of the Software is permitted.
Patients of EPI Products and Services. If you are a patient utilizing EPI Products and Services, please note that you must obtain certain EPI cranial electrotherapy stimulation (CES) and microcurrent electrical therapy (MET) equipment (“Equipment”) from a healthcare provider or supplier. In some countries, such as the United States of America, obtaining Equipment requires a prescription. Contact EPI, or your healthcare provider or supplier, for details on obtaining the Equipment. The Software you are using (for example, the Alpha-Stim Mobile App) may not be fully functional without such Equipment. The Software enables health information collected by the Equipment to be displayed and transmitted through the Software, and conveniently shared with your healthcare provider, family member, and/or caregiver. If the Software is installed on your mobile device, your device may need to be physically near the Equipment to enable full functionality. In addition, the maintenance and security of this Equipment may influence the performance of the Software. Under this EULA, it is your responsibility to ensure the Equipment’s maintenance and functionality.
Non-Patients of EPI Products and Services. As an individual given authorization to access the personal and health information of a patient, your use of the Software will not require obtaining or purchasing the Equipment. You understand and agree that your access to a patient’s data through this Software shall be permitted and determined only by the patient’s express authorization (which the patient may arrange for through the Software). By utilizing this Software, you agree that your access and use of the patient data shall solely be for purposes defined by the patient, and consistent with monitoring and/or analyzing mental health symptoms and trends experienced by the patient. You agree not to share the patient data with any third parties without the appropriate consent of the patient. The patient, in his/her sole discretion, may choose to limit or terminate your access to their data through the Software at any time.
Our goal is to provide helpful and accurate information through the Software, but we make no endorsement, representation or warranty of any kind about any information displayed therein. We are not responsible for the correct use of information you receive through the Software. If you rely on any such information, you do so solely at your own risk. The Software is not intended to diagnose, treat, cure, or prevent any disease. If you are a patient, you must consult with a healthcare professional regarding your use of the Equipment. We are not responsible for any health problems that may result from information obtained through the Software.
1.1 License. Subject to your compliance with this EULA, EPI grants you a limited non-exclusive, non-transferable, non-sublicensable, revocable license to download, install and use a copy of the Software on a mobile device, tablet, and/or computer that you own or control, and to run such copy of the Software solely for your personal, non-commercial use.
1.2 Apple® and Android® App Stores. You acknowledge and agree that the availability of the Software is dependent on the third party from whom you received / downloaded the Software, i.e., the Apple App Store or Google® Play Store (“App Store”). With respect to any Software accessed through or downloaded from the Apple App Store (an “Apple-Sourced Application”), you will only use the Apple-Sourced Application (i) on an Apple-branded product that runs iOS® (Apple’s proprietary operating system) and (ii) as permitted by the “Usage Rules” set forth in the Apple App Store Terms of Service. (See also Section 1.3 below regarding additional terms for Software obtained through Apple iTunes.) Similarly, with respect to any Software accessed through or downloaded from a Google Play Store, you will only use the Software (i) on a compatible Android device and (ii) as permitted by the applicable terms and conditions of the Google Play Store.
You acknowledge that this EULA is between you and EPI, and not with the App Store. EPI, not the App Store, is solely responsible for the Software, the content thereof, maintenance, support services, warranty, and addressing any claims relating thereto (e.g., product liability, legal compliance, or intellectual property infringement). In order to use the Software with full functionality, you must have access to a wireless network or internet access, and you agree to pay all fees associated with such access. You also agree to pay all fees (if any) charged by an App Store in connection with the Software. You agree to comply with, and your license to use the Software is conditioned upon your compliance with, all applicable third-party terms of agreement (e.g., the App Store’s terms and policies) when using the Software. You acknowledge that the App Store (and its subsidiaries) are third-party beneficiaries of this EULA and will have the right to enforce it.
1.3 Additional Terms for Software from Apple App Store (or iTunes). The following applies to any Software accessed through or downloaded from the Apple App Store:
(a) You acknowledge and agree that (i) this EULA is between you and EPI only, and not Apple, and (ii) EPI, not Apple, is solely responsible for the Apple-Sourced Application and content thereof. Notwithstanding this, your use of the Apple-Sourced Application must comply with the applicable Apple App Store Terms of Service.
(b) You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Apple-Sourced Application.
(c) In the event of any failure of the Apple-Sourced Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the Apple-Sourced Application to you and to the maximum extent permitted by applicable law, but Apple will have no other warranty obligation whatsoever with respect to the Apple-Sourced Application. As between EPI and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of EPI.
(d) You and EPI acknowledge that, as between EPI and Apple, Apple is not responsible for addressing any claims you have or any claims of any third party relating to the Apple-Sourced Application or your possession and use of the Apple-Sourced Application, including, but not limited to: (i) product liability claims; (ii) any claim that the Apple-Sourced Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
(e) You and EPI acknowledge that, in the event of any third party claim that the Apple-Sourced Application, or your possession and use of that Apple-Sourced Application, infringes that third party’s intellectual property rights, as between EPI and Apple, EPI, not Apple, will be solely responsible for the investigation, defense, settlement, and discharge of any such intellectual property infringement claim to the extent required by this EULA.
(f) You and EPI acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of this EULA as related to your license of the Apple-Sourced Application, and that, upon your acceptance of this EULA and conditions of this EULA, Apple will have the right (and will be deemed to have accepted the right) to enforce this EULA as related to your license of the Apple-Sourced Application against you as a third party beneficiary thereof.
(g) Without limiting any other terms of this EULA, you must comply with all applicable third-party terms of agreement when using the Apple-Sourced Application.
1.4 Open-Source Software. Certain software code incorporated into or distributed with the Software may be licensed by third parties under various “open-source” or “public-source” software licenses (such as the GNU General Public License, the GNU Lesser General Public License, the Apache License, the Berkeley Software Distribution License, and the Sun Public License) (collectively, the “Open Source Software”). Notwithstanding anything to the contrary in this EULA, the Open Source Software is not licensed under Section 1.1 and instead is separately licensed pursuant to the terms and conditions of their respective open-source software licenses. You agree to comply with the terms and conditions of such open-source software license agreements.
1.5 Data and Privacy
While EPI is not a “Covered Entity” under the Health Information Portability and Accountability Act of 1996, as amended and as implemented by the associated regulations (“HIPAA”) and therefore not subject to HIPAA Standards, EPI takes data privacy and security very seriously and follows industry standards for data protection and safeguards when it comes to the collection, storage, handling, and transmission of patient data.
By using the Software, you agree to allow the Software to store relevant personal and (if you are a patient) health data on your mobile device, computer, tablet, or other similar device, including your email address, login information, and certain health information. This information shall be transmitted to EPI’s database/server through your smartphone’s mobile data service, Wi-Fi, or internet access. Your data stored in and collected through the Software will be saved for an indefinite period of time, with appropriate, industry-standard levels of data security and protection, on an EPI server on the Google Cloud Platform.
Usage Data. In addition to the data displayed through the Software, the Software may, from time to time, automatically report back information to EPI’s servers related to usage of the Software without notice to you (“Usage Data”). Usage Data by itself does not include Personal Information (defined below) and may be used by EPI as it deems appropriate in compliance with all applicable laws, including helping diagnose and resolve technical and performance issues in relation to the Software. By using the Software, you hereby consent and agree to such collection, transmission, and use of Usage Data and agree to get all necessary consent(s) from any authorized user and/or patient for such contemplated usage.
Technical Data. In addition, the Software will save and transmit to EPI certain information regarding your mobile device, tablet, and/or computer, such as the specific model, operating system, issues with installation and operation, and other technical information that will be used to maintain and improve the Software for all users as well as your own experience.
1.6 Ownership. You agree that EPI and its suppliers own all rights, title and interest in the Software. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Software.
1.7 No Medical Services. You understand and agree that EPI does not provide any licensed health care services, nor does EPI provide medical, health, or other professional advice or decision-making, through this Software or otherwise. In addition, EPI does not monitor or verify the accuracy of your data within the Software. Notwithstanding this, if you are a patient, you may authorize your physician or other healthcare provider to access your data through the Software for consultation, analysis, therapy decisions, and/or adjustments to your care.
2. USE OF THE SOFTWARE
2.1 Updates. EPI may require you to accept updates to the Software that you have installed on your mobile device, tablet, and/or computer. You acknowledge and agree that EPI may update the Software with or without notifying you. You may need to update third-party software from time to time in order to use the Software.
2.2 Certain Restrictions. As a condition of use, you agree not to use the Software for any purpose that is prohibited by the EULA or by applicable law. You shall not (and shall not permit any third party to): (a) license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit the Software, (b) modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the Software except to the extent the foregoing restrictions are expressly prohibited by applicable law; (c) interfere with or attempt to interfere with the proper functioning of the Software; (d) attempt to engage in or engage in, any potentially harmful acts that are directed against the Software or EPI, including but not limited to violating or attempting to violate any security features of the Software; or (e) access the Software in order to build a similar or competitive website, application or service. Any future release, update or other addition to the Software shall be subject to this EULA. EPI, its suppliers and service providers reserve all rights not granted in this EULA. Any unauthorized use of the Software terminates the licenses granted by EPI pursuant to this EULA.
2.3 User Content. The Software may contain features or methods that allow users to submit and share texts, feedback, suggestions, ideas, commentary, messages, information, documents, images, questions, links, and other material through the Software or directly to EPI (all together, “User Content”).
You take sole responsibility for all User Content you submit, and all User Content you submit must be your own. You grant EPI and its affiliates a non-exclusive, worldwide, royalty-free license (with the right to sublicense) to reproduce, distribute, publicly display and perform, transmit, adapt, and translate any User Content you submit, in whole or in part and in any medium now known or later developed, for any purpose (with the exception of any User Content that consists of Personal Information). You represent and warrant that the User Content you submit does not (i) defame any party; (ii) violate any party’s copyright, trademark, patent, trade secret, right to privacy or publicity, or any other proprietary or personal right; (iii) contain any material or information furnished to you in confidence or with the understanding that it would not be disclosed or published (including, but not limited to, any confidential information related to the business of your employer, colleagues, or clients); or (iv) otherwise violate any applicable law or regulation. You additionally represent, warrant and covenant that you are under no obligation that would in any way interfere with the disclosure or use of any User Content you submit.
- DISCLAIMER OF WARRANTIES. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE SOFTWARE IS AT YOUR SOLE RISK, AND THE SOFTWARE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. THE EPI PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. THE EPI PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) THE SOFTWARE WILL MEET YOUR REQUIREMENTS; (2) THE SOFTWARE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (3) THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SOFTWARE WILL BE ACCURATE OR RELIABLE; OR (4) ANY ERRORS IN THE SOFTWARE WILL BE CORRECTED. THE SOFTWARE MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS. THE EPI PARTIES ASSUME NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MIS-DELIVERY OR FAILURE TO STORE ANY DATA THROUGH THE SOFTWARE. THE EPI PARTIES HAVE NO CONTROL OVER AND ASSUME NO RESPONSIBILITY FOR ANY PERSONAL INFORMATION THAT IS SHARED BY YOU WITH ANY THIRD PARTIES.
6. LIMITATION OF LIABILITY
6.1 DISCLAIMER OF CERTAIN DAMAGES. YOU UNDERSTAND AND AGREE THAT IN NO EVENT SHALL EPI PARTIES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE SOFTWARE, INCLUDING, WITHOUT LIMITATION, ANY DAMAGES RESULTING FROM LOSS OF USE, DATA, OR PROFITS, WHETHER OR NOT EPI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH THIS EULA, ON ANY THEORY OF LIABILITY, RESULTING FROM: (1) THE USE OR INABILITY TO USE THE SOFTWARE; (2) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; OR (3) ANY OTHER MATTER RELATED TO THE SOFTWARE.
6.2 CAP ON LIABILITY. UNDER NO CIRCUMSTANCES WILL THE EPI PARTIES BE LIABLE TO YOU IN THE AGGREGATE FOR MORE THAN TEN DOLLARS ($10.00).
6.3 BASIS OF THE BARGAIN. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN EPI AND YOU.
7. TERM AND TERMINATION
7.1 Term. This EULA will commence on the date when you accept it (as described in the preamble above) and remain in full force and effect until terminated in accordance with this Section 7.
7.2 Termination by EPI. If you have breached any provision of this EULA, or if the EPI is required to do so by law (e.g., where the provision of the Software is, or becomes, unlawful), EPI has the right to suspend or terminate any services provided to you. You agree that all terminations for cause shall be made in EPI’s sole discretion and that EPI shall not be liable to you or any third party for any termination of your Account. In addition, the provision of certain functionality provided by EPI through the Software will automatically terminate if you no longer use or have access to the Equipment.
7.3 Termination by You. If you want to terminate any services provided by EPI through the Software, you may do so by deleting the Software.
7.4 Effect of Termination. Termination includes deletion of all data on the Software (with the understanding that data may remain on any Equipment being used and/or the applicable EPI server). EPI will not have any liability whatsoever to you for any suspension or termination. All provisions of this EULA which by their nature should survive, shall survive termination of this EULA, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.
8. GENERAL PROVISIONS
8.1 Electronic Communications. The communications between you and EPI use electronic means. For contractual purposes, you (1) consent to receive communications from EPI in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications that EPI provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights.
8.2 Release. You hereby release the EPI Parties and their successors from claims, demands, any and all losses, damages, rights, and actions of any kind, including personal injuries, death, and property damage that is either directly or indirectly related to or arises out of the Software or your use thereof. If you are a California resident, you hereby waive California Civil Code Section 1542, which states, “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor.”
8.3 Assignment. This EULA, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated, or otherwise transferred by you without EPI’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
8.4 Force Majeure. EPI shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
8.5 Dispute Resolution. If you believe that EPI has not adhered to this EULA, please contact EPI by emailing us at firstname.lastname@example.org. We will do our best to address your concerns. If you feel that your complaint has been addressed incompletely, we invite you to let us know for further investigation.
8.6 Choice of Law and Venue. This EULA and any action related thereto will be governed and interpreted by and under the laws of the State of Texas, without giving effect to any conflict of laws principles that require the application of the law of a different state. You hereby expressly consent to the personal jurisdiction and venue in the state and federal courts for the county in which EPI’s principal place of business is located for any lawsuit filed against you by EPI arising from or related to this EULA. The United Nations Convention on Contracts for the International Sale of Good does not apply to this EULA.
8.7 Limitations Period. YOU AND EPI AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THIS EULA MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
8.8 Notice. Where EPI requires that you provide an e-mail address, you are responsible for providing EPI with your most current e-mail address. In the event that the last e-mail address you provided to EPI is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by this EULA, EPI’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to EPI at email@example.com.
8.9 Waiver. Any waiver or failure to enforce any provision of this EULA on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
8.10 Severability. If any provision of this EULA is, for any reason, held to be invalid or unenforceable, the other provisions of this EULA will remain enforceable, and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
8.11 Export Control. You may not use, export, import, or transfer the Software except as authorized by U.S. law, the laws of the jurisdiction in which you obtained the Software, and any other applicable laws. In particular, but without limitation, the Software may not be exported or re-exported (a) into any United States 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’s Denied Persons List or Entity List. By using the Software, you 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. You also will not use the Software for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. You acknowledge and agree that products, services or technology provided by EPI are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer EPI products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.
8.12 Entire Agreement. This EULA is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof, and supersedes and merges all prior discussions between the parties with respect to such subject matter.