THIS AGREEMENT IS A LEGALLY BINDING AGREEMENT BETWEEN YOU AND THE LICENSOR. THIS AGREEMENT SHALL GOVERN:
YOUR INSTALLATION AND USE OF THE S4B APP PROVIDED BY THE LICENSOR FOR USE ON THE MOBILE DEVICE DESIGNATED BY YOUR HEALTHCARE PROVIDER (“MOBILE DEVICE”);
THE SENSE4BABY CENTRAL UNITS (“S4B CENTRAL UNITS”) THAT HAVE BEEN PROVIDED BY YOUR PHYSICIAN, WHICH SHALL ALSO BE SUBJECT TO THE TERMS OF THE LIMITED WARRANTY FOR THE S4B APP (“S4B CENTRAL UNIT WARRANTY “); AND
ANY MANUALS, INSTRUCTIONS, DESCRIPTIONS, SPECIFICATIONS OR OTHER MATERIALS, IN HARD COPY OR ELECTRONIC FORM, PROVIDED BY THE LICENSOR (THE “DOCUMENTATION”) DESCRIBING OR RELATING TO THE USE OF THE S4B APP.
YOU ACKNOWLEDGE THAT YOU WILL BE USING THE S4B APP IN CONNECTION WITH PRODUCTS AND SERVICES PROVIDED BY THIRD PARTIES WHICH ARE NOT PROVIDED BY THE LICENSOR AND FOR WHICH THE LICENSOR HAS NO RESPONSIBILITY, WHICH MAY INCLUDE THE CLOUD STORAGE OF YOUR DATA AND THE PORTAL ACCESS OF THAT DATA BY YOUR HEALTHCARE PROVIDER (THE “CLOUD SERVICES”). THE IDENTITY OF THE CLOUD SERVICES PROVIDER (“CLOUD HOST”) IS DEPENDENT ON YOUR LOCATION AND IS AVAILABLE UNDER THE HEADING “REGIONAL INFORMATION SHARING” AT WWW.ADVANCEDMATERNITYINNOVATIONS.COM/SENSE4BABYPRIVACYPOLICY. THE CLOUD SERVICES (IF PROVIDED BY A HOST OTHER THAN THE LICENSOR) TOGETHER WITH THE SERVICES PROVIDED BY YOUR HEALTH CARE PROVIDER AND ANY OTHER THIRD PARTY PRODUCTS AND SERVICES WILL BE REFERRED TO COLLECTIVELY AS “THIRD PARTY SERVICES”. THE LICENSOR MAKES NO CLAIMS AS TO THE VALIDITY, ACCURACY, RELIABILITY OR STATUS OF THESE THIRD PARTY SERVICES AND SHALL NOT BE HELD RESPONSIBLE FOR ANY CLAIMS RELATING TO THE THIRD PARTY SERVICES.
THE S4B APP TRANSMITS INFORMATION RECEIVED FROM YOUR S4B CENTRAL UNIT (“PERINATAL DATA”) ON YOUR MOBILE DEVICE IN AN ENCRYPTED FORMAT AND THEN TRANSMITS THE PERINATAL DATA FROM YOUR MOBILE DEVICE IN AN ENCRYPTED FORMAT TO THE CLOUD HOST FOR ACCESS AND REVIEW BY YOUR HEALTHCARE PROVIDER. PERINATAL DATA IS ONLY TEMPORARILY STORED ON YOUR MOBILE DEVICE UNTIL SUCH DATA IS UPLOADED TO THE CLOUD SERVICES. ANY PERINATAL DATA FROM THE S4B CENTRAL UNIT CAPTURED ON A DIFFERENT DEVICE WILL NOT BE VISIBLE TO YOUR HEALTHCARE PROVIDER THROUGH THE CLOUD SERVICES.
IF THE LICENSOR IS NOT YOUR CLOUD HOST, THE LICENSOR MAKES NO REPRESENTATION OR WARRANTY THAT IT HAS CONTROL OR THE ABILITY TO CONTROL THE PERINATAL DATA ONCE IT IS TRANSMITTED TO CLOUD HOST OR TO YOUR HEALTHCARE PROVIDER. FOLLOWING TRANSMISSION TO THE CLOUD HOST, THE PERINATAL DATA IS UNDER THE DIRECT AUTHORITY AND CONTROL OF YOUR HEALTHCARE PROVIDER. PLEASE REVIEW YOUR HEALTHCARE PROVIDER’S PRIVACY POLICIES PRIOR TO UTILIZING THE S4B APP. THE CLOUD HOST IS NOT ABLE TO ACCESS OR MODIFY YOUR PERINATAL DATA IN ITS ENCRYPTED FORMAT AS STORED IN THE CLOUD SERVICES.
The Licensor may change the terms of this Agreement at any time by notifying You of a change when You next log-in to the S4B App following the installation of an update which You may receive directly from the Licensor or through an online platform, such as an app store. The new terms may be displayed on-screen and You may be required to read and accept them to continue Your use of the S4B App. If You choose not to accept any new terms You will not be able to use the S4B App any longer. For German users: You will be notified of any changes in this Agreement when You start the S4B App. You will be able to store or print out changes to the terms of this Agreement in legible form. Changes will be considered to have been accepted by You unless You inform Licensor of Your rejection of the terms in writing either via hard copy notice or by using electronic means agreed upon by You and Licensor. If You should decide to object to any change, You must do so within six (6) weeks after receipt of announcement of the change.
BY CLICKING THE “I ACCEPT” BUTTON OR BY INSTALLING, USING OR OTHERWISE ACCESSING THE S4B APP, YOU (I) INDICATE THAT YOU INTEND YOUR ACT TO SERVE AS YOUR SIGNATURE TO THIS AGREEMENT AND TO HAVE THE SAME FORCE AND EFFECT AS THE USE OF A MANUAL SIGNATURE AND (II) REPRESENT AND WARRANT THAT YOU ARE 18 YEARS OF AGE OR OLDER OR THAT, IF THE USER OF THE S4B APP IS UNDER 18 YEARS OLD, THE PERSON INSTALLING THE S4B APP IS THE USER’S PARENT OR LEGAL GUARDIAN.
IF YOU DO NOT ACCEPT ALL TERMS OF THIS AGREEMENT, CLICK THE “REJECT” BUTTON AND DO NOT INSTALL THE S4B APP OR OTHERWISE USE OR ACCESS THE S4B APP.
BY CLICKING ON “I ACCEPT”, YOU ACKNOWLEDGE THAT THERE ARE INHERENT RISKS IN COMPUTER SOFTWARE, HARDWARE AND INTERNET CONNECTIVITY THAT MAY RESULT IN INTERRUPTIONS OR ERRORS IN THE S4B APP AND THE DATA TRANSMITTED USING THE APP; LOSS OF PRIVACY, CONFIDENTIALITY, INFORMATION OR PROPERTY; AS WELL AS OTHER LOSSES, DAMAGES OR ADVERSE OCCURRENCES, REGARDLESS OF THE MEASURES TAKEN TO AVOID SUCH OCCURRENCES.
1. USER ACCOUNTS; NON-TRANSFERABILITY OF PATIENT ACCOUNT.
No Transfer. The S4B App may not be transferred to another end user and should be uninstalled if You transfer the Mobile Device on which it is installed or if You are no longer using the S4B Central Unit. The data You transmit to the Cloud Services using the S4B App is specific to You. If another end user desires to utilize the S4B App, he or she should consult with her healthcare provider and receive instructions about how to create an account for use of the S4B Central Unit and S4B App for her personal healthcare situation.
Termination of Account. Licensor and/or Your healthcare provider may terminate Your user account at any time, for any or no reason, and without notice to you (including, without limitation, if Licensor believes that you have violated or acted inconsistently with this Agreement). Upon such termination, all rights granted to you hereunder shall automatically revert back to Licensor, and all representations, warranties, covenants, certifications, indemnifications, and promises made by you under this Agreement shall survive in perpetuity.
2. LICENSE GRANT.
License Grant – S4B App. The Licensor hereby grants You a limited, non-transferable, non-exclusive license (the “License”) to install and use the S4B App on Your Mobile Device provided that You agree to and comply with all terms and conditions of this Agreement in connection with Your use of the S4B App on Your Mobile Device.
Reservation of Rights. You do not have the right to use the S4B App on any device other than the Mobile Device provided or otherwise designated by Your healthcare provider. You do not have the right to distribute the S4B App or post or otherwise make available the S4B App, or any portion thereof, in any form, on the Internet or in any other way, to any other person. You have no right to receive, distribute, use or examine any source code or design documentation relating to the S4B App, except and then solely to the extent required to be permitted by applicable law. The License granted herein does not constitute a sale of the S4B App or the Documentation, or any portion or copy thereof. RIGHTS NOT EXPRESSLY GRANTED HEREIN ARE RESERVED BY THE LICENSOR. You agree to only use the S4B App as expressly permitted herein. The S4B App is licensed, not sold, to You by the Licensor. The foregoing shall not apply to German users to the extent prohibited by applicable copyright law in Germany.
You acknowledge that the S4B App contains CONFIDENTIAL source code and agree not to disclose, provide, or otherwise make available confidential information within the S4B App in any form to any third party without the prior written approval of Licensor. Unauthorized copying of the S4B App or failure to comply with the restrictions in this Agreement (or other breach of the License herein) will result in automatic termination of this Agreement and You agree would cause immediate, irreparable harm to the Licensor or its affiliates and/or its licensors for which monetary damages would be an inadequate remedy and that injunctive relief will be an appropriate remedy for such breach. Some of the foregoing provisions may be ineffective in certain countries/states/provinces/jurisdictions, so the above acknowledgements and terms may not apply to You in their entirety. For German users: Your right to prove that no damage has occurred remains unaffected by the foregoing.
Ownership Of Intellectual Property. The Licensor, its affiliates and its suppliers own or license all rights, title and interest in and to the S4B App and the related Documentation. You agree to refrain from any action that would diminish such rights or would call them into question. You acknowledge and agree that all Intellectual Property Rights (as defined hereinafter) in the S4B App and Documentation and any improved, updated, upgraded, modified, customized or additional parts thereof are owned by the Licensor, its affiliates or its licensors and are protected by law and international treaty provisions, including but not limited to copyright, patent, trade secret, trade dress, trademark, rights in get-up, goodwill, rights in designs, technology, artwork, rights in computer software (including source code), database and similar or equivalent rights or forms of protection which subsist or will subsist, now or in the future, in any media now known or hereinafter invented, in any part of the world (“Intellectual Property Rights”). The license granted herein confers no title or ownership in the Intellectual Property Rights in the S4B App, the Documentation, or any other technology, information or materials, and as between the parties, the Licensor retains exclusive ownership of all right, title and interest in and to all aspects of the S4B App, the Documentation, and all other technology, information and materials, as well as any and all copies or modifications thereof (by whomever made and whenever made), including, but not limited to, all Intellectual Property Rights with respect to any and all of the foregoing. Portions of the S4B App may include copyrighted material provided by third parties. The licensors of such third party materials retain all of their respective right, title and interest in and to such third party materials and all copies thereof, including, but not limited to, any and all Intellectual Property Rights. The use of this material and the associated rights are hereby acknowledged except, and then solely to the extent, that the foregoing is ineffective in certain countries/states/provinces/jurisdictions. Any goodwill derived through the use of the Intellectual Property Rights pursuant to the terms of this Agreement shall inure solely to the benefit of the Licensor, its affiliates and/or its licensors. The structure, organization and code of the S4B App are the valuable trade secrets and confidential information of the Licensor, its affiliates and/or its licensors. You shall not remove any product identification, copyright notices or proprietary restrictions from the S4B App. Sense4Baby is a trademark of Gary and Mary West Health Institute in various jurisdictions and is licensed to Licensor. Any and all goodwill derived through the use of the Sense4Baby trademark pursuant to the terms of this Agreement shall inure solely to the benefit of Licensor and its licensees. Other trademarks included or accessed during the use of the S4B App are the trademarks of their respective licensors. Licensor reserves all rights not expressly granted to You in this Agreement.
Limitation On Reverse Engineering. Except to the extent that such restriction is not permitted under applicable law, You are not permitted (and You agree not to and not to permit or facilitate third parties to) reverse engineer, decompile, disassemble, decode, create derivative works of, gain access to the source code, reduce non-human readable elements in the S4B App to human-readable form, modify or adapt the S4B App, any updates to same, or any part thereof, except and then solely to the extent required to be permitted under applicable law.
Limitations on Use. You may not rent, lease, lend, sell, redistribute, transfer, assign or sublicense the S4B App or use the S4B App for commercial timesharing or otherwise in providing services to third parties. You may not sublicense, assign or transfer the License or S4B App.
Support. Technical support for the S4B App will be free during Your use of the S4B Central Units and if You need assistance with the S4B App please contact your healthcare provider. Licensor reserves the right at any time to discontinue, cancel, or modify the technical support provided. If a support issue arises while the S4B Central Unit is connected to the Mobile Device, do not uninstall the S4B App and do not clear data from the S4B App before contacting Your healthcare provider. Uninstalling the S4B App and/or clearing data will cause You to lose all data which has not yet been uploaded to the Cloud Services and will cause Your current S4B Central Unit to be unreadable.
3. UPDATES AND UPGRADES. From time to time updates to the S4B App may be available through the online provider such as the app store or the Sense4Baby website, including related regional websites. Depending on the update, You may not be able to use the S4B App until You have downloaded the latest version of the S4B App and accepted any new terms that may apply. To use the S4B App identified by the Licensor as an upgrade, You must first be licensed to use the original S4B App identified by the Licensor as eligible for the upgrade. After upgrading, You may no longer use the original S4B App that formed the basis for Your upgrade eligibility and the upgraded software shall be deemed the “S4B App” licensed hereunder; provided, the foregoing shall not apply to German users to the extent prohibited by applicable copyright laws in Germany. This Agreement will apply to Your use of the update or upgrade unless the Licensor provides other terms along with the update or upgrade. In case of a conflict between this Agreement and other terms provided with respect to updates or upgrades, such other terms will prevail. This Section 2 will not require the Licensor to deliver new features and functionality which are priced separately by the Licensor nor any future products which may be offered by the Licensor.
4. TERM. This Agreement is effective upon Your acceptance of the same and shall continue unless terminated in accordance with the terms of this Agreement. This Agreement will terminate immediately and without additional notice in the event that You breach, and/or fail to comply with, any term or condition of this Agreement. Licensor may terminate its provision of support for the S4B App at any time if We elect to stop offering the S4B App. If Your license to the S4B App terminates, You must discontinue use and uninstall and destroy all copies of the S4B App and Documentation; all rights granted to You under this Agreement shall cease; You must immediately cease all activities authorized by this Agreement; and You will no longer be able to use the S4B App. The foregoing sentence shall not apply to German users to the extent prohibited by applicable German copyright law.
5. DATA AND PRIVACY.
Limited License – User Data. By submitting User Data through the S4B App, you hereby grant Licensor and/or Your Cloud Host a non-exclusive, royalty-free, fully-paid, transferable license for Licensor to host, store, reproduce, transmit to your healthcare provider, archive, and otherwise use such User Data to carry out the services of the S4B App. Licensor is not responsible for, and expressly disclaims any liability arising from or in connection with, the use or disclosure of any User Data to Your healthcare provider.
6. DISCLAIMER OF WARRANTIES; WARNINGS.
The S4B App is provided to enable You to transmit data from Your S4B Central Unit to Your healthcare provider. THE USE OF THE S4B APP IS AT YOUR SOLE RISK. The S4B App is not intended for use on a mobile device that has been altered or customized to remove, replace, or circumvent the manufacturer’s approved kernel, system configuration or use restrictions, or which violates the manufacturer’s warranty. Use of the S4B App may adversely affect the operation of other software and devices. Any content created for, or included in, S4B App is for the purpose of providing information only. In providing the S4B App, the Licensor does not provide medical advice. The Licensor solely provides the S4B App to transmit Perinatal Data from Your S4B Central Unit to Your healthcare provider. The Licensor shall not have any responsibility for the Perinatal Data. The Licensor cannot warrant the accuracy of Perinatal Data received from the S4B Central Unit or as stored by Cloud Host. Do not use the S4B App during emergency situations or in situations where the health of the mother or baby is at risk. If You are concerned with Your condition or that of Your unborn child, You should contact Your healthcare provider. Do not ignore symptoms that may indicate that Your health or the health of Your unborn child is at risk. If You have symptoms that do not match the reading in the S4B App or suspect that Your reading may be inaccurate, contact Your healthcare provider. If You are experiencing symptoms that are not consistent with Your readings, consult Your healthcare provider. The content provided is not meant to serve as a substitute for medical advice, diagnosis or treatment, or for the individualized advice or care of a healthcare provider. Some of the foregoing disclaimers may be ineffective in certain countries/states/provinces/ jurisdictions, so may not apply to You in their entirety.
THE S4B APP IS NOT TO BE USED AS A SUBSTITUTE FOR PROFESSIONAL HEALTHCARE JUDGMENT, DIRECT MEDICAL SUPERVISION OR EMERGENCY INTERVENTION; OR FOR EMERGENCY USE OR FOR TRANSMISSION OR INDICATION OF ANY REAL-TIME ALARMS OR TIME CRITICAL DATA. ALL PATIENT MEDICAL DIAGNOSES AND TREATMENT ARE TO BE PERFORMED BY AN APPROPRIATE HEALTHCARE PROFESSIONAL. NEITHER THE LICENSOR, NOR ANY OF ITS AFFILIATED COMPANIES, ARE RESPONSIBLE OR LIABLE FOR ANY DIAGNOSIS, DECISION OR ASSESSMENT MADE BY A USER OR ANY INJURIES YOU OR YOUR UNBORN CHILD MAY INCUR AS A RESULT OF ANY DECISIONS MADE BASED ON THE CONTENT OF THE S4B APP AND DOCUMENTATION.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE LICENSOR, ITS AFFILIATES AND ITS SUPPLIERS PROVIDE THE S4B APP “AS IS” AND WITH ALL FAULTS AND DEFECTS AND WITHOUT ANY OTHER WARRANTY OF ANY KIND, AND HEREBY DISCLAIM ALL OTHER WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE AND NON-INFRINGEMENT, ANY IMPLIED WARRANTIES, DUTIES OR CONDITIONS OF MERCHANTABILITY, OF FITNESS FOR A PARTICULAR PURPOSE, AND OF LACK OF VIRUSES ALL WITH REGARD TO THE S4B APP. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY THE LICENSOR OR AN AUTHORIZED REPRESENTATIVE OF THE LICENSOR SHALL CREATE A WARRANTY. THE SOLE WARRANTY APPLICABLE TO THE S4B CENTRAL UNIT IS AS SET FORTH IN THE S4B CENTRAL UNIT WARRANTY. The Licensor and its affiliates, licensors, and suppliers do NOT warrant that the functions contained in the S4B App will meet Your requirements or that the operation of the S4B App will be uninterrupted or error free or that such errors will be corrected. Software, such as that used in the S4B App, is inherently subject to bugs and potential incompatibility with other computer software and hardware. You should not use the S4B App for any applications in which failure could cause any significant damage or injury to persons or tangible or intangible property. Some countries/states/ provinces/jurisdictions do not allow exclusion of implied warranties or limitations on the duration of implied warranties, so the above disclaimer may not apply to You in its entirety. To the extent applicable law requires the Licensor to provide warranties, You agree that the scope and duration of such warranty shall be to the minimum extent required to be provided under such applicable law.
IN NO EVENT DOES THE LICENSOR PROVIDE ANY WARRANTY OR REPRESENTATION WITH RESPECT TO ANY THIRD PARTY HARDWARE, SOFTWARE OR SERVICES, INCLUDING THE THIRD PARTY SERVICES WITH WHICH THE S4B APP IS DESIGNED TO BE USED AND ANY SERVICES BEING PROVIDED BY YOUR HEALTHCARE PROVIDER, AND THE LICENSOR DISCLAIMS ALL LIABILITY WITH RESPECT TO ANY FAILURES THEREOF. THE LICENSOR DISCLAIMS ANY AND ALL LIABILITY THAT MAY DERIVE FROM ACTIONS OF OR CLAIMS AGAINST ANY THIRD PARTY PROVIDERS INCLUDING YOUR HEALTHCARE PROVIDER. SOME COUNTRIES/STATES/ PROVINCES/JURISDICTIONS DO NOT ALLOW DISCLAIMERS OF WARRANTIES, SO THE ABOVE DISCLAIMER MAY NOT APPLY TO YOU IN ITS ENTIRETY.
If You receive the S4B App through Apple Inc. (“Apple”), You acknowledge and agree that this Agreement is between You and Licensor, who is the provider of the S4B App and the content available therein, not Apple. Apple has no obligation to furnish any maintenance or support with respect to the S4B App. Apple is not responsible for addressing any claims You or any third party have or may have relating to the S4B App or Your possession and/or use of the S4B App, including, without limitation, (i) product liability claims, (ii) any claim that such S4B App fails to conform to any applicable legal or regulatory requirement, (iii) claims arising under consumer production or similar legislation, and (iv) intellectual property infringement claims. Apple shall have no warranty or other obligation with respect to the S4B App and shall not be subject to any losses, liabilities, damages, costs or expenses attributable to any failure of the S4B App. Apple shall be a third party beneficiary of the restrictions contained in this paragraph and Apple shall have the right to enforce the terms of this paragraph against You as a third party beneficiary hereof. If You download, access, or use the S4B App from or through Apple’s App Store, then the limited license granted to you in Section 2.a. is hereby amended to add the following restriction: You may not use the S4B App on any device other than the Apple-brand device (e.g., iPhone) that you own or control, or in any manner that is contrary to Apple’s Usage Rules.
7. LIMITATION OF LIABILITY. NOTWITHSTANDING ANY LOSSES THAT YOU MAY INCUR, THE ENTIRE LIABILITY OF THE LICENSOR, ITS AFFILIATES AND ANY OF ITS LICENSORS OR SUPPLIERS UNDER ANY PROVISION OF THIS AGREEMENT AND YOUR EXCLUSIVE REMEDY FOR ALL OF THE FOREGOING SHALL BE LIMITED TO, IN LICENSOR’S DISCRETION, EITHER THE FIXING, REPAIRING OR OTHERWISE RECTIFYING ANY S4B APP FAULTS OR REPLACING THE S4B APP, EVEN IF ANY SUCH LOSS WAS FORESEEABLE OR CONTEMPLATED BY THE PARTIES, OR WHERE APPLICABLE, THE GREATER OF THE AMOUNT ACTUALLY PAID BY YOU FOR THE S4B APP OR $10.00. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE LICENSOR, ITS AFFILIATES OR ANY OF ITS LICENSORS OR SUPPLIERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, FOR LOSS OF DATA OR OTHER INFORMATION, FOR BUSINESS INTERRUPTION, FOR PERSONAL INJURY, FOR LOSS OF PRIVACY ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF OR INABILITY TO USE THE S4B APP, THE S4B CENTRAL UNIT, OR ANY THIRD PARTY SERVICES, SOFTWARE AND/OR HARDWARE USED WITH THE S4B APP, FOR LOSS FROM ANY VIRUSES OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR DEVICE DUE TO YOUR DOWNLOADING THE S4B APP OR ANY MATERIAL/WEBSITE LINKED TO IT, OR OTHERWISE IN CONNECTION WITH ANY PROVISION OF THIS AGREEMENT), EVEN IF THE LICENSOR, ITS AFFILIATES OR ITS SUPPLIERS OR LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF THE REMEDY FAILS OF ITS ESSENTIAL PURPOSE. YOU UNDERSTAND AND AGREE TO THE LIMITATIONS OF LIABILITY IN THIS SECTION AND ACKNOWLEDGE THAT WITHOUT YOUR AGREEMENT TO THIS PROVISION, THE FEE CHARGED FOR THIS S4B APP WOULD BE HIGHER. Some countries/states/provinces/jurisdictions prohibit or limit the exclusion or limitation of liability or incidental or consequential damages, so the above limitations or exclusions may not apply to You. For German Users: The Licensor will be liable for any culpable breach of material contractual obligations (cardinal obligations). Cardinal obligations are contractual obligations that must be fulfilled to permit proper execution of the Agreement and may regularly be relied upon by You. The liability of the Licensor and its developers will otherwise be limited to gross negligence and willful misconduct. In the event of any liability on the part of the Licensor or any of its developers due to any breach of cardinal obligations or slight misconduct on the part of simple vicarious agents, the Licensor’s and its developers’ liability will be limited to typical foreseeable damages. This will not affect the Licensor’s unlimited liability in connection with the loss of life, bodily injury or illness or its unlimited liability in connection with German Product Liability Act. For UK Users: Nothing in this Agreement shall exclude Licensor’s liability for (i) death or personal injury arising out of its negligence or (ii) fraudulent misrepresentation in connection with the S4B App.
8. INDEMNITY. YOU AGREE TO INDEMNIFY AND HOLD THE LICENSOR AND ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, AFFILIATES, LICENSORS, SUPPLIERS, AND THEIR SUCCESSORS AND ASSIGNS HARMLESS FROM ANY CLAIM OR DEMAND (INCLUDING BUT NOT LIMITED TO REASONABLE LEGAL FEES) MADE BY A THIRD PARTY DUE TO OR ARISING OUT OF OR RELATED TO YOUR VIOLATION OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOUR VIOLATION OF ANY LAWS, REGULATIONS OR THIRD PARTY RIGHTS INCLUDING ANY INFRINGEMENT BY YOU ON THE COPYRIGHT OR INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY, OR YOUR NEGLIGENT ACT, OMISSION OR WILLFUL MISCONDUCT. For German Users: Your right to prove that no damage has occurred remains unaffected by the foregoing.
9. U.S. GOVERNMENT CUSTOMERS. The S4B App is a “Commercial Item” as that term is defined 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, as applicable, Commercial Computer Software and Commercial Computer Software Documentation are licensed to the U.S. Government users (i) only as Commercial Items and (2) only with those rights granted to other users under this Agreement. Unpublished rights are reserved under the copyrights of the United States.
10. EXPORT COMPLIANCE. You shall comply with all laws and regulations of the United States and other countries (“Export Laws”) to ensure that the S4B App is not (1) exported, directly or indirectly, by You in violation of Export Laws; or (2) used by You for any purpose prohibited by Export Laws, including, without limitation, nuclear, chemical, or biological weapons proliferation. You also agree that you are not on the United States list of Specially Designated Nationals Denied Persons List, Unverified List Debarred Party List or Entity List, as these lists, regulations and laws may be amended from time to time, which lists are currently consolidated at http://export.gov/ecr/eg_main_023148.asp. You further agree that You will not use the S4B App for any purpose prohibited under applicable law. If you are not a U.S. citizen or resident, Licensor may terminate this Agreement, without breaching the Agreement or incurring any damages, at any time that the U.S. imposes restrictions on the exportation of the goods, services, software, or technology to be provided under this Agreement. Should this occur, S4B will reimburse any payment made by You for the S4B App or the S4B Central Unit that S4B cannot provide because of restrictions on the export of these items.
11. REGION-SPECIFIC STATUTORY PRIVACY LAW NOTICES. Please review our region-specific statutory privacy law notices at http://www.advancedmatenityinnovations.com/sense4babyprivacy.
13. ENTIRE AGREEMENT. This Agreement is the entire agreement between You and the Licensor relating to the S4B App and it supersedes all prior or contemporaneous oral or written communications, proposals and representations with respect to the S4B App or any other subject matter covered by this Agreement. To the extent the terms of any policies or programs for support services conflict with the terms of this Agreement, the terms of this Agreement shall control. In the event of a conflict between the English and any non-English versions of this Agreement, the English version shall govern. If You are located in the Province of QuÃ©bec, Canada, then the following provision applies: Les parties aux prÃ©sentes confirment leur intention que cette convention ainsi que tous les documents affÃ©rents soient redigÃ©s dans la langue anglaise. (Translation: “The parties confirm that this Agreement and all related documentation are and will be in the English language.”) If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, such provision will be changed and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law and the remaining provisions of this Agreement will remain in force and effect. Sections 2.d, 4, 5, 6, 7, 8, 9, 10, 12, and 13 shall survive termination of this Agreement.
14. FORCE MAJEURE. Neither the Licensor nor any of its affiliates or licensors shall have any liability for any failure to perform its obligations under this Agreement if such failure is caused by fire, flood, natural disaster, epidemic, act of God, strike, civil unrest, riot, insurrection, revolution, war, terrorism, lack or failure of suppliers or transportation facilities, failure of utilities or telecommunications, failure of third party software, law or governmental regulation or other cause or event which is of a magnitude or a type beyond the reasonable control of the Licensor or such other party.
YOU ACKNOWLEDGE THAT YOU HAVE READ THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT, UNDERSTAND ALL SUCH TERMS AND CONDITIONS AND AGREE TO BE BOUND THEREBY.
BY CLICKING THE “I ACCEPT” BUTTON OR BY INSTALLING OR USING THE S4B APP, YOU INDICATE THAT YOU INTEND YOUR ACT TO SERVE AS YOUR SIGNATURE TO THIS AGREEMENT AND TO HAVE THE SAME FORCE AND EFFECT AS THE USE OF A MANUAL SIGNATURE.
Please print a copy of this Agreement for Your records.
IF YOU DO NOT ACCEPT ALL TERMS OF THIS AGREEMENT, CLICK THE “REJECT” BUTTON AND DO NOT INSTALL OR USE THE S4B APP.