End User License Agreement for Software
IMPORTANT. READ CAREFULLY:
This End User License Agreement (“EULA”) is a legal agreement between You (either an individual or a single entity) and Viveka Health, Inc. (“Viveka”) for software, owned by Viveka and its affiliated companies and its third party suppliers and licensors, that accompanies this EULA, which includes computer software and may include associated media, printed materials, “online” or electronic documentation. BY USING THIS SOFTWARE, YOU ACCEPT THE TERMS OF THIS EULA. IF YOU DO NOT ACCEPT THESE TERMS, DO NOT USE THE SOFTWARE.
1. GRANT OF LICENSE. Viveka grants you the following rights provided that you comply with all terms and conditions of this EULA: You may install, use, access, display and run one copy of the Software on a single computer or mobile device at a time, and you may not make the Software available over a network where it could be used by multiple computers at the same time. You may make one copy of the Software in machine-readable form for backup purposes only; provided that the backup copy must include all copyright or other proprietary notices contained on the original. Certain items of the Software may be subject to open source licenses. The open source license provisions may override some of the terms of this EULA. We make the applicable open source licenses available to you upon request.
2. RESERVATION OF RIGHTS AND OWNERSHIP. Viveka reserves all rights not expressly granted to you in this EULA. The Software is protected by copyright and other intellectual property laws and treaties. Viveka or its suppliers own the title, copyright and other intellectual property rights in the Software. The Software is licensed, not sold.
3. LIMITATIONS ON END USER RIGHTS. You may not reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code or algorithms of, the Software (except and only to the extent that such activity is expressly permitted by applicable law not withstanding this limitation), or modify, or disable any features of, the Software, or create derivative works based on the Software. You may not rent, lease, lend, sublicense or provide commercial hosting services with the Software.
5. SOFTWARE UPDATES. Viveka may provide to you or make available to you updates, upgrades, supplements, and add-on components (if any) of the Software, including bug fixes, service upgrades (parts or whole), products or devices, and updates and enhancements to any software previously installed (including entirely new versions), (collectively “Update”) after the date you obtain your initial copy of the Software to improve the Software and ultimately enhance your user experience with your device. This EULA applies to all and any component of the Update that Viveka may provide to you or make available to you after the date you obtain your initial copy of the Software, unless we provide other terms along with such Updates. To use Software provided through Update, you must first be licensed for the Software identified by Viveka as eligible for the Update. After the Update, you may no longer use the Software that formed the basis for your Update eligibility. The updated Software version may add new functions and, in some limited cases, may delete existing functions. While the Update will be generally available, in some limited circumstances, the Software Updates will only be offered by your network carrier, and such Software Updates will be governed by your contractual relationship with your network carrier. With the “Automatic Update” function enabled (as in the default setting in the System Update menu or Security menu in the Settings), your device downloads some Updates automatically from time to time. Your device will, in most cases, ask for your consent before installing any Update. However, given the importance of receiving timely Updates for security software to defend against new threats, such Updates may be automatically downloaded and installed. For optimal use of your device, we recommend that you periodically check whether any new Updates are available. If you want to avoid any use of network data for the Update downloads, then you should choose the “Wi-Fi Only” option in the Settings.
6. Some features of the Software may require your device to have access to the internet and may be subject to restrictions imposed by your network or internet provider. Unless your device is connected to the internet through Wi-Fi connection, the Software will access through your mobile network, which may result in additional charges depending on your payment plan. In addition, your enjoyment of some features of the Software may be affected by the suitability and performance of your device hardware or data access.
7. SOFTWARE TRANSFER. You may not transfer this EULA or the rights to the Software granted herein to any third party.
8. EXPORT RESTRICTIONS. You acknowledge that the Software is subject to export restrictions of various countries. You agree to comply with all applicable international and national laws that apply to the Software, including all the applicable export restriction laws and regulations.
9. TERMINATION. This EULA is effective until terminated. Your rights under this EULA will terminate automatically without notice from Viveka if you fail to comply with any of the terms and conditions of this EULA. Upon termination of this EULA, you must cease all use of the Software and destroy all copies, full or partial, of the Software.
10. DISCLAIMER OF WARRANTY. UNLESS SEPARATELY STATED IN A WRITTEN EXPRESS LIMITED WARRANTY ALL SOFTWARE PROVIDED BY VIVEKA IS PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS, WITHOUT WARRANTIES OF ANY KIND FROM VIVEKA, EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT POSSIBLE PURSUANT TO APPLICABLE LAW, VIVEKA DISCLAIMS ALL WARRANTIES EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY OR WORKMANLIKE EFFORT, FITNESS FOR A PARTICULAR PURPOSE, RELIABILITY OR AVAILABILITY, ACCURACY, LACK OF VIRUSES, QUIET ENJOYMENT, NON INFRINGEMENT OF THIRD PARTY RIGHTS OR OTHER VIOLATION OF RIGHTS. SOME JURISDICTIONS DO NOT ALLOW EXCLUSIONS OR LIMITATIONS OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM VIVEKA OR ITS AFFILIATES SHALL BE DEEMED TO ALTER THIS DISCLAIMER BY VIVEKA OF WARRANTY REGARDING THE SOFTWARE, OR TO CREATE ANY WARRANTY OF ANY SORT FROM VIVEKA.
11. LIMITATION OF LIABILITY. VIVEKA WILL NOT BE LIABLE FORANY DAMAGES OF ANY KIND ARISING OUT OF OR RELATING TO THE USE OR THE INABILITY TO USE THE SOFTWARE OR ANY THIRD PARTY APPLICATION, ITS CONTENT OR FUNCTIONALITY, INCLUDING BUT NOT LIMITED TO DAMAGES CAUSED BY OR RELATED TO ERRORS, OMISSIONS, INTERRUPTIONS, DEFECTS, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, FAILURE TO CONNECT, NETWORK CHARGES, IN-APP PURCHASES, AND ALL OTHER DIRECT, INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES EVEN IF VIVEKA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU. NOTWITHSTANDING THE FOREGOING, VIVEKA HEALTH, INC’S TOTAL LIABILITY TO YOU FOR ALL LOSSES, DAMAGES, CAUSES OF ACTION, INCLUDING BUT NOT LIMITED TO THOSE BASED ON CONTRACT, TORT, OR OTHERWISE, ARISING OUT OF YOUR USE OF THE SOFTWARE OR THIRD PARTY APPLICATIONS ON THIS MOBILE DEVICE, OR ANY OTHER PROVISION OF THIS EULA, SHALL NOT EXCEED THE AMOUNT PURCHASER PAID SPECIFICALLY FOR YOUR USE OF THIS APPLICATION. THE FOREGOING LIMITATIONS, EXCLUSIONS, AND DISCLAIMERS (INCLUDING SECTIONS 10, 11, 12 AND 13) SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE.
12. U.S. GOVERNMENT END USERS RESTRICTED RIGHTS. The Software is licensed only with "restricted rights" and as "commercial items" consisting of "commercial software" and "commercial software documentation" with only those rights as are granted to all other end users pursuant to the terms and conditions herein. All Products are provided only with “restricted rights” with only those rights as are granted to all other end users pursuant to the terms and conditions herein. All Software and Products are provided subject to Federal Acquisition Regulation (FAR) 52.227.19.
13. APPLICABLE LAW. This EULA is governed by the laws of the jurisdiction where you are a resident or, if a resident of the United States, by the laws of the state of Texas, without regard to its conflict of law provisions. This EULA shall not be governed by the UN Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.
14. DISPUTE RESOLUTION. (a) Non-United States residents. This software is not licensed for use outside the United States. Any such usage is strictly prohibited. (b) United States residents. ALL DISPUTES WITH VIVEKA HEALTH ARISING IN ANY WAY FROM THIS EULA OR YOUR USE OF THE SOFTWARE SHALL BE RESOLVED EXCLUSIVELY THROUGH FINAL AND BINDING ARBITRATION, AND NOT BY A COURT OR JURY. Any such dispute shall not be combined or consolidated with any other person’s or entity’s claim or dispute, and specifically, without limitation of the foregoing, shall not under any circumstances proceed as part of a class action. The arbitration shall be conducted before a single arbitrator, whose award may not exceed, in form or amount, the relief allowed by the applicable law. The arbitration shall be conducted according to the American Arbitration Association (AAA) Commercial Arbitration Rules applicable to consumer disputes. This arbitration provision is entered pursuant to the Federal Arbitration Act. The laws of the State of Texas, without reference to its choice of laws principles, shall govern the interpretation of the EULA and all disputes that are subject to this arbitration provision. The arbitrator shall decide all issues of interpretation and application of this arbitration provision and the EULA. For any arbitration in which your total damage claims, exclusive of attorney fees and expert witness fees, are $5,000.00 or less (“Small Claim”), the arbitrator may, if you prevail, award your reasonable attorney fees, expert witness fees and costs as part of any award, but may not grant Viveka its attorney fees, expert witness fees or costs unless it is determined that the claim was brought in bad faith. In a Small Claim case, you shall be required to pay no more than half of the total administrative, facility and arbitrator fees, or $50.00 of such fees, whichever is less, and Viveka shall pay the remainder of such fees. Administrative, facility and arbitrator fees for arbitrations in which your total damage claims, exclusive of attorney fees and expert witness fees, exceed $5,000.00 (“Large Claim”) shall be determined according to AAA rules. In a Large Claim case, the arbitrator may grant to the prevailing party, or apportion among the parties, reasonable attorney fees, expert witness fees and costs. Judgment may be entered on the arbitrator’s award in any court of competent jurisdiction. This arbitration provision also applies to claims against Viveka’s employees, representatives and affiliates if any such claim arises from the licensing or use of the Software. You may opt out of this dispute resolution procedure by providing notice to Viveka no later than 30 calendar days from the date of the first acquisition of the software. To opt out, you must send notice by e-mail to email@example.com, with the subject line: “Arbitration Opt Out.” You must include in the opt out e-mail (a) your name and address; (b) the date on which the software was acquired; (c) the device model name or model number; and (d) the IMEI or MEID or Serial Number, as applicable, if you have it (the IMEI or MEID or Serial Number can be found (i) on the device box; (ii) on the device information screen, which can be found under “Settings;” (iii) on a label on the back of the device beneath the battery, if the battery is removable; and (iv) on the outside of the device if the battery is not removable). Alternatively, you may opt out by calling 1-844-4-VIVEKA no later than 30 calendar days from the date of the first acquisition of the software and providing the same information. These are the only two forms of notice that will be effective to opt out of this dispute resolution procedure. Opting out of this dispute resolution procedure will not affect your use of the device or its preloaded Software, and you will continue to enjoy the benefits of this license.
15. ENTIRE AGREEMENT; SEVERABILITY. This EULA is the entire agreement between you and Viveka relating to the Software and supersedes all prior or contemporaneous oral or written communications, proposals and representations with respect to the Software or any other subject matter covered by this EULA. If any provision of this EULA is held to be void, invalid, unenforceable or illegal, the other provisions shall continue in full force and effect. [05122017_v 1.1]