BioMech Sensor, LLC (“BioMech Sensor”) owns or licenses certain Software (as defined below) used in connection with state-of-the-art motion analytics technology and products that quantify and analyze motion in real time and in any environment, known as the BioMech Lab. Authorized Users may access and use the Software through websites provided by BioMech Sensor or its affiliate BioMech, LLC (the “Sites”) or mobile application software (the “Lab App” as further defined herein).
This End User License Agreement (the “Agreement”) is a legal agreement between you (“you” or “Customer”) and BioMech Sensor. The Agreement sets forth the terms and conditions under which you may use the Software in connection with your business.
IMPORTANT NOTICE: Read this Agreement carefully before using the Software. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, YOU WILL NOT BE ABLE TO USE THE SOFTWARE. Please scroll down and read all of the following terms and conditions carefully before using the Software.
BY ACCESSING AND USING THE SOFTWARE YOU ACKNOWLEDGE THAT YOU HAVE READ AND ACCEPTED THIS AGREEMENT, AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS. SUCH ACCEPTANCE IS EITHER ON YOUR OWN BEHALF, OR ON BEHALF OF ANY CORPORATE ENTITY WHICH EMPLOYS YOU OR WHICH YOU REPRESENT (‘CORPORATE LICENSEE’). IF YOU ARE ACCEPTING AND AGREEING TO THIS AGREEMENT ON BEHALF OF A CORPORATE LICENSEE, YOU REPRESENT THAT YOU ARE AUTHORIZED TO DO SO. IN THIS LICENSE AGREEMENT, ‘YOU’ INCLUDES ANY CORPORATE LICENSEE. YOU AGREE THAT THIS AGREEMENT IS AS ENFORCEABLE AS ANY WRITTEN NEGOTIATED AGREEMENT MANUALLY SIGNED BY YOU AND THAT BY ACCESSING OR USING THE SOFTWARE OR OTHERWISE ACCEPTING OR AGREEING TO THIS AGREEMENT, YOU ARE PROVIDING YOUR ELECTRONIC SIGNATURE TO THIS AGREEMENT.
USE OF THE SOFTWARE REQUIRES THAT YOU HAVE AN EXISTING USER ACCOUNT FOR THE BIOMECH LAB. By using the Software, you are agreeing that you are an Authorized User of the BioMech Lab and to the terms and conditions stated below. If You are not an Authorized User or do not or cannot agree to the terms of this Agreement, do not install the Software. By downloading, accessing and/or using the Software, you agree to be bound by the terms of this Agreement.
1. Definitions. Definitions appear at the end of this Agreement in Section 19.
2. License Rights.
2.1 License. BioMech Sensor grants you a nonexclusive, nontransferable, limited license to Use Software and Documentation, including the Platform by means of the Sites or Lab App, during the Term for your internal business purposes. You shall have no rights or license to Use the Software and Documentation except as expressly permitted under this Agreement.
2.2 Restrictions. Unless otherwise stated in this Agreement or required by law, the rights granted to you under this Agreement are subject to the following restrictions:
a) The Software may not be transferred, sold, assigned, redistributed, sublicensed or otherwise conveyed (whether by operation of law or otherwise) to another party.
b) You will not use, copy, adapt, modify, prepare derivative works based upon, distribute, license, sublicense, offer in a timesharing or distributed environment, sell, transfer, publicly display, publicly perform, transmit, broadcast or otherwise exploit the Lab App, except as expressly permitted in this Agreement.
c) You must not decompile, disassemble, decrypt, or reverse engineer, or attempt to decompile, disassemble, decrypt, or reverse engineer the Software.
d) You must not remove any proprietary notices from the Software or the Documentation.
e) You must not use the Software or Documentation in any manner that infringes, misappropriates, or otherwise violates the law or any intellectual property or other right or of any person.
f) You must remove the Software from your Device if you sell your device or transfer control of it to a Third Party.
g) If you sell your Device to a third party, you must remove the Licensed Application from the Device before doing so.
h) You must not use the Sites, Lab App or Software in any way that may damage or impair the functions or availability of the Software or the BioMech Lab.
2.3 Source Code. Nothing in this Agreement gives you or any other person any license of or right to access or use the source code for the Software.
3. Hosted Services. BioMech Sensor shall use commercially reasonable efforts to maintain the availability of the Software to you at the gateway between public internet and the network of the hosting services provider for the Software but does not guarantee 100% availability.
4. User Content.
4.1 As long as you are complying with this Agreement and have an Authorized User Account, BioMech Sensor grants you a limited, non-exclusive, non-transferable license to access and view any content accessible through Use of the Software. You have no right to sublicense these rights or to further copy, reproduce, redistribute, resell, or commercialize the Software or any content therein in any manner whatsoever without the express written permission of BioMech Sensor (in its sole discretion).
4.2 You are solely responsible for all Customer Data and represent and warrant that:
a) you either are the sole and exclusive owner of all Customer Data or you have all rights, licenses, consents and releases that are necessary to create Customer Data and make such data available through the Software; and
b) You warrant to BioMech Sensor that the Customer Data and its disclosure through the Software will not infringe misappropriate or violate a third party’s intellectual property or other proprietary rights, including without limitation rights of publicity or privacy, or violate any applicable law or regulation.
5. Consent to Use of Data.
5.1 You grant BioMech Sensor and its affiliates (including BioMech, LLC) a non-exclusive license to use, copy, reproduce, store, distribute, publish, display, export, adapt, modify and translate usage and performance data as necessary: (a) to operate, optimize, modify, upgrade, promote the BioMech Lab and the Services (as defined under the User Agreement), and (b) for the performance of BioMech Sensor’s or its affiliates’ obligations and exercise of rights under this Agreement and the User Agreement (collectively, the “Data Purposes”). The foregoing rights may be sublicensed to BioMech Sensor’s affiliates and its hosting, connectivity and telecommunications service providers for the Data Purposes, subject always to any express restrictions elsewhere in this Agreement or the User Agreement.
5.2 You agree that BioMech Sensor may collect and use your technical data and related information (“Technical Data”), including without limitation, information about your computer, device, system and application software, and peripherals (if any and as applicable) that BioMech Sensor collects to provide the Software to you. BioMech Sensor may use Technical Data, as long as it is in a form that does not personally identify you, to improve its products, or to provide services to you.
6. Reservation of Rights. You agree to comply with the “Usage Rules” in the App Store and Google Play Terms of Service (as they define such terms) in connection with your use of the Lab App. Apple and Google have no obligation under this Agreement other than as expressly set forth herein. BioMech Sensor reserves any and all rights and licenses in and to the Lab App and other Software not expressly granted herein.
7. Account Access.
7.1 User Account. The Software is for the sole use of an Authorized User. Your User Account is provided to you by the Customer.
7.2 You are responsible for safeguarding your password. You will not disclose your password to any third party. You take sole responsibility for any activities or actions under your User Account, whether or not authorized by you. You will immediately notify BioMech Sensor of any unauthorized use of Your User Account to access the Software.
8. Updates and Support Services.
8.1 BioMech Sensor may from time to time during the Term provide Updates to You.
8.2 You must apply each Update to the Software made available to you by BioMech Sensor.
8.3 You can only use the Lab App when it is updated to the then-current version available from the App Store and Google Play.
8.4 Some Updates may be subject to additional terms and conditions that will be made available to you on the download page and on the Sites at the time that you download such Updates.
8.5 Specific Support Terms applicable to the Software are set forth in the User Agreement (“Support Services”).
8.6 BioMech Sensor gives no warranties or guarantees in relation to the outcome of Support and or Maintenance Services. Issues identified through the Support Services may only be resolved with an Update at the discretion of BioMech Sensor, or not at all.
8.7 You agree Apple and Google are not responsible for supporting the Lab App or other Software.
9. Confidential Information. “Confidential Information” shall include without limitation the Software (including methods or concepts utilized therein), the Documentation, the BioMech Lab and all information identified by BioMech Sensor as proprietary or confidential. Confidential Information shall remain the sole property of BioMech Sensor and shall not be disclosed to any third party without the express written consent of BioMech Sensor. Except with respect to the Software, items will not be deemed Confidential Information if:
(i) available to the public other than by a breach of an agreement with BioMech Sensor or its affiliates;
(ii) rightfully received from a third party not in breach of any obligation of confidentiality;
(iii) independently developed by you without access to the Confidential Information as proven by your written records; or
(iv) if proven to have been known to you at the time of disclosure through Your written records.
You shall immediately inform BioMech Sensor if you are required to produce Confidential Information by operation of law, and if so requested by BioMech Sensor, shall provide reasonable assistance to BioMech Sensor in seeking to limit such production. The obligations of confidentiality under this Agreement shall continue for five (5) years following termination of this Agreement with respect to non-trade secret Confidential Information and for as long as Confidential Information that is trade secret remains trade secret under applicable law.
10. Proprietary Rights and Ownership. All of the patent, trademark, copyright, trade secret and other intellectual property rights in the Software and Documentation are owned exclusively by BioMech Sensor. You acquire only the limited rights to Use the Software as permitted herein, and do not acquire any rights of ownership in the Software.
11. User Conduct.
11.1 You are solely responsible for compliance with any and all laws, rules, and regulations that may apply to your use of the Software. In connection with your use of the Software, you may not directly or assist or encourage others to:
a) collect or harvest any information or data from the Software, Users or BioMech Sensor’s systems or attempt to decipher or decrypt any transmissions to or from the servers running the Software, including, without limitation, by using any manual or automated software, devices, services, scripts, robots, or other site search/retrieval application to retrieve, index, “scrape,” “crawl,” “data mine” or in any way gather the Software content;
b) act or use the Software in any manner that falsely implies BioMech Sensor’s endorsement, sponsorship, partnership or otherwise misleads others as to your affiliation with BioMech Sensor;
c) use the Software in any way (including posting or submission of information or content) that is defamatory, obscene, threatening, pornographic, indecent, vulgar, discriminatory or offensive, or otherwise infringes upon or violates the rights of BioMech Sensor or any other person or entity;
d) interfere with or damage the Software, including, without limitation, through the use of viruses, Trojan horses, malicious code, harmful data, denial-of-service attacks, hacking or other fraudulent or malicious means;
e) impersonate any person or entity, or falsify or otherwise misrepresent yourself or your affiliation with any person or entity;
f) circumvent or attempt to circumvent in any way any technological measure implemented by BioMech Sensor or any of BioMech Sensor’s providers or any other third party (including another User) to protect the Software or its content; or
g) use the Software in a way that could damage, disable, overburden, impair or compromise BioMech Sensor’s systems or security or interfere with other Users, or restrict or inhibit any other Users from using the Software (including by hacking or defacing the Software).
11.2 BioMech Sensor has the right to investigate, bring actions for, and prosecute violations of any of the above to the fullest extent of the law. In addition, and as set in this Agreement, a range of actions may be taken against you, including but not limited to deactivation of your User Account, for a violation of this Section or this Agreement.
14. Feedback. We welcome and encourage you to provide feedback, comments and suggestions for improvements to the Software (“Feedback”). You may submit Feedback by emailing us, through the “Support” section of the Lab App, or by other means of communication. You acknowledge and agree that all Feedback you give us will be the sole and exclusive property of BioMech Sensor, without any attribution or compensation to you, and you hereby agree to irrevocably assign to BioMech Sensor all of your right, title, and interest in and to all Feedback, including without limitation all related proprietary and intellectual property rights. At BioMech Sensor’s request and expense, you will execute documents and take such further acts as BioMech Sensor may reasonably request to assist BioMech Sensor to acquire, perfect, and maintain its intellectual property rights and other legal protections for the Feedback. BioMech Sensor may use (or not use) Feedback for any purpose whatsoever.
15. Export Control. You may not use, export, or re-export the Software except as permitted under U.S. law. Further, you shall not export or re-export the Software to any US-embargoed country or anyone on the US Treasury Department’s Specially Designated Nationals List or the US Department of Commerce’s Denied Persons or Entity Lists. By using the Software, you represent and warrant that you are not located in any such country or included on any such list.
16. No Warranty and Limitations on Liability.
16.1 THE SOFTWARE AND DOCUMENTATION ARE BEING PROVIDED TO YOU AS-IS WITH NO WARRANTY OF ANY KIND. BIOMECH SENSOR DISCLAIMS ALL WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, ACCURACY OF INFORMATIONAL CONTENT, FITNESS FOR A PARTICULAR PURPOSE, AND CONDITIONS OF MERCHANTABLE QUALITY, WHETHER ARISING BY STATUTE OR IN LAW OR AS A RESULT OF A COURSE OF DEALING OR USAGE OF TRADE. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. NO WARRANTY IS MADE REGARDING THE RESULTS OBTAINED FROM THE SOFTWARE, THAT THE SOFTWARE WILL BE ACCURATE OR ERROR FREE, THAT ALL ERRORS IN THE SOFTWARE WILL BE CORRECTED, OR THAT THE SOFTWARE’S FUNCTIONALITY WILL MEET YOUR REQUIREMENTS.
16.2 Limitations on Liability. IN NO EVENT WILL BIOMECH SENSOR BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; OR (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY. IN NO EVENT WILL BIOMECH SENSOR’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE ACTUAL AMOUNTS PAID BY CUSTOMER TO BIOMECH SENSOR UNDER THE USER AGREEMENT DURING THE TWELVE-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENTS THAT GAVE RISE TO THE CLAIM.
16.3 The 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. Unpublished-rights reserved under the copyright laws of the United States.
17. Term and Termination.
17.1 This Agreement becomes effective on the date you access or use the Software (including downloading the Lab App from the App Store or Google Play) and continues until you cease to be an Authorized User or termination or expiration of the User Agreement, whichever occurs first, unless sooner terminated pursuant to this Agreement (the “Term”).
17.2 BioMech Sensor may terminate this Agreement and access to Your User Account if you breach or fail to comply with any terms in this Agreement. BioMech Sensor will automatically turn off your User Account upon the expiration or termination of the Term.
17.3 You may terminate this Agreement by deleting the Software from all devices you have installed it on.
17.4 Sections 4.2, 10.1, 16, 17.2, 18.4, 18.5, 18.6, and 19 shall survive termination of this Agreement.
18.1 Neither this Agreement nor any license granted hereunder may be assigned by You (whether by operation of law or otherwise). Any such purported assignment shall be void.
18.2 This Agreement is the entire agreement between you and BioMech Sensor and supersedes all previous and contemporaneous communications, representations, or agreements regarding the subject matter hereof. This Agreement may be modified only in writing signed by both parties.
18.3 BioMech Sensor shall not be liable by reason of any failure or delay in the performance of its obligations hereunder on account of: acts by You, acts of God or the public enemy, war, epidemic, terrorism, riots, strike, embargo, acts of civil or military authority (including without limitation states of emergency), unavailability of communications or network facilities or energy sources, or any other cause that is beyond the reasonable control of BioMech Sensor.
18.4 All notices relating to this Agreement shall be in writing and delivered to the other party by overnight delivery service or first class prepaid mail with return receipt requested (in the case of BioMech Sensor to the attention of its General Counsel).
18.5 If any provision of this Agreement is held to be unenforceable, the parties shall substitute the provision with an enforceable provision that approximates the intent and economic effect of the affected provision. If any provision of this Agreement is held invalid or unenforceable, the remaining provisions shall still be binding upon the parties as though the invalid or unenforceable provision was deleted. Except where otherwise provided, the waiver or failure of either party to exercise in any respect any right provided under this Agreement shall not be deemed a waiver of any further right under this Agreement.
18.6 This Agreement is governed by and construed in accordance with the internal laws of the Commonwealth of Virginia, without regard to conflict of laws principles. Any legal suit, action, or proceeding arising out of or related to this Agreement shall be instituted in the state or federal courts located in Richmond, Virginia, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding. Neither the United Nations Convention on the International Sale of Goods, nor the Uniform Computer Information Transactions Act shall apply to this Agreement.
18.7 If You have any questions concerning this Agreement, claims regarding the Software and its compliance with any legal, consumer protection, or other regulatory requirements, or wish to send a notice as described in Section 19.4, write to BioMech Sensor, LLC at 13550 Waterford Place, Midlothian, VA 23112, or email us at email@example.com.
18.8 Apple and Google and their subsidiaries are third party beneficiaries to this Agreement. Upon your acceptance of this Agreement, Apple and Google will have the right to enforce this Agreement against you.
- “Agreement” – This agreement, together with any supplements hereto.
“App Store” – Apple’s App Store or “Google Play” – Google’s marketplace, the host electronic stores for the Lab App.
- “Authorized User” means Customer’s qualified healthcare professional who are authorized by Customer to access and use the Software under the rights granted to Customer pursuant to its User Agreement.
- “BioMech Lab” means the suite of motion analytics system and proprietary analytics platform technology (including the Software) provided to Customer pursuant to the User Agreement.
- “Customer” means a User for whom a User Account to use the Software has been created.
- “Customer Data” means information, data, and other content, in any form or medium, that is created to be submitted, posted, or otherwise transmitted by or on behalf of Customer or an Authorized User through use of the Software, whether or not that submission, posting or transmission has taken place or not.
- “Documentation” – Support reference materials and education accessed through the Lab App.
- “Lab App” – means mobile analytics software that interprets and analyzes dynamic measurement information from Sensors and provides Users with access to the Platform.
- “Platform” means BioMech Sensor’s cloud-based data management and data integration software accessible through the Sites or the Lab App.
- “Sensor” – BioMech Sensor’s proprietary device that records movement data.
- “Software” means the Lab App and any software provided with, or accessible through, the Lab App or the Sites, including without limitation the Platform, as well as any Updates.
- “Support” – The technical support available to you as specified within the User Agreement.
- “User Agreement” – means the agreement between Customer and BioMech Sensor’s affiliate, BioMech, Health LLC, granting Customer rights to the BioMech Lab (including the Software).
- “Updates” means error corrections, maintenance releases and major new version releases of the Lab App or other Software made available to Customers or Authorized Users.
- “Use” – means to load, view, print, update, access, utilize, or store the Software.
- “User” – means any Authorized User or other third party authorized by BioMech Sensor to use the Software.
- “User Account” means User profile and associated credentials that enable a user to log in and access the Lab App or the Platform subject to roles and security protocols of the BioMech Lab.