End User License Agreement
Between Tapcloud, LLC (“Tapcloud”) And End User
This End User License Agreement (“Agreement“) is a binding agreement between the end user (“you“, “your” or “End User“) of the software application and website (as defined herein) and Tapcloud, LLC (“Tapcloud“). This Agreement governs your use of the Tapcloud Mobile Device Software, including the Hosted Software (both as defined herein) and all related documentation. The Mobile Device Software is licensed, not sold, to you.
BY DOWNLOADING/INSTALLING OR USING THE APPLICATION, YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENT THAT YOU ARE 18 YEARS OF AGE OR OLDER; AND (C) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT DOWNLOAD, INSTALL OR USE THE APPLICATION AND DELETE IT FROM YOUR MOBILE DEVICE.
1. Definitions
“Deidentified” means data that has been processed to remove, hide, encrypt, anonymize or aggregate identifying information such that one could not, using reasonable efforts, link such information back to you.
“End User Data” means data entered or uploaded by you to the Hosted Software via the Mobile Device Software.
“Hosted Software” means the online software, platform and websites which you can access via the Mobile Device Software and your account that are hosted and maintained by Tapcloud.
“Mobile Device Software” means the downloadable software application offered by Tapcloud through which your Tapcloud account is accessed.
“Mobile Device” means a smartphone, tablet, or other mobile computing device on which the Mobile Device Software is installable or installed.
“Services” means a web-based software platform with interactive tools to record symptoms, medication compliance and other aspects of patient care reported by the end users.
“Tapcloud Data” means all information, including, but not limited to, data, analyses, measurements, reports, trends, and metrics, generated from, derived from, based on or related to End User Data.
“Website” means the website accessible at tapcloud.com or via the Mobile Device Software.
2. License Grant
Tapcloud, through the Mobile Device Software, provides the Services to patients and their healthcare providers. Subject to your compliance with the terms of this Agreement, Tapcloud grants you a personal, limited, terminable, non-exclusive, non-transferable license to:
(a) download, install, and use the Mobile Device Software for your personal, non-commercial use on your Mobile Device strictly in accordance with the Mobile Device Software’s documentation; and
(b) access and use on such Mobile Device the Services made available in or otherwise accessible through the Mobile Device Software, strictly in accordance with this Agreement.
3. License Restrictions
(a) You shall not:
(i) copy the Mobile Device Software;
(ii) modify, translate, adapt or otherwise create derivative works or improvements, of the Mobile Device Software;
(iii) reverse engineer, disassemble, decompile, decode or otherwise attempt to derive or gain access to the source code of the Mobile Device Software, the Hosted Software or any part thereof;
(iv) remove, delete, alter or obscure any trademarks or any copyright, trademark, patent or other intellectual property or proprietary rights notices from the Mobile Device Software;
(v) rent, lease, lend, sell, sublicense, assign, distribute, publish, publicly perform or display, transfer or otherwise make available the Mobile Device Software or any features or functionality of the Mobile Device Software, to any third party for any reason, including by making the Mobile Device Software available on a network where it is capable of being accessed by more than one device at any time;
(vi) remove, disable, circumvent or otherwise create or implement any workaround to any copy protection, rights management or security features in or protecting the Mobile Device Software; or,
(vii) upload or introduce any virus or malware to the Hosted Software.
(b) You are responsible for keeping your account login credentials (user name and password) confidential and not sharing them with unauthorized users. If you disclose your login credentials to someone, you are responsible for any use, disclosure, additions, deletions and modifications of your End User Data.
4. Reservations of Rights
You acknowledge and agree that the Mobile Device Software is provided under license, and not sold, to you. You do not acquire any ownership interest in the Mobile Device Software under this Agreement or any other rights thereto other than to use the Mobile Device Software in accordance with the license granted, and subject to all terms, conditions and restrictions, under this Agreement. Tapcloud and its licensors and service providers reserve and shall retain each of their entire right, title and interest in and to the Mobile Device Software and Website. All rights not specifically granted in this Agreement are reserved by Tapcloud. Tapcloud shall own all rights in any functionality, features, modification or customization of the Mobile Device Software.
5. Collection and Use of Your Information
You acknowledge that when you download, install or use the Mobile Device Software, Tapcloud may use automatic means (including, for example, cookies and web beacons) to collect information about your Mobile Device and about your use of the Mobile Device Software (which is included in the definition of End User Data). You also may be required to provide certain information about yourself as a condition to downloading, installing, or using the Mobile Device Software or certain of its features or functionality, and the Mobile Device Software may provide you with opportunities to share information about yourself with others. All information Tapcloud collects through or in connection with this Mobile Device Software and your use thereof is subject to Tapcloud’s privacy policy, which is located on Tapcloud’s website at www.tapcloud.com/privacy and which may be updated from time to time without notice (“Privacy Policy“). By downloading, installing, using, and providing information to or through this Mobile Device Software, you consent to all use and actions taken by us with respect to your information pursuant to the Privacy Policy. You also consent to any transfer, sale, assignment, conveyance or license by Tapcloud of your End User Data.
6. Ownership and Use of Data
All ownership rights in and to the Mobile Device Software shall remain exclusively with Tapcloud and its licensors, as applicable. Access to the Services is provided to you only to allow you to exercise your rights under this Agreement, and no implied license or right not expressly set forth in this Agreement is granted to you.
(a) End User Data. In connection with the Mobile Device Software, Tapcloud may collect and maintain End User Data provided by you. You shall own all End User Data. Tapcloud shall maintain all personal identifiable aspects of all End User Data as confidential pursuant to the Privacy Policy. All third parties authorized by Tapcloud which may have access to the End User Data shall be under obligations of confidentiality to maintain the End User Data as confidential pursuant to the Privacy Policy. You agree to and do hereby grant to Tapcloud the irrevocable, perpetual, transferrable right to use, disclose, commercialize, assign, convey, sell, lease, license or transfer any Deidentified End User Data.
(b) Tapcloud Data. All Tapcloud Data is the sole property of Tapcloud. Tapcloud has the right to use, collect, store, create, aggregate, mine, analyze, modify, commercialize, assign, convey, sell, lease, license or transfer Tapcloud Data in any form, for any purpose and in any manner. Any Tapcloud Data provided to you shall be subject to limitations and restrictions imposed by Tapcloud’s Privacy Policy and other commercial agreements to which Tapcloud may be a party.
7. Geographic Restrictions
The Mobile Device Software and access to Tapcloud’s Hosted Software are provided for access and use only by persons located in the United States. You acknowledge that you may not be able to access all or some of the Hosted Software outside of the United States and that access thereto may not be legal by certain persons or in certain countries. If you access the Hosted Software from outside the United States, you are responsible for compliance with local laws.
8. Updates
Tapcloud may from time to time in its sole discretion develop and provide Mobile Device Software updates, which may include upgrades, bug fixes, patches and other error corrections and/or new features (collectively, including related documentation, “Updates“). Updates may also modify or delete in their entirety certain features and functionality. You agree that Tapcloud has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality.
Based on your Mobile Device settings, when your Mobile Device is connected to the Internet either:
(a) the Mobile Device Software will automatically download and install all available Updates; or
(b) you may receive notice of or be prompted to download and install available Updates.
In order to be able to fully utilize the Mobile Device Software, you must promptly download and install all Updates. You acknowledge that the Mobile Device Software or portions thereof may not properly operate should you fail to do so. You further agree that all Updates will be deemed part of the Mobile Device Software and be subject to all terms and conditions of this Agreement.
9. Third Party Materials
The Mobile Device Software may display, include or make available third-party content (including data, information, applications and other products services and/or materials) or provide links to third-party websites or services, including through third-party advertising (“Third Party Materials“). You acknowledge and agree that Tapcloud is not responsible for Third Party Materials, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect thereof. Tapcloud does not assume and will not have any liability or responsibility to you or any other person or entity for any Third Party Materials. Third Party Materials and links thereto are provided solely as a convenience to you and you access and use them at entirely at your own risk and subject to such third parties’ terms and conditions.
10. Term and Termination
(a) The term of Agreement commences when you download/install the Mobile Device Software or acknowledge your acceptance, and will continue in effect until terminated by you or Tapcloud as set forth in herein.
(b) You may terminate this Agreement by deleting the Mobile Device Software and all copies thereof from your Mobile Device.
(c) Tapcloud may terminate this Agreement at any time without notice if it ceases to support the Mobile Device Software, which Tapcloud may do in its sole discretion. In addition, Tapcloud may immediately terminate this Agreement with or without any notice if you violate any of the terms and conditions of this Agreement.
(d) Upon termination:
(i) all rights granted to you under this Agreement will also terminate;
(ii) you must cease all use of the Mobile Device Software and delete all copies of the Mobile Device Software from your Mobile Device; and
(iii) your access to Tapcloud’s Hosted Software, your account and your End User Data will be terminated.
(e) Termination will not limit any of Tapcloud’s rights or remedies at law or in equity.
11. Disclaimer of Warranties
(a) THE APPLICATION IS PROVIDED TO YOU “AS IS, AS AVAILABLE” AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, TAPCLOUD, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE APPLICATION, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, TAPCLOUD PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE APPLICATION WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR FREE OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
(b) WITHOUT LIMITING THE FOREGOING, NEITHER TAPCLOUD NOR ANY TAPCLOUD PROVIDER MAKES ANY REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED: (I) AS TO THE OPERATION OR AVAILABILITY OF THE TAPCLOUD APPLICATION, OR THE INFORMATION, CONTENT, THE TAPCLOUD SOFTWARE, AND MATERIALS OR PRODUCTS INCLUDED THEREON; (II) THAT THE TAPCLOUD APPLICATION WILL BE UNINTERRUPTED OR ERROR-FREE; (III) AS TO THE ACCURACY, RELIABILITY, OR CURRENCY OF ANY INFORMATION OR CONTENT PROVIDED THROUGH THE TAPCLOUD APPLICATION; OR (IV) THAT THE TAPCLOUD APPLICATION, ITS SERVERS, THE CONTENT, OR E-MAILS SENT FROM OR ON BEHALF OF TAPCLOUD ARE FREE OF VIRUSES, SCRIPTS, TROJAN HORSES, WORMS, MALWARE, TIMEBOMBS OR OTHER HARMFUL COMPONENTS.
(c) SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATIONS ON IMPLIED WARRANTIES OR THE LIMITATIONS ON THE APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.
(d) You agree that Tapcloud assumes no responsibility for any content you submit, upload, create or make available through the Mobile Device Software.
(e) Tapcloud is not liable for the acts or omissions of its contractors, vendors and service providers.
12. Limitation of Liability
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL TAPCLOUD OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, HAVE ANY LIABILITY ARISING FROM OR RELATED TO YOUR USE OF OR INABILITY TO USE THE APPLICATION OR THE CONTENT AND SERVICES FOR:
(a) PERSONAL INJURY, PROPERTY DAMAGE, LOST PROFITS, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OR CORRUPTION DATA, LOSS OF GOODWILL, BUSINESS INTERRUPTION, COMPUTER FAILURE OR MALFUNCTION OR ANY OTHER CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES;
(b) DIRECT DAMAGES IN AMOUNTS THAT IN THE AGGREGATE EXCEED THE GREATER OF (i) THE AMOUNT ACTUALLY PAID BY YOU FOR THE APPLICATION AND (ii) ONE HUNDRED DOLLARS (U.S.). THE FOREGOING LIMITATIONS WILL APPLY WHETHER SUCH DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR TAPCLOUD WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY SO SOME OR ALL OF THE ABOVE LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU.
TAPCLOUD DOES NOT GUARANTEE THE CONTINUOUS, UNINTERRUPTED OR SECURE ACCESS TO THE TAPCLOUD APPLICATION, TAPCLOUD SERVICES, OR ANY RELATED SERVICES. THE OPERATION OF THE TAPCLOUD APPLICATION MAY BE INTERFERED WITH BY NUMEROUS FACTORS OUTSIDE THE CONTROL OF TAPCLOUD.
UNDER NO CIRCUMSTANCES SHALL TAPCLOUD BE LIABLE FOR ANY DAMAGES THAT RESULT FROM THE USE OF OR INABILITY TO USE THE TAPCLOUD APPLICATION, INCLUDING BUT NOT LIMITED TO RELIANCE BY YOU ON ANY INFORMATION OBTAINED FROM THE TAPCLOUD APPLICATION OR THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES OR E-MAIL, ERRORS, DEFECTS, VIRUSES, DELAYS IN OPERATION OR TRANSMISSION, OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT RESULTING FROM ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION, OR UNAUTHORIZED ACCESS TO TAPCLOUD RECORDS, PROGRAMS, OR SERVICES. USER HEREBY ACKNOWLEDGES THAT THIS PARAGRAPH SHALL APPLY TO ALL CONTENT, DATA, AND INFORMATION SUBMITTED THROUGH THE MOBILE DEVICE SOFTWARE AND YOU TO THE TAPCLOUD SERVICES AVAILABLE THROUGH THE MOBILE DEVICE SOFTWARE.
13. Indemnifications
You agree to indemnify, defend and hold harmless Tapcloud and its officers, directors, employees, agents, affiliates, service providers, successors and assigns from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees, arising from or relating to your use or misuse of the Mobile Device Software or your breach of this Agreement.
14. Governing Law
This Agreement is governed by and construed in accordance with the internal laws of the State of Illinois without giving effect to any choice or conflict of law provision or rule. Any legal suit, action or proceeding arising out of or related to this Agreement or the Mobile Device Software shall be instituted exclusively in the federal courts of the United States or the courts of the State of Illinois in each case located in Cook County. You waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts.
15. Limitation of Time to File Claims
ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE APPLICATION MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
16. Entire Agreement
This Agreement constitutes the entire agreement between you and Tapcloud with respect to the Mobile Device Software and the use of the Hosted Software and supersede all prior or contemporaneous understandings and agreements, whether written or oral, with respect thereto. No failure to exercise, and no delay in exercising, on the part of either party, any right or any power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or power hereunder preclude further exercise of that or any other right hereunder. In the event of a conflict between this Agreement and any applicable purchase or other terms, the terms of this Agreement shall govern. If any provision of this Agreement is illegal or unenforceable under applicable law, the remainder of the provision will be amended to achieve as closely as possible the effect of the original term and all other provisions of this Agreement will continue in full force and effect.