A. VPG MEDICAL HealthKam SOFTWARE LICENSE AGREEMENT

B. NOTICES FROM VPG MEDICAL

 

VPG MEDICAL, INC.

VPG MEDICAL HealthKam SOFTWARE LICENSE AGREEMENT

Single Use License

 

PLEASE READ THIS SOFTWARE LICENSE AGREEMENT (“LICENSE”) CAREFULLY BEFORE USING YOUR HealthKam APPLICATION OR DOWNLOADING ANY ACCOMPANYING SOFTWARE OR SOFTWARE UPDATE ACCOMPANYING THIS LICENSE. BY USING YOUR HealthKam APPLICATION OR DOWNLOADING A SOFTWARE UPDATE, AS APPLICABLE, YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS LICENSE. IF YOU DO NOT AGREE TO THE TERMS OF THIS LICENSE, DO NOT USE THE HealthKam APPLICATION OR

DOWNLOAD THE SOFTWARE UPDATE.

 

IF YOU HAVE RECENTLY PURCHASED A HealthKam APPLICATION AND YOU DO NOT AGREE TO THE TERMS OF THE LICENSE, YOU MAY RETURN THE HealthKam APPLICATION WITHIN THE RETURN PERIOD FOR A REFUND, SUBJECT TO VPG MEDICAL’S RETURN POLICY.

 

1. General.

(a) The software (including code, embedded software and third party software), documentation, interfaces, content, fonts and any data that came with your HealthKam Application (“Original HealthKam Software”), as may be updated or replaced by feature enhancements, software updates or system restore software provided by VPG Medical (“HealthKam Software Updates”), whether in read only memory, on any other media or in any other form (the Original HealthKam Software and HealthKam Software Updates are collectively referred to as the “HealthKam Software” or HealthKam Application”) are licensed, not sold, to you by VPG Medical, Inc. (“VPG Medical”) for use only under the terms of this License. VPG Medical and its licensors retain ownership of the HealthKam Software itself and reserve all rights not expressly granted to you. You agree that the terms of this License will apply to any VPG Medical-branded app that may be pre-installed on your HealthKam Application, unless such app is accompanied by a separate license, in which case you agree that the terms of that license will govern your use of that app.

 

(b) VPG Medical, at its discretion, may make available future HealthKam Software Updates for your VPG Medical application. The HealthKam Software Updates, if any, may not necessarily include all existing software features or new features that VPG Medical releases for newer or other models of HealthKam Application. The terms of this License will govern any HealthKam Software Updates provided by VPG Medical that replace and/or supplement the Original HealthKam Software product, unless such HealthKam Software Update is accompanied by a separate license in which case the terms of that license will govern.

 

2. Permitted License Uses and Restrictions.

(a) Subject to the terms and conditions of this License, you are granted a limited non-exclusive license to use the HealthKam Software on a single HealthKam Application. Except as permitted in Section 2(b) below, and except as provided in a separate agreement between you and VPG Medical, this License does not allow the HealthKam Software to exist on more than one HealthKam Application at a time, and you may not distribute or make the HealthKam Software available over a network where it could be used by multiple devices at the same time. This License does not grant you any rights to use VPG Medical proprietary interfaces and other intellectual property in the design, development, manufacture, licensing or distribution of third party devices and accessories, or third party software applications, for use with HealthKam Application. Some of those rights are available under separate licenses from VPG Medical. 

 

(b) Subject to the terms and conditions of this License, you are granted a limited non-exclusive license to download HealthKam Software Updates that may be made available by VPG Medical for your model of the VPG Medical application to update or restore the software on any such HealthKam Application that you own or control. This License does not allow you to update or restore any HealthKam Application that you do not control or own, and you may not distribute or make the HealthKam Software Updates available over a network where they could be used by multiple devices or multiple computers at the same time.

 

(c) You may not, and you agree not to or enable others to, copy (except as expressly permitted by this

License), decompile, reverse engineer, disassemble, attempt to derive the source code of, decrypt, modify, or create derivative works of the HealthKam Software or any services provided by the HealthKam Software or any part thereof (except as and only to the extent any foregoing restriction is prohibited by applicable law or by licensing terms governing use of open-source components that may be included with the HealthKam Software).

 

(d) The HealthKam Software may be used to reproduce materials so long as such use is limited to reproduction of non-copyrighted materials, materials in which you own the copyright, or materials you are authorized or legally permitted to reproduce. Title and intellectual property rights in and to any content displayed by, stored on or accessed through your HealthKam Application belong to the respective content owner. Such content may be protected by copyright or other intellectual property laws and treaties, and may be subject to terms of use of the third party providing such content. Except as otherwise provided herein, this License does not grant you any rights to use such content nor does it guarantee that such content will continue to be available to you.

 

(e) You agree to use the HealthKam Software and the Services (as defined in Section 5 below) in compliance with all applicable laws, including local laws of the country or region in which you reside or in which you download or use the HealthKam Software and Services. Features of the HealthKam Software and the Services may not be available in all languages or regions, some features may vary by region, and some may be restricted or unavailable from your service provider. An Internet connection for the device on which you are utilizing HealthKam Software with Wi-Fi or cellular data connection is required for some features of the HealthKam Software and Services.

 

(f) You may need to set up an ID and password with VPG Medical or a third party provider to access app and software updates and certain features of the HealthKam Software and Services. In addition, you acknowledge that many features and Services of the HealthKam Software transmit data and could impact charges to your data plan, and that you are responsible for any such charges. 

 

(g) Using HealthKam Application in some circumstances can distract you and may cause a dangerous situation (for example, avoid using the application while driving a car or while riding a bicycle). By using HealthKam Application you agree that you are responsible for observing rules that prohibit or restrict the use of mobile phones (for example, the requirement to use hands-free options for using a cell phone device when driving).

 

(h) HealthKam Application, the pulse/heart rate sensor and monitor, and its data, and included HealthKam Application apps are not medical devices. They are not designed or intended for use in the diagnosis of disease or other conditions, or in the cure, mitigation, treatment, or prevention of disease. 

 

(i)The HealthKam Application collects data about you and the electronic device (i.e., smart phone, tablet, desktop or laptop) on which you are using it, (i) when your electronic device is turned on and off, (ii) motion related to your electronic device, and (iii) when your device is communicating or synchronizing with the Internet, (iv) your email.  By agreeing to this License, you are acknowledging and agreeing to such data collection and the analysis thereof as part of the regular operation of the HealthKam Application. 

The health-related data collected by the HealthKam Application comprises (i) data about your pulse/heart rate and rhythm, (ii) information about your self-reported stress and level of anxiety, (iii)  your self-reported weight, height, age, smoking, sleeping and eating habits. VPG Medical does not share your data with third parties.

 

(j) The HealthKam Application collects certain visual/video data about you including (i) by taking a photograph of you during the device registration process, which is then stored on your electronic device in perpetuity so that the application can recognize you, and (ii) by recording short videos of you throughout your use of an electronic device on which the HealthKam Application is enabled, with such short videos being briefly and temporarily (generally for less than a few minutes) stored and analyzed on your device in order to enable key features of the application.  By agreeing to this License, you are acknowledging and agreeing to such visual/video data collection and the analysis thereof as part of the regular operation of the HealthKam Application; further, to enable the aforementioned visual/video data collection, you agree that the HealthKam Application will have access to your photos folder and the use of your device-based camera. 

 

(k) The HealthKam Application uses facial recognition to recognize a user and to make sure that pulse/heart rate data from the same person are being assessed.  By agreeing to this License, you are acknowledging and agreeing to the use of facial recognition features to recognize your face. Further, you acknowledge that if you allow or permit others to use an electronic device or computer on which your HealthKam Application is installed, that such application will record video and take photographs of such other user, and attempt to use facial recognition features to recognize such person’s identity.  You agree that VPG Medical shall have no liability toward these other users and with regard to any videos, images or data collected about them on your electronic device.

 

(l) Before starting or modifying any exercise program using the HealthKam Application to monitor resulting heart rate, consult your physician. Be careful and attentive while exercising. Stop exercising immediately if you feel pain, or feel faint, dizzy, exhausted, or short of breath. By exercising, you assume inherent risks including any injury that may result from such activity. 

 

3. Transfer. You may not rent, lease, lend, sell, redistribute, or sublicense the HealthKam Software. You may, however, make a one-time permanent transfer of all of your license rights to the HealthKam Software to another party in connection with the transfer of ownership of your HealthKam Application, provided that: (a) the transfer must include your HealthKam Application and all of the HealthKam Software, including all its component parts, and this License; (b) you do not retain any copies of the HealthKam Software, full or partial, including copies stored on a computer or other storage device; and (c) the party receiving the HealthKam Software reads and agrees to accept the terms and conditions of this License.

 

4. Consent to Use of Data. HealthKam Software features may require information from your HealthKam Application to provide their respective functions.  At all times your information will be treated in accordance with VPG Medical’s Privacy Policy (which you can see by visiting https://www.vpgmedical.com/hipaa-doc).  By using the HealthKam Application, you give full consent to VPG Medical and any authorized third parties to access, possess and utilize such information about you that is collected and/or stored by your HealthKam Application.  You may contact VPG Medical at any time to request the removal and permanent deletion of your information by emailing us at support@vpgmedical.com. 

 

5. Services and Third Party Materials.

(a) The HealthKam Software may enable access to third party services and web sites (collectively and individually, “Services”). Such Services may not be available in all languages or in all countries. Use of these Services requires Internet access and use of certain Services may require an ID and password to be set up, and may require you to accept additional terms and may be subject to additional fees. By using this software in connection with another service, you agree to the applicable terms of service for that Service, such as the latest Terms and Conditions for the country in which you access such Services.

 

(b) Certain Services may display, include or make available content, data, information, applications or materials from third parties (“Third Party Materials”) or provide links to certain third party web sites. By using the Services, you acknowledge and agree that VPG Medical is not responsible for examining or evaluating the content, accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect of such Third Party Materials or web sites. VPG Medical, its officers, affiliates and subsidiaries do not warrant or endorse and do not assume and will not have any liability or responsibility to you or any other person for any third-party Services, Third Party Materials or web sites, or for any other materials, products, or services of third parties. Third Party Materials and links to other web sites are provided solely as a convenience to you.

 

(c) Neither VPG Medical nor any of its content providers guarantees the availability, accuracy, completeness, reliability of any data displayed by any Services.  Health information displayed by any Services is for general informational purposes only and should not be relied upon as medical or health advice. 

 

(d) To the extent that you upload any content through the use of the Services, you represent that you own all rights in, or have authorization or are otherwise legally permitted to upload, such content and that such content does not violate any terms of service applicable to the Services. You agree that the Services contain proprietary content, information and material that is owned by VPG Medical, the site owner and/or their licensors, and is protected by applicable intellectual property and other laws, including but not limited to copyright. You agree that you will not use such proprietary content, information or materials other than for permitted use of the Services or in any manner that is inconsistent with the terms of this License or that infringes any intellectual property rights of a third party or VPG Medical. No portion of the Services may be reproduced in any form or by any means. You agree not to modify, rent, lease, loan, sell, distribute, or create derivative works based on the Services, in any manner, and you shall not exploit the Services in any unauthorized way whatsoever, including but not limited to, using the Services to transmit any computer viruses, worms, trojan horses or other malware, or by trespass or burdening network capacity. You further agree not to use the Services in any manner to infringe or violate the rights of any other party, and that VPG Medical is not in any way responsible for any such use by you, nor for any infringing or illegal messages or transmissions that you may receive as a result of using any of the Services.

 

(e) In addition, Services and Third Party Materials that may be accessed, linked to or displayed on the HealthKam Application are not available in all languages or in all countries or regions. VPG Medical makes no representation that such Services and Third Party Materials are appropriate or available for use in any particular location. To the extent you choose to use or access such Services and Third Party Materials, you do so at your own initiative and are responsible for compliance with any applicable laws, including but not limited to applicable local laws and privacy and data collection laws. VPG Medical and its licensors reserve the right to change, suspend, remove, or disable access to any Services at any time without notice. In no event will VPG Medical be liable for the removal of or disabling of access to any such Services. VPG Medical may also impose limits on the use of or access to certain Services, in any case and without notice or liability.

 

6. Termination. This License is effective until terminated. Your rights under this License will terminate automatically or otherwise cease to be effective without notice from VPG Medical if you fail to comply with any term(s) of this License. Upon the termination of this License, you shall cease all use of the HealthKam Software. Sections 4, 5, 6, 7, 8, 11 and 12 of this License shall survive any such termination.

 

7. Disclaimer of Warranties.

7.1 If you are a customer who is a consumer (someone who uses the HealthKam Software outside of your trade, business or profession), you may have legal rights in your country of residence which would prohibit the following limitations from applying to you, and where prohibited they will not apply to you. To find out more about rights, you should contact a local consumer advice organization.

 

7.2 YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT, TO THE EXTENT PERMITTED BY

APPLICABLE LAW, USE OF THE HealthKam SOFTWARE AND ANY SERVICES PERFORMED BY OR ACCESSED THROUGH THE HealthKam SOFTWARE IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU.

 

7.3 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE HealthKam SOFTWARE AND SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND VPG MEDICAL AND VPG MEDICAL’S LICENSORS (COLLECTIVELY REFERRED TO AS “VPG MEDICAL” FOR THE PURPOSES OF SECTIONS 7 AND 8) HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE HealthKam SOFTWARE AND SERVICES, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS.

 

7.4 VPG MEDICAL DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE HealthKam SOFTWARE AND SERVICES, THAT THE FUNCTIONS CONTAINED IN, OR SERVICES PERFORMED OR PROVIDED BY, THE HealthKam SOFTWARE WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE HealthKam SOFTWARE AND SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT ANY SERVICE WILL CONTINUE TO BE MADE AVAILABLE, THAT DEFECTS IN THE HealthKam SOFTWARE OR SERVICES WILL BE CORRECTED, OR THAT THE HealthKam SOFTWARE WILL BE COMPATIBLE OR WORK WITH ANY THIRD PARTY SOFTWARE, APPLICATIONS OR THIRD PARTY SERVICES. INSTALLATION OF THIS HealthKam SOFTWARE MAY AFFECT THE AVAILABILITY AND USABILITY OF THIRD PARTY SOFTWARE, APPLICATIONS OR THIRD PARTY SERVICES, AS WELL AS VPG MEDICAL PRODUCTS AND SERVICES.

 

7.5 YOU FURTHER ACKNOWLEDGE THAT THE HealthKam SOFTWARE AND SERVICES ARE NOT INTENDED OR SUITABLE FOR USE IN SITUATIONS OR ENVIRONMENTS WHERE THE FAILURE OR TIME DELAYS OF, OR ERRORS OR INACCURACIES IN, THE CONTENT, DATA OR INFORMATION PROVIDED BY THE HealthKam SOFTWARE OR SERVICES COULD LEAD TO DEATH OR PERSONAL INJURY.  

 

7.6 NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY VPG MEDICAL OR A VPG MEDICAL AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. SHOULD THE HealthKam SOFTWARE OR SERVICES PROVE DEFECTIVE, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO YOU.

 

8. Limitation of Liability. TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW, IN NO EVENT

SHALL VPG MEDICAL, ITS AFFILIATES, AGENTS OR PRINCIPALS BE LIABLE FOR PERSONAL INJURY, OR ANY INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, CORRUPTION OR LOSS OF DATA, FAILURE TO TRANSMIT OR RECEIVE ANY DATA, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE HealthKam SOFTWARE AND SERVICES OR ANY THIRD PARTY SOFTWARE OR APPLICATIONS IN CONJUNCTION WITH THE HealthKam SOFTWARE OR SERVICES, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE) AND EVEN IF VPG MEDICAL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU. In no event shall VPG Medical’s total liability to you for all damages (other than as may be required by applicable law) exceed the amount of five hundred dollars (U.S.$500.00). The foregoing limitations will apply even if the above stated remedy fails of its essential purpose.

 

9. Export Control. You may not use or otherwise export or re-export the HealthKam Software or output therefrom except as authorized by United States law and the laws of the jurisdiction(s) in which the HealthKam Software was obtained. In particular, but without limitation, the HealthKam Software may not be exported or re-exported (a) into any U.S. 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 Denied Person’s List or Entity List or any other restricted party lists. By using the HealthKam Software, you represent and warrant that you are not located in any such country or on any such list. You also agree that you will not use the HealthKam Software for any purposes prohibited by United States law. 

 

10. Government End Users. The HealthKam 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.

 

11. Controlling Law and Severability. This License will be governed by and construed in accordance with the laws of the State of New York, excluding its conflict of law principles. This License shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. If you are a consumer based in the United Kingdom, this

License will be governed by the laws of the jurisdiction of your residence. If for any reason a court of competent jurisdiction finds any provision, or portion thereof, to be unenforceable, the remainder of this

License shall continue in full force and effect.

 

12. Complete Agreement; Governing Language. This License constitutes the entire agreement between you and VPG Medical relating to the HealthKam Software and supersedes all prior or contemporaneous understandings regarding such subject matter. No amendment to or modification of this License will be binding unless in writing and signed by VPG Medical. Any translation of this License is done for local requirements and in the event of a dispute between the English and any non-English versions, the English version of this License shall govern, to the extent not prohibited by local law in your jurisdiction.

 

13. Third Party Acknowledgements. Portions of the HealthKam Software may utilize or include third party software and other copyrighted material. Acknowledgements, licensing terms and disclaimers for such material are contained in the electronic documentation for the HealthKam Software 

  

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NOTICES FROM VPG MEDICAL

If VPG Medical needs to contact you about your product or account, you consent to receive the notices by email and/or phone/text. You agree that any such notices that we send you electronically will satisfy any legal communication requirements.