End User License Agreement

THE TERMS AND CONDITIONS OF THIS END USER LICENSE AGREEMENT (THE “EULA”) CONSTITUTE A LEGAL AGREEMENT BETWEEN YOU (“YOU” OR “END USER”) AND POINT MOTION, INC., A DELAWARE CORPORATION (“POINT MOTION”) WITH RESPECT TO USE OF THE PROPRIETARY POINT MOTION SOUND HEALTH SOFTWARE (THE “SOFTWARE”). BY (1) EXECUTING A POINT MOTION SUBSCRIPTION AGREEMENT, (2) INSTALLING, COPYING, DOWNLOADING, OR OTHERWISE ACCESSING THE SOFTWARE (INCLUDING AS AN AUTHORIZED USER OF A CUSTOMER UNDER ITS SUBSCRIPTION AGREEMENT), (3) ELECTRONICALLY ACCEPTING, OR (4) EXECUTING THIS EULA, END USER COMPLETELY AND UNEQUIVOCALLY AGREES TO BE BOUND BY THE TERMS OF THIS EULA WITHOUT MODIFICATION. IN AGREEING TO BE BOUND BY THE TERMS OF THIS EULA, YOU WARRANT AND REPRESENT THAT YOU ARE AUTHORIZED AND HAVE ADEQUATE LEGAL CAPACITY TO ENTER INTO THIS BINDING AGREEMENT AS THE END USER AND THAT YOU ON BEHALF OF YOURSELF AND ANY END USER ACCEPT AND AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT INTEND TO BE LEGALLY BOUND TO THE TERMS AND CONDITIONS OF THIS EULA, YOU MAY NOT ACCESS OR OTHERWISE USE THE SOFTWARE AND MUST PROMPTLY RETURN ALL COPIES OF THE SOFTWARE AND DOCUMENTATION IN THE MANNER PROVIDED HEREIN.
In consideration of the mutual covenants herein expressed, and other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, the Parties hereby agree as follows:
Definitions. The following capitalized terms shall have the meaning and applications set forth below.
“Client” means an instance of the Software running on a computer or a server. This means, for example, that two Clients can be either two instances of the Software running on the same computer or server or one instance of a Software running on each of two computers or servers.
“Customer” (and variations thereof) means the entity that signs or agrees to a Subscription Agreement as the customer.
“Device” means Customer’s or End User’s computing device(s), including but not limited to laptop computers, desktop computers, servers, mobile phone(s), smartphone(s), tablet computer and computing device(s), personal digital assistant(s) (PDAs), enterprise digital assistant(s) (EDAs), ruggedized devices, and any similar or similarly functioning electronic devices, which may be monitored and managed by the Software, whether owned by Customer or Customer’s End Users.
“Documentation” means any user manuals, reference manuals, release and application notes, and other materials in any form provided by Point Motion for use with the Software.
“Effective Date” means the date on which End User accepts or is deemed to accept this EULA as provided herein, or if physically executed, the date of the last signature.
“End User” means an individual who is an authorized patient or other user of Customer and whom Customer has designated or authorized to access and use the Software.
“Enhancements” means any subsequent version, releases, or upgrades of the Software which Point Motion makes available as part of any applicable Subscription Agreement or Maintenance Agreement entered into by the Customer and Point Motion.
“Intellectual Property Rights” means all patent rights, copyrights, trade secret rights, mask works, and trademark rights (including service marks and trade names), and any applications for these rights, in all countries.
“Parties” means collectively End User and Point Motion.
“Subscription Agreement” means the applicable Subscription Agreement(s) and addenda or attachments thereto entered into between Point Motion and Customer that may include sales quotation, orders, invoices, or other document (or electronic form) that describes (among other things) the products and services that Customer has licensed or purchased, including pricing information, and the terms and conditions related to the license or purchase and any related payments.
“Software” means the Point Motion proprietary software in machine-readable, object code form only that is identified in a Subscription Agreement, including any software that is owned by a third party and licensed to Point Motion or any Update or Enhancement made available to Customer.
“Updates” mean corrections to the current version of the Software provided as a part of any applicable Subscription Agreement.
License Grant. All licenses granted hereunder are limited, revocable (as provided herein), nonexclusive, non-transferrable, world-wide, non-sublicensable licenses to the Software (each a “Software License”). The Software components provided under each Software License include those necessary for the number and type of End Users, Devices, and/or Clients indicated on each Subscription Agreement. Point Motion grants to End User a limited, revocable, non-sublicensable, non-transferable, nonexclusive license to download, install, access, and use the Software and all services provided thereon solely in accordance with, and during the term of, this EULA. All Software Licenses are subject to (i) terms, conditions, and restrictions set forth in this EULA and (ii) the fees set forth in the applicable Subscription Agreement. All Software Licenses are granted solely for the purposes set forth in this EULA. The Software may only be used or accessed by each End User on one (1) Device at any given time (although the Software may be accessed by an End User on multiple Devices if such access occurs at different times). Only the Customer’s patient or other intended end user identified by the Customer shall be entitled to use the Software as an End User hereunder. Any unauthorized use shall be a breach of this EULA.
License Restrictions. The restrictions set forth in this Section, including all subsections, shall hereafter be referred to as the “License Restrictions.” With respect to each Software License, End User agrees that it:
Shall use the Software solely (i) as instructed by Customer or Point Motion, (ii) in accordance with all applicable laws and regulations, and (iii) as provided in this EULA, the Documentation, and any supplemental limitations specified or referenced herein;
Shall not (i) modify, adapt, translate, duplicate, disassemble, decompile, reverse assemble, reverse compile, reverse engineer, or take similar action with respect to the Software for any purpose, or (ii) attempt to discover the underlying source code or algorithms, user techniques, or other ideas embodied in the Software;
Shall not tamper with, or attempt to circumvent or disable, any licensing infrastructure, which includes, but is not limited to, for example, resetting the CPU time in order to extend the Subscription Term, or using a false host ID number of additional virtualized copy(ies) of the host ID number to enable unauthorized copies of a license system;
Shall not share with or assign, copy, sublicense, transfer, lease, rent, sell, distribute, install, or otherwise provide to any person or entity (i) the Software License; (ii) the Software; (iii) any use of application of the Software; or (iv) End User’s rights under this EULA, nor shall End User allow anyone to have access to or use (such as in a timesharing, service bureau, or application service provide model) any of the Software;
Shall not pledge as security or otherwise encumber the Software;
Shall not use the Documentation except for supporting its authorized use of the Software;
Shall not use the Software or any of its features to invade the privacy of any person or otherwise violate any law, including, but not limited to, by usage of GPS functionality, location / tracking services, and the like;
Shall not use the Software or its output to create, modify, or simulate designs similar in purpose, scope, or function to the Software for third parties;
Shall not use, or employ a third party to use, the Software or its output to develop or enhance any product that competes with Point Motion Software or products;
Shall not modify or create a derivative work of any part of the Software or Documentation;
Shall not disclose the results of any benchmarking of the Software (whether or not the results were obtained with assistance from Point Motion) to any third party;
Shall not use the Software in the development of any product if the failure of malfunction of that product could reasonably be expected to result in personal injury, death, or catastrophic loss; and
Shall not permit any party, whether acting directly or on behalf of End User, to reach or violate any of these License Restrictions.
Confidentiality and Proprietary Rights
Confidentiality. In the course of performance of this EULA, either party (“Discloser”) may find it necessary to disclose to the other party (“Recipient”), or Recipient may otherwise obtain from Discloser, certain proprietary information, which includes, but is not limited to that which relates to software, computer codes or instructions, developments, inventions, processes, designs, drawings, engineering, pricing, research, statistics, business plans, product plans, products, services, customers or prospective customers, contractors, licensors, suppliers, markets, marketing, finances, and any other materials that have not been made available to the general public and which have been the subject of reasonable efforts to be kept secret (“Confidential Information”). Confidential Information does not include information that: (a) was in the public domain at the time of Discloser’s communication thereof to the Recipient; (b) becomes part of the public domain after the time of the disclosure, through no improper action of Recipient; (c) was in Recipient’s possession free of any obligation of confidence at the time of Discloser’s communication thereof to Recipient; (d) can be shown by documentation to have been independently developed by the Recipient without the use of or reference to any Confidential Information; (e) is not treated as confidential by Discloser; or (f) is approved for release by Discloser in writing. Recipient shall use any Confidential Information received (or derivatives thereof) solely for the purposes of performing its obligations under this EULA. Recipient shall not disclose or permit any non-affiliate party access to any Confidential Information, except to Recipient’s officers, directors, employees, contractors, representatives, or agents on a need-to-know basis and where all such officers, directors, employees, contractors, representatives, or agents have confidentiality obligations at least as restrictive as those set forth in this Section. Recipient agrees to use reasonable efforts to protect the confidential or proprietary nature of such Confidential Information (and any derivatives thereof), using at least the same degree of case it utilizes for the protection of its own strictly confidential and proprietary information. Notwithstanding the foregoing, in the event disclosure is required by court, government order, or law, Recipient shall promptly notify Discloser of such order or requested disclosure so that it may seek a protective order or other appropriate remedy, and Recipient only discloses such Confidential Information to the extent required.
Proprietary Rights. Title to and ownership of the Software and all Point Motion copyrights, patents, names, trademarks, trade names, service marks or other identifying characteristics are proprietary intellectual property of significant value and goodwill to Point Motion and all associated Intellectual Property Rights relating thereto (the “Point Motion IP”) are retained by Point Motion. This EULA only grants End User the limited right to use the Point Motion IP under the terms and restrictions specified in this EULA. End User does not, and will not, acquire any other right, title, or interest in any Point Motion IP, which will at all times remain the exclusive property of Point Motion or the applicable third party licensor to Point Motion. End User shall not remove, suppress, or modify in any way any proprietary marking which is on or in the Point Motion IP, or which is on any media supplied with the Point Motion IP, except where expressly allowed. End User acknowledges and agrees that Point Motion shall be the sole owner of any Enhancements, Updates, custom development applications, or derivatives of the Software which are developed by Point Motion during and after the term of this EULA. Without limiting the foregoing, End User expressly acknowledges and agrees that Point Motion shall be the sole owner of any newly-developed intellectual property including but not limited to (i) newly-developed, revised, or modified source code and (ii) inventions where such are related in any way to the Software or Point Motion’s general business, regardless of the creator, whether such are developed, revised, or modified in response to End User’s requests, suggestions, or ideas, even if performed as Software related services paid for by the End User or during, arising out of, or otherwise relating to any Development License. During the term of this EULA and thereafter, End User shall not assert the invalidity of Point Motion’s IP, or contest Point Motion’s right, title or interest therein and thereto, and End User shall not cause, influence, or assist in any manner whatsoever, any other party to make any such assertions or contest.
Limited Warranties; Remedies; Disclaimers; Limitation of Liability
Limited Warranty. THE SOFTWARE IS PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND. IN ADDITION, POINT MOTION DISCLAIMS ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE REGARDING THE SOFTWARE, INCLUDING THE IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, ACCURACY, RELIABILITY, SECURITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING, CUSTOM, USAGE OR TRADE. WITHOUT LIMITING THE FOREGOING, POINT MOTION DOES NOT WARRANT THAT THE SOFTWARE WILL MEET END USER’S REQUIREMENTS, OR THAT THE SOFTWARE WILL BE SECURE, ERROR-FREE OR OPERATE WITHOUT INTERRUPTION. END USER UNDERSTANDS AND AGREES THAT THE DISCLAIMER OF WARRANTIES IN THIS AGREEMENT IS A FUNDAMENTAL PART OF THIS AGREEMENT AND THAT POINT MOTION WOULD NOT AGREE TO ENTER THIS AGREEMENT WITHOUT SUCH DISCLAIMER.
Disclaimers. EXCEPT AS EXPRESSLY SET FORTH IN THIS EULA, THE SOFTWARE, MAINTENANCE, UPDATES, ENHANCEMENTS, SOFTWARE RELATED SERVICES, OR DELIVERABLES PROVIDED AS A RESULT OF THE PERFORMANCE OF MAINTENANCE OR SOFTWARE RELATED SERVICES ARE PROVIDE “AS IS” AND POINT MOTION FURTHER DISCLAIMS THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE, MAINTENANCE, UPDATES, ENHANCEMENTS, SOFTWARE RELATED SERVICES, OR DELIVERABLES WILL MEET THE REQUIREMENTS OF END USER OR OPERATE ERROR-FREE. EXCEPT AS EXPRESSLY SET FORTH IN THIS EULA, THERE ARE NO OTHER WARRANTIES, CONDITIONS, OR REPRESENTATIONS, WHETHER EXPRESS OR IMPLIED BY STATUTE, OPERATION OF LAW, TRADE USAGE, COURSE OF PERFORMANCE OR DEALING OR OTHERWISE, INCLUDING WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, FITNESS FOR A PARTICULAR USE, NONINFRINGEMENT, TITLE, ACCURACY, OR COMPLETENESS; ALL SUCH WARRANTIES BEING SPECIFICALLY AND FULLY DISCLAIMED BY POINT MOTION. OTHER WRITTEN OR ORAL REPRESENTATIONS OR AFFIRMATIONS OF FACT, INCLUDING BUT NOT LIMITED TO, STATEMENTS FROM POINT MOTION OR ANY OTHER SOURCE REGARDING THE PERFORMANCE OF THESE MATTERS THAT ARE NOT CONTAINED IN THIS EULA, SHALL NOT BE BINDING ON POINT MOTION AND ARE HEREBY EXPRESSLY DISCLAIMED. POINT MOTION FURTHER DISCLAIMS TO END USER FOR ANY THIRD-PARTY CHARGES, INCLUDING BUT NOT LIMITED TO, DATA, USAGE, OR TELECOM CHARGES, FOR DEVICES MANAGED BY THE SOFTWARE.
Limitation of Liability. EXCEPT FOR BREACHES OF THE LICENSE RESTRICTIONS, CONFIDENTIALITY OBLIGATIONS, OR MISUSE OF A PARTY’S INTELLECTUAL PROPERTY RIGHTS, NEITHER PARTY SHALL HAVE ANY LIABILITY FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION LOST PROFITS), HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) ARISING IN ANY WAY OUT OF OR RELATED TO THIS EULA, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Term and Termination.
Term of EULA. The term of this EULA will begin on the Effective Date and will end when End User’s ability to use and access the Software is terminated by Customer or by Point Motion, unless this EULA is terminated sooner by either Party.
Rights to Terminate. Each party has the right to terminate this EULA, by giving written notice of termination to the other party, if (a) the other party breaches this EULA and (b) either the breach cannot be cured or, if the breach can be cured, it is not cured by the breaching party within 15 days after receiving written notice of the breach from the non-breaching party. A substantial deviation of the Software from the specifications in the corresponding Documentation will not be considered a breach of this EULA that allows Customer or Point Motion to terminate the EULA.
Consequences of Termination. When this EULA, the Subscription Agreement relating to this EULA, or an individual license to the Software expires or is terminated, End User must (i) immediately cease all use of the Software and Documentation, (ii) promptly return to Point Motion or destroy all copies of the Software and Documentation in End User’s possession or control, and (iii) certify in writing to Point Motion that End User has complied with clauses (i) and (ii).
Survival. The provisions of this EULA that by their context are intended to survive termination of this EULA, shall so survive termination, including, but not limited to, the provisions of sections 4, 5.2, 5.3, 6.3, and 7.
General Provisions.
Assignment. This EULA, including any rights, licenses or obligations under this EULA, may not be assigned or otherwise transferred (whether by operation of law, merger, reorganization, or otherwise) by End User to any non-affiliate party without the prior written consent of Point Motion and any attempt to do so in violation of the terms hereof shall be ineffective, null, and void (and End User will be in material breach of this EULA).
Audit and Compliance. Point Motion may audit (using its own employees and those of an independent auditing firm that is subject to appropriate confidentiality obligations) End User’s use of the Software and Documentation to verify End User compliance with this EULA. End User agrees to give Point Motion (or the auditing firm) reasonable access to End User’s facilities and records for purposes of conducting these audits.
Automatic Updates. For the purpose of providing Updates, detecting software piracy, and verifying that customers are using the Software in conformity with the applicable licensing infrastructure for such Software, Point Motion will use information gathered in connection with this update process to deliver software updates and pursue software pirates and infringers.
Governing Law. This EULA is governed by the laws of the United States and the State of North Carolina, without regard to conflicts of laws principles. The federal and state courts located in Forsyth County, North Carolina have exclusive jurisdiction over any disputes arising from or relating to this EULA, and each party consents to such jurisdiction and venue.
Export Laws. The Software is subject to United States export control laws and regulations and may be subject to export or import regulations in other countries. These laws and regulations include licensing requirements and restrictions on destinations, end users, and end use. End User shall comply with all domestic and international export and import laws and regulations that apply to the Software and acknowledges that End User has the responsibility to obtain any and all necessary licenses to export, re-export, or import the Software and covenants that it shall not, directly or indirectly, sell, export, re-export, transfer, divert, or otherwise dispose of any Software, source code, or technology (including derivative products) received from Point Motion under this EULA to any other party or destination prohibited by the laws or regulations of the United States, without obtaining prior governmental authorization as required by those laws and regulations.
Waivers. Either party’s failure to enforce any provision of this EULA will not be deemed a waiver of the future enforcement of that provision or enforcement of any other provision. In order to be binding, a waiver must be in writing and signed by the party giving the waiver.
Independent Contractors. Neither Party is the agent or partner of the other party, or has any power or authority to act on behalf of the other party. Nothing contained herein will be construed to create the relationship between the Parties of principal and agent, employer and employee, partners or joint venturers.
Severability. If any provision in this EULA is found to be invalid or unenforceable as written, the remaining provisions will remain in full force and effect and the invalid or unenforceable provision is to be construed (and, if necessary, modified) so that it is valid and enforceable to the greatest extent possible.
Attorneys’ Fees. The prevailing party in any action to enforce this EULA will be entitled to recover costs and expenses including reasonable attorneys’ fees.
Remedies. Except where this EULA expressly provides exclusive remedies, all rights and remedies of either party (including termination rights) are cumulative. End User agrees that monetary damages alone would not be an adequate remedy, and therefore Point Motion will be entitled to injunctive relief if End User materially breaches the license restrictions or confidentiality provisions in this EULA.
Force Majeure. Each party will be excused from performance of its obligations under this EULA, except payment obligations, to the extent that performance is rendered impossible by earthquake, fire, flood, governmental action, labor disruptions, supplier failures, or any other event or circumstance beyond that party’s reasonable control.
Construction. Section headings in this EULA are for convenience only. The word “including” (and variations thereof) is not intended to be limiting. No rule of strict construction is to be used when interpreting this EULA.
Publicity. Point Motion may use the name and/or logo of End User in a list of customers used in marketing materials until requested to cease this use by End User. Within sixty (60) days of signing the EULA, Point Motion may publish a press release announcing the acquisition of End User as a customer, provided End User has an opportunity to review and approve the press release.
Government Users. If End User is a branch or agency of the United States Government, or are acquiring any Software on behalf of any branch or agency of the United States Government, then the following provision applies. The Software and Documentation are comprised of “commercial computer software” and “commercial computer software documentation”, as such terms are used in 48 C.F.R. 12.212, and are provided to the Government (a) for acquisition by or on behalf of civilian agencies, consistent with the policy set forth in 48 C.F.R. 12.212; or (b) for acquisition by or on behalf of units of the Department of Defense, consistent with the policies set forth in 48 C.F.R. 227.7202-1 and 227.7202-3.
Entire Agreement. This EULA is the entire agreement between the Parties concerning its subject matter, and supersedes any prior or contemporaneous agreements, communications, or understandings (whether written or oral). However, any confidentiality or nondisclosure agreements that Point Motion or Customer previously entered into with End User will remain in effect (according to their terms) with respect to the confidential information disclosed thereunder.
Amendments. This EULA may be amended by Point Motion from time to time upon notice to Customer and End User.