END USER LICENSE AGREEMENT
This End User License Agreement (“Agreement”) is a binding legal contract between you (either an individual or a legal entity) and Intrivo Diagnostics, Inc. (“Intrivo”, “us” or “we”). By downloading, installing, accessing or using the accompanying software (the “Application”) you will be bound by the terms of this Agreement and the terms and conditions found at https://www.intrivo.com/terms-and-conditions (the “Terms”), and our Privacy Policy, found at intrivo.com/privacy-policy/, which are hereby incorporated into this Agreement. The terms of this Agreement will control to the extent there is any conflict between terms of this Agreement and the Terms with respect to your use of the Application. If you are an individual using the Application on behalf of an entity, you represent and warrant that you have the legal authority to bind such entity to this Agreement and that such entity agrees to be responsible to us in the event you violate this Agreement. Except for the prior sentence, when we say “you” throughout this Agreement, we mean you as an individual and such legal entity. If you do not agree to the terms of this Agreement, including the MANDATORY ARBITRATION AND CLASS ACTION WAIVER referenced in Sections 22 and 23 below, then you may not download, install, access, use or copy the Application.
The Application is licensed to you, not sold. Except for the limited license granted in this Agreement, we and our licensors retain all right, title and interest in the Application and all proprietary rights in the Application, including copyrights, patents, trademarks and trade secret rights.
1. Grant of License. We grant you a limited, non-sublicensable, revocable, nontransferable (except as provided below), personal, nonexclusive license to use the object code version of the Application for use on your personal mobile device. You may not install or use the Application on a device that you do not own or control. The Application may be accessed and used by other accounts associated with you via family sharing or volume purchasing.
2. Limitations On License. The license granted to you in this Agreement is restricted as follows:
Limitations on Copying and Distribution. You may not copy or distribute the Application except to the extent that copying is necessary to use the Application as described in this Agreement.
Limitations on Reverse Engineering and Modification; APIs. You may not (i) access or use the application programming interfaces (“APIs”) for any purpose other than your licensed use of the Application or (ii) reverse engineer, decompile, disassemble, modify or create works derivative of the Application, except to the extent expressly permitted by applicable law.
Sublicense, Rental and Third Party Use. You may not assign, sublicense, rent, timeshare, loan, lease or otherwise transfer the Application, or directly or indirectly permit any third party to copy and install the Application on a device not owned and controlled by you.
Proprietary Notices. You may not remove, alter, or obscure any proprietary notices (e.g., copyright and trademark notices) from the Application or its documentation.
Use in Accordance with Documentation. All use of the Application must be in accordance with its then current documentation, if any, provided with the Application or made available on our web site. You may not input, upload, transmit
or otherwise provide to or through the Application any unlawful or malicious information, materials or code.
Confidentiality. You must hold the Application and any related documentation in strict confidence for your own use only.
Compliance with Applicable Law. You are solely responsible for ensuring your use of the Application is in compliance with all applicable foreign, federal, state and local laws, and rules and regulations. You will not use the Application in any manner that is inconsistent with the terms herein or that infringes the intellectual property rights of Intrivo or any third party.
App Store Rules. You must use the Application in strict compliance with all rules and usage requirements of the app store from which you downloaded the Application. You are responsible for locating and reviewing those rules and usage requirements.
3. Account Set-Up. You agree to: (a) provide true, accurate, current, and complete information when registering to use the Application and establishing your account (“Registration Information”) and (b) maintain and promptly update the Registration Information to keep it true, accurate, current, and complete. If you provide any information that is untrue, inaccurate, not current, or incomplete, or we have reasonable grounds to suspect your information is untrue, inaccurate, not current, or incomplete, we may suspend or terminate your account. You are entirely responsible for maintaining the confidentiality of any passwords and any usage and activities that occur in connection with your account. You agree not to allow others to access your account or utilize your password. Doing so will compromise the security of your account.
4. No Included Maintenance and Support. Intrivo may deploy changes, updates, or enhancements to the Application at any time. Intrivo may provide maintenance and support for the Application, but has no obligation whatsoever to furnish such services to you and may terminate such services at any time without notice. You acknowledge that neither Apple (for iOS Mobile App) nor Google (for Android Mobile App) or any other third party, has an obligation to furnish any maintenance or support services in connection with the Application.
5. Online Services Associated with the Application. The Application may be used to access certain online services. In some cases, you will not receive a separate notice when the Application connects to those services. Using the Application constitutes your consent to the transmission of standard device information (including, but not limited to, technical information about your device, system, and application software) to those services. Your use of those services may be governed by additional terms and conditions. Using the online services will constitute your acceptance of and agreement to be bound by those additional terms and conditions, if any. You may not use any online services in any way that could harm those services, disrupt their operation, or impair any other user’s use of those services or the wireless network through which they are accessed. You may not use the online services to gain unauthorized access to or use of any service, data, account, or network by any means.
6. IP and Feedback. The Application is licensed, not sold. Intrivo and its licensors retain all right, title and interest in and to the Application, and all intellectual property rights therein, including any updates and improvements, copies, translations, adaptations, modifications, derivations and enhancements of the Application. Except for the rights and licenses as set forth in this Agreement, Intrivo does not grant or transfer to you any right, title or interest in or to the Application by implication, estoppel or otherwise. Intrivo, the Intrivo logo and all service names contained in the Application are the trademarks of Intrivo and its affiliates. You may provide suggestions, comments or other feedback (collectively, "Feedback”) regarding our products and services, including the Application. Feedback is voluntary. We may use Feedback for any purpose without obligation of any kind. To the extent a license is required under your intellectual property rights to make use of the Feedback, you grant us an irrevocable, world-wide, non-exclusive, perpetual, fully-paid-up, royalty-free license to use the Feedback in connection with our business, including the enhancement of the Application and the provision of products and services to our customers.
7. Termination. This Agreement and license will automatically terminate in the event you breach any term in this Agreement or in the Terms. In the event of a claim of intellectual property infringement by any third party relating to the Application, we may immediately terminate this Agreement.
8. In-App Purchases. You may elect to purchase additional features or functionality for the Application through in-app purchases. You agree to pay all fees associated with purchases made through the Application. All fees are non-refundable, non-cancellable. To be able to pay for such products or services, you must supply certain information relevant to your transaction, including, without limitation, your credit or debit card number, the expiration date of your credit or debit card, the name on your credit or debit card, and/or your billing address. YOU REPRESENT AND WARRANT THAT YOU HAVE THE LEGAL RIGHT TO USE ANY CREDIT OR DEBIT CARD OR OTHER PAYMENT METHOD UTILIZED IN CONNECTION WITH ANY TRANSACTION.”
9. Privacy. For more information on our privacy practices and to review our Privacy Statement please visit https://intrivo.com/privacy-policy/.
10. Location-Enabled Features. Certain location-enabled functionality made available in the Application is provided by Google Inc., Apple Inc., and/or other third party providers. Your use of that functionality may be subject to additional terms and conditions (as updated from time-to-time): http://www.google.com/intl/en-US_US/help/terms_maps.html and https://www.apple.com/legal/internet-services/maps/terms-en.html. You must exercise your own judgment as to the adequacy and appropriateness of the information. All location-based information is provided entirely “as-is,” without warranties of any kind.
11. Application Support; Functionality. All questions and requests relating to Application support must be directed to us at the contact address below. The Third Parties, as defined in Section 15, are not responsible for providing support for the Application and may not be contacted for support. We may change or remove functionality and other features of the Application at any time, without notice.
12. Your Warranties. You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You will not use the Application if any applicable laws in your country prohibit you from doing so in
accordance with these terms.
13. Warranty Disclaimer; Refund. THE APPLICATION IS PROVIDED ON AN “AS AVAILABLE,” “AS IS” BASIS. TO THE MAXIMUM EXTENT PERMITTED BY LAW, WE AND OUR SUPPLIERS AND LICENSORS DISCLAIM ALL WARRANTIES WITH RESPECT TO THE APPLICATION, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF NON-INFRINGEMENT, TITLE, MERCHANTABILITY, QUITE ENJOYMENT, QUALITY OF INFORMATION, AND FITNESS FOR A PARTICULAR PURPOSE. WE AND OUR SUPPLIERS AND LICENSORS DO NOT WARRANT THAT THE APPLICATION WILL MEET YOUR REQUIREMENTS, OR THAT THE OPERATION OF THE APPLICATION WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE APPLICATION WILL BE CORRECTED. In the event of any failure of the Application to operate in material accordance with its then current documentation, you may notify the app store provider, and, subject to the app store provider’s then current policies and terms, they will refund the purchase price, if any, paid for the Application to you; and that, to the maximum extent permitted by applicable law, the app store provider will have no other obligation whatsoever with respect to the Application, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure of the Application to operate in material accordance with its then current documentation will be governed by the terms of this Agreement.
14. Modified Devices and Operating Systems. We have no liability for errors, unreliable operation, or other issues resulting from use of the Application on or in connection with rooted or jail broken devices or use on any mobile device that is not in conformance with the manufacturer’s original specifications, including use of modified versions of the operating system (collectively, “Modified Devices”). Use of the Application on Modified Devices will be at your sole and exclusive risk and liability.
15. No Liability for Third Parties, App Stores, Wireless Carriers. Your wireless carrier, the manufacturer and retailer of your mobile device, the developer of the operating system for your mobile device, the operator of any application store, marketplace, or similar service through which you obtain the Application, Apple Inc., Google LLC, and their respective affiliates, suppliers, and licensors (collectively, the “Third Parties”) are not parties to this Agreement and they do not own and are not responsible for the Application, including, but not limited to claims for: (i) product liability; (ii) any claim that the Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection, privacy, or similar legislation. You are responsible for complying with all application store and other applicable Third Party terms and conditions. YOU AGREE (I) THE THIRD PARTIES DISCLAIM ALL WARRANTIES, EXPRESS AND IMPLIED, WITH RESPECT TO THE APPLICATION, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF NON-INFRINGEMENT, TITLE, MERCHANTABILITY, QUIET ENJOYMENT, QUALITY OF INFORMATION, AND FITNESS FOR A PARTICULAR PURPOSE; (II) IN NO EVENT WILL THE THIRD PARTIES BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, PUNITIVE, EXEMPLARY, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE) ARISING OUT OF THIS AGREEMENT OR THE APPLICATION, EVEN IF THEY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES; (III) IN ANY EVENT, THE MAXIMUM LIABILITY OF ANY THIRD PARTY FOR ALL CLAIMS (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE) OF EVERY KIND WILL IN NOT EXCEED FIVE DOLLARS ($5.00); AND (IV) YOU WAIVE ANY AND ALL CLAIMS, NOW KNOWN OR LATER DISCOVERED, THAT YOU MAY HAVE AGAINST THE THIRD PARTIES ARISING OUT OF THE APPLICATION AND THIS AGREEMENT. THE THIRD PARTIES ARE INTENDED THIRD PARTY BENEFICIARIES OF THIS AGREEMENT, CAPABLE OF DIRECTLY ENFORCING ITS TERMS. NOTHING CONTAINED IN THIS AGREEMENT WILL BE CONSTRUED AS MODIFYING OR AMENDING ANY AGREEMENTS OR OTHER TERMS BETWEEN YOU AND THE THIRD PARTIES WITH REGARD TO THEIR SUBJECT MATTER. In the event of any claim that the Application or your possession and use of the Application infringes a third party’s intellectual property rights, the Third Parties are not responsible for the investigation, defense, settlement, or discharge of the infringement claim.
16. Limitation Of Liability. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL WE OR OUR SUPPLIERS AND LICENSORS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR INDIRECT DAMAGES (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE), WHICH INCLUDE, WITHOUT LIMITATION, DAMAGES FOR PERSONAL INJURY, LOST PROFITS, LOST DATA AND BUSINESS INTERRUPTION, ARISING OUT OF THE USE OR INABILITY TO USE THE APPLICATION, EVEN IF THEY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITING THE FOREGOING, OUR ENTIRE LIABILITY AND THAT OF OUR SUPPLIERS AND LICENSORS UNDER THIS AGREEMENT FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE) WITH RESPECT TO YOUR USE OF THE APPLICATION IS LIMITED FIFTY DOLLARS ($50.00).
OUR SUPPLIERS AND LICENSORS ARE THIRD PARTY BENEFICIARIES OF THIS AGREEMENT, CAPABLE OF DIRECTLY ENFORCING THIS AGREEMENT AGAINST YOU AS A THIRD PARTY BENEFICIARY. YOU WAIVE ANY AND ALL CLAIMS, NOW KNOWN OR LATER DISCOVERED, THAT YOU MAY HAVE AGAINST OUR SUPPLIERS AND LICENSORS ARISING OUT OF THE LICENSE OF THE APPLICATION AND ITS MARKETING, YOUR USE OF THE APPLICATION, AND THIS AGREEMENT. YOUR SOLE AND EXCLUSIVE REMEDIES ARE AGAINST US AND SUBJECT TO THE PROVISIONS OF THIS AGREEMENT.
Some states do not allow the exclusion of incidental or consequential damages, or the limitation on how long an implied warranty lasts, so some of the above may not apply to you.
17. Social Media and Other Third Party Services and Materials. The Application may be used to access and use certain third party services (e.g., Twitter, Facebook, Dropbox, etc.) and 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, including through third-party advertising ("Third-Party Materials"). You acknowledge and agree that Company is not responsible for Third-Party Materials, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect thereof. Company 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 entirely at your own risk and subject to such third parties' terms and conditions. In addition to the terms of this Agreement, your use of those Third Party Materials will be subject to the applicable third party service’s terms and conditions, including their privacy policies. You are responsible for reviewing and accepting those terms prior to transferring or posting any information to their services. You understand and agree that those Third Party Materials are not provided by our agents and that we have no responsibility or liability for them. All Third Party Materials are provided as-is and as-available, without warranties of any kind.
18. Your Indemnity. You will indemnify, defend, and hold us and our suppliers and licensors and the Third Parties harmless from and against all damages, liabilities, costs, fines, sanctions, and expenses, including attorneys’ fees, arising out of or related to your breach of this Agreement or the Terms.
19. Export and Import Restrictions.
You will comply with all U.S. or other applicable export control laws regarding the export of items, software or technology including ensuring that: (a) no equipment, technical data, or Application is exported or reexported to any country, person or entity in violation of any U.S. or other applicable export controls or sanctions;
and/or (b) that anything received from Intrivo is not used or re-exported for a prohibited use under U.S. or other applicable export control laws.
20. Government Restrictions. Any software or other programming provided by us in connection with this Agreement is commercial computer software as described in DFARS 252.227-7014(a)(1) and FAR 2.101. If acquired by or on behalf of the United States Department of Defense or any component thereof, the United States Government acquires this commercial computer software and commercial computer software documentation subject to the terms of this Agreement as specified in DFARS 227.7202-3, Rights in Commercial Computer Software or Commercial Computer Software Documentation. If acquired by or on behalf of any civilian agency, the United States Government acquires this commercial computer software and commercial computer software documentation subject to the terms of this Agreement as specified in FAR 12.212, Computer Software.
21. General. This Agreement will be construed, interpreted, and performed exclusively according to the laws of the State of California, United States of America, without giving effect to any principles of conflicts of law. Any action at law or in equity arising out of or directly or indirectly relating to this Agreement may be instituted only in the Federal or state courts located in Los Angeles, California. You and we consent and submit to the personal jurisdiction of those courts for the purposes of any action related to this Agreement, and to extra-territorial service of process. You agree that regardless of any statute or law to the contrary, any claim or cause of action that you may have arising out of or related to this Agreement must be filed within one (1) year after the claim or cause of action arose. This Agreement constitutes the entire understanding and agreement between us and you with respect to the transactions contemplated in this Agreement and supersedes all prior or contemporaneous oral or written communications with respect to the subject matter of this Agreement, all of which are merged in this Agreement. We reserve the right to modify this EULA at any time and for any reason. Intrivo will post the most current version of this EULA at https://www.letsongo.com/end-user-license-agreement. If Intrivo makes material changes to this EULA, you will receive notification as required by law.. In the event any provision of this Agreement is found invalid or unenforceable pursuant to judicial decree, the remainder of this Agreement will remain valid and enforceable according to its terms. Any failure by us to strictly enforce any provision of this Agreement will not operate as a waiver of that provision or any subsequent breach of that provision. The disclaimers and limitations of liability and your indemnity will survive any termination or expiration of this Agreement. This Agreement may be accepted in electronic form (e.g., by an electronic or other means of demonstrating assent) and your acceptance will be deemed binding between you and us. Neither you nor we will contest the validity or enforceability of this Agreement, including under any applicable statute of frauds, because it was accepted or signed in electronic form. Electronically maintained records when produced in hard copy form shall constitute business records and shall have the same validity as any other generally recognized business records. IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT IN THE EVENT ANY REMEDY HEREUNDER IS DETERMINED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE, ALL LIMITATIONS OF LIABILITY AND EXCLUSIONS OF DAMAGES WILL REMAIN IN EFFECT.
22. Arbitration. In the event, the parties are not able to resolve any dispute between them arising out of or concerning this Agreement, or any provisions hereof, whether in contract, tort, or otherwise at law or in equity for damages or any other relief, then such dispute shall be resolved only by final and binding arbitration pursuant to the Federal Arbitration Act, conducted by a single neutral arbitrator and administered by the American Arbitration Association, or a similar arbitration service selected by the parties, in a location mutually agreed upon by the parties. The arbitrator’s award shall be final, and judgment may be entered upon it in any court having jurisdiction. In the event that any legal or equitable action, proceeding or arbitration arises out of or concerns this Agreement, the prevailing party shall be entitled to recover its costs and reasonable attorney’s fees. The parties agree to arbitrate all disputes and claims in regards to this Agreement or any disputes arising as a result of this Agreement, whether directly or indirectly, including Tort claims that are a result of this Agreement. The parties agree that the Federal Arbitration Act governs the interpretation and enforcement of this provision. The entire dispute, including the scope and enforceability of this arbitration provision shall be determined by the Arbitrator. This arbitration provision shall survive the termination of these this Agreement.
23. Class Action Waiver. Any arbitration under this Agreement will take place on an individual basis; class arbitrations and class/representative/collective actions are not permitted. THE PARTIES AGREE THAT A PARTY MAY BRING CLAIMS AGAINST THE OTHER ONLY IN EACH’S INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN MY PUTATIVE CLASS, COLLECTIVE AND/ OR REPRESENTATIVE PROCEEDING, SUCH AS IN THE FORM OF A PRIVATE ATTORNEY GENERAL ACTION AGAINST THE OTHER. Further, unless both you and Intrivo agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
