CONSTANT THERAPY, INC. END USER LICENSE AGREEMENT
PLEASE READ THE FOLLOWING End User License Agreement (“License”) CAREFULLY.
IF YOU ARE USING THE LICENSED APPLICATION ON BEHALF OF YOUR EMPLOYER OR OTHER ENTITY (“BUSINESS”), YOUR ACCEPTANCE OF AND AGREEMENT TO THE TERMS AND CONDITIONS OF THIS LICENSE IS DEEMED AN AGREEMENT BETWEEN YOUR BUSINESS AND constant therapy AND YOU REPRESENT AND WARRANT THAT YOU HAVE AUTHORITY TO BIND YOUR BUSINESS TO THE TERMS AND CONDITIONS OF THIS LICENSE.
a. Acknowledgement: Constant Therapy and You, the end-user of the Licensed Application, acknowledge that this License is entered into by and between Constant Therapy and You and not with Apple, Inc. Notwithstanding the foregoing, you acknowledge that Apple, Inc. and its subsidiaries are third-party beneficiaries of this License and that Apple, Inc. has the right (and is deemed to have accepted the right) to enforce this License. Constant Therapy is solely responsible for the Licensed Application and any content contained therein. You acknowledge that Apple, Inc. has no obligation whatsoever to furnish any maintenance and support services with respect to the App. You acknowledge that you have reviewed the App Store Terms and Conditions (located online at http://www.apple.com/legal/itunes/us/terms.html#APPS). Capitalized terms not defined herein shall have the meanings set forth in the App Store Terms and Conditions.
b. Scope of License: The Licensed Application is licensed, not sold, to You for use only under the terms of this personal, nonexclusive, nontransferable, limited license, unless accompanied by a separate license agreement, in which case the terms of that separate license agreement will govern, subject to Your prior acceptance of that separate license agreement. Constant Therapy, reserves all rights not expressly granted to You. This license granted to You for the Licensed Application by Application Provider is limited to use the Licensed Application on any iPhone or iPod touch or iPad that You own or control and as permitted by the Usage Rules set forth in Section 9.b. of the App Store Terms and Conditions (the “Usage Rules”). This license does not allow You to use the Licensed Application on any iPod touch or iPhone or iPad that You do not own or control, and You may not distribute or make the Licensed Application available over a network where it could be used by multiple devices at the same time. This license is limited to the intellectual property rights of Constant Therapy and its licensors and does not include any rights to other patents or intellectual property. You may not rent, lease, lend, sell, redistribute or sublicense the Licensed Application. You may not copy (except as expressly permitted by this license and the Usage Rules), decompile, reverse engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the Licensed Application, any updates, or any part thereof (except as and only to the extent any foregoing restriction is prohibited by applicable law or to the extent as may be permitted by the licensing terms governing use of any open sourced components included with the Licensed Application). Any attempt to do so is a violation of the rights of the Application Provider and its licensors. If You breach this restriction, You may be subject to prosecution and damages. The terms of the license will govern any upgrades provided by Application Provider that replace and/or supplement the original Product, unless such upgrade is accompanied by a separate license in which case the terms of that license will govern.
c. Use of the Licensed Application:
You are responsible for providing the mobile device, wireless service plan, software, Internet connections and/or other equipment or services that you need to download, install and use the Licensed Application. We do not guarantee that the Licensed Application can be accessed and used on any particular device or with any particular service plan or will be available in any particular geographic location. You acknowledge that, when you use the Licensed Application, your wireless service provider may charge you fees for data, messaging and/or other wireless access. Please check with your wireless service provider to determine what fees apply to your access and use of the Licensed Application. YOU ARE SOLELY RESPONSIBLE FOR ANY FEE, COST OR EXPENSE THAT YOU INCUR TO DOWNLOAD, INSTALL AND/OR USE THE Licensed Application ON YOUR MOBILE DEVICE.
You agree that you will not (a) use the Licensed Application if you are not fully able and legally competent to agree to the terms of this License; (b) use the Licensed Application to advertise, solicit or transmit commercial advertisements, including “spam”; and (c) access or use the Licensed Application for unlawful purposes or to engage in any illegal, offensive, indecent or objectionable conduct.
e. Indemnification. By entering into this License and using the Licensed Application or services, you agree that you shall defend, indemnify and hold Constant Therapy, its licensors and their respective parent organizations, subsidiaries, affiliates, officers, directors, members, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of or in connection with: (a) your violation or breach of any term of this License or any applicable law or regulation, whether or not referenced herein; (b) your violation of any rights of any third party; (c) your use or misuse of the Licensed Application.; or (d) your negligence or willful misconduct.
f. Termination. The license is effective until terminated by You or Application Provider. Your rights under this license will terminate automatically without notice from the Application Provider if You fail to comply with any term(s) of this license. Upon termination of the license, You shall cease all use of the Licensed Application, and destroy all copies, full or partial, of the Licensed Application. Termination will not limit any of Constant Therapy’s other rights or remedies at law or equity.
g. Services and Third Party Materials. The Licensed Application may enable access to Application Provider’s and third party services and web sites (collectively and individually, "Services"). Use of the Services may require Internet access and that You accept additional terms of service.
All information provided through the Licensed Application is sent through your mobile service provider or other third party data provider. Information collected by your mobile service provider and other third parties is used, stored, transferred and disclosed pursuant to the mobile service provider’s and/or the third party’s privacy policies and practices.
You understand that by using any of the Services, You may encounter content that may be deemed offensive, indecent, or objectionable, which content may or may not be identified as having explicit language, and that the results of any search or entering of a particular URL may automatically and unintentionally generate links or references to objectionable material. Nevertheless, You agree to use the Services at Your sole risk and that the Application Provider shall not have any liability to You for content that may be found to be offensive, indecent, or objectionable.
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 the Application Provider 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. The Application Provider does not warrant or endorse and does 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. Financial information displayed by any Services is for general informational purposes only and is not intended to be relied upon as investment advice. Before executing any securities transaction based upon information obtained through the Services, You should consult with a financial professional. Location data provided by any Services is for basic navigational purposes only and is not intended to be relied upon in situations where precise location information is needed or where erroneous, inaccurate or incomplete location data may lead to death, personal injury, property or environmental damage. Neither the Application Provider, nor any of its content providers, guarantees the availability, accuracy, completeness, reliability, or timeliness of stock information or location data displayed by any Services.
You agree that the Services contain proprietary content, information and material that is protected by applicable intellectual property and other laws, including but not limited to copyright, and that You will not use such proprietary content, information or materials in any way whatsoever except for permitted use of the Services. 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, by trespass or burdening network capacity. You further agree not to use the Services in any manner to harass, abuse, stalk, threaten, defame or otherwise infringe or violate the rights of any other party, and that the Application Provider is not in any way responsible for any such use by You, nor for any harassing, threatening, defamatory, offensive or illegal messages or transmissions that You may receive as a result of using any of the Services.
h. Pricing and Subscriptions: Please refer to http://constanttherapy.com/pricing for the current pricing information. Constant Therapy subscriptions automatically renew unless the user turns off or cancels auto-renewal at least 24-hours before the end of the current subscription period. Account will be charged for renewal within 24-hours prior to the end of the current period, and identify the cost of the renewal. Subscriptions may be managed by the user and auto-renewal may be turned off by going to the user's Account Settings after purchase. No cancellation of the current subscription is allowed during active subscription period. Any unused portion of a free trial period, if offered, will be forfeited when the user purchases a subscription plan. Constant Therapy’s mobile or web app will be available for use for the length of the current subscription period as long as the user updates or upgrades their device (such as iPad), operating system (such as iOS), and Constant Therapy app to versions supported by Constant Therapy.
i. Pricing changes and Changes to the Service. You acknowledge and agree that Application Provider may make changes to this service at any time, such as, but not limited to change the pricing for this service at any time, or impose or adjust the limit on the number of transactions you may send or receive through the Service.
j. Use at your own discretion: You acknowledge that Application Provider provides no guarantee that this software and service will benefit You or your clients. Even though Application Provider or third parties working with the Application Provider might provide recommendations and tools (such as tasks, therapies, exercises and strategies) through the Licensed Application, via email, or other means, You take sole responsibility for selecting and using the tasks, therapy, or exercises used by You or your clients and for your usage of the Licensed Application. You acknowledge that Application Provider or any third party providing Services through the Application Provider is not providing you with therapy services or rehabilitation services. You acknowledge that Constant Therapy does not provide medical services. You should consult with a healthcare professional for medical advice, treatment or medical diagnosis. Any recommendations or tasks or exercises or diagnosis or alerts provided by any Services is for basic brain exercise purposes only and is not intended to be relied upon in situations where specific medical guidance is needed or where erroneous, inaccurate or incomplete data may lead to death, personal injury, property or environmental damage. Neither the Application Provider, nor any of its content providers, guarantees the availability, accuracy, completeness, reliability, or timeliness of healthcare data displayed by any Services.
k. DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY.
YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE LICENSED APPLICATION IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE LICENSED APPLICATION (INCLUDING, WITHOUT LIMITATION, ANY THIRD PARTY SOFTWARE OR SERVICES) IS PROVIDED TO YOU ON AN "AS IS" AND “AS AVAILABLE” BASIS, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND CONSTANT THERAPY HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE LICENSED APPLICATION (INCLUDING THE USE, PERFORMANCE AND SUPPORT THEREOF) AND ANY SERVICES, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, TITLE OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, INTERFERENCE WITH ENJOYMENT, COMPLETENESS, INTEGRATION, FREEDOM FROM DEFECTS OR DISABLING DEVICES, UNINTERRUPTED USE AND ALL WARRANTIES IMPLIED FROM ANY COURSE OF DEALING OR USAGE OF TRADE. CONSTANT THERAPY DOES NOT WARRANT THAT (A) THE LICENSED APPLICATION WILL MEET YOUR REQUIREMENTS, (B) OPERATION OF THE LICENSED APPLICATION WILL BE UNINTERRUPTED OR VIRUS- OR ERROR-FREE, (C) THAT THE LICENSED APPLICATION WILL OPERATE OR BE COMPATIBLE WITH ANY OTHER APPLICATION OR ANY PARTICULAR SYSTEM OR DEVICE, (D) DEFECTS IN THE LICENSED APPLICATION WILL BE CORRECTED OR (E) THAT THE LICENSED APPLICATION WILL BE AVAILABLE FOR REINSTALLS ON THE SAME OR MULTIPLE DEVICES OR (F) THAT THE LICENSED APPLICATION, APPLICATION PROVIDER OR ANY THIRD PARTIES SERVICES PROVIDED THROUGH APPLICATION PROVIDER WILL MAKE YOU BETTER, MAINTAIN YOUR HEALTH, OR IMPROVE YOUR HEALTH. ANY ORAL OR WRITTEN ADVICE PROVIDED BY CONSTANT THERAPY OR ITS AUTHORIZED AGENTS WILL NOT BE DEEMED TO CREATE ANY WARRANTY. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY CONSTANT THERAPY OR ITS AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES SO SOME OR ALL OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, APPLICATION PROVIDER, ITS SUBSIDIARIES, AFFILIATES AND SUPPLIERS, WILL NOT BE LIABLE TO YOU FOR:
(i) ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES THAT MAY BE INCURRED BY YOU, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY (INCLUDING, BUT NOT BE LIMITED TO: CONTRACT, TORT, COMMON LAW, OR STATUTORY DAMAGES; LACK OF IMPROVEMENT, ANY LOSS OF GOODWILL OR BUSINESS REPUTATION, ANY LOSS OF DATA, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR OTHER INTANGIBLE LOSS), WHETHER UNDER THIS LICENSE OR OTHERWISE ARISING IN ANY WAY IN CONNECTION WITH THE LICENSED APPLICATION OR THIS LICENSE , EVEN IF CONSTANT THERAPY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE;
(ii) ANY CHANGES THAT APPLICATION PROVIDER MAY MAKE TO THE SERVICE, OR ANY PERMANENT OR TEMPORARY CESSATION IN THE PROVISION OF THE SERVICE (OR ANY FEATURES WITHIN THE SERVICE);
(iii) THE DELETION OF, CORRUPTION OF, OR FAILURE TO STORE, ANY CONTENT AND OTHER COMMUNICATIONS DATA MAINTAINED OR TRANSMITTED BY OR THROUGH YOUR USE OF THE SERVICE;
(iv) YOUR FAILURE TO PROVIDE APPLICATION PROVIDER WITH ACCURATE ACCOUNT INFORMATION; OR
(v) YOUR FAILURE TO KEEP YOUR PASSWORD OR ACCOUNT DETAILS SECURE AND CONFIDENTIAL.
You agree that the above limitations of liability together with the other provisions in this License that limit liability are essential terms of this License and that Constant Therapy would not be willing to grant you the rights set forth in this License but for your agreement to the above limitations of liability; you are agreeing to these limitations of liability to induce Constant Therapy to grant you the rights set forth in this License.
(l). Modifications. We may modify this License at any time. Modifications become effective immediately upon your first access to or use of the Licensed Application after the “Last Revised” date at the end of this License. Your continued access or use of the Licensed Application after the modifications have become effective will be deemed your conclusive acceptance of the modified License. If you do not agree with the modifications, then please uninstall and do not access or use the Licensed Application.
(m). Export Laws. You agree that you will not export or re-export, directly or indirectly the Licensed Application and/or other information or materials provided by Constant Therapy hereunder, to any country for which the United States or any other relevant jurisdiction requires any export license or other governmental approval at the time of export without first obtaining such license or approval. In particular, but without limitation, the Licensed Application 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. By using the Licensed Application, 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 these products for any purposes prohibited by United States law, including, without limitation, the development, design, manufacture or production of nuclear, missiles, or chemical or biological weapons. You are responsible for and hereby agree to comply at your sole expense with all applicable United States export laws and regulations.
(n). U.S. Government Restricted Rights. The Licensed Application 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.
(o). Taxes. You are solely responsible for any and all duties, taxes, levies or fees (including any sales, use or withholding taxes) imposed on or in connection with this License by any authority.
(p). Injunctive Relief. You agree that a breach of this License will cause irreparable injury to Constant Therapy for which monetary damages would not be an adequate remedy and Constant Therapy shall be entitled to seek equitable relief in addition to any remedies it may have hereunder or at law without a bond, other security or proof of damages.
(q). Miscellaneous. Other than as provided in subsection (j), this License may not be modified except by a writing executed by the duly-authorized representatives of Constant Therapy. No other act, document, usage or custom will be deemed to modify or amend this License. This License will inure to the benefit of and will be binding upon each party’s successors and assigns. This License and the licenses granted hereunder may be assigned by Constant Therapy but may not be assigned by you without the prior express written consent of Constant Therapy. If any provision hereof is or becomes, at any time or for any reason, unenforceable or invalid, no other provision hereof will be affected thereby and the remaining provisions will continue with the same effect as if such unenforceable or invalid provisions will not have been inserted herein; provided that the ability of either party to obtain substantially the bargained-for performance of the other will not have thereby been impaired. It is expressly understood that in the event either party on any occasion fails to perform any term hereof and the other party does not enforce that term, the failure to enforce on any occasion will not constitute a waiver of any term and will not prevent enforcement on any other occasion. Nothing contained in this License will be deemed to constitute either party as the agent or representative of the other party or both parties as joint venturers or partners for any purpose. In the event that either party is prevented from performing, or is unable to perform, any of its obligations under this License due to any cause beyond the reasonable control of the party invoking this provision, the affected party's performance will be extended for the period of delay or inability to perform due to such occurrence. The headings and captions contained herein will not be considered to be part of the License but are for convenience only. You and Constant Therapy agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply to the interpretation or construction of this License. The laws of the Commonwealth of Massachusetts, excluding its conflicts of law rules, govern this License and your use of the Licensed Application. Your use of the Licensed Application may also be subject to other local, state, national, or international laws. Any litigation by one party against the other arising under this License or concerning any rights under this License will be commenced and maintained in any state or federal court located in the Commonwealth of Massachusetts and both parties hereby submit to the jurisdiction and venue of any such court. This License sets forth the entire understanding of the parties with respect to the matters contained herein and there are no promises, covenants or undertakings other than those expressly set forth herein.
Last Revised: 13 October, 2014