ELEMENO HEALTH, INC.
END USER SOFTWARE LICENSE AGREEMENT
Important notice: you, as the customer of Elemeno Health (“You” or “Customer”) should read the following terms carefully before you install or use any software and documentation from Elemeno Health, Inc. ("Elemeno Health") if you install or use the software ("software"), you shall have accepted these terms.
If you have purchased this software license via the internet by clicking the accept button, you consent to be bound by and become a party to this agreement. If you do not agree to all of the terms of this agreement, click the button that indicates that you do not accept the terms of this agreement and do not install the software.
You may return this software for a full refund. Your right to return and refund expires thirty (30) days after purchase from Elemeno Health.
If you do not agree to all of the terms of the agreement, then Elemeno Health is unwilling to license the software to you.
The software is licensed, not sold, to you for use only under the terms of this license ("license").
Subject to the terms set forth in this license agreement ("agreement"), Elemeno Health, grants you this non-exclusive, non-transferable license to use the software in machine-readable form and any documentation delivered with the software (the "documentation").
Documentation means written information (whether contained in user or technical manuals, training materials, specifications or otherwise) pertaining to the software and made available with the software.
This license solely enables you to install one copy of the software on one computer and to use the software on that computer for which you have paid the applicable license fees solely for your own internal business purposes. The software is considered to be in use when it resides in memory or is otherwise stored on a machine. In order to use the software, you may be required to input a registration number or product authorization key and register your copy of the software online at Elemeno Health's website to obtain the necessary license key or license file.
OWNERSHIP AND INTELLECTUAL PROPERTY RIGHTS
Elemeno Health retains full ownership rights in the software and documentation and all rights not expressly granted to you in this agreement.
The software and documentation are protected by copyright and other intellectual property rights.
You may not copy or otherwise use the software or documentation, in whole or part, except as expressly permitted in this agreement. Your possession, installation, or use of the software does not transfer to you any title to the intellectual property in the software, and will not acquire any rights to the software except as expressly set forth in this agreement.
RESTRICTIONS OF USE
The software and documentation may be copied solely for the purposes of installation and back-up.
You may not sublicense, assign, rent, lease, lend, sell, redistribute or transfer the software, documentation or any rights thereto, either in whole or in part, to any third party.
You will not permit the publication or distribution of results of any benchmark tests run on the software without the express written permission of Elemeno Health.
You may not modify the software in any manner.
You agree that the source code applicable to the software is confidential and proprietary to Elemeno Health. Accordingly, you may not decompile, disassemble, reverse engineer or otherwise manipulate the software so as to derive such source code, modify, or create derivative works.
If you breach this restriction, you may be subject to prosecution and damages. The terms of the license will govern any upgrades that replace or supplement the original software, unless such upgrade is accompanied by a separate license in which case the terms of that license will govern.
Customer represents and warrants that (i) any and all images, data or other content transferred into, or used by Customer in conjunction with the software (“Customer Data”), is owned by the Customer, (ii) the Customer shall obtain all requisite approvals in order to use and transfer the Customer Data to the Licensed Software, and (iii) the Customer shall review and approve all Customer Data to ensure that it does not contain any Protected Health Information (PHI) or Personally Identifiable Information (PII) as defined by the Health Insurance Portability and Accountability Act (“HIPAA”), or the Health Information Technology for Economic and Clinical Health (HITECH) Act, or any analogous state laws, or other sensitive data that is regulated by or subject to applicable laws, rules and regulations. Customer acknowledges that Elemeno Health is not a Business Associate as defined by HIPAA or the HITECH acts.
TERM AND TERMINATION
The agreement and the license granted herein shall remain effective until terminated. The term of the license provided in this agreement is perpetual and becomes effective on your installation or use of the software. You may terminate this license at any time by destroying all copies of the software and documentation or by returning all such copies to Elemeno Health. This agreement and the license for the software and documentation will terminate automatically and without provision of notice by Elemeno Health if (i) you fail to comply with any of the terms of this agreement, including any attempt to transfer any copy of the software or documentation to another party or any attempt to modify the software or (ii) you cease doing business, dissolve, make an assignment for the benefit of creditors of all or substantially all of your assets or voluntarily or involuntarily enter bankruptcy.
Upon termination for any reason, you agree that you will destroy all copies of the software and documentation full or partial in your possession or control or return all such copies to Elemeno Health. Limitations of liability, limited warranty and disclaimers and restrictions of warranty shall survive termination of this agreement.
You grant to Elemeno Health and its independent accountants the right to examine your books, records and accounts during your normal business hours to verify compliance with this agreement. In the event such audit discloses non- compliance with this agreement, you shall promptly pay to Elemeno Health the appropriate license fees, plus the reasonable cost of conducting the audit.
Elemeno Health warrants that for a period of thirty (30) days from the date of shipment of the media containing the software to you, the software, if operated as instructed, will perform substantially in accordance with the accompanying documentation.
Elemeno Health’s obligation under this warranty shall be limited as set forth below.
Elemeno Health does not warrant that the software is totally free from error or omission or that its operation will be uninterrupted. All warranty obligations are void if the software has been improperly installed or, has been modified by a party other than Elemeno Health.
Your sole and exclusive remedy and the entire liability of Elemeno Health under this limited warranty will be (i) replacement of defective media and/or (ii) at Elemeno Health's option, repair, replacement, or refund of the purchase price of the software, in both cases subject to the condition that any error or defect constituting a breach of this limited warranty is reported within the warranty period. Elemeno Health may, at its option, require return of the software and/or documentation as a condition to the remedy.
DISCLAIMER OF WARRANTY
Except as specifically stated above or as required by law, the licensed software is provided without warranty of any kind, either expressed or implied including, without limitation, any warranty of merchantability and fitness for a particular purpose. The entire risk as to the results obtained and performance of the licensed software is assumed by you, and Elemeno Health and Elemeno Health’s partners, suppliers, and distributors assume no responsibility for the accuracy or application of or errors or omissions in the licensed software. Except as may be required by law, in no event shall Elemeno Health or Elemeno Health’s partners, suppliers, and distributors be liable for any indirect, special, incidental or consequential damages arising out of the use or inability to use the licensed software, even if Elemeno Health or Elemeno Health’s partners, suppliers, and distributors has been advised of the likelihood of such damages occurring.
Neither Elemeno Health nor Elemeno Health’s partners, suppliers, and distributors shall be liable for any business interruption; lost profits or revenue; loss of use of the licensed software; loss of data or equipment; the cost of substitute procurement; claims by third parties or other similar costs except as required by law. The warranty and remedy set forth herein are exclusive and in lieu of all others, oral or written, expressed or implied. No Elemeno Health agent or employee or third party is authorized to make any modification or addition to this warranty.
LIMITATION OF LIABILITY
Elemeno Health and Elemeno Health’s partners, suppliers, and distributors entire liability and your sole remedy shall be limited, at the election of Elemeno Health, to (i) replacement of the media containing the software, (ii) use of Elemeno Health’s reasonable efforts to correct, at no charge, software errors of which Elemeno Health is the cause, or (iii) if (i) or (ii) are not commercially practicable, accept return of the software and associated documentation and refund your license fee paid for the software, less a reasonable fee for use up to the time of return. Elemeno Health shall have no liability if failure of the software is the result in whole or in part of abuse, misapplication, unauthorized modification or accident. Any replacement software will be warranted on the same terms for the remainder of the original warranty period or thirty (30) days, whichever is longer.
Elemeno Health agrees to defend at its own expense any action brought against you to the extent that it is based on a claim that any software infringes any United States patent, copyright, or trade mark, and will pay any costs and damages finally awarded against you in any such actions which are attributable to any such claim.
Elemeno Health’s and Elemeno Health’s partners, suppliers, and distributors obligations under the preceding sentence is subject to the conditions that (i) you promptly notify Elemeno Health in writing of any such claim, (ii) Elemeno Health has sole control of such defense and all negotiations for any settlement or compromise, and (iii) should any software become, or in Elemeno Health’s opinion be likely to become, the subject of any such claim, you permit Elemeno Health, at Elemeno Health’s option and expense, to procure for you the right to continue using such software, to replace or modify it so that it becomes non-infringing, or to grant you a credit for such software as depreciated on a three-year, straight-line basis, and accept its return. Elemeno Health has no liability under this section with respect to any claim which is based upon or results from (i) the combination of any software with any equipment, device, firmware or software not furnished or approved by Elemeno Health, or (ii) any modification of any software by a party other than Elemeno Health, (iii) the failure of others to install or have installed changes, revisions or updates as instructed by Elemeno Health if such would have made the software non-infringing, or (iv) Elemeno Health’s compliance with your specifications, designs or instructions.
This paragraph states your sole remedy and Elemeno Health’s entire liability for any claim relating to intellectual property rights infringement.
The software is licensed subject to restricted rights. Use, duplication, or disclosure by the United States government or any person or entity acting on its behalf is subject to restrictions as set forth in subdivision (c)(1) (ii) the rights in technical data and computer software clause at DFARS (ß252.227-7013 and ß252.211-7015) for DOD contracts, in paragraphs (c)(1) and (2) of the commercial computer software restricted rights clause in the far (ß52. 227-19) for civilian agencies or in other comparable agency clauses.
EXPORT AND RE-EXPORT
You agree that United States export control laws and other applicable export and import laws govern your use of the product, including technical data. You may not use or otherwise export or re-export the software except as authorized by United States law. Without limitation, the software may not be exported or re-exported (a) into any United States embargoed countries or (b) to anyone on the United States treasury department's list of specially designated nationals or the United States department of commerce denied person’s list or entity list. By using the 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 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.
OPEN SOURCE SOFTWARE RESTRICTIONS
"Open source" software means software available without charge for use, modification or distribution is often licensed under terms that require the user to make the user's modifications to the open source software or any software that the user 'combines' with the open source software freely available in source code form. If you use open source software in conjunction with the product, you must ensure that your use does not: (i) create, or purport to create, obligations with respect to the Elemeno Health product; or (ii) grant, or purport to grant, to any third party any rights to or immunities under our intellectual property or proprietary rights in the Elemeno Health product. For example, you may not develop a software product using a Elemeno Health product and an open source product where such use results in a product file(s) that contains code from both the Elemeno Health product and the open source product (including without limitation libraries) if the open source product is licensed under a license that requires any "modifications" be made freely available. You also may not combine the Elemeno Health product with programs licensed under the gnu general public license ("gpl") in any manner that could cause, or could be interpreted or asserted to cause, the Elemeno Health product or any modifications thereto to become subject to the terms of the gpl. This commercial product includes third party software ("third party software"). By using the software, you acknowledge and agree that Elemeno Health 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 software or web sites. Elemeno Health 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 software, third party software or web sites. Third party materials and links to other web sites are provided solely as a convenience to you.
THIRD PARTY SOFTWARE
Elemeno Health does not supply all third party software that may be required to use the software. Please consult the documentation for further details. You acknowledge that the software contains or is provided with copyrighted software of Elemeno Health’s suppliers which are obtained under a license from such suppliers. Your use of any third party software shall be subject to and you agree to and shall comply with the applicable restrictions and other terms and conditions set forth therein.
To enable product improvements and bug fixes, the software will record errors and other diagnostic information back to Elemeno Health operated servers. Information passed along would be generic and be general application level-data and exclude user-specific data.
This is a feature that users may turn off. However, the software will have this feature turned on by default.
By installation of this software, the user agrees with the default settings of Elemeno Health’s software.
If any provision of this agreement is held to be invalid or unenforceable by a court of competent jurisdiction, the remainder of the provisions of this agreement shall remain in full force and effect.
The laws of the State of California, excluding its conflicts of law rules, govern this license and your use of the software. Your use of the software may also be subject to other local, state, national, or international laws. Elemeno Health retains all rights not expressly granted. Nothing in this agreement constitutes a waiver of Elemeno Health’s rights under United States copyright laws or any other federal, state, local, or foreign law or grants you any rights in source code. You are responsible for installation, management and operation of the software. Should you have any questions concerning this agreement, contact Elemeno Health, Inc., at 2910 Ford Street, Oakland, CA 94601.