Date of last revision: 01 October 2021
PLEASE READ THIS END USER LICENSE AGREEMENT (THIS “EULA”) CAREFULLY AS IT CONTAINS IMPORTANT INFORMATION REGARDING YOUR USE OF THE SOFTWARE (AS DEFINED BELOW). THIS EULA IS A BINDING LEGAL AGREEMENT BETWEEN YOU AND QR8 HEALTH, INC. (“Qr8”). BY CLICKING A BOX OR BUTTON INDICATING YOUR ACCEPTANCE OF THIS EULA OR BY EXECUTING AN ORDER FORM OR OTHER DOCUMENT (“ORDER FORM”) THAT REFERENCES THIS EULA (THE “ACCEPTANCE”), YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS EULA AND SUCH ORDER FORM (IF APPLICABLE). IF YOU ARE ENTERING INTO THIS EULA ON BEHALF OF A LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THIS EULA, IN WHICH CASE (EXCEPT FOR THIS SENTENCE), THE TERMS “YOU” AND “YOUR” WILL REFER TO SUCH ENTITY THROUGHOUT THIS EULA. IF YOU DO NOT HAVE SUCH AUTHORITY OR YOU DO NOT AGREE TO THIS EULA, IN WHOLE OR IN PART, THEN YOU ARE NOT PERMITTED TO USE THE SOFTWARE.
Qr8 makes available the Software to You solely in accordance with the terms and conditions set forth in this EULA. When using the Software, outputs or information made available through the Software or any other related services provided by Qr8, You will be subject to any additional terms applicable to such services that may be posted at https://qr8health.com/privacy-legal/index.html from time to time, including the Qr8 Patient Privacy Notice located at https://qr8health.com/privacy-legal/privacy-notice (the “Privacy Notice”). All such terms are hereby incorporated by reference into this EULA.
Qr8 has developed (a) downloadable software applications (each, an “Application”) that contain one or more tests (“Tests”), which are administered through the use of an iPad and/or other devices supported by Qr8 (each, a “Device”) and (b) related firmware and other embedded software (“Firmware”) on Devices (e.g., a stylus). “Software” means any of the foregoing that are identified in the Order Form or otherwise made available by Qr8 to You, and includes, as applicable, any updates, upgrades or other new features, functionality or enhancements thereto made available by Qr8 to You.
The Software is licensed to You under this EULA, not sold.
For Applications: Subject to the terms and conditions of this EULA, Qr8 hereby grants to You a limited, revocable, non-exclusive, non-assignable, non-transferable, non-sublicensable license in the Field (as defined below) to:
download and install the Applications on Devices; and
use the Applications (i) if You are an individual, solely for Your own personal use or (ii) if You are an entity, solely for Your internal business purposes, in each case, in accordance with this EULA.
Each instance of this EULA that You agree to grants You the aforementioned rights in connection with the download, installation, and use of the Application on a Device associated with the Apple ID or other account identifier that is associated with You or Your Authorized User (as defined below).
You will not, and, if applicable, will ensure that Authorized Users do not, use the Application outside the Field. For the purposes of this EULA, the “Field” will mean all fields except multiple sclerosis, clinically isolated syndrome, optic neuritis, neuromyelitis optica, and the objective quantification of any multiple symptoms associated with concussion and traumatic brain injury and mild traumatic brain injury.
For Firmware: Title to the Device upon which the Firmware is embedded (excluding the Software thereon) passes to You upon Your purchase of such Device. Subject to the terms and conditions of this EULA, Qr8 hereby grants to You a limited, revocable, non-exclusive, non-assignable, non-transferable, non-sublicensable license to use the Firmware solely as installed on such Device.
For Applications: Payment must be made to Qr8 via the Apple App Store, Google Play Store or other applicable Distribution Channel (as defined below) prior to You downloading the Application. If You are an individual, only You may download and install the Application, and, if You are an entity, You will only permit Your Authorized Users to download and install the Application. You will ensure that the Application remains in Your possession at all times; if you are an entity, You and, if applicable, Your Authorized Users may temporarily provide the Device to Your patients or any other subjects of the Test (“Subjects”) for purposes of administering the Test in accordance with the terms and conditions set forth in this EULA. An “Authorized User” means, with respect to the entity entering into this EULA (if any), the authorized employees of such entity. No other party may use the Application except for the Authorized Users and Subjects as described herein. If an Order Form limits the number of Your Authorized Users, You will not permit the number of Authorized Users to exceed the number set forth in such Order Form. No Subject may download, copy or access the Application on any device other than the Device that You provide or an Authorized User provides to such Subject.
For All Software: You will be solely responsible for any misuse of the Software by any Subject or, if applicable, Authorized User. You remain responsible for maintaining the confidentiality of Your and Your Authorized Users’ account credentials and are fully responsible for any and all activities that occur under Your and Your Authorized Users’ account(s). You will not permit any Subject to use the Software except:
Under Your supervision or, if applicable, under the supervision of an Authorized User;
On Your premises; and
On the Device that You provide, or that an Authorized User provides, to the Subject for the sole purpose of administering the Test(s).
Use of Devices: You represent and warrant that You will, and that You will ensure that Your Authorized Users and Subjects will, use and maintain the Device in accordance with the documentation provided therewith and will not damage or abuse the Device. Failure to comply with this provision may affect the functionality and/or safety of the Device and the Software. You covenant to Qr8 that You will not use the Device in violation of applicable laws and regulations.
Qr8 will not be liable to You or any third party for Your failure to comply with this Section 3.
You covenant to Qr8 that You will only use, and You will ensure that all Authorized Users and Subjects only use, the Software in a manner that complies with any and all applicable laws, rules and regulations in the jurisdictions in which You (or Your Authorized Users or Subjects) use the Software. Your (and Your Authorized Users’ and Subjects’) use of the Software will be in accordance with applicable restrictions concerning privacy and intellectual property rights.
You will not, nor will You, directly or indirectly, enable any third party (including any Subject or Authorized User, if applicable), to: (a) reproduce or copy the Software, except as expressly permitted under Section 2; (b) modify, adapt, translate or create any derivative works of the Software; provided, that this restriction will not be deemed to prohibit You from using any features or functionality of the Software that are inherent to the use of the Software; (c) attempt to circumvent or disable the Software or any technology features or measures in the Software or their related systems, hardware (including Devices) or networks including any access controls or copyright protection mechanisms, by any means or in any manner; (d) attempt to decompile, disassemble, reverse engineer, or otherwise attempt to derive the source code for the Software; (e) distribute, encumber, sell, rent, lease, sublicense, or otherwise transfer, publish or disclose the Software to any third party; or (f) remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in or on the Software or Device or used in connection with the Software or Device.
As between You and Qr8, Qr8 retains all rights, title and interest in and to the Software. Except for the express license granted to You in Section 2, no right, title, interest or license in or to the Software, whether by implication, estoppel or otherwise, is granted, assigned or transferred to You. You will not, directly or indirectly, take any action that interferes with or challenges, in any manner, Qr8 and its licensors’ rights with respect to the Software.
You and Qr8 may enter into one or more Order Forms for Software and/or Devices. Each Order Form is binding on the parties and is governed by the terms of this EULA. For Order Forms contemplating Applications, Qr8 will monitor Your and Your Authorized Users’ and Subjects’ use of the Applications to determine the number of Tests administered.
You will pay to Qr8 the fees set forth on the Order Form. Qr8 will invoice You for the fees in accordance with the payment schedule set forth on the Order Form, and You will pay such fees within the timeframe specified on the Order Form, or if no timeframe is specified, within thirty (30) days of the receipt of such invoice. All fees paid are non-refundable. If payment of any fees is not made when due and payable, a late fee will accrue at the rate of the lesser of one and one-half percent (1.5%) per month or the highest legal rate permitted by law, and You will pay all reasonable expenses of collection.
All amounts payable by You to Qr8 hereunder are exclusive of any sales, use and other taxes or duties, however designated (collectively “Taxes”). You will be solely responsible for payment of any Taxes, except for those taxes based on the income of Qr8. You will not withhold any Taxes from any amounts due to Qr8.
Upon the completion of a Test by any Subject, You may view the raw data results of the Test and certain other related metrics generated by the Application (the “Results”). You represent and warrant to Qr8 that You will not, and will ensure Your Authorized Users do not, use the Results in violation of the Privacy Notice made available to Subjects prior to administration of the Test.
You acknowledge that each Subject will have the option, through the Application, to automatically make available to Qr8 the Results in either de-identified form or identifiable form, or to not make available to Qr8 the Results. In the event that the Subject elects within the Application to make the Results available to Qr8, You acknowledge and agree that such Results will be automatically distributed to Qr8 and Qr8 may use the Results for any purposes consistent with the Privacy Notice and applicable data privacy laws.
Qr8’s name and logos are trademarks and service marks of Qr8 (collectively the “Qr8 Trademarks”). Other company, product, and service names and logos used and displayed via the Software or a Device may be trademarks or service marks of their respective owners who may or may not endorse or be affiliated with or connected to Qr8. Nothing in this EULA should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any of Qr8 Trademarks, without Qr8’s prior written permission in each instance. All goodwill generated from the use of Qr8 Trademarks will inure to Qr8’s exclusive benefit.
Qr8 may ask You or Your Authorized Users to provide certain information about You/them during the Software download and installation process or during the use thereof. All personal information provided to Qr8 in connection therewith will be governed by the Privacy Notice. You understand and agree that Qr8 may disclose such information if required to do so by law or in the good faith belief that such disclosure is reasonably necessary to comply with legal process; enforce the terms of this EULA; protect the rights, property, or safety of Qr8, its users, or the public; or as otherwise described in the Privacy Notice. If You are an entity, You represent and warrant that the individual agreeing to the terms and conditions of this EULA is authorized to provide the personal information requested on behalf of such entity.
To the extent that You and/or any of Your Authorized Users obtain or access any of Qr8’s confidential information, You will, and You will ensure that Your Authorized Users, (a) protect and safeguard the confidentiality of such confidential information with at least the same degree of care as You would use to protect Your own confidential information of a similar nature, but in no event with less than a commercially reasonable degree of care; (b) not use such confidential information except as necessary to perform Your obligations or exercise Your rights under this EULA; and (c) not disclose it or willingly allow it to be disclosed, directly or indirectly, to any third party, except: (i) as explicitly permitted under the terms of this EULA; (ii) as otherwise agreed in writing by Qr8; or (iii) as required by law or legal process, provided that before so disclosing or allowing it to be disclosed You will provide Qr8 with prompt notice of such legal requirement and seek to minimize the disclosure to the extent legally permissible.
Qr8 offers Software that may be made available through the Apple App Store, the Google Play Store, or other distribution channels (“Distribution Channels”). If You obtain such Software through a Distribution Channel, You may be subject to additional terms of the Distribution Channel. This EULA is between You and Qr8 only, and not with the Distribution Channel. To the extent that You utilize any other third-party products and services in connection with Your use of the Software, You agree to comply with all applicable terms of any agreement for such third party products and services.
Apple-Enabled Software: With respect to Software that is made available for Your use in connection with an Apple-branded product, in addition to the other terms and conditions set forth in this EULA, the following terms and conditions apply:
Qr8 and You acknowledge that this EULA is concluded between Qr8 and You only, and not with Apple Inc. (“Apple”), and that as between Qr8 and Apple, Qr8, not Apple, is solely responsible for the Software and the content thereof.
You may not use the Software in any manner that is in violation of or inconsistent with the usage rules set forth for the Software in, or otherwise be in conflict with, the applicable marketplace terms of service (the “Apple Media Services Terms and Conditions”).
Qr8 is solely responsible for providing any maintenance and support services with respect to the Software as provided herein. Qr8 and You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Software.
Your license to use the Software is limited to a non-transferable license to use the Software on an iOS product that You or Your Authorized Users own or control, as permitted by the usage rules set forth in the Apple Media Services Terms and Conditions. Apple has no obligation whatsoever to provide any maintenance or support services with respect to the Software. If You have any questions, complaints or claims with respect to the Software, they should be directed to:
Apple is not responsible for any product warranties, whether express or implied by law. In the event of any failure of the Software on an iOS product to conform to any applicable warranty, You may notify Apple, and Apple will refund the purchase price for such Software to You, if any; and, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to such Software, or any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty, which will be Qr8’s sole responsibility, to the extent it cannot be disclaimed under applicable law.
Qr8 and You acknowledge that Qr8, not Apple, is responsible for addressing any claims of You or any third party relating to the Software or Your possession and/or use of the Software, including: (a) product liability claims; (b) any claim that the Software fails to conform to any applicable legal or regulatory requirement; and (c) claims arising under consumer protection or similar legislation.
In the event of any third party claim that the Software or Your possession and use of the Software infringes that third party’s intellectual property rights, as between Qr8 and Apple, Qr8, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
Qr8 and You acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of this EULA with respect to the Software, and that, upon Your Acceptance of the terms and conditions of this EULA, Apple will have the right (and will be deemed to have accepted the right) to enforce this EULA against You with respect to the Software as a third party beneficiary thereof.
Any information You provide to Qr8 in connection with this EULA will be current, true, accurate, supportable and complete and, You further agree that Apple and Apple’s subsidiaries may share such information (including email address and mailing address) with third parties who have a need to know for purposes related thereto (e.g., intellectual property questions, customer service inquiries, etc.).
Google-Sourced Software: The following applies to any Software you download from the Google Play Store (“Google-Sourced Software”): (a) you acknowledge that this EULA is between you and Qr8 only, and not with Google, Inc. (“Google”); (b) your use of Google-Sourced Software must comply with Google’s then-current Google Play Terms of Service; (c) Google is only a provider of Google Play where you obtained the Google-Sourced Software; (d) Qr8, and not Google, is solely responsible for Qr8’s Google-Sourced Software; (e) Google has no obligation or liability to you with respect to Google-Sourced Software or this EULA; and (f) you acknowledge and agree that Google is a third-party beneficiary to this EULA as it relates to Qr8’s Google-Sourced Software.
Qr8 AND ITS LICENSORS AND SUPPLIERS (THE “Qr8 PARTIES”) DO NOT WARRANT THAT THE SOFTWARE OR ANY DEVICE WILL MEET ANY REQUIREMENTS OR NEEDS YOU MAY HAVE, OR THAT THE SOFTWARE OR DEVICE WILL OPERATE ERROR-FREE, OR IN AN UNINTERRUPTED MANNER, OR THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED, OR THAT THE SOFTWARE OR DEVICE IS FULLY COMPATIBLE WITH ANY PARTICULAR PLATFORM OR HARDWARE. ALL SOFTWARE AND DEVICES ARE PROVIDED “AS IS.” THE Qr8 PARTIES DISCLAIM ANY AND ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS RELATING TO THE SOFTWARE AND DEVICE WHETHER EXPRESS, IMPLIED, OR ARISING BY CUSTOM OR TRADE USAGE, INCLUDING ANY REPRESENTATION, WARRANTY, OR CONDITION OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT. SOME JURISDICTIONS DO NOT ALLOW THE WAIVER OR EXCLUSION OF IMPLIED WARRANTIES SO THEY MAY NOT APPLY TO YOU.
Qr8 reserves the right to change or modify portions of this EULA at any time. If Qr8 does so, Qr8 will indicate at the top of the page the date this EULA was last revised. Qr8 may also indicate changes via a notification within an Application, or through other reasonable means. Any such changes will become effective no earlier than fourteen (14) days after being posted, except that changes addressing new functions of the Software or changes made for legal reasons may become effective immediately. Your continued use of the Software after any such changes or modifications become effective constitutes Acceptance of such changes or modifications. If You do not agree to abide by these or any future EULA, do not use or access (or continue to use or access) the Software. Qr8 may terminate Your use of the Software, this EULA or the Software at any time, with or without notice.
The Software and accompanying documentation are provided with restricted rights. Use, duplication, or disclosure by the U.S. Government is subject to the restrictions as set forth in subparagraph (c)(1)(iii) of DFARS 252.227-7013 (The Rights in Technical Data and Computer Software) or subparagraphs(c)(1) and (2) of 48 CFR 52.227-19 (the Commercial Computer Software – Restricted Rights), as applicable.
The Software may contain or be provided together with open source software. Each item of open source software is subject to its own applicable license terms, which can be found in the open source disclosures link located at https://qr8health.com/privacy-legal/open-source-disclosures and/or in the Software documentation or the applicable help, notices, about or source files. Copyrights to the open source software are held by the respective copyright holders indicated therein.
By accepting this EULA, You agree to indemnify and otherwise hold harmless Qr8 and its officers, employers, agents, subsidiaries, affiliates and other partners from any direct, indirect, incidental, special, consequential or exemplary damages arising out of, relating to, or resulting from (a) Your use of the Software or Results, (b) Your breach of any term or condition in this EULA or (c) Your negligence, willful misconduct and/or violation of any applicable laws, rules or regulations in connection with Your activities under this EULA or with respect to any Device. Qr8 will have the right to participate, at its own expense, in the defense or settlement of any such Claim. You will not settle or compromise any such claim without Qr8’s prior written consent.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT THE Qr8 PARTIES WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF Qr8 HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES). IN NO EVENT WILL THE Qr8 PARTIES’ AGGREGATE LIABILITY TO YOU EXCEED THE AMOUNT YOU HAVE PAID Qr8 IN THE LAST SIX (6) MONTHS IN CONNECTION WITH YOUR USE OF THE SOFTWARE HEREUNDER, OR, IF GREATER, ONE HUNDRED DOLLARS ($100). THESE LIMITATIONS AND EXCLUSIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATIONS OF DAMAGES AND/OR EXCLUSIONS OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
This EULA is expressly made subject to any laws, regulations, orders or other restrictions on the export from the United States of America of the Software or information about such Software which may be imposed from time to time by the government of the United States of America. You will not: (a) export or re-export or permit transshipment thereof, directly or indirectly, any Software to any country to the extent such country requires an export license or other governmental approval, without first obtaining such license or approval; (b) export or re-export or permit transshipment thereof, directly or indirectly, any Software in violation of any U.S. export laws or any other restrictions, laws or regulations; and (c) under any circumstances, export the Software to any country restricted by the U.S. export laws and regulations. Accessing, using, copying, downloading, exporting or re-exporting materials in violation of U.S. export laws or applicable laws of other locations is prohibited. By downloading or using the Software, You agree to the foregoing and represent and warrant that You are not located in, under the control of, or a national or resident of any restricted country. You acknowledge that no part of the Software or underlying information or technology may be downloaded or otherwise exported or re-exported into (or a national or resident of) any countries subject to a U.S. trade embargo (currently Iran, Cuba, Syria, North Korea and Sudan), or anyone on the U.S. Treasury Department’s List of Specially Designated Nationals or the U.S. Commerce Department’s Table of Denial Orders. You are solely responsible for using and accessing the Software outside the U.S., and do so at Your own risk with complete responsibility for compliance with applicable local foreign laws, including export regulations. 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 (as set forth on Title 15, Part 740 Supplement 1 Country Group E of the U.S. Code of Federal Regulations); and (ii) You are not listed on any U.S. Government list of prohibited or restricted parties.
Any proceedings to resolve or litigate any dispute in any forum with respect to this EULA and/or the Software will be conducted solely on an individual basis. Neither You nor Qr8 will seek to have any such dispute heard as a class action, private attorney general action, or in any other proceeding in which either party acts or proposes to act in a representative capacity. No proceeding will be combined with another without the prior written consent of all parties to all affected proceedings. If this class action waiver is found to be illegal or unenforceable as to all or some parts of a dispute, then this section will not apply to those parts.
This EULA constitutes the entire agreement between You and Qr8 and governs Your use of the Software on one Device, superseding any prior agreements between You and Qr8 with respect to the Software on such Device. You also may be subject to additional terms and conditions that may apply when You use affiliate or third-party services, third-party content or third-party software. This EULA will be governed by the laws of the Commonwealth of Massachusetts without regard to its conflict of law provisions. You and Qr8 agree to submit to the personal and exclusive jurisdiction of the state and federal courts located within Boston, Massachusetts. You acknowledges that Your breach of Sections 2 through 0 or 10 will cause irreparable damage to Qr8 and You agree that Qr8 will be entitled to seek injunctive relief from a court of competent jurisdiction as a result of any breach as well as such further or other equitable relief as may be granted by such court, without the posting of any bond or other security and without any requirement to prove actual damages or that monetary damages will not afford an adequate remedy. The failure of Qr8 to exercise or enforce any right or provision of this EULA will not constitute a waiver of such right or provision. If any clause or provision of this EULA is found by a court of competent jurisdiction to be invalid or unenforceable, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and that clause or provision will be severed from the remainder of this EULA but the other provisions of this EULA remain in full force and effect and will not be affected. All uses in this EULA of “including” and similar terms will be interpreted to mean “including without limitation.” You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Software or this EULA must be filed within one (1) year after such claim or cause of action arose or be forever barred. A printed version of this EULA and of any notice given in electronic form will be admissible in judicial or administrative proceedings based upon or relating to this EULA to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. You may not assign this EULA without the prior written consent of Qr8, but Qr8 may assign or transfer this EULA, in whole or in part, without restriction. The section titles in this EULA are for convenience only and have no legal or contractual effect. Notices to You may be made via either email or regular mail to the address specified by You in the Order Form or otherwise. Nothing in this EULA will be construed to place the parties in an agency, employment, franchise, joint venture or partnership relationship. Neither party will have the authority to obligate or bind the other in any manner, and nothing herein contained will give rise or is intended to give rise to any rights of any kind to any third parties. Neither party will represent to the contrary, either expressly, implicitly or otherwise.