Mobile Application EULA

 

EFFECTIVE: 1 MARCH 2023

 

YOU SHOULD READ CAREFULLY THE FOLLOWING TERMS AND CONDITIONS BEFORE UTILIZING THE APPLICATION. BY INSTALLING AND UTILIZING THE APPLICATION YOU ACKNOWLEDGE YOUR ACCEPTANCE OF THE TERMS AND CONDITIONS OF THIS APPLICATION EULA (“AGREEMENT”). IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, THEN DO NOT UTILIZE THE APPLICATION.

 

VARIETY CHILDREN’S HOSPITAL (dba NICKLAUS CHILDREN’S HOSPITAL) OFFERS THIS SOFTWARE PLATFORM (THE “APPLICATION”) PURELY FOR ENTERTAINMENT PURPOSES. THIS APPLICATION IS NOT INTENDED OR IS TO BE CONSIDERED FOR ANY CLINICAL PURPOSES OR PATIENT CARE. THE APPLICATION IS NOT A MEDICAL DEVICE AND SHOULD NOT BE RELIED UPON FOR THE PROVISION OF MEDICAL INFORMATION OR FOR THE PURPOSES OF OBTAINING MEDICAL TREATMENT.

 

This Agreement is effective as of the day you first download the Application or first access the Application, whichever is earlier (“Effective Date”), by and between Variety Children’s Hospital (“Nicklaus Children’s Hospital”), and you (“User”). For the sake of clarity, if you downloaded or otherwise obtained the Application from a Store, the operator or owner of that Store (the “Proprietor”) is neither a party to this license nor responsible for the Application in any way. In consideration of the promises and the mutual obligations of the parties set forth herein, and for other good and valuable consideration, the adequacy and sufficiency of which are hereby acknowledged, the parties agree as follows:

 

1. Applications. Nicklaus Children’s Hospital offers certain software products. These Applications may be proprietary work of Nicklaus Children’s Hospital or may be the proprietary work of third parties who have granted Nicklaus Children’s Hospital the right to sublicense the Applications.

 

2. License to Applications. Nicklaus Children’s Hospital hereby grants to User a limited, non-exclusive, non-transferable, non-assignable license to install and use the object code of the Application on one device (e.g., computer, smart phone, or tablet) solely for use by one User at one time and solely in conjunction with User’s use of the Nicklaus Children’s Hospital Platform. User may not (i) install Applications on computer products designed to allow simultaneous access by multiple end users, such as those in a server or mainframe environment, or (ii) install Applications in a way to allow their utilization by anyone other than a human – computerized utilization of Applications is not allowed. User is responsible for ensuring that User has appropriate hardware, software, and connectivity to enable an Application to function in accordance with the documentation for the Application. User is solely responsible for ensuring that User's use of the Application is in keeping with the rights granted herein. User is responsible for keeping the Application up to date, including downloading and installing any new versions that may become available after installation. User is responsible for exercising appropriate care in all respects when using the Application so as to ensure User’s wellbeing and the wellbeing of those around User.

 

3. Reservation of Rights. Nicklaus Children’s Hospital reserves all rights not expressly granted in Section 2 of this Agreement. Except as provided therein, User may not copy, use, sublicense, modify, adapt, or create derivative works of the Application or related documentation or remove any copyright or other proprietary rights notices. Nicklaus Children’s Hospital reserves the right to suspend or terminate access by any User accessing the Application if such use represents a breach of the terms and conditions of this Agreement, without prejudice to any other remedies available to Nicklaus Children’s Hospital. All rights granted herein are a license, not a sale. Other than the rights licensed to User hereunder, User has no other implied license or right of any kind regarding the foregoing. User shall not itself, and shall not permit any other party to, directly or indirectly, in whole or in part, sublicense, distribute, lease, make available as a service bureau or otherwise allow any third parties any right or access to the Application; disassemble, decompile, decrypt, or reverse engineer, or otherwise attempt to discover or replicate source code for the Application. User acknowledges and agrees that Nicklaus Children’s Hospital owns and retains all rights existing from time to time in any jurisdiction under copyright law, patent law, moral rights law, trade secret law, confidential information law, trademark law, unfair competition law or other similar rights (“Proprietary Rights”) in the Application, documentation, any training materials and any copies, modifications, adaptations, derivative works, and enhancements thereof, by whomever produced. User agrees that any threatened or actual breach of Nicklaus Children’s Hospital‘s Proprietary Rights by User shall constitute immediate, irreparable harm to Nicklaus Children’s Hospital for which monetary damages is an inadequate remedy and for which equitable remedies may be awarded by a court of competent jurisdiction without requiring Nicklaus Children’s Hospital to post any bond or any other security (or if a court shall require a bond, then a bond in no amount above US $1,000). Nothing contained herein shall limit either party's right to any remedies at law, including the recovery of damages for breach of this Agreement.

 

4. Fees and Payment. User shall pay Nicklaus Children’s Hospital the applicable fees for all Applications, if any, in accordance with terms of the Store from which User obtained the Applications (“Application Fees”). User acknowledges and agrees that Nicklaus Children’s Hospital will have no liability for any loss of the use of data resulting from its exercising the rights set forth in this paragraph.

 

5. Privacy. Nicklaus Children’s Hospital has created an Application Privacy Policy to inform you how Nicklaus Children’s Hospital might utilize information collected via the App.

 

6. Warranty. User is solely responsible for ensuring that it exercises proper care at all times when using the application and user acknowledges that Nicklaus Children’s Hospital makes no representation or warranty as to the accuracy of the information provided or the results derived from the application. The application is not a medical device and should not be relied upon for the provision of medical information or for the purposes of obtaining medical treatment. All applications are provided “as is, where is.” Nicklaus Children’s Hospital provides no warranties, and to the maximum amount allowable by law expressly disclaims all warranties, guarantees, conditions, or representations, whether express, implied, statutory, or otherwise, with respect to any applications, including without limitation, any implied warranty of merchantability, error-free use, originality, or fitness for a particular purpose. User is solely responsible for ensuring that all applications operate in accordance with their documentation and user’s expectations. User’s sole remedy for any deviation thereto is to seek a refund for application fees as set forth in the first paragraph of this agreement.

 

7. Term. This Agreement shall be effective as of the Effective Date. Nicklaus Children’s Hospital may terminate this Agreement at any time by providing User with written notice of Nicklaus Children’s Hospital’s intent to do so. This Agreement shall automatically terminate upon the earliest of (i) User erasing or uninstalling the subject Application, (ii) User selling or otherwise alienating the device upon which the Application is installed, (iii) User assigning any of its assets to its creditors, or voluntarily or involuntarily petitioning for the protection of bankruptcy court, or (iv) User otherwise expresses its intent to no longer utilize an Application. Rights of termination are in addition to any other remedies available to Nicklaus Children’s Hospital, at law or in equity. Upon any termination or expiration of this Agreement all license rights shall immediately terminate and User shall immediately cease use of the Application. The following sections of this Agreement shall survive: 1, and 3 - 11. Nicklaus Children’s Hospital shall have no obligation under this Agreement to provide any data or information of any kind to User following termination.

 

8. Indemnification. User shall indemnify and hold harmless Nicklaus Children’s Hospital from any loss, damage, liability, cost or expense suffered or incurred in connection with any claim, suit or proceeding brought by a third party against Nicklaus Children’s Hospital to the extent that it arises out of User's use of the Application, use of the Application to obtain medical treatment, or User’s failure to exercise proper care while using the Application. This indemnity shall survive the termination of this Agreement. Nicklaus Children’s Hospital shall indemnify and hold harmless User for any third party claim that the Application, unmodified by anyone other than Nicklaus Children’s Hospital, in and of itself, violates that third party’s intellectual property rights.

 

9. Limitations of Liability. Neither Nicklaus Children’s Hospital nor its officers, directors, employees, shareholders, agents, licensors, resellers or representatives (collectively “Nicklaus Children’s Hospital parties”) shall be liable for any incidental, indirect, special, exemplary or consequential damages, including but not limited to lost profits, time, savings, data, or goodwill, damages arising from use of or inability to use the application or any related applications, products or services, or cost of replacement goods or services, whether foreseeable or unforeseeable, that may arise out of or in connection with the application or any related functionality, services, products, applications or otherwise relating to the subject matter of this agreement, regardless of whether such damages are based in contract, tort (including negligence), warranty, strict liability, products liability or otherwise, even if they have been notified of the possibility or likelihood of such damages occurring. Except for any direct damages for bodily injuries or tangible property damage proximately caused by Nicklaus Children’s Hospital, the maximum aggregate liability of the Nicklaus Children’s Hospital parties in all events shall be limited to the higher of the price user paid to the store or Nicklaus Children’s Hospital for the application, one thousand US dollars (US $1,000), or the lowest amount allowable by law.

 

10. Dispute Resolution and Arbitration. The parties agree that, except as otherwise provided below, they shall first attempt to resolve any dispute, claim or controversy relating in any way to this Agreement (a “Dispute”) between an officer (applicable to User only if User is an organization) of each party who has authority to resolve the Dispute. If any Dispute cannot be settled in this manner within sixty (60) days of written notice being served by a party on the other party, the parties agree that the Dispute may be settled by arbitration in accordance with the Commercial Arbitration Rules of American Arbitration Association (“Rules”) in Florida in the United States of America, with judgment upon the award rendered by the arbitrator to be entered in any court of competent jurisdiction. Any arbitrator selected pursuant to the Rules will conduct arbitration and the arbitrators will have a background or training in contract law and intellectual property. The arbitrators may award attorneys’ fees and costs to the prevailing party. Notwithstanding the foregoing, either party may apply to any court of competent jurisdiction for a temporary restraining order, preliminary injunction, or other interim, conservatory or equitable relief, as necessary, without breach of this arbitration Agreement and without any abridgment of the powers of the arbitrator(s).

 

11. Generally. User may not assign this Agreement or any rights and obligations hereunder in whole or in part. Any attempted assignment in contravention hereof shall be void and of no effect. Nicklaus Children’s Hospital may assign this Agreement at will. The terms and conditions of this Agreement shall inure to the benefit of and be binding upon the respective successors and assigns of the parties. No delay or failure in exercising any right hereunder and no partial or single exercise thereof shall be deemed to constitute a waiver of such right or any other rights hereunder. No consent to a breach of any express or implied term of this Agreement shall constitute consent to any prior or subsequent breach. If any provision hereof is declared invalid by a court of competent jurisdiction, such provision shall be ineffective only to the extent of such invalidity, so that the remainder of that provision and all remaining provisions of this Agreement shall be valid and enforceable to the fullest extent permitted by applicable law. Should any provision of this Agreement require judicial interpretation, the parties agree that the court interpreting or construing the same shall not apply a presumption that this Agreement shall be more strictly construed against one party than the other. This Agreement shall be governed by and construed in accordance with the laws of the State of Florida, in the United States of America, without regard to its rules regarding conflict of laws or the application of UCITA or any international conventions on the transfer of technology or goods. Each party hereby consents to the exclusive jurisdiction of the state and federal courts located in and around Miami, Florida, in the United States of America.

 

12. User Consent and Warranties. By utilizing the Application you agree to transact business with Nicklaus Children’s Hospital electronically and you represent and warrant that you have the authority to accept this Agreement on behalf of yourself and any institution you represent, that you are more than 18 years of age, will abide by and comply with this Agreement, 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, are not listed on any U.S. Government list of prohibited or restricted parties, and shall not export the Application itself or use the Application to export any information in violation of the laws of the United States of America.