END USER LICENSE AGREEMENT
Version: 1.0 of May 8, 2019
DISCLAIMER: YOU SHOULD CAREFULLY READ THE FOLLOWING TERMS AND CONDITIONS BEFORE USING THE APPLICATION. BY DOWNLOADING AND INSTALLING THE APPLICATION OR CONTINUING TO USE THE APPLICATION, YOU AGREE TO BE BOUND BY AND ARE BECOMING A PARTY TO THIS AGREEMENT.
This End User License Agreement (“EULA”) applies to the Application (as defined below) and constitutes a legally binding agreement between Cubigo International NV and you (hereafter “you” or “End User”) and shall govern your use of the Application (as defined below).
The Application is owned and managed by Cubigo International NV, a limited liability company incorporated under the laws of Belgium, with registered office at 3500 Hasselt (België), Corda Campus (Hal B), Kempische steenweg 303, bus 103 and registered under company number 0838.815.319 (hereafter the “Company”).
By continuing to use the Application, you agree as follows:
- You understand and intend that the EULA constitute a legally binding agreement and the equivalent of a signed, written contract;
- You will use the Application in a manner consistent with applicable laws and regulations and in accordance with the EULA as they may be amended by the Company from time to time; and
- You understand, accept, and have received this EULA, and acknowledge and demonstrate that you can access this EULA if and when needed.
- The functionality and/or use to the Application may depend on your healthcare entity and whether or not they provide services to you through the Application, which may be subject to additional terms and conditions.
If you do not agree with and accept the EULA, please discontinue all further use of the Application. Do not continue the installation process and immediately delete all installed files, if any,from your computer or mobile device..
“Application” shall mean software available under this EULA;
“Intellectual Property Rights” shall mean all intellectual, industrial and other property rights (whether registered or not), including, but not limited to copyright, neighboring rights, trademarks, trade names, logos, drawings, models or applications for registration as a drawing or model, patents, applications for patents, domain names, know-how, as well as rights to databases, computer programs and semiconductors.
- Grant of License to End-user
3.1. Company hereby grants to you a single, non-exclusive, non-transferable, limited personal license to use the Application only for the purposes described herein. This license is conditioned on your continued compliance with the EULA. The Application and its underlying technology is protected by copyright, trademark, patent, Intellectual Property, and other laws of the United States, Belgium and foreign countries. The Application is protected by international copyright laws and conventions as well as other Intellectual Property laws and treaties.
3.2. The Application is intended for the personal, non-commercial use of individual End Users.
- You may not rent, lease, lend, sell, transfer, redistribute, or sublicense the Application, except that you may, after prior written notification to Company, transfer the Appliation as a whole to a third party, so long as you do not retain any copies of the Application or parts thereof and such third party accepts the EULA.
- You may not copy, decompile, reverse-engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the Application, any updates, or any part thereof (except as and only to the extent that 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 Application), without the Company’s express written consent. You must make best efforts to prevent any officers, employees, agents or independent contractors from doing the same.
- You may not to remove, change or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Application. If you make an authorized copy of the Application, you agree to produce any and all copyright, trademark, service mark or other proprietary rights notices on those copies.
- No license is granted to you in the human readable code of the Application (source code). Except as provided below, the EULA does not grant you any rights to patents, copyrights, trade secrets, trademarks, or any other rights in the Application. You may not use the Application or any other Company materials with the aim of creating products or services with substantially the same function as the Application.
- You agree that you have no right, power or authority to make any modifications to or unauthorized copies of the Application.
- You may not use, display, mirror or frame the Application, any of its parts, its name, trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without Company’s express written consent.
- You may not access or tamper with non-public areas of the Appliction or its systems, test the vulnerability of the Application’s systems, breach any security or authentication measures, circumvent any technological measure implemented by Company or any other third party (including another user) to protect the Application, or use the Application through the use of any mechanism other than through the use of Company software.
- No licenses or rights are granted to you by implication or otherwise under any Intellectual Property Rights owned or controlled by Company, except for the licenses and rights expressly granted in the EULA.
- If you infringe upon the Company’s Intellectual Property Rights, you will immediately inform Company by emailing email@example.com.
- Grant of License to Company
- You hereby grant a license to Company to use any ideas, concepts, know-how, or techniques contained in your communications for any purpose including, but not limited to, developing and marketing products using such information.
- Carrier Charges
Your carrier’s data rates may apply to your use of the Platform, in addition to any licensing fees you may pay.
- PRIVACY STATEMENT
- THIRD PARTY SOFTWARE and Services
7.1 “Third Party Software and Services” means software, itsrelated materials and services that are furnished by a third party and subject to a separate agreement between the licensor of that software and the Company and/or End User. Third Party Software and Services may be made available to you as part of or through the Application.
7.2 YOU ACKNOWLEDGE AND AGREE THAT COMPANY IS NOT RESPONSIBLE FOR ANY SUCH THIRD PARTY SOFTWARE AND SERVICES.
- DISCLAIMERS AND LIMITATION OF LIABILITY
8.1 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, COMPANY PROVIDES THE APPLICATION “AS IS” WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, WE EXPLICITLY DISCLAIM ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. We make no warranty that the APPLICATION will meet your requirements or be available on an uninterrupted, secure, virus-free, or error-free basis. We make no warranty regarding the quality, accuracy, timeliness, truthfulness, completeness or reliability of the APPLICATION. You acknowledge and agree that if you rely on the APPLICATION, you do so solely at your own risk.
8.2 Company does not guarantee and explicitly disclaims liability for ensuring that the information in the Application is up-to-date, accurate, or complete. You are responsible for verifying and validating the accuracy and completeness of all information you view or access as part of the Application before acting upon such information.
8.3 COMPANY disclaimS any liability for THIRD PARTY CONTENT, AND ANY DEFECTS, FAULTS, OR DAMAGE TO, OR RESULTING FROM, Provider products or services. liability lies exclusively with the Provider from whom the content, products, or services originated.
8.4 Third Party Sites. The APPLICATION may contain hyperlinks to third party content or web sites operated by third parties (“TPS”), and Company may work with a number of partners and affiliates whose sites are linked with THE APPLICATION. Company does not control Independent TPS with whICH is it not directly contracted (“ITPS”). COMPANY does not guarantee and is not responsible for the availability, quality, use, security, privacy, or accuracy of ITPS (and web sites accessed via the ITPS) or their content, products or services. Company is not responsible for webcasting or any other form of transmission received from any ITPS. Company is providing these links to you only as a convenience, and the inclusion of any link does not imply endorsement, authorization, sponsorship, or affiliation with respect to ITPS, their owners or providers. You acknowledge that you bear all risks associated with access to and use of content provided on an ITPS and agree that neither Company nor its affiliates, partners, agents, subcontracts, officer, directors, or employees are responsible for any loss or damage of any sort you may incur from dealing with a third party. You should contact the site administrator for the applicable ITPS if you have any concerns regarding such links or the content located on any such ITPS.
8.5 Company cautions you to make sure you understand these risks before retrieving, using, relying upon, or purchasing anything via the Internet. You agree that under no circumstances will you hold Company or its affiliates or agents liable for any loss or damage caused by use of or reliance on any content, goods, or services available on other sites. This provision shall also apply in full to the content and any hyperlinks in the APPLICATION, which are the exclusive responsibility of the Provider.
8.6 LICENSOR EXPRESSLY DISCLAIMS, AND YOU AGREE, THAT LICENSOR SHALL HAVE NO LIABILITY OF ANY KIND FOR ANY INDEPENDENT THIRD PARTY PRODUCT OR SERVICE OR PROVIDER CONTENT.
8.7 Company and its licensors have no liability with respect to you or any other person, for any loss or damage suffered as a result of a failure or refusal by Company to respond to a message meant for Company by letter, fax, or e-mail, nor for delayed delivery, receipt, consideration or acceptance of such messages by Company.
8.8 YOU ARE RESPONSIBLE FOR YOUR connection to the Internet and the necessary hardware and software TO RUN THE APPLICATION. COMPANY is in no way responsible for hardware or software failure and/or interruption of YOUR INTERNET connection.
8.9 COMPANY WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, UNFORESEEABLE, OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, LOSS OF ANTICIPATED PROFITS, LOSS OF BUSINESS OR REVENUE, LOSS OF OPERATIONAL SAVINGS OR COSTS, LOSS OF CONFIDENTIAL OR OTHER INFORMATION OR GOODWILL, LOSS OF PRIVACY, SERVICE OR BUSINESS INTERRUPTION, LOSS OF INFORMATION OR DATA, WORK STOPPAGE, FAILURE TO MEET ANY DUTY INCLUDING OF GOOD FAITH OR OF REASONABLE CARE, PERSONAL INJURY, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE SERVICES, OR ANY AND ALL OTHER PERSONAL OR COMMERCIAL DAMAGES OR LOSSES ARISING FROM OR IN CONNECTION WITH THE USE OR INABILITY TO USE THE APPLICATION, OR THE PROVISION OR FAILURE TO PROVIDE ANY SUPPORT SERVICES, OR OTHERWISE UNDER OR IN CONNECTION WITH ANY PROVISION IN THIS AGREEMENT, WHETHER OR NOT DUE TO ANY DEFECTS THEREIN, AND WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT LICENSOR HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
8.10 Limitation of Liability. IN NO EVENT SHALL COMPANY’S AND ITS PRESENT AND FORMER SUBSIDIARIES’, AFFILIATES’, DIRECTORS’, OFFICERS’, EMPLOYEES’, AND AGENTS’ AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THE APPLICATION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE LIMITS OF COMPANY’S AVAILABLE INSURANCE COVERAGE.
- SOLE AND EXCLUSIVE REMEDY.
- Parties agree that, in the event of a breach by Company of this Agreement and any relevant warranties, the End User may be entitled to liquidated damages in the amount of one hundred ($100) dollars.
- The Parties agree that, regardless of the failure of the sole and exclusive remedy, the Company will not be liable for any consequential damages of whatsoever kind or nature, as stated in Section 8.10, above.
THE PROVISIONS OF THIS SECTION STATE THE SOLE AND EXCLUSIVE REMEDIES AVAILABLE TO YOU, AND COMPANY'S SOLE AND EXCLUSIVE LIABILITY, FOR ANY CLAIM REGARDING THE PERFORMANCE OR NONPERFORMANCE OF THE COMPANY OR APPLICATION.
- The limitations of liability set forth in this Agreement reflect a deliberate and bargained for allocation of risks between you and Company and constitutes the basis of the parties' bargain, without which you and COMPANY would not have agreed to the EULA.
10.1 You will indemnify and hold harmless Company and its officers, directors, employees, agents, franchisees, affiliates, service providers and suppliers, subcontractors, licensees, and all other involved or associate persons (“Indemnified Parties”) from and against any claims, disputes, demands, liabilities, damages, losses, and costs and expenses, including, without limitation, settlement costs and reasonable attorneys’ fees arising out of or in any way connected with (i) your use of the Applicationin a manner not permitted by this Agreement, not permitted by the Company, or not in conformance with the Company’s written requirements, (ii) your access to or use of the ITPS and Third Party Software and Services, (iii) your breach of any warranties or representations made by you hereunder, (iv) the acts or omissions of you, your employees, and agents, and all persons or entities who have access through you to the Apllication, or (v) relating to an infringement of any right resulting in any way from the use of the Application with other software or materials not licensed to you by or not approved by the Company. We reserve the right to assume control of the defense of any third-party claim that is subject to indemnification by you, in which event you will cooperate with us in asserting any available defenses.
10.2 Indemnity of Right of Use. The Company shall defend or settle, at its own expense, any claim made against you that the Application, in whole or in part, infringes any United States or Belgian patent, published patent application, copyright, trade secret, or other proprietary right, and the Company shall indemnify and hold you harmless against any final judgment, including an award of attorneys' fees, that may be awarded by a court against you as a result of the foregoing; provided, however, you shall (a) give the Company written notice of such claim within thirty (30) days of the date you first know or should know of the claim and (b) provide the Company with reasonable cooperation and all information in your possession related to said claim. The Company shall have sole control of the defense of such claims and all related settlement negotiations. Reasonable out of pocket expenses incurred by you in providing assistance to the Company in defense of such a claim shall be reimbursed by the Company.
10.3 Remedy for Claimed Infringement. If a claim is made that the Application, or any portion thereof, infringes any United States or Belgian patent, copyright, trade secret, or other proprietary right, Company, at its sole expense and option, shall either: (i) procure for you the right to exercise the rights and licenses granted hereunder with respect to the Application; (ii) modify the Application to make it non infringing; (iii) replace the Application with equivalent but non infringing software of like functionality; or (iv) terminate this Agreement and refund any fees paid, subject to the limitations of liability in Section 12.
10.4 Limitation of Indemnity. The Company shall have no liability to you or your assignees, transferees, or sublicensees for any claim of infringement that is based upon (i) any modification (by you) of Application, (ii) combination of the Application with software not supplied by or authorized by the Company if such claim would have been avoided but for such combination, or (iii) your use of the Application after the Company notifies you to cease use due to an infringement claim.
Any notices or other communications provided by Company under the EULA, including those regarding modifications to the EULA, will be given via email or through the Application. The date of receipt on the message will be deemed the date on which such notice is transmitted. Notices provided by you to the Company should be sent via email to firstname.lastname@example.org or by certified mail at the address listed at the bottom of this Agreement.
- GOVERNING LAW & JURISDICTION
12.1 This EULA shall be governed by and construed in accordance with Belgian law.
12.2 The competent courts of Limburg (Belgium), division Hasselt, shall have exclusive jurisdiction to adjudicate any dispute arising under or in connection with this EULA.
- NO ASSIGNMENT; NO TRANSFER
Except as permitted elsewhere in this EULA, you agree not to transfer or assign the Application or this Agreement to another party without the prior written consent of Company.
- TERM AND TERMINATION
14.1 This EULA shall come into force upon the Effective Date and shall be effective until terminated.
14.2 Company may terminate the EULA with immediate effect, without any court intervention being required or indemnity payment being due, if the End User fails to comply with the terms of this EULA.
14.3 If the EULA is terminated for any reason by either party, the End User agrees to promptly discontinue use of and destroy all of the copies of the Application, if any. Any terms of this EULA that by their nature extend beyond termination of this EULA remain in effect until fulfilled, and apply to both parties' respective successors and assignees.
- IMPORT/EXPORT RESTRICTIONS
You agree not to import or export the Application (or any copies thereof), or any products utilizing Application in violation of any applicable laws or regulations of the United States, Belgium or the country to which you have imported or exported. You agree to indemnify Company from liability if you violate any such laws or regulations.
In the event any provision of this Agreement is found to be invalid, illegal or unenforceable, the validity, legality and enforceability of any of the remaining provisions shall not in any way be affected or impaired.
- ENTIRE AGREEMENT
You further agree that this Agreement is the complete and exclusive statement of the agreement between you and Licensor, which supersedes all proposals or prior agreements, oral or written, and all other communications between you and Licensor relating to the subject matter of this Agreement. This Agreement may only be modified by a written agreement signed by both you and an authorized representative of Licensor.
By downloading, installing or using any part of this Application(s), you indicate that you have read this Agreement, understand it, and agree to be bound by its Terms.
- FORCE MAJEURE
Licensor shall not be liable hereunder for any failure or delay in the performance of its obligations under this Agreement if such failure or delay is on account of causes beyond its control, including labor disputes, civil commotion, war, fires, floods, inclement weather, governmental regulations or controls, casualty, government authority, strikes, or acts of God, in which event Licensor shall be excused from its obligations for the period of the delay and for a reasonable time thereafter.
PLEASE CONTACT US IF YOU HAVE ANY QUESTIONS ABOUT THESE TERMS.
Cubigo, International NV
Kempische Steenweg 303, bus 103