Myasthenia Gravis Foundation of America myMG Smartphone App End User License Agreement
Date of Last Revision: 11-19-2012
Preamble. PLEASE READ THIS END USER Smartphone AppLICATION SOFTWARE LICENSE AGREEMENT (“LICENSE”) CAREFULLY BEFORE CLICKING THE “ACCEPT” BUTTON OR DOWNLOADING OR USING THE MGFA myMG smartphone application (“APPLICATION”) or other computer devise and/or on-line application substantively performing the same function ACCOMPANYING THIS LICENSE. BY CLICKING THE “ACCEPT” BUTTON OR DOWNLOADING OR USING THE APPLICATION, YOU ARE ENTERING INTO AND AGREEING TO BE BOUND BY THE TERMS OF THIS LICENSE AND THE TERMS AND CONDITIONS OF THE Myasthenia Gravis Foundation of America Privacy and Security Policy (“PRIVACY STATEMENT”) LOCATED AT (http://myasthenia.org/) AND INCORPORATED HEREIN BY THIS REFERENCE. IF YOU DO NOT AGREE TO THE TERMS OF THIS LICENSE, DO NOT CLICK THE “ACCEPT” BUTTON OR DOWNLOAD OR USE THE APPLICATION.
1. General. This License is an agreement between You (“You”), the end user of the Software, also used in the form “Your” where applicable, and Myasthenia Gravis Foundation of America (“MGFA”) and not the provider of the Application . The Application shall refer to and consist of the following: (i) the mobile software application related to the Application and accompanying this License, including, without limitation, any software code, scripts, interfaces, graphics, displays, text, documentation and other components; (ii) any updates, modifications or enhancements to the items listed in subsection (i); and (iii) any specific MGFA website the Application directs you to via any browser located on your Device (“Device”). A Device is a single Smartphone product owned and controlled by You. A Smartphone is provided by a Vendor (“Vendor”) with an Apple iOS or Android OS or other operating system that offers advanced capabilities, including personal computer-like functionality (PC-mobile handset convergence) or a palmtop computer. A Vendor is a Third Party. This Application is licensed, not sold, to You by MGFA for use strictly in accordance with the terms and conditions of this License. The Application transacted to You for use only under the terms of this license, unless the Application is 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. The licensor (“Application Provider”) reserves all rights not expressly granted to You.
2. License Grant and Restrictions on Use.
2.1 License Grant. MGFA grants You a revocable, non-exclusive, nontransferable license, a limited right to install and use the Application for your personal, non-commercial purposes on the Device and to access and use the Application on such Device. This License allows you to install and use one copy of the Application on a single Smartphone at a time.
2.2 Restrictions on Use. You shall use the Application strictly in accordance with the terms of this License and shall not: (i) decompile, reverse engineer, disassemble, attempt to derive the source code of, decrypt the Application or create derivative works of the Application, any updates, or any part thereof; copy (except as expressly permitted by this license), (ii) make any modification, adaptation, improvement, enhancement, translation or derivative work from the Application; (iii) violate any applicable laws, rules or regulations in connection with Your access or use of the Application; (iv) remove, alter or obscure any proprietary notice (including any notice of copyright or trademark) of MGFA or its affiliates, partners, suppliers or the licensors of the Application; (v) use the Application for any revenue generating endeavor, commercial enterprise, or other purpose for which it is not designed or intended; (vi) install, use or permit the Application to exist on more than one Device at a time or on any other mobile device or computer; (vii) distribute the Application to multiple Devices; (viii) make the Application available over a network or other environment permitting access or use by multiple Devices or users at the same time; (ix) use the Application for creating a product, service or software that is, directly or indirectly, competitive with or in any way a substitute for any services, product or software offered by MFGA; (x) use the Application to send automated queries to any website or to send any unsolicited commercial e -mail; or (xi) use any proprietary information or interfaces of MGFA or other intellectual property of MGFA in the design, development, manufacture, licensing or distribution of any applications, accessories or devices for use with the Application. Any attempt to do so is a violation of the rights of the Application Provider. If You breach this restriction, You may be subject to prosecution and damages, resulting in severe civil and criminal penalties. MGFA reserves the right to prosecute any such violation to the maximum extent possible. The terms of this License will govern any software upgrades provided by MGFA that replace and/or supplement the original Application, unless such upgrade is accompanied by a separate license in which case the terms of that license will govern.
2.3 Third Party Software. You acknowledge that the Application may require software from Vendors or may utilize or include third party software that is subject to open source, to operate, and that you are responsible for obtaining any such software from such Vendor (“Vendor Software”) and complying with any conditions, license terms or other requirements from such Vendor on use and/or distribution of such Vendor Software (“Vendor License Terms”). You represent and warrant to MGFA that (i) You have read such Vendor License Terms, (ii) that Your use of the Vendor Software will be in compliance with any such Vendor License Terms, (iii) that You agree to only use such Vendor Software with digital electronic devices and/or operating systems provided or authorized by such Vendor, and (iv) You hereby agree to indemnify, defend and hold harmless MGFA from any claims against MGFA related to your breach of these restrictions or such Vendor License Terms. You also acknowledge that Vendor may make changes to the Vendor Software that may be incompatible with the Application, and that the Application may not work 100% correctly with the Vendor Software. In the event of a conflict between the terms of this License and the terms of such open source or third party licenses, the terms of the open source or third party licenses shall control with regard to Your use of the relevant Third Party Software. In no event, shall the Application or components thereof be deemed to be “open source” or “publically available” software.
2.4 Maintenance and Support. Because the Application is free, MGFA does not provide any maintenance or support for it. You agree and acknowledge that, except as required by applicable law, MGFA has no obligation to provide any maintenance and support services with respect to the Application. You further agree and acknowledge that the Vendor has no obligation whatsoever to furnish any maintenance and support services with respect to the Application.
3. Intellectual Property Rights.
3.1 Rights to Application. You acknowledge and agree that the Application and all copyrights, patents, trademarks, trade secrets and other intellectual property rights associated therewith are, and shall remain, the property of MGFA and its licensors. Furthermore, You acknowledge and agree that the source and object code of the Applications and the format, directories, queries, algorithms, structure and organization of the Application are the intellectual property and proprietary and confidential information of MGFA and its affiliates, licensors and suppliers. Except as expressly stated in this License, You are not granted any intellectual property rights in or to the Application by implication, estoppel or other legal theory, and all rights in and to the Application not expressly granted in this License are hereby reserved and retained by MGFA.
3.2 Infringement Acknowledgement. You and MGFA acknowledge and agree that, in the event of a third party claim that the Application or Your possession or use of the Application infringes any third party’s intellectual property rights, You (and not MGFA or Vendor) will be responsible for the investigation, defense, settlement and discharge of any such claim of intellectual property infringement. You will, however, promptly notify MGFA in writing of such a claim.
4. Promotional Software or Materials. Notwithstanding other sections of this License, Application software labeled or otherwise provided to you on a promotional basis may only be used for demonstration, testing and evaluation purposes and may not be resold or transferred.
5. Restriction on Transfer. You may not rent, lease, lend, sublicense or transfer the Application, this License or any of the rights granted hereunder. Any attempted transfer in contravention of this provision shall be null and void and of no force or effect.
6. Use of Information; Security.
6.1 Consent to Collect and Use Information.
You hereby authorize and consent to the collection, storage and use, by MGFA and its affiliates, partners and agents, of any information and data related to or derived from Your use of the Application, and any information or data that You provide to MGFA and its affiliates, partners and licensors (“Information”) as set forth in Privacy Statement. You represent that You shall comply with the terms and conditions of the Privacy Statement, which sets forth and describes the practices of MGFA with respect to the collection, use and disclosure of Information in connection with Your use of the Application. MGFA reserves the right to change the provisions of its Privacy Statement at any time and from time to time at its sole discretion. MGFA will post any changes to its Privacy Statement at the web address set forth in the preamble to this License. Your use of the Application following the posting of such changes to the Privacy Statement will constitute Your acceptance of any such changes.
Without limiting the generality of the foregoing, the Information shall include, without limitation, the following types of information and data, in an aggregate (not user level) form: patterns, data, and suggestions based on user actions. Except for personally identifiable information for which You do not authorize disclosure, the Information will be treated as being non-confidential and nonproprietary, and MGFA assumes no obligation to protect confidential or proprietary information from disclosure and will be free to reproduce, use, and distribute the Information to others without restriction. MGFA will also be free to use any ideas, concepts, know-how or techniques contained in the Information for any purpose whatsoever including, without limitation, developing, manufacturing and marketing products and services incorporating such Information.
Further, MGFA’s analytics service provider may collect the following Data (“Data”): your device's Unique Device Identifier (UDID), technical information about the Application (such as version number), Application session information, your preferred language, and your preferred time zone. This Data is gathered periodically to facilitate the provision of software updates, product support and other services to you (if any) related to Application. MGFA may use this Data, as long as it is in a form that does not personally identify You, to improve our products or to provide services or technologies to You. The Data is then aggregated and used by MGFA to measure the use and performance of the Application. MGFA may publicly disclose the aggregate Data. MGFA will not share the UDID or any other individual Application user data with third parties, except in the case of a court order, subpoena, or a lawful government demand.
6.2 Security. Electronic communications using the Application may not always be encrypted. You acknowledge that there is a risk that Data or Information, including email, electronic communications, and personal data, may be accessed by unauthorized third parties when communicated between You and MGFA or between You and other parties.
7. Term and Termination.
7.1 Term. This License shall be effective until terminated.
7.2 Termination. MGFA may, in its sole and absolute discretion, at any time and for any or no reason, suspend or terminate this License and the rights afforded to You hereunder with or without prior notice. Furthermore, if You fail to comply with any terms and conditions of this License, then this License and any rights afforded to You hereunder shall terminate automatically, without any notice or other action by MGFA. Upon the termination of this License, You shall cease all use of the Application and uninstall the Application and destroy all copies, full or partial, of the Application.
8. Disclaimer of Warranties. YOU ACKNOWLEDGE AND AGREE THAT THE APPLICATION IS PROVIDED ON AN “AS IS’ AND “AS AVAILABLE” BASIS, AND THAT YOUR USE OF OR RELIANCE UPON THE APPLICATION AND ANY THIRD PARTY CONTENT AND SERVICES ACCESSED THEREBY IS AT YOUR SOLE RISK AND DISCRETION. MGFA AND ITS AFFILIATES, PARTNERS, SUPPLIERS AND LICENSORS HEREBY DISCLAIM ANY AND ALL REPRESENTATIONS, WARRANTIES AND GUARANTIES REGARDING THE APPLICATION AND THIRD PARTY CONTENT AND SERVICES, WHETHER EXPRESS, IMPLIED OR STATUTORY, AND INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. FURTHERMORE, MGFA AND ITS AFFILIATES, PARTNERS, SUPPLIERS AND LICENSORS MAKE NO WARRANTY THAT (i) THE APPLICATION OR THIRD PARTY CONTENT AND SERVICES WILL MEET YOUR REQUIREMENTS; (ii) THE APPLICATION OR THIRD PARTY CONTENT AND SERVICES WILL BE UNINTERRUPTED, ACCURATE, RELIABLE, TIMELY, SECURE OR ERROR-FREE; (iii) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION OR OTHER MATERIAL ACCESSED OR OBTAINED BY YOU THROUGH THE APPLICATION WILL BE AS REPRESENTED OR MEET YOUR EXPECTATIONS; OR (iv) ANY ERRORS IN THE APPLICATION OR THIRD PARTY CONTENT AND SERVICES WILL BE CORRECTED. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM MGFA OR FROM THE APPLICATION SHALL CREATE ANY REPRESENTATION, WARRANTY, OR GUARANTY. FURTHERMORE, YOU ACKNOWLEDGE THAT MGFA HAS NO OBLIGATION TO CORRECT ANY ERRORS OR OTHERWISE SUPPORT OR MAINTAIN THE APPLICATION.
9. Limitation Of Liability. TO THE MAXIMUM EXTENT NOT PROHIBITED BY LAW, IN NO EVENT AND UNDER NO CIRCUMSTANCES SHALL MGFA OR ITS AFFILIATES, PARTNERS, SUPPLIERS OR LICENSORS BE LIABLE FOR PERSONAL INJURY, OR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES ARISING OUT OF OR IN CONNECTION WITH YOUR ACCESS OR USE OF OR INABILITY TO ACCESS OR USE THE APPLICATION AND ANY THIRD PARTY CONTENT AND SERVICES, WHETHER OR NOT THE DAMAGES WERE FORESEEABLE AND WHETHER OR NOT MGFA WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, MGFA’S AGGREGATE LIABILITY TO YOU (WHETHER UNDER CONTRACT, TORT, STATUTE OR OTHERWISE) SHALL NOT EXCEED THE AMOUNT OF FIFTY DOLLARS ($50.00). THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE. AND EVEN IF APPLICATION PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU.
10. Indemnification. You shall indemnify, defend and hold harmless MGFA and its affiliates, partners, suppliers and licensors, and each of their respective officers, directors, agents and employees (the “Indemnified Parties”) from and against any claim, proceeding, loss, damage, fine, penalty, interest and expense (including, without limitation, fees for attorneys and other professional advisors) arising out of or in connection with the following: (i) Your access to or use of the Application or Vendor Software; (ii) Your breach of this License or the Vendor App Store Terms; (iii) Your violation of law; (iv) Your negligence or willful misconduct; or (v) Your violation of the rights of a third party, including the infringement by You of any intellectual property or misappropriation of any proprietary right or trade secret of any person or entity. Each of these individuals or entities shall have the right to assert and enforce these provisions directly against You on its own. These obligations will survive any termination of the License.
11. Compatibility. Neither MGFA nor Vendor warrants that the Application will be compatible or interoperable with Your Device or any other piece of hardware, software, equipment or device installed on or used in connection with your Device. Furthermore, You acknowledge that compatibility and interoperability problems can cause the performance of your Device to diminish or fail completely, and may result in permanent the damage to Your Device, loss of the data located on Your Device, and corruption of the software and files located on Your Device. You acknowledge and agree that MGFA and its affiliates, partners, suppliers and licensors shall have no liability to You for any losses suffered resulting from or arising in connection with compatibility or interoperability problems.
12.1 Governing Law. This License shall be deemed to take place in the State of New York and shall be governed by and construed in accordance with the laws of the State of New York excluding its conflicts of law principles. Any disputes arising from this License shall be adjudicated in the federal, superior or state courts having jurisdiction over New York County, New York, and You waive any jurisdictional, venue, or inconvenient forum objections to such courts. This License shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the Application of which is expressly excluded. Any cause of action or claim You may have with respect to the Application must be commenced within one (1) year after the claim or cause of action arises or such claim or cause of action is barred.
12.2 Contact Information. Please direct any questions, complaints or claims related to this License or Your use of the Application to the following:
Address: Obtainable from Customer Support line.
Phone: Customer Support: (800) 541-5454
12.3 Severability. If any provision of this License is held to be invalid or unenforceable with respect to a party, the remainder of this License, or the application of such provision to persons other than those to whom it is held invalid or unenforceable shall not be affected and each remaining provision of this License shall be valid and enforceable to the fullest extent permitted by law.
12.4 Waiver. Except as provided herein, the failure to exercise a right or require performance of an obligation under this License shall not affect a party’s ability to exercise such right or require such performance at any time thereafter nor shall the waiver of a breach constitute waiver of any subsequent breach.
12.5 Export Control. You may not use or otherwise export or re-export the Application except as authorized by United States law and the laws of the jurisdiction(s) in which the Application was obtained. You represent and warrant that You are not (i) located in any 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, or (ii) listed on any U.S. Government list of prohibited or restricted parties including the Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. You also agree that You will not use the Application for any purposes prohibited by United States law.
12.6 Modification or Amendment. MGFA may modify or amend the terms of this License by posting a copy of the modified or amended License on the MGFA website, at: (http://www.myasthenia.org/). You will be deemed to have agreed to any such modification or amendment by Your decision to continue using the Application following the date in which the modified or amended License is posted.
12.7 Survival. The following sections of this License and any other provisions of this License which by their express language or by their context are intended to survive the termination of this License shall survive such termination: 1, 2.2, 2.3, 3, 5, 6, 7, 8, 9, 10, 11, and 12.
12.8 Third Party Beneficiaries. Vendor and Vendor’s subsidiaries are express third party beneficiaries of this License and shall have the right to enforce this License against you in such capacity. Except as set forth in this Section 12.8, nothing contained in this License is intended or shall be construed to confer upon any person (other than the parties hereto) any rights, benefits or remedies of any kind or character, or to create any obligations or liabilities of a party to any such person.
12.9 Assignment. You shall not assign this License or any rights or obligations herein without the prior written consent of MGFA and any attempted assignment in contravention of this provision shall be null and void and of no force or effect.
12.10 Entire Agreement. This License including the documents incorporated herein by reference constitute the entire agreement with respect to the use of the Application licensed hereunder and supersedes all prior or contemporaneous understandings regarding such subject matter.