THIS PRE-RELEASE SOFTWARE LICENSE AGREEMENT (THE "AGREEMENT") GOVERNS YOUR USE OF THE PRE-RELEASE SOFTWARE (DEFINED BELOW) PROVIDED BY APPLEY HEALTH INC., AND/OR ITS AFFILIATES ("APPLEY”). YOU WILL BE REQUIRED TO INDICATE YOUR AGREEMENT TO THIS AGREEMENT IN ORDER TO ACCESS OR DOWNLOAD THE PRE-RELEASE SOFTWARE OR TO COMPLETE THE INSTALLATION PROCESS FOR THE PRE-RELEASE SOFTWARE. BY CLICKING ON THE "CREATE COMPANY ACCOUNT" BUTTON, “CREATE ACCOUNT” BUTTON, OR “CREATE MEDICAL GROUP ACCOUNT” BUTTON (OR OTHER BUTTON OR MECHANISM DESIGNED TO ACKNOWLEDGE AGREEMENT TO THE TERMS OF THIS AGREEMENT), OR BY DOWNLOADING, ACCESSING OR INSTALLING THE PRERELEASE SOFTWARE, YOU ARE CONSENTING TO BE BOUND BY THIS AGREEMENT.
IF YOU AGREE TO THESE TERMS ON BEHALF OF A BUSINESS, YOU REPRESENT AND WARRANT THAT YOU HAVE THE POWER AND AUTHORITY TO BIND THAT BUSINESS TO THIS AGREEMENT, AND YOUR AGREEMENT TO THESE TERMS WILL BE TREATED AS THE AGREEMENT OF THE BUSINESS. IN THAT EVENT, "YOU" AND "YOUR" REFER HEREIN TO THAT BUSINESS.
IF YOU ARE UNWILLING TO AGREE TO THIS AGREEMENT, OR YOU DO NOT HAVE THE RIGHT, POWER AND AUTHORITY TO ACT ON BEHALF OF AND BIND YOUR BUSINESS, DO NOT CLICK ON THE BUTTON AND DO NOT INSTALL, DOWNLOAD, ACCESS, OR OTHERWISE USE THE PRE-RELEASE SOFTWARE.
“Pre-Release Software” means the pre-release version of the Appley product, service, technology identified on the sign-up page or login or landing page or invitation message (the “Cover Page”), whether labeled as alpha, beta, pre-release, preview or otherwise, provided to you by Appley under this Agreement. Pre-Release Software may include any enhancements, updates, upgrades, derivatives or bug fixes to such product, service or technology and any documentation, add-ons, templates, sample data sets or hardware devices as provided by Appley.
“Data” means the raw data you upload or submit to the Pre-Release Software and the processed result of the raw data generated by you using the Pre-Release Software.
“Feedback” means all suggestions, comments, opinions, code, input, ideas, reports, information, know-how or other feedback provided by you (whether in oral, electronic or written form) to Appley in connection with your use of the Pre-Release Software. Feedback does not include Data, unless submitted or communicated by you to Appley as part of Feedback.
“Internal Purposes” means internal business use with your systems, networks, devices and data for the purposes of internal testing, evaluation, and limited use of the Pre-Release Software in order to provide Feedback to Appley regarding the Pre-Release Software. Such use does not include use of your systems, networks or devices as part of services you provide for a third party's benefit.
Subject to your compliance with the terms and conditions of this Agreement, Appley grants you a non-exclusive, non-sublicensable, nontransferable, revocable, limited license during the term of the Agreement to use the Pre-Release Software at your principal office in a secure location, only in connection with and solely for the Internal Purposes.
Except as expressly authorized in this Agreement or by Appley, you will not, and will not permit any third party to: (i) access or use the Pre-Release Software for any other purposes than the Internal Purposes (including for any competitive analysis, commercial, professional, or other for-profit purposes); (ii) copy the Pre-Release Software (except as required to run the Pre-Release Software); (iii) modify, adapt, or create derivative works of the Pre-Release Software; (iv) rent, lease, loan, resell, transfer, sublicense or distribute the Pre-Release Software to any third party; (v) use or offer any functionality of the Pre-Release Software on a service provider, service bureau, hosted, software as a service, or time sharing basis; (vi) decompile, disassemble or reverse-engineer the Pre-Release Software or otherwise attempt to derive the Pre-Release Software source code, algorithms, methods or techniques used or embodied in the Pre-Release Software; (vii) disclose to any third party the results of any benchmark tests or other evaluation of the Pre-Release Software, or (viii) remove, alter, obscure, cover or change any trademark, copyright or other proprietary notices, labels or markings from or on the Pre-Release Software; (ix) interfere with or disrupt servers or networks connected to any website through which the Pre-Release Software provided; or (x) use the Pre-Release Software to collect or store personal data about any person or entity. Any consultant, contractor, or agent hired to perform services for you may operate the Pre-Release Software on your behalf under these terms and conditions, provided that: (a) you are responsible for ensuring that any such third party agrees to abide by and fully comply with the terms of this Agreement on the same basis as applicable to you; (b) such use is only in connection with your Internal Purposes; (c) such use does not represent or constitute an increase in the scope of the licenses provided hereunder; and (d) you remain fully liable for any and all acts or omissions by such third parties related to this Agreement. Any violation of this Section shall be a material breach of this Agreement subject to immediate termination of this Agreement for which no notice from Appley shall be required.
You agree to hold the Pre-Release Software (including all intellectual property rights therein, such as any patents, inventions, copyrights, design rights, trade secrets and know-how) and any related information (“Confidential Information”), whether in oral or written form, confidential. Confidential Information may include information relating to trade secrets, know-how, patents, inventions, features, functionalities, improvements, code, pricing, business strategies, product roadmaps, development plans, marketing materials, data sets, customer lists or other proprietary Appley and/or third-party information. You will hold such Confidential Information in strict confidence and not use or disclose the Confidential Information, in whole or in part, except as expressly permitted in this Agreement. You may disclose Confidential Information to your employees, but only to the extent they have a need to know to test the Pre-Release Software and you have advised them that such information is Confidential. You agree to instruct any such employees in advance who will have access to the Pre-Release Software that they must comply with the restrictions set forth in this Agreement. You shall have no obligation to maintain the confidentiality of any information which: (a) is or becomes publicly available without breach of this Agreement; (b) is rightfully received by you from a third party without an obligation of confidentiality and without breach of this Agreement; (c) is developed independently by you without access to or use of the Confidential Information; or (d) has been approved for release by written authorization of the party that owns the Confidential Information. You will notify immediately upon discovery of any unauthorized use or disclosure of Confidential Information or any other breach of this Agreement by you or your personnel, and will cooperate with Appley in every reasonable way to help Appley regain possession of the Confidential Information and prevent its further unauthorized use or disclosure. You acknowledge that any breach of its obligations under this Agreement with respect to the proprietary rights or Confidential Information will cause Appley irreparable injury for which there are inadequate remedies at law, and therefore, Appley will be entitled to equitable relief in addition to all other remedies provided by this Agreement or available at law or in equity.
This Agreement will be effective from the earlier of (a) the date it is accepted by you and (b) the date on which you first accessed the Pre-Release Software and shall continue until terminated. This Agreement may be terminated at any time by either party, with or without cause, effective upon notice of termination. This Agreement will terminate automatically upon the end of the Pre-Release Software project or upon commercial release (if any) of the Pre-Release Software, whichever is earlier. This is time-sensitive software, so it will stop functioning on the termination date. Upon termination, you will immediately cease all use of the Pre-Release Software and destroy the Pre-Release Software, or upon request by Appley, return to Appley the Pre-Release Software and other Confidential Information that are in your possession or control. Upon Appley’s request, you will certify in writing that you have returned or destroyed all copies of the Pre-Release Software and Confidential Information. Sections 1, 3, 4, 6, 7, 8, 9, 10, 11, 12, 17 and 18 will survive termination of this Agreement.
Appley, its suppliers and/or its licensors own all worldwide right, title and interest in and to the Pre-Release Software, including all worldwide patent rights (including patent applications and disclosures); copyright rights (including copyrights, copyright registration and copy rights with respect to computer software, software design, software code, software architecture, firmware, programming tools, graphic user interfaces, reports, dashboard, business rules, use cases, screens, alerts, notifications, drawings, specifications and databases); moral rights; trade secrets and other rights with respect to confidential or proprietary information; know-how; other rights with respect to inventions, discoveries, ideas, improvements, techniques, formulae, algorithms, processes, schematics, testing procedures, technical information and other technology; and any other intellectual and industrial property rights, whether or not subject to registration or protection; and all rights under any license or other arrangement with respect to the foregoing. Except as expressly stated in this Agreement, Appley does not grant you any intellectual property rights in the Pre-Release Software, and all right, title, and interest in and to all copies of the PreRelease Software not expressly granted remain with Appley, its suppliers and/or its licensors. The Pre-Release Software is copyrighted and patent pending, and protected by the laws of the United States and other countries, and international treaty provisions. You acknowledge that the PreRelease Software is licensed and not sold.
Appley, in its sole discretion, may or may not respond to your Feedback or promise to address all your Feedback in the development of future features or functionalities of the Pre-Release Software or any related or subsequent versions of such Pre-Release Software. In the event Appley uses your Feedback, you grant Appley an unrestricted, perpetual, worldwide, exclusive, transferable, irrevocable, sublicensable, royalty-free, fully paid-up license to use, copy, modify, create derivative works of, make, have made, distribute (through multiple tiers of distribution), publicly perform or display, import, export, sell, offer to sell, rent, or license copies of the Feedback as part of or in connection with any Appley product, service, technology, content, material, specification or documentation. You warrant that the Feedback does not infringe any copyright or trade secret of any third party, and that you have no knowledge of any patent of any third party that may be infringed by the Feedback (including any implementation thereof recommended by you). You further warrant that your Feedback is not subject to any license terms that would purport to require Appley to comply with any additional obligations with respect to any Appley product or service that incorporates your Feedback.
You hereby grant Appley a perpetual, irrevocable, non-exclusive, royalty-free, paid-up, worldwide, sublicensable license to use, access, transmit, host, store, and display the Data solely for the purpose of providing and improving the Pre-Release Software. Appley (or its sublicensees) may exercise such license for purposes of providing, maintaining, repairing, administering and improving the Pre-Release Software or in developing new products or services, including rights to extract, compile, aggregate, synthesize, use, and otherwise analyze all or any portion of the Data. You represent, warrant and agree that the Data and other materials you provide or make available to Appley will include only information relevant to the Pre-Release Software and the use thereof and will not include any personally identifiable information or any protected health data. You acknowledge and agree that you are solely responsible for all Data you upload or submit using the Pre-Release Software and for your conduct while using the Pre-Release Software. You acknowledge and agree that: (a) you own all rights, title and interest to the Data and other materials you provide; (b) you will evaluate and bear all risks associated with the accuracy, completeness, and use of any Data; (c) you are responsible for protecting and backing up the Data; (d) you are responsible for protecting the confidentiality of any Data; and (e) under no circumstances will Appley be liable in any way for any Data, including, but not limited to, any errors or omissions in any Data, or any loss or damages or any kind incurred as a result of your use, deletion, modification, or correction of any Data. Appley has no responsibility to store, protect, remove or delete any Data for you and shall have no liability for the deletion of or failure to store any Data.
THE PRE-RELEASE SOFTWARE IS PROVIDED “AS IS”. APPLEY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, QUIET ENJOYMENT AND WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE OR BY STATUTE OR IN LAW. APPLEY SPECIFICALLY DOES NOT WARRANT THAT THE PRE-RELEASE SOFTWARE WILL MEET YOUR REQUIREMENTS, THE OPERATION OR OUTPUT OF THE PRE-RELEASE SOFTWARE WILL BE ERROR-FREE, ACCURATE, RELIABLE, COMPLETE, UNINTERRUPTED OR IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. IF APPLICABLE LAW DOES NOT ALLOW FOR THE EXCLUSION OF SOME OR ALL OF THE ABOVE IMPLIED WARRANTIES, THE ABOVE EXCLUSIONS WILL ONLY APPLY TO THE EXTEN PERMITTED BY APPLICABLE LAW. APPLEY HEREBY DISCLAIMS ALL OTHER REPRESENTATIONS AND WARRANTIES. Appley is not obligated to support, update or upgrade the Pre-Release Software.
Appley has no obligations about any forward-looking statements made in connection with or in the course of providing the Pre-Release Software. Forward-looking statements are statements regarding future Appley events, product offerings, product performance, customer uses or the expected financial performance of Appley. Any such statements reflect current expectations and estimates based on factors currently known and that actual events or results could differ materially. Appley does not assume any obligation to update any forwardlooking statements made during the Pre-Release Software project. In addition, any information about our roadmap outlines our general product direction and is subject to change at any time without notice. It is for informational purposes only and shall not be incorporated into this Agreement or any contract or other commitment. Appley undertakes no obligation either to develop the features or functionality described in the forward-looking statement or to include any such feature or functionality in a future release, including those you are reviewing as a part of this Pre-Release Software. You expressly acknowledge that the Pre-Release Software has not been fully tested and may contain defects or deficiencies which may not be corrected by Appley, that the Pre-Release Software may undergo significant changes prior to release of the corresponding generally available final version.
IN NO EVENT WILL APPLEY BE LIABLE TO YOU FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING LOSS OF USE, DATA, OR PROFITS, BUSINESS INTERRUPTION, OR COSTS OF PROCURING SUBSTITUTE PRE-RELEASE SOFTWARE) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE USE OR PERFORMANCE OF THE PRE-RELEASE SOFTWARE, WHETHER SUCH LIABILITY ARISES FROM CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT APPLEY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. THE PARTIES HAVE AGREED THAT THESE LIMITATIONS WILL SURVIVE AND APPLY EVEN IF ANY REMEDY IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. WITHOUT LIMITING THE FOREGOING, APPLEY WILL HAVE NO LIABILITY OR RESPONSIBILITY FOR ANY BUSINESS INTERRUPTION OR LOSS OF DATA ARISING FROM THE AUTOMATIC TERMINATION OF THE LICENSE RIGHTS GRANTED HEREIN AND ANY ASSOCIATED CESSATION OF THE PRE-RELEASE SOFTWARE FUNCTIONS OR ANY UNANTICIPATED OR UNSCHEDULED DOWNTIME FOR ANY REASON OR ANY DELETION, CORRUPTION OR DAMAGE OF DATA ON OR THROUGH THE PRERELEASE SOFTWARE. APPLEY'S TOTAL CUMULATIVE LIABILITY TO YOU, FROM ALL CAUSES OF ACTION AND ALL THEORIES OF LIABILITY, WILL BE LIMITED TO AND WILL NOT EXCEED ONE HUNDRED DOLLARS ($100.00). BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW LIMITATION OR EXCLUSION OF CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. THESE LIMITATIONS ARE INDEPENDENT FROM ALL OTHER PROVISONS OF THIS AGREEMENT AND SHALL APPLY NOTWITHSTANDIG THE FAILURE OF ANY REMEDY PROVIDED HEREIN.
You agree to indemnify, defend, and hold harmless Appley, its affiliates, officers, directors, employees, or shareholders against any demand, suit, action or other claim by a third-party that is related to: (a) Your use of the Pre-Release Software; (b) Your use of any Data; or (c) Your breach of Your warranties, and all related damages, liabilities, costs and expenses (including reasonable attorneys' fees) awarded and arising out of any such claim. Your indemnification obligations hereunder are conditioned upon: (a) Appley providing prompt written notice thereof and reasonable cooperation, information, and assistance in connection therewith; and (b) You having sole control and authority to defend, settle or compromise such claim. Appley may elect to participate in the defense at its sole cost and expense. You will not enter into any settlement that adversely affects Appley Health’s rights or interest without its prior written approval, not to be unreasonably withheld. You shall not be responsible for any settlement by Appley that You do not approve in writing.
You will comply fully with all relevant export laws and regulations of the United States and any other country (“Export Laws”) where you use any of the Pre-Release Software. You represent and warrant that you are not (a) located in, or a resident or a national of, a restricted country; or (b) on any of the relevant U.S. Government Lists of prohibited persons, including but not limited to the Treasury Department’s List of Specially Designated Nationals and the Commerce Department’s List of Denied Persons or Entity List. You further represent and warrant that you shall not export, re-export, ship, transfer the Pre-Release Software to any restricted countries or restricted end users or use the Pre-Release Software in any restricted countries or for any purposes prohibited by the Export Laws, including, but not limited to, nuclear, chemical, missile or biological weapons related end uses. You understand that the requirements and restrictions of the Export Laws may vary depending on the specific Pre-Release Software and may change over time, and that, to determine the precise controls applicable to the Pre-Release Software, it is necessary to refer to the U.S. Export Administration Regulations and the U.S. Department of Treasury, Office of Foreign Assets Control Regulations.
You acknowledge that all Pre-Release Software and Confidential Information were developed entirely at private expense and that no part of the Pre-Release Software or Confidential Information was first produced in the performance of a Government contract. You agree that the Pre-Release Software and any derivatives thereof are "commercial items" as defined in 48 C.F.R. § 2.101, and if you are a U.S. Government agency or instrumentality or if you are providing all or any part of the Pre-Release Software or any derivatives thereof to the U.S. Government, such use, duplication, reproduction, release, modification, disclosure or transfer of this commercial product and data, is restricted in accordance with 48 C.F.R. § 12.211, 48 C.F.R. § 12.212, 48 C.F.R. § 227.7102-2, and 48 C.F.R. § 227.7202, as applicable. Consistent with 48 C.F.R. § 12.211, 48 C.F.R. § 12.212, 48 C.F.R. § 227.7102-1 through 48 C.F.R. § 227.7102-3, and 48 C.F.R. §§ 227.7202-1 through 227.7202-4, as applicable, the Pre-Release Software is licensed to U.S. Government end users (i) only as Commercial Items and (ii) with only those rights as are granted to all other users pursuant to this Agreement and any related agreement(s), as applicable. Accordingly, you will have no rights in the Pre-Release Software except as expressly agreed to in writing by you and Appley.
Appley reserve the right to modify or discontinue, temporarily or permanently, all or any part of the Pre-Release Software with or without notice.
For other than the U.S. Government as a party, this Agreement shall be governed by and construed in accordance with the laws of the State of Florida, as if performed wholly within the state and without giving effect to the principles of conflict of law rules of any jurisdiction or the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. Any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located in Tampa, Florida and the parties hereby consent to personal jurisdiction and venue therein.
All notices required or permitted under this Agreement hereto will be in writing and delivered in person, by confirmed facsimile transmission, by overnight delivery service, or by registered or certified mail, postage prepaid with return receipt requested, and in each instance will be deemed given upon receipt. You may not assign, delegate or transfer this Agreement, in whole or in part, by agreement, operation of law or otherwise. You acknowledge that Appley may assign, subcontract or delegate any of its rights or obligations under this Agreement. Any attempt to assign this Agreement other than as permitted herein shall be null and void. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties’ permitted successors and assigns. This Agreement along with any additional terms incorporated herein by reference constitute the complete and exclusive understanding and agreement between the parties relating only to the subject matter of the Pre-Release Software and Confidential Information and shall supersede any and all prior or contemporaneous agreements, communications and understandings, written or oral, relating to such subject matter. This Agreement is limited to the use of Pre-Release Software and Confidential Information and as such, this Agreement is separate from and shall have no effect on any other agreement you may have with Appley. Any waiver, modification or amendment of any provision of this Agreement will be effective only if in writing and signed by duly authorized representatives of both parties. All rights and remedies, whether conferred hereunder or by any other instrument or law, will be cumulative and may be exercised singularly or concurrently. The failure by either party to enforce any provisions of this Agreement will not constitute a waiver of any other right hereunder or of any subsequent enforcement of that or any other provisions. The terms and conditions stated herein are declared to be severable. If a court of competent jurisdiction holds any provision of this Agreement invalid or unenforceable, the remaining provisions of the Agreement will remain in full force and effect, and the provision affected will be construed so as to be enforceable to the maximum extent permissible by law.
Updated July 10, 2018