This agreement is by and between Informed Health Technologies, Inc. (“Company”) and you, the user (“You”, “User”, “Tester”), together the “Parties.”
Test Period: 12 months
Recital: Company wishes to expedite development of Company products and services (the “Medical Hub®“ or “Software”) and Tester is willing to use the Medical Hub® to provide insight and feedback to guide Company development of the Medical Hub®, together the “Alpha v.1 Test Program.”
Definitions: “Access” means the method of obtaining the Alpha v.1 Test Program software and any information regarding the method of obtaining the Alpha v.1 Test Program software.
“Company Employee” means any person currently employed by Company.
“Company Invitee” means any person directly invited by a Company Employee to become one of an initial group of twenty individuals selected to participate in the Alpha v.1 Test Program.
Company grants Tester a nonexclusive, non-transferable and terminable right solely to test and evaluate the Software, subject to the restrictions, limitations and obligations in this Agreement. All discussions regarding the use and operation of the Software are restricted to Company. Except as stated below, Tester shall not, without the express written consent of Company, (a) sublicense, sell, lease, rent or otherwise transfer the Software; (b) decompile, disassemble, modify or reverse engineer the Software; (c) create derivative works based on the Software; (d) allow use of the Software or provide Access to third parties; (e) use or allow use of the Software after the termination of this Agreement; (f) reveal the results of any benchmark tests relating to the Software to any third party; or (g) make copies of the Software. This Agreement does not include any consulting services by Company.
IF YOU ARE NOT A COMPANY INVITEE, YOU ARE NOT AUTHORIZED TO PARTICIPATE IN THIS ALPHA V.1 TEST PROGRAM.
2. Testing. Tester shall perform testing and evaluation of the Software and provide Company with problem reports identifying any errors or malfunctions that Tester discovers, along with comments, criticisms and suggestions for changes. Tester shall also complete and return periodic user surveys to be provided by Company. Company will designate Company Invitees. Each Company Invitee shall identify and recruit at least one family member or friend involved in the caregiving of one person who also agrees to participate in this Alpha v.1 Test Program (the “Group”) in order to test and evaluate all collaborative and group functions of the Software. If a Tester is joining an existing Group with at least two other people, then this condition will have been met without further action by the Tester. A Company Invitee may not provide Access to any third party. Each Company Invitee will sign a copy of this agreement before using the Software as part of the Alpha v.1 Test Program.
3. Ownership of Software. All right, title and interest in the Software, all copies thereof, and any associated documentation are and shall remain the property of Company and its licensors.
4. Confidentiality. Tester understands that the Software is proprietary information of Company and includes Company trade secrets and other confidential information. Tester agrees to secure and protect the Software, including all copies and associated documentation, with at least the same degree of care as Tester affords its own trade secrets and confidential information. Tester shall not, without the prior written consent of Company, reveal any information regarding the Software to any third party. Tester acknowledges that (i) the restrictions, limitations and obligations in this Agreement are reasonable and necessary to protect Company’s legitimate interests, (ii) in the event of a violation of these restrictions, remedies at law will be inadequate and such violation will cause irreparable damages to Company within a short period of time, and (iii) the Company will be entitled to injunctive relief against each and every such violation. The rights and obligations of this Section 4 shall survive the termination of this Agreement.
5. Disclaimer of Warranty. The Software is provided as a preliminary, non-production, engineering version for purposes of testing, only. As such, THE SOFTWARE IS PROVIDED TO TESTER ON AN “AS IS” BASIS. COMPANY MAKES AND TESTER RECEIVES NO WARRANTY, EXPRESS OR IMPLIED, AND ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NONINFRINGEMENT ARE EXPRESSLY EXCLUDED. COMPANY SHALL HAVE NO LIABILITY FOR CONSEQUENTIAL, EXEMPLARY, OR INCIDENTAL DAMAGES EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. COMPANY’S LIABILITY FOR ANY CLAIM RELATED TO THE SOFTWARE OR THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT TESTER PAID THEREFOR.
6. Termination. Unless otherwise extended in writing by Company, this Agreement shall terminate upon the end of the Test Period. Company and Tester shall each have the right to earlier terminate this Agreement, including all rights granted hereunder, at any time. Within five (5) days after termination of this Agreement, Tester shall retain access to their account with features reduced to the caregiver level. If Tester completes the Alpha v.1 Test Program through the end of the Test Period, Tester may choose to upgrade to a Member level service at the discounted rate of $99 annually and in doing so Tester shall be a Founder Circle Member. If Tester terminates this Agreement prior to completion of the Test Period, Tester may upgrade to a Member level service at the price then in effect.
7. General. Tester acknowledges that it has read this Agreement, understands it, and agrees to be bound by its terms, and further agrees that this is the complete and exclusive statement of the agreement between the parties, which supersedes and merges all prior proposals, understandings and all other agreements, oral and written, between the parties relating to the subject hereof. This Agreement may not be modified or altered except in a writing executed by both parties. The laws of the State of California shall govern this Agreement, exclusive of conflict of laws rules, and jurisdiction for any lawsuit arising out of this Agreement shall be exclusively in the applicable federal, state and local courts in Yolo County, California. If any provision of this Agreement is found invalid under any applicable law, it is to that extent to be deemed omitted. Tester may not assign or sublicense this Agreement, in whole or in part, without the prior written consent of Company. The prevailing party in any action related to this Agreement shall have the right to recover its reasonable expenses including attorney's fees. The waiver or failure of Company to exercise, in any respect, any right provided for herein shall not be deemed a waiver of any further right hereunder.
The IHT Medical Hub® is a registered trademark and Informed Health Technologies is a trade name of Company. The Software and related documentation are protected by United States and international copyright laws. Unpublished © 2020 Company, Inc. All rights reserved.
I, THE TESTER HAVE READ THE FOREGOING TERMS OF THIS LICENSE AND I INDICATE THAT I AM A COMPANY INVITEE AND THAT IT IS MY INTENTION TO BE LEGALLY BOUND BY THIS AGREEMENT AND TO USE THE SOFTWARE FOR MY USE IN ACCORDANCE WITH THE LICENSE TERMS