MOBILE APPLICATION AND WEB END USER LICENSE AGREEMENT
LAST UPDATED: 08NOV2023
This Mobile Application (“App”) and Web (“Web Portal”) End User License Agreement ("Agreement") is a binding agreement between you ("End User", "you" or “your”) and Valis Bioscience, Inc. ("Company" “Valis”). This Agreement governs your use of the Valis platform on both web and mobile interfaces, (including all related documentation, the "Application") owned by Valis and used by you. The Application and Web Portal is licensed, not sold, to you.
THIS AGREEMENT REQUIRES ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS, AND ALSO LIMIT THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE. SEE SECTION 12 (LIMITATION ON LIABILITY), SECTION 13 (LIMITATION ON TIME TO FILE CLAIMS), AND SECTION 19 (DISPUTE RESOLUTION), BELOW.
1. License Grant. Subject to the terms of this Agreement, Company grants you a limited, non-
exclusive, and nontransferable license to:
2. License Restrictions: Licensee shall not:
▪ copy the App or Web Portal, except as expressly permitted by this license;▪ modify, translate, adapt or otherwise create derivative works or improvements, whether or not patentable, of the App or Web Portal;
▪ reverse engineer, disassemble, decompile, decode or otherwise attempt to derive or gain access to the source code of the App or Web Portal, or any part thereof;
▪ remove, delete, alter or obscure any trademarks or any copyright, trademark, patent or other intellectual property or proprietary rights notices from the App or Web Portal, including any copy thereof;
▪ rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available the App or any features or functionality of the App or Web Portal, to any third party for any reason, including by making the App or Web Portal available on a network where it
is capable of being accessed by more than one device at any time; or
▪ remove, disable, circumvent, or otherwise create or implement any workaround to any copy protection, rights management, or security features in or protecting the App or Web Portal.
3. Reservation of Rights. You acknowledge and agree that the App or Web Poral is provided under license, and not sold, to you. You do not acquire any ownership interest in the App or Web Portal under this Agreement, or any other rights thereto other than to use the App or Web Portal in accordance with the license granted, and subject to all terms, conditions, and restrictions, under this Agreement. Company and its licensors and service providers reserve and shall retain their entire right, title, and interest in and to the App, including all copyrights, trademarks, and other intellectual property rights therein or relating thereto, except as expressly granted to you in this Agreement.
6. Geographic Restrictions. The Content and Services are based in the State of New York in the United States and provided for access and use by persons located in the United States and other countries. You acknowledge that you may not be able to access all or some of the Content and Services outside of the United States and that access thereto may not be legal by certain persons or in certain countries. If you access the Content and Services from outside the United States, you are responsible for compliance with local laws.
7. Updates. The Company may from time to time in its sole discretion develop and provide App and Web Portal updates, which may include upgrades, bug fixes, patches, and other error corrections and/or new features (collectively, including related documentation, “Updates”). Updates may also modify or delete in their entirety certain features and functionality. You agree that the Company has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality. Based on your Device settings when your Device is connected to the internet either:
▪ the App or Web Portal will automatically download and install all available Updates; or
▪ you may receive notice of or be prompted to download and install available Updates.
You shall promptly download and install all Updates and acknowledge and agree that the App or Web Portal or portions thereof may not properly operate should you fail to do so. You further agree that all Updates will be deemed part of the App or Web Portal and be subject to all terms and conditions of this Agreement.
8. Third Party Materials. The App or Web Portal may display, include, or make available third-party content (including data, information, Apps, and other products services and/or materials) or provide links to third-party websites or services, including through third-party advertising (“Third Party Materials”). You acknowledge and agree that the Company is not responsible for Third Party Materials, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect thereof. The company does not assume and will not have any liability or responsibility to you or any other person or entity for any Third-Party Materials. Third Party Materials and links thereto are provided solely as a convenience to you, and you access and use them entirely at your own risk and subject to such third parties’ terms and conditions.
9. Compliance with Laws; Product Not for Resale or Export. End User agrees to comply with all applicable laws and regulations in connection with its use of the App or Web Portal. You represent, warrant and covenant that you will use the App and Web Portal for your own business use only, and that you will not resell or export the App and Web Portal or any associated Content and Services. You may not use or otherwise export or re-export the App or Web Portal except as authorized by United States law and the laws of the jurisdiction in which the Licensed Application was obtained. But without limitation, the App may not be exported or re-exported (a) into any United States embargoed countries or (b) to anyone on the United States. Treasury Department's Specially Designated Nationals List or the U.S. Department of Commerce Denied Persons List or Entity List. By using the App or Web Portal, you represent and warrant that you are not located in any such country or on any such list. You also agree that you will not use these products for any purposes
prohibited by United States law, including, without limitation, the development, design, manufacture, or production of nuclear, missile, or chemical or biological weapons.
10. Term and Termination
▪ The term of the Agreement commences when you download or install the App and Web Portal or acknowledge your acceptance of this Agreement, whichever occurs first, and will continue in effect until terminated by you or the Company as set forth in this Section 10.
▪ You may terminate this Agreement by deleting the App and all copies thereof from your Device or request the Company delete the App from your Device or a Company-provisioned Device.
▪ The Company may terminate this Agreement at any time without notice if it ceases to support the App or Web Portal, which the Company may do in its sole discretion. In addition, this Agreement will terminate immediately and automatically without any notice if you violate any of the terms and conditions of this Agreement.
▪ Upon termination:
o all rights granted to you under this Agreement will also terminate; and
o you must cease all use of the App or Web Portal and delete all copies of the App from your Device and account, or the Company will delete all copies of the App from your Device or a Company-provisioned device.
▪ Termination will not limit any of the Company’s rights or remedies at law or in equity.
11. Disclaimer of Warranties. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT THE USE OF THE LICENSED APPLICATION OR WEB PORTAL IS AT YOUR SOLE RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE LICENSED APPLICATION AND ANY SERVICES PERFORMED OR PROVIDED BY THE LICENSED APPLICATION ARE PROVIDED "AS IS" AND “AS AVAILABLE,” WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND LICENSOR HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE LICENSED APPLICATION AND ANY SERVICES, EITHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, AND OF NONINFRINGEMENT OF THIRD-PARTY RIGHTS. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY THE LICENSOR OR ITS AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. SHOULD THE LICENSED APPLICATION OR SERVICES PROVE DEFECTIVE, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR, OR CORRECTION.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATION ON IMPLIED WARRANTIES OR THE LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SOME OR ALL OF THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO YOU.
12. Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL THE COMPANY OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, HAVE ANY LIABILITY ARISING FROM OR RELATED TO YOUR USE OF OR INABILITY TO USE THE APP OR WEB PORTAL OR THE CONTENT AND SERVICES FOR PERSONAL
INJURY, PROPERTY DAMAGE, LOST PROFITS, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OF DATA, LOSS OF GOODWILL, BUSINESS INTERRUPTION, COMPUTER FAILURE OR MALFUNCTION OR ANY OTHER CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES.
THE FOREGOING LIMITATIONS WILL APPLY WHETHER SUCH DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR THE COMPANY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY SOME OR ALL OF THE ABOVE LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU.
13. Limitation of Time to File Claims. ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE APP OR WEB PORTAL MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
14. Indemnification. You agree to indemnify, defend and hold harmless the Company and its officers, directors, employees, agents, affiliates, successors and assigns from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees, arising
from or relating to your use or misuse of the App or Web Portal or your breach of this Agreement. Furthermore, you agree that the Company assumes no responsibility for the content you submit or make available through this App or Web Portal.
15. United States Government Rights. The App or Web Portal is commercial computer software, as such term is defined in 48 C.F.R. §2.101. Commercial software is a computer software that is produced for sale or that serves commercial purposes. Commercial software can be proprietary software or free and open-source software. Accordingly, if you are an agency of the US Government or any contractor therefor, you receive only those rights with respect to the App as are granted to all other end users under license, in accordance with (a) 48 C.F.R. §227.7201 through 48 C.F.R. §227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. §12.212, with respect to all other US Government licensees and their contractors.
16. Severability. If any provision of this Agreement is illegal or unenforceable under applicable law, the remainder of the provision will be amended to achieve as closely as possible the effect of the original term and all other provisions of this Agreement will continue in full force and effect; provided, however, that if any fundamental term or provision of this Agreement , is invalid, illegal, or unenforceable, the remainder of this Agreement shall be unenforceable.
17. Equitable Remedies. You acknowledge and agree that your breach of breach or threatened breach of Section 2 (License Restrictions), Section 3 (Reservation of Rights), Section 4 (Collection and Use of Your Information), or Section 9 (Compliance with Laws; Product Not For Resale or Export) will cause irreparable harm to the Company for which for which money damages will be inadequate,
and that the Company shall be entitled to equitable or injunctive remedies, without waiving any other remedy available in law or equity, in the event of such breach or threatened breach.
18. Governing Law. This Agreement is governed by and construed in accordance with the internal laws of the State of New York without giving effect to any choice or conflict of law provision or rule.
(AVAILABLE AT https://www.valisbioscience.com/terms-of-use), WHICH INCLUDE AN AGREEMENT TO ARBITRATE CLAIMS ON AN INDIVIDUAL BASIS, RATHER THAN JURY TRIALS OR CLASS ACTIONS.
20. Equitable Relief. Notwithstanding anything to the contrary in Section 19, above, claims for equitable or injunctive relief, may be brought before any federal, state, or provincial court sitting in any state, province or jurisdiction having competent jurisdiction (which court need not be located in Nassau County, New York).
22. Waiver. No failure to exercise, and no delay in exercising, on the part of either party, any right or any power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or power hereunder preclude further exercise of that or any other right hereunder. In the event of a conflict between this Agreement and any other terms, the terms of this Agreement shall govern.
23. Survival. This Section 23 (Survival), and Section 2 (License Restrictions), Section 3 (Reservation of Rights), Section 4 (Collection and Use of Your Information), Section 8 (Third Party Materials), Section 9 (Compliance with Laws), Section 11 (Declaimer of Warranties), Section 12 (Limitation of Liability), Section 13 (Limitation of Time to File Claims), Section 14 (Indemnification), Section 17 (Equitable Remedies), Section 18 (Governing Law), Section 19 (Dispute Resolution), and Section 20 (Equitable Relief) shall survive the termination of these Terms or the agreement for the sale of product between you and us for any reason.
24. External Services. The Licensed Application may enable access to Licensor’s and/or third-party services and websites (collectively and individually, "External Services"). You agree to use the External Services at your sole risk. Licensor is not responsible for examining or evaluating the content or accuracy of any third-party External Services and shall not be liable for any such third- party External Services. Data displayed by any Licensed Application or External Service, including but not limited to financial, medical and location information, is for general informational purposes only and is not guaranteed by Licensor or its agents. You will not use the External Services in any manner that is inconsistent with the terms of this Agreement or that infringes the intellectual property rights of Licensor or any third party. You agree not to use the External Services to harass, abuse, stalk, threaten or defame any person or entity, and that Licensor is not responsible for any such use. External Services may not be available in all languages or in your Home Country and may not be appropriate or available for use in any location. To the extent you choose to use such External Services, you are solely responsible for compliance with any applicable laws. Licensor reserves the right to change, suspend, remove, disable, or impose access restrictions or limits on any External Services at any time without notice or liability to you.