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ActiLife End User License Agreement (EULA)

Last Updated: Jul 26, 2016 05:54PM CDT

Here's the current ActiLife End User License Agreement (EULA):

 

You should carefully read the following terms and conditions before using this software.  Unless you have a different license agreement signed by ActiGraph, LLC  your use of this software indicates your acceptance of this license agreement and warranty.

You are entitled to unlimited, free use of this software. One registered copy of the software may be installed only on one computer at a time.  

Governing Law

This agreement shall be governed by the laws of the State of Florida.

Disclaimer of Warranty

This SOFTWARE is provided "as is" without representations or warranties of any kind, whether expressed or implied. The USER must assume the entire risk of using the SOFTWARE, and ACTIGRAPH shall have no liability to the USER or any other third-party for any damages whatsoever, including, but not limited to, any economic or data loss, even if such loss was foreseeable by ACTIGRAPH.  Any violation of the intellectual property rights of any party as a result of the use of the SOFTWARE is explicitly against the terms of this LICENSE, and ACTIGRAPH disclaims any liability for the use of the SOFTWARE in this way as unauthorized and outside the scope of any warranty or agreement between the USER and ACTIGRAPH.

Prescription Use Only
The USER understands that ActiGraph's physical activity monitors are FDA Class II cleared medical devices and are intended for prescription-use only and are not designed for over-the-counter usage in accordance with FDA 21 CFR 801.109.

Limitations of Use

The USER agrees not to use the SOFTWARE as part of any illegal activity, or to violate any rights of a third party.  This LICENSE grants rights to use this SOFTWARE, but does not grant any legal rights to content owned by any third party, nor does the LICENSE release the USER from any responsibilities regarding the rights of third parties.  ACTIGRAPH makes no representations involving the legality of any activities regarding the use of the SOFTWARE in conjunction with copyrighted content.  The USER retains full responsibility to determine the extent of the USER's rights, and, if necessary, to contact the owner of copyrighted content prior to use of the SOFTWARE.  Use of this SOFTWARE to violate the legal rights of any third party constitutes failure of the USER to comply with the terms of this LICENSE, and therefore terminates the USER's rights to use the SOFTWARE.

Good data processing procedure dictates that any program be thoroughly tested with non-critical data before relying on it. The user must assume the entire risk of using the program.  ANY LIABILITY OF THE SELLER WILL BE LIMITED EXCLUSIVELY TO PRODUCT REPLACEMENT OR REFUND OF PURCHASE PRICE.

Certain Services may include materials from third parties. ActiGraph does not warrant or endorse and does not assume and will not have any liability or responsibility for any third-party materials, or for any other materials, products, or services of third parties. You agree to not use any third-party materials in a manner that would infringe or violate the rights of any other party, and that ActiGraph is not in any way responsible for any such use by you.

You agree that the Services involve certain proprietary information and material that is owned by ActiGraph and/or its licensors, and is protected by applicable intellectual property and other laws, including but not limited to copyright, and that you will not use such proprietary information or materials in any way whatsoever except for permitted use of the Services. No portion of the Services may be reproduced in any form or by any means.  ActiGraph is the owner of all right, title and interest in all intellectual property rights, including all copyrights, patents, trademarks, trade secrets, and all related rights associated with the ActiGraph Client Software Application and the Services, including all associated software, logos, text, and graphics, but excluding third party or public domain material.

The Services consist of interactive Internet applications that perform a variety of communications over the Internet as part of their normal operation.  A number of communications features are automatic and are enabled by default. By using the Services, you consent to the Services’ communications features.  Once you are connected to the Services, there will be communications with ActiGraph's servers. You are responsible for any telecommunications or other connectivity charges incurred through use of the Services.

Reservation Of Rights. ActiGraph reserves all rights not specifically granted to you hereunder. ActiGraph reserves the right in its sole discretion to delete, remove or change any data, information or metadata supplied to ActiGraph by you. ActiGraph and its licensors reserve the right to change, suspend, remove, or disable your access to any Services at any time without notice. In no event will ActiGraph be liable for the removal of or disabling of access to any such Services. ActiGraph may also impose limits on the use of or access to certain Services, in any case and without notice or liability.

Restrictions.

No Modifications, Reverse Engineering Or Spidering. You shall not alter, modify, enhance, work around any technical limitation in, or make any derivative works of the ActiGraph's Proprietary Software or the Services. You shall not, and shall not cause or permit any third party to, disassemble, decompile, reverse engineer or otherwise attempt to derive source code, or spider, crawl or robotically or automatically collect or extract information from the ActiGraph's Proprietary Software or the Services. You shall not use the ActiGraph Proprietary Software in an attempt to, or in conjunction with, any device, program or service designed to circumvent technological measures employed to control access to, or the rights in, a content file or other work protected by the copyright laws of any jurisdiction. You shall not exploit the Services in any unauthorized way whatsoever, including but not limited to, by trespass or burdening network capacity.

No Resale Or Commercial Use. You shall not copy, re-sell, rent, lease, lend, provide access to third parties or otherwise transfer the ActiGraph Proprietary Software or the Services. You may not use any ActiGraph Proprietary Software or the Services in any way to provide, or as part of, any commercial product, service or application. You shall not collect, compile, disclose, transfer, distribute, sell, rent or license as a data set all or substantially all the ActiGraph Metadata.

No Payment.  Under no circumstances will ActiGraph or its licensees become liable to you for any payment to you for any information or metadata you supply.

Representations, Warranties and Indemnity
DISCLAIMER OF WARRANTY.  ACTIGRAPH DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. EXCEPT AS PROVIDED IN THIS SECTION, ACTIGRAPH PROPRIETARY SOFTWARE IS PROVIDED HEREUNDER ON AN “AS-IS” BASIS, AND ACTIGRAPH DISCLAIMS ALL WARRANTIES THAT THE ACTIGRAPH  PROPRIETARY SOFTWARE OR THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, VIRUS-FREE, OR SECURE OR OPERATE OTHER THAN AS SET FORTH HEREIN.

Your Representations And Warranties. You represent and warrant to ActiGraph that: (i) your performance under this Agreement shall at all times comply with all applicable laws, rules and regulations; (ii) you will not use the ActiGraph Proprietary Software to upload, post, email, transmit, or otherwise make available any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy, or limit the functionality of any computer software or hardware or any telecommunications equipment; and (iii) you will not use the Services in connection with any activity that infringes the rights of any third party.

Indemnification.
You hereby agree, at your expense, to defend, indemnify and hold harmless ActiGraph and its officers, directors, employees and agents from and against any and all Claims brought against any of them by a third party arising out of a breach of your representations, warranties or covenants in this Agreement.
Each indemnified party hereunder shall give prompt written notice of any Claim to the indemnifying party. The indemnifying party shall have exclusive control over the defense and settlement of the Claim, provided that the indemnified party, at its expense, may elect counsel to participate on its behalf in the action and shall have the right to approve in advance any settlements that could adversely affect the rights of the indemnified party.  The indemnified party shall provide reasonable information and assistance to the indemnifying party, at the indemnifying party's expense, in the defense of such Claim.

Policies

ActiGraph's customer policies, at http://actigraphcorp.com/policy/

Limitation of Liability

LIMITATION OF DAMAGES. Except for the obligations set forth above, in no event shall either party be liable to the other for any indirect, incidental, special or consequential damages, or damages for loss of profits, revenue, data or use, incurred by either party arising out of or related to its performance under this agreement, whether in an action in contract or tort (including negligence) or otherwise, even if the other party has been advised of the possibility of such damages.

Limitation Of Liability. NOTWITHSTANDING ANY DAMAGES THAT YOU MIGHT INCUR FOR ANY REASON WHATSOEVER (INCLUDING, WITHOUT LIMITATION, ALL DAMAGES REFERENCED ABOVE AND ALL DIRECT OR GENERAL DAMAGES), THE ENTIRE LIABILITY OF ACTIGRAPH AND ANY OF ITS SUPPLIERS UNDER ANY PROVISION OF THIS AGREEMENT YOUR EXCLUSIVE REMEDY FOR ALL OF THE FOREGOING SHALL BE LIMITED TO ACTUAL DAMAGES INCURRED BY YOU BASED ON REASONABLE RELIANCE UP TO THE GREATER OF THE AMOUNT ACTUALLY PAID BY YOU FOR THE SERVICES OR U.S.$50.00. THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE.

Venue & Jurisdiction. Each party expressly agrees that exclusive jurisdiction for any claim or dispute relating to or arising out of this Agreement resides in the state and federal courts located in Pensacola, Florida and each party further agrees and expressly consents to the exercise of personal jurisdiction in the state and federal courts Pensacola, Florida in connection with any such dispute.

Term and Termination.  This EULA shall commence on the Effective Date and shall continue in full force and effect until terminated by either party. Either party may terminate this EULA at any time. You may terminate this EULA and cancel the services by accessing your account. Upon any termination of this EULA (whether by you or ActiGraph), you shall immediately discontinue use of the Services. You understand and agree that cancellation of this EULA is your sole right and remedy with respect to any dispute with ActiGraph, except as expressly set forth herein.  This includes, but is not limited to, any dispute related to, or arising out of:  (1) any term of this EULA or ActiGraph's enforcement or application of this EULA; (2) any policy or practice of ActiGraph, including any ActiGraph Privacy Policy, or ActiGraph's enforcement or application of these policies; (3) your ability to access and/or use the Services; or (4) any ActiGraph's Proprietary Software.

Although we do not anticipate doing so, ActiGraph must reserve the right, at its sole discretion, to update, amend and/or change this Service EULA in connection with a new release or re-release of any ActiGraph Proprietary Software or the Services.  If so, we would give you the opportunity to review the new Service EULA and to agree or not agree with the new terms.   Your continued use of the Services following your opportunity to review such changes shall automatically be deemed your acceptance of all changes.   

General Provisions

Survival. All portions of this EULA that are reasonably intended to survive any termination of this EULA shall continue in full force and effect following any termination of this EULA.

Allocation Of Risk. The Sections on limitation of liability, limitation of warranties and indemnities allocate the risks of this EULA between the parties. This allocation is an essential element of the basis of the bargain between the parties.

Assignment. ActiGraph may assign this EULA to any person or entity to whom it transfers all or substantially all of its rights in the ActiGraph Proprietary Software. You may not assign, voluntarily, by operation of law, or otherwise, this EULA or assign any rights or delegate any duties under this EULA without ActiGraph's prior written consent, which shall not be unreasonably withheld. Any attempt to do so without that consent will be void. Subject to the foregoing, this EULA shall be binding upon and inure to the benefit of each party's permitted successors and assigns.   

Choice Of Law. This EULA will be governed by and construed in accordance with the laws of the United States and the State of Florida as applied to agreements entered into and to be performed entirely within Florida between Florida residents.

Entire Agreement. This EULA constitutes the entire agreement between the parties relating to this subject matter and supersedes all prior or simultaneous representations, discussions, negotiations and agreements, whether written or oral. No party has been induced to enter into this EULA by, nor is any party relying on, any representation or warranty outside those expressly set forth in this EULA. The headings and captions are inserted for convenience of reference only and do not constitute a part of or modify any of the terms of this EULA.

Severability. If any part of this EULA is found invalid or unenforceable, that part will be amended to achieve as nearly as possible the same economic effect as the original provision and the remainder of this EULA will remain in full force and effect and the unenforceable provision will be replaced with an enforceable provision that most nearly achieves the intent and economic effect of the unenforceable provision.

Waiver. No term or provision hereof will be considered waived by either party, and no breach excused by either party, unless such waiver or consent is in writing signed by both parties. No consent by either party to, or waiver of, a breach by either party, whether express or implied, will constitute consent to, a waiver of, or excuse of any other, different, or subsequent breach by either party.

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