TERMS AND CONDITIONS OF USE
FOR HCG APPLICATION
These Terms and Conditions of Use constitutes a legal agreement (the “Agreement”) between you and Appilicious LLC (“Appilicious”) with respect to your use of the hCG application (the “Application”) provided by Appilicious. If you do not agree to all of the terms of this Agreement, you are not permitted to download or use this Application. Your downloading and use of this Application shall be conclusively deemed acceptance by you of the terms contained in this Agreement and your acknowledgement that you have read, understand and agree to be bound by this Agreement.
You acknowledge and agree that Appilicious may revise these terms and conditions of use at any time without notice to you and, by continuing to use the Application, you agree to be bound by any such revisions.
Subject to the terms of this Agreement, Appilicious hereby grants to you, a personal, non-exclusive, non-transferable and revocable license to download and use the Application. The license to download and use the Application granted herein does not give you any ownership interest in the Application or any proprietary information of Appilicious or its licensors, but only the right to download and use the Application under the terms of this Agreement.
Restrictions on Use
You acknowledge and agree that this license expressly prohibits you from (i) redistributing, retransmitting, publishing, transferring, commercializing or other exploitation of the Application, in whole or in part, including as part of a time-sharing or other similar arrangement, (ii) reverse engineering, decompiling or modifying the Application, in whole or in part, and (iii) copying or redistributing the Application, in whole or in part, including, but not limited to, creating an archive of any portion or content of the Application. You agree that you are strictly prohibited from accessing or attempting to access any areas of the computer system where the Application is hosted or other information thereon. You further agree that you will not (i) use any robot, spider, other automatic device or manual process to “screen scrape”, monitor, mine or copy any portion of the Application or the content contained therein, in whole or in part, (ii) spam or send unsolicited communications to any other user of the Application for any reason (except for communications to physicians that have agreed to link with you via the Application), (iii) enter into or transmit via the Application any information that contains a virus, bug or other harmful item, (iv) use any device, software or routine to interfere or attempt to interfere with the proper working of the Application, (v) enter into or transmit via the Application any unlawful, fraudulent, harassing, libelous, or obscene information of any kind, (vi) enter into or transmit via the Application any information (including but not limited to, text, imagery, audio recordings or video recordings) in violation of another party’s copyright or intellectual property rights, (vii) take any action that imposes an unreasonable or disproportionately large load on the infrastructure hosting the Application or (viii) violate any laws or regulations applicable to you or your usage of the Application. In the event of your breach of any of these restrictions or any other term of this Agreement, Appilicious may terminate this Agreement and your usage of the Application, without any refund of any payments made by you, directly or indirectly, to Appilicious in connection with the Application, and you shall indemnify Appilicious against any and all losses or damages suffered by Appilicious as a result of any such breach.
You acknowledge and agree that ownership of and title in and to all intellectual property rights in the Application, including patent, trademark, service mark, copyright and trade secret rights are and shall remain in Appilicious and its licensors. You agree not to remove, alter, or otherwise obscure any trademark, copyright or other proprietary rights notices contained within or displayed by this Application
Appilicious reserves the right to update and make changes, additions or deletions to the Application (“Modifications”) at any time without notice to you. All rights, title and interests in any such Modifications made by or on behalf of Appilicious will be owned by Appilicious. Appilicious may, in its sole and absolute discretion, make any such Modifications available to you, under the terms of this Agreement or any other terms and conditions offered by Appilicious, and cease usage of prior versions of the Application.
You retain all of your ownership rights in any information that you enter into the Application (“User Information”), provided, however, you hereby grant to Appilicious a worldwide, non-exclusive, royalty-free license to access, use, reproduce, distribute and display your User Information in connection with the Application, including, but not limited to, in distributing your User Information to any physicians that you elect to link with via the Application. You also hereby grant to each physician that you elect to link with via the Application a non-exclusive, royalty-free license to access, use, reproduce, distribute and display your User Information submitted via the Application in connection with their evaluation of your User Information and any services that they provide to you.
In the event you develop or have developed any applications or software for use with the Application, you shall have all right, title and interest in such applications or software, subject, however, to Appilicious’s exclusive right, title and interest to the Application. You hereby grant to Appilicious a worldwide, perpetual, non-exclusive and royalty-free license to use and commercialize all such applications and software developed by or on behalf of you for use with the Application. You agree that the granting or retention of any rights, title or interest to or by you in any applications or software shall not be construed by the parties hereto, any court of law or equity, or any arbitration panel to mean that Appilicious has granted or given up any rights, title, or interest in or to the Application or any Appilicious proprietary information. Notwithstanding anything herein to the contrary, you agree not to take any action that would limit Appilicious’s development, marketing, sale, assignment, licensing or use of its own Application.
Anything herein to the contrary notwithstanding, the obligations of Appilicious set forth in this Agreement do not extend to any software or materials which may be made available by Appilicious, or are otherwise obtained or used by you, subject to an open source license or other open source terms (“Open Source Software”). You agree that all Open Source Software shall be and shall remain subject to the terms and conditions under which it is provided and you shall not use or combine the Open Source Software with any items in any manner that would subject the Application, in whole or in part, to open source terms and conditions.
You agree to treat any Appilicious proprietary information as confidential information and to not publish, disclose or release such information, in whole or in part, other than as permitted in this Agreement, and to take all reasonable precautions to protect and maintain the confidentiality of such information and to exercise at least the same degree of care as you employ with respect to your own proprietary and confidential information. You agree not to disclose, provide, or make available any Appilicious proprietary information in any form to any person.
Internet/Wireless Service Provider Costs
The Application makes use of a data network operated by your internet or wireless service provider to send information from your device to our servers and to send information back to you. Depending on your data plan, you may incur charges from your provider for use of their network in connection with the Application. You are solely responsible for any and all costs you incur with your internet and/or wireless service provider and any other third parties as a result of your usage of the Application.
Third Party Applications and Services
This Application invokes a number of applications and services that were not developed or are not operated by Appilicious and that are not under the control of Appilicious, including, but not limited to, your mobile phone’s or computer’s operating system, browser, email and SMS programs, dialer and other applications and services. Appilicious cannot assure you that these third party applications and services will function and expressly denies any liability related to such third party applications and services.
Disclaimer of Warranties
THE APPLICATION, INCLUDING ALL CONTENT, APPLICATIONS, FUNCTIONS AND INFORMATION, IS PROVIDED “AS IS,” “WITH ALL FAULTS” AND WITHOUT ANY WARRANTIES OF ANY KIND, EXPRESS, STATUTORY OR IMPLIED. APPILICIOUS DISCLAIMS ALL WARRANTIES WITH RESPECT TO THE APPLICATION, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, CONDITION, UNITERRUPTED USE, MERCHANTABILITY OF COMPUTER PROGRAMS AND DATA ACCURACY, EXCEPT TO THE EXTENT THAT ANY WARRANTIES IMPLIED BY LAW CANNOT BE VALIDLY WAIVED. APPILICIOUS DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE OPERATION OF THE APPLICATION, THE USE, VALIDITY, ACCURACY OR RELIABILITY OF, OR THE RESULTS OF THE USE OF THE APPLICATION CONTENT, AND APPILICIOUS MAKES NO COMMITMENT TO UPDATE THE APPLICATION OR CONTENT. YOU ACKNOWLEDGE THAT APPILICIOUS DOES NOT OPERATE OR CONTROL THE INTERNET. APPILICIOUS DOES NOT WARRANT THAT ANY CONTENT AVAILABLE FOR ACCESS OR DOWNLOADING FROM THE APPLICATION, IF ANY, WILL BE FREE FROM INFECTION, VIRUSES, WORMS, TROJAN HORSES OR OTHER CODE THAT MANIFEST CONTAMINATING OR DESTRUCTIVE PROPERTIES. APPILICIOUS DOES NOT WARRANT THAT THE APPLICATION WILL OPERATE UNINTERRUPTED OR ERROR-FREE, THAT ACCESS TO THE APPLICATION WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT ANY DEFECTS IN THE APPLICATION WILL BE CORRECTED.
You acknowledge and agree that the Application may not be available on a continuous or uninterrupted basis and that the Application may be inaccessible or inoperable for any reason, including, but not limited to, periodic maintenance or repairs, equipment malfunctions and causes beyond the control of Appilicious or that could not be reasonably be foreseen by Appilicious, including, but not limited to, internet or wireless service interruption or failure. Appilicious does not guarantee the integrity of information transmitted via the Application. Appilicious shall not be liable for the inadvertent disclosure of, or corruption or erasure of, information transmitted or received or sorted on Appilicious’s system. Appilicious shall not be liable to you for any claims or damages which may be suffered by you, including, but not limited to, injuries or damages of any and every nature, resulting from the loss of information, inability of physicians or you to access or use the Application or inability to transmit or receive information caused by or resulting from any delays, non-deliveries or mis-deliveries of information or service interruptions, whether or not caused by the fault or negligence of Appilicious. You acknowledge and agree that the Application is not intended to replace traditional means of communication with your physician and that it is your responsibility to use traditional means of communications with your physician when necessary and to ensure that you and your physician receive each other’s respective communications and that any information conveyed between you and your physician is accurately received.
Appilicious does not provide any physician services and does not endorse any physician. You acknowledge that the physicians listed in the Application pay Appilicious to be listed in the Application. Appilicious does not assess the physician’s qualifications or verify any of the information provided by the physicians. You are solely responsible for assessing the physician’s qualifications, verifying the information provided by the physicians and your interaction with the physicians. If you have a dispute with any physician or other providers, you agree that Appilicious is not liable for any claims or damages arising out of or connected with such dispute.
Your Additional Acknowledgements and Responsibilities
You acknowledge and agree that the applications and functionality contained in the Application may not meet any or all of your needs and requirements. You assume all responsibilities and obligations with respect to the selection of the particular application to achieve its desired performance and results and any decisions or advice made or given as a result of your use of the Application. You further acknowledge and agree that the use of the Application on more than one device may result in the loss of data or information. Appilicious has no responsibility for any information entered into the Application by or on behalf of you and you agree to indemnify Appilicious against any and all losses or damages suffered by Appilicious relating to information entered into the Application by or on behalf of you. You hereby grant to Appilicious the right to use the information entered in the Application to the extent necessary to perform its obligations hereunder.
You agree to keep your password confidential and to immediately send notice to Appilicious if your password is compromised. You acknowledge that the Internet is a network of computers worldwide and that any information submitted by you through the Application is routed via third party computers, and that Appilicious is not responsible for lapses in online security and does not assume liability for improper use of the your information by a third party.
You acknowledge and agree that Appilicious reserves the right, in its sole and absolute discretion, to set the prices to be charged to subscribers for use of the Application, including, without limitation, the right to charge different prices to different subscribers. You further acknowledge and agree that Appilicious may revise the prices at any time without notice to you and, by continuing to use the Application, you agree to be bound by such revised pricing.
You agree to defend and indemnify Appilicious, its affiliates and their respective managers, members, shareholders, officers, directors, employees, agents, partners and licensors (the “Indemnified Parties”) and hold each of them harmless from and against all claims, liabilities, and costs, including reasonable attorneys’ fees, reasonably incurred in the defense of any claim brought against any Indemnified Party by third parties arising out of or relating to (i) any Modification by or on behalf of you, (ii) any use of the Application by or on behalf of you other than as permitted by this Agreement, (iii) any use of the Application by or on behalf of you in conjunction with any software, systems or services other than the Application, (iv) any information entered into the Application by or on behalf of you or (v) any activities by or on behalf of you not licensed under this Agreement.
LIMITATION OF LIABILITY
ANYTHING HEREIN TO THE CONTRARY NOTWITHSTANDING, UNDER NO CIRCUMSTANCES SHALL APPILICIOUS BE LIABLE TO YOU FOR AN AMOUNT OF DAMAGES IN EXCESS OF THE SUM OF THE FEES PAID BY YOU HEREUNDER FOR THE APPLICATION OR SHALL APPILICIOUS BE LIABLE IN ANY AMOUNT FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR INDIRECT DAMAGES, LOSS OF GOOD WILL OR BUSINESS PROFITS, WORK STOPPAGE, DATA LOSS, COMPUTER FAILURE OR MALFUNCTION OR EXEMPLARY OR PUNITIVE DAMAGES.
You agree that neither Appilicious nor its managers, members, officers, directors, employees, agents, partners and licensors will be responsible for your use, misuse or reliance on the Application, the unavailability or mis-operation of this Application or for any services provided to you by physicians or for any actions by any subscribers or users of the Application or any other person, whether in connection with the Application or otherwise. This limitation of liability shall apply to prevent recovery of any actual, direct, consequential, incidental, punitive or other indirect damages, regardless of the size or origin, or whether the damages arise from use, misuse, or reliance on this Application, or from any unavailability or mis-operation of this Application for any cause or reason. Your sole and exclusive remedy for any damages or loss in any way connected with the Application, whether due to Appilicious’s negligence or breach of any other duty, shall be, at Appilicious’s option, (i) to modify the Application or (ii) return an appropriate portion of any fees paid to Appilicious by you with respect to the applicable portion of the Application.
Allocation of Risks; Severability of Actions
The provisions of the Agreement allocate the risks between Appilicious and you and the fees reflect this allocation of risk and the limitations of liability herein. It is expressly understood and agreed that each and every provision of this Agreement which provides for a limitation of liability, disclaimer of warranties or exclusion of damages is intended by the parties to be severable and independent of any other provision and to be enforced as such.
Term and Termination
This Agreement becomes effective immediately upon your downloading or otherwise accessing the Application and shall remain in effect until your use of this Application is terminated. You may terminate your access to the Application at any time. Appilicious reserves the right to terminate this Agreement at any time and for any reason upon written notice.
Upon termination of this Agreement for any reason, all rights granted to you hereunder will terminate and revert to Appilicious and you shall immediately cease any and all use of the Application. Termination of this Agreement shall not relieve you of any liability for your breach of any provision of this Agreement accruing or occurring prior to the termination. Notwithstanding any termination of this Agreement, Appilicious shall have and hereby reserves all rights and remedies, which it has or which are granted to it by operation of law, to enjoin the unlawful or unauthorized use of the Application or any other Appilicious intellectual property or proprietary information. You shall not be entitled to any refund of any payments made by you, directly or indirectly, to Appilicious in connection with the Application.
The provisions in this Agreement regarding limits on liability, intellectual property, indemnification, governing law, jurisdiction, venue and your other responsibilities shall survive the termination of this Agreement and shall remain in effect indefinitely.
You may not, without Appilicious’s prior written consent, assign, delegate, pledge, or otherwise transfer this Agreement, or any of your rights or obligations under this Agreement, whether by operation of law or otherwise, without the prior written consent of Appilicious, which may be granted or withheld in the sole and absolute discretion of Appilicious. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns.
This Agreement shall be governed by and construed in accordance with the laws of the State of Florida (without regard to the principles thereof relating to conflicts of law) and any action related hereto shall be brought in a court in Miami-Dade County, Florida. In the event of any conflict between a law, rule or regulation of the United States and a foreign jurisdiction, the law, rule or regulation of the United States shall prevail and govern. The parties each irrevocably and unconditionally waive any right to a jury trial with respect to any claims or disputes arising out of or related to this Agreement.
You acknowledge and agree that any breach or threatened breach by you of any of the covenants and restrictions related to usage of the Application, intellectual property, proprietary information, third party software, termination and your other responsibilities contained in this Agreement will give rise to irreparable injury which may not be adequately compensated by damages and, therefore, you agree that in the event of any such breach or threatened breach, Appilicious may seek and shall be entitled to injunctive relief and to the enforcement of these covenants and restrictions by specific performance, in addition to any other rights and remedies available hereunder or under applicable law.
Any waiver of any provision of this Agreement shall be valid and effective only in the specific instance and for the specific purpose for which it is given and shall not be deemed continuing or construed as a waiver of any other provision of this Agreement. If any provision of this Agreement shall be held invalid, illegal or unenforceable by any court of competent jurisdiction, such provisions shall be reduced in duration or scope, or otherwise modified, to the extent required by law to render it valid, legal and enforceable, and consistent, as nearly as possible, with the intent of this Agreement; and, in any event, such invalidity, illegality or unenforceability shall not render invalid, illegal or unenforceable the remaining provisions of this Agreement.