These End User Terms and Conditions (these "Terms") are a binding agreement between you (“Participant” or “you”) and Litmus Health, Inc., a Delaware corporation (“Litmus,” “our,” “us,” or "we") with its principal business at 4200 North Lamar Boulevard, Suite 225, Austin, TX 78756. These Terms govern your access to, and use of, a mobile application (including all related documentation, the “App”) and any other Participant-facing element of the device-agnostic big data platform-as-a-service (as it may be updated from time to time, the “Platform”) that we offer to research institutions and their personnel (“Researchers”). We are making the App available to you in connection with a study or clinical trial conducted by a Researcher, but these Terms are a direct agreement between you and Litmus.
By clicking the “I AGREE” button or downloading, installing, or using the App, you accept these Terms and agree that you are legally bound by these Terms as of such date (the “Effective Date”). IF YOU DO NOT AGREE TO THESE TERMS, YOU SHOULD NOT DOWNLOAD OR INSTALL THE APP, OR YOU SHOULD DISCONTINUE USE THEREOF AND UNINSTALL THE APP IMMEDIATELY.
- Who We Are. Litmus is a provider of technology, and is not itself a researcher or provider of medical or health-related advice.
- Representations About You. You represent and warrant that (a) you have read and understand these Terms, (b) you are 18 years of age or older, (c) to the best of your knowledge, the Information (defined below) you provide to us about you in connection with the use of the App will be current, true, accurate, supportable, and complete, (d) you are not located in a country that is subject to a U.S. embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, (e) you are not listed on any U.S. Government list of prohibited or restricted parties, (f) you will not share your Litmus account (an “Account”) or password with anyone and you agree to notify Litmus immediately of any unauthorized use of your password or any other breach of security, (g) you will not create or access an Account using a false identity or information, or on behalf of someone other than yourself, and (h) you will not create an Account or use the Platform if you have been previously removed by Litmus.
- License Grant. Subject to the terms and conditions of these Terms, Litmus hereby grants you a limited, non-exclusive, nontransferable, personal, and non-commercial license to (a) access the App, and (b) download, install and use the App on a any number of smart phones, tablets, or other mobile devices that you own or control.
- License Restrictions. You will not: (a) copy any element of the App, except as expressly permitted by these Terms; (b) modify, translate, adapt, or otherwise create derivative works or improvements of the App; (c) reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of any element of the App; (d) remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notice from the App; or (e) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the App or any features or functionality thereof to any third party for any reason. To the extent any of the foregoing restrictions are prohibited by applicable law or an agreement between us and a third-party, such restricted activities will be permitted only to the extent necessary to comply with such law or license(s).
- Reservation of Rights. You acknowledge that the App is licensed, not sold, to you. Litmus reserves all rights in and to the App not expressly granted to you under these Terms. You do not acquire any ownership interest in the App under these Terms, including any copyrights, trademarks and service marks (including, without limitation “Litmus” and all associated logos), or other intellectual property rights therein or relating thereto, except as expressly granted to you in these Terms. If you submit comments, suggestions, or other feedback regarding the App (“Feedback”), Litmus will be free to use such Feedback and you hereby grant us a fully-paid, royalty-free, fully sublicensable, transferable, irrevocable worldwide license under any of your applicable intellectual property or other rights protecting such Feedback to copy, display, create derivative works of, transmit, and otherwise use Feedback for any lawful purpose.
- HIPAA. You acknowledge and agree that Litmus is not a “Covered Entity” under the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) as such term is defined by HIPAA. HIPAA addresses the manner in which a Patient’s individually identifiable health information may be used or disclosed by Covered Entities and other companies, such as Litmus. For more information regarding your rights under HIPAA, see http://www.hhs.gov/ocr/privacy/.
- Updates. Litmus may, from time to time, in its sole discretion, develop, and provide updates to the App, which may include, without limitation, upgrades, patches, and other error corrections and/or new features (collectively, including related documentation, “Updates”). You will promptly download and install all Updates and you hereby acknowledge and agree that the App 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 and will be subject to all terms and conditions of these Terms.
- Maintenance and Availability. Scheduled system maintenance may take place from time to time, and during such time, Updates to the App or elements thereof may be unavailable. Emergency maintenance may be required at other times in the event of system failure. The App or some aspects thereof may require a wireless Internet connection. We make no representation that the App is available or permitted in any particular location. Use of the App is void where prohibited. You use the App at your own initiative and are responsible for compliance with any applicable laws in connection with your use thereof. Litmus may also impose limits on the use or access to the App as required by law. The App is not designed for the delivery of time sensitive or life critical medical or health-related communications. You specifically acknowledge that outage and downtime may occur.
- Term and Termination. The term of these Terms and the licenses and other rights granted by us herein commence on the Effective Date and continues until terminated by Litmus or you. You may terminate these Terms by deleting the App and all copies of it from your mobile device. Litmus may terminate these Terms at any time without notice if it ceases to offer or support the Platform or App or elements thereof, which it may do in its sole discretion, or if you fail to comply with one or more terms of these Terms. Upon termination of these Terms: (a) all license and other rights granted to you under these Terms will terminate; and (b) you must cease all use of the App and destroy all copies, full or partial, of the App that you own or control. You acknowledge that Litmus may restrict, modify, or terminate these Terms, without liability, for its convenience, or if you violate these Terms or any law, rule, or regulation.
- Contact Information. Any questions, complaints or claims you may have with respect to the App should be directed to us at:
- Acknowledgements Regarding Apple, Inc., Google Inc. and other App Store Providers. You acknowledge that these Terms are between you and Litmus and not with Apple, Inc. (“Apple”), Google Inc. (“Google”) or any sponsor or provider of any application marketplace (each an “App Store Provider”) and that as between Litmus and an App Store Provider, Litmus (not the applicable App Store Provider) is solely responsible for (i) the App (including the content therein) and (ii) addressing any of your, or third party’s, claims relating to the App or your possession and/or use of the App. For the avoidance of doubt, as between an applicable App Store Provider and Litmus, Litmus will be solely responsible for the investigation, defense, settlement and discharge of any third party claim that the App or your possession and use of the App infringes such third party’s intellectual property rights. YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NO APP STORE PROVIDER MAKES ANY WARRANTIES OR HAS ANY OBLIGATIONS (INCLUDING, FOR THE AVOIDANCE OF DOUBT, ANY OBLIGATION TO PROVIDE MAINTENANCE OR SUPPORT SERVICES) WHATSOEVER UNDER THESE TERMS OR HAS ANY WARRANTY OBLIGATIONS WITH RESPECT TO THE APPLICATION OR THE SERVICE. If you are using the App on any iOS-based device, (i) the licenses and other rights granted to you herein are granted to you only as permitted by, and subject to, any applicable “Usage Rules” set forth in the Apple App Store Terms and Conditions, and (ii) Apple and its subsidiaries, are third party beneficiaries of these Terms and, upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third party beneficiary of these Terms. If you are using the App on any Android-based device, the licenses and other rights granted to you herein are granted to you only as permitted by and subject to any applicable Android Market Terms of Service established by Google.
- Disclaimer of Warranties and Acknowledgements. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE APP IS PROVIDED "AS IS" AND “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND WE HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS WITH RESPECT THERETO, EITHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, QUIET ENJOYMENT, AND NONINFRINGEMENT. WE DO NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE APP WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION THEREOF WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE APP WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE THAT WE GIVE WILL CREATE A WARRANTY. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY.
- Limitation of Liability. IN NO EVENT WILL LITMUS OR ITS AFFILIATES BE LIABLE FOR ANY INCIDENTAL, SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER ARISING OUT OF OR RELATED TO THE APP, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT, OR OTHERWISE) AND EVEN IF LITMUS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. In no event WILL LITMUS OR ITS AFFILIATES HAVE AGGREGATE liability HEREUNDER for damages IN EXCESS OF THE LESSER OF $50 OR THE AMOUNT YOU PAID FOR THE APP, IF ANY, IN THE THREE (3) MONTHS PRECEDING THE CLAIM GIVING RISE TO SUCH DAMAGES. The foregoing limitations will apply even if the above stated remedy fails of its essential purpose. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY OR EXCLUSION OF CERTAIN DAMAGES, SO THIS LIMITATION MAY NOT APPLY.
- Export and Other Restrictions. You may not use or otherwise export or re-export the App or elements thereof except as authorized by United States law and the laws of the jurisdiction in which the App was accessed or obtained. The App and related documentation are “Commercial Items,” as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation,” as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. The Commercial Computer Software and Commercial Computer Software Documentation are being licensed to any U.S. Government end users (a) only as Commercial Items, and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein.
- Amendments. Any amendments to and waivers under these Terms will only be valid if in writing and signed by an executive of Litmus, or in the case of Participant, accepted via a click-to accept mechanism.
- Governing Law and Dispute Resolution. The laws of the State of Texas, excluding its conflicts of law rules, govern these Terms and the provision of the App. All disputes, claims or controversies arising out of or relating to these Terms that are not resolved by the parties’ good faith attempt to negotiate a resolution will be resolved by confidential binding arbitration, under the commercial rules of the Judicial Arbitration and Mediation Service (“JAMS”), or its successor, in Austin, Texas, USA. The arbitration will be conducted in accordance with the provisions of JAMS’ Streamlined Arbitration Rules and Procedures in effect at the time of filing of the demand for arbitration. The parties will cooperate with JAMS and each other in selecting a single arbitrator who will be a former judge or justice with substantial experiences in resolving business disputes with particular experience in resolving disputes involving computer software. Each party shall pay its own costs and expenses (including attorneys’ fees) associated with the arbitration proceeding and fifty percent (50%) of the fees of the arbitrator and JAMS. The provisions of this Section 17 may be enforced by any court of competent jurisdiction. The arbitrator will not be empowered to award damages in excess of, or inconsistent with, the liability limitations contained in these Terms.