EyeGuide Terms and Conditions
The following terms and conditions govern your “use” of the EyeGuide App (“App”) and the eye movement tracking test (“Test”) provided in conjunction with the App, operated by EyeGuide, Inc. (“Operator”), including, but not limited to, content, data and materials available on the App and/or your use of the App and Test.
USE OF THE APP AND TEST IS AT YOUR OWN RISK. The FDA has not reviewed or evaluated any statements or information provided in conjunction with THE APP OR TEST. NEITHER THE APP NOR THE TEST IS intended to diagnose, treat, cure, or prevent any health condition, disease, illness, concussion or traumatic brain injury. A concussion is a serious medical condition for which immediate emergency medical help may be necessary. Consult a doctor immediately if you believe you OR A USER OF THE APP AND/OR TEST may have a concussion. If you AND/ OR A USER OF THE APP AND/OR TEST experience any discomfort while utilizing APP AND/OR TEST, discontinue use of THE APP AND TEST and consult A physician immediately. THE APP AND THE TEST ARE intended to be used in conjunction with medical treatment and evaluation by a licensed physician. NEITHER THE APP NOR THE TEST is a substitute for, and should never be used in lieu of, medical treatment and evaluation by a licensed physician.
Operator is only a supplier of the App and Test and will not provide direct supervision of any users of the App and Test. We trust that you know the users of the App and Test and will conduct independent supervision to ensure the safety of all users of the App and Test. You are responsible for using the App and Test consistent with the instructions and specifications, common sense, and safety.
BY USING THE APP AND TEST AND/OR PROVIDING ACCESS TO USERS OF THE APP AND TEST UNDER YOUR SUPERVISION, YOU EXPRESSLY AGREE TO AND CONSENT TO BE BOUND BY ALL OF THESE TERMS AND CONDITIONS. IF YOU DO NOT AGREE TO ALL OF THESE TERMS AND CONDITIONS, YOU MAY NOT USE THE APP OR TEST AND/OR PROVIDE USE OF THE APP AND TEST TO USERS UNDER YOUR SUPERVISION. Should you object to any term or condition, or any subsequent modifications or become dissatisfied with the App or Test in any way, your only recourse is to immediately discontinue use of the App and Test. Operator has the right, but is not obligated, to strictly enforce any term or condition through self-help, active investigation, litigation and prosecution.
1. Limited License
Subject to payment of the required fee(s), compliance with these Terms and Conditions, and compliance with the license agreement between you and Operator, you are granted a nonexclusive, nontransferable, limited license to use the App and Test, for so long as you comply with these Terms and Conditions.
This license is not a sale of the App. You acquire no proprietary interest in the App or Test. Only individuals authorized by Operator may use the App and Test.
You agree not to download, copy or use the App or Test except as expressly permitted by these Terms and Conditions. You shall not transfer, sublicense, rent, lease or lend the App to any third party.
Operator may from time to time, but is not obligated to, issue updates, modifications or upgrades to the App and/or Test, and may do so with automatic electronic updates. You consent to such automatic updates and agree that these Terms and Conditions apply to such updates.
3. Incorporation of Other Documents
Other provisions that govern your use of the App and/or Test may be set forth in other documents, terms, conditions and policies, all of which are incorporated by reference into these general Terms and Conditions.
By entering into this transaction, you agree to pay in full the purchase price, license fees, and/or other charges, and all taxes applicable to this transaction as provided in these Terms and Conditions and the license agreement between you and Operator. All sales are subject to availability and Operator reserves the right to limit quantities and to discontinue the App or Test. Upon your payment of all required license fees, and/or other charges, and all taxes applicable to this transaction, Operator will provide you with a unique identification key to download and access the App. You shall not provide this unique identification key to any other party, and you acknowledge and agree that you will be the only party using this unique identification key.
Failure to pay the required fees, for any reason, may result in legal action against you. In addition to such other remedies as it may have, Operator shall be relieved of its obligation to provide the App and/or Test and the full amount due shall immediately become due and payable by you. You must also reimburse Operator for all expenses incurred in connection with the collection of amounts payable, including court costs and attorneys’ fees.
5. Intellectual Property Rights
© 2016 EYEGUIDE, INC. All rights reserved. All right, title, and interest, including all patents, copyrights, trademarks, trade secrets and confidential information and other intellectual property rights (the “Rights”), in the App (in both print and machine-readable forms) and Test belong to Operator. You shall not in any manner violate or attempt to impair the Rights of Operator in the App and Test. Unless otherwise noted, other graphics, logos, designs, page headers, button icons, scripts, and names may be registered trademarks, trademarks or trade dress of Operator in the U.S. and/or other countries. Operator’s trademarks and trade dress may not be used, including as part of trademarks and/or as part of domain names or email addresses, in connection with any product or service in any manner that is likely to cause confusion.
EYEGUIDE® (U.S. Reg. No. 4,171,388) and the EyeGuide logo (U.S. Reg. No. 4,174,831) are registered trademarks of EyeGuide, Inc. The App and Test are the subject of a pending patent application.
You may not use any direct link, page scraper, robot, crawler, index, spider or other automatic device program, algorithm or methodology to access, copy, acquire information or use the App. You shall not modify, reverse engineer, create derivate works, disassemble or decompile the App without the express written permission of Operator.
You agree that any breach of these Terms and Conditions would cause Operator irreparable harm for which money damages alone would be inadequate. In addition to damages and any other remedies to which Operator may be entitled, you agree that Operator may seek injunctive relief to prevent the actual, threatened or continued breach of these Terms and Conditions. Any breach of these Terms and Conditions shall result in immediate termination of the license provided for herein and the license agreement between you and Operator, and any refunds of amounts paid shall be in the sole discretion of Operator.
By using the App and Test, you represent and warrant to Operator that: (i) you are over the age of eighteen (18) and have the power and authority to enter into and perform your obligations under these Terms and Conditions; (ii) you shall comply with all terms and conditions set forth herein; (iii) you are providing direct supervision to all persons using the App and Test; (iv) you have the express consent of all users and/or their legal guardians and parents to use the App and Test; (v) you have ensured that all users of the App and Test and/or their legal guardians and parents are aware of these Terms and Conditions and are in compliance with the same; and (vi) you are responsible for ensuring that all users of the App and Test are seeking proper medical treatment and are not relying solely on the App and Test.
Operator reserves the right to terminate this Agreement at any time and for any reason including, but not limited to, breach or suspected breach of any of these Terms and Conditions and/or breach of any of the terms of the license agreement between you and Operator. Upon termination by Operator, you must immediately cease using the App and Test. You may also terminate this Agreement at any time by ceasing your use of the App and Test. Operator may also suspend or discontinue the App or Test without notice. Operator reserves the right, without notice and in its sole discretion, to terminate your right to use the App, Test, or any portion thereof, to block or prevent your future access to and use of the App and Test, and to establish limits concerning use of the App and Test, including the frequency with which you may access the App and Test.
The Payment, Intellectual Property Rights, Representations, Termination, Disclaimer of Warranties, Limitation of Liability, Indemnity, Governing Law and Venue and Severability sections shall survive any termination of your use of the App and/or Test, or expiration or termination of this Agreement.
8. DISCLAIMER OF WARRANTIES
THE APP AND TEST ARE PROVIDED “AS IS,” “AS AVAILABLE” BASIS, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND OPERATOR HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE APP AND TEST, 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 NON-INFRINGEMENT OF THIRD PARTY RIGHTS. OPERATOR DOES NOT WARRANT THAT THE OPERATION OF THE APP AND TEST WILL BE UNINTERRUPTED OR ERROR-FREE, OR FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS OR COMPLETELY COMPATIBLE WITH ANY PARTICULAR HARDWARE OR SOFTWARE. OPERATOR SHALL NOT BE LIABLE FOR ERRORS, OMISSIONS, VIRUSES, DELAYS OR INTERRUPTIONS IN THE APP AND/OR TEST CAUSED BY ANY REASON, INCLUDING NEGLIGENCE OR FAILURE TO ACT OF OPERATOR. YOU HEREBY ACKNOWLEDGE THAT THE APP AND/OR TEST MAY BECOME UNAVAILABLE DUE TO ANY NUMBER OF FACTORS INCLUDING, BUT NOT LIMITED TO, PERIODIC SYSTEM MAINTENANCE, SCHEDULED OR UNSCHEDULED, ACTS OF GOD, TECHNICAL FAILURE OF THE APP AND/OR TEST, OR DELAY OR DISRUPTION ATTRIBUTABLE TO VIRUSES, DENIAL OF SERVICE ATTACKS, OR ANY OTHER CAUSE REASONABLY BEYOND THE CONTROL OF OPERATOR.
CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
9. LIMITATION OF LIABILITY
OPERATOR’S LIABILITY, AND (AS APPLICABLE) THE LIABILITY OF OPERATOR’S SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AND SUPPLIERS TO YOU OR ANY THIRD PARTIES IN ANY CIRCUMSTANCE IS LIMITED TO THE LESSER OF (A) YOUR ACTUAL DIRECT DAMAGES; AND (B) $100. YOUR RIGHT TO MONETARY DAMAGES IN THAT AMOUNT SHALL BE IN LIEU OF ALL OTHER REMEDIES WHICH YOU MAY HAVE AGAINST OPERATOR. OPERATOR AND (AS APPLICABLE) OPERATOR’S SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES AND SUPPLIERS SHALL NOT BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER (INCLUDING, WITHOUT LIMITATION, LOSS OF USE, LOSS OF PROFITS OR LOSS OF DATA, AND ATTORNEYS’ FEES). THIS LIABILITY LIMIT APPLIES EVEN IF OPERATOR OR A THIRD-PARTY ACTED NEGLIGENTLY. OPERATOR WILL BE FURTHER ENTITLED TO THE FULL BENEFIT OF ANY LIMITATION OF LIABILITY OF A THIRD-PARTY WHO IS JOINTLY LIABLE TO YOU. YOUR RIGHT TO MONETARY DAMAGES IN THAT AMOUNT SHALL BE IN LIEU OF ALL OTHER REMEDIES WHICH YOU MAY HAVE AGAINST OPERATOR.
YOU AGREE TO INDEMNIFY, DEFEND AND HOLD OPERATOR AND (AS APPLICABLE) OPERATOR’S SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES AND SUPPLIERS HARMLESS FROM ANY CLAIM OR DEMAND, INCLUDING REASONABLE ATTORNEYS' FEES, MADE BY ANY THIRD PARTY DUE TO OR ARISING OUT OF: (A) YOUR USE OF THE APP AND/OR TEST; (B) BREACH OF THESE TERMS AND CONDITIONS OR THE DOCUMENTS IT INCORPORATES BY REFERENCE; (C) APP AND/OR TEST MISUSE; (D) YOUR VIOLATION OF ANY LAW OR THE RIGHTS OF A THIRD PARTY; (E) YOUR CONDUCT IN CONNECTION WITH THE APP AND/OR TEST AND/OR (F) YOUR SUPERVISION OF, AND RECOMMENDATION TO, USERS OF THE APP AND TEST.
11. GOVERNING LAW AND VENUE
THESE TERMS AND CONDITIONS ARE DEEMED TO BE MADE AND EXECUTED IN LUBBOCK COUNTY, TEXAS, AND SHALL BE GOVERNED BY, CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS AND THE UNITED STATES, EXCLUSIVE OF CONFLICTS OF LAWS PROVISIONS.
THE EXCLUSIVE FORUM FOR ANY SUITS, CLAIMS, OR CAUSES OF ACTION ARISING DIRECTLY OR INDIRECTLY FROM THESE TERMS AND CONDITIONS SHALL BE A COURT HAVING COMPETENT JURISDICTION IN LUBBOCK COUNTY, TEXAS, AND THE PARTIES HEREBY CONSENT TO JURISDICTION FOR SUCH PURPOSES.
12. No Waiver
The failure of Operator to enforce any provision hereof shall not constitute or be construed as a waiver of such provision or of the right to enforce it at a later time.
13. No Assignment
These Terms and Conditions may not be assigned or transferred by you.
If any provision of these Terms and Conditions shall be deemed unlawful or unenforceable then that provision shall be deemed severable from these Terms and Conditions and such severed provision shall not affect the validity and enforceability of the remaining provisions.
15. Changes to These Terms
These Terms and Conditions may be changed by Operator immediately upon notice. Continued use of the App and Test following any change constitutes acceptance of the change.