This End User License Agreement (the “Agreement”) is a legal agreement between Analog Devices, Inc., a Massachusetts corporation, with its principal office at One Technology Way, Norwood, Massachusetts, USA 02062 (“Analog Devices”) and you (personally or on behalf of your employer, as applicable) (“Licensee”), an individual end user of the OtoSense SMS Platform (as defined below), for the software and related documentation that accompanies this Agreement (the “App”). YOU AGREE THAT YOU ARE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT BY INSTALLING, COPYING OR USING THE SOFTWARE. IF YOU DO NOT AGREE, DO NOT INSTALL, COPY OR USE THE SOFTWARE, AND DELETE ANY COPIES IN YOUR POSSESSION. YOU REPRESENT THAT YOU ARE OVER THE AGE OF 18 AND HAVE THE CAPACITY AND AUTHORITY TO BIND YOURSELF OR YOUR EMPLOYER, AS APPLICABLE, TO THE TERMS OF THIS AGREEMENT.
1. Licenses. Subject to the terms and conditions of this Agreement, Analog Devices grants to Licensee a personal, non-exclusive, non-transferable, non-sublicensable license, to download, install, and use one copy of the App on your mobile device.
2. Acknowledgments.
(a) Wireless Carrier. Use of the App may be subject to the terms and conditions of any service agreement with Licensee’s wireless carrier. Licensee agrees that Analog Devices will not be liable for any damages or for any loss or disclosure of personal information occurring in communication over networks outside its control.
(b) App Use. Analog Devices provides the machine learning and predictive analytics software tool known as the “OtoSense SMS Platform”. The App is a component of the OtoSense SMS Platform, but nothing herein grants the Licensee any right of access to or use of the OtoSense SMS Platform (other than the App), which is governed by a separate written agreement between Analog Devices and Licensee (the “SMS License”). Licensee is permitted to use the App solely in conjunction with the OtoSense SMS Platform and subject to the terms and conditions of this Agreement and the SMS License. The App is not recommended for consumer use.
(c ) Apple. The terms in this Section only apply if the App is for use on Apple-branded devices.
Licensee acknowledges that it is entering into this Agreement with Analog Devices and not with Apple, and Analog Devices, not Apple, is solely responsible for the App including its content. However, Apple and its subsidiaries are third party beneficiaries of this Agreement and, as such, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against Licensee as a third party beneficiary thereof.
The App may only be used on Apple-branded products that Licensee owns or controls and as permitted by the Apple App Store Terms of Service. Licensee acknowledges that it has reviewed the Apple App Store Terms and Conditions located online at http://www.apple.com/legal/itunes/us/terms.html#APPS and that Licensee shall comply with such terms. In addition, Licensee must comply with applicable third party terms of agreement when using the App (e.g., Licensee’s wireless data service agreement).
The App is provided for free, and Analog Devices does not have any obligation to provide any maintenance or support for it. To the extent that any maintenance or support is required by applicable law that cannot be disclaimed, Analog Devices, not Apple, shall be obligated to furnish any such maintenance or support.
Apple makes no warranty with respect to the App and has no obligation whatsoever to furnish any maintenance or support services for the App. The App is provided on an “as is” basis, and as such, Analog Devices disclaims all warranties to the fullest extent permitted by law. To the extent that any warranty exists that cannot be disclaimed, Analog Devices, not Apple, shall be solely responsible for such warranty.
Apple is not responsible for addressing any claims relating to the App or Licensee’s possession and/or use of the App, including but not limited to: (a) product liability claims, (b) any claims that the App fails to conform to any legal or regulatory requirement, and © claims arising under consumer protection, privacy or similar legislation, including in connection with the App’s use (if any) of the HealthKit and HomeKit frameworks. This Agreement shall not be construed to limit Analog Device’s liability to Licensee beyond what is permitted by applicable law.
Analog Devices has no obligation to indemnify or defend Licensee with respect to any third party claim arising out or relating to the App. To the extent Analog Devices is required to provide indemnification by applicable law notwithstanding the disclaimers in this Agreement, Analog Devices, not Apple, shall be solely responsible for the investigation, defense, settlement and discharge of any claim that the App or Licensee’s use of it infringes any third party intellectual property right.
Licensee represents and warrants that (i) it is not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (ii) it is not listed on any U.S. Government list of prohibited or restricted parties.
Questions, complaints or claims with respect to the App should be directed to Analog Devices at external.webmaster@analog.com or (781) 329-4700.
(d) Collection and Use of Information. Collection and use of information is governed by the OtoSense SMS Privacy Statement.
3. License to Analog Devices. During the term of this Agreement Licensee grants to Analog Devices (and its affiliates), under any and all Licensee patents (and those of its affiliates), a non-exclusive, worldwide, fully paid-up, royalty-free license to make, use, sell, import, export, copy, distribute and otherwise exploit the App in-whole or in-part (including updated versions of the App), and to directly or indirectly sublicense others to do the same.
4. Restrictions.
(a) Licensee shall not copy, modify, reverse engineer, decompile, disassemble or create derivative works of the App (except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation). In no event shall Licensee sublicense, rent, lease, permit time-sharing or otherwise make available, transfer, deliver, disclose, or distribute the App to any third party. To the extent there are any specifications, user manuals and/or other documentation for the App, as an additional restriction under this Agreement (and in no way expanding any rights under this Agreement), the App may not be used in any manner that is inconsistent with such documentation.
(b) Licensee shall not engage in any activities with respect to the App that would cause the App, in whole or in part to become subject to any terms of an Excluded License. An “Excluded License” means any license, including licenses for “open source” software (such as defined by the Open Source Initiative) or “free” software (as defined by the Free Software Foundation), that requires as a condition of use, modification, and/or distribution of the software subject to such Excluded License, that such software or other software combined and/or distributed with such software be (i) disclosed or distributed in source code form; (ii) licensed for the purpose of making derivative works; or (iii) redistributable at no charge. Examples of Excluded Licenses include, without limitation, the GNU General Public License, the GNU Lesser General Public License, the Mozilla Public License and the Microsoft Reciprocal License. The restrictions of this section apply regardless of whether the App is intended or designed to run in an environment that includes software under an Excluded License. Any license, agreement or other document issued, entered into or granted by Licensee that purports to apply any Excluded License to any portion of the App shall be null and void with regard to the App. Under no circumstances will Licensee offer, provide, distribute, or license the App (whether in source code form or object code form) under any form of Excluded License.
(c ) Licensee acknowledges and agrees that Analog Devices and its licensors and suppliers (as applicable) retain all right, title and interest in the App and derivative works thereof, including all related patent, copyright and other intellectual property rights in any of the foregoing, and that Licensee’s rights to the App are limited to those expressly provided for in Section 1 above (subject to the conditions and restrictions in this Section 4). Licensee shall not take any action inconsistent with such title and ownership. Any use of the App for any purpose other than as expressly licensed hereunder is outside the scope of this Agreement. It is agreed that because of the proprietary nature of the App, Analog Devices’ remedies at law for a breach by the Licensee of its obligations under this License or for use of the App beyond the scope of the license granted herein will be inadequate and that Analog Devices will, in the event of such breach, be entitled to equitable relief, including injunctive relief, without the posting of any bond, in addition to all other remedies provided under this License or available at law.
(d) If Analog Devices elects to make any update, upgrade or new version of the App (“Updates”) available to Licensee, such Updates shall be deemed to be included in the App under this Agreement. If requested by Analog Devices, Licensee shall only use the latest version of the App (including Updates). Analog Devices shall have no obligation to provide support or Updates of any kind.
(e) In no event shall Licensee remove any copyright or other intellectual property notice or other legend contained on or in copies of the App or displayed by the App. Licensee shall not use or refer to the App, or use information acquired from or about the App, in connection with directly or indirectly developing a competitive application or assisting another in doing the same.
(f) Licensee may not use the App in a manner that (i) harasses, abuses, threatens, stalks, intimidates, defames or otherwise infringes or violates the rights of any other party or group of parties; (ii) is unlawful, fraudulent or deceptive; (iii) attempts to introduce or distribute viruses or any other malicious computer code; (iii) attempts to gain unauthorized access to Analog Devices’ or any others’ computer networks or user accounts; (iv) encourages conduct that would constitute a criminal offense, or that would give rise to civil liability; or (v) violates this Agreement or applicable law or regulation. Licensee also agrees to abide by and not circumvent any security means or access control technology included in or with the App.
(g) Licensee shall not use the App in connection with diagnosing or treating diseases or other health related issues, or for other therapeutic purposes.
5. Publicity. Notwithstanding anything in this Agreement, Licensee may not use any trademark or trade name of Analog Devices or make any public announcement regarding the existence of this Agreement without Analog Devices’ prior written consent. Licensee may not publish or provide the results of any benchmark or comparison tests run on the App to any third party without the prior written consent of Analog Devices.
6. Feedback. Licensee may from time to time provide modifications, enhancements, improvements, code, suggestions, ideas, comments or other feedback (“Feedback”) to Analog Devices related to the App. Licensee agrees that all Feedback is and shall be given entirely voluntarily. To the extent Licensee provides such Feedback, Licensee (on behalf of itself and its affiliates) hereby grants to Analog Devices and its affiliates a non-exclusive, irrevocable, perpetual, worldwide, royalty-free, transferable license, with the right to sublicense, under Licensee’s (and its affiliates’) intellectual property, to use and disclose Feedback in any manner Analog Devices or its affiliates choose, including, without limitation, displaying, performing, copying, making, having made, using, selling and otherwise disposing of Analog Devices’ and its affiliates and their respective licensees’ products embodying such Feedback in any manner and via any media, without reference to its source or other obligation to Licensee and even if the Feedback is designated as confidential.
7. Fees and Taxes. Licensee shall pay all foreign, federal, state, municipal and other governmental excise, sales, use, property, customs, import, value added and other taxes, fees, levies and duties of any nature now in force or enacted in the future that are assessed upon or with respect to the App, but excluding taxes based on Analog Devices’ net income.
8. Third Party Software.
(a) The App may be accompanied by or include software made available by one or more third parties (“Third Party Software”). Third Party Software may include commercial software licensed by third parties, Open Source software meeting the Open Source Definition as promulgated by the Open Source Initiative, or other software programs released by third parties. Each portion of Third Party Software is subject to its own separate software license terms and conditions (“Third Party Licenses”). The Third Party Licenses and associated notices and disclaimers for Third Party Software can be found here: legal.otosensesms.com. The use and distribution of each portion of Third Party Software by Company is subject to the Third Party Licenses. Third Party Software is provided on an “as is” basis without any representation, warranty or liability of any kind.
(b) In the event that Third Party Software that requires disclosure of source code has only been provided to Licensee in object code form under this Agreement, and the Third Party License requires distribution of the corresponding source code, Licensee may contact software.licensing@analog.com regarding receiving a copy of such source code.
9. Indemnification. Licensee shall defend, indemnify and hold Analog Devices, its affiliates, licensors and suppliers, and their respective officers, directors, employees and agents (each an “Indemnified Party”) harmless from and against any damages, fines, penalties, assessments, liabilities, costs and expenses (including reasonable attorneys’ fees and court costs) in the event that any claim is brought against an Indemnified Party arising or alleged to arise directly or indirectly from (i) Licensee’s possession, use, distribution or other exploitation of the App or Third Party Software, (ii) Licensee’s failure to obtain any alleged or actual required license or consent with respect to the App or Third Party Software or (iii) Licensee’s alleged or actual non-compliance with any term or condition of this Agreement.
10. License Term; Term of Agreement. This Agreement is effective upon the earlier of Licensee’s receipt, download, installation or use of the App and shall continue in effect until terminated as permitted in this Agreement. Licensee may terminate this Agreement at any time by giving written notice to Analog Devices. Analog Devices may terminate this Agreement or suspend use of the App at any time in its sole discretion and for any reason whatsoever. In addition, this Agreement shall immediately automatically terminate in the event of any failure by Licensee to comply with any term or condition of this Agreement. In the event of termination or expiration (i) all licenses granted to Licensee immediately expire and (ii) Licensee must immediately cease using the App and permanently delete all copies of the App. The provisions of Sections 3 through 20 shall survive any termination or expiration of this Agreement according to their terms. For the avoidance of doubt, termination will not limit any of Analog Devices’ rights or remedies at law or in equity.
11. DISCLAIMER OF WARRANTIES. THE APP AND THIRD PARTY SOFTWARE AND ANY SUPPORT ARE PROVIDED “AS IS” WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND, AND ANALOG DEVICES, FOR ITSELF AND ITS AFFILIATES, HEREBY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE APP AND THIRD PARTY SOFTWARE AND ANY SUPPORT, INCLUDING, BUT NOT LIMITED TO, ANY EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY; FITNESS FOR ANY PARTICULAR PURPOSE; QUALITY AND ACCURACY OF INFORMATIONAL CONTENT; NON-INFRINGEMENT; QUIET ENJOYMENT; AND TITLE. LICENSEE AGREES THAT ANY EFFORTS BY ANALOG DEVICES OR ITS AFFILIATES TO MODIFY OR UPDATE THE APP OR THIRD PARTY SOFTWARE OR PROVIDE SUPPORT SHALL NOT BE DEEMED A WAIVER OF THESE LIMITATIONS, AND THAT ANY ANALOG DEVICES WARRANTIES SHALL NOT BE DEEMED TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE.
12. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY LAW ANALOG DEVICES (INCLUDING ITS AFFILIATES) SHALL NOT BE LIABLE FOR ANY DAMAGES ARISING FROM OR RELATED TO THE APP, THIRD PARTY SOFTWARE, THEIR USE OR ANY RELATED INFORMATION AND/OR SERVICES, INCLUDING BUT NOT LIMITED TO ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY, CONSEQUENTIAL OR ANALOGOUS DAMAGES (INCLUDING WITHOUT LIMITATION ANY DAMAGES RESULTING FROM LOSS OF USE, DATA, REVENUE, PROFITS, OR SAVINGS, COMPUTER DAMAGE OR ANY OTHER CAUSE), UNDER ANY LEGAL THEORY (INCLUDING WITHOUT LIMITATION CONTRACT, WARRANTY, TORT, NEGLIGENCE, STRICT OR PRODUCT LIABILITY), EVEN IF IT HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES.
IN NO EVENT SHALL ANALOG DEVICES’ CUMULATIVE LIABILITY FOR DAMAGES TO LICENSEE FOR ANY AND ALL CAUSES WHATSOEVER, REGARDLESS OF THE FORM OF ANY CLAIMS OR ACTIONS, EXCEED THE GREATER OF (1) ONE HUNDRED U.S. DOLLARS ($100.00 U.S.) OR (2) THE AMOUNT PAID TO ANALOG DEVICES HEREUNDER FOR THE APP. ANALOG DEVICES’ AFFILIATES, LICENSORS AND SUPPLIERS SHALL HAVE NO LIABILITY WHATSOEVER UNDER THIS AGREEMENT OR IN CONNECTION WITH THE APP OR ITS USE.
Some jurisdictions do not permit the exclusion or limitation of liability for consequential, incidental or other damages, and, as such, some portion of the above limitation may not apply to Licensee. In such jurisdictions, Analog Devices’ liability is limited to the greatest extent permitted by law.
13. HIGH RISK APPLICATIONS. THE APP IS NOT DESIGNED OR INTENDED FOR USE IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE PERFORMANCE, INCLUDING, WITHOUT LIMITATION, IN THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR CONTROL SYSTEMS, AIR TRAFFIC CONTROL, LIFE SUPPORT MACHINES, WEAPONS SYSTEMS, OR ANY OTHER APPLICATION IN WHICH THE FAILURE OF THE APP COULD LEAD TO DEATH, PERSONAL INJURY OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGES (“HIGH RISK ACTIVITIES”). THE APP IS NOT DESIGNED OR WARRANTED TO BE SUITABLE FOR USE IN CONNECTION WITH HIGH RISK ACTIVITIES. USE OF THE APP IN CONNECTION WITH HIGH RISK ACTIVITIES IS PROHIBITED.
14. Choice of Law. This Agreement and any dispute related to the App shall be governed by the laws of the Commonwealth of Massachusetts, United States of America, without reference to its principles of conflicts of laws, and, as to matters affecting copyrights, trademarks and patents, in addition, by applicable United States federal law. The parties agree that the jurisdiction and venue of any action with respect to this Agreement shall be in a court of competent subject matter jurisdiction located in Boston, Massachusetts, and each of the parties hereby agrees to submit itself to the exclusive jurisdiction and venue of such courts for the purpose of any such action, except that Analog Devices may seek equitable (including injunctive) relief and enforce judgements in any venue of its choosing. Licensee hereby submits to personal jurisdiction in such courts. The parties hereto specifically exclude the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act from this Agreement. The parties hereto waive any statute, law, or regulation that might provide an alternative law or forum or to have this Agreement written in any language other than English.
15. U.S. Government Restricted Rights. If the App or documentation provided by Analog Devices or its suppliers is procured by or on behalf of the United States Government, the Government agrees that such software or documentation is “commercial computer software” or “commercial computer software documentation” and that absent a written agreement to the contrary, the Government’s rights with respect to such App or documentation are limited by the terms of this Agreement, pursuant to FAR § 12.212(a) and/or DFARS § 227.7202-1(a), as applicable.
16. Export. Licensee shall only use the App in compliance with all applicable laws and regulations, including without limitation export control laws. Licensee agrees that it will not directly or indirectly export the App to another country except in full compliance with all applicable United States Federal Laws and Regulations and other laws and regulations relating to exports and imports. Licensee will not export/re-export, directly or indirectly, any software, information or technical data acquired under this Agreement or the “direct product” thereof to any country for which the United States Government or any agency thereof, at the time of export, requires an export license or other governmental approval, without first obtaining such license or approval. The term “direct product” as used herein means the immediate product (including processes and services) produced directly by the use of the technical data or information. In addition to the above, the App and/or any “direct product” thereof, may not be used by, or exported, transferred or re-exported to (i) any U.S. or U.N. or EU-sanctioned or embargoed country, or to nationals or residents of such countries; (ii) any person , entity, organization, or other party identified on the U.S. Department of Treasury’s lists of “Specially Designated Nationals and Blocked Persons” (iii) any associations, individuals, companies, entities, organizations found in the U.S. Department of Commerce’s Table of Denial Orders or Entity List, as published and revised from time to time (collectively known as the “Denied Parties List” or “Prohibited Parties List”); and/or (iv) any unauthorized or prohibited end-user engaged in any prohibited activities related to weapons of mass destruction, including without limitation, activities related to the design, development, production or use of nuclear weapons, materials, or facilities, missile or the support of missile projects, and chemical or biological weapons. Licensee understands that the foregoing obligations are legal requirements and agree that they shall survive any expiration or termination of this Agreement.
17. Compliance with Laws. Licensee shall comply with all laws, legislation, rules, regulations, governmental requirements and industry standards with respect to the App, and the performance by Licensee of its obligations hereunder, existing in any applicable jurisdiction. In the event that this Agreement is required to be registered with any governmental authority, Licensee shall notify Analog Devices in writing and cause such registration to be made and shall bear any expense or tax payable in respect thereof.
18. Assignment. This Agreement is personal to Licensee and Licensee may not transfer, sublicense, lease, rent, or assign its rights under this License, and any such attempt shall be null and void. Analog Devices may assign, transfer, or sublicense this Agreement or any rights or obligations hereunder at any time in its sole discretion.
19. Waiver; Modification; Severability. No waiver, consent, modification or change of terms of this Agreement shall bind either party unless in writing signed by both parties, and then such waiver, consent, modification or change shall be effective only in the specific instance and for the specific purpose given. If any provision of this Agreement is unenforceable, such provision shall be enforced to the extent possible under applicable law, and the remaining provisions will remain in effect.
20. Entire Agreement. This Agreement constitutes the entire, final, and complete agreement between the parties hereto relevant to the subject matter hereof, and supersedes any and all other agreements, either oral or in writing, between the parties with respect to the subject matter of this Agreement. Any term or condition incorporated in Licensee’s purchase order(s) or any other document provided by Licensee to Analog Devices which is in any way different from, inconsistent with or in addition to the terms and conditions set forth herein shall be of no effect, shall not apply to the licensing of the App, and shall not become a part of a contract between the parties or be binding upon Analog Devices. Analog Devices’ failure to object to terms contained in any communication from Licensee shall not be an acceptance of such terms or a waiver of the terms set forth in this Agreement. If, for any reason, any provision of this Agreement is held invalid, such invalidity shall not affect the remainder of this Agreement, and this Agreement shall continue in force and effect to the full extent allowed by law. For the avoidance of doubt, all the App under this Agreement is subject to the terms and conditions of this Agreement and not any agreement or terms for purchase of Analog Devices products, even if the App is delivered with such products.
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