IMPORTANT – PLEASE READ CAREFULLY: This End User License Agreement (the “Agreement”) states the terms and conditions under which Apollo Neuroscience, Inc. (“Apollo,” “we,” “us” and “our”) licenses its software to persons (“you” or “End Users”) who download, access via an app store, install and/or use, our software, including the firmware on any of our devices, any Apollo applications (or apps), and all updates and upgrades thereto (collectively, the “Software”). The Software is licensed not sold, to you. Your use of the Software is conditioned expressly on your acceptance of this Agreement. If you do not agree with all of these terms, do not download, install, or otherwise use the Software. If you have already downloaded or installed it but do not agree with all of these terms, you must not use it and you must delete it. Apollo reserves all rights in and to the Software that are not expressly granted to you under this Agreement.
The Apollo Neuroscience, Inc. products and components are covered by United States and worldwide patents and/or design registrations. Please refer to https://apolloneuro.com/pages/patents
- License Grant: Apollo grants to you a non-sublicensable, non-transferable, non-exclusive license to use the Software solely in connection with an Apollo Neuro device that is owned and controlled by you. The terms of this Agreement will govern any content, materials, or services accessible from or purchased with the Software as well as any updates or upgrades we provide that replace or supplement the original Software, unless such updates or upgrades are accompanied by different license terms.
This license does not include software, code or related materials from third parties, including, but not limited to “open source” or “freeware” software, that is distributed, provided with, or otherwise made use of by the Software (“Third Party Software”) and which is licensed under different license terms that accompany such Third Party Software. You acknowledge and agree that these accompanying license terms govern your use of any Third Party Software. Nothing in this Agreement limits your rights under, or grants you rights that supersede, the license terms that accompany any Third Party Software. [For your convenience, we provide you with a list of the Third Party Software that may be contained in the Software on our website (https://help.apolloneuro.com/hc/en-us/articles/4406213840663).]
- License Restrictions: You may not:
- Copy, modify, or encumber the Software;
- Reverse engineer, disassemble, decompile or otherwise attempt to discover the source code or structure, sequence and organization of the Software (except where the foregoing is expressly permitted by applicable local law, and then only to the extent so permitted) or create any derivative works including, without limitation, customization, translation or localization of the Software;
- Distribute, sell, license, sublicense, rent, lease, lend, transfer or otherwise provide access to the Software to any third party (except for firmware present on your Apollo Neuro device when you sell that device to another person, who in such case will become our direct licensee under the terms and conditions of this Agreement);
- Remove or obscure any proprietary notices on or in the Software;
- Use the Software for performing comparison or other “benchmarking” activities; and
- Use the Software for any purpose and in any manner not expressly authorized herein.
- Term and Termination: This Agreement is effective until terminated by you or by Apollo. Apollo may terminate your rights under this Agreement immediately, and without notice to you, if you fail to comply with any of its terms. Upon expiration or termination of this Agreement for any reason, the license granted hereunder will terminate and you will stop using the Software. Subject to applicable law, Apollo reserves the right to terminate, change, suspend, remove, disable or impose access restrictions or limits on any Software or External Services (as defined below) at any time without notice or liability to you.
- External Services: The Software may enable access to Apollo’s and/or third-party services and websites (collectively and individually, "External Services"). You agree to use the External Services at your sole risk. We are not responsible for examining or evaluating the content or accuracy of any third-party External Services, and shall not be liable for any such third-party External Services. Data displayed by any Software or External Service, including but not limited to financial, medical and location information, is for general informational purposes only and is not guaranteed by Apollo or its agents. You will not use the External Services in any manner that is inconsistent with the terms of this Agreement or that infringes the intellectual property rights of Apollo or any third party. You agree not to use the External Services to harass, abuse, stalk, threaten or defame any person or entity, and that we are not responsible for any such use. External Services may not be available in all languages or in your home country, and may not be appropriate or available for use in any particular location. To the extent you choose to use such External Services, you are solely responsible for compliance with any applicable laws.
- NO WARRANTY: YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE SOFTWARE AND THIRD PARTY SOFTWARE IS AT YOUR SOLE RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SOFTWARE, THIRD PARTY SOFTWARE AND ANY SERVICES PERFORMED OR PROVIDED BY THE SOFTWARE OR THIRD PARTY SOFTWARE ARE PROVIDED "AS IS" AND “AS AVAILABLE,” WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND APOLLO AND ITS LICENSORS HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE SOFTWARE, THIRD PARTY SOFTWARE AND ANY SERVICES, 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, OF NON-INFRINGEMENT, ANY WARRANTIES ARISING BY STATUTE, OPERATION OF LAW, COURSE OF DEALING OR PERFORMANCE, OR USAGE OF TRADE, THAT SOFTWARE OR THIRD PARTY SOFTWARE WILL BE COMPATIBLE OR WORK WITH ANY THIRD PARTY SOFTWARE OR HARDWARE OR ANY OTHER APOLLO PRODUCTS, OPERATION OF THE SOFTWARE OR THIRD PARTY SOFTWARE WILL BE UNINTERRUPTED, RELIABLE, ENTIRELY SECURE, VIRUS FREE OR ERROR FREE, OR WILL MEET YOUR REQUIREMENTS, AS TO THE RESULTS WHICH MAY BE OBTAINED FROM THE USE OF THE SOFTWARE OR THIRD PARTY SOFTWARE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY APOLLO OR ITS AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. SHOULD THE SOFTWARE, THIRD PARTY SOFTWARE OR SERVICES PROVE DEFECTIVE, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR, OR CORRECTION. 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 TO YOU.
- LIMITATION OF LIABILITY: TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL APOLLO BE LIABLE FOR PERSONAL INJURY OR ANY INCIDENTAL, SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, LOSS OF GOODWILL, BUSINESS INTERRUPTION, OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OF OR INABILITY TO USE THE SOFTWARE, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT, OR OTHERWISE) AND EVEN IF APOLLO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU. In no event shall Apollo’s total liability to you for all damages (other than as may be required by applicable law in cases involving personal injury) exceed the amount of fifty dollars ($50.00). The foregoing limitations will apply even if the above stated remedy fails of its essential purpose.
- Indemnification: You agree to defend, indemnify and hold harmless Apollo, our affiliates and the respective agents, employees and officers from and against damages, liabilities, costs and expenses, including reasonable legal fees, arising out of or relating to your use of the Software.
- Export: You may not use or otherwise export or re-export the Software except as authorized by United States law and the laws of the jurisdiction in which the Software was obtained. In particular, but without limitation, the Software may not be exported or re-exported (a) into any U.S.-embargoed countries or (b) to anyone on the U.S. Treasury Department's Specially Designated Nationals List or the U.S. Department of Commerce Denied Persons List or Entity List. By using the Software, you represent and warrant that you are not located in any such country or on any such list. You also agree that you will not use these products for any purposes prohibited by United States law, including, without limitation, the development, design, manufacture, or production of nuclear, missile, or chemical or biological weapons.
- Government Use: The Software and any 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. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to 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. Unpublished-rights reserved under the copyright laws of the United States.
- Amendments: We reserve the right, in our sole discretion, to modify or replace this Agreement, with or without prior notice. If we make material changes to this Agreement that negatively affect you, we will notify you [through the Software]. Your continued use of the Software constitutes your acceptance of any modifications to this Agreement.
- Governing Law: This Agreement will be governed by the laws of The Commonwealth of Pennsylvania applicable to agreements made and to be performed wholly within Pennsylvania, without regard to its conflicts of laws principles, unless you are a citizen of any European Union country or Switzerland, Norway or Iceland, the governing law and forum shall be the laws and courts of your usual place of residence. You agree that the federal or state courts sitting in Pittsburgh, Pennsylvania, shall be the exclusive courts of jurisdiction and venue for any litigation, special proceeding or other proceeding as between the parties that may be brought, or arise out of, or in connection with, or by reason of this Agreement. You hereby submit to and consent irrevocably to the jurisdiction of such courts for these purposes. You hereby irrevocably waive any and all right to trial by jury in any legal proceeding arising out of or related to this Agreement. The United Nations Convention on Contracts for the International Sale of Goods is expressly disclaimed.
- Miscellaneous: If any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions of this Agreement will remain in full force. The waiver by either party of a breach of any provision of this Agreement or the failure by either party to exercise any right hereunder shall not operate or be construed as a waiver of any subsequent breach of that right or as a waiver of any other right. You may not assign any of your rights or delegate any of your obligations under this Agreement, by operation of law or otherwise, without the prior written consent of Apollo. Any attempted assignment without such consent shall be void. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.