VSTBalance™ Mobile End User License Agreement (EULA)
(Last Update: August 30, 2019)
This End User License Agreement (“Agreement”) is a binding agreement between you (“End User” or “you”) and VirtuSense Technologies, Inc. (“Company”). This Agreement governs your use of the VSTWell™ and/or VSTFit™ mobile application (including all related documentation and information available through the application, collectively, the “Application”). The Application is made available to you on a limited software-as-a-service basis, not sold, to you.
Limits on Who Can Use the Application: While the Application is available for free download through third parties for Apple® iOS and Google® Android® and Windows® operating system compatible devices, you are not authorized to use the Application, and will not be granted access to any content available through the Application, unless: (1) you are a patient of or recipient of treatment, therapy or other services from the Care Provider, who has requested that you access the Application (an “Individual User”); or (2) you are an employee or subcontractor of a Care Provider. A “Care Provider” is a healthcare provider, rehab or therapy center or senior living provider that has a separate enterprise subscription agreement with Company and has designated you as an authorized user of the Application and its companion VSTBalance software made available solely to enterprise users. You and the organization that has designated you as an authorized user of the Application are collectively referred to as the “Care Provider” in this Agreement.
Portions of this Agreement apply specifically to Individual Users, or specifically to Care Providers. Unless expressly indicated that certain terms in this Agreement are specific to one such group of users of the Application, all terms of this Agreement apply to and bind all users of the Application. References to “you” or “your” in this Agreement mean any user of the Application.
If you are a Care Provider, regardless whether the organization employing or engaging you has a separate enterprise agreement with Company, you may not access or use the Application or any protected health information or other medical records of an Individual User of the Application unless you consent to the terms of this Agreement. If you are a Care Provider, you are required to comply with any applicable privacy and security requirements of your organization protecting personal, health or medical information of an Individual User, including, without limitation, the Health Insurance Accountability and Portability Act (HIPAA) obligations of your organization.
Warning for Individual Users: The Application on its own is not intended to diagnose, treat, cure, or prevent any disease. If you have a medical or heart condition, consult your doctor or Care Provider prior to engaging in any exercises described in the Application. If you are an Individual User, your Care Provider is responsible for selecting and approving any exercises available through the Application, and you should direct any questions or concerns about the exercises to your Care Provider. It is recommended that you practice any exercises recommended by your Care Provider with your Care Provider first prior to engaging in them on your own (with or without reference to the Application). If you experience slightest of pain or discomfort or a medical emergency, stop using the Application and consult with a medical professional. Company is not responsible for any health problems that may result from using the Application. If you engage in any exercise you receive or learn about through the Application, you agree that you do so at your own risk and are voluntarily participating in these activities.
Warning for Care Providers: While the Application will suggest possible exercises for Individual Users to help improve balance, gait and other matters specific to parts of the body receiving treatment, you as the Care Provider are responsible to confirm that the exercises are appropriate for an Individual User under your care, and may and should limit exercise to that which is appropriate for the individual in your professional judgment. The Application is merely a tool and does not replace or substitute for professional judgment.
- Access Restrictions. You shall not, and shall not allow a third party, to: (a) copy the Application; (b) modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Application; (c) reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Application or any part thereof; (d) remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Application, including any copy thereof; (e) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Application, or any features or functionality of the Application, to any third party for any reason, including by making the Application available on a network where it is capable of being accessed by more than one device at any time; or (f) remove, disable, circumvent, or otherwise create or implement any workaround to any privacy protection, copy protection, rights management, or security features in or protecting the Application.
- Reservation of Rights. You acknowledge and agree that the Application is provided as a service under the terms of this Agreement, and not sold, to you. You do not acquire any ownership interest in the Application under this Agreement, or any other rights thereto other than to use the Application in accordance with the rights granted in Section 1 above, and subject to all terms, conditions, and restrictions, under this Agreement. Company and its licensors and service providers reserve and shall retain their entire right, title, and interest in and to the Application, including all copyrights, trademarks, and other intellectual property rights therein or relating thereto, except as expressly granted to you in this Agreement.
- Content and Services. The Application may provide Individual Users with access to exercise recommendations and other information elected for them by the Care Provider, certain historic statistics (such as balance or gait information) as well as access to the Individual User’s data input by themselves into the Application (such as information relating to how you feel or your fitness level (collectively, “Content and Services”). The Care Provider, Company and Company’s licensors reserve the right to change, suspend, remove and/or disable access to and/or use of the Content and Services at any time without notice.
- Updates. Company may from time-to-time in its sole discretion develop and provide Application updates, which may include upgrades, bug fixes, patches, other error corrections, and/or new features (collectively, including related documentation, “Updates”). Updates may also modify or delete in their entirety certain features and functionality. You agree that Company has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality of the Application. Based on your Mobile Device settings, when your Mobile Device is connected to the internet either: (a) the Application will automatically download and install all available Updates; or (b) you may receive notice of or be prompted to download and install available Updates. You agree that all Updates will be deemed part of the Application and be subject to all terms and conditions of this Agreement.
- Third-Party Materials. The Application may display, include, or make available third-party content (including instructions for exercises, videos of exercises, data, information, applications, and other products, services, and/or materials) or provide links to third-party websites or services (“Third-Party Materials”). You acknowledge and agree that Company is not responsible for Third-Party Materials, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect thereof. Company does not assume and will not have any liability or responsibility to you or any other person or entity for any Third-Party Materials. Third-Party Materials and links thereto are provided solely as a convenience to you, and you access and use them entirely at your own risk and subject to such third parties’ terms and conditions. Company reserves the right to change, suspend, remove, or disable access to any Third-Party Material at any time without notice or liability to you. In addition, the Third-Party Materials and any Content and Services accessed from, displayed on or linked to from Mobile Devices may not be available in all languages or in all countries. Company makes no representation that such Content and Services or Third-Party Materials are appropriate or available for use in any particular location. To the extent you choose to access such Content and Services or Third-Party Materials, you do so at your own initiative and are responsible for compliance with any applicable laws, including, but not limited to, applicable local laws.
- Care Provider Communications. From time-to-time, your Care Provider, if you are an Individual User, may send notices, alerts, and messages to you periodically through the Application. Depending on your Care Provider’s elections, you may change your notification preference settings in your profile on the Application. Company will not be liable for the misdelivery or non-receipt of any such notice or message.
- Suspension. Company may suspend, interrupt, terminate or limit any or all functionalities of the Application without prior notice. An Individual User may optionally suspend or cease using the Application in his/her discretion. If you are a Care Provider, check with your manager prior to suspending use of the Application, and consider that any suspension should not interrupt any current care needs of Individual Users under your care.
- Termination. This Agreement will apply to you, whether you are an Individual User or a Care Provider, for so long as you access or use the Application or retain any copies of the Application on your Mobile Device, whichever is longer. Company may terminate this Agreement at any time without notice and concurrently make all access to the Application inaccessible. Your rights to use the Application under Section 1 of this Agreement will terminate immediately and automatically without any notice requirement if you violate any of the terms and conditions of this Agreement. Upon such termination, all rights granted to you under this Agreement will also terminate and you must cease all use of the Application and delete all copies of the Application from your Mobile Device. Termination of your rights to access the Application will not limit any of Company’s rights or remedies at law or in equity. Sections 2, 3, 4, 10, 11, 12, 13, 14 and 15 as well as the sections entitled “Limits on Who Can Use the Application,” “Warning for Individual Users” and “Warning for Care Providers” shall survive termination of this Agreement.
- DISCLAIMER OF WARRANTIES. THE APPLICATION DOES NOT PROVIDE MEDICAL ADVICE, DIAGNOSIS OR TREATMENT AND IS NOT A SUBSTITUTE FOR THE CARE OF A MEDICAL PROFESSIONAL. THE APPLICATION OF MERELY A TOOL TO HELP INDIVIDUAL USERS IN TREATMENTS PRESCRIBED AND MONITORED BY THE CARE PROVIDER.
THE APPLICATION IS PROVIDED TO YOU “AS IS” AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, COMPANY, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE APPLICATION, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, COMPANY PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND, THAT THE APPLICATION WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE, OR WORK WITH ANY PARTICULAR SMART PHONE OR OTHER DEVICE OR OTHER SOFTWARE, APPLICATIONS, SYSTEMS, OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR-FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED. COMPANY MAKES NO REPRESENTATION OR WARRANTY THAT THE APPLICATION MAY BE ACCESSED OR USED OUTSIDE OF THE UNITED STATES OR THAT USE OF THE APPLICATION OUTSIDE THE UNITED STATES IS LEGALLY PERMITTED. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATIONS ON IMPLIED WARRANTIES OR THE LIMITATIONS ON THE APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.
- LIMITATION OF LIABILITY. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL COMPANY NOR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, HAVE ANY LIABILITY ARISING FROM OR RELATED TO THIS AGREEMENT OR YOUR USE OF OR INABILITY TO USE THE APPLICATION OR THE CONTENT AND SERVICES OR THIRD-PARTY MATERIALS FOR: (a) PERSONAL INJURY, PROPERTY DAMAGE, LOST PROFITS, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OF DATA, LOSS OF GOODWILL, BUSINESS INTERRUPTION, COMPUTER FAILURE OR MALFUNCTION, OR ANY OTHER CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES; OR (b) DIRECT DAMAGES IN AMOUNTS THAT IN THE AGGREGATE EXCEED FIFTY DOLLARS ($50.00). THE FOREGOING LIMITATIONS WILL APPLY WHETHER SUCH DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR COMPANY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY SO SOME OR ALL OF THE ABOVE LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU.
- INDEMNIFICATION. YOU AGREE TO INDEMNIFY, DEFEND, AND HOLD HARMLESS COMPANY, ITS AFFILIATES AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUCCESSORS, AND ASSIGNS FROM AND AGAINST ANY AND ALL LOSSES, DAMAGES, LIABILITIES, DEFICIENCIES, CLAIMS, ACTIONS, JUDGMENTS, SETTLEMENTS, INTEREST, AWARDS, PENALTIES, FINES, COSTS, OR EXPENSES OF WHATEVER KIND, INCLUDING REASONABLE ATTORNEYS’ FEES, ARISING FROM OR RELATING TO YOUR USE OR MISUSE OF THE APPLICATION OR YOUR BREACH OF THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO THE CONTENT AND INFORMATION YOU SUBMIT OR MAKE AVAILABLE THROUGH THE APPLICATION.
- Additional Terms:
- Export Regulation. The Application may be subject to United States export control laws, including the United States Export Administration Act and its associated regulations. You shall not, directly or indirectly, export, re-export, or release the Application to, or make the Application accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. You shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Application available outside the United States.
- Severability. If any provision of this Agreement is illegal, invalid or unenforceable under applicable law, such illegal, invalid or unenforceable provision shall be deleted from this Agreement and the remaining provisions will continue in full force and effect.
- Governing Law. This Agreement is governed by and construed in accordance with the internal laws of the state of Illinois without giving effect to any choice or conflict of law provision or rule.
- Arbitration; Fees. Any controversy or claim arising out of or relating to this Agreement or the Application shall be settled by arbitration in Peoria, Illinois, administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator(s) may be entered in any court of competent jurisdiction. For the avoidance of doubt, the foregoing arbitration provision does not apply to any action taken by Company to enforce its intellectual property rights or to seek injunctive relief. If Company is the prevailing party in any arbitration proceeding or lawsuit against or involving you, then you shall pay Company’s reasonable attorneys' fees, costs and expenses incurred in such arbitration proceeding or lawsuit. Arbitration proceedings are confidential, unless all parties agree otherwise in writing.
- Waiver of Class Action. Neither you nor Company shall be entitled to join or consolidate claims in arbitration by or against other users with respect to other accounts, bring mass, class action, or consolidated claims in arbitration or in a court of competent jurisdiction, or arbitrate or litigate any claim as a representative or user of a class or in a private attorney general capacity. The arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of a representative or class proceeding. The arbitrator shall only have the authority to resolve individual disputes between you and Company.
- Electronic Communications. You hereby agree to the use of electronic communications in order to enter into this Agreement, to create other records and to the electronic delivery of notices between you and Company with respect to the Application and this Agreement.
- Waiver. No failure to exercise, and no delay in exercising, on the part of Company, any right or any power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or power hereunder preclude further exercise of that or any other right hereunder.
- Amendment. Company may amend and update this Agreement in the future and any such amendment will be effective upon the earliest of Company’s posting of the updated agreement on or through the Application, or Company providing notice of the update to you otherwise. Your access or use of the Application after the effective date of any such amendment or update to this Agreement constitutes your acceptance of the amended or updated Agreement.
- Suggestions. With respect to any feedback, data, answers, questions, comments, suggestions, ideas or the like that you provide (“Feedback”) to Company, whether using the Application, or otherwise, regarding the Application, you agree that: you have the right to provide the Feedback to Company; Company has no obligation to review, consider or act upon any Feedback; the Feedback is not confidential; and Company has the irrevocable and unconditional right to use, implement, modify and publish the Feedback without attribution or compensation to you.
- Company Contact Information. Questions, complaints or claims with respect to the Application should be directed to VirtuSense Technologies, 801 W Main Street, Peoria, IL 61606, Attention: Support at firstname.lastname@example.org.
- Third Party Provisions.
- If you downloaded the Application from the Apple® App Store™, then this Section 15(a) applies to you. You acknowledge that: (i) this Agreement is between you, as the end user, and Company; (ii) Company, not Apple, Inc. (“Apple”), is solely responsible for the Application and the content therein as between Apple and Company; (iii) Apple has no obligation to furnish any maintenance or support for the Application; Company, not Apple, is responsible for addressing any claims of the end user or any third party relating to the Application or the end user’s possession and/or use of the Application, including, but not limited to product liability claims; any claim that the Application fails to conform to any applicable legal or regulatory requirement; and claims arising under consumer protection or similar legislation; and (iv) in the event of any third party claim that the Application or the end user’s possession and use of that Application infringes that third party’s intellectual property rights, Apple will have no responsibility for the investigation, defense, settlement and discharge of any such intellectual property infringement claim. In the event of any failure of the Application to conform to any applicable warranty, Apple will have no warranty obligation whatsoever with respect to the Application, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any applicable warranty will be Company’s responsibility. However, in the event of any failure of the Application to conform to any applicable warranty, you may notify Apple. You represent and warrant that (A) you are 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 (B) you are not listed on any U.S. Government list of prohibited or restricted parties. You and Company acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of this Agreement, and that, upon your acceptance of the terms and conditions of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against the end user as a third party beneficiary thereof. Your use is subject to Apple’s Usage Rules as set forth in its App Store Terms of Service.
- If you downloaded the Application from the marketplace known as Google Play® operated by Google Inc. (“Google”), then this Section 15(b) applies to you. For the purposes of this Section 15(b) only, if there is a conflict between the Google Play Developer Distribution Agreement (the “Google Play Agreement”) and this Agreement, the Google Play Agreement will control. You acknowledge and agree that each member of the group of companies of which Google is the parent shall be a third-party beneficiary to this Agreement and that all such companies shall be entitled to directly enforce, and rely upon, any provision of this Agreement that confers a benefit on (or rights in favor of) it or them.