TERMS & CONDITIONS
END USER LICENSE AGREEMENT
Horos Mobile™ IS NOT a CE or FDA-approved viewer;
NOT SUITABLE FOR PRIMARY DIAGNOSIS.
iCat Solutions Ltd (“Application Provider ”) provides the application ("Licensed Application”) through which the Services (as defined below) are delivered and licensed to you ("You" or 'Your")) solely for use under the terms of this End User License Agreement (this "License"). Additional products or applications may also be provided to You which are accompanied and governed by separate license agreements. Application Provider reserves all rights not expressly granted to You. IF ANY OF THESE TERMS ARE UNACCEPTABLE TO YOU, DO NOT USE THE LICENSED APPLICATION OR THE SERVICE.
a.Scope of License.
This license granted to You for the Licensed Application is limited to a non-transferable license to use the Licensed Application on any iPhone, iPod Touch, iPad or similar device that You own or control and as permitted by the Usage Rules set forth in Section 9.b. of the App Store Terms and Conditions as may be amended from time to time (the “Usage Rules") to receive the services provided by Application Provider (the "Services”). This License does not allow You to use the Licensed Application on any device that You do not own or control, and You may not distribute or make the Licensed Application available over a network where it could be used by multiple devices at the same time. You may not rent, lease, lend, sell, redistribute or sublicense the Licensed Application. This license does not include any resale or commercial use of the Licensed Application or the Service. Further, You may not copy, decompile, reverse engineer, disassemble, attempt to derive the source code of, modify, or create any derivative works of the Licensed Application, any updates, or any part thereof (except as and only to the extent any foregoing restriction is prohibited by applicable law or to the limited extent as may be permitted by the licensing terms governing any open source components included within the Licensed Application). Any attempt to do so is a violation of the rights of the Application Provider and its licensors. If You breach this restriction, then You may be subject to prosecution and/or damages. This License will govern any upgrades provided by Application Provider that replace and/or supplement the original Product, unless such upgrade is accompanied by a separate license in which case the terms of that license will govern.
b.Consent to Use of Data.
You agree that Application Provider may collect and use technical data and related information including, but not limited to, technical information about Your device, system, application software, and peripherals, to facilitate the provision of the Services, updates, support and other services to You (if any). Subject to any limitations imposed by applicable law, Application Provider may also use or share this information with third parties as long as it is in a form that does not personally identify You, to improve and/or provide its products, services and technologies.
This License is effective until terminated by You or Application Provider. Your rights under this License will terminate automatically without notice from Application Provider if You fail to comply with any term of this License. Upon termination of this License, You shall cease all use of the Licensed Application, and delete or destroy all copies, full or partial, of the Licensed Application.
d.Services: Third Party Materials.
The Licensed Application enables access to the Services as well as third-party services and websites. Use of such Services and third-party services and websites may require Internet access and further require that You accept and comply with additional terms of service.
(i)You understand that by using the Licensed Application and the Services, You may encounter content, data, information, applications, links to third-party websites or other materials (“Third-Party Materials") that may be deemed offensive, indecent, explicit or otherwise objectionable, and that the results of any search or entering a particular URL may automatically and unintentionally generate links or references to such material. Accordingly, You agree to use the Licensed Application and the Services at Your sole risk and that Application Provider shall not have any liability to You for any Third-Party Materials that may be found to be offensive, indecent, explicit or otherwise objectionable.
(ii)By using the Application and the Services, You agree that Application Provider is not responsible for the content, accuracy, security, completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect of any Third Party Materials or websites. Application Provider does not warrant or endorse and does not assume and will not have any liability or responsibility to You or any other person for any Third Party Materials or websites, or for any other materials, products, or services of any third parties.
(iii)You agree that the Services may contain proprietary content, information and material that is protected by applicable intellectual property and other laws. You will not use such proprietary content, information or materials in any way whatsoever except for permitted use of the Services for personal use as described below. No portion of the Services may be reproduced in any form or by any means except for personal use as described below. You agree not to modify, rent, lease, Ioan, sell, distribute, or create derivative works based on the Services, in any manner, and You shall not exploit the Services in any unauthorized or illegal way. You further agree not to use the Services in any manner to harass, abuse, stalk, threaten, defame or otherwise infringe or violate the rights of any third party, and that Application Provider is not in any way responsible for any such use by You, nor for any harassing, threatening, defamatory, offensive or illegal messages or transmissions that You may receive as a result of using the Application or the Services.
(iv)You agree that the Services, third-party services and Third Party Materials may not be available in all languages or in all countries. Application Provider makes no representation that the Services, third-party services or Third-Party Materials are appropriate or available for use in any particular location. To the extent You choose to access any Services, third-party services or Third Party Materials, You do so at Your own risk and are responsible for compliance with all applicable laws including, but not limited to, all applicable local laws. Application Provider, and its licensors, reserve the right to change, suspend, remove, or disable access to any Service at any time without notice. In no event will Application Provider be liable for the removal or disabling of access to any such Service. Application Provider may also impose limits on the use of or access to certain Services, in any case and without notice or liability.
e.No Representations or Warranties.
(i)YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE LICENSED APPLICATION AND THE SERVICES IS AT YOUR SOLE RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE LICENSED APPLICATION AND ANY SERVICES ARE PROVIDED EXCLUSIVELY "AS lS" AND “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT ANY REPRESENTATION OR WARRANTY OF ANY KIND. APPLICATION PROVIDER HEREBY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS WITH RESPECT TO THE LICENSED APPLICATION AND THE SERVICES, EITHER EXPRESS, IMPLIED OR STATUTORY INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, CONTINUOUS OPERATION, AND NON-INFRINGEMENT. APPLICATION PROVIDER HEREBY DISCLAIMS ALL LIABILITY AND RESPONSIBILITY ARISING FROM ANY RELIANCE PLACED ON THE LICENSED APPLICATION AND SERVICES BY YOU. APPLICATION PROVIDER ACCEPTS NO RESPONSIBILITY FOR KEEPING THE LICENSED APPLICATION OR SERVICES UP TO DATE OR COMPLETE OR LIABILITY FOR ANY FAILURE TO DO SO.
APPLICATION PROVIDER DOES NOT WARRANT THAT THE SERVICE AND ANY PRODUCTS LICENSED WILL MEET YOUR REQUIREMENTS, THE SERVICE WILL BE UNINTERRUPTED, TIMELY SECURE, OR ERROR-FREE OR THAT ANY DEFECTS IN THE LICENSED APPLICATION OR SERVICES WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY APPLICATION PROVIDER OR ITS AUTHORIZED REPRESENTATIVES SHALL CREATE ANY WARRANTY.
SHOULD THE LICENSED APPLICATION OR SERVICES PROVE DEFECTIVE, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION.
(ii)You agree that the fees charged by Application Provider and paid by You are based on and reflective of the allocation of risk contemplated by this section and that the limitations in this section are an essential element of the agreement between You and Application Provider.
(iii)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.
f.Use of Licensed Application and Services.
You agree that the Licensed Application and Services are designed to be used solely by consumers under medical, physiotherapy or other appropriate medical professional supervision as part of a treatment plan prescribed by a qualified and licensed medical, physiotherapist or other appropriate medical practitioner. You warrant that You will not use, nor shall You permit, the Licensed Application or Services to be used except under such supervision and only as prescribed. The Licensed Application and Services do not constitute the practice of medicine and are neither professional medical nor physiotherapy advice.
Moreover, Licensed Application and Services are not designed to be used as a substitute for professional medical or physiotherapy advice or judgment. Due to the large variety of potential applications for the Licensed Application and Services, neither the Services nor the Licensed Application have been tested for all conditions.
You hereby indemnify and hold harmless, and upon Application Provider’s request, defend, Application Provider and its affiliates (and their respective directors, officers and employees) from and against any and all losses, liabilities, damages, costs or expenses (including reasonable attorneys' fees and costs) arising out of any claim, action, or proceeding brought by a third party based on: (i) your use of the Licensed Application and Service; (ii) a breach of any warranty, representation, covenant or obligation of yours under this Agreement: or (iii) your violation of any third party right. You will reimburse Application Provider and its affiliates on demand for any actual payments made in resolution of any liability or claim that is subject to indemnification under this Section g, provided that Application Provider attempts to obtain your written consent prior to making such payments, and such consent is not unreasonably withheld, delayed or conditioned. Application Provider shall promptly notify you of any such claim, and you shall assume control of the defense of such claim upon Application Provider's request. Application Provider shall have the right, at its expense, to participate in the defense thereof under your direction.
h. Limitation of Liability.
IN NO EVENT SHALL APPLICATION PROVIDER BE LIABLE FOR ANY PERSONAL INJURY, DEATH OR FOR ANY INCIDENTAL, SPECIAL, INDIRECT PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES WHATSOEVER INCLUDING, WITHOUT LIMITATION, ANY LOST PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION OR ANY OTHER DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE LICENSED APPLICATION OR THE SERVICES HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE) AND EVEN IF APPLICATION PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW OR RESTRICT THE LIMITATION OF LIABILITY FOR PERSONAL INJURY, DEATH, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU.
In no event shall Application Provider’s total liability to You for all damages (other than as may be required by applicable law in cases involving personal injury or death) exceed the amount of two hundred dollars (US$200.00). The forgoing limitations will apply even if the above stated remedy fails of its essential purpose.
YOU AND APPLICATION PROVIDER AGREE THAT ANY PROCEEDINGS TO RESOLVE OR LITIGATE ANY DISPUTE WILL BE CONDUCTED SOLELY ON AN INDIVIDUAL BASIS, AND THAT NEITHER YOU NOR APPLICATION PROVIDER WILL SEEK TO HAVE ANY DISPUTE HEARD AS A CLASS ACTION, A REPRESENTATIVE ACTION, A COLLECTIVE ACTION, A PRIVATE ATTORNEY-GENERAL ACTION, OR IN ANY PROCEEDING IN WHICH YOU OR APPLICATION PROVIDER ACTS OR PROPOSES TO ACT IN A REPRESENTATIVE CAPACITY YOU AND APPLICATION PROVIDER FURTHER AGREE THAT NO PROCEEDING WILL BE JOINED, CONSOLIDATED, OR COMBINED WITH ANOTHER PROCEEDING WITHOUT THE PRIOR WRITTEN CONSENT OF YOU, APPLICATION PROVIDER, AND ALL PARTIES TO ANY SUCH PROCEEDING.
i.The Licensed Application together with all intellectual property rights associated therewith or incorporated therein shall at all times remain the exclusive property of Application Provider and its licensors. The Licensed Application is protected by copyright under both United States and foreign laws.
j.You may not use or otherwise export or re-export the Licensed Application except as authorized by United States law and the laws of the jurisdiction in which the Licensed Application was obtained. In particular, but without limitation, the Licensed Application may not be exported or re-exported (i) into any U-S. embargoed countries or (ii) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person's List or Entity List. By using the Licensed Application, 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, missiles, or chemical or biological weapons.
k.The Licensed Application 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. 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.
l.No waiver by Application Provider of Your breach or default under this License shall be deemed to be a waiver of any subsequent breach or default.
m.If any part of this License is found void or unenforceable it will not affect the validity of the balance of the license which shall remain valid and enforceable according to its terms.
n.Application Provider may modify or discontinue this License from time to time. Any changes to this License will be posted on Application Provider‘s iTunes page. In addition, this License will always indicate the date it was last revised. You are deemed to have accepted and agreed to be bound by any changes to this License when You use the Licensed Application or Services after those changes are posted.
o.The laws of the State of California excluding its conflicts of law rules, shall govern this License and your use of the Licensed Application. Your use of the Licensed Application and the Services may also be subject to other local, state, national, or international laws.
p.Any dispute with Application Provider or any of its officers, directors, employees, agents or affiliates, arising under or in relation to this License shall be resolved exclusively through the applicable state or federal courts located in County of San Diego State of California, the small-claims court of the Superior Court of California within the City and County of San Diego, California, except with respect to imminent harm requiring temporary or preliminary injunctive relief in which case either party may seek such relief in any court with jurisdiction over the other party. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Licensed Application, the Service or this License must be filed within one (1) year after such claim or cause of action arose or be forever barred. You understand that, in return for agreement to this provision, Application Provider is able to offer the Licensed Application and Services to you on the designated terms, and that Your agreement to this provision is an indispensable consideration to this License. You acknowledge and understand that, with respect to any dispute with Application Provider or any of its officers, directors, employees, agents or affiliates, arising out of or relating to this License and/or Your use of the Licensed Application or Services:
•YOU ARE GIVING UP YOUR RIGHT TO HAVE A TRIAL BY JURY; and
• YOU ARE GIVING UP YOUR RIGHT TO SERVE AS A REPRESENTATIVE, AS A PRIVATE ATTORNEY GENERAL, OR IN ANY OTHER REPRESENTATIVE CAPACITY OR TO PARTICIPATE AS A MEMBER OF A CLASS OF CLAIMANTS, IN ANY LAWSUIT INVOLVING ANY SUCH DISPUTE.
q.This License represents the entire understanding between You and Application Provider regarding the Licensed Application and the Services and supersedes and prior agreements with respect to the licensing of the Licensed Application and provision of the Services to You.
(Last revision Feb 14th 2020)