Welcome to Tonic Solutions' Tonic Health software application for iPad (the "App"). This End User License Agreement (the "Agreement") is a legal agreement between you, on behalf of yourself ("you"), and each participant who is submitting data in the specific study or program for which you are licensing the App (a "Participant"), and Tonic Solutions, LLC ("Tonic Solutions") governing your use and such Participant's use of the App. This Agreement is in addition to the Licensed Application End User License Agreement provided by Apple Computer, Inc. (the "Apple Terms"). In order to use the App (including, but not limited to accessing data or information from the App or Tonic Solutions or submitting any data or information to the App or Tonic Solutions) you and each Participant must first accept this Agreement by clicking "I AGREE" at the conclusion of this Agreement. By clicking "I AGREE" and/or using the App, you and each Participant agree to be bound by this Agreement. If you or a Participant do not accept and agree to be bound by this Agreement, you or such Participant must immediately discontinue use of the App. The terms of this Agreement will govern any updates or upgrades provided by Tonic Solutions that replace and/or supplement the original App, unless such update or upgrade is accompanied by a separate agreement in which case the terms of that agreement will govern.
1. Use of the App. You and each Participant agree that the App contains Tonic Solutions' proprietary content, information and material that is protected by applicable intellectual property and other laws, including, but not limited to, copyright, and that you and each Participant will not use such proprietary content, information or materials in any way whatsoever except for permitted use of the App as set forth in this Agreement. Tonic Solutions hereby grants to you and each Participant a limited, revocable, non-transferable and non-sublicensable license to use the App solely on an "Authorized Device" and as permitted by the Usage Rules set forth in the App Store Terms and Conditions (the "Usage Rules"). An Authorized Device is defined as a device authorized to display the App that you own or control or that is owned or controlled by a Participant. Except as set forth in the preceding sentence, this license does not allow you or a Participant to distribute or make the App available over a network where it could be used by multiple devices at the same time. Neither you nor any Participant may modify, rent, lease, lend, sell, redistribute or sublicense the App or any part thereof. Neither you nor any Participant may, may attempt to, or may permit any third party to or attempt to, reproduce, copy, decompile, reverse engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the App, any updates, or any part thereof, in any form or by any means. You and each Participant agree that your use of the App shall at all times be in conformity with applicable laws, rules and regulations ("Applicable Law"). You and each Participant further agree not to use the App in any manner to harass, abuse, stalk, threaten, defame or otherwise infringe or violate the rights of any person, and that Tonic Solutions is not in any way responsible for any such use by you or any Participant, nor for any harassing, threatening, defamatory, offensive or illegal messages or transmissions that you or any Participant may receive as a result of using any of the App. You and each Participant represent and warrant that you and each Participant will be responsible for the assignment of access and usage privileges to any user of the App, including, but not limited to, taking all reasonable steps to ensure that no unauthorized person shall have access to your Tonic Solutions' account (your "Account") or your Authorized Device. It is your sole responsibility to: (a) control your Authorized Device and access thereto; (b) control the dissemination and use of activation codes and passwords; (c) authorize, monitor, and control access to and use of your Account and password associated therewith; and (d) promptly inform Tonic Solutions of any need to deactivate your Account or password.
2. Data. You represent and warrant that: (a) all of the information and data submitted by you or any Participant on or in connection with the App (collectively, the "Data") is accurate and complete; and (b) you or the Participant has the authority to submit all such Data. You are responsible to ensure that all Data you or any Participant submits on or in connection with the App is accurate and complete at all times, including, but not limited to, correctly entering and timely updating Data. You acknowledge and agree that Tonic Solutions has the right to (i) take all steps necessary to confirm your identity or that of a Participant and otherwise verify Data, including but not limited to, the right to submit Data to third parties; (ii) otherwise use such Data in connection with the App for any legal purpose (including, without limitation, the right to share such Data with third parties); and (iii) use such Data to contact you regarding the App, or any other product or App that we believe might be of interest to you and you specifically consent to the foregoing uses of such Data. You and each Participant agree that Tonic Solutions cannot and does not assume any responsibility or liability for any information you or any Participant submits to the App or for your use or misuse of information transmitted or received in connection with the App, including, without limitation, the accuracy, completeness and reliability thereof. You agree that Tonic Solutions may collect and store the Data and information derived from your or a Participant's use of the App, technical data and related information, including, but not limited to, technical information about an Authorized Device, system and application software, and peripherals and may use such information (in a form that does not personally identify you or a Participant), including, but not limited to, facilitating the provision and improvement of the App, software updates, product support and other applications and technology. A more complete description of the information that Tonic Solutions collects and how it uses such information is available on the Tonic Solutions website at www.tonicforhealth.com/legal.html.
3. Eligibility. Tonic Solutions reserves the right, in its sole discretion, to determine eligibility for usage of the App or any part thereof and to deny access to the App or any part thereof to any party. You understand and agree that entering into this Agreement or submitting data hereunder is no guarantee that you will be approved for further use of the App or any part thereof.
4. NO WARRANTIES; DISCLAIMER. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE APP IS AT YOUR SOLE RISK AND THAT OF ANY PARTICIPANT, AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU AND THE PARTICIPANTS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE APP IS PROVIDED "AS IS" AND "AS AVAILABLE", WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND TONIC SOLUTIONS, ON ITS OWN BEHALF AND ON BEHALF OF ITS LICENSORS, EMPLOYEES, CONTRACTORS, SUPPLIERS AND ANY OTHER PARTIES WHO MAY BE ASSOCIATED WITH THE APP, TO THE MAXIMUM EXTENT PERMITTED BY LAW, DISCLAIM ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE APP, 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. TONIC SOLUTIONS DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OR A PARTICIPANT'S ENJOYMENT OF THE APP, THAT THE FUNCTIONS CONTAINED IN OR IN CONNECTION WITH, OR PROVIDED BY, THE APP WILL MEET YOUR REQUIREMENTS OR THOSE OF THE PARTICIPANTS, THAT THE OPERATION OF THE APP WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE APP WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY TONIC SOLUTIONS OR ITS AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. SHOULD THE APP PROVE DEFECTIVE, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION. NEITHER TONIC SOLUTIONS, NOR ANY OF ITS CONTENT PROVIDERS, GUARANTEES THE AVAILABILITY, ACCURACY, COMPLETENESS, RELIABILITY OR TIMELINESS OF INFORMATION OR DATA DISPLAYED BY THE APP.
5. MEDICAL ADVICE DISCLAIMER. The App is provided to collect data from consumers and patients on health care and medical issues that may affect their daily lives. The App does not constitute the practice of any medical, nursing or other professional health care advice, diagnosis or treatment. The contents of the App, such as text, graphics, images, logos, icons, data, graphs, audio, videos, computer programs and other material and information (collectively the "Content"), are for informational purposes only. THE CONTENT IS FOR GENERAL INFORMATIONAL PURPOSES ONLY AND IS NOT INTENDED TO BE A SUBSTITUTE FOR, OR TO BE RELIED UPON AS, PROFESSIONAL MEDICAL ADVICE, DIAGNOSIS OR TREATMENT. ALWAYS SEEK THE ADVICE OF YOUR PHYSICIAN OR OTHER QUALIFIED HEALTH CARE PROVIDER WITH ANY QUESTIONS YOU MAY HAVE REGARDING A MEDICAL CONDITION. NEVER DISREGARD PROFESSIONAL MEDICAL ADVICE OR DELAY IN SEEKING ADVICE BECAUSE OF SOMETHING YOU HAVE READ OR SEEN ON THE APP. Tonic Solutions does not recommend or endorse any specific tests, products, procedures, opinions, or other information that may be mentioned on the App. RELIANCE ON ANY INFORMATION PROVIDED BY TONIC SOLUTIONS, ITS EMPLOYEES, OTHERS APPEARING ON THE APP AT THE INVITATION OF TONIC SOLUTIONS, OR OTHER VISITORS TO THE APP IS SOLELY AT YOUR OWN RISK OR A PARTICIPANT'S OWN RISK.
6. LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY LAW, NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, IN NO EVENT SHALL TONIC SOLUTIONS, ITS EMPLOYEES, ITS LICENSORS, SUPPLIERS OR ANY THIRD PARTIES BE LIABLE TO YOU, ANY PARTICIPANT OR ANY THIRD PARTIES FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, PUNITIVE OR INCIDENTAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR PERSONAL INJURY, BODILY INJURY, MENTAL INJURY, SICKNESS, DEATH, BUSINESS INTERRUPTION, OR LOSS OF BUSINESS INFORMATION) OR DAMAGES FOR LOSS OF PROFITS OR REVENUES THAT MAY RESULT FROM OR IN CONNECTION WITH THE APP, INCLUDING, BUT NOT LIMITED TO, THE SUBMISSION, RECEIPT OR USE OF DATA HEREUNDER, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR EVEN IF SUCH POSSIBILITY WAS REASONABLY FORESEEABLE, REGARDLESS OF THE THEORY OF LIABILITY, WHETHER BASED ON WARRANTY, CONTRACT, TORT OR ANY OTHER LEGAL THEORY. TONIC SOLUTIONS SHALL BE LIABLE ONLY TO THE EXTENT OF ACTUAL DAMAGES INCURRED BY YOU, NOT TO EXCEED ONE HUNDRED DOLLARS ($100).
7. Indemnity. You and each Participant agree to defend, indemnify, and hold Tonic Solutions, its affiliates, officers, managers, members, employees, agents, licensors, and suppliers, harmless from and against any claims, actions or demands, liabilities, losses or settlements, including, but not limited to, reasonable legal and accounting fees, arising from, or alleged to arise from, your use or a Participant's use of the App, including, but not limited to, the provision, receipt or use of any Data submitted to Tonic Solutions hereunder, your breach or a Participant's breach of this Agreement, or your violation or a Participant's violation of any rights of another or Applicable Law.
8. Third Party Materials. The App may display, include or make available, at your direction or otherwise, services, content, data, information, applications or materials from third parties ("Third Party Materials"), and may provide links to certain third party websites. By using the App, you and each Participant acknowledge and agree that Tonic Solutions is not responsible for examining or evaluating the content, accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect of such Third Party Materials or websites, including, without limitation, the right of any third party to provide such Third Party Materials or websites free of infringement of the rights of others. Tonic Solutions 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 linked websites. Third Party Materials and links to other websites are provided solely as a convenience to you and the Participants.
9. Termination. The Agreement is effective until terminated by Tonic Solutions or you; provided, however, that upon termination, all of the legal rights, obligations and liabilities that you and Tonic Solutions have benefited from, been subject to (other than the license granted to you under Section 1) or which are expressed to continue indefinitely, shall be unaffected by such termination. Tonic Solutions may terminate your access and a Participant's access to the App at any time, for any reason, with or without prior notice to or explanation, and without liability. In addition, your rights under this Agreement will terminate automatically without notice from Tonic Solutions if you or a Participant fails to comply with any term(s) of this Agreement. Upon termination of this Agreement, you and all Participants shall cease all use of the App, and destroy all copies, full or partial, of the App.
10. Changes to this Agreement. Tonic Solutions reserves the right to modify this Agreement from time to time, without prior notice to you. The modified Agreement will be effective upon posting to the Tonic Solutions website. You understand and agree that your use of the App after the time of such a modification will constitute your acceptance of such Agreement as modified. All material modifications will apply prospectively only.
11. Export. Neither you nor any Participant may use or otherwise export or re-export the App except as authorized by United States law and the laws of the jurisdiction in which the App was obtained. In particular, but without limitation, the App 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 list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person's List or Entity List. By using the App, you represent and warrant that neither you nor any Participants are located in any such country or on any such list. You also agree that neither you nor any Participant will 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.
12. Dispute Resolution. This Agreement and any use of, or inability to use, the App shall be governed by and construed in accordance with the internal laws of the State of California, irrespective of choice of law principles. Any action pertaining to this Agreement or the App shall be tried exclusively in the federal or state courts in and for San Mateo County, California. You and all Participants hereby agree to submit to the exclusive jurisdiction of such courts.
13. General. Unless otherwise explicitly stated in another written agreement executed by each of you and Tonic Solutions, this Agreement constitutes the entire agreement between you and Tonic Solutions with respect to the App. If any provision of this Agreement is found to be unlawful, void, unenforceable or otherwise invalid, that provision is deemed severable from this Agreement and shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect. The failure of Tonic Solutions to exercise or enforce any right or provision of this Agreement will not operate as a waiver of such right or provision and no waiver of any term or condition of this Agreement shall be deemed a further or continuing waiver of such term or condition or of any other term or condition.
14. License Fees. You agree to the license fees for the App that are established by Tonic Solutions upon your license of the App; provided, however, that you may download the App for a single test use without charge.
15. Apple Terms. Except as set forth herein, the Apple Terms shall remain in full force and effect.