Electromedical Products International, Inc.

END-USER LICENSE AGREEMENT (UNITED STATES)

Effective Date: January 2022

 

IMPORTANT – PLEASE READ THE TERMS OF THIS END-USER LICENSE AGREEMENT (THE “EULA”) CAREFULLY.  THIS EULA IS A BINDING, CONTRACTUAL AGREEMENT BETWEEN YOU AND ELECTROMEDICAL PRODUCTS INTERNATIONAL, INCORPORATED (“EPI”) AND APPLIES TO YOUR USE, AS APPLICABLE, OF EPI’S ALPHA-STIM® MOBILE APPLICATION, AND/OR ANY OTHER EPI SOFTWARE OR APPLICATION, INCLUDING ALL ENHANCEMENTS, VERSIONS, AND MODIFICATIONS TO THE FOREGOING (EACH AND COLLECTIVELY, THE “SOFTWARE”). THIS EULA APPLIES TO YOUR USE OF THIS SOFTWARE UNDER APPLICABLE UNITED STATES LAWS AND REGULATIONS. THIS EULA DOES NOT APPLY TO YOUR USE OF ANY OTHER EPI PRODUCTS AND SERVICES.

SEPARATE FROM THIS EULA, OTHER TERMS AND CONDITIONS SHALL APPLY WITH RESPECT TO YOUR PERSONAL AND/OR HEALTH DATA SUBMITTED AND COLLECTED THROUGH THE SOFTWARE. THESE ADDITIONAL TERMS AND CONDITIONS ARE CONTAINED IN EPI’S “PRIVACY POLICY & TERMS OF USE” (WILL NEED A LINK TO PRIVACY POLICY, ONCE THIS HAS A PRESENCE ON THE ALPHA-STIM WEBSITE), WHICH IS HEREBY INCORPORATED INTO THIS EULA.

BY INSTALLING AND USING THIS SOFTWARE, YOU ARE ACCEPTING AND AGREEING TO ALL TERMS AND CONDITIONS CONTAINED IN THIS EULA (AND THE PRIVACY POLICY & TERMS OF USE), AND MUST INDICATE YOUR AGREEMENT BY TAPPING THE CHECKBOX “I ACCEPT AND AGREE TO THE TERMS & CONDITIONS”.  IF YOU DO NOT WISH TO AGREE TO ALL OF THE TERMS AND CONDITIONS IN THIS EULA, DO NOT TAP THE “I ACCEPT AND AGREE TO THE TERMS & CONDITIONS” CHECKBOX, IN WHICH CASE YOU WILL NOT BE PERMITTED TO USE THE SOFTWARE.  YOUR TAP ON THE CHECKBOX CONSTITUTES YOUR ELECTRONIC SIGNATURE ON THIS EULA AND YOUR CONSENT TO EXECUTE THIS EULA ELECTRONICALLY.

BY ACCEPTING THE EULA AS DESCRIBED ABOVE, YOU (1) ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THIS EULA (AND THE PRIVACY POLICY & TERMS OF USE); (2) REPRESENT THAT YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT; AND (3) REPRESENT THAT YOU HAVE THE AUTHORITY TO ENTER INTO THIS EULA PERSONALLY. ONLY INDIVIDUALS MAY ENTER INTO THIS EULA. IF YOU DO NOT AGREE TO ALL THE TERMS AND CONDITIONS OF THIS EULA, OR IF YOU DO NOT HAVE SUCH AUTHORITY, YOU MUST NOT ACCEPT THIS EULA OR ACCESS, INSTALL, OR USE THIS SOFTWARE.

PLEASE NOTE THAT THIS EULA MAY APPLY TO EITHER (1) PATIENTS OF “EPI PRODUCTS AND SERVICES” (DEFINED IN THE PRIVACY POLICY & TERMS OF USE) WHO WILL USE THE SOFTWARE FOR THEIR OWN INFORMATION AND MENTAL HEALTH MANAGEMENT, OR (2) NON-PATIENT USERS (SUCH AS HEALTHCARE PROVIDERS, FAMILY MEMBERS, OR CAREGIVERS OF PATIENTS) OF EPI PRODUCTS AND SERVICES, WHO HAVE BEEN GIVEN AUTHORIZATION BY THE PATIENT TO ACCESS THE PATIENT’S DATA THROUGH THE USE OF THIS SOFTWARE.  WHERE ANY TERMS AND CONDITIONS OF THIS EULA APPLY TO ONE TYPE OF USER BUT NOT THE OTHER, THIS EULA WILL INDICATE SO THROUGH LABELS, TITLES, OR PREFACES.

Please note that this EULA is subject to change by EPI in its sole discretion at any time. When changes are made, EPI will provide an updated version of the EULA available in the Software. We will also update the “Last Updated” date at the top of this EULA. Depending on the nature of the update and the applicable data privacy and security laws, EPI may require you to provide an additional consent to the updated EULA in a specified manner before further use of the Software is permitted.

Patients of EPI Products and Services.  If you are a patient utilizing EPI Products and Services, please note that you must obtain certain EPI cranial electrotherapy stimulation (CES) and microcurrent electrical therapy (MET) equipment (“Equipment”) from a healthcare provider or supplier.  In some countries, such as the United States of America, obtaining Equipment requires a prescription.  Contact EPI, or your healthcare provider or supplier, for details on obtaining the Equipment.  The Software you are using (for example, the Alpha-Stim Mobile App) may not be fully functional without such Equipment.  The Software enables health information collected by the Equipment to be displayed and transmitted through the Software, and conveniently shared with your healthcare provider, family member, and/or caregiver. If the Software is installed on your mobile device, your device may need to be physically near the Equipment to enable full functionality. In addition, the maintenance and security of this Equipment may influence the performance of the Software. Under this EULA, it is your responsibility to ensure the Equipment’s maintenance and functionality.

Non-Patients of EPI Products and Services.  As an individual given authorization to access the personal and health information of a patient, your use of the Software will not require obtaining or purchasing the Equipment.  You understand and agree that your access to a patient’s data through this Software shall be permitted and determined only by the patient’s express authorization (which the patient may arrange for through the Software).  By utilizing this Software, you agree that your access and use of the patient data shall solely be for purposes defined by the patient, and consistent with monitoring and/or analyzing mental health symptoms and trends experienced by the patient.  You agree not to share the patient data with any third parties without the appropriate consent of the patient.  The patient, in his/her sole discretion, may choose to limit or terminate your access to their data through the Software at any time.

Our goal is to provide helpful and accurate information through the Software, but we make no endorsement, representation or warranty of any kind about any information displayed therein. We are not responsible for the correct use of information you receive through the Software. If you rely on any such information, you do so solely at your own risk. The Software is not intended to diagnose, treat, cure, or prevent any disease. If you are a patient, you must consult with a healthcare professional regarding your use of the Equipment. We are not responsible for any health problems that may result from information obtained through the Software.

1. SOFTWARE

1.1     License. Subject to your compliance with this EULA, EPI grants you a limited non-exclusive, non-transferable, non-sublicensable, revocable license to download, install and use a copy of the Software on a mobile device, tablet, and/or computer that you own or control, and to run such copy of the Software solely for your personal, non-commercial use.

1.2     Apple® and Android® App Stores. You acknowledge and agree that the availability of the Software is dependent on the third party from whom you received / downloaded the Software, i.e., the Apple App Store or Google® Play Store (“App Store”). With respect to any Software accessed through or downloaded from the Apple App Store (an “Apple-Sourced Application”), you will only use the Apple-Sourced Application (i) on an Apple-branded product that runs iOS® (Apple’s proprietary operating system) and (ii) as permitted by the “Usage Rules” set forth in the Apple App Store Terms of Service. (See also Section 1.3 below regarding additional terms for Software obtained through Apple iTunes.)  Similarly, with respect to any Software accessed through or downloaded from a Google Play Store, you will only use the Software (i) on a compatible Android device and (ii) as permitted by the applicable terms and conditions of the Google Play Store.

You acknowledge that this EULA is between you and EPI, and not with the App Store. EPI, not the App Store, is solely responsible for the Software, the content thereof, maintenance, support services, warranty, and addressing any claims relating thereto (e.g., product liability, legal compliance, or intellectual property infringement).  In order to use the Software with full functionality, you must have access to a wireless network or internet access, and you agree to pay all fees associated with such access. You also agree to pay all fees (if any) charged by an App Store in connection with the Software. You agree to comply with, and your license to use the Software is conditioned upon your compliance with, all applicable third-party terms of agreement (e.g., the App Store’s terms and policies) when using the Software.  You acknowledge that the App Store (and its subsidiaries) are third-party beneficiaries of this EULA and will have the right to enforce it.

1.3     Additional Terms for Software from Apple App Store (or iTunes). The following applies to any Software accessed through or downloaded from the Apple App Store:

(a)          You acknowledge and agree that (i) this EULA is between you and EPI only, and not Apple, and (ii) EPI, not Apple, is solely responsible for the Apple-Sourced Application and content thereof. Notwithstanding this, your use of the Apple-Sourced Application must comply with the applicable Apple App Store Terms of Service.

(b)          You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Apple-Sourced Application.

(c)           In the event of any failure of the Apple-Sourced Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the Apple-Sourced Application to you and to the maximum extent permitted by applicable law, but Apple will have no other warranty obligation whatsoever with respect to the Apple-Sourced Application. As between EPI and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of EPI.

(d)          You and EPI acknowledge that, as between EPI and Apple, Apple is not responsible for addressing any claims you have or any claims of any third party relating to the Apple-Sourced Application or your possession and use of the Apple-Sourced Application, including, but not limited to: (i) product liability claims; (ii) any claim that the Apple-Sourced Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.

(e)           You and EPI acknowledge that, in the event of any third party claim that the Apple-Sourced Application, or your possession and use of that Apple-Sourced Application, infringes that third party’s intellectual property rights, as between EPI and Apple, EPI, not Apple, will be solely responsible for the investigation, defense, settlement, and discharge of any such intellectual property infringement claim to the extent required by this EULA.

(f)             You and EPI acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of this EULA as related to your license of the Apple-Sourced Application, and that, upon your acceptance of this EULA and conditions of this EULA, Apple will have the right (and will be deemed to have accepted the right) to enforce this EULA as related to your license of the Apple-Sourced Application against you as a third party beneficiary thereof.

(g)          Without limiting any other terms of this EULA, you must compl