End User License Agreement
This End User License Agreement (“Agreement”) is a binding agreement between you (“End User” or “you”) and Beatrice Health, LLC, through its BoundaryCare application (“Company”). This Agreement governs your use of the BoundaryCare on mobile platforms and websites, (including all related documentation, the “Application”). The Application is licensed, not sold, to you.
BY DOWNLOADING OR ACCESSING THE APPLICATION, YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENT THAT YOU OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT; AND (C) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT DOWNLOAD OR ACCESS THE APPLICATION AND/OR DELETE IT FROM YOUR DEVICE.
BoundaryCare is an application operating on mobile platforms and on websites, in communication with cloud-based services. BoundaryCare is designed to allow a user to (i) monitor metrics concerning the health, safety, wellbeing, and location of himself or herself, or of a person in their care, (ii) to configure various thresholds for these metrics, (iii) to receive alerts whenever metrics concerning the monitored user cross a threshold, (iv) to communicate with that user via phone, messages, reminders, and surveys, and (v) receive information pertaining to the monitored user’s location and status. DO NOT RELY ON BOUNDARYCARE TO PROVIDE ANY MEDICAL SERVICES FOR YOURSELF OR FOR A LOVED ONE. BoundaryCare is not designed to be the sole or primary manner in which you monitor or care for a loved one. The BoundaryCare application is not designed or intended for use in the diagnosis of disease or other conditions, or in the cure, mitigation, treatment, or prevention of disease or bodily condition.
1. License Grant. Subject to the terms of this Agreement, Company grants you a limited, non-exclusive, and nontransferable license to:
(a) download, install, and use the Application for your personal, non-commercial use on devices owned or otherwise controlled by you (“Device”) strictly in accordance with the Application’s documentation; and
2. License Restrictions. You shall not:
(a) copy the Application, except as expressly permitted by this license;
(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 copy protection, rights management, or security features in or protecting the Application
(g) use the Application for any unlawful purpose, or to harm, harass, or otherwise infringe upon the rights or welfare of another person;
(h) download or install the Application on any device without the express knowledge or consent of the owner of the device, the person in possession of the device, and/or the knowledge or consent of the person with Power of Attorney or other lawful authority related to such person(s).
These terms strictly prohibit the use of BoundaryCare to track or monitor any person without their consent. You may not use BoundaryCare for any malicious or nefarious purpose or for any other purpose not specifically consented to by the Care Recipient or by any other person being monitored through BoundaryCare. You expressly affirm that End Users have knowledge of, and has consented to the use of, BoundaryCare users, you have explained how and why you have chosen to use BoundaryCare, and how the use of BoundaryCare will impact the Care Recipient’s life and privacy, and that person agrees. To the extent that any user does not have legal capacity to give such consent, by downloading the Application, you affirm that you have sufficient legal rights to give consent on any End User’s behalf and that you, on behalf of such persons, give consent to using BoundaryCare. You are responsible for providing all disclosures related to the collection of personal information to all End Users you cause or direct to download the Application.
3. Reservation of Rights. You acknowledge and agree that the Application is provided under license, 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 license granted, 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, patents or patentable subject matter, and other intellectual property rights therein or relating thereto, except as expressly granted to you in this Agreement. Company may use de-identified data to create aggregated/combined data, reports, and analyses from any data that is collected or provided through the Application (such aggregated, combined, enriched, de-identified data, reports, and analyses are “Company Data”). Without limiting the generality of the foregoing, Company Data shall also include: (a) the results of Company’s analytics, enhancements and modifications to Company Data, (b) any feedback related to the Application (as further set forth below); and (c) Company’s learnings from providing Services. Company owns the Company Data, and all intellectual therein, and may use Company Data for its own lawful business purposes including providing third-party End Users with data products and services derived from Company Data. If you or any of your care team, or any of their employees or contractors sends or transmits any communications or materials to Company by mail, email, telephone, or otherwise, suggesting or recommending changes to the Application or related documentation, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), Company is free to use such Feedback irrespective of any other obligation or limitation. End User hereby assigns to Company on End User’s behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in, and Company is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although Company is not required to use any Feedback. Any Feedback shall not be considered derivative to any other copyright or other rights.
6. NO MEDICAL ADVICE AND NOT A MEDICAL DEVICE.
The Content and Services provided by Company are for educational and informational purposes only and should not be considered medical advice, diagnosis or treatment. If you have any healthcare-related questions, please call or see your physician or other qualified health care provider without delay. Company is not liable for any diagnostic or treatment decision made by you in reliance on any information provided through the Application. Should any medical event occur while you are using the Application, please seek medical advice, diagnosis or treatment without delay. Your reliance on any information made available through your use of the Application is solely at your own risk.
THIS APPLICATION IS NOT A MEDICAL DEVICE CLEARED, APPROVED, OR OTHERWISE CERTIFIED BY THE FDA, OR ANY OTHER REGULATORY AGENCY. The Application is not designed or intended for use in the diagnosis of disease or other conditions, or in the cure, mitigation, treatment, or prevention of disease or bodily condition. IT IS A GENERAL WELLNESS PRODUCT INTENDED TO ASSIST IN MAINTAINING OR ENCOURAGING A GENERAL STATE OF HEALTH OR A HEALTHY ACTIVITY. IT ADDITIONALLY MAY SERVE FUNCTIONS RELATED TO THE COLLECTION, STORAGE, TRANSMISSION AND RETENTION OF PATIENT RECORDS FOR ADMINISTRATIVE FUNCTIONS RELATED TO HEALTH CARE AND LONG-TERM CARE ACTIVITIES. IT IS NOT INTENDED TO ANALYZE, AND DOES NOT ANALYZE, HEALTH RELATED INFORMATION. THE APPLICATION NOTIFIES CARE TEAMS WITH AUTHORITY OF GEOLOCATION AND OTHER PATIENT HEALTH PARAMETERS.
If you acquire the Application through a service provider, healthcare organization, or other entity that is paying for the Application on your behalf, you must handle subscription and unsubscription procedures directly with that entity.
We may offer different subscription plans for purchasing access to the Application (each, a “Subscription”). WHEN YOU PURCHASE A SUBSCRIPTION, (I) YOU AUTHORIZE THE AUTHORIZED DISTRIBUTOR YOU USE TO ACQUIRE THE VIRTUAL ITEMS TO CHARGE YOUR DESIGNATED PAYMENT METHOD FOR THE PERIOD (E.G., WEEKLY, MONTHLY OR ANNUALLY) SPECIFIED IN YOUR SUBSCRIPTION (IN ADDITION TO ANY APPLICABLE TAXES AND OTHER CHARGES) FOR AS LONG AS YOUR SUBSCRIPTION CONTINUES, AND (II) YOUR SUBSCRIPTION IS CONTINUOUS UNTIL YOU CANCEL IT OR WE SUSPEND OR STOP PROVIDING ACCESS TO OUR SERVICES OR PRODUCTS IN ACCORDANCE WITH THESE TERMS. The Subscription period (or an indication that the Subscription will continue until cancelled), how to cancel your Subscription, the cost of the Subscription you purchase and any other material terms are disclosed prior to purchase and may be confirmed via email by Company and/or the applicable Authorized Distributor.
YOU MAY CANCEL YOUR SUBSCRIPTION THROUGH THE TOOLS MADE AVAILABLE BY THE APPLICABLE AUTHORIZED DISTRIBUTOR. SUBSCRIPTIONS MUST BE CANCELLED BEFORE THE BILLING OR RENEWAL DATE IN ORDER TO AVOID BEING CHARGED FOR THE NEXT SUBSCRIPTION PERIOD. IF YOU CANCEL YOUR SUBSCRIPTION AFTER THE APPLICABLE BILLING OR RENEWAL DATE, IT WILL NOT TAKE EFFECT UNTIL THE FOLLOWING SUBSCRIPTION PERIOD. YOU WILL BE RESPONSIBLE FOR ALL CHARGES (INCLUDING ANY APPLICABLE TAXES AND OTHER CHARGES) INCURRED WITH RESPECT TO ANY SUBSCRIPTION ORDER PROCESSED PRIOR TO THE EFFECTIVE DATE OF YOUR CANCELLATION. In the event of an error, we reserve the right to correct such error and revise your order accordingly (which includes charging the correct price) or to cancel the order and refund any amount charged.
All prices for the Application or Subscriptions do not include applicable taxes and other charges, unless we state otherwise. Prices are subject to change at any time, but changes will not affect any order you have already placed. You are responsible for any sales, use, value-added or other governmental taxes, fees or duties due with respect to your order. We may collect applicable taxes if we determine we have a duty to collect taxes.
8. Geographic Restrictions. The Content and Services are based in the state of Minnesota in the United States and provided for access and use only by persons located in the United States. You acknowledge that you may not be able to access all or some of the Content and Services outside of the United States and that access thereto may not be legal by certain persons or in certain countries. If you access the Content and Services from outside the United States, you are responsible for compliance with local laws.
9. 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. Based on your Device settings, when your 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 shall promptly download and install all Updates and acknowledge and agree that the Application or portions thereof may not properly operate should you fail to do so. You further agree that all Updates will be deemed part of the Application and be subject to all terms and conditions of this Agreement.
10. Third-Party Materials. The Application may display, include, or make available third-party content (including data, information, applications, and other products, services, and/or materials) or provide links to third-party websites or services, including through third-party advertising (“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.
11. Term and Termination.
(a) The term of Agreement commences when you download the Application and will continue in effect until terminated by you or Company as set forth in this Agreement.
(b) You may terminate this Agreement by deleting the Application and all copies thereof from your Device and cancelling your subscription in the App Store.
(c) Company may terminate this Agreement at any time without notice if it ceases to support the Application, which Company may do in its sole discretion. In addition, this Agreement will terminate immediately and automatically without any notice in its sole discretion for any reason, including but not limited to if you violate any of the terms and conditions of this Agreement, to prevent unlawful activity or at the direction of a Court, or a person with authority over a device user, or due to nonpayment.
(d) Upon termination:
(i) all rights granted to you under this Agreement will also terminate; and
(ii) you must cease all use of the Application and delete all copies of the Application from your Device and account.
(e) Termination will not limit any of Company’s rights or remedies under this Agreement, at law, or in equity.
12. Disclaimer of Warranties. THE APPLICATION IS PROVIDED TO END USER “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 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. ALL LIABILITY, IF ANY REMAINS, IS LIMITED TO THE AGGREGATE AMOUNT PAID TO COMPANY FOR THE LAST TWELVE (12) MONTHS OF SERVICE THROUGH THE APPLICATION.
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.
13. Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL COMPANY OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, HAVE ANY LIABILITY ARISING FROM OR RELATED TO YOUR USE OF OR INABILITY TO USE THE APPLICATION OR THE CONTENT AND SERVICES 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, INCLUDING AND NOT LIMITED A GROSS, WILLFUL, OR OTHERWISE NEGLIGENT FAILURE TO PROVIDE THE STATED SERVICES. THE SOLE RESPONSIBILITY FOR PATIENT CARE AND MONITORING IS WITH THE CARE TEAM. IN NO EVENT SHOULD RESPONSIBILITY OR RELIANCE FOR PATIENT CARE OR CARE PARAMETERS BE PLACED WITH THE APPLICATION. CARE FACILITIES OR PERSONS MUST ENSURE THAT ADEQUATE MEASURES ARE IN PLACE TO PROTECT PERSONS OR PATIENTS SUFFERING FROM DEMENTIA OR RELATED ILLNESSES. THE APPLICATION SERVES ONLY AS AN ADDITIONAL OR COMPLIMENTARY TOOL TO SUCH MEASURES. COMPANY ASSUMES NO RESPONSIBILITY FOR SERVICE INTERRUPTIONS OR OTHER TECHNICAL ERRORS RESULTING IN HARM TO PATIENTS OR OTHER PERSON(S).
(b) DIRECT DAMAGES IN AMOUNTS THAT IN THE AGGREGATE EXCEED THE AMOUNT ACTUALLY PAID BY YOU FOR THE APPLICATION OVER THE COURSE OF THE PRECEDING TWELVE (12) MONTHS.
(c) ACTUAL OR ALLEGED VIOLATIONS OF LAW RELATED TO THE COLLECTION, RETENTION, OR MAINTENANCE OF PERSONAL INFORMATION AS PERMITTED BY THIS AGREEMENT.
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.
14. Indemnification. You agree to indemnify, defend, and hold harmless Company and its officers, directors, employees, agents, affiliates, 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 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 you submit or make available through this Application.
15. Export Regulation. The Application may be subject to US export control laws, including the Export Control Reform 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 US.
16. US Government Rights. The Application is commercial computer software, as such term is defined in 48 C.F.R. §2.101. Accordingly, if you are an agency of the US Government or any contractor therefor, you receive only those rights with respect to the Application as are granted to all other end users under license, in accordance with (a) 48 C.F.R. §227.7201 through 48 C.F.R. §227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. §12.212, with respect to all other US Government licensees and their contractors.
17. Severability. If any provision of this Agreement is illegal or unenforceable under applicable law, the remainder of the provision will be amended to achieve as closely as possible the effect of the original term and all other provisions of this Agreement will continue in full force and effect; provided, however, that if any fundamental term or provision of this Agreement, is invalid, illegal, or unenforceable, the remainder of this Agreement shall be unenforceable.
18. Governing Law. Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled by arbitration 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 having jurisdiction thereof. Such Arbitration shall take place in the state of Minnesota. This Agreement is governed by and construed in accordance with the internal laws of the State of Minnesota without giving effect to any choice or conflict of law provision or rule. You waive any and all objections to such arbitration and venue.
Parties additionally waive any right to assert any claims against the other party as a representative or member in any class or representative action, including any class action arbitration proceeding, except where such waiver is prohibited by law or deemed by a court of law to be unlawful. To the extent either party is permitted by law or court of law to proceed with a class or representative action against the other, the parties agree that: (i) the prevailing party shall not be entitled to recover attorneys’ fees or costs associated with pursuing the class or representative action (notwithstanding any other provision in this agreement); and (ii) the party who initiates or participates as a member of the class will not submit a claim or otherwise participate in any recovery secured through the class or representative action.
19. Limitation of Time to File Claims. ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE APPLICATION MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES OTHERWISE SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
21. Waiver. No failure to exercise, and no delay in exercising, on the part of either party, 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. In the event of a conflict between this Agreement and any applicable purchase or other terms, the terms of this Agreement shall govern.
22. Contact Information: To ask questions or comment on this agreement, contact us at: email@example.com.
Last updated: Feb 9, 2023