End User License Agreement

END USER LICENSE AGREEMENT

 

Revised: (9/18/2020)

 

THIS END USER LICENSE AGREEMENT (“EULA”) IS A LEGAL AGREEMENT BETWEEN YOU AND

BRING YOUR OWN DATA™, LLC (D/B/A BYOD™) AND TEMPPROTECT™, LLC (COLLECTIVELY “BYOD™”, “WE,” OR “US”) REGARDING YOUR USE OF ANY SERVICE PROVIDED BY OR SOFTWARE OWNED BY AND OPERATED UNDER THE NAME OF BYOD™ AND/OR TEMP PROTECT™ (COLLECTIVELY “LICENSED APPLICATION”).

 

YOU AGREE TO BE BOUND BY THE TERMS OF THIS EULA.  IF YOU DO NOT AGREE TO THE TERMS OF THIS EULA, YOU ARE NOT ENTITLED TO USE THE LICENSED APPLICATION AND MUST DE-INSTALL THE LICENSED APPLICATION FROM ALL OF YOUR DEVICES.

 

  1. You acknowledge that this EULA is concluded between you and BYOD™ only, and not with Apple or Google.  BYOD™ and not Apple or Google, is solely responsible for the Licensed Application and the content thereof.

 

SCOPE OF LICENSE.  Subject to the terms of this EULA, BYOD™ hereby grants you a non-exclusive, non-assignable, non-transferable, limited license, without the right to sublicense, to install and use, in accordance with the terms of this EULA, the Licensed Application on a mobile device that you own or control (the “License”) and as permitted by the Usage Rules set forth in the Apple App Store Terms and Conditions for iOS users, and the Google Play Terms of Service for Android users.  This license is limited to the purpose of inputting data related to individuals, symptoms, and risks associated with illnesses such as COVID-19; and managing entry and return of individuals into a workplace, facility, or other location (collectively, the “Purpose”).  If and when the Purpose expires, or a use by You exceeds the scope of the Purpose, the license rights granted to you will terminate, if not terminated sooner.  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.  This License does not grant any rights to obtaining future upgrades, updates, enhancements, or supplements of the Licensed Application.  If upgrades, updates, enhancements, or supplements of the Licensed Application are obtained, however, the use of such upgrades or updates is governed by this EULA and any amendments to it unless other terms accompany the upgrades, updates or supplements in which case those terms apply.  The Licensed Application is licensed, and not sold, to you under this EULA.  You have no ownership rights in the Licensed Application or any related documentation. BYOD™ retains all right, title, and interest in and to the Licensed Application (including any changes, modifications, or corrections thereto) and any related documentation. 

 

  1. The Licensed Application and any related documentation is protected by copyright law and international treaty provisions.  You may not copy, modify, adapt, translate into any other language, distribute, or create derivative works based on the Licensed Application without the prior written consent of BYOD™.  You may not assign this EULA or any of the rights or licenses granted under this EULA or rent, lease, or lend the Licensed Application to any person or entity.  Any attempted sublicense, transfer, or assignment in violation of this EULA is void.  You acknowledge that the Licensed Application may contain proprietary trade secrets of BYOD.  You agree that you will not, and will not allow any other person, to decompile, disassemble, reverse engineer, or attempt to reconstruct, identify, or discover any source code, underlying ideas, underlying user interface techniques, or algorithms of the Licensed Application by any means whatsoever, except to the extent the foregoing restriction is prohibited by applicable law.  You agree not to remove, disturb, hide, or obscure any copyright or trademark notices embedded within the Licensed Application.  You further agree not to tamper with, remove, or otherwise attempt to defeat any security system used by BYOD™ in the Licensed Application to prevent the unauthorized copying of the Licensed Application.  You also agree to abide by all terms and conditions set forth from time to time at www.byod.ai/terms-of-use (incorporated by reference).

 

 

  1. CONSENT TO USE OF DATA. You agree that data that you provide to BYOD™ for use with the Licensed Application (“Input Data”) will be data owned exclusively by you or the entity that employs you, which you or the entity that employs you obtained lawfully, and which you and the entity that employs you are authorized to provide to BYOD™ for the Purpose.  Any data that results from any operation performed by the Licensed Application, in any form (“Output Data”) shall be owned exclusively by BYOD™. Notwithstanding the foregoing, You agree that BYOD™ shall be permitted to use, for any and all purposes, the Input Data and the Output Data. However, to the extent BYOD™ publishes any performance information relating to either or both of the Input Data or the Output Data, BYOD™ will take reasonable measures to preserve the identity of USER, the entity that employs USER, and any data identifiable to an individual person as confidential. For avoidance of doubt, subject to the restrictions of this Section, BYOD™ is entitled to use the Input Data, the Output Data or both, in order to create one or more databases, or other data compilations (with title in all such databases or other data compilations belonging exclusively to BYOD™) to support the operation of the Licensed Application, or otherwise for use as part of the Licensed Application. BYOD™ may also use the Input Data, the Output Data or both to derive and publish performance data analysis or reports about the Licensed Application

 

  1. MAINTENANCE AND SUPPORT. You and BYOD™ acknowledge that Apple and Google have no obligation whatsoever to furnish any maintenance and support services with regard to the Licensed Application. 

 

  1. BYOD™ may, but is not obligated, to provide upgrades, error corrections, updates, or other modifications to the Licensed Application (collectively “Updates”), including automatically installing Updates to the Licensed Application.  You agree that BYOD™ may modify the Licensed Application, even after it has been installed, with or without your knowledge.  You consent to the automatic installation of the Updates, and agree that you will only use the most recent, updated version of the Licensed Application provided to you by BYOD™.

 

  1. DISCLAIMER OF WARRANTIES. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE LICENSED APPLICATION IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE LICENSED APPLICATION AND ANY SERVICES PERFORMED OR PROVIDED BY THE LICENSED APPLICATION (“SERVICES”) ARE PROVIDED “AS IS” AND “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND BYOD HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE LICENSED APPLICATION AND ANY SERVICES, 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.  BYOD DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE LICENSED APPLICATION, THAT THE FUNCTIONS CONTAINED IN OR SERVICES PERFORMED OR PROVIDED BY THE LICENSED APPLICATION WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE LICENSED APPLICATION OR SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE LICENSED APPLICATION OR SERVICES WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY BYOD OR ITS AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY.  SHOULD THE LICENSED APPLICATION OR SERVICES PROVE DEFECTIVE, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION.  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. 

 

The content available through the Licensed Application is for informational purposes only, and does not contain or constitute, and should not be interpreted as, medical advice or opinion.  BYOD™ makes no representation or warranty, and expressly disclaims any representation or warranty, whether express or implied, with regard to content available on or through the Licensed Application.  You assume full responsibility for any decision or action taken in reliance on content made available through the Licensed Application and the results of the same.

 

  1. You acknowledge that the Licensed Application, and your use of the Licensed Application, may be interrupted from time to time.  You further acknowledge that the Licensed Application is not error free.  BYOD™ cannot accept any responsibility under this EULA for the functioning of your wireless device with respect to the Licensed Application.  BYOD™ will be entitled, on reasonable grounds, including the reasonable belief of fraud or illegal activity by any user in their use of the Licensed Application, to suspend access by you to the Licensed Application. You understand that BYOD™ may be required by law enforcement agencies to disclose information regarding your use of the Licensed Application and that BYOD™ will comply with such requests.  In the event of any failure of the Licensed Application to conform to any applicable warranty, and if you are using the iOS version of the Licensed  Application, then you may notify Apple, and Apple will refund the purchase price for the Licensed Application to you.  To the maximum extent permitted by applicable law, Apple has and will have no other warranty obligation whatsoever, and Google has no warranty obligations, with respect to the Licensed Application, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be BYOD™’s sole responsibility. You acknowledge that your use of the Licensed Application may enable SMS or text messages.  You, not BYOD™,  are responsible for any changes associated with such functionality.

 

  1. LIMITATION OF LIABILITY. TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL BYOD BE LIABLE FOR PERSONAL INJURY, OR ANY INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE LICENSED APPLICATION, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE) AND EVEN IF BYOD HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU.  In no event shall BYOD™’s total liability to you for all damages exceed the amount of five dollars ($5.00).  The foregoing limitations will apply even if the above stated remedy fails of its essential purpose.

 

  1. THIRD PARTY CLAIMS. BYOD™, and neither Apple nor Google, is responsible for addressing any claims made by you or a third party relating to the Licensed Application or your possession and/or use of the Licensed Application, including, but not limited to: (i) product liability claims; (ii) any claims that the Licensed Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.  You and BYOD™ acknowledge that, in the event of any third party claim that the Licensed Application or your possession and use of the Licensed Application infringes that third party’s intellectual property rights, BYOD™, not Apple or Google, is solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.

 

  1. You undertake to indemnify and hold BYOD™, its licensors, successors, and affiliates, and, collectively, their respective partners, directors, officers, employees or agents, or anyone else who has been involved in the creation, production or delivery of the Licensed Application (collectively the “Indemnified Parties”) harmless from and against all damages, costs, claims and liabilities (including reasonable attorney’s fees) suffered or incurred by the Indemnified Parties as a consequence of any claims or proceedings made or brought against the Indemnified Parties by any person in connection with your use of the Licensed Application, including, without limitation, any claim that, if true, would cause you to be in breach of Section 5.

 

  1. This EULA is effective until it is terminated. You may terminate this EULA at any time by discontinuing your use of the Licensed Application and destroying all copies of the Licensed Application and related documentation in your possession or under your control. BYOD™ may immediately terminate this EULA if you violate any of its terms and conditions or Terms of Use.  Upon termination of this EULA, all license rights granted to you shall immediately terminate and all rights to use the terminated Licensed Application cease.  You must delete any Licensed Application supplied and, if requested by BYOD™, certify to BYOD™ that such deletion occurred.

 

  1. Sections 3, 4, 5, 9, 11, and 13-21 of this EULA shall survive the termination of this EULA.

 

  1. CONTROLLING LAW AND VENUE. This EULA will be governed by and construed in accordance with the laws of the State of Michigan, without regard to its conflict of law principles.  This EULA shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.  You agree to the jurisdiction of the state and federal courts located in or nearest to Detroit, Michigan, regarding any disputes arising under this Agreement.

 

  1. If any provision or portion thereof of this EULA is found by a court of competent jurisdiction to be unenforceable, that provision or portion thereof shall be severed from this EULA, and the remainder of this EULA shall continue in full force and effect.

 

  1. COMPLETE AGREEMENT. This EULA constitutes the entire agreement between the parties with respect to the use of the Licensed Application licensed hereunder and supersedes all prior or contemporaneous understandings between you and us regarding the subject matter hereof.  No amendment to or modification of this EULA will be binding unless in writing and signed by BYOD™.  Any translation of this EULA is done for local requirements and in the event of a dispute between the English and any non-English versions, the English version of this EULA shall govern.

 

  1. EXPORT COMPLIANCE. You hereby represent and warrant that (i) 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 (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.

 

  1. HEALTH INFORMATION. Use of the Licensed Application cannot replace medical consultation with a qualified health or medical professional.  You assume all risk for any medical advice you rely on in the Licensed Application.

 

  1. DEVELOPER ADDRESS. Any questions, complaints, or claims you may have with regard to the Licensed Application or EULA should be directed to support@byod.ai

 

 

  1. THIRD PARTY BENEFICIARY. This EULA is executed between You and BYOD™ and not between You and any other party, including Apple for iOS users and Google for Android users. You agree that any claims brought by you arising out of this EULA or your use of the Licensed Application will not be made against Apple or Google, as applicable. Notwithstanding the foregoing, upon your acceptance of the terms and conditions of this EULA, Apple (in the case of iOS users) and Google (in the case of Android users) will have the right (and will be deemed to have accepted the right) to enforce the EULA against you as a third party beneficiary hereof.  BYOD™ is not responsible for any applicable third-party agreement between you and any third-party, including your wireless provider.

 

  1. CHANGES TO THIS EULA BYOD™ reserves the right to modify this EULA at any time and for any reason. BYOD will post the most current version of this EULA at byod.ai/end-user-license-agreement. If BYOD™ makes material changes to this EULA, YOU will receive notification via at least one of the following: application, website, or email. Notwithstanding the foregoing, you are responsible for complying with the updated terms posted online on the BYOD™ website, even if these updated terms appear online on the website associated with the Licensed Application before being posted on the application associated with the Licensed Application. Your continued use of the Licensed Application after BYOD™ publishes notice of changes to this EULA indicates your consents to the updated terms.

 

  1. CONSENT TO ELECTRONIC COMMUNICATIONS AND SOLICITATION.By using the Licensed Application, you authorize BYOD™ to send you (including via email and push notifications) information regarding the Licensed Application, such as: (a) notices about your use of the Licensed Application, including notices of violations of use; (b) updates to the Licensed Application and new features or products of Licensed Application and/or BYOD™; and (c) promotional information and materials regarding BYOD™’ products and services.  You can review your account notification settings and adjust your messaging preferences, including opting-in to additional messages or unsubscribing to certain messaging through the “Push Notifications” section settings of Licensed Application.