BRACE RITE™ END USER LICENSE AGREEMENT
AND GENERAL TERMS AND CONDITIONS
IMPORTANT - THIS IS A CONTRACT
CAREFULLY READ BEFORE USING THIS PRODUCT
BY DOWNLOADING THE BRACE RITE APPLICATION, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS BRACE RITE END USER LICENSE AGREEMENT (THE “Agreement”), THAT YOU UNDERSTAND IT, AND THAT YOU AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS AND ANY DOCUMENTS INCORPORATED BY REFERENCE, INCLUDING THE PRIVACY POLICY, AND AFFIRM YOUR ACCEPTANCE OF THE MOST RECENT VERSION OF THE TERMS AND CONDITIONS FOUND IN VARIOUS APPLICATION STORES, INCLUDING, BUT NOT LIMITED TO, GOOGLE PLAY STORE AS PROVIDED BY GOOGLE (ANDROID), MICROSOFT STORE AS PROVIDED BY MICROSOFT AND APPSTORE AS PROVIDED BY APPLE INC. (APPLE), WHICH IN NO WAY ARE SUPERSEDED OR REPLACED BY THESE TERMS AND CONDITIONS.
IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, PROMPTLY EXIT THE APPLICATION WITHOUT USING IT. THIS AGREEMENT GOVERNS YOUR ACCESS TO AND USE OF THE APPLICATION.
PLEASE BE AWARE THAT THIS AGREEMENT INCLUDES LIMITATIONS ON THE LIABILITY OF OWNER AND OUR OBLIGATIONS RELATING TO THE APPLICATION, CERTAIN CONDITIONS WITH RESPECT TO JURISDICTION, FILING CLAIMS, AND CERTAIN EXCLUSIONS OF OWNER’S RESPONSIBILITY.
1. Application Hardware and Software
Sensor: The Brace Rite sensor (“Monitor”) is a temperature monitor that uses electronic sensors to monitor, record and collect device temperature.
Application: The “Application” shall mean the self-contained program and software provided by Texas Scottish Rite Hospital for Children (“Owner”, “we”, “us”, or “our”) which works in connection with the Monitor to monitor temperature and relay the data (the “Services”) via BLE (Bluetooth Low Energy) to your personal smart device (mobile telephone or tablet) (the “Device”).
THIS APPLICATION, THE SERVICES AND MONITOR ARE NOT MEDICAL DEVICES AND ARE NOT INTENDED TO REPLACE, MODIFY OR SUPPLEMENT ANY PRESCRIBED MEDICAL DEVICE. THE SERVICES AND THE APPLICATION ARE NOT INTENDED FOR USE IN THE DIAGNOSIS OF DISEASE OR OTHER CONDITIONS, OR IN THE CURE, MITIGATION, TREATMENT OR PREVENTION OF DISEASE OR OTHER CONDITIONS. FURTHER, THIS APPLICATION, THE SERVICES AND MONITOR ARE NOT FOR HIGH RISK INDIVIDUALS AND ARE NOT INTENDED TO BE A SUBSTITUTE FOR OBTAINING MEDICAL ADVICE AND/OR TREATMENT FROM A PHYSICIAN OR OTHER HEALTH CARE PRACTITIONER. THE INFORMATION PROVIDED BY AND THROUGH THE SERVICES AND THE APPLICATION ARE FOR GENERAL INFORMATIONAL PURPOSES. IF YOU BELIEVE THAT YOU ARE EXPERIENCING A MEDICAL EMERGENCY, PLEASE CONTACT YOUR HEALTHCARE PROVIDER OR EMERGENCY SERVICES IMMEDIATELY.
Software Requirements: To operate the Services and Monitor, you must have a compatible mobile telephone or handheld device, internet access, and the necessary minimum specifications (the “Software Requirements”) to use the Application. The Software Requirements are as follows: Apple iOS 10.0 or higher or Android 4.4 or higher; Language: English. Owner reserves the right to change the Software Requirements for the Application as it deems necessary in its sole discretion.
Updates: In connection with providing the Services under this Agreement, Owner may elect to update the Application at any time. These updates may include bug fixes, feature enhancements or improvements, or entirely new versions of the Application. You agree that Owner may automatically deliver such updates to you as part of the Services and you shall receive and install them as required, and you acknowledge and agree that the Application, Services, or portions thereof may not operate properly should you fail to do so. You further agree that all updates will be deemed part of the Application and will be subject to this Agreement.
The information we obtain through your use of this Application or Services, including your Registration Data, is subject to our Privacy Policy, available at [https://scottishritehospital.org/terms/bracerite/privacy.html] and in the Application. By using the Application or our Services, you consent to all actions we take with respect to your information in compliance with our Privacy Policy. The terms of our private policy are incorporated into this Agreement by reference.
We reserve the right to make changes to, suspend, or discontinue (temporarily or permanently) the Application, Services, or any portion thereof at any time. You agree that we will not be liable to you or to any third party for any loss or damage caused as a result of such change, suspension, or discontinuance.
2. License Grant and Restrictions
Owner grants you a non-exclusive, non-transferable, limited license to access and use the Application during the term of this Agreement, including the right to: (a) electronically display and use the Application; and (b) unless otherwise prohibited, store up to two copies of the Application in machine-readable form for one person’s exclusive use as permitted herein. Any right not expressly granted to you by this Agreement is hereby expressly reserved by Owner.
You expressly agree: (1) not to alter, modify, remove or obscure any copyright notice or other notice contained in the Application; (2) not to allow your user identification and password to be used by any other person to access the Application; (3) not to use the Application for the benefit of any other person or entity that is not an authorized user or licensee of the Application; (4) not to use the Application in any way that infringes the copyrights, confidentiality or proprietary rights of Owner, Owner’s third party suppliers, or other third parties; (5) not to directly or indirectly use or allow others to use the Application or any information therein in the development of any product that is competitive with the Application; (6) not to reverse engineer, disassemble, decompile, decode or otherwise attempt to derive or gain access to the source code of the Application or any part thereof; (7) not to use the Application or Monitor in, or in association with, the design, construction, maintenance or operation of any hazardous environments or systems, including without limitation, safety-critical applications, including medical or life-support systems, vehicle operation applications or any police, fire or other safety response systems; (8) to be bound by the terms of this Agreement; and (9) that Owner is the owner of all copyrights and intellectual property of Owner and that those rights are valid and enforceable by Owner.
Your use of the Application and Services is subject to all applicable laws and regulations, and you are solely responsible to assure that your use of the Application and Services is in compliance therewith. You agree not to reproduce, duplicate, copy, sell, resell or exploit any portion of the Application, use of the Services, or access to the Services without the express written permission of Owner. You must not use the Application or Services to transmit any computer worms, viruses or any code of a destructive nature.
You further acknowledge and agree that Owner is not responsible for the security or accuracy of Application information (collectively, “Data”). You, therefore, acknowledge and agree that you are solely responsible for the security, accuracy, and privacy of Data as required by law.
3. Ownership
You further agree and acknowledge that you have no ownership rights in the Application or copies thereof. Rather, you have a limited license to use the Application in accordance with this Agreement for so long as this Agreement remains in full force and effect. All right, title and interest (including copyrights and other intellectual property rights) in the Application (in both print and machine-readable form) shall remain at all times with Owner or its third party suppliers. Any other use of the Application by any person, business, corporation, government organization or any other entity is strictly forbidden and is a violation of this Agreement. While the creation, revision, duplication, or making of derivatives is strictly forbidden, in the case that you make any such new copyrightable matter, you hereby expressly and irrevocably assign those copyrights to Owner without compensation.
4. Access
Only authorized individuals may access and use the Application. You may be required to change your password from time to time. You may not have access to the Application at all times. The Application may be changed, added or withdrawn without notice by Owner at any time and at Owner’s sole discretion.
You acknowledge and understand that from time to time the Services and the Application may be inaccessible or inoperable due to equipment malfunctions, periodic maintenance procedures, repairs or upgrades which may occur over time. You also acknowledge and understand that service malfunctions may occur for reasons beyond Owner’s control or which are not reasonably foreseeable, including, without limitation, interruption or failure of telecommunication or digital transmission links, including delays or failures due to your hardware, Internet service provider, hostile network attacks, network congestion or other failures. You agree that we will not be liable to you or to any third party in the event the Application or Services for any reason whatsoever are inaccessible or malfunction, or for any disruption in the Services or your use of the Application.
You acknowledge that the terms of any agreement with your respective mobile network provider (“Mobile Provider”) will continue to apply when using the Application. Consequently, you may be charged by your Mobile Provider, or any applicable third parties, for access to its/their network connection services while you are accessing the Application. You accept responsibility for any such charges that arise.
5. No Warranty
THE APPLICATION IS PROVIDED ON AN “AS IS”, “AS AVAILABLE” BASIS AND OWNER AND EACH THIRD PARTY SUPPLIER EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. OWNER DOES NOT WARRANT THAT THE APPLICATION WILL MEET ANY REQUIREMENTS OR NEEDS YOU MAY HAVE, OR THAT THE APPLICATION WILL OPERATE ERROR FREE, OR IN AN UNINTERRUPTED FASHION, OR THAT ANY DEFECTS OR ERRORS IN THE APPLICATION WILL BE CORRECTED, OR THAT THE APPLICATION ARE COMPATIBLE WITH ANY PARTICULAR PLATFORM. SOME JURISDICTIONS DO NOT ALLOW THE WAIVER OR EXCLUSION OF IMPLIED WARRANTIES SO THEY MAY NOT APPLY TO YOU.
6. Limitation of Liability; Indemnity
A “Covered Party” means: (a) Owner, its affiliates, and their officers, directors, trustees, employees, subcontractors, agents, successor or assigns; and (b) each third party supplier of Application, its affiliates, and their officers, directors, employees, subcontractors, agents, successor or assigns.
A Covered Party shall not be liable for any loss, injury, claim, liability or damage of any kind resulting in any way from: (i) any errors in or omissions from the Application; (ii) the unavailability or interruption of the Application or any features thereof; (iii) your use of the Application (regardless of whether you received any assistance from a Covered Party in using the Application); (iv) your use of any equipment in connection with the Application; (v) the content of the Application; or (vi) any delay or failure in performance beyond the reasonable control of a Covered Party. Owner is not liable to you for any damage or alteration to your equipment including but not limited to computer equipment, handheld device or mobile telephones as a result of the installation or use of the Application.
IN NO EVENT WILL A COVERED PARTY BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER (INCLUDING, WITHOUT LIMITATION, ATTORNEYS FEES, INDIRECT, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION, OR LOSS OF BUSINESS INFORMATION) IN ANY WAY DUE TO, RESULTING FROM, OR ARISING IN CONNECTION WITH THE APPLICATION OR THE FAILURE OF ANY COVERED PARTY TO PERFORM ITS OBLIGATIONS, REGARDLESS OF ANY NEGLIGENCE OF ANY COVERED PARTY, EVEN IF THE COVERED PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
A COVERED PARTY’S AGGREGATE LIABILITY WITH RESPECT TO ITS OBLIGATIONS UNDER THIS AGREEMENT, THE APPLICATION, OR OTHERWISE SHALL NOT EXCEED THE AMOUNT OF THE LICENSE FEE PAID BY YOU.
YOU AGREE TO INDEMNIFY, DEFEND, AND HOLD HARMLESS OWNER FROM AND AGAINST ANY AND ALL CLAIMS, SUITS, ACTIONS, OR OTHER PROCEEDINGS BROUGHT AGAINST OWNER BASED ON OR ARISING OUT OF, RESULTING FROM, OR RELATING TO, DIRECTLY OR INDIRECTLY (I) YOUR USE OF THE APPLICATION; OR (II) YOUR PROVISION OF THE REGISTRATION DATA AS SET FORTH HEREIN. SUCH INDEMNIFICATION SHALL APPLY TO ANY AND ALL CLAIMS REGARDLESS OF WHETHER THE SUBJECT OF THE INDEMNIFICATION ARISES IN WHOLE OR IN PART OUT OF THE NEGLIGENCE, GROSS NEGLIGENCE, STRICT LIABILITY OR STATUTORY LIABILITY OF OWNER.
7. General
This Agreement is effective until it is terminated. Owner may suspend or discontinue providing the Application to you without notice and pursue any other remedy legally available to it if you fail to comply with any of your obligations hereunder. All provisions relating to proprietary rights and non-disclosure shall survive the termination of this Agreement.
This Agreement may be changed from time to time by written agreement or by notice from Owner. All notices and other communications hereunder shall be in writing or displayed electronically in the Application. Notices shall be deemed to have been properly given on the date first made available, if displayed in the Application, or on the date received, if delivered in any other manner. Your access to the Application may be terminated immediately upon notice to Owner if any change is unacceptable. Continued use of the Application following any change constitutes acceptance of the change. You may not assign your rights or delegate your duties under this Agreement without the prior written consent of Owner.
The failure of Owner or any third party supplier of the Application to enforce any provision hereof shall not constitute or be construed as a waiver of such provision or of the right to enforce it at a later time. Each third party supplier of the Application has the right to assert and enforce these provisions directly on its own behalf as a third party beneficiary.
This Agreement shall constitute the entire Agreement between the parties hereto, and shall be construed, interpreted and governed by the laws of the State of Texas without regard to conflicts of law provisions thereof. The exclusive forum for any disputes arising out of or relating to this Agreement shall be an appropriate federal or state court sitting in Dallas County, Texas, USA. Except as otherwise provided herein, any waiver or modification of this Agreement shall only be effective if it is in writing and signed by both parties hereto. If any part of this Agreement is found invalid or unenforceable by a court of competent jurisdiction, the remainder of this Agreement shall be interpreted so as to reasonably effect the intention of the parties. Owner may assign or transfer this Agreement or its rights herein without your prior consent.
BY AGREEING TO THESE TERMS AND CONDITIONS, YOU REPRESENT THAT YOU ARE OF FULL LEGAL AGE AND HAVE READ AND UNDERSTOOD THIS AGREEMENT AND ARE FULLY FAMILIAR WITH ITS CONTENTS AND AGREE THAT IT IS A LEGALLY BINDING AGREEMENT. BY AGREEING TO THESE TERMS AND CONDITIONS, A MINOR’S PARENT OR LEGAL GUARDIAN DECLARES THAT HE/SHE IS THE PARENT OR LEGAL GUARDIAN OF THE MINOR WITH ACCESS TO THE APPLICATION AND THAT HE/SHE IS DULY AUTHORIZED TO EXECUTE THIS AGREEMENT ON HIS/HER BEHALF, AND HEREBY INDICATES, ON BEHALF OF ITS MINOR CHILD, THEIR FULL AND UNQUALIFIED CONSENT TO THE TERMS OF THIS AGREEMENT.
Please direct all questions, complaints, or claims with respect to the Application, Services, or this Agreement to the following: bracerite@tsrh.org/(214) 559-7683, or Texas Scottish Rite Hospital for Children, Attn: Bracerite App, 2222 Welborn Street, Dallas, Texas 75219.
ADDITIONAL APPLE TERMS
The following additional terms and conditions apply with respect to the Services designed for use on an Apple iOS-powered mobile device (“iOS App”):