Virtualphysio™ END USER LICENSE AGREEMENT

IMPORTANT - READ CAREFULLY: This Virtualphysio™ End User License Agreement (hereinafter “Agreement”) is a legal contract between you (either an individual or a single business entity, hereinafter referred to as “Licensee”) and Motivation Technologies, Inc., a Delaware corporation (hereinafter “Motivation Technologies”), for use of the VirtualphysioTM software (the “Software”) in object code only. The term “Software” also includes any supplied corrections, bug fixes, enhancements, updates or other modifications created and supplied by Motivation Technologies and any user manuals or other documentation supplied by Motivation Technologies in conjunction with the Software.​

BY USING THE SOFTWARE IN ANY WAY, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT USE THE SOFTWARE.​

1. LICENSE TERMS

  1. Grant of License. Provided that Licensee is in material compliance with the terms and conditions of this Agreement, Motivation Technologies hereby grants to Licensee, pursuant to the terms and conditions of this Agreement, a nonexclusive, nontransferable license (hereinafter “License”) to use the Software.
  2. Restrictions on Use. Licensee agrees to use the Software only for Licensee’s own personal use, and not for any commercial use. Without purchasing additional licenses, Licensee shall not (i) permit any third party to use the Software, (ii) process or permit to be processed the data of any other party, or (iii) use the Software in the operation of a service bureau.
  3. Modifications; Reverse Engineering. Licensee agrees that only Motivation Technologies shall have the right to alter, maintain, enhance or otherwise modify the Software. Licensee shall not disassemble, decompile or reverse engineer the Software. Licensee shall not permit or assist any third party to disassemble, decompile or reverse engineer the Software.
  4. Material Terms and Conditions. Licensee specifically agrees that each of the terms and conditions of this Section 1 are material and that failure of Licensee to comply with these terms and conditions shall constitute sufficient cause for Motivation Technologies to terminate this Agreement. The presence of this Subsection 1.d shall not be relevant in determining the materiality of any other provision or breach of this Agreement by either Party.
  5. Reservation of Rights. Motivation Technologies hereby reserves any and all rights not expressly and explicitly granted in this Agreement, including, but not limited to, Motivation Technologies’ right to license the Software to any third party.

2. INTELLECTUAL PROPERTY RIGHTS​

  1. Title. Licensee agrees that Motivation Technologies owns all proprietary rights, including patent, copyright, trade secret, trademark and other proprietary rights, in and to the Software and any corrections, bug fixes, enhancements, updates or other modifications, including custom modifications, to the Software, whether made by Motivation Technologies or any third party. No title to the Software is transferred hereby and Licensee’s rights hereunder are strictly limited as set forth herein.
  2. Transfers. Under no circumstances shall Licensee sell, license, publish, display, distribute, or otherwise transfer to a third party the Software or any copy thereof, in whole or in part, without Motivation Technologies’ prior written consent.

3. WARRANTY; DISCLAIMER OF WARRANTIES​​

  1. Warranty. Motivation Technologies warrants to Licensee that the Software will at all times substantially comply with Motivation Technologies’ then current specifications for the Software.
  2. Disclaimer. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THERE ARE NO OTHER WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES AS TO TITLE OR INFRINGEMENT OF THIRD-PARTY RIGHTS, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. THE SOFTWARE, DOCUMENTATION AND OTHER FILES ARE PROVIDED “AS IS.” MOTIVATION TECHNOLOGIES DOES NOT AND CANNOT WARRANT THE PERFORMANCE OR RESULTS THAT LICENSEE MAY OBTAIN BY USING THE SOFTWARE. MOTIVATION TECHNOLOGIES MAKES NO WARRANTY WITH REGARD TO THE EFFICACY, SAFETY OR ADVISABILITY OF INFORMATION OR INSTRUCTION CONTAINED IN OR PROVIDED BY THE SOFTWARE.

    MOTIVATION TECHNOLOGIES HAS NO MEDICAL TRAINING OR MEDICAL EXPERTISE. BY USING THE SOFTWARE, LICENSEE ACKNOWLEDGES THAT IT HAS BEEN ADVISED BY A MEDICAL PROFESSIONAL OR OTHER QUALIFIED PERSON OR ENTITY THAT THE INFORMATION PROVIDED BY THE SOFTWARE WILL NOT HARM LICENSEE AND THAT IT IS MEDICALLY OR OTHERWISE ADVISABLE FOR LICENSEE TO USE INFORMATION OR INSTRUCTION PROVIDED BY THE SOFTWARE. LICENSEE ASSUMES THE RISK OF ANY INJURY THAT MAY RESULT, WHETHER FORESEEABLE OR UNFORESEEABLE, FROM USE OF THE SOFTWARE.

4. LIMITATION OF LIABILITY​

IN NO EVENT WILL MOTIVATION TECHNOLOGIES BE LIABLE TO LICENSEE OR ANY THIRD PARTY FOR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR OTHER SIMILAR DAMAGES, INCLUDING LOST PROFITS, ARISING FROM THE USE OF OR INABILITY TO USE THE SOFTWARE OR FROM ANY BREACH OF WARRANTY, EVEN IF MOTIVATION TECHNOLOGIES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL MOTIVATION TECHNOLOGIES BE LIABLE TO LICENSEE OR ANY THIRD PARTY FOR ANY ACTION (WHETHER IN CONTRACT OR TORT OR UNDER OTHER FORM OF LIABILITY) FOR DIRECT DAMAGES OR LOSS, HOWEVER ARISING OR CAUSED, FOR AN AMOUNT GREATER THAN THE TOTAL AMOUNT PAID OR DUE BY LICENSEE IN LICENSEE FEES FOR THE RIGHT TO USE A SINGLE COPY OF THE SOFTWARE.

5. INDEMNIFICATION

Licensee shall indemnify and hold Motivation Technologies harmless from and against any claims, actions, demands, damages, costs, liabilities, and/or expenses (including without limitation reasonable attorneys’ fees) to the extent that Motivation Technologies is subject to a third party claim for infringement of intellectual property rights based on the use of the Software in conjunction or combination with any software or hardware not supplied or specifically approved by Motivation Technologies. Licensee shall indemnify and hold harmless Motivation Technologies, and any officers, directors, employees, and agents thereof, from any and all claims asserting injury, including exacerbation of a pre-existing injury, relating to Licensee’s performance of any action or activity for which the Software may provide information or instruction.

6. USE OF INFORMATION

It is understood and acknowledged that information provided by Licensee to or during use of the Software may be used or disclosed to the Licensee’s health care provider or other such person or entity who provided the Licensee with access to the Software (hereinafter, “Distributor”). Licensee acknowledges that any information provided to or during use of the Software, including any information constituting Private Health Information as defined by the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), may be used or disclosed to the Distributor. Any use or disclosure of Private Health Information constitutes an incidental use or disclosure, is a use or disclosure which Licensee has had an opportunity to agree to and has so agreed to, or is otherwise expressly authorized by Licensee. Any use or disclosure of Private Health Information shall be limited to the minimum use and disclosure necessary. The authorization contained within this Section 6 may be revoked at any time by 1) cessation of use of the Software; 2) notice of revocation to the Licensor’s Distributor; or 3) notice of revocation to Motivation Technologies.

7. GENERAL PROVISIONS

  1. Modifications. Motivation Technologies may alter or revise the terms of this Agreement without notice by posting a revised license agreement at Motivation Technologies’ website. If Licensee does not agree with any changes, Licensee’s sole remedy shall be to discontinue Licensee’s use of the Software.​
  2. Governing Law/Venue/Jurisdiction. This Agreement shall be governed by and construed under the laws of the State of Delaware, without regard to choice of law provisions. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. Venue and jurisdiction shall be proper only in the Commonwealth of Massachusetts and each party hereby consents to such exclusive and personal jurisdiction and venue.​
  3. Termination. Without prejudice to any other rights, Motivation Technologies may terminate this Agreement if Licensee fails to comply with the terms and conditions of this Agreement. In such event, Licensee must discontinue use of the Software and Motivation Technologies shall have the right, in Motivation Technologies’ sole discretion, to discontinue Licensee’s access to and disable Licensee’s use of the Software, without notice and without recourse by Licensee.
  4. Complete Agreement. The parties agree that this Agreement is the complete and exclusive statement of the agreement between the parties, which supersedes and merges all prior proposals, understandings and all other agreements, oral or written, between the parties relating to the subject matter.
  5. Severability. It is the intention of the Parties that the provisions of this Agreement shall be enforceable to the fullest extent permissible under applicable law, but that the unenforceability (or modification to conform to such law) of any provision or provisions hereof shall not render unenforceable, or impair, the remainder thereof. If any provision or provisions hereof shall be deemed invalid or unenforceable, either in whole or in part, this Agreement shall be deemed amended to delete or modify as necessary the offending provision or provisions and to alter the bounds thereof in order to render it valid and enforceable.
  6. Construction. This Agreement shall be construed as a whole in accordance with its fair meaning and shall not be construed against any party. The Parties acknowledge this Agreement is clear and unambiguous. The headings herein are for reference only and shall not affect the construction of this Agreement.​