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
- 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.
- 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.
- 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.
- 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.
- 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
- 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
- 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
- Warranty. Motivation Technologies warrants to Licensee that the Software will at all
times substantially comply with Motivation Technologies’ then current specifications for the Software.
- 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
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
7. GENERAL PROVISIONS
- 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
- 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.
- 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.
- 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
- 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.
- 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