END-USER LICENSE AGREEMENT

PLEASE READ THIS END-USER LICENSE AGREEMENT (THIS “AGREEMENT”) CAREFULLY BEFORE ACCEPTING THIS AGREEMENT OR DOWNLOADING THE NANOLUME MOBILE APPLICATION AND ITS CONTENTS (THE “MOBILE APP”) PROVIDED BY NANOLUME, LLC (“NANOLUME” OR “WE” OR “US”). BY SLIDING THE TOGGLE TO ACCEPT THIS AGREEMENT OR BY USING THE MOBILE APP, YOU INDICATE YOUR ACCEPTANCE OF THIS AGREEMENT IN ITS ENTIRETY. THIS AGREEMENT SPECIFICALLY INCLUDES OUR LIMITATIONS OF LIABILITY IN SECTION 10. IF YOU DO NOT AGREE TO ALL THESE TERMS, DO NOT COMPLETE YOUR PURCHASE OR DOWNLOAD THE MOBILE APP. IF YOU HAVE ALREADY COMPLETED YOUR PURCHASE, YOU MAY RETURN THE MOBILE APP FOR A FULL REFUND.

THIS AGREEMENT SETS FORTH YOUR LEGAL RIGHTS AND OBLIGATIONS RELATED TO NANOLUME’S MOBILE APP.

In consideration of Nanolume’s license of the Mobile App to you, you agree as follows:

  1. LICENSE. Nanolume grants you a non-exclusive, non-transferable license to download and install the Mobile App on a mobile device or computer owned or controlled by you and to use the Mobile App, subject to the terms of this Agreement. You are licensed to make a copy of your data for backup purposes and to print pages from the Mobile App that contain your personal data. You may use the Mobile App to record instances and characteristics of pain, the location of pain, other data related to pain and its treatment, and the analyses of this personal data. You are permitted to copy and share this personal data with other persons. Additional terms may also apply to certain features, parts, or content of the Mobile App and, where such terms apply, are displayed to you when you access the relevant features, parts, or content. Nanolume reserves any rights not expressly granted herein.
  2. YOUR DATA. NANOLUME DOES NOT HAVE ACCESS TO THE PERSONAL DATA YOU STORE IN YOUR MOBILE APP. NANOLUME DOES NOT MAKE OR OBTAIN A COPY OF YOUR DATA OR OTHERWISE BACK IT UP. NANOLUME IS NOT ABLE TO RECOVER YOUR DATA IF IT IS LOST FOR ANY REASON. NANOLUME DOES NOT SUPPORT THE TRANSFER OF THE MOBILE APP ALONG WITH ITS DATA FROM ONE DEVICE TO ANOTHER. HOWEVER, YOU CAN USE THE MOBILE APP TO EXPORT/SAVE A CSV FILE OF YOUR NUMERIC DATA OR A PDF FILE SUMMARY OF YOUR CHARTS, NOTES, AND MAPS. IT IS SOLELY YOUR RESPONSIBILITY TO SAVE A BACKUP COPY OF YOUR DATA. NANOLUME IS NOT RESPONSIBLE FOR ERASED, LOST, OR STOLEN DATA, INCLUDING PERSONAL DATA, WHETHER OR NOT CAUSED BY A MALFUNCTION OF THE NANOLUME MOBILE APP, USER ERROR, A NETWORK OR DEVICE BREACH, DAMAGE TO OR LOSS OF YOUR MOBILE DEVICE, OR ANY OTHER CAUSE.
  3. YOUR OBLIGATIONS. You agree that you will use the Mobile App and other Nanolume Materials (as defined below) solely for your own personal, individual use and that you will not use the Mobile App for any purpose that is unlawful or prohibited by this Agreement. Without limiting the above, you specifically agree:
    • You may not modify, adapt, translate, rent, lease, loan, resell for profit, distribute, network, or create derivative works of the Mobile App or other Nanolume Materials.
    • You may not reverse engineer, decompile, or disassemble the Mobile App software or otherwise attempt to discover its source code.
    • You will use the Mobile App only for its intended purposes and will not use it in any way that may injure yourself or another person.
    • You will not do anything with the Mobile App that violates HIPAA regulations or any other law, regulation, or privacy requirement.
    • You will not delete or alter any proprietary rights or attribution notices in any content or Nanolume Materials obtained through the Mobile App.
    • You agree that you do not acquire any ownership rights in the Mobile App or any other Nanolume Materials. We do not grant you any licenses, express or implied, to any Nanolume Materials except as expressly provided in this Agreement.
  4. APPLE TERMS. If you download the Mobile App designed for iPhone®, iPad®, or other devices using the iOS operating system (“Apple Mobile Apps”) from the App Store operated and owned by Apple Inc. and other companies within its group (“Apple”), the following terms apply to such Apple Mobile App:
    • The Apple Mobile App may only be accessed and used on a device owned or controlled by you and using the iOS operating system.
    • You acknowledge and agree that: (i) Apple has no obligation at all to provide any support or maintenance services in relation to the Apple Mobile App; (ii) although this Agreement is entered into between us and you (and not Apple), Apple is a third-party beneficiary under this Agreement and shall have the right to enforce this Agreement against you; (ii) except as otherwise expressly set out in this Agreement, any claims relating to the possession or use of the Apple Mobile App are between you and us (and not between you, or anyone else, and Apple); and (iii) in the event of any claim by a third party that your possession or use (in accordance with the terms of this Agreement) of the Apple Mobile App infringes any intellectual property rights, Apple shall not be responsible or liable to you in relation to that claim.
    • You represent and warrant that: (i) you are not, and shall not be, located in any country that is the subject of 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; and (iii) if the Apple Mobile App that you have purchased does not conform to any warranty applying to it, you may notify Apple, which shall then refund the purchase price of the Apple Mobile App to you. Subject to that, and to the maximum extent permitted by law, Apple does not give or enter into any warranty, condition, or other terms in relation to the Apple Mobile App and shall not be liable to you for any claims, losses, costs or expenses of whatever nature in relation to the Apple Mobile App or as a result of you or anyone else using the Apple Mobile App or relying on any of its content.
  5. ANDROID / GOOGLE PLAY TERMS. Nanolume also makes the Mobile App available on the Android / Google Play mobile device platform (“Google Platform”). You agree to the terms and conditions that apply to use of the Google Platform, which are, to the extent they are required to be from the Google Platform owner, incorporated herein by reference. To the extent such terms conflict with any term of this Agreement, as between You and the Google Platform owner, the Google Platform terms supersede the terms and conditions of this Agreement.
  6. OWNERSHIP AND DATA USAGE RIGHTS.
    1. All of Nanolume’s content and materials in the Mobile App, including software, text, graphics, logos, and images (“Nanolume Materials”), are the property of Nanolume and are protected by copyright and/or other laws protecting intellectual property and proprietary rights. You agree to comply with all copyright and other notices, legends, or restrictions applicable to any Nanolume Materials.
    2. If you provide any suggestions, ideas, or feedback to us (“Feedback”), we will have a royalty-free, worldwide, irrevocable, perpetual license to use such Feedback and incorporate it into or use it to improve the Mobile App and our other products and services.
  7. TRADEMARKS. Nanolume’s name and its trademarks, service marks, and logos are registered or unregistered trademarks of Nanolume. The names and marks of any third parties in the Mobile App or other Nanolume Materials are the property of their respective owners and may also be trademarked. Our trademarks may be used publicly only with our prior written permission.
  8. TERM AND TERMINATION. This Agreement shall remain in force perpetually unless and until terminated as follows: You may terminate this Agreement by deleting all copies of the Mobile App from your devices. If you materially breach any of the terms of this Agreement, this Agreement and your license to use the Mobile App will automatically terminate. Nanolume may also terminate this Agreement upon notice to you if Nanolume determines that termination is required or advisable for legal reasons. Upon termination, you will no longer be licensed to use the Mobile App, and you agree that you will delete all copies of the Mobile App from your devices.
  9. ASSIGNMENT. You may not allow others to use the Mobile App for their own personal use. If you permanently transfer your mobile device to another person, you agree to delete the Mobile App first.
  10. NO WARRANTIES; LIMITATIONS OF LIABILITY.
    1. THE MOBILE APP AND OTHER NANOLUME MATERIALS ARE PROVIDED TO YOU “AS IS” WITH NO WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED. NANOLUME DISCLAIMS ANY IMPLIED WARRANTY OF MERCHANTABILITY, NON-INFRINGEMENT, FREEDOM FROM ERRORS, OR FITNESS FOR ANY PARTICULAR PURPOSE.
    2. THE MOBILE APP IS NOT INTENDED TO BE A SUBSTITUTE FOR PROFESSIONAL MEDICAL ADVICE, DIAGNOSIS OR TREATMENT. ALWAYS CONSULT A QUALIFIED MEDICAL PROFESSIONAL OR HEALTHCARE PROVIDER FOR ADVICE, DIAGNOSIS, AND TREATMENT IN CONNECTION WITH YOUR USE OF THE MOBILE APP. YOUR USE OF THE MOBILE APP IS AT YOUR SOLE RISK, AND YOU AGREE THAT NANOLUME IS NOT RESPONSIBLE OR LIABLE FOR ANY MEDICAL ISSUES OR PROBLEMS THAT MAY ARISE IN CONNECTION WITH YOUR USE OF THE MOBILE APP.
    3. OUR TOTAL LIABILITY FOR ANY CLAIM OR DAMAGE ARISING OUT OF THIS AGREEMENT, INCLUDING ANY USE OF, OR INABILITY TO USE, THE MOBILE APP OR OTHER NANOLUME MATERIALS, SHALL BE LIMITED TO DIRECT DAMAGES, WHICH SHALL NOT EXCEED THE TOTAL AMOUNT PAID BY YOU FOR THE LICENSE TO USE THE MOBILE APP. IN NO EVENT SHALL NANOLUME BE LIABLE FOR ANY PERSONAL INJURY, DEATH, LOST DATA, OR ANY DAMAGES WHATSOEVER, INCLUDING DIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, ARISING OUT OF THE USE OF OR INABILITY TO USE THE MOBILE APP OR OTHER NANOLUME MATERIALS, REGARDLESS OF WHETHER WE HAVE NOTICE OF THE POTENTIAL FOR SUCH LOSS OR DAMAGE.
    4. YOU ARE SOLELY RESPONSIBLE AND LIABLE FOR (i) USING THE MOBILE APP, (ii) ANY MEDICAL TREATMENT, AND (iii) ANY AND ALL DIAGNOSES, ACTIONS, INACTIONS, OMISSIONS, HEALTHCARE, HEALTH OUTCOMES AND PRACTICES FROM, BY, THROUGH OR ON BEHALF OF YOU OR OTHERS ARISING FROM YOUR USE OF THE MOBILE APP. THE MEDICAL TREATMENT, OR LACK THEREOF, AS A RESULT OF USING THE MOBILE APP IS YOUR SOLE RESPONSIBILITY. YOU AGREE THAT: (1) IF YOU ARE IN NEED OF OR ARE SEEKING MEDICAL TREATMENT OR EMERGENCY CARE, YOU SHOULD CONTACT YOUR HEALTHCARE PROVIDER OR CALL THE APPLICABLE EMERGENCY SERVICES TELEPHONE NUMBER IN YOUR AREA OR COUNTRY (FOR EXAMPLE, 911 IS THE EMERGENCY SERVICES NUMBER IN MOST AREAS OF THE USA); (2) YOU WILL NOT LEAVE ANY MESSAGES WITH, OR SEND ANY EMAILS TO, NANOLUME WITH RESPECT TO YOUR MEDICAL CONDITION, AS NANOLUME IS NOT YOUR HEALTHCARE PROVIDER, IS NOT AND DOES NOT PROVIDE 911 OR OTHER EMERGENCY SERVICES, AND CANNOT CONTACT YOU OR ANYONE ON YOUR BEHALF WITH RESPECT TO YOUR MEDICAL CONDITION OR TREATMENT; (3) DATA PROVIDED BY NANOLUME THROUGH THE SOFTWARE IS FOR INFORMATIONAL PURPOSES ONLY AND IS NOT INTENDED TO REPLACE THE RELATIONSHIP BETWEEN YOU AND YOUR PHYSICIAN OR OTHER HEALTHCARE PROVIDER; (4) YOU SHOULD ALWAYS CONSULT A PHYSICIAN IF YOU HAVE ANY QUESTIONS REGARDING A MEDICAL CONDITION; (5) NEVER DISREGARD PROFESSIONAL MEDICAL ADVICE OR DELAY IN SEEKING IT BECAUSE OF SOMETHING YOU HAVE READ OR RECEIVED USING THE MOBILE APP; AND, (6) NANOLUME IS NOT RESPONSIBLE FOR THE ACCURACY, RELIABILITY, EFFECTIVENESS, OR CORRECT USE OF INFORMATION YOU RECEIVE.
    5. Some jurisdictions prohibit certain limitations of damages in consumer contracts, so the above limitations may be superseded by law in some jurisdictions.
  11. APPLICABLE LAWS.
    1. We offer the Mobile App from our location in the United States of America. We make no representation that the Mobile App or other Nanolume Materials are appropriate or available for use in other locations, and use thereof in territories where their content is illegal is prohibited.
    2. You may not use or export the Nanolume Materials in violation of U.S. export laws and regulations.
    3. This Agreement shall be governed by the laws of the state of Arkansas, excluding conflicts of laws rules. You consent to the exclusive jurisdiction and venue of courts in Arkansas in all disputes arising out of or relating to this Agreement.
    4. Our provision of the Mobile App and other Nanolume Materials and services is subject to existing laws and legal processes. Nothing in this Agreement limits our right to comply with governmental, court, and law enforcement requests or requirements.
  12. MISCELLANEOUS. Unless otherwise specified herein, this Agreement constitutes the entire agreement between you and us with respect to the Mobile App. This Agreement supersedes all other prior or contemporaneous communications and understandings, whether electronic, oral, or written, between you and us with respect to the Mobile App. If any provision of this Agreement is found void or unenforceable, all other provisions will remain in full force and effect. The failure to enforce any right or provision of this Agreement will not constitute a waiver of future enforcement of that right or provision.

Updated September 9, 2022.

Copyright © 2014-2023, Nanolume® LLC. All Rights Reserved. U.S. Patent No. 11,363,985 B2.