Eye Patient
LICENSE AGREEMENT
Use of Your Eye Patient is contingent upon acceptance of the
terms and conditions provided herein. As used throughout this Agreement,
"Effective Date" shall mean the date upon which you indicate
electronic acceptance to this Agreement with Cloud Nine Development, LLC
("Cloud Nine"). ").
PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING THE SERVICES
OFFERED BY CLOUD NINE. BY INDICATING ELECTRONIC ACCEPTANCE OF THIS AGREEMENT,
YOU AGREE TO FOLLOW AND BECOME BOUND BY IT. IF YOU DO NOT AGREE TO ALL THE
TERMS AND CONDITIONS OF THIS AGREEMENT, YOU WILL NOT HAVE ANY RIGHT TO USE THE
SERVICES OFFERED BY CLOUD NINE. CLOUD NINE'S ACCEPTANCE IS EXPRESSLY
CONDITIONED UPON YOUR ASSENT TO ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT.
IF THIS AGREEMENT IS CONSIDERED AN OFFER BY CLOUD NINE, ACCEPTANCE IS EXPRESSLY
LIMITED TO THESE TERMS.
Cloud Nine is the sole and exclusive owner of
CloudNineSilver.com and CloudNineDevelopment.com (the "Sites"), Your Eye
Patient -a mobile application interface that is designed for and intended to be
published on Apple iTunes application store and/or Google Android Market-(the
"Application"), and certain services that relate to facilitating the
production and customization of the Application and assisting in the process of
establishing and maintaining certain relationships with Apple, Inc. and/or
Google, Inc. (the "Services"), which Services are available to User
in accordance with the terms of the license provided hereunder. User wishes to
obtain a license from Cloud Nine to use the Sites, Application, and Services to
have the Application made available to User and User's clients, customers, and
patients, as appropriate. Cloud Nine desires to make the Sites, Application,
and Services available to User for such use.
In consideration of the promises and agreements set forth
herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties, each intending
legally to be bound, promise and agree as follows:
Cloud Nine hereby grants to User, for the term of this Agreement
the non-transferable, non-exclusive right and license to use
the Sites, Application, and Services, subject to User’s compliance with the
provisions hereof. As consideration for the license contemplated
hereunder, User agrees to pay to Cloud Nine a non-refundable set-up fee and a
reoccurring monthly fee.
1.
DEFINITIONS
.
For purposes of this Agreement, the terms “we,” “us,” “our,”
and other first person personal pronouns refer to Cloud Nine and its
successors, affiliates, subsidiaries, and assigns. The terms “You,”
“your,” and other second person personal pronouns and the term “User”
refer to you as a user of the Sites, Application, and Services. The terms
“Content Provider” and “Content Providers” refer to any person,
firm, corporation, or other entity that supplies content to us. A User,
such as you, may also furnish content; however, for purposes of this Agreement,
you will not be considered a Content Provider.
2.
SERVICES
.
Cloud
Nine may provide Services to the User. Cloud Nine may change, suspend, or
discontinue the Services (or User’s access thereto), including the availability
of any feature, mobile application, mobile application template, Services, or
Content (as defined below), without notice or liability. Cloud Nine
reserves the right, in its sole discretion, to refuse to allow access to the
Services to any User at any time. Cloud Nine reserves the right, in its
sole discretion, unilaterally to modify this Agreement at any time. Cloud
Nine is under no obligation to provide technical support for the Services, use
of the Sites, or use of the Application at any time.
(a)
Registration and Security
.
As a condition to using the Services, User may be required to register with
Cloud Nine, to select a password, and to enter User’s email address (“
Cloud
Nine User ID
”). User shall provide Cloud Nine with accurate, complete, and
updated registration information. Failure to do so shall constitute a
breach of this Agreement, which may result in immediate termination of this
Agreement and User’s account. User may not (i) select
or use as a Cloud Nine User ID, a name of another person with the intent to
impersonate that person or (ii) use as a Cloud Nine User ID a name subject
to any rights of a person other than User without appropriate
authorization. Cloud Nine reserves the right to refuse registration of,
or cancel a Cloud Nine User ID in its sole discretion. User shall be
responsible for maintaining the confidentiality of User’s Cloud Nine password.
(b)
Equipment and Ancillary Services
.
User shall be responsible for obtaining and maintaining any equipment or
ancillary services needed to connect to or to access the Sites or otherwise to
use the Services, including, without limitation, hardware devices, software,
and other Internet, wireless, broadband, phone, or other communication device
connection services. User shall be responsible for ensuring that such equipment
or ancillary services are compatible with the Sites and the Services and User
shall be responsible for all charges incurred in connection with all such
equipment and ancillary services, including any fees charged for airtime usage
and sending and receiving messages or related notifications.
(c)
No Ownership
. No
ownership rights are transferred by way of this license agreement. User does
not acquire or maintain ownership rights in or to any content,
document, code, name of the Application or other
materials viewed through the Application or from posting information or
materials displayed on or through the Application. With the exception of
content purchased from third party entities, user may view, print, or download
content displayed on or through the Application, but only for User’s own
business or professional use and not for any other purpose whatsoever.
User represents and warrants that the Application, the Sites, and the Services
are to be used solely for business or professional purposes and not for
personal, family, household, or agricultural use. The use or display of
any such material on any other application or networked computer environment is
prohibited.
(d)
Copyright and Trademarks
.
The content provided by Cloud Nine in the Application
and on the Sites, including (without limitation) its selection and organization,
graphics, design, and compilation are protected under applicable copyright
laws. “Your Eye Patient” and other marks used
in connection with the Application are owned by Cloud Nine. Other
products, company names, and content displayed on or through the Application
may, in some cases, be the trademarks or copyrights of third parties and are
used, when applicable, with permission. The copying, distribution, public
display, modification, or other use by User of the Application and the Sites
and all content displayed on or through the Application and the Sites, except
as specifically permitted by this Agreement, is strictly prohibited – in the
absence of the advance, written permission of an officer of Cloud Nine.
In the event you are granted written permission to copy, transmit, publish, or
link any material found in the Application or on the Sites, you may not make
any changes or deletions and you must attribute Cloud Nine Development, LLC as
the source of the material.
(e) As part of the Services that Cloud Nine provides to
User, Cloud Nine may establish and maintain a license agreement, on behalf of
User, with Apple, Inc. and/or Google, Inc., to have the Application published
and made available via the Apple iTunes application store and/or the Google Android
Market. For the purposes identified in this section 2(e), User appoints Cloud
Nine to be its agent, with full power of attorney, and User acknowledges and
agrees that: (i) any information provided to Cloud
Nine may be shared with Apple, Inc. and/or Google, Inc.; and (ii) Cloud Nine
may set up an email account on behalf of User. In the event that User enters
into a license agreement with Apple, Inc. and/or Google, Inc. (whether on
User’s own or on User’s behalf by Cloud Nine), User shall be responsible for
the payment of any costs associated therewith, including, for example, costs
associated with any other applications, changes or modifications to the
Application, or ongoing periodic renewals. User has read and agrees to the
terms and conditions required of Apple, Inc. and Google, Inc., respectively.
User shall agree to any updates or modifications to the terms and conditions
required of Apple, Inc. or Google, Inc. (“Updated Apple/Google Terms”) and
authorizes Cloud Nine to accept on User’s behalf any and all Updated
Apple/Google Terms. User shall immediately notify Cloud Nine if User no longer
accepts any Updated Apple/Google Terms.
(f) The web links provided at the Sites, and below, identifying
certain terms and conditions required of Apple, Inc. and Google, Inc. are
provided as a courtesy to User, nevertheless, Cloud Nine shall not be
responsible for notifying User of any Updated Apple/Google Terms. Furthermore,
Cloud Nine makes no representation or warranty regarding the web links provided
below, as to operability, functionality, completeness, and/or accuracy.
http://www.android.com/us/developer-distribution-agreement.html
http://developer.android.com/license.html
https://firebase.google.com/terms/
https://developer.apple.com/programs/terms/apple_developer_agreement.pdf
AppleiOSDeveloper Program License Agreement
3.
FEES
.
As
consideration for the licenses granted hereunder, User agrees to pay to Cloud
Nine the fees set forth herein. Unless otherwise stated, all fees are
quoted in U.S. Dollars and all reoccurring fees shall be paid by credit
card. User shall complete a credit card authorization. Cloud Nine
reserves the right to change its price list and to institute new charges at any
time, upon prior notice to User, which may be sent by e-mail or posted on the
Sites. User is responsible for paying all fees and applicable taxes
associated with the Services in a timely manner with a valid payment method. If
User’s payment method fails or if User’s account is past due, Cloud Nine may
collect fees owed using (without limitation) collection agencies and legal
counsel, and the cost thereof shall be added to all amounts otherwise owed to
Cloud Nine.
4.
TERM
.
(a)
Initial Term
.
This Agreement shall be in effect commencing on the Effective Date (the “
Commencement
Date
”), and shall extend therefrom, unless sooner terminated (as provided
herein), for an initial term of one (1) month (the “Initial Term”).
(b)
Renewal Term
.
At the end of the Initial Term, provided User is not then in breach of any of
the provisions of this Agreement, the licenses granted hereunder will
automatically renew for an additional one-month term (the “Renewal Term”),
unless, Cloud Nine or User furnishes to the other a written notice of
non-renewal, which notice shall terminate this Agreement and the obligations
arising hereunder after 30 days. Unless sooner terminated (as provided
herein), this Agreement shall automatically renew for successive additional
one-month terms. Throughout this Agreement, the Initial Term and the Renewal
Terms shall be referred to collectively as the “Term” of the Agreement.
5.
CONTENT AND CUSTOMIZATION
.
Users will access the Sites to upload user content to the Application.
Such content may include (without limitation): pictures, logos, names,
e-mail addresses, phone numbers, fax numbers, specialties, locations, slogans,
physical addresses, missions, general information, history, accepted insurance
plans, services, educational information, research studies, practice news,
testimonials, feedback, appointment information, medication refill information,
test result information, referrals, contacts, alarms, note takers, calendars,
and other various interactive options (“User Content”). The
customization permitted includes primarily User Content to be uploaded at
specific points within a template we furnish for you.
(a)
No Control
.
User acknowledges and agrees that Cloud Nine has no special relationship with
or fiduciary duty to User and that Cloud Nine has no control over (and is
merely a passive conduit with respect to), and no duty to take any action
regarding: (i) the Content User makes available,
publishes, or promotes in connection with its use of the Application and the
Sites; (ii) which of User’s end users, clients, and customers (“
End
Users
”) gain access to the Application; (iii) what effects, if any,
Content may have on User or End Users; (iv) how User or End Users
interpret, view, or use the Content; (v) what actions User or End Users
may take as a result of having been exposed to the Content, or
(vi) whether Content is being displayed properly in connection with the
Services.
(b)
Additions
.
Cloud Nine may add phrases such as “powered by” Cloud Nine including buttons
calling for actions, text, splash screens, and any other marketing items to the
Application.
(c)
Links to Other Applications and
Websites
. The Application may contain links to other applications
and websites. Cloud Nine is not responsible for the content, accuracy, or
opinions expressed in such applications or websites. Cloud Nine does not
warrant that such links are current or operational, and such applications and
websites may not be investigated, monitored, or checked for accuracy or
completeness by Cloud Nine on an ongoing basis. Inclusion of any linked
website on the Application does not imply approval or endorsement of the linked
website by Cloud Nine.
(d)
Customization
.
The customization permitted is limited as permitted in our available template
or templates. We may consider further customization; however, such
additional customization will require a separate customization agreement and
separate consideration.
(e)
Restrictions
.
User warrants, represents, and agrees that it will not contribute, submit, or
make available through the use of the Services any User Content that is
infringing, libelous, defamatory, obscene, pornographic, abusive, offensive, or
that otherwise violates any law or right of any third party, including (without
limitation) any right of privacy or publicity . Cloud Nine reserves the right
to remove any content (User Content or otherwise) from the Sites at any time,
or to terminate User’s right to use the Services or access the Sites, for any
reason (including, but not limited to, upon receipt of claims or allegations
from third parties or authorities relating to such Content or if Cloud Nine is
concerned that User may have breached the terms of this paragraph), or for no
reason at all, subject to the provisions of Section 10 (“Termination”).
User is responsible for all of its activity in connection with the
Services and accessing the Sites. User may not post or transmit, or cause to be
posted or transmitted, any communication or solicitation designed or intended
to obtain, without full disclosure and proper authorization, account or private
information from any person. User sha ll not use any part of the Sites or Services to violate the
security of any computer network, crack passwords, or security encryption
codes, or to transfer or store material that is deemed threatening or obscene,
or to engage in any kind of illegal activity.
6.
WARRANTIES AND DISCLAIMERS
(a)
GENERAL
.
THE SERVICES, APPLICATION, AND SITES ARE FURNISHED “AS IS,” “WITH ALL FAULTS,”
AND “AS AVAILABLE.” CLOUD NINE AND THE CONTENT PROVIDERS MAKE NO WARRANTY
OR REPRESENTATION, EXPRESS OR IMPLIED, AS TO THE AVAILABILITY, FUNCTIONALITY,
OR OPERABILITY OF THE SERVICES, APPLICATION, OR THE SITES OR TO THE ACCURACY,
CORRECTNESS, OR COMPLETENESS OF THE INFORMATION FURNISHED BY OR THROUGH
THE APPLICATION OR THE SITES OR THE DATA FROM WHICH SUCH INFORMATION IS
COMPILED. MOREOVER, CLOUD NINE SPECIFICALLY DISCLAIMS THE IMPLIED WARRANTIES
OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND
NON-INFRINGEMENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN,
OBTAINED BY YOU FROM US THROUGH THE SERVICES, APPLICATION, SITES, OR OTHERWISE
SHALL CREATE ANY WARRANTY, REPRESENTATION, OR GUARANTEE NOT EXPRESSLY STATED IN
THIS AGREEMENT. ALTHOUGH WE WILL EMPLOY COMMERCIALLY REASONABLE MEASURES
TO DETECT AND REMOVE SO-CALLED VIRUSES, EASTER EGGS, TROJAN HORSES, TIME BOMBS,
OR OTHER INTENTIONALLY DISRUPTIVE, DESTRUCTIVE, OR DISABLING CODE (“VIRUSES”),
WE DO NOT WARRANT THAT THE APPLICATION OR THE SITES WILL BE FREE OF VIRUSES.
(b)
USE
. USERS
ARE RESPONSIBLE FOR THE USE OF THE SERVICES, APPLICATION, AND SITES. BY
INDICATING ELECTRONIC ACCEPTANCE TO THIS AGREEMENT, YOU ACKNOWLEDGE AND AGREE
TO THE FOREGOING WARRANTY DISCLAIMER AND THAT YOU USE THE SERVICES,
APPLICATION, AND SITES AND THE INFORMATION FURNISHED ON OR THROUGH THE
APPLICATION AND SITES AT YOUR OWN RISK. Additionally, as a condition of
the grant of the license provided hereunder, you agree not to use the
Application or the Sites for any purpose other than that permitted under this
Agreement or for any purpose that is unlawful or prohibited by this
Agreement. You may not use the Application or the Sites in any manner
that could damage, disable, or impair the Application or the Sites, their
availability and functionality, or the use or enjoyment of the Application and
the Sites by others. You may not attempt to gain unauthorized access or
any access beyond your rights as granted herein to any component of the
Application, the Sites, or any content otherwise available on or through the
Application or the Sites by hacking, password mining, or any other means.
You may not obtain or attempt to obtain any content or information through any
means not explicitly and intentionally made available through the Application
or the Sites. WITHOUT LIMITING ANY OTHER PROVISION OF THIS AGREEMENT, CLOUD
NINE RESERVES THE RIGHT TO, IN ITS SOLE DISCRETION AND WITHOUT NOTICE OR
LIABILITY, DENY ACCESS TO, AND USE OF, THE SERVICES, APPLICATION AND/OR SITES.
(c)
Electronic Communications
Privacy Act Notice (18 USC 2701-2711)
. CLOUD NINE MAKES
NO GUARANTY OF CONFIDENTIALITY OR PRIVACY OF ANY COMMUNICATION OR INFORMATION
TRANSMITTED ON THE SITES OR APPLICATION OR OF ANY WEBSITE LINKED TO THE SITES
OR THROUGH ANY USE OF THE SERVICES. Cloud Nine will not be liable for the
privacy content or Cloud Nine User ID information stored on its equipment and
transmitted over networks accessed by the Sites, Application, or otherwise
connected with User’s use of the Sites, Application, or Services.
(d)
Acceptance
.
CLOUD NINE MAKES NO REPRESENTATION, WARRANTY, OR GUARANTEE THAT THE APPLICATION
WILL BE APPROVED OR PUBLISHED BY APPLE, INC. OR GOOGLE, INC. CLOUD NINE MAKES
NO REPRESENTATION, WARRANTY, OR GUARANTEE THAT THE APPLICATION WILL NOT BE
REMOVED FROM THE APPLE ITUNES APPLICATION STORE OR THE GOOGLE ANDROID MARKET
AFTER THE APPLICATION IS PUBLISHED, IF AT ALL.
7.
LIMITATION OF LIABILITY
.
UNDER NO CIRCUMSTANCES SHALL CLOUD NINE OR ANY OF THE CONTENT PROVIDERS BE
LIABLE (i) FOR ANY AMOUNT IN EXCESS OF THE
CONSIDERATION YOU PAID FOR THIS LICENSE, IF ANY, OR (ii) FOR INDIRECT,
INCIDENTAL, OR CONSEQUENTIAL DAMAGES (SUCH AS, WITHOUT LIMITATION, LOSS OF
BUSINESS, DAMAGE TO REPUTATION, LOSS OF PROFITS OR REVENUE, DAMAGE TO
TECHNOLOGICAL OR OTHER DEVICES, OR LITIGATION) OR FOR SPECIAL, EXEMPLARY,
PUNITIVE, OR SIMILAR DAMAGES, EVEN IF ADVISED OR WARNED OF THE
POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES. THE NEGATION OF DAMAGES SET
FORTH ABOVE IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN US AND
YOU. YOU AND WE (ON BEHALF OF OURSELVES AND THE CONTENT PROVIDERS) AGREE
THAT THE FOREGOING LIMITATION OF LIABILITY IS A REASONABLE AND AGREED
ALLOCATION OF RISK BETWEEN YOU AND US (AND THE CONTENT PROVIDERS AND SPONSORS)
AND THAT IT REFLECTS THE FEES, IF ANY, WE CHARGE YOU FOR THIS LICENSE AND THE
CONTENT FURNISHED ON OR THROUGH THE APPLICATION. YOU ACKNOWLEDGE THAT
ABSENT YOUR AGREEMENT TO THIS LIMITATION OF LIABILITY, WE WOULD NOT PROVIDE
THIS LICENSE TO YOU.
8.
REVERSE ENGINEERING
.
Under no circumstances may you disassemble, decompile, or otherwise reverse
engineer or attempt to discover the source code of the Application or the
Sites, such source code being confidential and proprietary property of Cloud
Nine.
9.
INDEMNIFICATION
.
You agree to defend, indemnify, and hold harmless Cloud Nine its affiliates,
the Content Providers, and their respective directors, officers, employees, and
agents (collectively, “Affiliated Parties”) from and against any and all
claims, actions, suits, or proceedings, as well as any and all losses,
liabilities, damages, costs, and expenses (including reasonable attorneys’ fees
and costs) arising out of, accruing from, or in any way related to: (a) any
material posted or otherwise provided by You that infringes any copyright,
trademark, trade secret, trade dress, patent or other intellectual property
right of any person or defames any person or violates any person’s rights of
publicity or privacy; (b) any misrepresentation made by You in connection
with Your use of the Application or the Sites; (c) any non-compliance by
You with the terms and conditions of this Agreement; and (d) claims
regarding any liability, loss, claim, and expense arising from or related to
Your access and use of the Application or the Sites. Notwithstanding the
foregoing, Cloud Nine reserves the right to assume, at its expense, the
exclusive defense and control of any matter subject to indemnification by You, in which event You will fully cooperate with us in
asserting any available defenses.
10.
TERMINATION
.
The following termination rights are in addition to the termination rights
provided elsewhere in this Agreement:
(a)
Right to Terminate on Advance
Notice
. This Agreement may be terminated by either party
upon thirty (30) days’ written notice to the other party in the event of a
breach of a material provision of this Agreement by the other party, which
breach continues without being cured to the satisfaction of the non-breaching
party for a period of thirty (30) days from the date of the notice of
termination. If the noticed breach is timely cured to the satisfaction of
the non-breaching party, then this Agreement shall continue as though there had
been no breach and no notice of termination. If, however, the breach is
not timely cured, as provided herein, then this Agreement shall automatically
terminate at the end of the said thirty (30) day period, without other or
further action by the non-breaching party. Termination, as provided
herein, shall not constitute an election of remedies, and the non-breaching
party, in addition to such right of termination, shall have available to it all
other appropriate legal or equitable remedies.
(b)
Termination of Rights
.
Upon the expiration or termination of this Agreement, all of the rights granted
to User under this Agreement shall terminate and revert to Cloud Nine.
11.
PRIVACY POLICY
.
We are committed to protecting your online privacy. The privacy policy
found in this Section 11 (“Privacy Policy”) discloses the privacy
practices for the Application and the Sites. We encourage you to read
this Privacy Policy carefully to learn what information we collect from you and
how we use that information. The privacy practices set forth in this
Privacy Policy are for the Application and the Sites only. If you link to
other web sites, please review the privacy policies posted at those sites.
(a)
Information We Collect
.
We may collect information about an individual that does not identify a
specific user or individual (“Non-Personal Information”). We may
also collect your e-mail address, but we do not collect or store any other
information that identifies a specific user or other individual (“
Personal
Information
”). Non-Personal Information may include
things like the Uniform Resource Locator (“URL”) of the websites you
visited before and after coming to the Application or Sites and your Internet
Protocol (“IP”) address. Although we may obtain and retain your
e-mail address and your name, other personally identifiable information are not
to be associated with such data elements. We and our authorized
third-party service providers and ad servers may automatically collect
Non-Personal Information and your e-mail address when you visit the Application
or Sites, as described in more detail below; however, all such information
shall be deleted and destroyed from our server within 24 hours in accordance
with our policies and procedures. Whenever, in this Privacy Policy, we
refer to information which may include either or both Personal Information
and/or Non-Personal Information, we will refer to such information as
“Individual Information.”
(b)
Sharing Individual Information
.
Except as set forth in this Privacy Policy, we will not share your Individual
Information with other parties. We may share your Individual Information
in a business transfer or with preferred vendors/collaborators/partners.
As with any other business, we could merge with or be acquired by another company.
If this occurs, the successor company would acquire the information we
maintain, including Individual Information. All of your Individual
Information, however, would remain subject to this Privacy Policy. We may
also share your Individual Information for our protection and the protection of
others. We may share Individual Information when we believe release is
appropriate to: comply with the law; enforce this Agreement, or other
agreements; or protect the rights, property or safety of the Application and
Sites, its users, or others.
(c)
Cookies
. A
cookie is a small text file that is stored on a user’s computer that stores
Individual Information about that user. We may use cookies to save you time
while using the Application and Sites and to remind us who you are. Most
browsers automatically accept cookies, but you may be able to modify your
browser settings to decline or delete cookies. Please note that if you
decline or delete these cookies, some parts of the Application or Sites may not
work properly. We may use a third-party analytic company to track and
analyze Individual Information.
(d)
Security
.
We take precautions to protect the security of your Individual
Information. Such information resides on a secure server that only
selected personnel and contractors have access to. Unfortunately, no data
transmission over the Internet or any wireless network can be guaranteed to be
100% secure. As a result, although we employ commercially reasonable
security measures to protect data and seek to partner with companies which do
the same, we cannot guarantee the security of any information transmitted to or
from the Application or Sites, and are not responsible for the actions of any
third parties that may receive any such information.
(e)
Children
. Minors
under the age of 13 may not use the Application or Sites. We do not
collect or maintain information from anyone known to be under the age of 13,
and no part of the Application or Sites is designed to attract anyone under the
age of 13.
(f)
Notice of Privacy Rights to California
Residents
. California law requires that we provide you
with a summary of your privacy rights under the California Online Privacy
Protection Act (the “Act”) and the California Business and Professions
Code. As required by the Act, we will provide you with the categories of
Personal Information (if any) that we collect through the Application or Sites
and the categories of third-party persons or entities with whom such
information may be shared for direct marketing purposes at your request.
California law requires us to inform you, at your request of: (1)
the categories of Personal Information we collect and what third parties we
share that information with; (2) the names and addresses of those third
parties; and (3) examples of the products marketed by those companies.
California law further requires us to allow you to control who you do not want
us to share the foregoing information with. To obtain this information,
please send a request to: Cloud Nine Development, LLC, 14915
Outlook Lane, Overland Park, KS 66223. When contacting us, please
indicate your name, address, email address, and what Personal Information you
do not want us to share. The request should be labeled “California
Customer Choice Notice.” Please allow at least 30 days for a
response.
(g)
Changes to Privacy Policy
.
We reserve the right to change this Privacy Policy from time to time by posting
the revised Privacy Policy in the “Privacy Policy” section of this
Agreement. You acknowledge that it is your responsibility to review our
Privacy Policy periodically to learn of any modifications. Your continued
use of the Application or Sites after the posting of the revised Privacy Policy
shall constitute your acceptance of the revised Privacy Policy.
(h)
Locations & Phone Data
.
Eye Patient App enables eye doctors and clinics to share their locations and phone details to patients, so patients can get direction to doctors' offices as well as allow them to make phone calls to their doctors/clinics. This communication feature requires permission for app users to enable this feature.
We are taking Location Permission (ACCESS_COARSE_LOCATION and ACCESS_FINE_LOCATION) for Get Current Location of users to manage location wise functionality and Call Permission (CALL_PHONE) for making calls.
App will NOT be collecting location data when permission is not granted by user.
App will NOT be collecting continual user's location data in background when not location specific task/activity in use.
12.
GENERAL
.
(a)
Waiver
.
Our failure to enforce any provision of this Agreement shall not be construed
as a waiver or limitation of our rights subsequently to enforce and compel
strict compliance with every provision of this Agreement.
(b)
Governing Law, Jurisdiction, and
Venue
. This Agreement shall be interpreted under and
governed by the laws of the State of Kansas without giving effect to Kansas
conflicts of laws principles or provisions. Any action properly brought
pursuant to this Agreement, shall be brought in the state or federal courts
sitting in Johnson County, Kansas, and You hereby waive any challenges to
jurisdiction and venue (other than a challenge based on the obligation to
arbitrate) for any such action brought by us. In the event of any litigation
over this Agreement if we are the prevailing party, You
agree to pay all of our expenses associated with such litigation, including
(without limitation) court costs and attorneys’ fees.
(c)
Severability
.
If any term or provision in this Agreement is found to be void, against public
policy, or unenforceable by a court of competent jurisdiction and such finding
or order becomes final and non-appealable, then the offending provision shall
be deemed modified to the minimum extent necessary to make it valid and
enforceable. If the offending provision cannot be so modified, then the
same shall be deemed stricken in its entirety, and unless such term or
provision is material to the performance of this Agreement, the remainder of
this Agreement shall survive with the offending provision eliminated.
(d)
Amendment or Modification
.
This Agreement may not be amended except by a written instrument signed by you
and by us. Notwithstanding the foregoing, we may, from time to time, post
amendments to this Agreement. Your further use of the Application and
Sites following the posting, by us, of such an amendment will constitute your
agreement to such amendment or modification. If you do not wish to accept
such amendment or modification, you must cease all further use of the
Application and the Sites.
(e)
Entire Agreement
.
This Agreement contains the entire agreement and understanding between you and us with respect to the subject matter hereof, and there are
no representations, inducements, promises, or agreements, oral or otherwise,
not embodied herein. Any and all prior discussions, negotiations,
commitments, and understandings relating thereto are merged herein.
(f)
Arbitration
.
All disputes between You and Cloud Nine arising in connection with this
Agreement (other than actions for injunctive relief as set forth in Section
12(g) below) shall be finally settled by binding arbitration administered by
the American Arbitration Association under its Commercial Arbitration Rules,
using the Expedited Procedures, and judgment on the award rendered by the
arbitrator(s) may be entered in any court of competent jurisdiction. The
arbitrator shall be an individual generally skilled in the legal and business
aspects of the subject matter of this Agreement. The arbitrator shall
have no authority to impose penalties or award punitive damages. The
arbitration shall take place in Overland Park, Kansas and the arbitrator shall
apply the law of the State of Kansas and applicable rules of evidence. If
all parties and the arbitrator agree, arbitration may take place by telephone
or by written communication. Unless the arbitrator otherwise directs, the
parties, their representatives, other participants, and the arbitrator shall
hold the existence, content, and result of the arbitration in confidence.
No action, regardless of form, related to the obligations of the parties under
this Agreement may be brought by either party against the other more than one
(1) year after the cause of action has accrued.
(g)
Injunctive Relief
.
Notwithstanding anything to the contrary herein, we may seek immediate
injunctive relief (whether temporary or preliminary) in the event of Your
infringement or threatened infringement of any intellectual property rights of
Cloud Nine or any Content Provider or a breach or threatened breach of Your
obligations hereunder. You acknowledge that any such infringement,
threatened infringement, breach, or threatened breach will result in
irreparable damage to us and will inflict injury difficult to remedy through
monetary damages alone. Accordingly, with respect to any such
infringement, threatened infringement, breach, or threatened breach, we may
seek and obtain, from a court of competent jurisdiction, such preliminary,
temporary, or permanent injunctive relief as the court may award, without the
need for us to post or file any bond or like surety or security.
(h)
Headings
.
The paragraph or section headings used herein are for convenience only and in
no way define, limit, extend, or interpret the scope of this Agreement or of
any particular paragraph hereof.
(i)
Representation by Counsel and Contra Proferentum
.
User hereby represents that: (a) it has been represented by competent
counsel of its choice, or has had the opportunity to engage such counsel, in
the review and execution of this Agreement, (b) it has read and fully
understands the terms hereof, (c) User and its counsel have been afforded
an opportunity to review the terms of this Agreement and that User intends to
be bound hereby. In accordance with the foregoing, the general rule of
construction to the effect that any ambiguities in a contract are to be
resolved against the party drafting the contract shall NOT be employed in the
construction and interpretation of this Agreement.