Healium End User License and Subscription Agreement
This end user license and subscription agreement (the “agreement”) is between customer (“customer” or “you”) and storyup, inc. (“Storyup” dba Healium) and governs your use of Storyup’s Healium software and services. If you do not agree with these terms and conditions, you must not accept this agreement and may not use the software and services. By accepting this agreement, either by clicking a box or icon indicating your acceptance or by executing an ordering document that references this agreement, you agree to the terms of this agreement. This agreement is effective between customer and Storyup as of the date of you accepting this agreement.
In addition to the terms defined elsewhere in this agreement, the following capitalized and underlined terms shall have the meaning set forth in this section for purposes of this agreement:
“Data” shall mean all data, measurements, numbers, statistics, figures, calculations, signals and all other information collected, received, compiled, derived, or generated in connection with the use of the Eealium software, including but not limited to, electroencephalogram (EEG) data, electromyogram (EMG) data, electro-oculogram (eog) data, electrocardiogram (ecg) data, and other brainwave data (e.g., Alpha, beta, gamma, delta, and theta brainwave signals), accelerometer and/or gyroscope data, blood pressure data, heart rate data, respiratory and/or breathing pattern data, skin conductance and/or skin temperature data, and other performance data, age, gender, height, weight, geographical location (zip code), session dates, live stream and recorded video, audio and virtual reality content, all other information collected and generated in connection with the use of the Healium software and services. Data shall also include any information provided by customer to Storyup in connection with customer’s use of the Healium software and services, including but not limited to, name, address, email, phone number, and login credentials. Data shall not be considered confidential information.
“Hardware” shall mean the third-party virtual reality hardware products, devices and other accessories that are used by the customer to download, access, and/or use the Healium software, including but not limited to a mobile device, virtual reality headset, brain-sensing headband or cap, and other connected devices, all of which are owned by third parties and not Storyup. The hardware does not include the Healium software or any Storyup materials.
“Healium software” shall mean the software and mobile application that Storyup makes available to subscribers via the internet and all items of documentation relating to the Healium software provided by Storyup, along with any updates, fixes or modifications provided by Storyup.
“Personal data” shall mean any data that constitutes personally identifiable information, including a customer’s name, address, email, telephone number, and login credentials.
“Services” shall mean the provision of and making available for access by customer the Healium software via the internet through customer’s login credentials, along with the features, functionality and services available through the Healium software.
“Storyup materials” shall mean the Healium software, any manuals, instructions, documentation, data or other information provided in connection with the Healium software and services, all content and data made available through the Healium software and services, all technologies, developments, materials and inventions associated with the Healium software and services, and all plans, reports, metrics, data and information provided or used by Storyup in connection with the Healium software and services.
2. Software and services
1. License to Healium software. Through the customer’s use of the Healium software, customer is acquiring, and Storyup grants to customer, a personal, limited, non-exclusive, non-sublicensable, non-transferable license to use the Healium software on the hardware on which it is installed or otherwise accessed from for customer’s personal, non-commercial purposes only and in accordance with the terms and conditions of this agreement.
2. Authorization to use services. Subject to and conditioned on customer’s compliance and performance in accordance with the terms and conditions of this agreement, Storyup hereby authorizes customer to access and use during the term, the services Storyup supplies or makes available to customer, solely for personal, non-commercial purposes through the use of customer’s individual login credentials, including customer’s user name and password. This authorization is non-exclusive and non-transferable. Customer will be responsible for any loss, theft or misuse of its login credentials and/or user name or password.
3. Access to services. Subject to and conditioned on customer’s compliance with the terms and conditions of this agreement, during the term, storyup will provide customer with the services in accordance with the terms and conditions hereof, including hosting, managing, operating and maintaining the Healium software associated with the services for remote electronic access and use by customer 24 hours a day, 7 days a week, except for during periods of: (a) scheduled system back-up or other on-going maintenance as required and scheduled in advance, (b) unscheduled maintenance or repairs due to unexpected unavailability or disruption to the services, (c) any disruption due to force majeure or to which is beyond Storyup’s reasonable control, including excessive internet traffic, internet outages, unavailability of hosting services and failure of internet service providers, (d) customer’s misuse of the services, or use of the services other than in compliance with the express terms and conditions of this agreement, or (e) any suspension or termination of customer’s access to or use of the services as permitted by this agreement.
4. Use restrictions. Customer’s use, access and license to the Healium software and the services is limited to the customer individually, and the customer shall be prohibited from authorizing any third party or person from using and/or accessing the Healium software and the services through customer’s login credentials. In addition, customer shall not, nor shall customer permit any other person to, do any of the following: (a) use the storyup materials and services for any purpose, or in any manner not specifically authorized by this agreement, (b) copy, distribute or otherwise transfer the Storyup materials to any third party, (c) rent, lease, lend, sell, sublicense, assign, distribute, publish, or otherwise make available any of the Storyup materials or services to any person, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud or other technology or service, (d) modify, adapt, alter, translate, or create derivative works of the storyup materials, (e) decompile, disassemble, reverse engineer or otherwise derive source code, or attempt to derive source code, from the Storyup materials, (f) refer to or otherwise use the Storyup materials as part of any effort to develop a program to compete with Storyup or any other purpose that is to Storyup’s detriment or commercial disadvantage, (g) remove, delete, alter or obscure any trademarks, documentation, warranties or disclaimers, or any copyright, trademark, patent or other intellectual property or proprietary rights notices from the Storyup materials, (h) bypass or breach any security device or protection used by any of the Storyup materials or access or use the Storyup materials other than through the use of customer’s own then valid access credentials, (i) input, upload, transmit or otherwise provide to or through Storyup’s computer or network infrastructure or the Healium software, any information or materials that are unlawful or injurious, or contain, transmit or activate any harmful code, or (j) damage, destroy, disrupt, disable, impair, interfere with or otherwise impede or harm in any manner the services, the Healium software, Storyup’s computer or network infrastructure or storyup’s provision of services to any third party, in whole or in part.
5. Changes to Storyup materials and services.
Storyup reserves the right, in its sole discretion, to make any changes to the Storyup materials and services (including the Healium software) that Storyup deems necessary or useful to maintain or enhance the quality, delivery, competitive strength, efficiency and performance of the Storyup materials and services, or to comply with applicable laws.
3. Proprietary rights
1. Storyup materials and services. All right title and interest in and to all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world (the “intellectual property rights”) in the Healium software, services and Storyup materials, including any third party materials (but excluding for the avoidance of doubt, personal data) belong solely and exclusively to Storyup or its suppliers or licensors. Customer acknowledges that the Healium software (including all methods, concepts or techniques utilized therein) and related documentation are commercially valuable to Storyup and are treated as confidential, proprietary and containing of trade secrets. All rights not expressly granted to customer under this agreement are reserved by Storyup.
2. Hardware. All right title and interest in and to the hardware and any associated intellectual property rights therein belong to the applicable third-party providers of such hardware. Storyup does not manufacture, own or control any hardware that may be used in connection with the Healium software and services, and customer accepts all risks responsibility with respect to its use of such hardware. Customer shall use the hardware in accordance with the terms and conditions provided by the third-party providers of such hardware.
4. Collected and generated data
The parties acknowledge that the customer will provide and generate data in connection with its use of the Healium software and services. This data may include different types of biometric information relating to customer during customer’s use of the Healium software and services, including but not limited brainwave activity, heart rate, blood pressure, and similar metrics. This data may also include live stream and recorded audio, video and virtual reality content created during customer’s use of the Healium software and services in the event customer elects to live stream or record customer’s use of the Healium software and services through the Healium software’s functionality. In order to access and utilize the Healium software and services, customer hereby agrees to the following:
1. Grant of license. Customer hereby grants to Storyup (to the extent of customer’s rights therein, if any) a non-exclusive, royalty-free, worldwide, irrevocable, perpetual right and license to collect, host, use, modify, adapt, copy, store, transmit, adapt, de-identify, reproduce, process, aggregate (including aggregation with other data), analyze, disclose, distribute and sublicense the data as permitted by applicable law, both during and after the term of this agreement.
2. Storyup use of data. Pursuant to the license granted herein, Storyup will use data provided and generated by customer (along with the data of other users of the Healium software and services): (a) to provide the Healium software and the services to customer and other users, including to enable customer to monitor and track customer’s data and various metrics and analytics associated with customer’s use of the Healium software and services, (b) to improve the Healium software and services and to develop new products and services, (c) to perform data analytics for Storyup’s own business purposes, (d) to create data sets, products and services for third parties using anonymized and aggregated data, and (e) for other legitimate business purposes.
3. Disclosure to third parties. Storyup may disclose data, along with data sets, products and services incorporating data, to third parties for any legitimate business purposes. For the avoidance of doubt, and except as set forth herein, any data that is distributed, sublicensed or otherwise disclosed by Storyup to a third party shall not include any personal data or personally identifiable information (“PII”) and shall be de-identified in such a manner that the information contained therein is anonymous under the definition of applicable laws and regulations and cannot be rendered individually identifiable without the use of extraordinary means.
4. [Institutional research. Notwithstanding the foregoing, any data that is distributed, sublicensed or otherwise disclosed by Storyup to a third party in connection with potential research to be conducted under institutional review board (“IRB”) oversight may include personal data or PII, as permitted by applicable law, to the extent necessary for notifying potential participants, review and activities preparatory to research, and conducting research approved by an irb.]
5. Term and termination
1. Term. The term of this agreement will commence on the date on which the customer accepts the agreement (or a document incorporating this agreement by reference) by signature, click-through, or use. Unless terminated earlier as set forth below, the agreement will continue in effect until the end of the applicable license or subscription term stated in the applicable agreement signed or otherwise executed by the customer (such period, the “term”).
2. Termination. In addition to any other express termination right set forth elsewhere in this agreement, Storyup may terminate this agreement immediately, effective on written notice to the customer, if the customer materially breaches any provision of this agreement, including without limitation, any of its obligations under section 2.4 (use restrictions).
3. Survival. The terms and conditions in this agreement, which by their nature and context, are intended to survive any termination, shall so survive such termination. Without limiting the foregoing, surviving provisions shall include those set forth in sections 1, 2.4, 3, 4, 6.3, 7, 8, 9, 10 and 11 of this agreement.
1. Restrictions on disclosure. Customer agrees that during the term, any renewal term, and at all times thereafter, it will not disclose Storyup’s confidential information (defined below) to any person or entity or third party. Customer will not use any of Storyup’s confidential information for purposes other than in direct connection with customer’s use of the Healium software and services and in the performance of customer’s obligations under this agreement. Customer will use at least the same degree of care in safeguarding the Storyup’s confidential information as it uses in safeguarding customer’s own confidential information, but in no event will customer use less than reasonable diligence and care. To the extent customer is required by subpoena or otherwise by law to disclose Storyup’s confidential information, customer shall provide Storyup with prompt written notice of such requirement and shall cooperate with Storyup in taking such steps as may be reasonably indicated to maintain the confidentiality of the information subject to disclosure. Upon termination of this agreement, customer will cease using the Storyup’s confidential information for any purpose and, unless otherwise instructed by Storyup will destroy all documents or other materials in customer’s possession that contain the Storyup’s confidential information in whatever format, whether written or electronic, including any and all copies or reproductions of the Storyup’s confidential information.
2. Confidential information defined. As used herein, the term “confidential information” shall mean all information and documentation relating directly or indirectly to the Healium software and services or Storyup’s business, business practices, trade secrets or affairs, including but not limited to, information that (a) is marked “confidential”, “restricted,” or “proprietary information” or other similar marking, and (b) pertains to the internal business, financial and marketing information of Storyup, (c) pertains to the contractual terms, fees and pricing relating to this agreement, (d) pertains to the Healium software and services or any software, firmware, and all technology, training content, and know-how associated with the Healium software, the services or Storyup materials provided to customer hereunder, (e) is known by the parties to be considered confidential or proprietary, or (f) should be known or understood to be confidential or proprietary by an individual exercising reasonable commercial judgment in the circumstances. Confidential information does not include information to the extent that such information: (w) is or becomes generally known to the public by any means other than a breach of the obligations of customer hereunder, (x) was previously known to customer as evidenced by its written records, (y) is rightly received by customer from a third party who is not under an obligation of confidentiality, or (z) is independently developed by customer without reference to or use of Storyup’s confidential information.
7. Representations and warranties
1. Mutual representations and warranties. The parties each represent, warrant and covenant to the other that: (a) such party has the full power and authority to execute, deliver and perform this agreement and to carry out the transactions contemplated hereby, and (b) the execution, delivery and performance by such party of this agreement does not and will not materially conflict with any legal, contractual, or organizational requirement of such party.
2. Customer representations and warranties. Customer further represents and warrants that customer: (a) has all necessary rights and licenses to the hardware not provided by Storyup that customer uses in connection with the Healium software and services, (b) will not authorize any third party or person to use and/or access the Healium software and the services through customer’s login credentials, and (c) will comply with all other obligations and restrictions with respect to the use of the Healium software and services as set forth herein.
3. High-risk activities. The Healium software and services are not fault-tolerant and are not designed or intended for use in hazardous environments requiring fail-safe performance, such as any application in which the failure of the Healium software or services could lead directly to death, personal injury, loss of chance of recovery or severe physical or property damage (collectively, “high-risk activities”). Storyup expressly disclaims any express or implied warranty of fitness for high-risk activities. The Healium software and services are not designed or intended to be used independently to provide medical analysis or advice or in lieu of the advice of a medical professional.
4. Disclaimer. Except for the warranties expressly set forth in this agreement and to the greatest extent allowed by law, Storyup hereby expressly disclaims all warranties and conditions, either express or implied, with respect to the Healium software, services and Storyup materials provided hereunder including but not limited to any implied warranties of merchantability, fitness for any particular use or purpose, non-infringement or misappropriation of third party rights or any other matter. Unless otherwise expressly set forth herein, Storyup does not warrant that the Healium software and services will perform error-free or without interruptions, nor does Storyup warrant that the Healium software and services will meet all customer requirements or that all errors or failures will be corrected. The warranties contained herein set forth customer’s sole and exclusive remedy in the event of a defect in workmanship or materials and will not be deemed to have failed its essential purpose so long as Storyup is willing and able to carry out the terms of this exclusive warranty.
5. [Medical disclaimer. The Healium software and services provided by Storyup, including any data, information or content provided by Storyup in connection with the Healium software and services, are not intended in any way to be medical treatment for any disease or condition, and are not intended in any way to independently provide medical advice or in lieu of the advice of a medical professional.]
1. By Storyup. Storyup will indemnify, defend at its own expense, and hold harmless customer against any loss, damage or expense (including reasonable attorneys’ fees) incurred by customer as a result of claims, actions, or proceedings brought by any third party alleging that the Healium software or services infringes the intellectual property rights of such third party, provided, however, that (1) customer must give Storyup prompt written notice of such claim, demand, suit or action, and (2) Storyup will have control of the defense of such claim, suit, demand, or action and the settlement or compromise thereof. Notwithstanding the foregoing, Storyup will have no liability hereunder or any obligation to indemnify, defend or hold customer harmless for any infringement action or claim that is based upon or arising from (x) customer’s use of the Healium software or services or any component thereof beyond the scope of permitted use set forth herein, (y) customer’s unauthorized modification of the Healium software or services or any component thereof, (z) customer’s combination of the Healium software or services or any component thereof with hardware or other products, equipment, software, or data not supplied by Storyup. If customers’ right to use the Healium software and services is enjoined, Storyup will (i) procure for customer the right to use the Healium software and services, (ii) replace the Healium software and services with a functionally equivalent product, or (iii) modify the Healium software and services such that customer has the right to use the Healium software and services. If (i), (ii) or (iii) are not commercially reasonable in both parties’ discretion, Storyup will (without prejudice to any other rights and remedies of customer) refund all fees paid by customer to Storyup, as applicable, during the previous 12 months for the Healium software and services.
2. By customer. Customer will indemnify, defend and hold harmless storyup against any loss, damage or expense (including reasonable attorneys’ fees) incurred by storyup as a result of claims, actions, or proceedings brought by any third party arising from (a) the use of the healium software and services or any component thereof beyond the scope of permitted use set forth herein or for purposes for which it is not intended, (b) a breach or alleged breach of any representation or warranty of customer under this agreement, or (c) injury to person or property arising from acts of negligence, bad faith, willful misconduct or reckless disregard by customer relating to this agreement, provided, however, that (1) storyup must give customer prompt written notice of such claim, demand, suit or action, and (2) customer will have control of the defense of such claim, suit, demand, or action and the settlement or compromise thereof, unless the claim involves or relates to an intellectual property right of storyup, in which case storyup may elect to have sole control over the defense or settlement of such claim.
9. Limitation of liability
Neither party will be liable for any special, indirect, incidental, exemplary, punitive or consequential damages, including lost profits, lost revenue, lost data, replacement goods, or interruption of use of the Healium software and services, whether in contract, tort, negligence or otherwise, even if such party has been advised of the possibility thereof. Except for (1) any breach of customer’s confidentiality obligations under section 7, or (2) customer’s indemnification obligations under section 9, neither party’s aggregate liability to the other party for any losses, claims, breaches or damages under this agreement will exceed the total amount received by Storyup from customer, as applicable, under the agreement. The limitations on damages in this paragraph will apply under all theories of liability or causes of action, including contract, warranty (including warranty remedies under the warranty paragraph above), tort or strict liability. The above limitations will inure to the benefit of Storyup’s suppliers, agents and subcontractors.
10. Miscellaneous provisions
1. Excusable delays in performance. Neither party shall be liable to the other for any delay in the performance of its obligations hereunder which is unavoidable with reasonable diligence, which occurs without its fault or negligence, and which is caused by an event, act of god, or third party not within its reasonable control; provided, however, that the party so delayed in performance shall promptly notify the other party of the delay and its expected duration.
2. Assignment and subcontracting. Customer may not assign this agreement or any of the rights or obligations hereunder without the prior written consent of Storyup. Storyup may freely assign this agreement or any of the rights or obligations hereunder. Storyup may subcontract work to be performed under this agreement, but will retain responsibility and liability for such work.
3. Disputes and choice of law. This agreement shall be construed in accordance with Missouri law without giving effect to the choice or conflicts of law provisions thereof. The parties agree that any legal proceedings which arise under this agreement shall be brought in the state and federal courts in the state of Missouri.
4. Miscellaneous terms. The section headings contained in this agreement are inserted for reference purposes only and will not affect the meaning or interpretation of this agreement. The invalidity or unenforceability of any provision of this agreement will not affect the validity or enforceability of any other provision of this agreement. This agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior negotiations, discussions or representations, whether written or oral. The failure of either party to assert any of its rights under this agreement, including the right to terminate this agreement in the event of a breach or default by the other party, will not be deemed to constitute a waiver by that party of its right thereafter to enforce each and every provision of this agreement in accordance with their terms. The parties to this agreement are independent contractors and this agreement will not establish any relationship of partnership, joint venture, employment, franchise or agency between toryup and customer. Neither party has the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent, except as otherwise expressly provided herein.
By signing or clicking-through this agreement or otherwise agreeing by use, customer hereby agrees that it has reviewed, understands and agrees to the terms and conditions of this agreement, and further agrees to ensure that each of customer’s employees and other end users do the same.