End-User License Agreement for ExerciseRx

This End-User License Agreement (the “EULA” or “Agreement”) together with our privacy policy (“Privacy Policy”) which can be found at https://thesportsinstitute.com/exerciserx-privacy-policy/  governs Your download and use of mobile application software and any enhancement or modification thereof (“Software”) provided by the University of Washington (the “University”) that is designed to operate on Your mobile and/or wearable device running the iOS operating system (“Apple Device”). 

Your download and/or use of the Software constitutes Your acceptance of the terms of this Agreement, which may be amended from time to time by University. The University may update the terms of this Agreement from time to time without notice to You. The most recent version of this Agreement, available below, shall control and supersede any and all other versions of this Agreement. University reserves the right to change or modify this Agreement or any other University policies related to use of the Software at any time and at its sole discretion and without notice to You. Continued use of the Software following the posting of these changes or modifications will constitute acceptance of such changes or modifications. You acknowledge that You have no right, claim, or cause of action to prevent the University to make such change, or arising out of Your failure to access and understand the terms of this Agreement. 

Exercise Rx is a Software developed and licensed by the University of Washington for use in research. This application can only be used by people enrolled in an IRB approved study. It is not a substitute for professional medical advice or care. 

2. Acknowledgement. University and You, the end-user of the Software, acknowledge that the Agreement is entered into by and between You and the University and not with any third party. The University is solely responsible for the Software and any content contained therein. You acknowledge that no third party has any obligation whatsoever to furnish any maintenance or services with respect to the Software.  You acknowledge that You have reviewed the Apple Media Services Terms and Conditions (“ToS”), currently located online at: https://www.apple.com/legal/internet-services/itunes/us/terms.html. You represent and warrant that (i) You are not located in a country that is subject to 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 “watch list” of prohibited or restricted parties, including the Specially Designated Nationals list published by the Office of Foreign Assets Control of the U.S. Treasury or the Denied Persons List published by the U.S. Department of Commerce; and (iii) You are at least eighteen (18) years old. 

3. Acceptable Use.

a. You agree that You shall be responsible for using and protecting the Software and your login credentials for your ExerciseRx account.   

b. Without limiting the foregoing, You  may not use the Software in a manner that (a) harasses, abuses, threatens, defames or otherwise infringes or violates the rights of any other party; (b) is unlawful, fraudulent or deceptive; (c) uses technology or other means to access University’s proprietary information that is not authorized by University; (d) uses or launches any automated system to access University’s website or computer systems; (e) attempts to introduce viruses or any other malicious computer code that interrupts, destroys or limits the functionality of any computer software, hardware or telecommunications equipment; (f) attempts to gain unauthorized access to University’s computer network or user accounts; (g) constitutes or encourages conduct that would constitute a criminal offense, or would give rise to civil liability on the part of You, University, or a third party; (h) violates this Agreement; or (i) in any way which the University determines in its reasonable discretion could be harmful to University or third parties.

c. You understand that this Software is only available for use through Institutional Review Board approved research within the University or entities working with University’s The Sports Institute, and should not be used outside of this purpose. 

4. Incorporation of Apple Media Services Terms and Conditions. This Agreement incorporates by reference the ToS.  For purposes of this Agreement, the “Software” is considered the “Content” and/or “App” as defined and/or used in the ToS, and “University” is considered “App Provider” as defined in the ToS. If any terms of this Agreement conflict with the terms of the ToS, the terms of this Agreement shall control. 

5. Scope of License and Allowable Uses of the Software. The license granted to You for the Software is limited to a revocable, non-transferable, non-exclusive license to use the Software on any Apple Device that You own or control and as permitted by the Usage Rules set forth in the ToS.  Any use of the Software in any manner not allowed under this Agreement or the ToS including, without limitation, resale, transfer, modification or distribution of the Software or copying or distribution of text, pictures, music, barcodes, video, data, hyperlinks, displays and other content provided by the Software is prohibited. This Agreement does not entitle You to receive and does not obligate University to provide hard-copy documentation, maintenance, support, telephone assistance, or enhancements or updates to the Software.  University reserves the right, in its sole discretion, to terminate this Agreement and revoke Your license to use the Software for any reason, including but not limited to University’s reasonable conclusion that You have violated this Agreement. 

6. Updates and Upgrades. The University may from time to time provide updates or upgrades to the Software (each an “Update”), but University is not under any obligation to do so. Such Updates may include automatic updating or upgrading without any additional notice to You. You consent to any such automatic updating or upgrading of the Software, and Your continued use of Software shall constitute acceptance of Update(s). All references herein to the Software shall include Updates. This Agreement (as updated as provided in this Agreement) shall govern any Updates that replace or supplement the original Software.

7. Limitation of Liability. TO THE FULLEST EXTENT ALLOWABLE UNDER APPLICABLE LAW, 

a. IN NO EVENT SHALL UNIVERSITY BE LIABLE TO YOU WITH RESPECT TO USE OF THE SOFTWARE, INCLUDING, WITHOUT LIMITATION, ANY USER-GENERATED CONTENT;

b. IN NO EVENT SHALL UNIVERSITY BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES ARISING OUT OF OR IN ANY WAY RELATING TO THIS AGREEMENT OR THE USE OF OR INABILITY TO USE THE SOFTWARE, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOSS OR CORRUPTION OF DATA OR FAILURE OR MALFUNCTION OF YOUR APPLE DEVICE OR FITBIT DEVICE YOUR SOLE REMEDY UNDER THIS AGREEMENT IS TO CEASE USE OF THE SOFTWARE. 
The foregoing limitations will apply even if the above stated remedy fails of its essential purpose.  In the event of any failure of the Software to conform to a warranty to which You are entitled by law, You may notify University.

8. DISCLAIMER OF WARRANTY

The Application has been developed as part of research conducted at University. The Application, including any services performed or provided by the Application, is experimental in nature and to the maximum extent permitted by applicable law, is made available “AS IS,” and “AS AVAILABLE” with all faults and without any kind of warranty or obligation by UW to provide accompanying services or support.   THE SOFTWARE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND INCLUDING, WITHOUT LIMITATION, REPRESENTATIONS, WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND THOSE ARISING BY STATUTE OR FROM A COURSE OF DEALING OR USAGE OF TRADE. 
UNIVERSITY DOES NOT WARRANT THAT THE SOFTWARE WILL OPERATE ERROR-FREE, THAT ALL CONTENT ON THE SOFTWARE WILL BE ACCURATE, THAT THE SOFTWARE IS FREE OF VIRUSES OR OTHER HARMFUL CODE OR THAT UNIVERSITY WILL CORRECT ANY ERRORS IN THE SOFTWARE. YOU AGREE THAT UNIVERSITY WILL NOT BE HELD RESPONSIBLE FOR ANY CONSEQUENCES TO YOU OR ANY THIRD PARTY THAT MAY RESULT FROM TECHNICAL PROBLEMS INCLUDING WITHOUT LIMITATION IN CONNECTION WITH THE INTERNET (SUCH AS SLOW CONNECTIONS, TRAFFIC CONGESTION OR OVERLOAD OF OUR OR OTHER SERVERS) OR ANY TELECOMMUNICATIONS OR INTERNET PROVIDERS. 
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, UNIVERSITY WILL HAVE NO WARRANTY OBLIGATIONS WHATSOEVER WITH RESPECT TO THE SOFTWARE, AND ANY OTHER CLAIMS LOSSES, LIABILITIES, DAMAGES, COSTS OR EXPENSES ATTRIBUTABLE TO ANY FAILURE TO CONFORM TO SUCH WARRANTY WILL BE YOUR SOLE RESPONSIBILITY. 

9. Privacy Policy. The UW is committed to respecting individuals’ privacy.  By choosing to use and continue to use the Application, you agree to the University’s collection and use of personal information and non-personal information as described in the Application’s Privacy Policy available at:  https://thesportsinstitute.com/exerciserx-privacy-policy/.Your use of this Application indicates that you have read and agree to this Policy, which is updated from time to time.

10. Indemnification. You agree to defend, indemnify, and hold harmless University and its trustees, regents, agents, employees, contractors, officers, students, and directors from any and all claims, suits, damages, costs, fines, penalties, liabilities, and expenses (including attorney’s fees) arising from or in any way connected with Your use or misuse of the Software, violation of this Agreement, or violation of any rights of a third party.  University reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by You, in which event You will cooperate in asserting any available defenses. 

11. Release. You hereby release University and its regents, employees, and agents forever from any suits, actions, claims, liabilities, demands, damages, losses, or expenses (including reasonable attorneys’ and investigative expenses) relating to or arising out of the manufacture, use or other disposition of Application including but not limited to accuracy or inaccuracy of language translations, which are not guaranteed by UW or its agents. 

12. Intellectual Property Rights. 

a. Intellectual Property Rights in Software. You acknowledge and agree that as between You and University, University holds all intellectual property rights in the Software including, but not limited to, copyright, trademark, and patent rights. You agree that nothing in this Agreement or elsewhere entitles You to any ownership or license to any intellectual property or intellectual property rights in Software beyond the license to use Software expressly granted to You by Section 4 of this Agreement. 
The Software may use intellectual property in connection with the services it provides and such intellectual property remains at all times the property of its respective owner. You have no right or license with respect to any intellectual property owned by University or any third party that is visible on or provided to You through the Software 

b. Infringement by Software. You and University acknowledge that, in the event of any third party claim that the Software or Your use of the Software infringes any third party’s intellectual property rights, University will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim. The University may, in its sole discretion, revoke Your right to use Software under Section 4 of this Agreement if the University determines that the Software or Your use of the Software may infringe on the intellectual property rights of any third-party. You agree to cease using Software upon notice from University of such revocation. The University may, but shall not be obligated to, provide You with a non-infringing version of the Software. 
IN THE EVENT THE SOFTWARE IS FOUND TO INFRINGE ANY INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY TO THE FULLEST EXTENT ALLOWABLE UNDER APPLICABLE LAW, YOUR SOLE REMEDY SHALL BE EITHER TO CEASE USING THE SOFTWARE OR TO USE A NON-INFRINGING VERSION OF THE SOFTWARE SHOULD UNIVERSITY CHOOSE TO PROVIDE YOU WITH SUCH A NON-INFRINGING VERSION. 

13. Notices. Any notice or other communication required or permitted to be given hereunder may be given by regular mail, postage prepaid, courier, facsimile or email to the parties at their respective address as follows: 

For University 

• • a. If it relates to this Agreement:  [email protected] 
  • b. If it relates to a research project or the Application: [email protected] 

For You:  

• • a. For updates to the Software, its terms, or this Agreement: delivered through the Software as updates  
  • b. For individual notices: email address or mailing address of record within the Software.

14. Public Disclosure. You understand and acknowledge that University is a state agency, and as such may disclose or share information in recognition of applicable state, federal, or international laws. This includes, but is  not limited to the Washington Public Records Act, contained at Chapter 42.56 RCW (“PRA”), and that if the University receives a valid public records request under the PRA, it may be required to disclose some Personal Information provided by You to University as part of Your use of Software. Per the PRA, patient information is protected under IRB approved research.

15. “Opt-In” For Push Messaging. The Software may send You “push messages” or “push notifications” (collectively “Push Communications”) if Your Apple Device supports Push Communications. By installing the Software, You agree to accept Push Communications and “opt-in” to receive them. Should You wish to cease receiving Push Communications, You may turn off Push Communications for the Software by changing the settings on Your Apple Device.

16. Governing Law. The laws of the State of Washington, excluding its conflicts of law rules, govern this Agreement and Your use of the Software.  You agree that any action arising under this Agreement or use of the Software shall be commenced and maintained in the Courts of the State of Washington located in King County or Federal District Court for the Western District of Washington, which shall have exclusive subject matter jurisdiction with respect to the dispute.  You submit to the jurisdiction of such courts over You personally and in connection with such litigation, and You waive any objection to venue in such courts and any claim that such forum is an inconvenient forum. 

17. Term and Termination.

This Agreement is effective until terminated by University or You. The University reserves the right, at any time, to: (i) discontinue or modify the Software or any aspect of the Software; and/or (ii) terminate this Agreement and Your use of the Software with or without cause, and shall not be liable to You or any third party for any of the foregoing. If You object to any term or condition of this Agreement or any subsequent modifications thereto, or become dissatisfied with the Software in any way, Your only recourse is to immediately discontinue use of the Software. 

18. Upon termination of this Agreement, You shall cease all use of the Software. This Section ‎18 and Sections ‎7 (Limitation of Liability), ‎8 (Disclaimer of Warranty), ‎9 (Personal Information), ‎10 (Indemnification), ‎11 (Releases) 12 (Intellectual Property Rights), ‎14 (Public Disclosure) and ‎17 (Governing Law) shall survive termination of this Agreement.