PLEASE READ CAREFULLY BEFORE DOWNLOADING THE APP FROM THIS WEBSITE.
This end-user licence agreement (“EULA”) is a legal agreement between you, the end-user (“you” or “your”) and Attomarker Limited of Innovation Centre, Rennes Drive, Exeter, EX4 4RN (“us” or “we” or “our”) for the iOS application software known as “APEX” (the “App”) together with the associated user documentation available via the App and at www.attomarker.co.uk (“Documents”).
We licence the use of the App and Documents to you on the basis of this EULA and subject to any rules or policies (“Appstore Rules”) applied by any appstore provider or operator from whose site you downloaded the App. We do not sell the App or Documents to you. We remain the owners of the App and Documents at all times.
Operating system requirements This App requires an iOS device with a minimum of 20Mb of memory and the iOS operating system, version 6.0 or above.
If you do not agree to the terms of this licence, we will not license the App and Documents to you and you must stop the downloading process now.
As a consumer, you have the right to withdraw from your transaction without charge and without any reason before downloading the App and Documents. However, you will lose the right to cancel the transaction once you begin to download the App or Documents. This does not affect your consumer rights for an App or Documents that are defective.
The App is designed for research purposes only in the medical field. It is not designed to, nor is it permitted to be used to, provide or obtain medical advice, medical diagnosis or treatment of a medical condition.
You should print a copy of this EULA for future reference. This EULA is also available online at www.attomarker.co.uk
1.1 The terms of this EULA apply to the App or any of the services accessible through the App (“Services”), including any updates or supplements to the App, unless they come with separate terms, in which case those terms apply. We may change these terms at any time by sending you an SMS with details of the change or notifying you of a change when you next start the App. The new terms may be displayed on-screen and you may be required to read and accept them to continue your use of the App and the Services.
1.2 From time to time updates to the App may be issued through the Appstore. Depending on the update, you may not be able to use the Service until you have downloaded the latest version of the App and accepted any new terms.
1.3 You will be assumed to have obtained permission from the owners of the mobile telephone or handheld devices that are controlled, but not owned, by you and described in condition 3.2.1 (“Devices”) and to download a copy of the App onto the Devices. You (or the owners of the Device) may be charged by service providers for internet access on the Devices. You accept responsibility in accordance with the terms of this EULA for the use of the App or any Service on or in relation to any Device, whether or not it is owned by you.
2.1 All data that is received, collected, processed or generated when using the App shall be stored on your Device or any computer that you choose to transfer the data to. You acknowledge and agree that we do not receive, collect, store or process any personal data about you nor do we receive, collect or process any personal data or sensitive personal data (including, without limitation, medical data) that is collected or recorded when using the App.
2.2 You acknowledge and agree that you are responsible for complying with any professional rules of medical ethics, conduct and any data protection and privacy laws applicable in the jurisdiction in which you use the App, (including, if applicable to your use of the App, the Data Protection Act 1998 in England and Wales.)
2.3 The App or any Service may contain links to other independent third-party websites (“Third-party Sites”). Third-party Sites are not under our control, and we are not responsible for and do not endorse their content or their privacy policies (if any). You will need to make your own independent judgement regarding your interaction with any Third-party Sites, including the purchase and use of any products or services accessible through them.
2.4 Any words following the terms “including”, “include”, “in particular” or “for example” or any similar phrase shall be construed as illustrative and shall not limit the generality of the related general words.
3 GRANT AND SCOPE OF LICENCE
3.1 In consideration of you agreeing to abide by the terms of this EULA, we grant you a non-transferable, non-exclusive licence to use the App on the Devices, subject to the terms of this EULA and the Appstore Rules (including the payment terms in the Appstore Rules). We reserve all other rights.
3.2 You may:
3.2.1 download a copy of the App onto your Devices and to view, use and display the App on the Device for your personal research purposes only; and
3.2.2 use the Documents for your personal research purposes only.
4 LICENCE RESTRICTIONS
4.1 Except as expressly set out in this EULA or as permitted by any local law, you agree:
4.1.1 not to copy the App or Documents except where such copying is incidental to normal use of the App, or where it is necessary for the purpose of back-up or operational security;
4.1.2 not to rent, lease, sub-license, loan, translate, merge, adapt, vary or modify the App or Documents;
4.1.3 not to make alterations to, or modifications of, the whole or any part of the App, or permit the App or any part of it to be combined with, or become incorporated in, any other programs;
4.1.4 not to disassemble, decompile, reverse-engineer or create derivative works based on the whole or any part of the App or attempt to do any such thing except to the extent that (by virtue of section 296A of the Copyright, Designs and Patents Act 1988) such actions cannot be prohibited because they are essential for the purpose of achieving inter-operability of the App with another software program, and provided that the information obtained by you during such activities:
184.108.40.206 is used only for the purpose of achieving inter-operability of the App with another software program;
220.127.116.11 is not unnecessarily disclosed or communicated without our prior written consent to any third party; and
18.104.22.168 is not used to create any software that is substantially similar to the App;
4.1.5 to keep all copies of the App secure and to maintain accurate and up-to-date records of the number and locations of all copies of the App;
4.1.6 to include our copyright notice on all entire and partial copies you make of the App on any medium;
4.1.7 not to provide or otherwise make available the App in whole or in part (including object and source code), in any form to any person without prior written consent from us; and
4.1.8 to comply with all technology control or export laws and regulations that apply to the technology used or supported by the App or any Service.
together “Licence Restrictions”.
5 ACCEPTABLE USE RESTRICTIONS
5.1 You must:
5.1.1 not use the App or any Service in any unlawful manner, for any unlawful purpose, or in any manner inconsistent with this EULA, or act fraudulently or maliciously, for example, by hacking into or inserting malicious code, including viruses, or harmful data, into the App, any Service or any operating system;
5.1.2 not infringe our intellectual property rights or those of any third party in relation to your use of the App or any Service, including the submission of any material (to the extent that such use is not licensed by this EULA);
5.1.3 not transmit any material that is defamatory, offensive or otherwise objectionable in relation to your use of the App or any Service;
5.1.4 not use the App or any Service in a way that could damage, disable, overburden, impair or compromise our systems or security or interfere with other users;
5.1.5 only use the App for medical research only; and
5.1.6 not use the App or any Service to provide or obtain medical advice, medical diagnosis or treatment of a medical condition.
together “Acceptable Use Restrictions”
6 EXCLUSION OF APPLE LIABILITY
6.1 You acknowledge and agree that
6.1.1 this EULA is concluded between you and us, and not Apple Inc. and its subsidiaries (“Apple”);
6.1.2 we, not Apple, are solely responsible for the App and content thereof;
6.1.3 Apple has no responsibility whatsoever to furnish any maintenance and support services with respect to the App;
6.1.4 in the event of any failure of the App to conform to any applicable warranty, you may notify Apple and Apple will refund the purchase price you paid for the App;
6.1.5 to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App;
6.1.6 Apple is not responsible for any claims that you have arising out of your use of the App;
6.1.7 Apple will have no responsibility whatsoever for the investigation, defence, settlement or discharge of any third-party claim that the App infringes that third party’s intellectual property rights; and
6.1.8 Apple is a third party beneficiary of this EULA and, upon your acceptance of this EULA, Apple will have the right (and will be deemed to have accepted the right) as third party beneficiary to enforce this EULA against you.
7 INTELLECTUAL PROPERTY RIGHTS
7.1 You acknowledge and agree that all intellectual property rights in the App, the Documents anywhere in the world belong to us or our licensors, that rights in the App are licensed (not sold) to you, and that you have no rights in, or to, the App, the Documents other than the right to use each of them in accordance with the terms of this EULA.
7.2 Without prejudice to the generality of the foregoing, you acknowledge and agree that:
7.2.1 the copyright in the App software and all content on this App, including but not limited to design, text, technical drawings, configurations, graphics, other files, and their selection and arrangement belong to us or our licensors;
7.2.2 all trade marks on the App are our unregistered trade marks or registered trade marks or those of our affiliates or licensors and they may not be copied, imitated, or used, in whole or in part, without our prior written consent; and
7.2.3 some of the processes powering or provided by the App are covered by one or more patents and are subject to other trade secret and proprietary rights. No transfer or grant of rights under any patents is made or is to be implied by any provision of this EULA.
7.3 You acknowledge and agree that you have no right to have access to the App in source-code form.
8.1 We warrant that:
8.1.1 the App will, when properly used and on an operating system for which it was designed, perform substantially in accordance with the functions described in the Documents; and
8.1.2 that the Documents correctly describe the operation of the App in all material respects,
8.2 The warranty does not apply:
8.2.1 if the defect or fault in the App or any Service results from you having amended the App;
8.2.2 if the defect or fault in the App results from you having used the App in contravention of the terms of this EULA;
8.2.3 if you breach any of the Licence Restrictions or the Acceptable Use Restrictions.
8.3 This warranty is in addition to your legal rights in relation to software that is faulty or not as described. Advice about your legal rights is available from your local Citizens’ Advice Bureau or Trading Standards office.
9 LIMITATION OF LIABILITY
9.1 You acknowledge that the App has not been developed to meet your individual requirements, and that it is therefore your responsibility to ensure that the facilities and functions of the App as described in the Documents meet your requirements.
9.2 We only supply the App and Documents for private research use. You agree not to use the App and Documents for any commercial, business or resale purposes or to provide or obtain medical advice, medical diagnosis or treatment of a medical condition and we have no liability to you for any third party claim (including negligence), loss of profit, loss of business, business interruption, or loss of business opportunity arising from any such use.
9.3 We are only responsible for loss or damage you suffer that is a foreseeable result of our breach of this EULA or our negligence up to the limit specified in condition 9.4, but we are not responsible for any unforeseeable loss or damage. Loss or damage is foreseeable if it is an obvious consequence of our breach or if they were contemplated by you and us at the time we granted you the EULA.
9.4 Our maximum aggregate liability under or in connection with this EULA (including your use of any Services) whether in contract, tort (including negligence) or otherwise, shall in all circumstances be limited to £50 This does not apply to the types of loss set out in condition 9.5.
9.5 Nothing in this EULA shall limit or exclude our liability for:
9.5.1 death or personal injury resulting from our negligence;
9.5.2 fraud or fraudulent misrepresentation; and
9.5.3 any other liability that cannot be excluded or limited by English law.
10.1 We may terminate this EULA immediately by written notice to you:
10.1.1 if you commit a material or persistent breach of this EULA which you fail to remedy (if remediable) within 14 days after the service of written notice requiring you to do so; and
10.1.2 if you breach any of the Licence Restrictions or the Acceptable Use Restrictions.
10.2 On termination for any reason:
10.2.1 all rights granted to you under this EULA shall cease;
10.2.2 you must immediately cease all activities authorised by this EULA, including your use of any Services; and
10.2.3 you must immediately delete or remove the App from all Devices, and immediately destroy all copies of the App and Documents then in your possession, custody or control and certify to us that you have done so.
You shall indemnify (reimburse) us for all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs) arising from your use of the App: (a) in a way that infringes data protection and privacy laws and/or rules of medical ethics; and (b) to provide or obtain medical advice, medical diagnosis or treatment of a medical condition, save to the extent these are caused by our negligence, wilful default or breach of these terms.
12 COMMUNICATION BETWEEN US
12.1 If you wish to contact us in writing, or if any condition in this EULA requires you to give us notice in writing, you can send this to us by e-mail or by prepaid post to Attomarker Limited at Attomarker Limited, Innovation Centre, Rennes Drive, Exeter, EX4 4RN and firstname.lastname@example.org. We will confirm receipt of this by contacting you in writing, normally by e-mail.
12.2 If we have to contact you or give you notice in writing, we will do so by e-mail or by pre-paid post to the address you provide to us in your request for the App.
13 EVENTS OUTSIDE OUR CONTROL
13.1 We will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under this EULA that is caused by any act or event beyond our reasonable control including failure of public or private telecommunications networks (Event Outside Our Control).
13.2 If an Event Outside Our Control takes place that affects the performance of our obligations under this EULA:
13.2.1 our obligations under this EULA will be suspended and the time for performance of our obligations will be extended for the duration of the Event Outside Our Control; and
13.2.2 we will use our reasonable endeavours to find a solution by which our obligations under this EULA may be performed despite the Event Outside Our Control.
14 OTHER IMPORTANT TERMS
14.1 We may transfer our rights and obligations under this EULA to another organisation, but this will not affect your rights or our obligations under this EULA.
14.2 You may only transfer your rights or obligations under this EULA to another person if we agree in writing.
14.3 If we fail to insist that you perform any of your obligations under this EULA, or if we do not enforce our rights against you, or if we delay in doing so, that will not mean that we have waived our rights against you and will not mean that you do not have to comply with those obligations. If we do waive a default by you, we will only do so in writing, and that will not mean that we will automatically waive any later default by you.
14.4 Each of the conditions of this EULA operates separately. If any court or competent authority decides that any of them are unlawful or unenforceable, the remaining conditions will remain in full force and effect.
14.5 Please note that this EULA, its subject matter and its formation, are governed by English law. You and we both agree that the courts of England and Wales will have non-exclusive jurisdiction.
In witness whereof this document has been executed and delivered on the date first stated above.