END USER LICENSE AGREEMENT
(Last Reviewed on April 20, 2017)
Please read this End User License Agreement (this “EULA”) carefully before accessing, downloading or using the Services (as defined below). By accessing, downloading or using the Services, you and/or any entity for which you act on behalf of (the person or entity to use the Services, “Subscriber”) agree to be bound by the terms of this EULA. If Subscriber is an entity, the term Subscriber shall include Subscriber, and all of Subscriber’s affiliates, employees, representatives, contractors, and users of the Services. The agreement by an employee, consultant or contractor acting on behalf of an entity to these terms will be deemed to be the agreement of that entity. Any such employee, consultant or contractor hereby represents and warrants that he, she or it has authority, or has been provided authority, to bind the entity to the terms and conditions of this EULA.
TigerText, Inc., a Delaware corporation (“TigerText”) is only willing to grant Subscriber access to the Services upon the condition that Subscriber accepts all of the terms contained herein. If Subscriber and TigerText have both executed a written Subscriber Agreement which governs access to or use of the Services, then the terms of the Subscriber Agreement shall govern and control to the extent there is a direct conflict between the terms of this EULA and the terms of the Subscriber Agreement.
Each of Subscriber and TigerText may be referred to herein as a “party,” and Subscriber and TigerText together may be referred to as the “parties.”
PERMITTED USES AND RESTRICTIONS
“Services” means the software as a service (SaaS) enterprise messaging solution provided by TigerText, including all software and support services necessary to ensure the functionality and availability of the messaging services.
Subject to the terms and conditions of this EULA, during the applicable EULA Term (as defined below), TigerText grants Subscriber a non-exclusive, non-transferable and non-sublicensable right for Subscriber to access, download and use the Services in conjunction with Subscriber’s internal business purposes and in accordance with TigerText’s applicable documentation.
Subscriber is granted permission to access, download and use the Services, provided that Subscriber shall:
- Not use the Services for any illegal or unauthorized purpose or beyond the scope of the Services expected use;
- Not intentionally interfere with the operation of the Services or with any other person’s use of the Services;
- Not intentionally gain unauthorized access to the Services;
- Not use the Services in excess of or beyond the maximum number of registered users and/or devices that Subscriber has agreed to;
- Be solely liable for Subscriber’s, including without limitation all of its employees, affiliates, consultants, service providers, and users conduct, acts and omissions;
- Not alter, modify, adapt, reverse engineer, decompile, disassemble or hack the Services, or create derivative works from the Services;
- Not merge the Services with other software;
- Not resell, sell, lease, lend, redistribute, sublicense, assign or otherwise transfer the Services to any third party;
- Not reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code for the Services;
- Not remove or alter any copyright notices or other notices included in the Services;
- Not alter or modify another website so as to falsely imply that it is associated with TigerText;
- Not use the Services to create or transmit unwanted email, junk email, bulk email, promotions, spam or content that includes any advertising;
- Not intentionally transmit any viruses, bugs, worms, or any other computer code of a destructive nature or that may harm a network, computer, server, hardware, software or telephone equipment using the Services;
- Not violate anyone else’s legal rights (e.g. privacy rights) or any laws (e.g. copyright laws) in Subscriber’s jurisdiction while using the Services;
- Remain solely responsible for any message data sent from Subscriber’s account;
- Use the Services in accordance with all applicable laws;
- Not use any data mining, robots, or similar data gathering and extraction methods in connection with the Services;
- Not impose an unreasonable burden on the Services or network;
- Not breach, or attempt to breach, the security of the Services;
- Not use the Services or export the Services in violation of U.S. export laws and regulations;
- Not solicit any activity, unlawful or otherwise, that infringes TigerText’s rights or the rights of any other party;
- Not enable others to violate any of these terms and conditions; and
- Ensure that all users of the Services are at least 18 years of age or older.
A violation of any of the terms in this EULA by Subscriber may result in the termination of Subscriber’s TigerText account and Subscriber’s ability to access or use the Services.
Subscriber acknowledges that the Services, and their respective structures, organization, documentation, software and source code constitute valuable intellectual property of TigerText and are owned solely by TigerText. TigerText does not grant and Subscriber acknowledges that it shall have no right, license or interest in any of the patents, copyrights, trademarks, or trade secrets owned, used or claimed now or in the future by TigerText. No title to or ownership of the intellectual property contained in the Services, the software, or any part of the Services or the software, as well as all enhancements, updates, modifications, local versions or any derivatives of the Services or the software, or any and all intellectual property and proprietary rights therein, or TigerText’s confidential information is transferred to Subscriber.
“TigerText” and other TigerText graphics, logos, designs, page headers, button icons, scripts and service names are trademarks in the United States and other countries. TigerText’s trademarks and trade dress, as well as third party trademarks, logos and service marks used in conjunction with the Services, may not be used in connection with any product or service in any manner that is likely to cause confusion and may not be copied, imitated, or used, in whole or in part, without the prior written permission of TigerText.
Subscriber represents and warrants that Subscriber fully understands and acknowledges that (i) the Services are intended to deliver non-critical, non-emergency messages between users; (ii) the Services are dependent upon a number of factors outside the control of TigerText, including but not limited to, the operation of third party provided hardware and network services; (iii) the Services are not a substitute for any of Subscriber’s current systems of administering and safeguarding medical treatment and/or medicine; (iv) there may be occasional communication failures or delays in the delivery or receipt of properly sent TigerText messages, and (v) the Services are not expected to perform at the same level of performance and/or reliability one might expect from medical devices used in the delivery of critical medical care environments.
By using the Services, Subscriber grants TigerText permission to send all Subscriber end users messages regarding the Services, its features, service alerts, and network activity. Notwithstanding the foregoing, it is Subscriber’s responsibility to register for updates from, and/or regularly check, TigerText’s webpages at http://status.tigertext.com and http://www.tigertext.com/releasenotes/ for updates with respect to the Services. Subscriber’s continued use of the Services after such updates will constitute its acceptance of the changes.
TERM AND TERMINATION
This EULA shall be effective as of the date Subscriber accepts the terms herein or first accesses, downloads or uses any of the Services (the “Effective Date”) and shall remain in effect for so long as Subscriber uses or accesses any of the Services (the “EULA Term”). Upon termination of the EULA Term, Subscriber shall no longer be permitted to use or access the Services. The terms herein that contemplate obligations after the EULA Term, including but not limited to Indemnification, Disclaimer, Limitation of Liability, Controlling Law and Severability, and Confidentiality, shall survive termination.
ENTERPRISE ACCOUNTS, SUPPORT, IMPLEMENTATION AND PROFESSIONAL SERVICES
All enterprises with more than 25 users at a related domain (or domains) within their TigerText “Org” will be required to enter into a paid Subscription Agreement with TigerText. A paid subscription to TigerText entitles Subscriber to the level of support included in Subscriber’s subscription package, which shall include, at a minimum, standard TigerText customer support via email and standard customer training, including a self onboarding email and limited implementation email support thereafter. Additional support, implementation and professional services may be purchased by Subscriber. All such additional services delivered by TigerText shall be subject to the terms and conditions of this EULA.
Subscriber shall own all of Subscriber’s message data, text, information, screen names, graphics, photos, profiles, audio and video clips, links and other content and materials that Subscriber submits and/or transmits using the Services, (collectively, “Data”), and TigerText acknowledges that it will not acquire any rights in Data. TigerText shall only use Data to fulfill its contractual obligations. Subscriber shall be fully liable and responsible to ensure that Data does not violate any law, regulation or the terms herein. TigerText shall not be responsible for maintaining backups of Data on TigerText systems. All Data will be processed and stored within the geographic limits of the United States of America. Upon the termination of Subscriber’s TigerText account, Data will no longer be stored on TigerText’s systems.
TigerText may (i) issue a press release within sixty (60) days from the Effective Date regarding Subscriber’s selection and/or use of the Services, the content of which Subscriber and TigerText will mutually agree upon prior to publication, and (ii) include Subscriber’s name and/or logo in the list of customers that TigerText provides to its then current or prospective customers.
Subscriber acknowledges that some of its authorized end users may desire to work with other healthcare organizations and that the authorized end users of other healthcare organizations may desire to work with Subscriber (each such authorized end user shall be referred to as a “Multi-Org User”). In order to facilitate use of the Services for Multi-Org Users, and not withstanding anything to the contrary in any other document, Subscriber gives TigerText permission to share the name, mobile phone number, email address, TigerPage number, job title and department of Multi-Org Users (“Contact Details”) with applicable organizations, including Subscriber, and Subscriber shall be required to treat such Contact Details in the same manner it treats other Confidential Information.
“Confidential Information” means any non-public data, information and other materials regarding the products, software, services, prices and discounts, or business of a party (and/or of third parties, to the extent a party is bound to protect the confidentiality of any third ’parties’ information) provided by a party, its employees, contractors or affiliates (“Disclosing Party”) to the other party (“Receiving Party”) where such information is marked or otherwise communicated as being “proprietary” or “confidential” or the like, or where such information should, by its nature, be reasonably considered to be confidential and/or proprietary. The parties agree, without limiting the foregoing, that any performance and security data, product roadmaps, source code, benchmark results, and technical information relating to the Services, including pricing information, shall be deemed the Confidential Information of TigerText. Notwithstanding the foregoing, Confidential Information shall not include information which: (i) is already known to the Receiving Party without the obligations of confidentiality prior to disclosure by the Disclosing Party; (ii) becomes publicly available without fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without restriction as to disclosure, or is approved for release by written authorization of the Disclosing Party; (iv) is independently developed or created by the Receiving Party without use of the Disclosing Party’s Confidential Information; or (v) is required to be disclosed by law or governmental regulation, provided that the Receiving Party provides reasonable notice to Disclosing Party of such required disclosure to the extent allowed by applicable law, and reasonably cooperates with the Disclosing Party in limiting such disclosure. Except as expressly authorized herein, the Receiving Party shall: (i) use the Confidential Information of the Disclosing Party only to perform hereunder or exercise rights granted to it hereunder; and (ii) treat all Confidential Information of the Disclosing Party in the same manner as it treats its own similar proprietary information, but in no case will the degree of care be less than reasonable care.
Subscriber agrees to defend, indemnify, hold harmless and defend TigerText and its officers, shareholders, predecessors, successors in interest, directors, employees, agents, subsidiaries, affiliates, licensors and suppliers from and against any and all claims, charges, complaints, damages, losses, liabilities, costs and expenses (including attorneys’ fees and expert fees) due to, arising out of or relating in any way to Subscriber’s use of, or access to, the Services.
SUBSCRIBER EXPRESSLY ACKNOWLEDGES AND AGREES THAT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, USE OF THE SERVICES IS AT SUBSCRIBER’S SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH SUBSCRIBER. TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND TIGERTEXT HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE SERVICES, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. TIGERTEXT DOES NOT WARRANT AGAINST INTERFERENCE WITH SUBSCRIBER’S ENJOYMENT OF THE SERVICES, THAT THE FUNCTIONS CONTAINED IN OR PERFORMED BY THE SERVICES WILL MEET SUBSCRIBER’S REQUIREMENTS, THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT ANY UPDATE WILL CONTINUE TO BE MADE AVAILABLE, THAT DEFECTS IN THE SERVICES WILL BE CORRECTED, OR THAT THE SERVICES WILL BE COMPATIBLE OR WORK WITH ANY THIRD PARTY SOFTWARE, APPLICATIONS OR THIRD PARTY SERVICES. INSTALLATION OF THE SERVICES MAY AFFECT THE USABILITY OF THIRD PARTY SOFTWARE, APPLICATIONS OR THIRD PARTY SERVICES. SUBSCRIBER FURTHER ACKNOWLEDGES THAT THE SERVICES ARE NOT INTENDED OR SUITABLE FOR USE IN SITUATIONS OR ENVIRONMENTS WHERE THE FAILURE OR TIME DELAY OF, OR ERRORS OR INACCURACIES IN, THE CONTENT, DATA OR INFORMATION PROVIDED BY THE SERVICES COULD LEAD TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL, FINANCIAL OR ENVIRONMENTAL DAMAGE. USING THE SERVICES FOR TRADING SECURITIES IS NOT PERMITED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY TIGERTEXT OR AN APPROVED REPRESENTATIVE SHALL CREATE A WARRANTY. SHOULD THE SERVICES PROVE DEFECTIVE, SUBSCRIBER ASSUMES THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION, IF APPLICABLE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY.
LIMITATION OF LIABILITY
Except where prohibited by law, in no event will TigerText, its officers, shareholders, predecessors, successors in interest, directors, employees, agents, subsidiaries, affiliates, licensors and suppliers be liable for any indirect, special, punitive, incidental, exemplary or consequential damages even if TigerText has been advised of the possibility of such damages or any direct damages that result from: (1) the use of, or inability to use, the Services; (2) the performance of the Services; or (3) any failure in the Services. Subscriber assumes total responsibility for the use of the Services. Subscriber’s only remedy against TigerText for dissatisfaction with the Services is to stop using the Services. If, notwithstanding the terms herein, TigerText is found liable to Subscriber for any damage or loss which arises out of or is in any way connected with Subscriber’s use of the Services, TigerText’s liability shall in no event exceed the amount paid by Subscriber to TigerText during the previous twelve (12) months. In addition to the forgoing limitations of liability, Subscriber agrees that Subscriber will not join any claim against TigerText with the claim of any other person or entity in a lawsuit, arbitration or other proceeding; that no claim Subscriber has against TigerText shall be resolved on a class-wide basis; and that Subscriber will not assert a claim in a representative capacity against TigerText on behalf of anyone else.
In the event any suit or other action is commenced to construe or enforce any provision of this EULA, the prevailing party, in addition to all other amounts such party shall be entitled to receive from the other party, shall recover its reasonable attorneys fees and court costs.
The failure of either party to enforce any rights granted hereunder or to take action against the other party in the event of any breach hereunder shall not be deemed a waiver by that party as to subsequent enforcement of rights or subsequent actions in the event of future breaches.
Any notice required or permitted to be given in accordance with this EULA shall be in writing. Notices to TigerText shall be sent by personal delivery, registered or certified mail (return receipt requested, postage prepaid) or commercial express courier (with written verification of receipt) to: TigerText, Inc., 2110 Broadway, Santa Monica California 90404, U.S.A., Attention: General Counsel. For contractual purposes, Subscriber consents to receive communications from TigerText electronically. Notices sent to Subscriber shall be sent by personal delivery, electronic mail, registered or certified mail (return receipt requested, postage prepaid) or commercial express courier (with written verification of receipt) to the address listed on Subscriber’s account. All notices will be deemed given: (i) when delivered personally; (ii) 24 hours after electronic mail is sent, unless TigerText is notified that the email address is invalid; (iii) five (5) days after having been sent by registered or certified mail (or ten (10) days for international mail); or (iv) one (1) day after deposit with a commercial express courier specifying next day delivery (or two (2) days for international courier packages specifying 2-day delivery). Either party may change its address for receipt of notice by notice to the other party in accordance with this Section.
The parties agree that a material breach of this EULA adversely affecting TigerText’s intellectual property rights in the Services or the Confidential Information may cause irreparable injury to TigerText for which monetary damages would not be an adequate remedy and TigerText shall be entitled to equitable relief (without a requirement to post a bond) in addition to any remedies it may have hereunder or at law.
This EULA may not be assigned or transferred, in whole or in part, without the other party’s prior written consent, provided that TigerText expressly reserves the right to assign this EULA in its entirety to a successor in interest of all or substantially all of its business or assets. Any action or conduct in violation of the foregoing shall be void and without effect. Subject to the foregoing, all rights and obligations of the parties hereunder shall be binding upon and inure to the benefit of and be enforceable by and against the successors and permitted assigns. TigerText may delegate any of its obligations hereunder, provided that it shall remain fully liable and responsible for its delegates’ actions or inactions in violation of this EULA.
CONTROLLING LAW AND SEVERABILITY
This EULA and all matters arising out of or relating to this EULA shall be governed by and construed in accordance with the laws of the State of California, without regard to any conflict of law provisions. Each party irrevocably agrees that any claim brought by it in any way arising out of this EULA must be brought solely and exclusively in state or federal court located in Los Angeles County, California, and each party irrevocably accepts and submits to the sole and exclusive jurisdiction of each of the aforesaid courts in personam, generally and unconditionally, with respect to any action, suit, or proceeding brought by it or against it by the other party.
In the event any one or more of the terms or provisions contained in this EULA shall be declared by a court of competent jurisdiction to be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions of this EULA or any application thereof shall not in any way be affected or impaired, except that, in such an event, this EULA shall be deemed revised in order to provide the party adversely affected by such declaration with the benefit of its expectation, evidenced by the provision(s) affected by such a declaration, to the maximum extent legally permitted.
TigerText shall not be liable to the other for failure to perform if said failure results, directly or indirectly, from government action or inaction, mechanical or electrical breakdown, or natural disaster. In the event TigerText excuses its performance of any of its requirements or otherwise invokes the Force Majeure, the payment provisions in any Subscriber Agreement shall be suspended for an equal period of time. If either party is affected by an interruption or delay contemplated by this section, it will: (a) promptly provide notice to the other party, explaining the full particulars and the expected duration of the such delay and (b) use its best efforts to remedy the interruption or delay if it is reasonably capable of being remedied.
APPLE, INC. APP STORE
The terms and conditions of this EULA (the “Terms”) apply to Subscriber’s use of the Services, including iOS applications available via the Apple, Inc. (“Apple”) App Store (the “Application”), but the following additional terms also apply to the Application:
- Both Subscriber and TigerText acknowledge that the Terms are concluded between Subscriber and TigerText only, and not with Apple, and that Apple is not responsible for the Application or the Services;
- The Application is licensed to Subscriber on a limited, non-exclusive, non-transferrable, non-sublicensable basis, solely to be used in connection with the Services;
- Subscriber will only use the Application in connection with an Apple device that is owned or controlled by Subscriber;
- Subscriber acknowledges and agrees that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Application;
- In the event of any failure of the Application to conform to any applicable warranty, including those implied by law, Subscriber may notify Apple of such failure; upon notification, Apple’s sole warranty obligation to Subscriber will be to refund to Subscriber the purchase price, if any, of the Application paid by Subscriber to Apple;
- Subscriber acknowledges and agrees that TigerText, and not Apple, is responsible for addressing any claims Subscriber or any third party may have in relation to the Application;
- Subscriber acknowledges and agrees that, in the event of any third party claim that the Application or Subscriber’s possession and use of the Application infringes that third party’s intellectual property rights, TigerText, and not Apple, will be responsible for the investigation, defense, settlement and discharge of any such infringement claim;
- Subscriber represents and warrants that he, she or it is not located in a country subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, and that Subscriber is not listed on any U.S. Government list of prohibited or restricted parties;
- Both Subscriber and TigerText acknowledge and agree that, in Subscriber’s use of the Application, Subscriber will comply with any applicable third party terms of agreement which may affect or be affected by such use; and
- Both Subscriber and TigerText acknowledge and agree that Apple and Apple’s subsidiaries are third party beneficiaries of the Terms, and that upon Subscriber’s acceptance of this EULA, Apple will have the right (and will be deemed to have accepted the right) to enforce the Terms against Subscriber as the third party beneficiary hereof.