NOTIFICATION

On September 1, 2020 the new suite of software, called Moovment, replaces the previous software versions called Movement Scan, Movement Lab and Note. The new Service consists of Moovment Scan, Moovment Lab and Moovment Pro. All existing Licensees have been notified directly and instructed to upgrade their software. This upgrade did not affect existing end-users or the data controlled by Health Service Providers. From September 1, 2020 end-users can however register as a Health Seeker in the Moovment Pro webapp to see their own results. We advice all customers to review and agree to the updated Privacy Policy, Support Services Addendum, Data Processing Addendum and Service Agreement before using the website or any Services.

PLEASE READ THIS END USER LICENCE AGREEMENT CAREFULLY BEFORE DOWNLOADING AND USING SOFTWARE. BY CLICKING “ACCEPTED AND AGREED TO” OR SIMILAR ACCEPTANCE INDICIA, CUSTOMER AGREES TO THESE TERMS AND CONDITIONS.

Please read this End ­User License Agreement ("Agreement") carefully before signing any sales agreements, downloading or using Qinematic’s Moovment Scan or Moovment Lab installed software (“Software” or "Application"). By downloading or using the Application, you are agreeing to be bound by the terms and conditions of this Agreement.

If you do NOT agree to the terms of this Agreement, do not download or use the Application.

END-USER LICENSE AGREEMENT

This End-User License Agreement (this “Agreement”) is a binding agreement between you (“Customer” “You” “Your”) and Qinematic AB, (“Company”) granting You limited rights to use certain Company Software for which You have completed a product Order and fully paid the corresponding fee due to Company. Your Order is subject to this EULA. No Orders are binding on Company until accepted by Company. Orders for Software are deemed to be accepted upon Company’s delivery of the Software included in such Order.

BY DOWNLOADING, INSTALLING, OR USING THE SOFTWARE, YOU AGREE TO BE BOUND BY THE TERMS OF THIS END USER LICENSE AGREEMENT (“EULA”). IF YOU DO NOT AGREE TO THE TERMS OF THIS EULA, YOU MUST NOT DOWNLOAD, INSTALL, OR USE THE SOFTWARE, AND YOU MUST DELETE OR RETURN THE UNUSED SOFTWARE TO THE VENDOR FROM WHICH YOU ACQUIRED IT WITHIN THIRTY (30) DAYS AND REQUEST A REFUND OF THE LICENSE FEE THAT YOU PAID FOR THE SOFTWARE.

TERMS AND CONDITIONS

1.DEFINITIONS

The following capitalized terms shall have the following meanings whenever used in this Agreement.

1.1.      “Documentation” means the Software’s standard user manual.

1.2.      “Software” means Company’s Moovment Scan software or Moovment Lab software, in executable format.

1.3.      “Term” is defined in Section 9.1 below.

1.4.      “Upgrade” means new versions, updates, or upgrades of the Software, in executable format.

2.LICENSE GRANT

2.1.      License. Company hereby grants Customer a non-exclusive license to use one copy of the Software during the Term, provided Customer complies with the restrictions set forth in Section 2.2 below. Customer may maintain one additional copy of the Software for archival purposes only.

2.2.      Restrictions on Software Rights. Any copy of the Software created or transferred pursuant to this Agreement is licensed, not sold, and Customer receives no title to or ownership of any copy or of the Software itself. Furthermore, Customer receives no rights to the Software other than those specifically granted in Section 2.1 above. Without limiting the generality of the foregoing, Customer shall not: (a) modify, create derivative works from, distribute, publicly display, publicly perform, or sublicense the Software; (b) use the Software for service bureau or time-sharing purposes or in any other way allow third parties to exploit the Software; or (c) reverse engineer, decompile, disassemble, or otherwise attempt to derive any of the Software’s source code.

2.3.      Documentation. Customer may reproduce the Documentation as reasonably necessary to support internal use of the Software.

3.IP & FEEDBACK

3.1.      IP Rights in the Software. Company retains all right, title, and interest in and to the Documentation and Software, including without limitation Upgrades, except to the extent of the limited licenses specifically set forth in Sections 2.1 (Licenses), 2.3 (Documentation). Customer recognizes that the Software and its components are protected by copyright and other laws.

3.2.      Feedback. Customer hereby grants Company a perpetual, irrevocable, worldwide license to use any Feedback (as defined below) Customer communicates to Company during the Term, without compensation, without any obligation to report on such use, and without any other restriction. Company’s rights granted in the previous sentence include, without limitation, the right to exploit Feedback in any and every way. Notwithstanding the provisions of Article 4 (Confidential Information) below, Feedback will not be considered Customer’s Confidential Information. (“Feedback” refers to any suggestion or idea for modifying any of Company’s products or services, including without limitation all intellectual property rights in any such suggestion or idea.)

4.CONFIDENTIAL INFORMATION

4.1.      Confidential Information Defined. “Confidential Information” means information or materials provided by one party (“Discloser”) to the other party (“Recipient”) which are in tangible form and labeled “confidential” or the like, or, information which a reasonable person knew or should have known to be confidential. The following information shall be considered Confidential Information whether or not marked or identified as such: (a) License Keys; (b) information regarding Company’s pricing, product roadmaps or strategic marketing plans; and (c) non-public materials relating to the Software.

4.2.      Non-disclosure. Recipient may use Confidential Information of Discloser; (a) to exercise its rights and perform its obligations under this EULA; or (b) in connection with the parties’ ongoing business relationship. Recipient will not use any Confidential Information of Discloser for any purpose not expressly permitted by this EULA, and will disclose the Confidential Information of Discloser only to the employees or contractors of Recipient who have a need to know such Confidential Information for purposes of this EULA and who are under a duty of confidentiality no less restrictive than Recipient’s duty hereunder. Recipient will protect Confidential Information from unauthorized use, access, or disclosure in the same manner as Recipient protects its own confidential or proprietary information of a similar nature but with no less than reasonable care.

4.3.      Retention of Rights. This Agreement does not transfer ownership of Confidential Information or grant a license thereto. Discloser will retain all right, title, and interest in and to all Confidential Information.

5.SOFTWARE AUDIT

5.1.      During the Term of this Agreement and at any time during the following year thereafter, Company may audit Customer’s use of Licensed Software on 24 hours advance written notice. Customer shall cooperate with the audit, including by providing access to any books, computers, records, or other information that relate or may relate to the use of Licensed Software. Such audit shall not unreasonably interfere with Customer’s business activities. If Company discovers unauthorized use, reproduction, distribution, or other exploitation of Licensed Software,  Customer shall reimburse Company for the reasonable cost of the audit, or of the next audit in case of discovery without an audit, in addition to such other rights and remedies as Company may have. Company may not conduct an audit more than once per year.

6.REPRESENTATIONS & WARRANTIES

6.1.      From Company.

(a)       Re Function. Company represents and warrants that, during the Term the Software will perform materially as described in the Documentation provided that the Software: (a) has been properly installed and used at all times in accordance with the applicable Documentation; and (b) has not been modified or added to by persons other than Company.

(b)      Re IP Rights in the Software. Subject to the next sentence, Company represents and warrants that it is the owner of the Software and of each and every component thereof, or the recipient of a valid license thereto, and that it has and will maintain the full power and authority to grant the intellectual property rights to the Software set forth in this Agreement without the further consent of any third party.

6.2.      From Both Parties. Each party represents and warrants that it has the full right and authority to enter into, execute, and perform its obligations under this Agreement and that no pending or threatened claim or litigation known to it would have a material adverse impact on its ability to perform as required by this Agreement.

6.3.      Warranty Disclaimers. TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, THE PRODUCT IS SUPPLIED ON AN “AS IS” BASIS. COMPANY DOES NOT MAKE AND HEREBY DISCLAIMS ANY GUARANTEES, CONDITIONS, WARRANTIES OF ANY KIND, EXPRESS, IMPLIED, STATUTORY OR OTHER.

7.INDEMNIFICATION

7.1.      Indemnified Claims. Company shall defend and indemnify Customer against any “Indemnified Claim,” meaning any third party claim, suit, or proceeding arising out of, or alleging direct infringement of any patent, copyright, or other intellectual property right solely by the ordinary and intended use of the Software. Company’s obligations do not apply to the extent that an Indemnified Claim arises out of: (a) Customer’s breach of this Agreement; (b) revisions to the Software made without Company’s written consent; (c) Customer’s failure to incorporate Upgrades that would have avoided the alleged infringement; (d) Company’s modification of Software in compliance with specifications provided by Customer; or (e) use of the Software in combination with hardware or software not provided by Company. Customer shall promptly notify Company of any actual or potential claim. Company shall be excused from its indemnification obligation if Customer fails to report the claim to Company within 60 days of first notice.

7.2.      Litigation & Additional Terms. Company’s obligations pursuant to Section 7.1 above will be excused to the extent that Customer’s failure to reasonably cooperate materially prejudices the defense. Company will control the defense of any Indemnified Claim, including appeals, negotiations, and any settlement or compromise thereof; provided Customer will have the right, not to be exercised unreasonably, to reject any settlement or compromise that requires that it admit wrongdoing or liability or subjects it to any ongoing affirmative obligations.

8.LIMITATION OF LIABILITY

8.1.      Dollar Cap. COMPANY’S CUMULATIVE LIABILITY FOR ALL CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED THE PRICE PAID BY CUSTOMER TO COMPANY FOR THE MOST RECENT 3 MONTHS OF SERVICE, OR AS A PRO-RATA SHARE OF THE ANNUAL FEE.

8.2.      Excluded Damages. TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, IN NO EVENT WILL COMPANY BE LIABLE FOR LOSS OR DAMAGE SUFFERED BY CUSTOMER IN CONNECTION WITH THE USE OF THE SOFTWARE. THIS INCLUDES WITHOUT LIMITATION (A) ALL LOSSES OF ANY KIND, WHETHER IN TORT (INCLUDING FOR NEGLIGENCE OR BREACH OF STATUTORY DUTY), CONTRACT, MISREPRESENTATION (WHETHER INNOCENT OR NEGLIGENT) OR OTHERWISE, (B) DIRECT LOSS; (C) ACCIDENTAL LOSS, (D) INCIDENTAL LOSS, (E) CONSEQUENTIAL LOSS, AND (F) INDIRECT LOSS. 

8.3.      Clarifications & Disclaimers. THE LIABILITIES LIMITED BY THIS ARTICLE 8 APPLY: (a) TO LIABILITY FOR NEGLIGENCE; (b) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT PRODUCT LIABILITY, OR OTHERWISE; (c) EVEN IF COMPANY IS ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; AND (d) EVEN IF CUSTOMER’S REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. If applicable law limits the application of the provisions of this Article 8, Company’s liability will be limited to the maximum extent permissible. For the avoidance of doubt, Company’s liability limits and other rights set forth in this Article 8 apply likewise to Company’s affiliates, agents, directors, officers, and other representatives.

8.4.      Exceptions to Limitation of Liability. Sections 8.1 (Dollar Cap) and 8.2 (Excluded Damages) above do not apply to: (a) claims pursuant to Article 7 above (Indemnification); or (b) claims for attorneys’ fees and other litigation costs recoverable by the prevailing party in any action.

9.TERM & TERMINATION

9.1.      Term. This Agreement will remain in effect for the duration of the subscription period selected when purchasing any software and services, with due consideration for the “Notice period”. The purchase date is the “Effective Date” and the subscription period is the “Term”. The “Notice of Termination period” is the amount of time that is necessary to inform the Company of Termination, and must occur prior to the next subscription period according to the following rules, unless otherwise stated in another Sales agreement approved by the Company. Previous payment is non-refundable. “Annual subscriptions” are valid for a Term of one year from the Effective Date, with payment at the beginning of each period, unless otherwise stated in another Sales agreement approved by the Company. Thereafter, the Term will renew for successive one-year periods only upon timely payment by Customer of a renewal fee as determined by the Company. There is a three (3) month Notice of Termination period for Annual subscriptions. “Monthly subscriptions” are valid for a Term of one month, starting from the Effective Date. Thereafter, the Term will renew for successive one (1) month periods only upon timely payment by Customer of a renewal fee as determined by the Company. There is a one (1) month or more Notice of Termination period for Monthly subscriptions, and termination will occur at the end of the following period.

9.2.      Termination for Cause. Either party may terminate this Agreement for the other’s material breach by written notice specifying in detail the nature of the breach, effective in 30 days unless the other party first cures such breach, or effective immediately if the breach is not subject to cure.

9.3.      Effects of Termination. Upon termination of this Agreement, Customer shall cease all use of the Software and delete, destroy, or return all copies of the Documentation in its possession or control. The following provisions will survive termination or expiration of this Agreement: (a) any obligation of Customer to pay fees incurred before termination; (b) Articles and Sections 2.2 (Restrictions on Software Rights) 3 (IP & Feedback), 4 (Confidential Information), 5 (Software Audit), 6.3 (Warranty Disclaimers), and 8 (Limitation of Liability); and (c) any other provision of this Agreement that must survive to fulfill its essential purpose.

10.MISCELLANEOUS

10.1.  Independent Contractors. The parties are independent contractors and will so represent themselves in all regards. Neither party is the agent of the other, and neither may make commitments on the other’s behalf.

10.2.  Notices. Notices pursuant to this Agreement shall be sent to Company at its registered business address.

10.3.  Force Majeure. No delay, failure, or default, other than a failure to pay fees when due, will constitute a breach of this Agreement to the extent caused by acts of war, terrorism, hurricanes, earthquakes, other acts of God or of nature, strikes or other labor disputes, riots or other acts of civil disorder, embargoes, or other causes beyond the performing party’s reasonable control.

10.4.  Assignment & Successors. Customer may not assign this Agreement or any of its rights or obligations hereunder without Company’s express written consent. This Agreement will be binding upon and inure to the benefit of the parties’ respective successors and assigns.

10.5.  Severability. To the extent permitted by applicable law, the parties hereby waive any provision of law that would render any clause of this Agreement invalid or otherwise unenforceable in any respect. In the event that a provision of this Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of this Agreement will continue in full force and effect.

10.6.  No Waiver. Neither party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than by an authorized representative in an explicit written waiver. No waiver of a breach of this Agreement will constitute a waiver of any other breach of this Agreement.

10.7.  Construction. The parties agree that the terms of this Agreement result from negotiations between them. This Agreement will not be construed in favor of or against either party by reason of authorship.

10.8.  Entire Agreement. This Agreement sets forth the entire agreement of the parties and supersedes all prior or contemporaneous writings, negotiations, and discussions with respect to its subject matter. Neither party has relied upon any such prior or contemporaneous communications.

10.9.  Execution in Counterparts. This Agreement may be executed in one or more counterparts. Each counterpart will be an original, but all such counterparts will constitute a single instrument.

10.10.      Amendment. This Agreement may not be amended except through a written agreement by authorized representatives of each party.

10.11.      Notice. Any notice required or permitted to be given by either Party under this Agreement, shall be in writing and may be delivered by courier, sent by registered airmail letter, facsimile or electronic mail to the Parties contact persons. Such notice shall be deemed to be given:

(a)       if sent by courier – on the day of delivery to the receiving Party.

(b)      if sent by registered airmail letter – five (5) days after the day of dispatch;

(c)       if sent by electronic mail – when received at the other Party’s email address, provided that the sending party the same day has sent the e-mail by mail.

11.DISPUTES & GOVERNING LAW

11.1.  Choice of Law & Jurisdiction. This Agreement shall be governed by and construed in accordance with the laws of Sweden, with the exclusion of its conflict of law rules.

11.2.  Mediation. Any dispute, controversy or claim arising out of or in connection with this contract, or the breach, termination or invalidity thereof, shall  first be referred to Mediation in accordance with the Mediation Rules of the Stockholm Chamber of Commerce (the SCC Institute) and the parties by signing this agreement consent to such mediation and if the Mediation is terminated the dispute controversy or claim, contractual or non-contractual, arising out of or in connection with this Agreement, or the breach, termination or invalidity thereof shall be finally settled by arbitration administered by the SCC Institute. The place of arbitration shall be Stockholm. The language to be used in the arbitral proceedings shall be English unless otherwise agreed.

11.3.  Rules for arbitration. The Rules for Expedited Arbitrations of the Arbitration Institute of the Stockholm Chamber of Commerce shall apply, unless the SCC Institute, taking into account the complexity of the case, the amount in dispute and other circumstances, determines, in its discretion, that the Rules of the Arbitration Institute of the Stockholm Chamber of Commerce shall apply. In the latter case, the SCC Institute shall also decide whether the arbitral tribunal shall be composed of one or three arbitrators.

11.4.  Confidentiality. The Parties undertake and agree that all arbitral proceedings conducted with reference to this arbitration clause will be kept strictly confidential. This confidentiality undertaking shall cover all information disclosed in the course of such arbitral proceedings, as well as any decision or award that is made or declared during the proceedings. Information covered by this confidentiality undertaking may not, in any form, be disclosed to a third party without the written consent of the other Party. This notwithstanding, a Party shall not be prevented from disclosing such information in order to safeguard in the best possible way his rights vis-à-vis the other Party in connection with the dispute, or if the Party is obliged to so disclose pursuant to statute, regulation, a decision by an authority or similar.

ADDITIONAL TERMS

Pricing as specified in Sales Agreement

Territory as specified in Sales Agreement