This End User License Agreement (“EULA”) is a binding legal agreement between you, whether personally or on behalf of an entity, (“you”) and Casana Care, Inc. DBA Casana (“Casana”). By downloading, installing or using the Software or the Casana System (as defined below), you agree to be bound by the terms of this EULA. If you do not agree to this EULA, do not click the button accepting and agreeing to be bound by this EULA and do not use the Software or Casana System. You agree that the use of the Software or the Casana System signifies that you have read, understood, and agree to be bound by this EULA.
The Software is provided to you under this EULA solely for your own personal use. When using the Software or the Casana content, the SmartSeat device, information, Casana features or any other services (collectively, the “Casana System”), you will be subject to any additional terms applicable to such services that may be posted on https://casanacare.com from time to time, including, without limitation:
- The Casana Privacy Policy located at https://casanacare.com/privacy-policy/ (the “Privacy Policy”).
All such terms are hereby incorporated by reference into this EULA.
This EULA contains a waiver of class action remedies in Section 17. By agreeing to this EULA, you acknowledge that you understand and expressly agree to the class action waiver in Section 17.
Description of Software
“Software” means a cloud-based software application that enables you to access the Casana functionality directly from a web-browser.
- App
The App and related services are accessible through the App Store. You must comply with the conditions of use that apply to the online store used to download the App.
You must download the App to your personal device before using it. Downloading the App and exchanging data between the App and Casana requires an internet connection that you must provide. The quality of your internet connection, as well as the performance of your personal device, may affect your optimal use of the App. Casana makes no guarantee that your personal device will be compatible with the App. You are solely responsible for confirming that your personal device and the App are compatible.
The App analyzes information transmitted by the User and information that is collected automatically by your use of the SmartSeat device. The goal is to assist users in better understanding their health status. The SmartSeat device and the accompanying app is not meant to diagnose, treat, prevent, or cure any disease or medical condition. Access to features such as participation in research projects may necessitate affirmative consent by checking a designated box or, in certain cases, completing a form. For further information, refer to our Privacy Policy.
License to Software
Subject to the terms and conditions of this EULA, Casana hereby grants to you a limited, revocable, non-exclusive, non-transferable, non-sublicensable, license to use the Software for your internal use.
Term
The term of this EULA shall commence upon your first access to the Software and continue on a month-by-month basis, or as defined in the purchase order, order form, or other agreement entered into by you and Casana covering access to the Software (“Term”). This EULA shall automatically renew for additional Terms until your purchase order, order form, or agreement is canceled by you or suspended or terminated by Casana.
Title; Feedback
Title, ownership and all rights (including, without limitation, all intellectual property rights) in and to the Software and the Casana System shall remain with Casana. Except for those rights expressly granted in this EULA, no other rights are granted, whether express or implied. Casana reserves all rights not expressly granted to you in this EULA.
You may (but are not required to) provide us with suggestions, comments or other feedback regarding the Software and/or Casana System (“Feedback”). If you do provide us with Feedback, then we may, and you hereby grant us a non-exclusive, worldwide, royalty-free, irrevocable, sublicensable, perpetual license to, use, disclose, reproduce, publish, distribute and otherwise commercially exploit such Feedback for any purpose, without compensation to you. Any Feedback you submit to Casana will be considered non-confidential and non-proprietary to you.
Third Party Materials
The Software may display, include, or make available third-party content (including data, information, applications, and other products, services, and/or materials) or provide links to third party websites, applications or services, including through third party advertising (“Third-Party Materials”). You acknowledge and agree that Casana is not responsible for Third Party Materials, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect thereof. Casana does not assume and will not have any liability or responsibility to you or any other person or entity for any Third-Party Materials. Third-Party Materials are provided solely as a convenience to you, and you access and use them entirely at your own risk and subject to such third parties’ terms and conditions. Links to such Third-Party Materials are not an endorsement by Casana.
Restrictions
You understand and agree that you shall only use the Software in a manner that complies with any and all applicable laws, rules and regulations in the jurisdictions in which you use the Software and in accordance with the EULA. Your use also shall be in accordance with applicable restrictions concerning privacy and intellectual property rights.
Without limitation, you shall not, and shall not assist or enable others to:
- Allow any third party to use the Software without the prior written consent of Casana;
- Modify or create derivative works, in whole or in part, based on the Software;
- Use the Software for any purpose except as described herein;
- Copy or reproduce the Software except as described herein;
- Rent, lend, sell, assign, license, sublicense, disclose, distribute or otherwise transfer or make available the Software or any copies of the Software in any form to any third parties;
- Remove, disable, circumvent or otherwise create or implement any workaround to any copy protection, rights management or security features in or protecting the Software;
- Alter, modify, translate, decompile, decode, reverse assemble or reverse engineer the Software, or attempt to do any of the foregoing, except to the extent this prohibition is not permitted under an applicable law; or
- Remove, obscure or alter any proprietary notices or marks on the Software;
- Use the Software in order to build a competitive product or service;
- Use the Software to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third party privacy rights; or
- Use the Software in any manner or for any purpose that infringes, misappropriates or otherwise violates any intellectual property right or other right of any third party.
If you are under 13 years of age, you are not authorized to use the Software or the Casana System, with or without registering. In addition, if you are between 13 and 18 years old, you may use the Software or Casana System, with or without registering, only with the approval of your parent or guardian. By using the Software or Casana System, you warrant that you are over the age of 13 and, if you are between the ages of 13 and 18 years old, you warrant that you have the approval of your parent or guardian to do so.
Your Responsibilities
You may be required to register for an account (“Account”) with Casana in order to access and use certain features of the Software and/or the Casana System. When registering for an Account, you (a) must provide true, accurate, and complete information, (b) establish a username and password, and (c) maintain and promptly update such information so it is current at all times. If you are creating an account for a company or other legal entity, you represent and warrant that you have the authority to legally bind that entity and grant Casana all permissions and licenses provided in this EULA. You agree to keep your login information strictly confidential and to take all reasonable precautions to prevent unauthorized use, misuse or compromise of your login information. You will immediately notify Casana of any unauthorized use of your login information or any other breach of security. You are liable for all activities through the use of your login information and will indemnify, defend and hold Casana harmless from all liabilities, losses, damages, costs and expenses (including, without limitation, reasonable attorneys’ fees and costs) incurred by Casana to the extent resulting from the use and/or compromise of your login, unless the unauthorized use, misuse or compromise of your login is solely attributable to Casana’s gross negligence or willful misconduct.
By creating, uploading, sending, receiving, storing or otherwise making available any data through the Software (“Account Content”), you hereby grant Casana a non-exclusive, worldwide, royalty-free, irrevocable, sublicensable and transferable license to such Account Content to access, use, store, copy and transmit such Account Content to provide the Software and/or the Casana System. Casana does not claim any ownership rights in any Account Content.
You acknowledge that Casana has no obligation to monitor the access to or use of the Software or to review, disable access to, or edit any Account Content, but has the right to do so to (i) operate, secure and improve the Software and/or Casana System (including without limitation for fraud prevention, risk assessment, investigation and support purposes); (ii) ensure compliance with this EULA; (iii) comply with applicable law or the order or requirement of a court, law enforcement or other administrative agency or governmental body; (iv) respond to Account Content that it determines is harmful or objectionable; or (v) as otherwise set forth in this EULA. You agree to cooperate with and assist Casana in good faith, and to provide Casana with such information and take such actions as may be reasonably requested by Casana with respect to any investigation undertaken by Casana or a representative of Casana regarding the use or abuse of the Software.
Consent to Use Data
You agree that Casana may collect and use technical data and information relating to your use of the Software and/or the Casana System. Casana may use this information, as long as it is in a form that does not personally identify you, to improve its products or to provide services or technologies to you.
Personal Information and Privacy
You acknowledge that by using the Software, Casana may use automatic means (for example, cookies and web beacons) which collect information regarding you, your internet browser and your use of the Software. In addition, we may ask you to provide certain information about you during the Software onboarding process. All personal information that we collect or you provide to us will be governed by the Privacy Policy. If you use the Casana System, the personal information you provide to Casana will also be governed by the Privacy Policy. You understand and agree that Casana may disclose information if required to do so by law or in the good faith belief that such disclosure is reasonably necessary to comply with legal process, enforce the terms of this EULA, or protect the rights, property, or safety of Casana, its users, or the public. Do not share your password or login information with any third party.
By agreeing to this EULA, you acknowledge and warrant that if you are providing data on behalf of another individual, you have the necessary legal authority to do so. This includes but is not limited to situations where you are acting as a caregiver, legal guardian, or authorized representative. You agree to indemnify and hold harmless Casana from any claims, damages, or liabilities arising out of your failure to obtain proper authorization or consent to provide such data. Additionally, you understand that Casana may rely on your representation of legal authority to collect and process data on behalf of the user, and any misuse or unauthorized collection of data may result in termination of your access to the app and legal action as deemed necessary.
No Warranty
CASANA DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE WILL MEET ANY REQUIREMENTS OR NEEDS YOU MAY HAVE, OR THAT THE SOFTWARE WILL OPERATE ERROR FREE, OR IN AN UNINTERRUPTED MANNER, OR THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED, OR THAT THE SOFTWARE IS FULLY COMPATIBLE WITH ANY PARTICULAR PLATFORM. THE SOFTWARE IS OFFERED ON AN “AS-IS” BASIS AND NO WARRANTY, EITHER EXPRESS OR IMPLIED, IS GIVEN. CASANA EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND REGARDING THE SOFTWARE, CASANA SYSTEM OR OTHERWISE, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT AND WARRANTIES THAT MAY ARISE. OUT OF COURSE OF PERFORMANCE, USAGE OR TRADE PRACTICE. SOME JURISDICTIONS DO NOT ALLOW THE WAIVER OR EXCLUSION OF IMPLIED WARRANTIES SO THEY MAY NOT APPLY TO YOU.
YOU EXPRESSLY AGREE THAT THE SOFTWARE AND THE CASANA SYSTEM DOES NOT INVOLVE THE PROVISION OF MEDICAL ADVICE BY CASANA. THE SOFTWARE AND/OR THE CASANA SYSTEM IS NOT INTENDED TO DIAGNOSE, TREAT, CURE, OR PREVENT ANY DISEASE OR MEDICAL CONDITION. THE SOFTWARE IS FOR INFORMATIONAL PURPOSES ONLY AND CANNOT REPLACE THE SERVICES OF PHYSICIANS OR MEDICAL PROFESSIONALS.
THE SOFTWARE AND THE CASANA SYSTEM IS NOT INTENDED TO BE AND SHOULD NOT BE USED IN PLACE OF (A) THE ADVICE OF YOUR PHYSICIAN OR OTHER MEDICAL PROFESSIONALS, (B) A VISIT CALL, OR CONSULTATION WITH YOUR PHYSICIAN OR OTHER MEDICAL PROFESSIONALS, OR (C) INFORMATION CONTAINED ON OR IN ANY PRODUCT PACKAGING OR LABEL.
Right to Change EULA, Modify or Update Software, and Right Terminate EULA
Casana reserves the right to change portions of this EULA at any time. If Casana does so, Casana will indicate at the top of the page the date this EULA was last revised. Casana will also notify you of any material changes in an email notification or through other reasonable means. Any such changes will become effective fourteen (14) days after being posted (or such later date as set forth in the post), except that changes addressing new functions of the Casana System or changes made for legal reasons may become effective immediately. Your continued use of the Software after any such changes or modifications become effective constitutes acceptance of such changes or modifications. If you do not agree to abide by these or any future EULA, do not use or access (or continue to use or access) the Software. It is your responsibility to review this EULA from time to time to assess whether there have been any changes.
Casana also reserves the right to develop and/or provide changes or updates to the Software, which may change or delete certain features and/or functionality. You agree that Casana has no obligation to provide any changes or updates or to continue to provide or enable any particular feature or functionality.
Casana may suspend or terminate your use of the Software, this EULA or the Casana System at any time, with or without notice. Upon any termination of this EULA and/or your use of the Software, all rights granted to you under this EULA shall terminate and you must cease all use of the Software and any Casana System; provided that any such termination shall not terminate or limit Casana’s rights or remedies at law or in equity or under this EULA, and all of your obligations under this EULA shall continue in full force, including without limitation indemnification obligations, together with all provisions necessary or desirable to interpret such obligations.
U.S. Government Restricted Rights
The Software and accompanying documentation are provided with restricted rights. Use, duplication, or disclosure by the U.S. Government is subject to the restrictions as set forth in subparagraph (c)(1)(iii) of DFARS 252.227-7013 (The Rights in Technical Data and Computer Software) or subparagraphs(c)(1) and (2) of 48 CFR 52.227-19 (the Commercial Computer Software – Restricted Rights), as applicable.
Open Source
The Software may contain or be provided together with open source software. Each item of open source software is subject to its own applicable license terms, which can be found in the Software documentation or the applicable help, notices, about or source files. Copyrights to the open source software are held by the respective copyright holders indicated therein.
Indemnification
By accepting this EULA, you agree to indemnify and otherwise hold harmless Casana, its officers, employees, agents, subsidiaries, affiliates and other partners from any claims or suits, or direct, indirect, incidental, special, consequential or exemplary damages, costs and expenses, including attorneys’ fees and court costs, arising out of, relating to, or resulting from your (a) use of the Software or any other matter relating to the Software and/or the Casana System; (b) your breach of this EULA; (c) your violation of the rights of a third party, including but not limited to intellectual property rights.
Limitation of Liability
YOU EXPRESSLY UNDERSTAND AND AGREE THAT CASANA SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF CASANA HAS BEEN ADVISED OF, KNEW OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES). IN NO EVENT WILL CASANA’S AGGREGATE LIABILITY TO YOU EXCEED THE AMOUNT YOU HAVE PAID CASANA IN THE SIX (6) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM OR, IF GREATER, ONE HUNDRED DOLLARS ($100). THESE LIMITATIONS AND EXCLUSIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATIONS OF DAMAGES AND/OR EXCLUSIONS OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
Export Restrictions
This EULA is expressly made subject to any laws, regulations, orders or other restrictions on the export from the United States of America of the Software or information about such Software which may be imposed from time to time by the government of the United States of America. You shall not export the Software or information about the Software without consent of Casana and compliance with such laws, regulations, orders or other restrictions. You represent and warrant that (a) 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 (b) you are not listed on any U.S. Government list of prohibited or restricted parties.
Class Action Waiver
Any proceedings to resolve or litigate any dispute in any forum with respect to this EULA and/or the Casana System will be conducted solely on an individual basis. Neither you nor Casana will seek to have any such dispute heard as a class action, private attorney general action, or in any other proceeding in which either party acts or proposes to act in a representative capacity. No proceeding will be combined with another without the prior written consent of all parties to all affected proceedings. If this class action waiver is found to be illegal or unenforceable as to all or some parts of a dispute, then this section will not apply to those parts.
General
This EULA constitutes the entire agreement between you and Casana and governs your use of the Software, superseding any prior agreements between you and Casana with respect to the Software. You also may be subject to additional terms and conditions that may apply when you use affiliate or third party services, third party content or third party software. This EULA will be governed by the laws of the State of New York without regard to its conflict of law provisions. You and Casana agree to submit to the personal and exclusive jurisdiction of the state and federal courts located in Monroe County, New York. You waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts. The failure of Casana to exercise or enforce any right or provision of this EULA will not constitute a waiver of such right or provision. If any provision of this EULA is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of this EULA remain in full force and effect. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Casana System or this EULA must be filed within one (1) year after such claim or cause of action arose or be forever barred. A printed version of this agreement and of any notice given in electronic form will be admissible in judicial or administrative proceedings based upon or relating to this agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. You may not assign this EULA without the prior written consent of Casana, but Casana may assign or transfer this EULA, in whole or in part, without restriction. The section titles in this EULA are for convenience only and have no legal or contractual effect. Notices to you may be made via either email or regular mail. In the event of any conflict between this EULA and the Casana Terms of Use, this EULA will govern.