END-USER LICENSE AGREEMENT

IMPORTANT – READ CAREFULLY AND IN ITS ENTIRETY:

This End-User License Agreement (“EULA” and “Agreement”) is a binding legal agreement between Semperform Innovation Inc. (“Licensor” or “Semperform”) and the Person or entity (the “Licensee”) subscribing to the Application, as defined below. Please read this Agreement carefully.

Licensor provides the Application solely on the terms and conditions set forth in this Agreement and on the condition that Licensee accepts and complies with them. By clicking the “accept” button in the installer or by subscribing to the Application, you hereby:

  1. agree to have read and accept this Agreement and agree that Licensee is legally bound by its terms; and
  2. represent and warrant that:
    1. you are 18 years of age or older/of legal age to enter into a binding agreement;
    2. if you are under 18 years of age, you are entering into this Agreement with a parent or guardian’s permission; and
    3. if Licensee is a corporation, governmental organization, or other legal entity, you have the right, power, and authority to enter into this Agreement on behalf of Licensee and bind Licensee to its terms. If Licensee does not have the authority to enter into this Agreement or does not agree to the terms of this Agreement, Licensor will not and does not licence the Application to Licensee and you must not install the Application or documentation (or remove same if already installed).

The Licensor reserves all rights in and to the Application not expressly granted to you under this EULA.

  1. DEFINITIONS

    1. “Affiliates” means with respect to a party to this Agreement, an entity that directly, or indirectly through one or more intermediaries, Controls, is Controlled by, or is under common Control with, such party
    2. “Additional Software Application” means updates, patches, new functionality, supplements, plugins, custom modifications or new functionality specific to the Licensee’s needs, or other add on components of the Application.
    3. “Application” means the software application HURT BLOCKER, including, as applicable, Additional Software Application, Releases and associated media, printed materials, ‘online’ or electronic documentation, internet-based services and Embedded Materials.
    4. “Authorised User” means a Representative of the Licensee entitled under this EULA to access or use the Software under a User License. For greater clarity, Authorized Users may include Licensee’s employees or Licensee’s contractors.
    5. “Control” (including the terms controlling, controlled by and under common control with) means, with respect to a party to this Agreement, the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of an entity, whether through the ownership of voting securities, by contract, or otherwise.
    6. “Confidential Information” has the meaning set forth in Section 7.
    7. “Disclosing Party” has the meaning set forth in Section 7.1.
    8. “Documentation” means user manuals, technical manuals, and any other materials provided by Licensor, in printed, electronic, or other form, that describe the installation, operation, use, or technical specifications of the Application.
    9. “Embedded Materials” means any third-party software, images, or other media which may be licensed by Licensor from a Third-Party and embedded in the Application.
    10. “EULA” means this document and any amendment or addendum provided by Licensor to the Licensee.
    11. “Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
    12. “Fees” means the licence fees, including all taxes thereon, paid or required to be paid by Licensee for the licence granted under this EULA.
    13. “Person” means an individual, corporation, partnership, joint venture, limited liability company, governmental authority, unincorporated organization, trust, association, or other entity.
    14. “Personal Information” means any information about an identifiable individual, or that taken alone or combined with other data, allows an individual to be identified.
    15. “Receiving Party” has the meaning set forth in Section 7.1.
    16. “Release” means any update or new version of the Application or Documentation.
    17. “Representative” means, with respect to a party, that party’s employees, officers, directors, consultants, agents, independent contractors, service providers, and legal advisors.
    18. “Term” has the meaning set forth in Section 12.1.
    19. “Third Party” means any Person other than Authorized Users.
    20. “User License” means a license or licenses granted by Licensor under this EULA to the Licensee to permit an Authorised User to access and run the Application.
    21. “You” and “your” mean the Person who accept this Agreement or, if the acceptance is on behalf of a corporation or other legal entity, such corporation or other legal entity.

  2. LICENSE

    1. Licensor grants the Licensee a non-exclusive, non-transferable, non-sub-licensable limited license to access and use the Application and Documentation (the “License”) during the Term, solely as set forth in this EULA and subject to all conditions and limitations set forth in this EULA. The Application is for the Licensee’s own use and must not be used by others or for marketing or redistribution, whether alone or as a component of any other product. This licence grants Licensee the right to:
      1. Install in accordance with the Documentation, the Application. Each copy of the Application must only be installed on a mobile device, computer or virtual machine, owned or leased, and controlled by Licensee.
      2. Use and run the Application as properly installed in accordance with this EULA and the Documentation, solely as set forth in the Documentation.
      3. Download or otherwise make a reasonable number of copies of the Documentation and use such Documentation solely in support of its licensed use of the Application in accordance herewith. All copies of the Documentation made by Licensee:
        1. will be exclusive property of the Licensor;
        2. will be subject to the terms and conditions of this EULA; and
        3. must include all trademark, copyright, patent, and other Intellectual Property Rights notices contained in the original.
    2. This EULA applies to Additional Software Application that Licensor may make available to the Licensee after the date the Licensee initially download the Application, in conjunction with any amendment or addendum Licensor provides with the Additional Software Application.
    3. Any amendment or addendum to this EULA forms part of the license terms as if they were included in this document and, together, form the terms of this EULA. To the extent that any inconsistency arises between the amendment or addendum and these terms, the relevant provisions of the amendment or addendum will apply to the extent of the inconsistency.
    4. During the Term, Licensor may, at its sole option and discretion, provide Licensee with support or maintenance, subject to all applicable terms and conditions in this Agreement. Licensor support obligations shall only apply in the event that a separate maintenance agreement, as a premium add-on, is entered into between the parties.

  3. NO MEDICAL CARE OR ADVICE

    1. The Application and Documentation are for information purposes only and do not constitute professional medical advice, diagnosis, treatment, or recommendations of any kind by Semperform. For the avoidance of doubts, the Application is not a medical device as defined by applicable law. You should always seek the advice of our qualified health care professionals with any questions or concerns you may have regarding your individual needs and any medical conditions. All information provided by Semperform, or in connection with any communications supported by Semperform, is intended to be for general information purposes only, and is in no way intended to create a provider-patient relationship as defined by applicable law. The Application and Documentation are not intended to take the place of your relationship with your regular health care practitioners or primary care physician.
    2. If you are experiencing a medical emergency, you should dial “911” immediately. Under no circumstance should you attempt self-treatment based on the Application or the Documentation. You should seek emergency help or follow up care when recommended by a physician or qualified healthcare provider or when otherwise needed. You should continue to consult with your primary provider and other healthcare professionals as recommended. Always seek advice of a physician or other qualified healthcare provider concerning questions you have regarding a medical condition and before stopping, starting, or modifying any treatment or modification.
    3. Without limiting the generality of Section 14 (Disclaimer and Limitation of Remedies) and Section 15 (Indemnity) of this EULA, neither Semperform, nor any of its Affiliates or any third party who may promote the Application or provide a link to it, shall be liable, directly or indirectly, for any information obtained from the Application or Documentation. Semperform does not recommend or endorse any specific tests, physicians, medications, products or procedures. YOU ACKNOWLEDGE THAT YOUR RELIANCE ON ANY INFORMATION RECEIVED THROUGH THE APPLICATION AND/OR FROM SEMPERFORM IS SOLELY FROM AND AT YOUR OWN RISK AND ASSUME FULL RESPONSIBILITY FOR ALL RISKS ASSOCIATED HEREWITH.
    4. During the Term, Licensor may, at its sole option and discretion, provide Licensee with support or maintenance, subject to all applicable terms and conditions in this Agreement. Licensor support obligations shall only apply in the event that a separate maintenance agreement, as a premium add-on, is entered into between the parties.

    1. Licensee shall not, and shall require its Authorized Users not to, directly or indirectly:
      1. the Application or Documentation beyond the scope of the licence granted under Section 2;
      2. except as expressly set forth in Section 2 copy the Application or Documentation, in whole or in part, or disclose onto any public or distributed network;
      3. modify, correct, translate, adapt, enhance, further develop, or otherwise create derivative works, enhancements or improvements, whether or not patentable, of the Application or Documentation or any part thereof;
      4. combine the Application or any part thereof with, or incorporate the Application or any part thereof in, any other programs;
      5. reverse engineer, disassemble, decompile, decode, circumvent or otherwise attempt to derive or gain access to the source code of the Application or any part thereof;
      6. remove, delete, efface, alter, obscure, translate, combine, supplement, or otherwise change any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights or other symbols, notices, marks, or serial numbers on or relating to any copy provided on or with the Application or Documentation, including any copy thereof;
      7. use the Application or Documentation in violation of any law, regulation or rule or for purposes of competitive analysis of the Application, the development of a competing software product or service or any other purpose that is to Licensor’s commercial disadvantage;
      8. rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Application and Documentation, or any features or functionality of the Application, to any Third Party for any reason, whether or not over a network or on a hosted basis; and/or
      9. use the Application or Documentation in, or in association with, the design, construction, maintenance, or operation of any hazardous environments or systems, or applications, any safety response systems or other safety-critical applications, or any other use or application in which the use or failure of the Application could lead to personal injury or severe physical or property damage.
    2. No Implied Right. Except for the limited rights and licences expressly granted under this EULA, nothing in this EULA grants, by implication, waiver, estoppel, or otherwise, to Licensee or any Third Party any Intellectual Property Rights or license, nor other right, title, or interest in or to the Application or Documentation, and Licensor’s Confidential Information.
    3. Third-Party Materials. The Licensee must not directly or indirectly access or use any Third-Party Materials independently of the rest of the Application. Any agreement entered into with a third-party may set out additional obligations to this Agreement but do not supercede the terms herein.

    1. Licensee is responsible for compliance by all users on its account. Specifically, and without limiting the generality of the foregoing, Licensee is responsible and liable for all actions and failures to take required actions with respect to the Application and Documentation by its Authorized Users or by any other Person to whom Licensee or an Authorized User may provide access to or use of the Application or Documentation, whether such access or use is permitted by or in violation of this EULA.

    1. The Application and Documentation comprises valuable patent, industrial design, copyright, trade secret, trademark, mask work and/or other proprietary rights of Licensor. Licensor (and/or Licensor’s licensors) owns exclusively and reserves all right, title, and interest in and to the Application and Documentation.
    2. Licensee acknowledges and agrees that that all right, title, and interest in and to the Application and Documentation are owned by the Licensor. Licensee does not acquire any ownership interest in the Application or Documentation under this EULA, or any other rights thereto, other than to use the same in accordance with the licence granted and subject to all terms, conditions, and restrictions under this EULA. Licensor reserves and shall retain its entire right, title, and interest in and to the Application and all Intellectual Property Rights arising out of or relating to the Application, except as expressly granted to the Licensee in this EULA. Licensee shall safeguard all Application (including all copies thereof) from infringement, misappropriation, theft, misuse, or unauthorized access. Licensee shall promptly notify Licensor if Licensee becomes aware of any infringement of the Licensor’s Intellectual Property Rights in the Application and fully cooperate with Licensor in any legal action taken by Licensor to enforce its Intellectual Property Rights.
    3. Licensee acknowledges and agrees that the Application and all ideas, methods, algorithms, formulae, processes, and concepts used in developing or incorporated into the Application, all future updates and upgrades, and all other improvements, revisions, corrections, bug-fixes, hotfixes, patches, modifications, enhancements, releases, signature sets, upgrades, and policy and database updates and other updates in, of, or to the Application, all derivative works based upon any of the foregoing, and all copies of the foregoing are trade secrets and proprietary property of Licensor, having great commercial value to Licensor.
    4. Licensor may further use, shall own and be free to fully exploit any feedback Licensee provides in connection with its use of the Application without compensation to Licensee.

  7. CONFIDENTIAL INFORMATION

    1. In connection with this EULA each party (as the “Disclosing Party”) may disclose or make available Confidential Information to the other party (as the “Receiving Party”). Subject to Section 7.2, “Confidential Information” means information in any form or medium (whether oral, written, electronic, or other) that the Disclosing Party considers confidential or proprietary, including information consisting of or relating to the Disclosing Party’s technology, trade secrets, know-how, business operations, plans, strategies, customers, datasets, parameters, models, model hyperparameters, data uploaded by an Authorized User to the Application, optimization output of the Application, ore body and geospatial models, geological models, geological parameters, mine planning models, mine planning parameters, mine planning constraints, production constraints, production objectives, production strategy and pricing, and information with respect to which the Disclosing Party has contractual or other confidentiality obligations, in each case whether or not marked, designated, or otherwise identified as “confidential”. Without limiting the foregoing, the Application and Documentation are the Confidential Information of Licensor.
    2. Exclusions. Confidential Information does not include information that:
      1. was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information being disclosed or made available to the Receiving Party in connection with this EULA;
      2. was or becomes generally known by the public other than by the Receiving Party’s or any of its Representatives’ non-compliance with this EULA;
      3. was or is received by the Receiving Party on a non-confidential basis from a Third Party that was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; or
      4. was or is independently developed by the Receiving Party without reference to or use of any Confidential Information.
    3. Protection of Confidentiality Information. As a condition to being provided with any disclosure of or access to Confidential Information, the Receiving Party shall:
      1. not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with this EULA;
      2. except as may be permitted by and subject to its compliance with Section 7.4, not disclose or permit access to Confidential Information other than to its Representatives who:
        1. need to know such Confidential Information for purposes of the Receiving Party’s exercise of its rights or performance of its obligations under and in accordance with this EULA;
        2. have been informed of the confidential nature of the Confidential Information and the Receiving Party’s obligations under this Section 7.3; and
        3. are bound by confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this Section 7.3;
      3. safeguard the Confidential Information from unauthorized use, access, or disclosure using at least the degree of care it uses to protect its similarly sensitive information and in no event less than a reasonable degree of care;
      4. ensure its Representatives’ compliance with, and be responsible and liable for any of its Representatives’ non-compliance with, the terms of this Section 7; and
      5. promptly notify the Disclosing Party of any unauthorized use or disclosure of the Disclosing Party’s Confidential Information and use its best efforts/cooperate with Disclosing Party to prevent further unauthorized use or disclosure.
    4. Notwithstanding any other provisions of this EULA, the Receiving Party’s obligations under this Section 7 with respect to any Confidential Information that constitutes a trade secret under any applicable Law will continue until such time, if ever, as such Confidential Information ceases to qualify for trade secret protection under one or more such applicable Laws other than as a result of any act or omission of the Receiving Party or any of its Representatives.
    5. Compelled Disclosures. If the Receiving Party or any of its Representatives is compelled by applicable Law to disclose any Confidential Information then, to the extent permitted by applicable Law, the Receiving Party shall:
      1. promptly, and prior to such disclosure, notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy or waive its rights under Section 7.3; and
      2. provide reasonable assistance to the Disclosing Party in opposing such disclosure or seeking a protective order or other limitations on disclosure. If the Disclosing Party waives compliance or, after providing the notice and assistance required under this Section 7.5, the Receiving Party remains required by Law to disclose any Confidential Information, the Receiving Party shall disclose only that portion of the Confidential Information that, on the advice of the Receiving Party’s legal counsel, the Receiving Party is legally required to disclose and, on the Disclosing Party’s request, shall use commercially reasonable efforts to obtain assurances from the applicable court or other authority having jurisdiction that such Confidential Information will be afforded confidential treatment.

  8. RELEASES

    1. Offer of Releases. From time to time, Licensor may provide the Licensee with new Releases applicable to the Application.
    2. Acceptance of Release.
      1. The Licensee is not obliged to accept or install a Release.
      2. If the Licensee elects not to accept or install a new Release, Licensor will not be liable for any loss or damage that the Licensee suffers as a result of any defects in the Application which are remedied by the Release;

  9. FEES

    1. The Application is “free-to-use” up to the generation of 5 ACL prediction analysis reports, after which the Fees are calculated based on the chosen plan detailed in the application and are payable monthly
    2. Subscription fees are processed through an external service, such as Apple or Google Pay (hereinafter “External Service”).

  10. EMBEDDED MATERIALS

    1. The Application may include software, content, data, or other materials, including related documentation, that are owned by Persons other than Licensor and that are provided to Licensee on Licensee terms that are in addition to and/or different from those contained in this EULA (”Third-Party Licences”). A list of all materials, if any, included in the Application and provided under Third-Party Licences can be found in the installation folder containing the Application. Ownership of all Intellectual Property Rights in such Third-Party Materials remains with the respective owners thereof. Licensee is bound by and shall comply with all Third-Party Licences. Any breach by Licensee or any of its Authorized Users of any Third-Party Licence is also a breach of this EULA.

  11. PUBLICITY

    1. If Licensee is not an individual, the Licensee grants Licensor the right to include the Licensee as a customer of Licensor in Licensor’s promotional material, including on its website.
    2. The Licensee may withdraw the rights given under section 11.1 by 30 days written notice to Licensor.

  12. TERM AND TERMINATION

    1. The Term of this Agreement commences when you subscribe to the Application and will continue in effect until terminated by Licensee or Licensor as set forth herein.
    2. Licensor may terminate this License immediately by notice in writing if:
      1. as applicable, the Licensee fails to pay the Fees by the due date;
      2. days of written notice from Licensor;
      3. if Licensee files an assignment in bankruptcy or has a bankruptcy order made against it under any bankruptcy or insolvency law, makes or seeks to make a general assignment for the benefit of its creditors or applies for, or consents to, the appointment of a trustee, receiver, receiver-manager, monitor, or custodian for all or a substantial part of its property;
    3. Furthermore, the Licensor may terminate this License immediately by notice in writing in accordance with Subsection 14.1 (c).
    4. Licensee may terminate this License at any time by logging into the Application and following the instructions to delete its account. However, Licensee will need to cancel or manage any External Service purchases through its External Service account to avoid any additional billing.
    5. Upon termination of this License for whatever reason:
      1. the Licensee must cease using the Application and Documentation and destroy all copies of Documentation.
      2. no expiration or termination shall affect Licensee’s obligation to pay all Fees that may have become due before such expiration or termination, or entitle Licensee to any refund; and
      3. Licensor will be discharged from any further obligations under this License.
    6. Termination is without prejudice to any rights Licensor may have as a result of breach of this License by the Licensee or an Authorised User.

  13. ASSIGNEMENT OR OTHER TRANSFER

    1. The Licensee can only assign this License to succeeding parties in the case of a merger, acquisition or change of control if:
      1. days of the assignment;
      2. the assignee agrees to be bound by the terms and conditions of this EULA; and
      3. upon assignment or transfer, the assigning licensee makes no further use of the Application and deletes or destroys all copies of the Application in its possession, custody or control.
    2. Any purported assignment or transfer of the Application by the Licensee other than in accordance with the requirements of this Section 13 will be void and will entitle Licensor to terminate this EULA in accordance with Section 12.
    3. Licensor may assign its rights and obligations under this EULA without the consent of the Licensee. Any permitted assignee shall be bound by the terms and conditions of this EULA.

  14. DISCLAIMER AND LIMITATION OF REMEDIES

    1. Licensor warrants to the Licensee that the Application conforms in all material respects to the Application Documentation, provided the Application is used in accordance with ordinary industry practices and conditions and not modified. Licensor does not make any other express or implied warranty hereunder and specifically does not warrant: (i) that the Application will operate uninterrupted, error-free, or achieve any particular result or (ii) that the Application will be free of vulnerability to intrusion or attack.
    2. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 1413.1, THE APPLICATION AND DOCUMENTATION ARE PROVIDED TO LICENSEE “AS IS” AND WITH ALL FAULTS AND DEFECTS WITHOUT CONDITION OR WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, LICENSOR, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL CONDITIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE APPLICATION AND DOCUMENTATION, INCLUDING ALL IMPLIED CONDITIONS AND WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET POSSESSION AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, THE LICENSOR PROVIDES NO CONDITION, WARRANTY, OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE LICENSED APPLICATION WILL MEET THE LICENSEE’S REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE OR WORK WITH ANY OTHER APPLICATION, APPLICATIONS, SYSTEMS, OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR FREE OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED..
    3. In no event will Licensor or its Affiliates, or any of its or their respective licensors or service providers, be liable to Licensee or any third party for:
      1. any: (i) use of the Application or Documentation; (ii) any interruption, delay, or inability to use the Application; (ii) lost revenues or profits; (iii) delays, interruption, or loss of services, business, or goodwill; (iv) loss or corruption of data; (v) loss resulting from system or system service failure, malfunction, or shutdown; (vi) failure to accurately transfer, read, or transmit information; (vii) failure to update or provide correct information; (viii) system incompatibility or provision of incorrect compatibility information; (ix) breaches in system security; (x) damage to hardware running the Application or degraded performance of tenanted virtual machines running along with the Application; or
      2. any consequential, incidental, indirect, special, punitive, or exemplary damages, in each case whether arising out of or in connection with this EULA, breach of contract, tort (including negligence), loss or corruption of data or interruption or otherwise, regardless of whether such damages were foreseeable and whether or not the Licensor was advised of the possibility of such damages.
    4. In no event will the collective aggregate liability of Licensor and its Affiliates, including any of its or their respective licensors and service providers, under or in connection with this EULA or its subject matter, under any legal or equitable theory, including breach of contract, tort (including negligence), strict liability, and otherwise, exceed the total amount paid to the Licensor pursuant to this EULA for up to twelve (12) months of the specific services that are the subject of the claim.
    5. The limitations set forth in Section 13.3 and Section 13.4 shall apply even if the Licensee’s remedies under this EULA fail of their essential purpose.
    6. The express warranty provided in Section 13.1 is limited to the Licensee and is not transferrable. Licensor grants no other warranty, either express or implied, with respect to the use of the Application.
    7. Nothing in this License is intended or will be construed as excluding or modifying any statutory rights, warranties or conditions which are applicable to this License or the Application and which by virtue of any legislation may not be modified or excluded. To the extent such legislation is applicable to Licensee’s license of the Application or is required by such legislation, any required warranty is limited in duration to ninety (90) days from the date of delivery and Licensor’s liability for any breach of any such warranty or condition shall be and is hereby limited to either: (a) the correction of any defect in such Application or Documentation as Licensor, at its sole discretion, may determine to be necessary to correct the defect. All limited warranties are void if failure of the Application has resulted from acts of God, accident, abuse, misapplication or electrical surge or any other cause beyond Licensor's control.

  15. INDEMNITY

    1. If the Application becomes or may become the subject of a claim of infringement of any third party’s Intellectual Property Rights, Licensor may, at its sole option and discretion:
      1. procedure for the Licensee the right to use the Application free of any liability;
      2. replace or modify the Application to make it non-infringing; or
      3. terminate this Agreement immediately by notice in writing and refund Fees related to the Application by the Licensee for a period of up to twelve (12) months.
    2. The remedies set out in Section 13.1 are the sole liability of Licensor and the exclusive remedy of the Licensee for any infringement of Intellectual Property Rights by Licensor in the Application or any other items provided by Licensor under this EULA.
    3. The Licensee acknowledges and agrees that if the Licensee breaches this EULA and Licensor or a third-party owner of Embedded Materials suffers any loss, damage, cost or expense directly or indirectly as a result of the breach, Licensor or the third-party owner of the Embedded Materials may bring an action directly against the Licensee.
    4. The Licensee will indemnify Licensor and hold Licensor harmless against all costs, expenses, losses and claims made against Licensor as a result of any infringement of Licensor’s or any third-party’s Intellectual Property Rights arising from the Licensee’s or an Authorised User’s modification of any part of the Application or other items provided by Licensor or any breach of this EULA.
    5. Licensee shall indemnify and hereby holds harmless Licensor from any and all claims, suits, proceedings, demands, actions of any nature or kind whatsoever, damages, judgments, costs, expenses and fees (including, without limitation, reasonable legal fees and expenses) arising out of, as a result of, or relating in any manner whatsoever to i) Licensee’s breach of the License within the scope of this Agreement ; ii) a third-party claim relating to the use in any manner whatsoever of the Application (including without limitation, i) arising out of, as a result of, or in connection with the result and/or accuracy of ACL injury prediction risk obtained from the Application; or ii) any injury sustained while using the Application ).

      In the event of a claim by a third party against the Licensor when entitled to indemnification under this Agreement, Licensor shall promptly notify the Licensee in writing of the claim and the Licensee shall undertake, at its sole expense, but under the control and supervision of Licensor, the defense of the claim and its settlement. The Licensor shall cooperate with the Licensee and may, at its option and expense, be represented in any such action or proceeding by counsel of its choice. If counsel is chosen by the Licensor, the Licensee shall not be liable for any of those costs or expenses incurred by the Indemnified Party without the Licensee’s written consent. The Licensee shall not settle any such claim unless such settlement fully and unconditionally releases the Licensor from all liability relating thereto, unless the Licensor otherwise agrees in writing.
    6. The Application may link to a website controlled by the Licensor, which provides additional resources, exercises, and information, including details about clinics offering specialized services. The Licensor does not guarantee the accuracy or effectiveness of the exercises, resources, or clinic services provided. You acknowledge that any engagement with the website or clinics linked through the Application is at your own risk.

  16. PRIVACY

    1. Licensor may collect certain Personal Information from the Licensee and you and the Authorised Users in connection with your and their use of the Application, and otherwise in connection with this EULA.
    2. Any Personal Information will be collected and used by Licensor in accordance with Licensor’s privacy policy (the “Privacy Policy”) as amended from time to time: hurtblocker.com/privacy.html
    3. You and, if an individual, Licensee, hereby consent to the collection, use and communication of your Personal Information as required or permitted by applicable law and to the extent described in the Privacy Policy. You and, if applicable, Licensee, acknowledge that the Privacy Policy has been brought to your attention and that you had the opportunity to review and discuss it prior to signing this Agreement. Licensee is responsible to obtain from the Authorized Users the necessary consent to permit Licensor to use their Personal Information in accordance with the Privacy Policy.
    4. You and Licensee hereby represent and warrant that prior to communicating to Licensor Personal Information concerning an individual: i) Licensee or you have obtained the necessary consent to permit Licensor to collect, use and disclose such Personal Information; or ii) collection, use and disclosure is permitted by applicable law. Licensee shall require, and is responsible for, its Authorized Users to comply with this Section 15.4.
    5. Licensee represents and warrants that it will comply with all applicable laws relating to the protection of personal information, including without limitation those applicable in each of the following jurisdictions, where applicable:

      CANADA: the Canadian Personal Information Protection and Electronic Documents Act (“PIPEDA”), as applicable, and all applicable Canadian provincial requirements governing the collection, use and disclosure of personally identifiable information;

      USA: the US Health Insurance Portability and Accountability Act (“HIPPA”), Fair Credit Reporting Act (“FCRA”), Family Educational Rights and Privacy Act (“FERPA”), The Gramm-Leach-Bliley Act (“GLBA”), Electronic Communications Privacy Act of 1986 (“ECPA”), Children's Online Privacy Protection Act (“COPPA”) and the Video Privacy Protection Act (“VPPA”)

      EUROPE: the European General Data Protection Regulation 2016/679 (“GDPR”) requirements for how personal data is collected, processed and erased, including without limitation, clearly defining Licensee’s data privacy policies as well as the right to be forgotten. Licensee guarantees adequate protection of all personal data, guaranteeing that any transfer of personal is carried out in accordance with the legislation and it will apply all necessary contractual safeguards, including standard contractual clauses as provided by GDPR. Data will only be kept by Licensee for as long as it is strictly necessary in order to respect the purposes indicated or as required by law and consent may be revoked at any time
    6. Licensee further agrees to comply with all other applicable international requirements governing the collection, use and disclosure of personally identifiable information and store personally identifiable information in accordance with all applicable privacy laws.

  17. EXPORT

    1. You may not use or otherwise export or re-export the Licensed Application except as authorized by Canada law, United States law and the laws of the jurisdiction in which the Licensed Application was obtained. In particular, but without limitation, the Licensed Application may not be exported or re-exported (a) into any U.S.-embargoed countries or (b) to anyone on the U.S. Treasury Department's Specially Designated Nationals List or the U.S. Department of Commerce Denied Persons List or Entity List. By using the Licensed Application, you represent and warrant that you are not located in any such country or on any such list. You also agree that you will not use these products for any purposes prohibited by United States law, including, without limitation, the development, design, manufacture, or production of nuclear, missile, or chemical or biological weapons.

  18. FORCE MAJEURE

    1. No Breach or Default. In no event will either party be liable or responsible to the other party, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, when and to the extent such failure or delay is caused by or results from acts beyond the affected party’s reasonable control, including:
      1. acts of God;
      2. flood, fire, earthquake, tsunami or explosion;
      3. war, terrorism, invasion, riot or other civil unrest;
      4. actions, embargoes or blockades in effect on or after the date of this Agreement; or
      5. national or regional emergency.
      (each of the foregoing, a “Force Majeure Event”).
    2. Affected Party Obligations. A party whose performance is affected by a Force Majeure Event shall give notice to the other party, stating the period of time the occurrence is expected to continue and shall use diligent efforts to end the failure or delay and minimize the effects of such Force Majeure Event.
    3. Right to Terminate. The non-affected party may terminate this Agreement if such failure or delay continues for a period of thirty (30) days or more.

  19. SURVIVAL

    1. The provisions of clause 1 (Definitions), 3 (Use Restrictions), 6 (Intellectual Property Rights), 11 (Licensing Mechanisms and Penalties), 12 (Term and Termination), 14 (Disclaimer and Limitation of Remedies), 16 (Privacy), 18 (Restrictions), 20 (General) shall survive expiry or termination of this EULA.

  20. GENERAL

    1. Further Assurances. Each Party shall, upon the reasonable request of the other Party, execute such documents and perform such acts as may be necessary to give full effect to the terms of this Agreement.
    2. Notice of Breach. The Licensee must immediately advise Licensor if at any time the Licensee becomes aware of any breach of its obligations under this EULA.
    3. Governing Law. This EULA and all related documents, and all matters arising out of or relating to this EULA, whether sounding in contract, tort, or statute, are governed by, and construed in accordance with, the laws of the Quebec and the federal laws of Canada applicable therein. Specifically excluded from application to this Agreement is that law known as the United Nations Convention on the International Sale of Goods.
    4. Choice of Forum. Any legal suit, action, litigation, or proceeding of any kind whatsoever in any way arising out of, from, or relating to this EULA, shall be instituted in the courts of the Quebec and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, litigation, or proceeding. Service of process, summons, notice, or other document by mail to such Party’s address set forth herein shall be effective service of process for any suit, action, litigation, or other proceeding brought in any such court. Each Party agrees that a final judgment in any such suit, action, litigation, or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.

      Relationship of the Parties. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither Party shall have authority to contract for or bind the other party in any manner whatsoever.
    5. Notices. Unless otherwise provided for in this Agreement, all notices, requests, consents, claims, demands, waivers and other communications under this Agreement shall be in writing and shall be deemed to have been given (a) when delivered by hand with written confirmation of receipt; (b) when received by the addressee if sent by a nationally recognized overnight courier; or (c) on the date sent by facsimile or email, in either case, with confirmation of transmission. Such communications must be sent to the respective parties at the addresses indicated below (or at such other address for a Party as shall be specified in a notice given in accordance with this Section 19.5).

      If to Licensor: Semperform Innovation Inc.
      [email protected]

      If to Licensee: At the coordinates indicated in Licensee’s account information
    6. Interpretation. For purposes of this Agreement: (a) the words “include”, “includes” and “including” are deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; (c) the words “herein”, “hereof”, “hereby”, “hereto” and “hereunder” refer to this Agreement as a whole; (d) words denoting the singular have a comparable meaning when used in the plural, and vice-versa; and (e) words denoting any gender include all genders. The exhibits, schedules, attachments and appendices referred to herein are an integral part of this Agreement to the same extent as if they were set forth verbatim herein.
    7. Headings. The headings in this Agreement are for reference only and shall not affect the interpretation of this Agreement
    8. Entire Agreement. This Agreement, together with any other documents incorporated herein by reference, constitutes the sole and entire agreement of the parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter. In the event of any conflict between the terms and provisions of this Agreement and those of any exhibit, schedule, attachment or appendix other than an exception expressly set forth as such therein, the following order of precedence shall govern: (a) first, this Agreement, excluding its exhibits, schedules, attachments and appendices; (b) second, the exhibits, schedules, attachments and appendices to this Agreement as of the Effective Date; and (c) third, any other documents incorporated herein by reference.
    9. Modifications. Licensor reserves the right to change or modify the terms and conditions of this Agreement immediately upon written notice to you. If any changes are made to this Agreement, such changes will: (a) only be applied prospectively; and (b) not be specifically directed against You or your Authorized Users and will apply to all similarly situated customers using the Product and/or the Services, as applicable. Continued use of the Application after the effective date of any change to this Agreement constitutes your acceptance of such change but does not affect any termination rights contained herein.
    10. No Third-Party Beneficiaries. This Agreement is for the sole benefit of the Parties hereto and their respective permitted successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other Person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
    11. Waiver. No waiver by any Party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
    12. Severability. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction
    13. Choice of Language. The parties hereby acknowledge that this Agreement does not constitute a contract of adhesion within the meaning of Section 55 of the Charter of the French language and article 1379 of the Civil Code of Québec. For greater certainty, it is understood that the essential stipulations contained herein have not been imposed or drawn up by either one of the parties, on their behalf or upon their instructions, that the parties have had the opportunity to negotiate said essential stipulations and to seek the assistance of legal counsel in that regard, and that the parties have duly negotiated said essential stipulations prior to the execution of the present Agreement. The parties have expressly requested and it is their wish that this Agreement and all documents related thereto be drafted in the English language. / Les parties reconnaissent que le présent contrat ainsi que tout document connexe n'est pas un contrat d'adhésion au sens de l’article 55 de la Charte de la langue française et de l'article 1379 du Code civil du Québec. Pour plus de certitude, il est entendu que les stipulations essentielles contenues aux présentes n'ont pas été imposées par l’une des parties ou rédigées par elle, pour son compte ou suivant ses instructions, que les parties ont eu l'occasion de négocier lesdites stipulations essentielles et de demander l'aide d'un conseiller juridique à cet égard, et que les parties ont dûment négocié lesdites stipulations essentielles avant la signature du présent contrat. Les parties ont expressément demandé et souhaitent que le présent contrat, tout document connexe et tous les documents y afférents soient rédigés en anglais.
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