Oxa App End User License Agreement

This End User License Agreement (“Agreement”) is a binding agreement between you (“End User” or “you”) and Nanoleq AG (“Company”). This Agreement governs your use of the Oxa Life app, (including all related documentation, the “Application”). The Application is licensed, not sold, to you. Read this Agreement carefully before using the Application.

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BY COMPLETING THE SIGN-UP PROCESS, YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENT THAT YOU ARE 16 YEARS OF AGE OR OLDER; AND (C) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT USE THE APPLICATION AND DELETE IT FROM YOUR MOBILE DEVICE.

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1. License Grant. Subject to the terms of this Agreement, Company grants you a limited, non-exclusive, revocable, personal, and nontransferable license to:some text
   1. download, install, and use the Application for your personal, non-commercial use on a single mobile device owned or otherwise controlled by you (“Mobile Device”) strictly in accordance with the Application’s documentation;
   2. connect any Oxa wearable product (each, a “Product”) to the Application; and
   3. access and use on such Mobile Device the Content and Services (as defined in 5) made available in or otherwise accessible through the Application, strictly in accordance with this Agreement, the Privacy Policy, and the General Terms & Conditions applicable to such Content and Services as set forth in 5.
2. License Restrictions. You shall not: some text
   1. copy the Application, except as expressly permitted by this license;
   2. modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Application;
   3. reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Application or any part thereof (except to the extent that this restriction is expressly prohibited by law);
   4. remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Application, including any copy thereof;
   5. rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Application, or any features or functionality of the Application, to any third party for any reason, including by making the Application available on a network where it is capable of being accessed by more than one device at any time; or
   6. remove, disable, circumvent, or otherwise create or implement any workaround to any copy protection, rights management, or security features in or protecting the Application.
   7. display, modify, reproduce, or distribute any of the Stock Files included with the Application or distribute animations or audio output of the Software. In the event that the Documentation allows you to display the Stock Files, you shall not distribute the Stock Files on a stand-alone basis, i.e., in circumstances in which the Stock Files constitute the primary value of the product being distributed. you should review the "Readme" files associated with the Stock Files that you use to ascertain what rights you have with respect to such materials. Stock Files may not be used in the production of libelous, defamatory, fraudulent, infringing, lewd, obscene, or pornographic material or in any otherwise illegal manner. You may not register or claim any rights in the Stock Files or derivative works thereof.
   8. use the Application or other Company Products for life critical or medical purposes. While the signals generated by the Application are of very high quality, the signals are not of diagnostic quality. In case that you suffer or suspect suffering from a cardiac, blood pressure or lung condition (e.g. coronary disease, COPD, obstruction of airways or asthma but not limited to) or other medical condition which may affect your physical performance, if you have abnormal unexpected feelings, physical or mental, during exercises or if you use a pacemaker or other electronic medical device, you should consult a medical doctor before exercise and before using the Application or other Company Products or Services. This is in accordance with 12. Safety Information.
3. Reservation of Rights. You acknowledge and agree that the Application is provided under license, and not sold, to you. The structure, organization, and code of the Application are the valuable trade secrets and confidential information of the Company and/ or its licensors and affiliates. You do not acquire any ownership interest in the Application under this Agreement, or any other rights thereto other than to use the Application in accordance with the license granted, and subject to all terms, conditions, and restrictions, under this Agreement. Company reserves and shall retain its entire right, title, and interest in and to the Application, including all copyrights, trademarks, and other intellectual property rights therein or relating thereto, except as expressly granted to you in this Agreement. Any copies which you are permitted to make pursuant to this Agreement must contain the same copyright and other proprietary notices that appear on the Application.
4. Collection and Use of Your Information. You acknowledge that when you download, install, or use the Application, Company may use automatic means (including, for example, cookies and web beacons) to collect information about your Mobile Device and about your use of the Application, including  system and application software, and peripherals. You also may be required to provide certain information about yourself as a condition to downloading, installing, or using the Application or certain of its features or functionality, and the Application may provide you with opportunities to share information about yourself with others. All information we collect through or in connection with this Application is subject to our Privacy Policy. By downloading, installing, using, and providing information to or through this Application, you consent to all actions taken by us with respect to your information in compliance with the Privacy Policy.
5. Content and Services. The Application may provide you with access to Company’s website located at www.oxalife.com (the “Website”) and products and services accessible thereon, and certain features, functionality, and content accessible on or through the Application may be hosted on the Website or third-party services and websites (collectively, “Content and Services”). Your access to and use of such Content and Services are governed by the Privacy Policy and General Terms & Conditions, which are incorporated herein by this reference. Your access to and use of such Content and Services may require you to acknowledge your acceptance of such Privacy Policy, and your failure to do so may restrict you from accessing or using certain of the Application’s features and functionality. Any violation of such Privacy Policy will also be deemed a violation of this Agreement.
6. Updates. Company may from time to time in its sole discretion develop and provide Application updates, which may include upgrades, bug fixes, patches, other error corrections, and/or new features (collectively, including related documentation, “Updates”). Updates may also modify or delete in their entirety certain features and functionality. You agree that Company has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality. Company will not be liable if for any reason all or any part of the Application is unavailable at any time or for any period. Based on your Mobile Device settings, when your Mobile Device is connected to the internet either:some text
   1. the Application will automatically download and install all available Updates; or
   2. you may receive notice of or be prompted to download and install available Updates.

You shall promptly download and install all Updates and acknowledge and agree that the Application or portions thereof may not properly operate should you fail to do so. You further agree that all Updates will be deemed part of the Application and be subject to all terms and conditions of this Agreement.

1. Intellectual Property Rights. Oxa is a trademark of Nanoleq AG. The technology and services used in and offered by the Products and the Application are protected by intellectual property rights, namely copyright, trademarks, designs, and patents. Nanoleq AG is and will remain the sole and exclusive owner of all rights (including, without limitation, intellectual property rights) in and to each product and service made available on and through the Application or www.oxalife.com, and any related specifications, instructions, documentation or other materials, including, without limitation, all related copyrights, patents, trademarks and other intellectual property rights. You do not and will not have or acquire any ownership of these intellectual property rights in or to the products or services made available through the Application or www.oxalife.com, or of any intellectual property rights relating to the Products or services.
2. Third-Party Materials. The Application 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 or services, including through third-party advertising (“Third-Party Materials”). You acknowledge and agree that Company is not responsible for Third-Party Materials, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect thereof. Company 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 and links thereto 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.
3. Prohibited Uses. In addition to other prohibitions as set forth herein, you are prohibited from using the Application or the Content and Services to:some text
   1. transmit, or procure the sending of any advertising or promotional material, including any “junk mail,” “chain letter,” “spam” or any other similar solicitation;
   2. systematically retrieve data or other content from the Application to create or compile, directly or indirectly, a collection, compilation, database, or directory without written permission from us;
   3. make any unauthorized use of the Application, including collecting usernames and/or email addresses of users by electronic or other means for the purpose of sending unsolicited email, or creating user accounts by automated means or under false pretenses;
   4. use a buying agent or purchasing agent to make purchases on the Website;
   5. advertise or offer to sell goods and services;
   6. engage in unauthorized framing of or linking to the Application or the Content and Services;
   7. engage in any automated use of the system, such as using scripts to send comments or messages, or using any data mining robots or similar data gathering and extraction tools;
   8. interfere with, disrupt, or create an undue burden on the Website or the networks or services connected to the Application;
   9. sell or otherwise transfer your profile;
   10. use the Application or the Content and Services as part of any effort to compete with us or otherwise use the Application or the Content and Services for any revenue-generating endeavor or commercial enterprise;
   11. upload or transmit (or attempt to upload or to transmit) viruses, Trojan horses, malicious code, or other material, including excessive use of capital letters and spamming (continuous posting of repetitive text) that interferes with any party’s uninterrupted use and enjoyment of the Application or modifies, impairs, disrupts, alters, or interferes with the use, features, functions, operation, or maintenance of the Application;
   12. upload or transmit (or attempt to upload or to transmit) any material that acts as a passive or active information collection or transmission mechanism, including without limitation, clear graphics interchange formats (“gifs”), 1×1 pixels, web bugs, cookies, or other similar devices (sometimes referred to as “spyware” or “passive collection mechanisms” or “pcms”);
   13. except as may be the result of standard search engine or Internet browser usage, use, launch, develop, or distribute any automated system, including without limitation, any spider, robot, cheat utility, scraper, or offline reader that accesses the Application or the Content and Services, or using or launching any unauthorized script or other software; or
   14. in any way that may be deemed a breach or violation of any of our Terms of Use Privacy Policy.  We reserve the right to terminate your use of the Application or any related Website for violating any of the prohibited uses.
5. Disclaimer of Warranties. THE APPLICATION IS PROVIDED TO END USER “AS IS” AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, COMPANY, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE APPLICATION, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, COMPANY PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE APPLICATION WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE, OR WORK WITH ANY OTHER SOFTWARE, 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.

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATIONS ON IMPLIED WARRANTIES OR THE LIMITATIONS ON THE APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.

1. Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL COMPANY OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, HAVE ANY LIABILITY ARISING FROM OR RELATED TO YOUR USE OF OR INABILITY TO USE THE APPLICATION OR THE CONTENT AND SERVICES FOR:some text
   1. PERSONAL INJURY, PROPERTY DAMAGE, LOST PROFITS, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OF DATA, LOSS OF GOODWILL, BUSINESS INTERRUPTION, COMPUTER FAILURE OR MALFUNCTION, OR ANY OTHER CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES.
   2. DIRECT DAMAGES IN AMOUNTS THAT IN THE AGGREGATE EXCEED THE AMOUNT ACTUALLY PAID BY YOU FOR THE APPLICATION.

THE FOREGOING LIMITATIONS WILL APPLY WHETHER SUCH DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR COMPANY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY SO SOME OR ALL OF THE ABOVE LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU.

1. Safety Information. some text
   1. Products nor the Application (collectively, “Oxa”) are not medical devices. Please note that Oxa is not designed to diagnose, treat, cure or prevent diseases or medical conditions. The Content and Services and other information and guidance provided via the Application are provided for informational purposes only and should not be used as an alternative to advice given by physicians or other health professionals. You must always consult a physician if you have any questions regarding a medical condition or any changes you wish to make to your activity or sleep based on information or guidance from Oxa.
   2. Your access to and use of such Content and Services are advised by the Safety Information, which are included upon delivery and incorporated herein by this reference. Your access to and use of such Content and Services may require you to acknowledge your acceptance of such Safety Information, and your failure to abide by the stated safety information is entirely at your own risk.
   3. If you think that you have a medical emergency, call your doctor or emergency services (112 Europe or 911 North America) immediately.
2. Indemnification. You agree to indemnify, defend, and hold harmless Company and its officers, directors, employees, agents, affiliates, successors, and assigns from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including attorneys’ fees, arising from or relating to your use or misuse of the Application or your breach of this Agreement, including but not limited to the content you submit or make available through this Application.
3. Export Regulation. The Application may be subject to US export control laws, including the Export Control Reform Act and its associated regulations. You shall not, directly or indirectly, export, re-export, or release the Application to, or make the Application accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. You shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Application available outside the US.
4. Governing Law. This Agreement and Your use of the Software is governed by the laws of Switzerland, excluding its conflicts of law rules. Your use of the Software may also be subject to other local, state, national or international laws. All disputes arising from or relating to this Agreement shall be settled by a single arbitrator appointed by the Swiss Chamber of Commerce. The arbitration procedure shall take place in Zurich, Switzerland in the English language.
5. Limitation of Time to File Claims. ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE APPLICATION MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES OTHERWISE SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
6. Entire Agreement. This Agreement, the Oxa user manual, and our Privacy Policy constitute the entire agreement between you and Company with respect to the Application and supersede all prior or contemporaneous understandings and agreements, whether written or oral, with respect to the Application.
7. Severability. If any provision of this Agreement is illegal or unenforceable under applicable law, the remainder of the provision will be amended to achieve as closely as possible the effect of the original term and all other provisions of this Agreement will continue in full force and effect.
8. Waiver. No failure to exercise, and no delay in exercising, on the part of either party, any right or any power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or power hereunder preclude further exercise of that or any other right hereunder. In the event of a conflict between this Agreement and any applicable purchase or other terms, the terms of this Agreement shall govern.
9. Changes To This Agreement.  We reserve the right to change, modify, or amend this Agreement at any time to reflect changes in our practices and service offerings.  If we modify this Agreement, such changes will be effective upon posting.  It is your obligation to check our current Agreement for any changes.  This Agreement may only be modified in writing.  Any ambiguities in the interpretation will not be construed against the drafter.

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