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The ZEPHYRx Platform, including the Breathe Easy App, is licensed, not sold, to you. Your license to the App is subject to your acceptance of this Software End User License Agreement (“Agreement”).

BY INSTALLING OR USING ANY OR ALL PORTION OF THE SOFTWARE YOU ACCEPT ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT.  YOU AGREE THAT THIS AGREEMENT IS LIKE ANY WRITTEN NEGOTIATED AGREEMENT SIGNED BY YOU.  THIS AGREEMENT IS ENFORCEABLE AGAINST YOU AND ANY LEGAL ENTITY THAT OBTAINED THE SOFTWARE AND ON WHOSE BEHALF, IT IS USED.

ZEPHYRX OWNS ALL INTELLECTUAL PROPERTY IN THE SOFTWARE. ZEPHYRx PERMITS YOU TO COPY, DOWNLOAD, INSTALL, USE, OR OTHERWISE BENEFIT FROM THE FUNCTIONALITY OF THE SOFTWARE ONLY IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT.  

1.    Definitions

"ZEPHYRx" means ZEPHYRx LLC., a Delaware corporation headquartered at 2 Third Street, Suite 201, Tory, New York 12180.

"Computer" means a virtual or physical computing device including mobile phones and tablets that accepts information in digital or similar form and manipulates it for a specific result based on a sequence of instructions.

"Software" means (a) all of the information with which this agreement is provided, including but not limited to: (i) ZEPHYRx Platform and Applications software and all other software files and other computer information; (ii) sample and stock photographs, images, sounds, clip art and other artistic works bundled with ZEPHYRx software and not obtained from ZEPHYRx through a separate service (unless otherwise noted within that service) or from another party through a separate service ("Content Files"); and (iii) related explanatory written materials and files ("Documentation"); and (b) any modified versions and copies of, and upgrades, updates and additions to, such information, provided to you by ZEPHYRx at any time, to the extent not provided under separate terms (collectively, "Updates").

2.    Software License

If you obtained the Software from ZEPHYRx or one of its authorized licensees, ZEPHYRx grants you a non-transferable and non-exclusive license to install and use the Software in a manner consistent with its design and documentation in accordance with this Agreement.

General Use. You may install and use one copy of the Software in accordance with the documentation.

Copy. You may not copy any part of the Software.  You may make a backup copy of the Software, provided your backup copy is not installed or used for other than archival purposes. You may only use the backup copy if the original copy of the Software is no longer usable and the only way to use the Software is to reinstall the Software via the backup copy.

Documentation. You may make copies of the documentation for your own internal use in connection with use of the Software in accordance with this agreement but no more than the amount reasonably necessary. Any permitted copy of the documentation that you make must contain the same copyright and other proprietary notices that appear on orin the Documentation.

Usage Data.  You agree that ZEPHYRx will have access to aggregated and de-identified clinical and utilization data in respect of the use of the ZEPHYRx Platform (the “Usage Data”). Specifically, such Usage Data will include the ZEPHYRx firmware version, the ZEPHYRx application software version, error log files, settings, usage durations, inhale and exhale volumes, test results, error rates, and other similar information.  Usage Data is de-identified in compliance with the Safe Harbor Method identified by the Department of Health and Human Services in 42 CFR 164.514(b)(2), and the parties agree that Usage Data shall not be considered PHI.  ZEPHYRx may use Usage Data for research, to improve the functionality of Software, and for other legally permissible purposes.

3.    Intellectual Property Ownership

The Software and any authorized copies that you make are the intellectual property of and are owned by ZEPHYRx.  The structure, organization, and source code of the Software are the valuable trade secrets and confidential information of ZEPHYRx and its suppliers.  The Software is protected by law, including but not limited to the copyright laws of the United States and other countries, and by international treaty provisions. Except as expressly stated herein, this agreement does not grant you any intellectual property rights in the Software and all rights not expressly granted are reserved by ZEPHYRx.  

4.    Restrictions and Requirements

Notices.  Any permitted copy of the Software that you make must contain the same copyright and other proprietary notices that appear on or in the Software.

Use Obligations. You agree that you will not use the Software other than as permitted by this Agreement and that you will not use the Software in a manner inconsistent with its design or documentation.  Any email address you provide in using the Software may not be a general mailbox email address (e.g.info@yourorg.com) and must instead be an address specific to you as an individual.

No Modifications.   You may not modify, port, adapt, or translate the Software.

Other Restrictions.  You will NOT: (i) reverse engineer, disassemble, decompile or otherwise attempt to discover the source code or underlying trade secrets, ideas, or algorithms of any of the software licensed hereunder and/or comprising any part of the Software; (ii) lease, distribute, license, sell or otherwise commercially exploit any of part of the Software or make the Software available to a third party other than as contemplated in this Agreement, including but not limited to using the Software for time sharing, service bureau, or other similar purposes; (iii) use the Software on behalf of any third parties except in connection with the delivery of healthcare services to patients; (iv) attempt to gain unauthorized access to the Software or its related systems or networks; (v) access or use the Software for the purpose of developing a competing product or service; or (vi) permit anyone else, to engage, directly or indirectly, in any of the activities described in the foregoing subparts (i) through (vi).  All the limitations and restrictions on use of the Software in this Agreement will also apply to any software and documentation that is part of or provided through this Agreement.  ZEPHYRx may restrict or prohibit use of or access to the Software if ZEPHYRx reasonably suspects that any use or access of the Software is or may be in breach of thisAgreement.  

5.    Updates

ZEPHYRx may modify or update the Software from time to time with notification provided to you via the ZEPHYRx.com website.  No other use of the previous version(s) of the Software is permitted after installation of an Update.  Updates may be licensed to you by ZEPHYRx with additional or different terms as indicated.

6.    Limited Warranty

ZEPHYRx warrants that the Software will perform substantially in accordance with the documentation for the ninety (90) day period following receipt of the Software when used on the recommended operating system and hardware configuration.  All warranty claims must be made, along with proof of purchase, to ZEPHYRx within the ninety (90) day period. If the Software does not perform substantially in accordance with the documentation, the entire liability of ZEPHYRx and its affiliates and your exclusive remedy will be limited to either, at ZEPHYRx's option, replacement of the Software or refund of the license fee you paid for the Software, if any.  YOU MAY HAVE ADDITIONAL RIGHTS UNDER LAW IN YOUR JURISDICTION.  ZEPHYRx DOES NOT SEEK TO LIMIT YOUR WARRANTY RIGHTS TO ANY EXTENT NOT PERMITTED BY LAW.

7.    Warranty Disclaimer

THE LIMITED WARRANTY IN SECTION 6 IS THE ONLY WARRANTY OFFERED BY ZEPHYRx.  THE LIMITED WARRANTY IN SECTION 6 AND ANY STATUTORY WARRANTY AND REMEDY THAT CANNOT BE EXCLUDED OR LIMITED UNDER LAW ARE THE ONLY WARRANTIES APPLICABLE TO THE SOFTWARE. TO THE EXTENT NOT PROHIBITED BY LAW, ZEPHYRx DISCLAIMS ALL WARRANTIES, CONDITIONS, REPRESENTATIONS, AND TERMS, EXPRESS OR IMPLIED, WHETHER BY STATUTE, COMMON LAW, CUSTOM, USAGE, OR OTHERWISE AS TO ANY MATTER, INCLUDING BUT NOT LIMITED TO PERFORMANCE, SECURITY, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, INTEGRATION, MERCHANTABILITY, QUIET ENJOYMENT, SATISFACTORY QUALITY, AND FITNESS FOR ANY PARTICULAR PURPOSE. OTHER THAN SUCH OFFERED AND STATUTORY WARRANTIES AND REMEDIES, ZEPHYRx PROVIDES THE SOFTWARE AND ACCESS TO ANY WEBSITES, AND ZEPHYRx ONLINE SERVICES “AS-IS” AND “AS AVAILABLE” WITH ALL FAULTS AND WITHOUT WARRANTY.  THIS DISCLAIMER OF WARRANTY MAY NOT BE VALID IN SOME JURISDICTIONS AND ZEPHYRx DOES NOT SEEK TO LIMIT YOUR WARRANTY RIGHTS TO ANY EXTENT NOT PERMITTED BY LAW.

The provisions of Sections 7 and Section 8 will survive the termination of this agreement, however caused, but this will not imply or create any continued right to use the Software after termination of this agreement.

8.    Limitation of Liability

TO THE EXTENT NOT PROHIBITED BY LAW, ZEPHYRx, ITS AFFILIATES, AND SUPPLIERS WILL NOT BE LIABLE TO YOU FOR PERSONAL INJURY OR ANY LOSS, DAMAGES, CLAIMS, OR COSTS WHATSOEVER, INCLUDING ANY CONSEQUENTIAL, INDIRECT OR INCIDENTAL DAMAGES, ANY LOST PROFITS OR LOST SAVINGS, OR ANY DAMAGES RESULTING FROM, ARISING OUT OF, OR RELATED TO YOUR USE OF OR INABILITY TO USE THE SOFTWARE, REGARDLESS OF THE THEORY OF LIABILITY AND EVEN IF ZEPHYRx HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS, DAMAGES, CLAIMS, OR COSTS.

IN NO EVENT SHALL ZEPHYRX’S AGGREGATE LIABILITY UNDER OR IN CONNECTION WITH THIS AGREEMENT EXCEED THE AMOUNT PAID FOR THE SOFTWARE, IF ANY.

THE FOREGOING LIMITATIONS AND EXCLUSIONS APPLY TO THE EXTENT PERMITTED BY APPLICABLE LAW INYOUR JURISDICTION.  

9.    General

Export Rules.  You acknowledge that the Software is subject to the U.S. Export Administration Regulations and other export laws, restrictions, and regulations (collectively, the "ExportLaws") and that you will comply with the Export Laws.  You will not use, transfer, export, or re-export the Software, directly or indirectly, to:

●     any countries that are subject to US export restrictions ("Embargoed Country"),

●     any end user who you know or have reason to know will utilize them in the design, development or production of nuclear, chemical or biological weapons, or rocket systems, space launch vehicles, and sounding rockets, or unmanned air vehicle systems (each, a"Prohibited Use"), or

●     any end user who has been prohibited from participating in the U.S. export transactions by any federal agency of the U.S. government (each, a "Sanctioned Party"), in addition, you are responsible for complying with any local laws in your jurisdiction which may impact your right to import, export or use the Software.You represent and warrant that

                        i.        you are not a citizen of, or located within, an Embargoed Country,

                      ii.        will not use the Software for a Prohibited Use, and

                     iii.        are not a Sanctioned Party.

All rights to use the Software are granted on condition that such rights are forfeited if you fail to comply with the terms of this agreement.

Governing Law.  This Agreement and the relationship between you and ZEPHYRx shall be governed by the laws of the State of New York, excluding its conflicts of law provisions.  You and ZEPHYRx agree to submit to the personal and exclusive jurisdiction of the courts located within Albany County, New York, to resolve any dispute or claim arising from this Agreement.  

If (a) you are not a U.S. citizen; (b) you do not reside in the U.S.; (c) you are not accessing the Service from the U.S.; and (d) you are a citizen of one of the countries identified below, you hereby agree that any dispute or claim arising from this Agreement shall be governed by the applicable law set forth below, without regard to any conflict of law provisions, and you hereby irrevocably submit to the non-exclusive jurisdiction of the courts located in the state, province or country identified below whose law governs:  If you are a citizen of any European Union country or Switzerland, Norway or Iceland, the governing law and forum shall be the laws and courts of your usual place of residence.

Termination. This Agreement is effective until terminated by ZEPHYRx.  Your rights under this Agreement will terminate automatically if you fail to comply with any of its terms.

GeneralProvisions. If any part of this agreement is found void and unenforceable, it will not affect the validity of the balance of this agreement, which will remain valid and enforceable according to its terms.  This agreement may only be modified in writing, signed by an authorized officer of ZEPHYRx.  This is the entire agreement between ZEPHYRx and you relating to the Software and it supersedes any prior representations, discussions, undertakings, communications, or advertising relating to the Software.

Updated: 2023