END-USER LICENSE AGREEMENT

IMPORTANT! READ CAREFULLY: This End-User License Agreement (“EULA”) is a legal agreement between you (either an individual or a single entity) and The Ohio State University, on behalf of its College of Medicine, Department of Internal Medicine, Division of Cancer Prevention and Control (“OSU”) who, in the course of research conducted at OSU by Dr. Roberto Benzo, developed this application for use in the course of the IRB-approved study #2023C0186 (the “Study”), which has been made at OSU and any associated materials provided therewith (collectively, the “Software”).

  1. ACCEPTANCE OF THIS EULA.  YOU AGREE TO BE BOUND BY THE TERMS OF THIS EULA UPON THE EARLIER OF: (A) INSTALLING, COPYING, OR OTHERWISE USING ANY OF THE SOFTWARE OR (B) ACKNOWLEDGING THAT YOU HAVE READ THIS EULA AND CLICKING BELOW TO ACCEPT THE TERMS OF THE EULA.  IF YOU DO NOT AGREE TO THE TERMS OF THIS EULA, DO NOT INSTALL, COPY, OR USE THE SOFTWARE, AND DO NOT CLICK TO INDICATE ACCEPTANCE OF THIS EULA.

  1. GRANT OF LICENSE.  This EULA is personal to you, and OSU grants to you and only you the following rights, provided that you comply with all terms and conditions of this EULA:

  1. License.  You may use, access, and/or display the Software.  To the extent applicable, the Software may be used, accessed and run on a computer, workstation, terminal or other device (“Computer”).

  1. Restrictions.  The license granted to you is limited and is non-sublicensable, non-transferable, non-assignable, and nonexclusive.  Your use of the Software is further limited in accordance with the restrictions noted when you agreed to this EULA or as otherwise provided in any documentation that accompanies the Software and you agree to abide by such restrictions.

  1. DIGITAL RIGHTS MANAGEMENT.  OSU may use digital rights management technology (“DRM”) in the Software to protect the integrity of its content (“Secure Content”) so that its intellectual property, including copyright, in such content is not misappropriated. You agree that you shall not, and shall not attempt to, remove, disable, circumvent or otherwise create or implement any workaround to, any DRM. If the DRM security has been compromised, OSU shall be entitled to revoke this License in accordance with Section 12 and/or your right to copy, display, use, install, run, and/or access Secure Content. OSU may also require you to upgrade some of the DRM components in the Software (“DRM Upgrades”) before accessing the Secure Content. When you attempt to access such content, OSU may notify you that a DRM Upgrade is required and then ask for your consent before the DRM Upgrade is downloaded. If you decline the DRM Upgrade, you will not be able to access Secure Content that requires the DRM Upgrade; however, you will still be able to access unprotected content and Secure Content that does not require the DRM Upgrade.

  1. RESERVATION OF RIGHTS, OWNERSHIP AND FEEDBACK.

  1. Reservation of Rights and Ownership.  The Software is proprietary to OSU and OSU reserves all rights not expressly granted to you in this EULA. You acknowledge and agree that (a) the Software is provided to you under license, not sold, (b) the Software is protected by copyright and other intellectual property laws and treaties, (c) OSU or those from whom it has licensed the Software retain their entire right, title and interest in and to the Software and all intellectual property rights arising out of or relating to the Software, (d) there are no implied licenses under this license and any rights not expressly granted to you hereunder are reserved by OSU and (e) you acquire no ownership or other interest (other than your license rights) in or to the Software.

  1. Feedback.  You may provide OSU with suggestions, ideas, enhancement requests, feedback, recommendations or other information relating to the Software (“Feedback”). Feedback shall not impose any confidentiality obligations on OSU. You agree that OSU is free to use, disclose, reproduce, license or otherwise distribute and exploit any Feedback as it sees fit, entirely without obligation or restriction of any kind on account of intellectual property rights or otherwise.

  1. LIMITATIONS ON REVERSE ENGINEERING, DECOMPILATION, DISASSEMBLY AND SHARING.  You agree not to (a) reverse assemble, reverse compile, reverse engineer, decompile, reduce the Software to a human-perceivable form or otherwise attempt to discover the object code, source code, non-public APIs or underlying ideas or algorithms of the Software in whole or in part, or assist others to do the same, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation, (b) publish, distribute, rent, lease, provide hosting services, sell, sublicense, assign or otherwise transfer or commercialize the Software or any part thereof, (c) modify, translate, copy, adapt or otherwise create derivative works or improvements, whether or not patentable, of the Software or any part thereof, or (d) remove or obscure any copyright, trademark or other proprietary notices or legends from any portion of the Software.  You may not transfer or make available or share your license credentials to others.  If you share or make such information available, this EULA may be terminated immediately by OSU, without refund, at OSU’s option, but without limitation to any other remedies OSU may have against you.  You agree to be financially responsible for any activity resulting from sharing or making your license credentials available to others.

  1. EXPORT RESTRICTIONS. You acknowledge that the Software is subject to U.S. export jurisdiction. You agree to comply with all applicable international and national laws that apply to the Software, including the U.S. Export Administration Regulations, as well as end-user, end-use, and destination restrictions issued by U.S. and other governments.  You represent and warrant that you are not a person or entity appearing on the lists published by the U.S. Department of Commerce, the U.S. Department of State, the U.S. Department of Treasury or any other list that may be published by the U.S. Government, as amended from time to time, that is prohibited from acquiring ownership or control of items under this EULA, or with which OSU is prohibited from doing business.

  1. PRIVACY.  To the extent that data uploaded by you contains protected health information, such data may be subject to appropriate HIPAA and HITECH regulations, restrictions, adherence to which is responsibility of You. You and OSU agree to comply with the applicable HIPAA Rules, including the Standards for Privacy of Individually Identifiable Health Information (the “Privacy Rule”) and the Standards for Security of Electronic Protected Health Information (the “Security Rule), under the Health Insurance Portability and Accountability Act of 1996, as amended by the Health Information Technology for Economic and Clinical Health Act (“HITECH”), and the implementing regulations promulgated thereunder (collectively, and as may be amended from time to time, “HIPAA”) as apply to the use of the Software.

  1. GOVERNMENT USES. In the event you are part of an agency, department, or other entity of the United States Government (“Government”), the use, duplication, reproduction, release, modification, disclosure or transfer of the Software is restricted in accordance with the Federal Acquisition Regulations as applied to civilian agencies and the Defense Federal Acquisition Regulation Supplement as applied to military agencies. The Software is a “commercial item,” “commercial computer software” and “commercial computer software documentation.” In accordance with such provisions, any use of the Software by the Government shall be governed solely by the terms of this EULA.

  1. CONSENT TO USE OF DATA. You agree that OSU and its affiliates may collect and use technical information gathered as part of the Support (defined below) provided to you, if any, related to the Software. OSU may use this information solely to improve the Software or other products provided by OSU or to provide customized services or technologies to you and will not disclose this information in a form that personally identifies you.

  1. ADDITIONAL SOFTWARE/SERVICES. This EULA applies to updates, supplements, add-on components, and/or Internet-based services components, of the Software that OSU may provide to you or make available to you after the date you obtain your initial copy of the Software, unless we provide other terms along with the update, supplement, add-on component, and/or Internet-based services component. OSU reserves the right to discontinue any Internet-based services provided to you or made available to you through the use of the Software.  However, this EULA does not entitle you to any support, upgrades, patches, enhancements, or fixes for the Software (collectively, “Support”) unless Support is arranged separately by you with OSU and an appropriate agreement and payment of any fees associated therewith are agreed upon.

  1. TERMINATION. Without prejudice to any other rights, OSU may terminate this EULA if you fail to comply with the terms and conditions of this EULA.  You may terminate this EULA at any time.  Any termination of this EULA shall also terminate the licenses granted hereunder.  Upon termination of this EULA for any reason, you shall delete, destroy and remove all copies of the Software and all component parts.  Upon request by OSU, you shall certify that such actions have occurred and OSU has the right upon request to inspect and audit your facilities to confirm the foregoing.  All accrued rights to payment and/or royalties shall survive termination of this EULA.

  1. WARRANTY DISCLAIMER.  The Software is not licensed under any warranty and OSU has no obligation to provide any support or maintenance for the Software. OSU PROVIDES THE SOFTWARE “AS IS” AND “WITH ALL FAULTS”, AND HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY (IF ANY) WARRANTIES, DUTIES OR CONDITIONS OF DESIGN, MERCHANTIBILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, QUIET POSSESSION, CORRESPONDENCE TO DESCRIPTION, OR NON-INFRINGEMENT WITH REGARD TO THE SOFTWARE. ALSO, THERE IS NO WARRANTY OR CONDITION OF RELIABILITY OR AVAILABILITY, OF ACCURACY OR COMPLETENESS OF RESPONSES, OF RESULTS, OF WORKMANLIKE EFFORT, PERFORMANCE, ACCURACY, WITH REGARD TO THE SOFTWARE OR OTHERWISE ARISING OUT OF THE USE OF THE SOFTWARE.  NO WARRANTY IS MADE THAT PRACTICE OF THE INFORMATION CONTAINED IN THE SOFTWARE WILL LEAD TO ANY PARTICULAR RESULT.

  1. INTELLECTUAL PROPERTY; CONTENT. As a condition of your use of the Software, you represent, warrant and covenant that you will not use the Software: (i) to infringe the intellectual property rights or proprietary rights, or rights of publicity or privacy, of any third party; (ii) to violate any applicable law, statute, ordinance or regulation; (iii) to disseminate information or materials in any form or format (“Content”) that is harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libelous, or otherwise objectionable; or (iv) to disseminate any software viruses or any other computer code, files or programs that may interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment. You, not OSU, remain solely responsible for all Content that you upload, post, email, transmit, or otherwise disseminate using, or in connection with, the Software. You acknowledge that all Content that you access and using the Software is at your own risk and you will be solely responsible for any damage to any party resulting therefrom.

  1. INDEMNITY.  You agree that OSU shall have no liability whatsoever for any use you make of the Software. If allowable by applicable law, You shall indemnify and hold harmless OSU and all of its trustees, officers, employees, agents, predecessors, successors, assigns, attorneys and representatives, from any claims, damages, liabilities, costs and fees (including reasonable attorney fees) arising from your use of the Software and any breach of the warranties and representations made by you herein.

  1. EXCLUSION OF INCIDENTAL, CONSEQUENTIAL AND CERTAIN OTHER DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WITH RESPECT TO ANY CAUSE OF ACTION RELATED TO OR ARISING OUT OF THIS EULA, WHETHER IN AN ACTION BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR ANY OTHER LEGAL THEORY, HOWEVER ARISING, IN NO EVENT SHALL OSU OR ITS AFFILIATES OR SUPPLIERS BE LIABLE FOR (A) ANY SPECIAL, INCIDENTAL, PUNITIVE, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER, (B) DAMAGES BASED ON LOST REVENUES OR PROFITS, LOSS OF BUSINESS OR GOODWILL, LOSS OR CORRUPTION CONFIDENTIAL OR OTHER INFORMATION, (C) BUSINESS INTERRUPTION, PERSONAL INJURY, LOSS OF PRIVACY, FAILURE TO MEET ANY DUTY INCLUDING OF GOOD FAITH OR OF REASONABLE CARE OR (D) ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF OR INABILITY TO USE THE SOFTWARE, THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT OR OTHER SERVICES, INFORMATON, CONTENT, OR SOFTWARE THROUGH THE SOFTWARE OR OTHERWISE ARISING OUT OF THE USE OF THE SOFTWARE, OR OTHERWISE EVEN IF OSU OR ANY AFFILIATE OR SUPPLIER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

  1. LIMITATION OF LIABILITY AND REMEDIES. NOTWITHSTANDING ANY DAMAGES THAT YOU MIGHT INCUR FOR ANY REASON WHATSOEVER (INCLUDING, WITHOUT LIMITATION, ALL DAMAGES REFERENCED IN SECTION 16 AND ALL DIRECT OR GENERAL DAMAGES IN CONTRACT OR ANYTHING ELSE), THE ENTIRE LIABILITY OF OSU AND ANY OF ITS SUPPLIERS UNDER ANY PROVISION OF THIS EULA AND YOUR EXCLUSIVE REMEDY HEREUNDER SHALL BE LIMITED TO THE LESSER OF: (A) THE ACTUAL DAMAGES YOU INCUR IN REASONABLE RELIANCE ON THE SOFTWARE OR (B) THE AMOUNT ACTUALLY PAID BY YOU FOR THE SOFTWARE MINUS FIFTEEN PERCENT (15%). THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS (INCLUDING SECTIONS 13, 16 AND 17) SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE.

  1. TERMS OF USE.  You hereby agree to abide by and comply with the Terms of this Agreement. The Software is provided by OSU in the course of the Study. There will be no charge to use the Software. You may not transmit any information or message that contains unlawful, threatening, fraudulent, libelous, defamatory, obscene or abusive information or language. This Software may not be used for any illegal or unethical activities. You may not transmit spam, copyrighted materials or other confidential information. Hacking, attempted access or other forms of inappropriate use or access or attempted access to unauthorized areas or information on this Software will lead to termination of use and potential legal prosecution. You will not use the software for any profit-making or commercial purposes.

  1. AUTHORITY.  By accepting the terms of this EULA below, you acknowledge that you have full authority to enter into this EULA and that if you are an employee of a company, you have full authority from such company to enter into this EULA and bind such company hereto. OSU may rely on such acknowledgment when entering into this EULA.

  1. GENERAL. This EULA (including the Terms of Use and any addendum or amendment to this EULA that is included with the Software or Upgrades) is the entire agreement between you and OSU relating to the Software and the support services (if any) and it supersedes all prior or contemporaneous oral or written communications, proposals, representations and warranties with respect to the Software or any other subject matter covered by this EULA. This EULA is independent of any additional agreement, waiver, release, or any other consent given or document you may be required to sign in the course of your participation in the Study and shall have no bearing on any terms contained therein. No waiver by OSU of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by OSU. The Software includes confidential information of OSU. You shall not use or disclose such confidential information in violation of this EULA.  You agree that a material breach of this Agreement would cause irreparable injury to OSU, and/or its licensors for which monetary damages would not be an adequate remedy and that OSU, and its licensors shall be entitled to temporary, preliminary and permanent injunctive relief against you, your officers or employees, without the requirement of posting a bond or proving actual damages, in addition to whatever remedies OSU might have at law.  Except as otherwise set forth in this EULA, no failure by OSU to exercise, or delay in exercising, any right, remedy, power or privilege arising from this EULA shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder by OSU preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. In any claim or dispute relating to this EULA shall be construed in accordance with the laws of the State of Ohio, exclusive of any choice of law or conflict of law provision. This EULA may only be amended, modified or supplemented by an agreement in writing signed by each party hereto. This EULA is personal in nature and you may not assign or transfer for any reason whatsoever (including, without limitation, by operation of law, merger, reorganization, or as a result of an acquisition or change of control involving you) without OSU’s prior written consent and any action or conduct in violation of the foregoing shall be void and without effect. Upon consent of any such assignment or transfer, this EULA and the restrictions herein shall be binding upon those to whom it is assigned or transferred.  OSU expressly reserves the right to assign this EULA and to delegate any of its obligations hereunder, in its sole discretion. If any provision of this EULA shall be adjudged by any court of competent jurisdiction to be illegal, unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable, but shall not affect any other term or provision of this EULA or invalidate or render unenforceable such term or provision in any other jurisdiction. Sections 4-8, 13-17 and 20 shall survive termination of this EULA.

Should you have any questions concerning this EULA, or if you desire to contact OSU for any reason, please use the following address DR. ROBERTO BENZO, PhD, THE OHIO STATE UNIVERSITY COLLEGE OF MEDICINE, DEPARTMENT OF INTERNAL MEDICINE, DIVISION OF CANCER PREVENTION AND CONTROL, 3650 Olentangy River Road, Suite 200, Columbus, OH 43214or on the World Wide Web at https://cancer.osu.edu/for-cancer-researchers/research/research-labs/lifestyle-lab.

  I acknowledge that I have read the terms of this EULA in its entirety.

  I ACCEPT the terms and conditions of this EULA and the Terms of Use and hereby AGREE to be bound thereby.

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