Mind Window EULA – iOS

Last Updated: April 03, 2020

University of Arizona – Tech Launch Arizona File: UA20-058

IMPORTANT – READ CAREFULLY: This Agreement is a legal agreement between (“LICENSEE”) (defined below in Background Paragraph 3) and The Arizona Board of Regents on behalf of the University of Arizona, (“ARIZONA”) only. ARIZONA, not Apple nor the App Store, is solely responsible for the Licensed Application and its content. By installing, copying, downloading, accessing or otherwise using the PROGRAM, LICENSEE agrees to be bound by the terms of this Agreement. If LICENSEE does not agree with the terms of this Agreement, do not install, access or use the PROGRAM.

BACKGROUND

1. The University of Arizona has developed a proprietary software application and related documentation, known as “Mind Window”, and further defined in ARIZONA Tech Launch Arizona file UA20-058, (hereinafter referred to as “PROGRAM”).

2. LICENSEE is responsible for acquiring and installing any third-party packages that may be required. ARIZONA accepts no responsibility for the performance of any third-party packages installed, either through operation of the PROGRAM or by LICENSEE. 

3. LICENSEE is either: (i) yourself if you accept the Agreement; or (ii) the legal entity you are authorized to represent in accepting this Agreement. You acknowledge that you have the authority to bind LICENSEE to this Agreement. 

4. LICENSEE desires to obtain and ARIZONA, consistent with its mission of education and research, desires to grant a license to access and use PROGRAM subject to the terms and conditions set forth below.

The parties therefore agree as follows:

I.  LICENSE

ARIZONA hereby grants to LICENSEE a non-exclusive, non-transferable right to use the PROGRAM, in executable form only, for non-commercial purposes only and subject to the terms and conditions of this Agreement. LICENSEE may use the PROGRAM on any Apple-branded Products that the LICENSEE owns or controls and as permitted by the Usage Rules set forth in the App Store Terms of Service.

II. LIMITATION OF LICENSE AND RESTRICTIONS

A. Except as expressly permitted by this agreement, no other use of PROGRAM is permitted, including, but not limited to: (i) use or access for the benefit of, on behalf of, or upon the request of any other party; (ii) reproduction, adaptations, and/or preparation of derivative works; (iii) sale, renting or loaning access to PROGRAM, passwords, or usernames; or (iv) selling services or data that result from the use of PROGRAM. LICENSEE covenants that the contents of PROGRAM are for LICENSEE’S use, and may not be resold, republished, or otherwise distributed to third parties in any form including, but not limited to, via an internet, intranet, or extranet site. ARIZONA, not Apple, is responsible for addressing any claims of the LICENSEE or any third party relating to the PROGRAM or the LICENSEE’s possession and/or use of the PROGRAM.

B. LICENSEE shall not assign this Agreement, and any attempt by LICENSEE to assign it shall be void from the beginning.  LICENSEE agrees to secure and protect access to PROGRAM in a manner consistent with the maintenance of ARIZONA’S rights in PROGRAM and to take appropriate action by instruction or agreement with its and LICENSEE’S employees who are permitted access to PROGRAM in order to satisfy LICENSEE’S obligations under this Agreement.  

III. TITLE AND OWNERSHIP

No ownership rights of ARIZONA in the PROGRAM are conferred upon LICENSEE by this Agreement.

IV. DISCLAIMER OF WARRANTY AND LIMITATION OF LIABILITY

A. PROGRAM IS PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE OR ANY WARRANTY THAT THE PROGRAM DOES NOT INFRINGE ANY THIRD-PARTY RIGHTS.  ARIZONA DOES NOT WARRANT THAT THE DATA AND FUNCTIONS CONTAINED IN PROGRAM ARE COMPLETE, ACCURATE OR ERROR-FREE; THAT THEY WILL MEET LICENSEE’S REQUIREMENTS; OR THAT OPERATION WILL BE UNINTERRUPTED OR ERROR FREE.  ARIZONA shall not be liable for special, indirect, incidental, or consequential damages with respect to any claim on account of or arising from this Agreement or use of PROGRAM, even if ARIZONA has been or is hereafter advised of the possibility of such damages.  Because some states do not allow certain exclusions or limitations on implied warranties or of liability for consequential or incidental damages, the above exclusions may not apply to LICENSEE.  In no event, however, will ARIZONA be liable to LICENSEE, under any theory of recovery, in an amount in excess of the license fee paid by LICENSEE under this Agreement. Additionally, Apple has no warranty obligation whatsoever with respect to the PROGRAM, and any claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty is the sole responsibility of ARIZONA and will be handled as defined above.

B. LICENSEE agrees that ARIZONA, and Apple, have no obligation to provide to LICENSEE any maintenance, support, or update services. Should ARIZONA provide access to and use of any revised versions of PROGRAM, LICENSEE agrees that this Agreement shall apply to such revised versions.

C. Without limiting in any way any of ARIZONA’S disclaimers of warranty and limitations of liability, LICENSEE covenants that it will carefully review any documentation or instructional material provided by ARIZONA and acknowledges that it is aware that PROGRAM is intended for noncommercial use only.  

D. For clarity, LICENSEE acknowledges THAT ARIZONA SHALL NOT BE LIABLE FOR ANY LOSS OF DATA CONTAINED OR ENTERED IN THE PROGRAM OR ANY DAMAGES OR COSTS ASSOCIATED WITH THAT LOSS.

V. TERM AND TERMINATION

A. If LICENSEE at any time fails to abide by the terms of this Agreement, ARIZONA shall have the right to immediately terminate the license granted herein, require the return or destruction of all copies of the PROGRAM from LICENSEE and certification in writing as to such return or destruction, and pursue any other legal or equitable remedies available.

VI.  MISCELLANEOUS

A. The parties agree that if a dispute arises between them concerning this Agreement, the Parties may be required to submit the matter to arbitration pursuant to Arizona law.

B. This Agreement shall be interpreted pursuant to the laws of the State of Arizona. Any arbitration or litigation between the Parties shall be conducted in Pima County, Arizona, and LICENSEE hereby submits to venue and jurisdiction in Pima County, Arizona. 

C. The Parties agree to be bound by state and federal laws and regulations governing equal opportunity and non-discrimination and immigration.

D. The Parties recognize that performance by ARIZONA may depend upon appropriation of funds by the State Legislature of ARIZONA. If the Legislature fails to appropriate the necessary funds, or if ARIZONA’S appropriation is reduced during the fiscal year, ARIZONA may cancel this Agreement without further duty or obligation. ARIZONA will notify LICENSEE as soon as reasonably possible after it knows of the loss of funds.

E. This Agreement is subject to the provisions of A.R.S. 38-511 and other conflict of interest regulations. Within three years of the date of access or download, ARIZONA may cancel this Agreement if any person significantly involved in initiating, negotiating, drafting, securing, or creating this Agreement for or on behalf of ARIZONA becomes an employee or consultant in any capacity of LICENSEE with respect to the subject matter of this Agreement. 

F. LICENSEE acknowledges that the PROGRAM is of United States origin and ARIZONA is not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country. ARIZONA is not listed on any U.S. Government list of prohibited or restricted parties. Licensee agrees to comply with all applicable international and national laws that apply to the PROGRAM, including the United States Export Administration Regulations, as well as end-user, end-use, and destination restrictions issued by the United States.

G. LICENSEE agrees to comply with applicable third-party terms of agreement when using the PROGRAM (e.g., that of the LICENSEE’s mobile data provider).

H. The parties agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of this Agreement, and that, upon the LICENSEE’s acceptance of the terms and conditions of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against the LICENSEE as a third-party beneficiary thereof.

I. The parties acknowledge that, in the event of any third party claim that the PROGRAM or the End-User’s possession and use of the PROGRAM infringes that third party’s intellectual property rights, ARIZONA, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.

J. End-User questions, complaints or claims with respect to the PROGRAM should be directed via email to ‘support@mindwindowapp.com’ or to the following address: NET Lab, 1503 E University Blvd. Building 68, Tucson, AZ 85721.