3M™ LITTMANN LEARNING APP END USER LICENSE AGREEMENT
Date of last revision: February 17, 2021
3M Company licensed the 3M App from CSD Labs International, Inc.
This is a legal agreement between you and 3M Company ("3M") regarding your use of the 3M™ Littmann Learning App ("3M App"), which includes all designs, text, graphics, images, logos, video, audio files, information, computer code, and other data or content that are provided on or accessed, utilized, or generated by the 3M App. Upon installation or use of the 3M App you agree to be bound by and comply with the terms of this 3M App End User License Agreement (this "EULA"). This EULA will be effective as of the earlier of the date that you first install or use the 3M App ("Effective Date") following the date of last revision above.
It is important that you carefully read and understand the terms and conditions of this EULA. BY INSTALLING OR USING THE 3M APP, OR BY INDICATING YOUR AGREEMENT TO THIS EULA BY CLICKING "ACCEPT" OR ANY SIMILAR MECHANISM, YOU ARE CONSENTING TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS EULA. IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS EULA, CLICK THE "NO" OR "CLOSE WINDOW" BUTTON AND DO NOT INSTALL OR USE THE 3M APP.
Notice Regarding Dispute Resolution: This EULA contains provisions that govern how claims you and 3M have against each other are resolved (see Sections 13, 17-18 (3M App is not Medical Software and 3M Does Not Provide Medical Advice; Disclaimer of Warranty; Limitation of Liability), Section 23 (Dispute Resolution), and Section 23 (Miscellaneous) below). It also contains an agreement to arbitrate, which will, with limited exception, require you to submit claims you have against 3M to binding and final arbitration, unless you opt-out of the agreement to arbitrate in accordance with Section 23(d). Unless you opt-out: (a) you will only be permitted to pursue claims against 3M on an individual basis, not as part of any class or representative action or proceeding and (b) you will only be permitted to seek relief (including monetary, injunctive, and declaratory relief) on an individual basis.
1. Ownership. The 3M App and the compilation (meaning the collection, arrangement, and assembly) of all data or content available on the App are the property of 3M its affiliates, and/or its licensors and may be protected under copyright, trademark, patent, and other laws or international treaty provisions. The 3M App is licensed, and not sold, to you under this EULA. You have no ownership rights in the 3M App or in any related intellectual property rights. Except for the rights expressly set forth in this EULA, 3M retains all right, title, and interest in and to the 3M App (including any changes, modifications, or corrections thereto). You agree to take all reasonable steps to protect the 3M App from unauthorized copying or use.
2. License. Subject to the terms and conditions of this EULA, 3M grants you a non-exclusive, non-transferable limited license (without right of sublicense) to download, install, and use with valid authentication credentials only the 3M App solely for educational purposes related to teaching and learning auscultation. You agree not to use or permit any Authorized User (defined below) to use the 3M App for any purposes beyond the scope of this EULA. 3M reserves any rights not expressly granted herein. Any use of the 3M App not specifically authorized under this EULA is prohibited. 3M has no responsibility whatsoever to furnish any maintenance and support services with respect to the 3M App.
3. Restrictions. You shall not, nor permit your Authorized Users or others to: (a) copy, modify, adapt, translate into any language, combine the 3M App with or incorporate the 3M App in, any other program, distribute, or create derivative works based on the 3M App without the prior written consent of 3M; (b) use any data mining, robots, scraping, or similar data gathering or extraction methods in connection with the 3M App; (c) assign this EULA or any of the rights or licenses granted under this EULA or sublicense, resell, rent, lease, or lend the 3M App to any person or entity; (d) decompile, disassemble, reverse engineer, or otherwise attempt to reconstruct, identify, derive, gain access to, or discover any source code, underlying ideas, underlying user interface techniques, or algorithms, or any part thereof, of the 3M App by any means whatsoever (including, but not limited to, bypassing or breaching any security device or protection used for or contained in the 3M App), except to the extent the foregoing restriction is prohibited by applicable law; (e) use the 3M App for the purposes of benchmarking or competitive analysis or for developing, using or providing a competing software product or service; or (f) attempt to interfere with, harm, steal from, scrape, or gain unauthorized access to the 3M App or technology and equipment supporting the 3M App. You also agree that you will use the 3M App only in a manner that complies with all applicable laws, regulations, and rules in the jurisdictions in which you use the 3M App. Any attempted sublicense, transfer, or assignment in violation of this EULA is void. You may not access the 3M App from a jurisdiction where it is illegal or unauthorized.
4. Your Account.
a. Securing Your Account. To use the 3M App, you may be asked to create an account. You agree that any information you provide to the 3M App or to 3M in connection with the 3M App will at all times be true and accurate. You agree that you will not create an account for anyone other than yourself without such other person's permission. To access your account or the 3M App, you may have login information, such as a username and password. As you will be responsible for all activity connected to your account and copy of the 3M App, you agree to use reasonable efforts to prevent unauthorized access to or use of your account or the 3M App and preserve the confidentiality of your login credentials and any device that you use in connection with the 3M App. If you have any reason to believe that your login information has been compromised, or that your account or personal copy of the 3M App have been accessed by a third party, you agree to immediately notify 3M by e-mail using firstname.lastname@example.org.
b. Consent to Electronic Communication. You agree that 3M or its service providers may contact you using any contact information you provide to the 3M App for customer service and administrative purposes. You agree that we may communicate with you electronically regarding security, privacy, and administrative issues relating to your use of the 3M App. We may send any of these communications to you by text messages (i.e., SMS) at the mobile device number you provide us. We may send such text messages to you using autodialer technology. To withdraw your consent from receiving electronic notice, please email us using email@example.com. Additionally, an unsubscribe link will be provided in all electronic communication, which you may click on to withdraw your consent from receiving electronic notice.
c. Authorized Users. “Authorized Users” are your authorized agents who are authorized to access or use the 3M App in connections with your use as permitted hereunder. You may modify the Authorized Users from time to time to substitute or delete Authorized Users by using the functionality built into the 3M App if available. Authorized Users shall safeguard User ID and Password information relating to the 3M App, and you bear all risk from improper access due to failures of such safeguarding. You are responsible for all activities conducted under the accounts of your Authorized Users and for your Authorized Users’ compliance with this Agreement. You shall be responsible for any and all use of the 3M App that is made through use of such User IDs and Passwords.
5. Subscription Pricing. You agree to pay for the 3M App in accordance with 3M’s subscription pricing in effect at the time of purchase.
6. Security Measures. The 3M App may contain technological measures designed to prevent unauthorized or illegal use of the 3M App. You acknowledge and agree that 3M may use these and other lawful measures to verify your compliance with the terms of this EULA and enforce 3M's rights, including without limitation all intellectual property rights, in and to the 3M App.
7. Suggestions. If you elect to provide or make available to 3M any suggestions, comments, ideas, improvements, or other feedback or materials related to the 3M App or otherwise (collectively, "Suggestions"), 3M will be free to use, disclose, reproduce, modify, license, transfer and otherwise utilize and distribute your Suggestions in any manner. You will be entitled to no compensation or credit for, nor gain any right, title or interest in or to, any 3M product that incorporated or otherwise is based on your Suggestions, including without limitation any upgrades or changes to the 3M App.
8. User Content. You expressly grant, and you represent and warrant that you have all rights necessary to grant, 3M a royalty-free, fully paid-up, fully-sublicensable (through multiple tiers of sublicensees), fully-transferable, perpetual, irrevocable, non-exclusive, worldwide license to use, distribute, modify, reproduce, publicly display, publicly perform and create derivative works of any information, data, materials, photographs, images, Suggestions, or content you provide to 3M ("User Content") for any purpose, including without limitation the purposes of (a) providing you access to certain 3M App functionality, (b) developing, maintaining, supporting or improving the 3M App, or (c) to provide you services in connection with your use of the 3M App.
10. Storage. The 3M App may provide functionality through which you are able to store User Content on the device on which you are using the 3M App. 3M will have no liability whatsoever to you or any third party for any failure of the 3M App to store any such information on such device.
12. Revisions and Errata. The materials appearing on or available through the 3M App and related services could include technical, typographical, or photographic errors. 3M does not warrant that any of the materials are accurate, complete, or current. 3M may make changes to the materials contained on or accessible through the 3M App and related services at any time without notice. 3M does not, however, make any commitment to update the materials.
13. 3M App is Not Medical Software and 3M Does Not Provide Medical Advice. YOU EXPRESSLY AGREE THAT THE 3M APP DOES NOT PROVIDE MEDICAL ADVICE AND THAT THE 3M APP IS NOT A MEANS FOR 3M TO PROVIDE YOU MEDICAL ADVICE. THE CONTENT AND INFORMATION PRESENTED TO YOU THROUGH THE 3M APP MAY NOT HAVE BEEN EVALUATED BY THE FOOD AND DRUG ADMINISTRATION AND IS NOT INTENDED TO BE AND SHOULD NOT BE USED IN PLACE OF (a) THE ADVICE OF YOUR DOCTOR OR OTHER HEALTHCARE PROVIDERS, (b) A VISIT, CALL OR CONSULTATION WITH YOUR DOCTOR OR OTHER HEALTHCARE PROVIDERS, OR (c) INFORMATION CONTAINED ON OR IN ANY PRODUCT PACKAGING OR LABEL. IF YOU HAVE ANY HEALTH-RELATED QUESTIONS OR IF YOU HAVE AN EMERGENCY, PLEASE CONTACT YOUR DOCTOR OR OTHER HEALTHCARE PROVIDER PROMPTLY OR SEEK ASSISTANCE BY DIALING 911. YOU SHOULD NEVER DISREGARD MEDICAL ADVICE OR DELAY SEEKING MEDICAL ADVICE BECAUSE OF ANY CONTENT OR INFORMATION PRESENTED TO YOU THROUGH THE 3M APP, AND YOU SHOULD NOT USE THE 3M APP FOR DIAGNOSING OR TREATING A HEALTH PROBLEM. YOUR USE OF THE 3M APP DOES NOT CONSTITUTE OR CREATE A DOCTOR-PATIENT, THERAPIST-PATIENT OR OTHER HEALTHCARE PROFESSIONAL RELATIONSHIP BETWEEN YOU AND 3M.
14. No Use for Children Under 13. You hereby affirm that you are over the age of 13, as the 3M App is not intended for children under 13. If you are under 13 years of age, then you may not use the 3M App. You further affirm that you are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations and warranties set forth in this EULA and to abide by and comply with this EULA.
15. Third Party Content and Functions. The 3M App may link to or provide access to content, applications, or websites that are controlled and maintained by third parties. 3M is not responsible for and does not endorse any features, content, advertising, products, services, or other materials on or available through other websites or applications. Upon your request, the 3M App may interact with and/or provide personal information to native functions/features of your device and/or third party applications ("External Functions") over which 3M may have no control. These External Functions may include the e-mail client, camera, geolocation functionality, calendar and contact functionality native to your mobile device. You assume all risk and 3M disclaims all liability arising from your use of such third party content and functions.
16. Indemnification. You agree to immediately notify 3M of and indemnify and hold harmless 3M, its affiliates, and each of their respective officers, directors, employees and agents from and against any claim or demand, including legal fees, due to or arising out of your use of the 3M App, your violation of this EULA or failure to comply with any law, rule, or regulation, your breach of any representation or warranty in this EULA or any allegation that User Content or other materials you submit to 3M infringe, misappropriate or otherwise violate the copyright, patent, trademark, trade secret or other intellectual property or other right of any third party.
17. Disclaimer of Warranty. THE 3M APP IS PROVIDED “AS IS” AND WITH ALL FAULTS, AND THE ENTIRE RISK AS TO THE USE AND PERFORMANCE OF THE 3M APP IS WITH YOU. SHOULD THE 3M APP PROVE DEFECTIVE, 3M DOES NOT HAVE ANY LIABILITY FOR THE SERVICING AND/OR REPAIR OF YOUR DEVICE OR THE 3M APP. 3M HEREBY DISCLAIMS ALL WARRANTIES OR CONDITIONS WITH RESPECT TO THE 3M APP, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OR CONDITIONS OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR USE OR PURPOSE. 3M DOES NOT WARRANT THAT THE 3M APP WILL MEET YOUR REQUIREMENTS IN ANY RESPECT, THAT THE OPERATION OR USE OF THE 3M APP WILL BE UNINTERRUPTED OR ERROR FREE, THAT ERRORS IN THE 3M APP CAN OR WILL BE CORRECTED, OR THAT 3M SERVICES OR DATA DERIVED FROM USE OF THE 3M APP OR CONTAINED WITHIN THE 3M APP WILL BE ACCURATE, COMPLETE, TIMELY, OR RELIABLE. 3M DOES NOT WARRANT THAT THE 3M APP WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION OR ON ANY SPECIFIC DEVICE, THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED, OR THAT THE 3M APP IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR DEVICE(S) OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF THE 3M APP. YOU ACKNOWLEDGE THAT THE PROVISIONS OF THIS SECTION ARE A MATERIAL INDUCEMENT AND CONSIDERATION TO 3M TO GRANT THE LICENSE CONTAINED IN THIS EULA AND TO PROVIDE YOU WITH ACCESS TO THE 3M APP.
18. Limitation of Liability. TO THE EXTENT PERMITTED BY LAW, IN NO EVENT SHALL 3M, ITS AFFILIATES, OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS BE LIABLE FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY, OR PUNITIVE DAMAGES, LOST REVENUE, LOST PROFITS, OR LOST OR DAMAGED DATA IN CONNECTION WITH OR ARISING OUT OF THIS EULA OR OTHERWISE, EVEN IF 3M, ITS AFFILIATES, OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE TOTAL AGGREGATE LIABILITY OF 3M, ITS AFFILIATES, OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS UNDER THIS EULA FOR ANY CAUSE OF ACTION OR REASON WHATSOEVER SHALL NOT EXCEED $100. THE FOREGOING LIMITATIONS WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSES OF ANY LIMITED REMEDY OF ANY KIND.
19. Exclusions. Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for certain damages. Accordingly, some of the above disclaimers, limitations and exclusions may not apply to you. To the extent that 3M may not, as a matter of applicable law, disclaim any warranty or limit or exclude any liability, the scope and duration of such warranty and the extent of 3M's liability shall be the minimum permitted under such applicable law.
20. Term and Termination. The term of this EULA shall commence on the Effective Date and continue for the duration of your subscription to the 3M App. You may terminate this EULA at any time by destroying all copies of the 3M App in your possession or under your control. 3M may immediately terminate this EULA, and/or your access to and use of the 3M App, or any portion thereof, at any time and for any reason, with or without cause, without prior notice. 3M reserves the right to refuse to provide the 3M App to you in the future. This EULA will automatically terminate upon your violation of any of the terms of this EULA. Upon termination of this EULA, all license rights granted to you shall immediately terminate and you must cease all use of the 3M App. However, all other provisions of the EULA shall survive such termination.
21. Export Laws. You acknowledge that the laws, rules and regulations of the United States restrict the export and re-export of commodities and technical data of United States origin, respectively. You agree that you will not export or re-export the 3M App in any form in violation of the laws of the United States, or any foreign jurisdiction. You represent and warrant that: (i) you are not located in a country that is subject to U.S. Government embargo, or that has been designated by the U.S. Government as a "terrorist supporting" country, and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
22. U.S. Government End Users. The 3M App is a "Commercial Item," as that term is defined at 48 C.F.R. § 12.212 or 48 C.F.R. §§227.7202-1 through 227.7202-4, as applicable, and, if applicable, the 3M App is being licensed to U.S. Government end users (i) only as a "Commercial Item," and (ii) only with those rights as are granted to all other end users pursuant to the terms and conditions herein.
23. Dispute Resolution.
a. Arbitration. The parties shall use their best efforts to settle any dispute, claim, question or disagreement directly through good faith negotiations, which shall be a precondition to either party initiating a lawsuit or arbitration. Except for disputes relating to 3M's intellectual property rights, or if you opt out of this agreement to arbitrate, all claims arising out of or relating to this EULA and your use of the 3M App shall be finally settled by binding arbitration administered by JAMS in accordance with the provisions of its commercial arbitration rules and any supplementary procedures for consumer-related disputes, excluding any rules or procedures governing or permitting class actions. The arbitrator, and not any court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to this EULA, including without limitation any claim that all or any part of this EULA is void or voidable. The arbitrator shall be empowered to grant whatever relief would be available in a court; provided, however, that the arbitrator will not have authority to award damages, remedies, or awards that conflict with this EULA. The arbitrator's award shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction. To the extent the filing fee for the arbitration exceeds the cost of filing a lawsuit, 3M will pay the additional cost. You also agree not to participate in claims brought in a private attorney general or representative capacity, or consolidated claims involving another person's account, if 3M is a party to the proceeding. This dispute resolution provision will be governed by the Federal Arbitration Act. The parties understand that, in some instances, the costs of arbitration could exceed the costs of litigation and that the right to discovery may be more limited in arbitration than in court.
b. Class Action Waiver. The parties further agree that any arbitration shall be conducted in their individual capacities only, and not as a class action or other representative action. If any court or arbitrator determines that the class action waiver set forth in this Section 23(b) is void or unenforceable for any reason, or that an arbitration can proceed on a class basis, then the arbitration provision set forth above shall be deemed null and void in its entirety and the parties shall be deemed to have not agreed to arbitrate disputes.
c. Litigation of Small Claims Court Claims. Notwithstanding the parties' decision to resolve all disputes through arbitration, either party may also seek relief in a small claims court for disputes or claims within the scope of that court's jurisdiction.
d. Right to Opt Out. You have the right to opt out and not be bound by the arbitration and class action waiver provisions set forth in this Section 23 by sending written notice of your decision to opt out to the following address: 3M Littmann Stethoscopes, 3M Company, 2510 Conway Ave., St. Paul, MN 55144, United States of America, or send an email to firstname.lastname@example.org.
The notice must be sent within 30 days following the Effective Date; otherwise, you shall be bound to arbitrate disputes in accordance with this EULA. If you opt out of these arbitration provisions, 3M also will not be bound by them. In addition, if you elect to opt out of these arbitration provisions, 3M may terminate your use of the 3M App.
e. Time Limitation on Claims. You agree that any claim you may have arising out of or related to your relationship with 3M and this EULA must be filed within one year after such claim arose; otherwise, your claim is permanently barred.
21. Changes to the EULA. 3M reserves the right to change or modify portions of this EULA at any time. If 3M does so, 3M will indicate at the top of the page the date this EULA was last revised. 3M will also notify you of any material changes in an email directed to the e-mail address which you have provided to 3M. Any such changes will become effective no earlier than fourteen (14) days after being posted, except that changes addressing new functions of the 3M App or changes made for legal reasons may become effective immediately. Your continued use of the 3M App after any such changes or modifications become effective constitutes acceptance of such changes or modifications. If you do not agree to abide by these or any future EULA, do not use or access (or continue to use or access) the App.
22. Changes to the 3M App. 3M may choose to provide updates to the 3M App, which may include upgrades, bug fixes, patches, other error corrections, and/or new features (collectively, including related documentation, "Updates"), from time to time in its sole discretion. Updates may also modify or delete in their entirety certain features and functionality of the 3M App. You acknowledge and agree that 3M has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality. 3M does not represent or warrant that any future Updates to the 3M App will be compatible with any hardware or software versions or applications (including any future versions or updates of your mobile device or its operating system). Based on your mobile device settings, when your device is connected to the internet, either the 3M App will automatically download and install all available Updates, or you may receive notice of or be prompted to download and install available Updates. You agree to promptly download and install all Updates and acknowledge and agree that the 3M App 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 3M App and be subject to the version of this EULA which is applicable as of the time you download (whether automatically or manually) or use any such Update to the 3M App.
23. Access to the 3M App and Wireless Carrier Charges. You acknowledge and agree that using the 3M App may require access to the internet via your wireless carrier, internet service provider or other method of internet access, and that access to the 3M App may not be available if you do not have an internet connection or for other reasons. You acknowledge and agree that by using the internet to use the 3M App, you may incur charges from your wireless carrier, internet service provider or other method of internet access, depending upon your contract or plan with your provider. You acknowledge that payment of any such charges will be your sole responsibility. You agree that your use of the 3M App will be in accordance with all requirements of your wireless carrier, internet service provider or other method of internet access.
25. iOS Device Provision. If you are using the 3M App on a mobile device that runs on iOS, you acknowledge and agree that (i) this EULA is concluded between you and 3M, and not Apple, Inc. ("Apple"); (ii) 3M, and not Apple, is solely responsible for the 3M App; (iii) Apple has no responsibility whatsoever to furnish any maintenance and support services with respect to the 3M App; (iv) in the event of any failure of the 3M App to conform to any applicable warranty, you may notify Apple and where applicable Apple will refund the purchase price you paid for the 3M App; (v) to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the 3M App; (vi) Apple is not responsible for any claims that you have arising out of your use of the 3M App; (vii) Apple will have no responsibility whatsoever for the investigation, defense, settlement or discharge of any third-party claim that the 3M App infringes that third party's intellectual property rights; and (viii) Apple and its subsidiaries are third party beneficiaries of this EULA and, upon your acceptance of this EULA, Apple will have the right (and will be deemed to have accepted the right) to enforce this EULA against you as a third party beneficiary.
26. Google Play Provision. If you downloaded the 3M App from Google Play or a successor mobile application marketplace, you agree that Google, Inc. will have no responsibility to undertake or handle support and maintenance of the 3M App or any complaints about the 3M App.