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Memory Star – Mobile App Terms and Conditions

1. Introduction

1.1 These App Terms apply to your use of the Memory Star mobile application provided by or on behalf of by Astellas Pharma Europe Limited (referred to in these App Terms as “Astellas”, “we”, or “us”), a company registered in England and Wales (registered number 02486792) whose registered address is at 2000 Hillswood Drive, Chertsey, Surrey, KT16 0RS, UK.

1.2 By installing and using Memory Star, you confirm that you have read, understood, and agree to these App Terms. If you are under the age of 18, you must ask a legal guardian to read and agree to these App Terms on your behalf. If you or your legal guardian does not agree to these App Terms, you must stop using Memory Star immediately.

1.3 If you have any questions regarding these App Terms, please contact Astellas via contact.emea@astellas.com

2. Term

2.1 The App Terms shall come into effect upon installing Memory Star and shall continue until you uninstall Memory Star or until Astellas terminate your access to Memory Star and/or these App Terms.

3. Access to Memory Star

3.1 While Astellas endeavours to ensure that Memory Star is normally available 24 hours a day, Astellas shall not be liable if for any reason Memory Star is unavailable at any time or for any period.

3.2 Access to Memory Star may be suspended temporarily and without notice in the case of system failure, maintenance or repair or for reasons beyond Astellas’ control.

3.3 Astellas assumes no responsibility for:

3.3.1 Memory Star and/or its functionality;

3.3.2 any communication, content, data, information, photos, images, software or other items or materials (collectively, “Content“) provided or made available on or through Memory Star by you or by Astellas; or

3.3.3 the servers and/or other equipment and services required to make Memory Star available.

4. Copyright and Other Intellectual Property Rights (“IPR”)

4.1 All content displayed in or on Memory Star, and all copyrights, trademarks, designs, and other intellectual property rights existing in or relating to Memory Star are owned by or licensed to Astellas.

4.2 If any IPR in or to Memory Star vests in you, whether by operation of law or otherwise, you hereby assign to us (or to any third party we nominate) all right, title, and interest (whether legal or beneficial) in such IPR throughout the world absolutely to the fullest extent possible, including any and all renewals and extensions of such IPR. You unconditionally and irrevocably waive any and all moral rights you may have either now or in the future existing in or in relation to Memory Star.

4.3 agree to execute and do all such deeds, documents, acts, and things as we may reasonably require in order to assign any IPR to us, to carry out the intended purpose of these App Terms, or to establish, perfect, preserve, or enforce our App Terms.

5. Use of Memory Star

5.1 You agree that you will not:

5.1.1 Use Memory Star for the posting or transmitting of any unlawful, harmful, threatening, abusive, harassing, defamatory, vulgar, obscene, racially, ethnically or otherwise discriminatory Content of any kind;

5.1.2 Upload to Memory Star any files that contain viruses, “Trojan Horses”, worms, cancelbots, corrupted files or other such similarly destructive features or otherwise in any way damage, disable or impair the operation of Memory Star, or attempt to do any of the same, or gain or attempt to gain unauthorised access to Memory Star, or to networks connected to it, or to Content delivered through it, by any means including by hacking, spoofing or seeking to circumvent or defeat any firewalls or other technological or other protections or security measures; or

5.1.3 Use any Content on or in Memory Star:

(a) For any commercial purpose;
(b) For any illegal purpose, or
(c) For any other purpose prohibited by these App Terms.

6. Representations and Warranties

6.1 Except for statements that are expressly identified in these App Terms as representations or warranties or as required by law, Astellas makes no written, oral, statutory, express or implied warranties, conditions or representations, concerning Memory Star or the Content.

6.2 Astellas makes no warranties or representations that Memory Star, its functionality or the Content provided or made available on or through Memory Star or otherwise by us or you will be uninterrupted or error-free, or that the servers or other equipment and services required to make Memory Star available will be free of viruses or other harmful components.

7. Limitations of Liability

7.1 SUBJECT TO SECTION 7.2, UNDER NO CIRCUMSTANCES SHALL ASTELLAS BE LIABLE FOR:

7.1.1 SPECIAL, INCIDENTAL OR PUNITIVE LOSS;

7.1.2 INDIRECT OR CONSEQUENTIAL LOSS;

7.1.3 LOSS OF BUSINESS, REVENUE, GOODWILL, PROFITS, CONTRACTS OR ANTICIPATED SAVINGS (WHETHER SUCH LOSS IS DIRECT OR INDIRECT, FORESEEABLE OR OTHERWISE);

7.1.4 LOSS OR CORRUPTION OF DATA; OR

7.1.5 DAMAGE OR LOSS OF FUNCTIONALITY OF ANY SOFTWARE, DEVICE, TELECOMMUNICATIONS OR OTHER EQUIPMENT, DIRECTLY OR INDIRECTLY CAUSED BY MEMORY STAR OR ANY PATCH OR UPDATE TO THE SAME,

7.1.6 IN ANY SUCH CASE ARISING FROM OR IN CONNECTION WITH OR OTHERWISE RELATING TO MEMORY STAR, THE CONTENT OR THESE APP TERMS WHETHER ON THE BASIS OF NEGLIGENCE, TORT, BREACH OF CONTRACT (HOWEVER FUNDAMENTAL), MISREPRESENTATION OR OTHERWISE.

7.2 Notwithstanding anything to the contrary in these App Terms, Astellas does not limit or exclude its liability for fraud or fraudulent misrepresentation, or for death or personal injury arising from its negligence or that of its employees or subcontractors, or any liability which cannot by law be restricted or limited.

7.3 You agree to compensate us in full in respect of any losses, liabilities, damages, expenses or costs (including legal fees and expenses), arising from or in connection with any third party claim, suit or proceeding brought against us which arises out of, results from or is related to any breach by you of these App Terms.

8. Privacy and Data Protection

8.1 You remain in control of any personal data created and/or processed by Memory Star. The personal data which you create on Memory Star is stored only on your mobile device. Astellas does not act as a data controller of any personal data which you upload, use or process as part of your usage of Memory Star.

9. Medical Devices

9.1 For For the avoidance of any doubt, Memory Star does not constitute a medical device.  For further information on this topic, please see the Medicines and Healthcare products Regulatory Agency’s guidance document ‘Medical device stand-alone software including apps’ published 8th August 2014.

10. Termination Rights

10.1 Astellas may terminate the App Terms and disable your access to the Content immediately if:

10.1.1 Astellas reasonably concludes that you are in breach of obligations or restrictions regarding the use of the Content or otherwise infringe Astellas’ intellectual property rights;

10.1.2 You have breached or violated any other term or condition of the App Terms and such breach or violation shall have continued for (or remains after) fourteen (14) days after the date of notice of such breach or violation;

10.2 You can terminate the App Terms at any time by uninstalling Memory Star.

10.3 The termination of the App Terms shall not affect any rights or obligations of either party which have accrued prior to the date of termination. The following provisions shall survive termination and shall remain in full force and effect: section 6, 7, 10.3, 11, 12, 14, 15, 16, 17.

11. Entire Agreement and Severability

11.1 These App Terms, and any terms and conditions expressly referred to herein, constitute the entire agreement and supersede any proposals, previous agreements or existing contracts previously executed with respect to the subject matter hereof. If any provision, section or application of these App Terms to any party or circumstance is held invalid or unenforceable, this shall not affect any other provision, section or application of these App Terms.

12 Waivers

12.1 A waiver of any provision of the App Terms or of any breach or default in performing or observing any such provision shall not be effective unless in writing and shall not constitute a continuing waiver unless expressly so provided. That waiver shall not prevent the waiving party from subsequently enforcing any provision of the App Terms not waived, or from acting on any subsequent breach or default.

13. Amendments

13.1 Astellas may amend the App Terms at any time without your prior consent. Astellas will alert you to any amendments made to the App Terms in accordance with section 14.1 below.

14. Notices

14.1 Astellas may issue any notices, updates or other communications and obtain any consents or approvals by way of an update on the app store.

15. Governing Law and Jurisdiction

15.1 The App Terms shall be governed by and interpreted in accordance with the laws of England. No action regarding the App Terms, the Content or the relationship between you and Astellas may be commenced in any court except the English courts, which shall have the exclusive jurisdiction over any action.

16. Assignment

16.1 You may not assign or sublicense any of your rights and privileges under the App Terms without Astellas’ prior written consent.

17. Third Party Rights

17.1 A person who is not a party to these App Terms has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any of the App Terms.

 

September 2015
APEL/15/0037/EUa

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