license agreement | Cherry Imaging

End User License Agreement

1.Acceptance of this Agreement

This End User License Agreement (this “Agreement”) you are reading is a legally binding agreement between Cherry Imaging Ltd. (“Cherry Imaging”, “we” or “us”) and yourself as a customer (“you” or “Customer”). By downloading, installing, accessing, or otherwise using the Cherry Imaging mobile app (the “App”) you agree that you have read, understood, accept and agree to be bound by this Agreement.

By checking “I accept”, you acknowledge that you have read this Agreement, understand it, and agree to be bound by it. If you are unwilling to accept all of the terms of this Agreement, you should not check the “I accept” checkbox and you should not download the App.

If you violate this Agreement, Cherry Imaging reserves the right to issue you a warning regarding the violation or to immediately terminate or suspend all or part of your use of the App. You agree that Cherry Imaging does not need to provide you notice before terminating or suspending your use of the App, but it may provide such notice in its sole discretion.

You declare that by acceptance of this Agreement and/or by using the App you are: (a) of legal age to form a binding contract with Cherry Imaging or under the strict and continuous supervision of a parent or any other qualified legal guardian, and in any case, at least 18 years of age (b) not prevented or barred, in any way, from entering this Agreement and using the App; (c) not in breach or conflict with any other agreement, undertaking or law to which you are subject or bound; and (d) not barred from receiving the Services (as defined below) under the laws of the country in which you are resident or from which you use the App.

2.Description of the App

Cherry Imaging provides a mobile device downloadable App from an online App store, currently for iPhone®12 and above. The App uses your mobile phone camera to assist you in creating a 3D facial model (the “Face Model”) for analysis of skin geometry and color purposes (collectively the “Services”) which can be shared with others.

3.No Medical Advice

YOU SHOULD BE AWARE THAT CHERRY IMAGING IS NOT A PROVIDER OF MEDICAL ADVICE OR MEDICAL SERVICES AND THE APP SHOULD NOT BE USED AS A DIAGNOSTIC TOOL OF ANY KIND, INCLUDING OF MEDICAL CONDITIONS. BEFORE YOU TAKE ANY ACTION THAT MAY AFFECT YOUR HEALTH OR SAFETY, OR THE HEALTH OR SAFETY OF OTHERS, PLEASE CONSULT WITH A PROFESSIONAL.

IF YOU THINK YOU MAY HAVE A MEDICAL EMERGENCY, CALL YOUR LOCAL EMERGENCY PHONE NUMBER OR YOUR HEALTH CARE PROVIDER IMMEDIATELY AND NOTIFY ANY RELEVANT AUTHORITIES. ALL OF THE MATERIAL PROVIDED THROUGH THE SERVICE BY CHERRY IMAGING, SUCH AS TEXT, GRAPHICS, PHOTOGRAPHS, IMAGES, MESSAGES, FACE MODELS, AND ANY OTHER MATERIALS, ARE FOR INFORMATIONAL PURPOSES ONLY AND ARE NOT A SUBSTITUTE FOR PROFESSIONAL MEDICAL ADVICE OR TREATMENT. EVEN WHEN ASSESSMENTS ARE BASED ON CLINICAL PROTOCOLS, SUCH ASSESSMENTS DO NOT CONSTITUTE MEDICAL CARE, ADVICE OR DIAGNOSIS. ALWAYS SEEK THE ADVICE OF YOUR PHYSICIAN OR OTHER QUALIFIED HEALTH PROVIDER WITH ANY QUESTIONS YOU MAY HAVE REGARDING YOUR HEALTH. NEVER DISREGARD PROFESSIONAL MEDICAL ADVICE OR DELAY IN SEEKING IT BECAUSE OF ANY INFORMATION PROVIDED THROUGH THE SERVICE. ADDITIONALLY, CHERRY IMAGING DOES NOT PROMISE ANY PARTICULAR RESULTS WITH REGARDS TO YOUR HEALTH IN CONNECTION WITH YOUR USE OF THE SERVICE.. Cherry Imaging does not recommend or endorse any specific tests, physicians, products, procedures, opinions, or other information that may be mentioned through the Service or as a result thereof.

Reliance on any information provided through the Service, or provided by other Customers that use the App or the Service, is solely at your own risk. CHERRY IMAGING HAS NO CONTROL OVER ANY MEDICAL ADVICE PROVIDED TO YOU BY ANY THIRD PARTY, INCLUDING BY CHERRY IMAGING’S CUSTOMERS. Cherry Imaging does not undertake any responsibility in relation to the quality of the medical advice or the manner in which it is provided by doctors or medical organizations. We recommend that you use reasonable discretion, and if you do not feel good or if you do not receive feedback within a reasonable time, we recommended that you contact your doctor directly.

4.License Grant to Use the App

Cherry Imaging hereby grants you a personal, non-exclusive, non-transferable and non-sublicensable revocable license, which is time-limited to the term of this Agreement, to install the App, solely for your own personal use. For the removal of doubt, no commercial use may be made by you or any others on your behalf with the use of the App without Cherry Imaging’s prior written consent. The App is licensed, not sold, to you for use only under the terms of this Agreement. Cherry Imaging reserves all rights not expressly granted to you.

You shall not make any copies of the App and are expressly prohibited from providing the App or any portion thereof, or access thereto, to any third party, except as otherwise agreed to by Cherry Imaging in writing.

You shall not remove or destroy any copyright or restricted rights notices: (a) affixed to any media containing the App; or (b) incorporated within the App. You shall not reproduce any such copyright or restricted rights notices in any copy of the App created by you.

Cherry Imaging may make modifications, additions and upgrades to the App, as it deems necessary. The terms of this Agreement will apply to any updates that Cherry Imaging may make available to you unless the update is accompanied by a separate license, in which case the terms of that license will govern. You agree that updates may require you to change or update your App, and may affect your ability to use, access or interact with the App. Cherry Imaging is not obligated to provide any maintenance, technical or other support for the App.

You hereby acknowledge that your right to use the App is limited by this Agreement, and, if you violate or if, at any point, you do not agree to any of the terms contained in this Agreement, your right to use the App shall immediately terminate, and you shall immediately refrain from using the App. If the App or any part thereof is determined to be illegal under the laws of the country in which you are situated, you shall not be granted any right to use the App, and must refrain from using the App.

5.Access to the App

It is your responsibility to ensure your mobile device meets all the necessary technical specifications to enable you to access and use the App. Cherry Imaging does not provide you with the equipment to access and/or use our App.

You are responsible for all fees charged by third parties related to your access and use of the App (e.g., charges by internet service providers or air time charges). Cherry Imaging cannot guarantee that the App will always function without disruptions, delay or errors. Cherry Imaging takes no responsibility for any disruption, interruption or delay caused by any failure of, or inadequacy in any of these items or any other items over which we have no control, including, but not limited to, failures or delays resulting from labor disputes, strikes, lockouts, war, terrorism, riot, or acts of God.

6.Log-in Information

In order to use the App, you will register on-line with a personal user name and password (“Login Information”). The following rules govern the security of your Login Information:

You shall not share your Login Information with anyone;
In the event you become aware of, or reasonably suspect any breach of security, including, without limitation any loss, theft, or unauthorized disclosure of your Login Information, you must immediately notify Cherry Imaging in order to modify your Login Information;
You are solely responsible for maintaining the confidentiality of the Login Information, and you will be responsible for all uses of your Login Information;

You hereby acknowledge and agree that upon activation of the App, Cherry Imaging will have access to your mobile device’s camera. Any personal information you provide to us when using the App, which may include, inter alia, your Face Model, name, identification number, address, geographic location, e-mail address, cellphone number, and any such other information, will be held and used in accordance with the App’s Privacy Policy as may be amended from time to time (available at: https://www.cherryimaging.com/privacypolicy ).

You agree that you will supply accurate and complete information to us, and that you will update that information promptly after it changes. you represent and warrant that you have full right and authority to provide Cherry Imaging with the foregoing information, including, without limitation, any third party’s consent (to the extent required under any applicable law).

7.Rules of Conduct and Usage

You represent and warrant that you have full right and authority to use the App and to be bound by this Agreement. You agree that you will comply fully with this Agreement and all applicable domestic and international laws, regulations, statutes, ordinances that govern your use of such App.

In furtherance of the foregoing, you agree that you shall not:

Access and use the App, if you are barred from receiving the App under the provisions of this Agreement or any applicable law;
Copy, rent, lease, sell, transfer, assign, sublicense, disassemble, reverse engineer or decompile (except if expressly authorized by Cherry Imaging or by applicable statutory law), modify or alter any part of the App;
Violate the contractual, personal, intellectual property or other rights of any party;
Rent, lease, sell, trade, gift, bequeath or otherwise transfer the App to anyone without Cherry Imaging’s prior written consent;
Violate any applicable laws or regulations, or encourage or promote any illegal activity including, but not limited to, copyright infringement, defamation, or invasion of privacy; and/or
Attempt to interfere with, hack into or decipher any transmissions to or from the servers for the App.

8.Intellectual Property Ownership

Cherry Imaging, its affiliates and/or licensors retain all rights in the App (including, but not limited to, software, designs, graphics, texts, information, pictures, video, sound, music, and other files, and their selection and arrangement) (collectively, the “App Materials”). The entire contents of the App are protected by applicable copyright, trade dress, patent, and trademark laws, international conventions, and other laws protecting intellectual property and related proprietary rights. You shall not, nor shall you cause or permit any other party to modify, decompile, disassemble, reverse engineer, copy, transfer, create derivative works from, rent, sub-license, distribute, reproduce framed, republish, scrape, download, display, transmit, post, lease or sell in any form or by any means, in whole or in part, use for any purpose other than for using the App pursuant to this Agreement or otherwise exploit any of the App Materials without Cherry Imaging’s explicit, prior written consent. All other uses of copyrighted or trade mark material, including any derivative use, require explicit, prior written consent from Cherry Imaging.

Cherry Imaging, its affiliates and/or its licensors own all right, title, and interest, including copyrights and other intellectual property rights, in and to all the App Materials. You hereby acknowledge that you do not acquire any ownership rights by using the App or by accessing any of the App Materials, or rights to any derivative works thereof.

Any comments or suggestions for the modification, correction, improvement or enhancement of the App and/or any of the App Materials which you may provide Cherry Imaging, you hereby grant Cherry Imaging a non-exclusive, irrevocable, worldwide, royalty-free license, including the right to sublicense, to use and disclose such comments and suggestions in any manner Cherry Imaging chooses and to display, perform, copy, have copied, make, have made, use, sell, offer to sell, and otherwise dispose of Cherry Imaging’s products and content embodying such comments or suggestions in any manner and via any media Cherry Imaging chooses, but without reference to the source of such comments or suggestions.

9.User Content

Some areas of the Service allow to submit, post, display, provide, or otherwise make available content (including but not limited to sharing with our Customers) such as profile information, comments, questions, and other content or information, including but not limited to creating a Face Model (any such materials you upload, submit, post, display, provide, or otherwise makes available on the Service is referred to as “User Content”).

WE CLAIM NO OWNERSHIP RIGHTS OVER USER CONTENT CREATED BY YOU. THE USER CONTENT YOU CREATE REMAINS YOURS. You may share User Content through the Service with other Customers, and you agree to allow others to view, edit, share, and/or interact with your User Content in accordance with your App settings and this Agreement. We have no control over and is not responsible for any use or misuse (including any distribution) by other Customer or third parties with whom you choose to share your User Content.

By submitting, posting, displaying, providing, or otherwise making available any User Content on or through the Service, you expressly grant, and you represent and warrant that you have all rights necessary to grant, to Cherry Imaging a royalty-free, fully paid-up, sublicensable (through multiple tiers), transferable, perpetual, irrevocable, non-exclusive, worldwide license, without additional consideration to you or any third party, to use, reproduce, modify, list information regarding, edit, translate, distribute, syndicate, perform and display (publicly or otherwise), adapt, analyze, exploit, and make derivative works of all such User Content, in whole or in part, and in any form, media or technology, whether now known or hereafter developed, in connection with research, development, evaluating, and improving Cherry Imaging’s products and technology and for statistical purposes.

If You use the App for remote consultation with other third parties who are also using the App, You hereby grant us a permission to grant such third parties a non-exclusive license to access your User Content through the App, and to analyze, use, reproduce, distribute, display and perform such User Content as permitted through the functionality of the Service and under this Agreement. If you choose to make any of your personally identifiable or other information (including your Face Model) available through the Service, you do so at your own risk.

For the purposes of this Agreement, “Intellectual Property Rights” means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights, and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals, and extensions thereof, under the laws of any state, country, territory, or other jurisdiction.

In connection with your User Content, you affirm, represent, and warrant the following:

Your User Content and Cherry Imaging’s use thereof as contemplated by this Agreement and the Service will not violate any law or infringe any rights of any third party, including but not limited to any Intellectual Property Rights and privacy rights.

We may exercise the rights to your User Content granted under this Agreement without liability for payment of any guild fees, residuals, payments, fees, or royalties payable under any collective bargaining agreement or otherwise.

To the best of your knowledge, all your User Content and other information that you provide to us is truthful and accurate.

You are solely responsible for any interactions with our Customers. We reserve the right, but have no obligation, to monitor disputes between you and Customers. Cherry Imaging shall have no liability for your interactions with our Customers, or for any other action or inaction.

Cherry Imaging takes no responsibility and assumes no liability for any User Content that you or Customer or third party posts, sends, or otherwise makes available through the Service. You shall be solely responsible for your User Content and the consequences of posting, publishing it, sharing it, or otherwise making it available on the Service, and you agree that we are only acting as a passive conduit for your online distribution and publication of your User Content. You understand and agree that you may be exposed to User Content that is inaccurate, objectionable, inappropriate for children, or otherwise unsuited to your purpose, and you agree that Cherry Imaging shall not be liable for any damages you allege to incur as a result of or relating to any User Content. We may (but have no obligation to) monitor, evaluate, alter, or remove User Content before or after it appears on the Service, or analyze your access to or use of the Service, for any or no reason.

10.Confidential Information

You acknowledge and agree that the App was developed at considerable time and expense by Cherry Imaging and contains valuable trade secrets and confidential information of Cherry Imaging. Accordingly, you agree to maintain the confidentiality of any proprietary information received by it during, or prior to entering into, this Agreement, including, without limitation, the App and any trade secrets and other proprietary information, that you should know is confidential or proprietary based on the circumstances surrounding the disclosure, including, without limitation, non-public technical and business information and all other information obtained during the use of the App as permitted hereunder (“Confidential Information”). The restriction herein shall not apply to the extent that such information is in the public domain or hereafter falls into the public domain through no fault of yours. You agree not to use said Confidential Information for any purpose except as necessary to exercise your rights under this Agreement. You shall protect the secrecy of and avoid disclosure and unauthorized use of Cherry Imaging’s Confidential Information to the same degree that it takes to protect its own confidential information and in no event less than reasonable care.

11.Disclaimer of Warranty; Limitation of Liability; Indemnification

The App is provided on an “AS IS” and “AS AVAILABLE” basis. You are solely responsible for any and all acts or omissions taken or made in reliance on the App. To the fullest extent permitted by law, Cherry Imaging, its officers, directors, employees, licensors and agents disclaim all warranties, explicit or implied, in connection with the App and your use thereof including without limitation implied warranties of merchantability, title, fitness for a particular purpose or non-infringement, usefulness, authority, accuracy, completeness, and timeliness.

Cherry Imaging assumes no liability or responsibility for any:

Errors, mistakes, inaccuracies, non-suitability or non-conformity of the App or any of the Services;
Direct, indirect, special, incidental, punitive or consequential damages including without derogating personal injury, property damages and/or monetary damages, of any nature whatsoever, arising out of the use of or the inability to use the App;
Any unauthorized access to or use of Cherry Imaging’s servers and/or any and all personal information and/or financial information stored therein;
Any interruption or cessation of transmission to or from the App;
Any bugs, viruses, Trojan horses, or the like which may be transmitted to or through the App by any third party;
Any results that may be obtained from the use of the App; and/or
The quality of any information, or other material obtained by you through the App;

WITHOUT DEROGATING FROM THE ABOVEMENTIONED, IN NO EVENT WILL CHERRY IMAGING, ITS DIRECTORS, OFFICERS, AGENTS, CONTRACTORS, PARTNERS, LICENSORS, CONSULTANTS AND/OR EMPLOYEES, BE LIABLE TO YOU OR ANY THIRD PERSON FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING ANY LOST PROFITS OR LOST DATA ARISING FROM YOUR USE OF THE APP OR OTHER MATERIALS ON, ACCESSED THROUGH OR DOWNLOADED FROM THE APP, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT CHERRY IMAGING HAS BEEN ADVISED OF THE POSSIBILITY OF THESE DAMAGES. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION. WITHOUT DEROGATING FROM THE AFOREMENTIONED, IN ANY EVENT CHERRY IMAGING’S MAXIMUM LIABILITY IN ALL CASES AND FROM ALL CAUSES OF ACTION SHALL BE LIMITED TO THE SUM OF US $50.

You agree to indemnify and hold Cherry Imaging, and each of its directors, officers, agents, contractors, partners, licensors and employees, harmless from and against any loss, liability, claim, demand, damages, costs and expenses, including reasonable attorney’s fees, arising out of or in connection with any of the following:

Your use of, and access to the App;
Your violation of any term of this Agreement;
Your violation of any third party right, including without limitation any copyright, property, or privacy right;
Any claim that any user submission made by you has caused damage to a third party.

Certain laws do not allow limitations on implied warranties or the exclusion or limitation of certain damages. If these laws apply to you, then the limitations included in this section shall be interpreted to the maximum extent permitted under applicable law.

12.Notices

Notices to you may be made via the App and/or e-mail. Cherry Imaging may also provide notices of material changes to this Agreement or other matters by displaying notices or links to notices to you generally on the App. You agree that all agreements, notices, disclosures and any other communications that Cherry Imaging provides as aforementioned satisfy any legal requirement that such communications be in writing. Any and all e-mail notices sent to you will constitute sufficient and effective delivery and notice to you, whether or not you access or review the notice and shall be deemed to have been delivered to you, whether actually received by you or not.

13.Miscellaneous

By using the App, you agree that the laws of the State of Israel, without regard to principles of conflict of laws and regardless of your location, will govern this Agreement and any dispute of any sort that might arise between you and Cherry Imaging. Any claim or dispute between you and Cherry Imaging that arises in whole or in part from your use of the App shall be decided exclusively by a court of competent jurisdiction located in Tel Aviv, Israel, to the exclusion of any other courts, and you hereby consent to, and waive all defenses of lack of personal jurisdiction and forum non-convenient with respect to venue and jurisdiction in the courts of Tel Aviv, Israel.

The failure by Cherry Imaging to enforce any provision of this Agreement, will not constitute a waiver of future enforcement of that or any other provision. If, for any reason, a court of competent jurisdiction finds any provision of this Agreement invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of this Agreement will remain in full force and effect.

This Agreement constitute the complete and exclusive agreement between Cherry Imaging and you regarding its subject matter and supersedes all prior or contemporaneous quotations, agreements, communications or understandings, whether written or oral, relating to its subject matter.

For any questions about this Agreement or any other issue regarding Cherry Imaging or the App please contact us at: info@cherryimaging.com.