APPLICATION LICENSE AGREEMENT, EULA
PLEASE READ THIS APPLICATION LICENSE AGREEMENT ("LICENSE") CAREFULLY BEFORE USING THE APPLICATION YOU HAVE ASKED TO DOWNLOAD.
BY ENTERING INTO THIS LICENSE, YOU AGREE TO COMPLY WITH ALL TERMS AND CONDITIONS OF THE ITUNES STORE TERMS AND CONDITIONS AND APP STORE TERMS AND CONDITIONS, WHICH ARE AVAILABLE AT HTTP://WWW.APPLE.COM/LEGAL/INTERNET-SERVICES/ITUNES/US/TERMS.HTML, INCLUDING ANY USAGE RULES IN SUCH TERMS AND CONDITIONS.
In this license, the words (i) “Mobile Device” means mobile device you own or control such as a mobile phone or tablet, (ii) “Application” means the Watchful application and any related software, website(s), updates, content and/or documentation; and (iii) “Services” means all services provided under or in connection with the application as indicated more fully in Section 1.B below.
BY USING THE APPLICATION OR SERVICES, YOU (A) AGREE TO BE BOUND BY THE TERMS OF THIS LICENSE; AND (B) REPRESENT AND WARRANT THAT YOU ARE OF LEGAL AGE AND HAVE THE LEGAL RIGHT AND CAPACITY TO ENTER INTO THIS AGREEMENT. YOU SPECIFICALLY UNDERSTAND, ACKNOWLEDGE AND AGREE TO TERMS IN SECTION 7, WHICH LIMIT OUR LIABILITY TO YOU AND TO OTHERS.
By entering into this License, you and Licensor (as that term is defined below) acknowledge that the License is between you and Licensor only (not Apple) and that Licensor alone (not Apple) is solely responsible for the Application and the content thereof.
IF YOU DO NOT AGREE TO THE TERMS OF THIS LICENSE, DO NOT INSTALL THE APPLICATION AND/OR USE THE APPLICATION OR SERVICES.
IMPORTANT! LIMITATIONS ON SERVICES BASED ON LOCATION.
YOU UNDERSTAND THAT THE SERVICES MAY BE REGULATED OR PROHIBITED AND MAY NOT BE OFFERED OR OTHERWISE AVAILABLE IN CERTAIN JURISDICTIONS. FOR EXAMPLE, THE SERVICES MAY NOT BE AVAILABLE IN CERTAIN COUNTRIES OUTSIDE OF THE UNITED STATES OR IN CERTAIN U.S. STATES. TO DETERMINE IF THE SERVICES ARE AVAILABLE IN JURISDICTIONS IN WHICH YOU INTEND TO USE THE SERVICES (I.E., WHERE YOU LIVE, VISIT, WORK OR TRAVEL) YOU MUST REVIEW THE CURRENT INFORMATION AVAILABLE, AND THE UPDATES THAT WILL BE POSTED FROM TIME-TO TIME, ON THE WEB-BASED PORTAL (AS DEFINED BELOW) ASSOCIATED WITH THIS APPLICATION. YOU AGREE TO ACCEPT THAT SERVICE MAY OR MAY NOT BE AVAILABLE AT A PARTICULAR TIME AT YOUR LOCATION, AND THAT YOU ASSUME ALL RESPONSIBILITY AND LIABILITY FOR YOUR OWN SAFETY, AND FOR ANY RELIANCE UPON THE APPLICATION OR SERVICES. IF THE SERVICES ARE NOT OFFERED OR AVAILABLE IN A JURISDICTION, YOU UNDERSTAND THAT WE WILL NOT BE ABLE TO PROVIDE THE SERVICES TO YOU WHILE IN SUCH JURISDICTION. YOU UNDERSTAND THAT THE SERVICES MAY BE AVAILABLE IN ONE JURISDICTION (FOR EXAMPLE, THE COUNTRY OR STATE WHERE YOU DOWNLOAD THE APPLICATION) BUT MAY NOT BE AVAILABLE IN ANOTHER JURISDICTION (FOR EXAMPLE, A DIFFERENT COUNTRY OR STATE THAT YOU MAY BE VISITING) AND THAT WE WILL NOT BE ABLE TO PROVIDE YOU THE SERVICES WHEN YOU ARE IN A JURISDICTION WHERE THE SERVICES ARE NOT AVAILABLE.YOU ASSUME ALL RESPONSIBILITY AND LIABILITY FOR PROVIDING FOR YOUR OWN SAFETY BASED UPON THE ASSUMPTION THAT THE APPLICATION AND SERVICES PROVIDED BY LICENSOR MAY BE UNAVAILABLE AT ANY LOCATION, POTENTIALLY WITHOUT PRIOR WARNING OR NOTIFICATION, DUE TO TECHNICAL REASONS SUCH AS LACK OF DATA CONNECTIVITY, REGULATORY REASONS SUCH AS LACK OF AVAILABILITY IN CERTAIN JURISDICTIONS OR LOCATIONS, OR OTHER REASONS. IN THE CIRCUMSTANCE THAT THE APPLICATION OR SERVICES ARE NOT AVAILABLE AT A GIVEN TIME IN A GIVEN LOCATION, WE AND LICENSOR WILL NOT BE ABLE TO PROVIDE THE SERVICES AND WE WILL BE WITHOUT ANY LIABILITY WHATSOEVER.
YOU UNDERSTAND AND ACCEPT THAT LICENSOR MAKES NO GUARANTY THAT THE SERVICES WILL BE AVAILABLE CONTINUOUSLY IN A GIVEN JURISDICTION. FOR EXAMPLE, IN A PARTICULAR JURISDICTION SERVICES MAY ONLY BE AVAILABLE BETWEEN CERTAIN HOURS OR ON CERTAIN DAYS, AND THESE HOURS MAY CHANGE FROM TIME TO TIME AT THE SOLE DISCRETION OF THE LICENSOR. IN ADDITION, EVEN DURING HOURS WHEN THE SERVICE MAY BE AVAILABLE, THE SERVICE MAY NOT BE AVAILABLE CONTINUOUSLY. FOR EXAMPLE, LICENSOR MAY EXPERIENCE A SERVICE OUTAGE AND FAIL TO PROVIDE SERVICE FOR AN UNKNOWN DURATION OF TIME. IN ADDITION, LICENSOR MAY NOT PROVIDE ADEQUATE PERSONNEL TO COVER DEMAND AT ALL TIMES. FOR EXAMPLE, IF MORE USERS ATTEMPT TO OBTAIN SERVICE SIMULTANEOUSLY THAN THE NUMBER OF SERVICE PROVIDERS AVAILABLE, CERTAIN USERS MAY NOT HAVE ACCESS TO A SERVICE PROVIDER DURING THIS PERIOD. YOU ASSUME ALL RESPONSIBILITY AND LIABILITY FOR PROVIDING FOR YOUR OWN SAFETY BASED UPON THE ASSUMPTION THAT THE APPLICATION AND SERVICES PROVIDED BY LICENSOR MAY BE UNAVAILABLE AT ANY TIME, POTENTIALLY WITHOUT PRIOR WARNING OR NOTIFICATION. IN THIS CIRCUMSTANCE, WE AND LICENSOR WILL NOT BE ABLE TO PROVIDE THE SERVICES AND WE WILL BE WITHOUT ANY LIABILITY WHATSOEVER.
IMPORTANT -- NOT A REPLACEMENT FOR 911. The Application and Services are not a replacement for 911 or any other public emergency services. If you are in immediate danger, are suffering a medical emergency or are the victim of a crime, CALL 911 and/or the appropriate authorities and do not rely on the Application or the Services.
IMPORTANT – LOCATION BASED SERVICES. The Application and Services rely upon location based services in order to determine where you are when you activate the Application. In order to use the Services, you MUST permit us to use location based services on any device on which the Application is operating. IF WE CANNOT SUCCESSFULLY USE THE LOCATION-BASED SERVICES ON YOUR MOBILE DEVICE (AS DEFINED BELOW), WE WILL NOT BE ABLE TO LOCATE YOU QUICKLY (OR WILL NOT BE ABLE TO LOCATE YOU AT ALL) AND OUR ABILITY TO PROVIDE THE SERVICES WILL BE LIMITED SIGNIFICANTLY. We will share your location only in connection with the Services and only with the Proper Authorities (as defined below) and any others to whom you permit us to provide your location through your selected privacy settings. IF YOU DO NOT PERMIT US TO USE LOCATION BASED SERVICES (E.G., YOU TERMINATE, REFUSE OR BLOCK THE LOCATION BASED SERVICES), WE CANNOT PROVIDE YOU THE SERVICES AND YOU SHOULD NOT USE THE APPLICATION. The Application also may rely on Push Notifications to notify you of an emergency. You MUST enable push notifications in the Application to be able to receive these notifications. FURTHER, YOU ACKNOWLEDGE THAT LOCATION BASED SERVICES HAVE LIMITATIONS TO THEIR ACCURACY, AND ARE SOMETIMES UNAVAILABLE FOR A VARIETY OF REASONS. YOU ASSUME ALL RESPONSIBILITY AND LIABILITY FOR PROVIDING FOR YOUR OWN SAFETY BASED UPON THE ASSUMPTION THAT THE APPLICATION AND SERVICES WILL NOT HAVE ACCESS TO YOUR CORRECT LOCATION OR MAY RECEIVE AN INACCURATE LOCATION, POTENTIALLY WITHOUT PRIOR WARNING OR NOTIFICATION.
IMPORTANT – WIRELESS NETWORK CONNECTIVITY AND COVERAGE. The Application and Services rely upon wireless data information transmission by your Mobile Device through your mobile/wireless carrier that is of sufficient bandwidth and quality for the Application to operate, and Services to be provided. The Application and Services rely upon adequate Wi-Fi and/or Cellular connectivity (or 2G, 3G, 4G, LTE or other). In areas where there is insufficient connectivity, or at times when your Mobile Device does not have adequate connectivity, the Application and Services may be impaired in their performance, or they may not work at all. Specifically, in areas where there is poor connectivity, you may experience lower resolution video transmission, poor audio communication, call interruptions or drops, or other degradations of performance. This may be true even in areas where telephone communication is available, or where your device shows an adequate network signal (“number of bars”). Depending upon your data plan for your Mobile Device, you may be charged by your mobile data provider for the use of all wireless data transmissions at the rate that you are charged for any other form of wireless data transmission (sent or received). In order to use the Application and Services, you MUST ensure that any device on which the Application is operating has adequate wireless network connectivity and coverage. It is solely your responsibility to determine if your Mobile Device has adequate wireless network connectivity at any given location and time for the Application and Services operate properly. IF THE APPLICATION CANNOT SUCCESSFULLY AND ADEQUATELY USE THE WIRELESS NETWORK CONNECTIVITY ON YOUR MOBILE DEVICE, THE APPLICATION WILL NOT WORK, WE WILL NOT BE ABLE TO PROVIDE THE SERVICES AND WE WILL BE WITHOUT ANY LIABILITY WHATSOEVER.
A. Civizen, Inc. ("Licensor") grants to you a limited, non-exclusive, non-transferable, non-commercial license to (i) download, install and use the Application, which use of the Application may include the delivery and receipt of text messages, the recording of location information and the recording and/or transmission or receipt of other information (such text messages, audio communication or audiovideo communication, location information and other information (the “Application Information”) and (ii) access the portal at Licensor’s website (www.Watchful.com) or such other website as we may direct from time-to-time (the “Portal”) to (A) input, delete and modify information related to your account and the Services and (B) view video or listen to audio recorded using the Application (such video and audio, together with the Application Information is referred to collectively as, the “Data”). Licensor owns the Data. You agree that we can share, provide or copy any of the Data and use it for any purpose, including any commercial purpose or provide any Data to law enforcement authorities.
B. This license remains subject to the terms of this License, and Licensor reserves all rights not expressly granted to you. The terms of this License will govern any software upgrades provided by Licensor that replace and/or supplement the original Application, unless such upgrade is accompanied by a separate license in which case the terms of that license will govern.
A. The Services consist solely of personnel (collectively, “Personnel”) (a) viewing, recording images or video of, and addressing you or other individual(s) in view of the camera on your Mobile Device visible to Personnel, and (b) attempting to contact the governmental agencies or telephone number(s) supplied by you through the Application or Portal (collectively, "Proper Authorities"), solely to the extent Personnel determine such action is desirable or advisable following receipt of an alert communication from your Mobile Device through the Application (each, a “Signal”) and Data. Personnel’s determination regarding the appropriate course of action to be taken in connection with Data received and reviewed by Personnel shall be based solely upon the Data then available to Personnel and in such Personnel’s sole and absolute discretion. Any attempt to contact Proper Authorities shall be made by Personnel using whatever means or technologies are deemed appropriate by Personnel in their sole discretion. The Services do not provide any form of monitoring any Data but consist solely of providing the response services set forth herein following our actual receipt of a Signal and Data. No Services shall be rendered for Signals or Data where, based upon Data received, Personnel determine, in their sole and absolute discretion, that assistance is not required.
B. The Services will not commence until you have properly activated the Services through the Portal. Services cannot be rendered if we do not receive a Signal or Data. In order to use the Services, the Application must be able to successfully transmit a Signal and Data from your Mobile Device. If your Mobile Device is not connected to the Internet, or does not have an adequate upload/download connection speed or latency, we may not receive a Signal, an adequate Signal or any Data. Under any such circumstances, you agree that we cannot be held liable if we are unable to provide the Services. The adequacy of any Signal or Data is to be determined by Personnel based upon any Signal or Data received by Personnel, in each instance in the sole and absolute discretion of Personnel and without any liability whatsoever.
C. Licensor may modify, terminate or suspend any particular form of Service at any time, including to the extent permitted, requested or required to do so by any applicable governmental authority, standards setting entity or insurance interest. Your obligations under this License, including Section 2, shall continue in the event of any (i) such modification, termination or suspension; or (ii) any non-response policy of any Proper Authority.
D. Upon receipt of (a) a Signal and Data but before contacting any other person or entity, including any of the Proper Authorities, Personnel may contact or attempt to contact you as frequently as they deem appropriate to verify the need to respond to, or report the receipt of, a Signal or Data to any of the Proper Authorities, and (b) an abort code or your oral or written direction to disregard a Signal, Licensor may refrain from contacting Proper Authorities or otherwise providing Services or may advise Proper Authorities of the abort code or any such direction to disregard the receipt of the Signal. Licensor’s efforts to notify Proper Authorities shall be satisfied by contacting the Proper Authorities, by telephone, other electronic means or other technologies or leaving an electronic message, voicemail or similar message.
E. All software, hardware, firmware, shareware, codes, information and documentation arising out of or from, in connection with, related to, as a consequence of or resulting from the Application and Services are Company’s sole and exclusive property and that you have no rights whatsoever in any of the foregoing. For the avoidance of doubt and in order to maintain personal privacy and avoid cyber-bullying, you do not have any right to or interest in any Data, including messages, audio, or video that you may have recorded or may have been recorded on your behalf, recorded in connection with, related to, as a consequence of or resulting from the Application and Services. All Data (except for location-based information) may be provided to third parties, such as police or judicial authorities, or media, as deemed appropriate in the sole and absolute discretion of Licensor or Personnel.
F. Any determinations to be made in connection with the Services, including any determination to dispatch Proper Authorities, shall be made by Personnel in their sole and absolute discretion based upon the information then presented and without any liability whatsoever.
Immediately upon activation of the Services, and continuing every month thereafter until the termination of this License, you shall pay Licensor in advance in accordance with our fee schedule (the “Fee”). You authorize Licensor to automatically charge the Fee to your credit or debit card in advance on a monthly recurring basis, or on a basis of more than one month in advance, as provided on the Portal when you sign up. We may increase or decrease the Fee by written or electronic notice to you. Upon termination of this License, Licensor shall have no obligation to refund any portion of the Fee with respect to any period after the termination of this License. In addition, you may be charged usage-based fees based upon our fee schedule. For example, you may be charged a per-minute fee for the usage of services, such as the minutes of two-way video communication. The usage-based fees may also round-up to the next-highest minute, and may be subject to a per-call minimum based upon our fee schedule. Determination of usage charges and durations shall be at our sole discretion.
1. Permitted Uses and Restrictions.
A. Subject to the terms and conditions of this License, you are granted a limited non-exclusive, non-transferable, non-commercial license to download, install and use the Application only on a Mobile Device, such as a mobile phone or tablet, and as permitted by the Usage Rules set forth in the App Store Terms of Service and any additional rules set forth by your mobile provider, including your mobile phone company. You understand the Mobile Device must be registered on the Portal in order to receive the Services. You may not distribute or make the Application available over a network where it could be used by multiple devices at the same time. You may not rent, lease, lend, sell, transfer, redistribute or sublicense the Application. You are solely responsible for information you input, delete or modify on the Portal or in connection with the Application.
B. You agree to use the Application, Portal and Services in compliance with all applicable laws and our policies as published from time-to-time on the Portal. You shall use the Application solely to obtain the Services. You shall not use the Application or Services for any illegal, unlawful or improper purpose (as determined by us from time-to-time, in our sole and absolute discretion), including (i) to harass or bully anyone; (ii) to falsely accuse or defame anyone; (iii) to simulate or portray untrue or fictitious scenarios; or (iv) for purposes relating to illicit or sexual content or pornography. By using the Application, Portal and Services, you agree that Licensor may use and maintain the phone number, name and contact information, email address(es) and any other information you provide as unique account identifiers.
C. Licensor may provide and/or charge for any upgrades, updated versions, bugs, and fixes. Licensor may require payment of periodic or annual fees for use by you of the Application. You will be notified by Licensor in the event any such fee is to be imposed.
D. You may not, and you agree not to, or to enable others to, copy, decompile, reverse engineer, disassemble, attempt to derive the source code of, decrypt, modify, or create derivative works of the Application or the Portal or any services provided by the Application or Portal, or any part thereof (except as and only to the extent any foregoing restriction is prohibited by applicable law). You may not, and you agree not to, or to enable or permit others to breach the security of the device, the Application or the portal for any purpose, including for the purpose of copying any other user’s information. Any attempt to do so shall be a violation of the rights of Licensor. If you breach this restriction, you may be subject to prosecution and damages. Unpublished rights are reserved under the copyright laws of the United States. To the extent the Application may be used to reproduce materials, it is licensed to you only for reproduction of non-copyrighted materials, materials in which you own the copyright, or materials you are authorized or legally permitted to reproduce. If you are uncertain about your right to copy any material, you should contact your legal advisor.
E. You represent and warrant that: (i) you are not located in a country that is subject to a United States government embargo, or that has been designated by the United States government as a "terrorist supporting" country; and (ii) you are not listed on any United States government list of prohibited or restricted parties. This License is subject to all applicable export restrictions. You will comply with all export and import laws and restrictions and regulations of any United States or foreign agency or authority relating to the Application and its use.
F. Unless Licensor consents in writing, which consent may be withheld in Licensor’s sole discretion, you will use the Application, Portal and Services solely for your personal use and not for commercial purposes.
G. You understand that there is a risk that unauthorized persons may gain access to the Application and/or the Portal and the data available through the Application and/or the Portal. You consent to our provision of data through the Application and Portal. You will be solely responsible for information you deliver, delete or modify. You will keep confidential all passwords, account information and access codes that permit access to or the use of the Application, Portal or Services. Upon termination or suspension of this License by Licensor, Licensor may immediately, and without notice, disable your access to the Portal and cancel all passwords or other access codes.
H. You will provide, at your own expense, the proper Mobile Device and communication services (cellular, Wi-Fi or otherwise) that you need to access and use the Application, Portal and Services. Licensor does not guarantee that the Application and Portal can be accessed through, or will be compatible with, all devices or communication services. The Application, Portal and/or Services may fail due to a variety of circumstances, including circumstances or conditions beyond Licensor’s control. You understand and agree that communication services may be interrupted, circumvented or otherwise compromised. Such communication services are beyond Licensor’s control, and Licensor may not be able to assist in resolution of problems with respect to the Application, Portal or Services relating to such communication services. You understand that your use of the Application and/or Services may be limited by your communication services provider or by the capabilities or capacities of your Mobile Device. If your Mobile Device or wireless communication services are incompatible, inoperative, interrupted or circumvented, or in ‘Airplane Mode’ or similar modes without radio communication, no data will be received by Licensor and the Application and Services may not be available. Licensor does not guarantee that the Application, Portal and Services are available in all geographic locations. You understand that when you use the Application, Portal and Services, you may be charged fees by third parties, including wireless data service fees charged by your wireless communication services provider. You understand that the number of ‘bars’ of coverage provided by your cell provider or the availability of adequate calling or other Mobile Device functionality may not accurately reflect the available wireless data service characteristics, and that even in some scenarios with 3-5 ‘bars’ of coverage or good typical call quality, you may not have adequate wireless data connectivity for this service to work appropriately.
I. If Licensor is required to testify in court or any other proceeding in connection with your use of the Application, Portal or Services, Licensor reserves the right to charge you for any cost or expense (including attorneys’ fees) incurred in connection with such testimony and you agree to promptly reimburse Licensor for all such costs or expenses.
J. You will provide and maintain adequate power and lighting for the cameras on your Mobile Device. You will take all steps necessary to inform any person who may be the subject of any video and/or audio recording of the possibility of such recording. Subscriber shall not use or permit the use of the Application, Portal or Services to transmit or receive video data with a view where any person has a reasonable expectation of privacy, including bedrooms, restrooms, dressing or changing areas, locker rooms or similar areas. YOU WILL NOT RECORD, VIDEOTAPE, AUDIOTAPE, PHOTOGRAPH OR EAVESDROP ON ORAL COMMUNICATIONS OF OTHERS WITHOUT NOTIFYING SUCH PERSON AND HAVING SUCH PERSON’S PERMISSION TO DO SO.
K. Licensor alone shall be responsible for providing all maintenance and support necessary to use the Application or Services. You and we understand, acknowledge and agree that Apple shall have no such obligation.
L. You acknowledge that the words “Watchful” and “Civizen” are trade names belonging to Licensor, and that any related marks are trademarks owned by Licensor. You acknowledge that the phrase “Anything you do on camera can and will be used against you” is copyrighted and is a trademark of the Licensor. You shall have no license or other right, title, or interest to use such trademarks, or any other trademark, service mark, or trade name that is now or hereafter owned by Licensor. Without limiting the foregoing, you specifically agree that you will not, in any manner, use the words “Watchful” or “Civizen” or any imitation or variant thereof as part of a trade name, company, or firm name.
M. Licensor and you agree that in the event of any third-party claim that the Application or your use or possession and use of the Application infringes the intellectual property rights of any third-party, Licensor, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
N. End-user questions, complaints and claims should be addressed to Licensor as follows:
Licensor’s Name: Civizen, Inc. Licensor’s Address: 404 Bryant St San Francisco CA 94015 Licensor’s E-mail Address: support@Watchful.co
1. Consent to Use of Data.
You agree that Licensor and its subsidiaries and agents may collect and use personal, geographic, diagnostic, technical, usage and related information, including information about your Mobile Device and application software, that is gathered periodically to facilitate the provision of software updates, product support and other services to you, and to verify compliance with the terms of this License. Licensor may use and disclose this information to improve our products, to provide services or technologies to you, for research purposes, to permit third parties to support our business (in which case, we will require such third parties to agree to use such information solely for the same purposes for which we may use such information), in situations involving threats to the physical safety of any person, to respond to law enforcement requests and subpoenas, and in connection with the sale, merger, liquidation, dissolution, reorganization, assignment or other transfer of Licensor (in which case, Licensor will require the potential successor entity to agree to use such information solely for the same purposes for which we may use such information). Licensor may de-identify and aggregate your personal information (including, without limitation, usage statistics and geo-location information) with information from other users of the Application, Portal or Service. Licensor may use or disclose such aggregated information, in its sole discretion; provided that such aggregated information does not include any personally identifying information.
This License is effective until terminated. Your rights under this License will terminate automatically without notice from Licensor if you fail to comply with any term(s) of this License. You may terminate this License with 30 days prior notice to Licensor sent via the Portal. Licensor may terminate this License as follows: (i) three (3) days following notice sent in accordance with Section 12 for any or no reason or (ii) immediately following notice sent in in accordance with Section 12 below if we determine, in our sole and absolute discretion based solely on the information then presented to us, that you have (a) failed to keep confidential all passwords, log-in information, etc., (b) used the Application, Portal or Services in any manner that negatively affects us, (c) failed to comply with any applicable law or our policies in connection with the Application, Portal or the Services or (d) for other good cause as we determine in good faith based on the information then currently available to us. We may terminate this License with respect to a specific version of the Application within a reasonable time following the issuance of a new version of such Application. Upon the termination of this License, you shall cease all use of the Application, Portal and the Services and destroy all copies, full or partial, of the Application. Sections 3(d), 3(i), 3(k), and 4 through 11, inclusive, shall survive any such termination. Licensor is not obligated to continue making the Application available for any period of time.
1. Disclaimer of Warranties.
YOU ACKNOWLEDGE AND AGREE THAT (I) USE OF THE APPLICATION, PORTAL AND/OR SERVICES IS AT YOUR SOLE RISK AND THE ENTIRE RISK AS TO THE SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, EFFORT AND RESULTS REMAINS SOLELY WITH YOU, (II) THE APPLICATION, THE PORTAL AND THE SERVICES ARE INTENDED TO REDUCE (BUT NOT ELIMINATE) THE RISK OF LOSS, HARM, OR DANGER; AND (III) THE PRICE OF THE APPLICATION, THE PORTAL AND SERVICES IS INSUFFICIENT TO GUARANTEE THAT NO LOSS OR DAMAGE WILL OCCUR. THE APPLICATION, PORTAL AND SERVICES ARE PROVIDED "AS IS", WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND. LICENSOR HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE APPLICATION AND PORTAL, EXPRESS, IMPLIED OR STATUTORY, INCLUDING THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, GOOD AND WORKMANLIKE SERVICES, ACCURACY, QUIET ENJOYMENT AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. LICENSOR DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE APPLICATION OR THE PORTAL, THAT (A) THE FUNCTIONS CONTAINED IN THE APPLICATION OR PORTAL WILL MEET YOUR REQUIREMENTS, (B) THE OPERATION OF THE APPLICATION, PORTAL OR SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR (C) DEFECTS IN THE APPLICATION, PORTAL OR SERVICES WILL BE CORRECTED. YOU FURTHER ACKNOWLEDGE THAT THE APPLICATION, PORTAL OR SERVICES ARE NOT INTENDED OR SUITABLE FOR USE IN SITUATIONS OR ENVIRONMENTS WHERE THE FAILURE OF, OR ERRORS OR INACCURACIES IN THE CONTENT, DATA OR INFORMATION PROVIDED BY THE APPLICATION, PORTAL OR SERVICES COULD LEAD TO DEATH, PERSONAL INJURY, OR PROPERTY DAMAGE. THERE IS NO GUARANTEE THAT THE APPLICATION, PORTAL OR SERVICES WILL FUNCTION AS INTENDED, THAT ALL OR ANY FUNCTIONALITY WILL BE OPERATIONAL AT ALL TIMES. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY LICENSOR OR AN LICENSOR AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. SHOULD THE APPLICATION OR PORTAL PROVE DEFECTIVE, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION. SOME JURISDICTIONS DO NOT PERMIT THE WAIVER OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE WAIVERS AND LIMITATIONS MAY NOT APPLY TO YOU.
NOTWITHSTANDING THE FOREGOING, IF THE APPLICATION FAILS TO CONFORM TO ANY APPLICABLE WARRANTY, YOU MAY SO NOTIFY APPLE AND APPLE MAY REFUND THE PURCHASE PRICE FOR THE APPLICATION TO YOU AND APPLE WILL HAVE NO OTHER WARRANTY OBLIGATIONS WHATSOEVER WITH RESPECT TO THE APPLICATION.
1. Our Liability is Limited.
A. IN NO EVENT SHALL LICENSOR OR ANY OF LICENSOR’S DIRECTORS, OFFICERS, MEMBERS, SHAREHOLDERS, PARTNERS, PRINCIPALS, AGENTS, SERVANTS, EMPLOYEES, CONTRACTORS OR ANY OF THEIR RESPECTIVE SUCCESSORS, ASSIGNS, HEIRS OR PERSONAL REPRESENTATIVES (COLLECTIVELY, THE “LICENSOR PARTIES”) BE LIABLE TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY CLAIM, LOSS, DAMAGE, DEMAND, INJURY OR COST OR EXPENSE (COLLECTIVELY “DAMAGE”), ARISING OUT OF OR FROM, IN CONNECTION WITH OR AS A RESULT OF (A) THIS LICENSE (INCLUDING THE BREACH OF THIS LICENSE), (B) THE APPLICATION, (C) THE PORTAL, (D)THE SERVICES, (E) BREACH OF WARRANTY (EXPRESS OR IMPLIED), (F) PRODUCTS LIABILITY, (G) STRICT LIABILITY, (H) THE ACTIVE OR PASSIVE SOLE, JOINT OR SEVERAL NEGLIGENCE, NO MATTER WHEN ANY SUCH (1) NEGLIGENCE MAY HAVE OCCURRED OR (2) DAMAGES MAY HAVE BEEN SUSTAINED, (I) ANY CLAIM FOR SUBROGATION, CONTRIBUTION OR INDEMNIFICATION, (J) SYSTEM DOWNTIME, OPERATIONAL ERRORS, LOSS OF DATA, DELIVERY ERRORS, TRANSMISSION LOSSES OR LACK OF SERVICE, OR (K) ANY INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING DAMAGES FOR PERSONAL INJURY, LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE APPLICATION, PORTAL AND/OR SERVICES, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE) AND EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
B. LICENSOR IS NOT AN INSURER. YOU WILL KEEP INSURANCE COVERING YOU AND ALL OTHERS FOR ALL DAMAGE THAT YOU OR OTHERS MAY SUSTAIN OR FOR WHICH YOU MAY BE LIABLE. YOU (I) AGREE TO LOOK EXCLUSIVELY TO SUCH INSURANCE IN THE EVENT OF ANY DAMAGES AND (II) RELEASE EACH OF THE LICENSOR PARTIES FOR ALL DAMAGES COVERED BY YOUR INSURANCE POLICIES AND ANY INSURANCE DEDUCTIBLES, SELF-INSURED RETENTIONS OR SIMILAR AMOUNTS. YOU ALSO WAIVE ANY RIGHTS YOUR INSURANCE COMPANY MAY HAVE AGAINST US FOR MONEY PAID TO YOU OR ON YOUR BEHALF, INCLUDING ALL RIGHTS OF SUBROGATION.
C. YOU ALONE ASSUME THE RISK THAT UNAUTHORIZED PERSONS MAY ACCESS YOUR MOBILE DEVICE OR OTHER EQUIPMENT, INCLUDING OUR SERVERS OR DATA IN CONNECTION WITH THE APPLICATION, PORTAL AND SERVICES.
D. YOU AGREE TO INDEMNIFY, DEFEND AND HOLD HARMLESS EACH OF THE LICENSOR PARTIES FROM AND AGAINST ANY DAMAGES (INCLUDING REASONABLE ATTORNEYS’ FEES) ASSERTED AGAINST OR INCURRED IN CONNECTION WITH OR AS A RESULT OF ANY CLAIMS OF ANY PERSON OR ENTITY NOT A PARTY TO THIS LICENSE (EACH, A “THIRD-PARTY”) (COLLECTIVELY, THE “THIRD-PARTY CLAIMS”) ARISING OUT OF OR FROM, IN CONNECTION WITH OR AS A RESULT OF CAUSED BY, DIRECTLY OR INDIRECTLY RESULTING FROM, OR ARISING IN CONNECTION WITH, (I) YOUR BREACH OF THIS LICENSE OR (II) THE ACTIVE OR PASSIVE SOLE, JOINT OR SEVERAL NEGLIGENCE OF YOU OR ANY OF THE LICENSOR PARTIES. IF A THIRD PARTY, INCLUDING ANY INSURANCE COMPANY, ASKS ANY OF THE LICENSOR PARTIES TO PAY FOR ANY DAMAGES FOR WHICH ANY SUCH LICENSOR PARTY IS INDEMNIFIED UNDER THESE TERMS, YOU WILL INDEMNIFY SUCH LICESNOR PARTY WITHOUT ANY CONDITION THAT SUCH LICENSOR PARTY FIRST PAY ANY SUCH DAMAGES.
E. IN NO EVENT WILL ANY OF THE LICENSOR PARTIES BE LIABLE TO YOU OR ANY OTHER PERSON OR ENTITY IN AN AMOUNT IN EXCESS OF TWO THOUSAND ($2,000.00) DOLLARS. IF YOU WISH TO INCREASE THE MAXIMUM AMOUNT OF THE LIMITED LIABILITY DESCRIBED IN THIS SECTION, YOU MAY OBTAIN A HIGHER LIMIT BY PAYING US AN ADDITIONAL AMOUNT DETERMINED BY US BUT WE WILL NOT BE HELD TO BE AN INSURER.
F. YOU ARE SOLELY RESPONSIBLE (A) FOR ALL CONTENT STORED ON OR RETRIEVED FROM YOUR MOBILE DEVICE AND (B) TO KEEP THE INFORMATION IN THE APPLICATION AND PORTAL, INCLUDING ANY CONTACT INFORMATION, CURRENT, ACCURATE AND COMPLETE. LICENSOR WILL NOT BE HELD LIABLE FOR YOUR FAILURE TO DO SO.
G. YOU UNDERSTAND, ACKNOWLEDGE AND AGREE THAT LICENSOR, NOT APPLE, IS SOLELY RESPONSIBLE FOR ANY CLAIMS BY YOU OR ANY THIRD-PARTY RELATING TO THE APPLICATION OR USE OF THE APPLICATION OR SERVICES, INCLUDING ANY PRODUCT LIABILITY CLAIMS OR CLAIMS THE APPLICATION FAILS TO CONFORM TO ANY APPLICABLE LEGAL OR REGULATORY REQUIREMENT, INCLUDING CLAIMS ARISING UNDER ANY CONSUMER PROTECTION OR SIMILAR LEGISLATION.
H. THE LIMITATIONS IN SECTION 7 APPLY REGARDLESS OF ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
1. Controlling Law and Severability.
This License will be governed by and construed in accordance with the laws of the state where Licensor’s principal place of business is located, excluding its conflict of law principles. If for any reason a court of competent jurisdiction finds any provision, or portion thereof, to be unenforceable, the remainder of this License shall continue in full force and effect.
1. Force Majeure.
Our failure to perform or provide or properly perform or provide the Services and/or the unavailability or interruption of Services will be excused, and we will not be liable for any related damages, to the extent the event is beyond our reasonable control, including any act of God, hurricanes, fire, flood, explosion, civil commotion, insurrection, riot, strike, industrial or labor dispute of any kind (whether of our own or third-party employees), breakdown of facilities, microwave or other electrical, or physical signal interference or governmental acts or orders or restrictions.
1. Terms Applicable to Third-Parties.
Licensor may, in its sole and absolute discretion, subcontract for the provision of any of the Services. The terms of this License inure to the benefit of and are applicable to (i) Apple and Apple’s subsidiaries; (ii) any subcontractors engaged to provide any of the Services to you; and (ii) each of the Licensor Parties and bind you to all such persons or entities listed in subsection (i) or (ii) with the same force and effect as they bind you to Licensor. You agree that the persons or entities listed in this section shall have the right to enforce the terms and conditions of this License against you as a third-party beneficiary.
1. JURISDICTION, VENUE AND WAIVER OF JURY TRIAL.
EACH PARTY HEREBY IRREVOCABLY AGREES THAT ANY SUIT, ACTION OR OTHER LEGAL PROCEEDING ("SUIT") ARISING OUT OF OR FROM, IN CONNECTION WITH OR AS A RESULT OF THIS LICENSE SHALL BE BROUGHT EXCLUSIVELY IN THE STATE COURTS OF RECORD OR THE COURTS OF THE UNITED STATES LOCATED IN THE DISTRICT OR COUNTY WHERE COMPANY'S PRINCIPAL PLACE OF BUSINESS IS LOCATED. EACH PARTY CONSENTS TO THE EXCLUSIVE JURISDICTION AND VENUE OF EACH SUCH COURT IN ANY SUCH SUIT AND WAIVES ANY OBJECTION THAT IT MAY HAVE TO JURISDICTION OR VENUE OF ANY SUCH SUIT. EACH PARTY HEREBY WAIVES ANY RIGHT TO TRIAL BY JURY IN ANY SUIT BROUGHT BY EITHER PARTY.
This License constitutes the entire agreement between the parties with respect to the use of the Application licensed hereunder and supersedes all prior or contemporaneous understandings regarding such subject matter. Licensor may amend or modify this License at any time by delivering a modification notice (each a “Notice”) to you via e-mail at the e-mail address you provide on the Portal. Any Notice shall, once transmitted, amend the terms this License. If you (i) object to any amended terms; (ii) you do not agree to this License or (iii) become dissatisfied with the Services or the Application in any way, your sole recourse is to immediately discontinue use of the Services and the Application. You may not amend or modify this License unless such amendment or modification is in writing and signed by Licensor. When used in this License, the term “including” means “including, without limitation or example.” You may not assign this License. Licensor may assign all or any portion of this License.