PLEASE READ THE FOLLOWING LICENSE AGREEMENT CAREFULLY BEFORE ACCESSING OR USING THE APPLICATION.
This End-User License Agreement (“EULA”), as amended from time to time, is an agreement between you and Hamilton & Weston Holdings, LLC, or any of its subsidiaries and affiliates including but not limited to ExtremeBytes Software (collectively, the “Company”). You and the Company also may be referred to as the “Parties” in this EULA.
1. Limited License Grant and Term of Use.
A. Grant. Upon payment (if applicable) and installation of the Application, you are procuring and the Company is granting to you a limited, personal, non-exclusive and non-transferable license to install and use the Application on an Apple branded product that you own or control for your personal use subject to the terms of this EULA as set forth below and as permitted by the Usage Rules set forth in the Apple App Store Terms of Service. You may also make one additional copy for backup purposes only. The Company reserves all rights not expressly granted in this license. Your license rights under this EULA are subject to your continued compliance with this EULA’s requirements. You expressly may not, or enable others to, copy, display, seek to disable, perform, modify, publish, create derivative works, sublicense, rent, lease, transfer or otherwise distribute, or use the Application except as expressly authorized by the Company. You may not remove or alter the Company’s trademarks, logos, or legal notices included in the Application or related assets.
B. Reservation of Rights. Except as expressly licensed to you in this EULA, the Company reserves all right, title, and interest in and to the Application (including without limitation all code, images, designs, video, text, and components) and all associated copyrights, trademarks, service marks, and other intellectual property rights in and to the Application. This license is limited to the intellectual property rights of the Company and its licensors in the Application and it does not include any rights to other patents or intellectual property rights. Except to the extent permitted under applicable law, you may not decompile, disassemble, or reverse engineer the Application or any component of the Application. You may not remove, obscure, or alter any product identification, copyright, or other intellectual property notices in the Application. All rights not expressly granted in this EULA are reserved by the Company and the Company retains all ownership of the software.
C. Your Contributions. In exchange for the use of this Application, and to the extent that your contributions through use of the Application, if any, give rise to any copyright interest, you hereby grant to the Company an exclusive, perpetual, irrevocable, fully transferable, and sub-licensable worldwide right and license to use your contributions in any way and for any purpose, including the rights to reproduce, copy, adapt, modify, perform, display, publish, create derivative works, broadcast, transmit, or otherwise communicate by any means whether now known or unknown and distribute your contributions, if any, without any further notice or compensation to you of any kind for the whole duration of protection granted to intellectual property rights by applicable laws and international conventions. You hereby waive any moral rights of paternity, publication, reputation, or attribution with respect to the Company’s use and enjoyment of the contributions, if any. This license grant to the Company as well as your waiver of any applicable moral rights survives any termination of this EULA.
2. Access. You must provide at your own expense the equipment, Internet connections or mobile devices and/or service plans to access and use the Application. The Company does not guarantee that the Application can be accessed on all wireless devices or wireless service plans. The Company does not guarantee that the Application is available in all geographic locations. You acknowledge that when you use this Application, your wireless carrier may charge you fees for data, messaging and/or other wireless access. YOU ARE SOLELY RESPONSIBLE FOR ANY COSTS YOU INCUR TO ACCESS AND USE THIS APPLICATION FROM YOUR DEVICE.
4. Health and Fitness. Some Applications provided by the Company relate to health and fitness. The content supplied with the Application as well as any information generated by use of the Application is provided for informational purposes only and is not intended to be a substitute for professional medical advice, diagnosis, or treatment. Always seek the advice of your physician or other qualified health provider with any questions you may have regarding a medical condition. Never disregard professional medical advice or delay in seeking it because of something you have obtained or accessed through use of the Application. Further, consult your physician or healthcare professional before beginning or following any health related program. The Company is not responsible for the accuracy, reliability, effectiveness, nor correct use of the information and/or services you obtain through use of the Application, and by accessing, installing, or using the Application, you agree to indemnify and hold harmless the Company for any loss, liability, claim, damage, and expenses (including reasonable attorneys’ fees) arising from or in connection with your use or access of the Application.
5. Termination. This EULA is effective until terminated. Your rights under this EULA will terminate immediately and automatically without any notice from the Company if you fail to comply with any of the terms and conditions of this EULA. Promptly upon termination, you must cease all use of the Application and destroy all copies of the Application in your possession or control. Termination shall not limit any of the Company’s other rights or remedies at law or in equity. Sections 1B, 1C, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, and 14 shall survive termination or expiration of this EULA for any reason.
6. Disclaimer of Warranties.
A. TO THE MAXIMUM EXTENT PERMISSIBLE UNDER APPLICABLE LAW, THE APPLICATION IS PROVIDED TO YOU “AS IS” AND “AS AVAILABLE”, WITH ALL FAULTS, WITHOUT WARRANTY OF ANY KIND, WITHOUT PERFORMANCE ASSURANCES OR GUARANTEES OF ANY KIND, AND YOUR USE IS AT YOUR SOLE RISK. THE ENTIRE RISK OF SATISFACTORY QUALITY AND PERFORMANCE RESIDES WITH YOU. THE COMPANY AND THE COMPANY’S LICENSORS (COLLECTIVELY, “THE COMPANY” FOR THE PURPOSES OF THIS SECTION AND SECTION 8) DO NOT MAKE, AND HEREBY DISCLAIM, ANY AND ALL EXPRESS, IMPLIED OR STATUTORY WARRANTIES, INCLUDING IMPLIED WARRANTIES OF CONDITION, INTERRUPTED USE, MERCHANTIBILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, AND WARRANTIES (IF ANY) ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. THE COMPANY DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE APPLICATION; THAT THE APPLICATION WILL MEET YOUR REQUIREMENTS; THAT OPERATION OF THE APPLICATION WILL BE UNINTERRUPTED OR ERROR-FREE; OR THAT THE APPLICATION WILL INTEROPERATE OR BE COMPATIBLE WITH ANY OTHER APPLICATION OR THAT ANY ERRORS IN THE APPLICATION WILL BE CORRECTED. NO ORAL OR WRITTEN ADVISE PROVIDED BY THE COMPANY OR ITS AUTHORIZED REPRESENTATIVES SHALL CREATE A WARRANTY. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATIONS ON THE APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.
B. THIS EULA DISCLAIMS ALL WARRANTIES TO THE EXTENT PERMITTED BY LAW. SHOULD APPLICABLE LAW PROHIBIT A DISCLAIMER OF CERTAIN WARRANTIES AND, IN THAT EVENT ONLY, SHOULD THE APPLICATION FAIL TO CONFORM TO SUCH WARRANTY, YOU MAY NOTIFY APPLE AND APPLE MAY REFUND THE PURCHASE PRICE FOR THE APPLICATION TO YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, APPLE WILL HAVE NO OTHER WARRANTY OBLIGATION WHATSOEVER WITH RESPECT TO THE APPLICATION.
7. Limitation of Liability.
A. TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, IN NO EVENT SHALL THE COMPANY BE LIABLE TO YOU FOR ANY PERSONAL INJURY, PROPERTY DAMAGE, LOST PROFITS, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OF DATA, LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR ANY OTHER FORM OF DIRECT OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES FROM ANY CAUSES OF ACTION ARISING OUT OF OR RELATED TO THIS LICENSE OR THE APPLICATION, WHETHER ARISING IN TORT (INCLUDING NEGLIGENCE), CONTRACT, STRICT LIABILITY, OR OTHERWISE, WHETHER OR NOT THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. SOME JURISDICTIONS DO NOT ALLOW A LIMITATION OF LIABILITY FOR DEATH, PERSONAL INJURY, FRAUDULENT MISREPRESENTATIONS, OR CERTAIN INTENTIONAL OR NEGLIGENT ACTS, OR VIOLATION OF SPECIFIC STATUTES, OR THE LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO SOME OR ALL OF THE ABOVE LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU. IN NO EVENT SHALL THE COMPANY’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES (EXCEPT AS REQUIRED BY APPLICABLE LAW) EXCEED THE AMOUNT ACTUALLY PAID BY YOU FOR THE APPLICATION.
B. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, OTHER THAN THE OBLIGATION ESTABLISHED BY SECTION 6.B ABOVE, APPLE WILL HAVE NO OBLIGATION WHATSOEVER WITH RESPECT TO THE APPLICATION, AND ANY OTHER CLAIMS, LOSSES, LIABILITIES, DAMAGES, COSTS OR EXPENSES ATTRIBUTABLE TO ANY FAILURE TO CONFORM TO ANY WARRANTY, IF ANY, WILL BE THE COMPANY’S RESPONSIBILITY.
8. Limitation of Liability and Disclaimer of Warranties are MATERIAL TERMS of this EULA. You agree that the provisions of this EULA that limit liability are essential terms of this EULA. You and the Company acknowledge that the Company, not Apple, is responsible for addressing any claims by you or a third party relating to the Application, including but not limited to: (i) product liability claims; (ii) any claim that the Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. This EULA does not limit the Company’s liability to you beyond what is permitted by applicable law.
9. Severability and Survival. If any provision of this EULA is illegal or unenforceable under applicable law, the remainder of the provision shall be amended to achieve as closely as possible the effect of the original term and all other provisions of this EULA shall continue in full force and effect.
10. U.S. Government Restricted Rights. The Application provided in connection with this EULA has been developed entirely at private expense, as defined in FAR Section 2.101, DFARS Section 252.227-7014(a)(1) and DFARS Section 252.227-7-15 (or any equivalent or subsequent agency regulation regarding this subject matter), and is provided as “commercial items”, “commercial computer Application” and/or “commercial computer Application documentation”. Consistent with DFARS section 227.7202 and FAR Section 12.212, and to the extent required under U.S. federal law, the minimum restricted rights as set forth in FAR Section 52.227-19 (or any equivalent or subsequent agency regulation) any use, modification, reproduction, release performance, display, disclosure, or distribution of the Application by or for the U.S. Government shall be governed by this EULA and shall be prohibited except to the extent expressly permitted by this License.
11. Injunctive Relief. Any breach of this EULA will cause irreparable injury to the Company for which monetary damages would not be an adequate remedy. The Company therefore shall be entitled to seek equitable relief in addition to any remedies it may have under this EULA or at law without a bond, other security, or proof of damages.
12. Governing Law. The laws of the State of Texas, excluding its conflicts of laws rules, govern this EULA and/or your use of the Application. You also expressly agree that exclusive jurisdiction for any claim or action arising out of or relating to this EULA and/or your use of the Application shall be in the state or federal courts for the County of Travis, State of Texas, and you expressly consent to the exercise of personal jurisdiction of such courts. The Parties further agree that the UN Convention on Contracts for the International Sale of Goods shall not apply to this EULA or to any dispute or transaction arising under this EULA.
13. Export Compliance. You agree to abide by U.S. and other applicable export control laws and agree not to transfer the Application to a foreign national or national destination that is prohibited by such laws unless you first obtain and then comply with any requisite government authorization. You also certify that you are not a person with whom the Company is prohibited from transacting business under applicable export control laws. You represent and warrant that you: (i) are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) are not listed on any U.S. Government list of prohibited or restricted parties.
14. Miscellaneous; Entire Agreement. This EULA is the entire agreement between the Parties with respect to the Application and supersedes all prior or contemporaneous understandings regarding the subject matter. No amendment to or modification of this EULA shall be binding unless made in writing and signed by an authorized representative of the Company. No failure to exercise or delay in exercising any right or power under this EULA shall operate as a waiver of that right or power or preclude further exercise of any right under this EULA. In the event of a conflict between this EULA and any applicable purchase or other terms, the terms of this EULA shall control. You must comply with applicable third party terms of agreement when using the Company’s Application. For example, if the Application contains VoIP, then you must not be in violation of your wireless data service agreement when using your Application. You and the Company acknowledge and agree that Apple and Apple’s subsidiaries are third party beneficiaries of this EULA and that, upon Your acceptance of the terms and conditions 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 hereof. You and the Company acknowledge that, in the event of a third party claim that the Application or your possession and use of the Application infringes that third party’s intellectual property rights, the Company, not Apple, will be solely responsible for the investigations, defense, settlement, and discharge of any such intellectual property infringement claim. Please direct all questions, complaints, or claims with respect to the Application to ExtremeBytes Software via the Contact page.
Apple and App Store are trademarks of Apple, Inc., registered in the U.S. and other countries.
EFFECTIVE DATE: January 11, 2016