Mobile Application End User License Agreement
This End User License Agreement for Mobile Applications, including without limitation, all attachments hereto (collectively, the “Agreement”) applies to the applications listed below and any other applications (including without limitation bug fix, updates, upgrades, and general, limited and early access releases), that Kwippy (the “Company”,“Kwippy”, “We”, “Us” or “Our") may make available in the future under these terms (each an “App” and collectively the “Applications”). This Agreement is a binding agreement between you (“You”, “Your” or “End User”) and the Company. The App is licensed, not sold, to you. This Agreement governs your use of:
1. Kwippy for iOS
2. Kwippy for Android
By clicking the “Agree” button, downloading, installing, and using the App, you (a) acknowledge that you have read and understand this Agreement; (b) represent that you are 13 years of age or older; and (C) accept this Agreement and agree that you are legally bound by its terms. If you do not agree to these terms, do not download, install, or use the App and delete it from your mobile device.
1. License Grant. Subject to the terms and conditions of this Agreement, Company hereby grants You, and You accept, a limited, non-exclusive, royalty free, non-transferable, non-sublicensable, revocable license during the Term (as defined below) solely to:
a. Download, install, and use the App for your personal or business use on a single mobile device operating on either an iOS or Android operating system, owned or otherwise controlled by you (the “Mobile Device”) strictly in accordance with the App’s documentation; and
b. Access, stream, download, and use on such Mobile Device the Content and Services (as defined in Section 5) made available in or otherwise accessible through the App, strictly in accordance with this Agreement and the terms set forth in Section 2.
2. Incorporated Terms. Your use of the App is further subject to and governed by the following terms and conditions (which may be updated from time to time at Company’s sole discretion):
3. License Restrictions. You shall not:
a. copy the App, except as expressly permitted by this license;
b. modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the App;
c. reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the App or any part thereof;
d. remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the App, including any copy thereof;
e. rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the App, or any features or functionality of the App, to any third party for any reason, including by making the App available on a network where it is capable of being accessed by more than one device at any time; or
f. remove, disable, circumvent, or otherwise create or implement any workaround to any copy protection, rights management, or security features in or protecting the App; or
g. use the App in, or in association with, the design, construction, maintenance, or operation of any hazardous environments or systems, including any power generation systems; aircraft navigation or communication systems, air traffic control systems or any other transport management systems; safety-critical applications, including medical or life-support systems, vehicle operation applications or any police, fire, or other safety response systems; and military or aerospace applications, weapons systems, or environments.
4. Reservation of Rights. You acknowledge and agree that the App is provided under license and not sold to You. You do not acquire any ownership interest in the App under this Agreement, or any other rights thereto other than to use the App in accordance with the license granted, and subject to all terms, conditions, and restrictions, under this Agreement. Company reserves and shall retain its entire right, title, and interest in and to the App, including all copyrights, trademarks, and other intellectual property rights therein or relating thereto, except as expressly granted to You in this Agreement.
7. Updates. Company may from time to time in its sole discretion develop and provide App updates, which may include upgrades, bug fixes, patches, other error corrections, and/or new features (collectively, including related documentation, “Updates”). Updates may also modify or delete in their entirety certain features and functionality. You agree that Company has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality. Based on Your Mobile Device settings, when Your Mobile Device is connected to the internet either:
a. the App will automatically download and install all available Updates; or
b. You may receive notice of or be prompted to download and install available Updates.
You shall promptly download and install all Updates and acknowledge and agree that the 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 App and be subject to all terms and conditions of this Agreement.
8. Third-Party Materials. The App may display, include, or make available third-party content (including data, information, apps, and other products, services, and/or materials) or provide links to third-party websites or services, including through third-party advertising (“Third-Party Materials”). You acknowledge and agree that Company is not responsible for Third-Party Materials, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect thereof. Company does not assume and will not have any liability or responsibility to You or any other person or entity for any Third-Party Materials. Third-Party Materials and links thereto are provided solely as a convenience to You, and You access and use them entirely at Your own risk and subject to such third parties’ terms and conditions.
9. Term and Termination.
a. The term of Agreement commences when You download/install the App and acknowledge Your acceptance, and will continue in effect until terminated by You or Company as set forth in this Section 9 (the “Term”).
b. You may terminate this Agreement by deleting the App and all copies thereof from Your Mobile Device.
c. Company may terminate this Agreement at any time without notice if it ceases to support the App, which Company may do at its sole discretion or due to any other reason. In addition, this Agreement will terminate immediately and automatically without any notice if You violate any of the terms and conditions of this Agreement.
d. Upon termination:
i. all rights granted to You under this Agreement will also terminate; and
ii. You must cease all use of the App and delete all copies of the App from your Mobile Device and account
iii. Termination will not limit any of Company’s rights or remedies at law or in equity.
10. Geographic Restrictions. The owner of the App is based in the state of Washington in the United States. We provide this App for use only by persons located in the United States. We make no claims that the App or any of its content is accessible or appropriate outside of the United States. Access to the App may not be legal by certain persons or in certain countries. If you access the App from outside the United States, you do so on your own initiative and are responsible for compliance with local laws.
11. Disclaimer of Warranties. You understand that we cannot and do not guarantee or warrant that files available for downloading from the internet or the App or Services will be free of viruses or other destructive code. You are responsible for implementing sufficient procedures and checkpoints to satisfy your particular requirements for anti-virus protection and accuracy of data input and output, and for maintaining a means external to our site for any reconstruction of any lost data.
We will not be liable for any loss or damage caused by a distributed denial-of-service attack, viruses or other technologically harmful material that may infect your computer equipment, computer programs, data or other proprietary material due to your use of the App or any services or items obtained through the App or to Your downloading of any material posted on it, or on any website or service linked to it.
Your use of the App and Our Services, its Content and any Services or items obtained through the App is at Your own risk. The App and Our Services, its content and any services or items obtained through the App are provided on an “as is” and “as available” basis, without any warranties of any kind, either express or implied. Neither the Company nor any person associated with the Company makes any warranty or representation with respect to the completeness, security, reliability, quality, accuracy or availability of the App or Services. Without limiting the foregoing, neither the Company nor anyone associated with the Company represents or warrants that the App or Services, its content or any services or items obtained through the App or Services will be accurate, reliable, error-free or uninterrupted, that defects will be corrected, that Our site or the server that makes it available are free of viruses or other harmful components or that the App or Services will otherwise meet Your needs or expectations.
The Company hereby disclaims all warranties of any kind, whether express or implied, statutory or otherwise, including but not limited to any warranties of merchantability, non-infringement and fitness for a particular purpose.
The foregoing does not affect any warranties which cannot be excluded or limited under applicable law.
12. Limitation on Liability. In no event will the Company, its affiliates or their licensors, service providers, employees, agents, officers or directors be liable for damages of any kind, under any legal theory, arising out of or in connection with your use, or inability to use, the App or Services, any websites linked to it, any content on the App or Services, any websites linked to it, any content on the App or Services or such other Apps or services or any services or items obtained through the App or Services, including any direct, indirect, special, incidental, consequential or punitive damages, including but not limited to, personal injury, pain and suffering, emotional distress, loss of revenue, loss of profits, loss of business or anticipated savings, loss of use, loss of goodwill, loss of data, and whether caused by tort (including negligence), breach of contract or otherwise, even if foreseeable.
The foregoing does not affect any liability which cannot be excluded or limited under applicable law.
13. Indemnification. You (and also any third party for whom you operate an account or activity on the App) agree to defend, indemnify and hold harmless the Company, its affiliates, licensors and service providers, and its and their respective officers, directors, employees, contractors, agents, licensors, suppliers, successors and assigns from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses or fees (including reasonable attorneys' fees) arising out of or relating to: (i) your access to or use of the App; (ii) your breach or alleged breach of this Agreement; (iii) your violation of any third-party right, including without limitation, any intellectual property right, publicity, confidentiality, property or privacy right; (iv) your violation of any laws, rules, regulations, codes, statutes, ordinances or orders of any governmental and quasi-governmental authorities, including, without limitation, all regulatory, administrative and legislative authorities; or (v) any misrepresentation made by you. You will cooperate as fully required by the Company in the defense of any claim. Company reserves the right to assume the exclusive defense and control of any matter subject to indemnification by you, and you will not in any event settle any claim without the prior written consent of Company.
14. Export Regulation. You may not use or otherwise export or re-export the App except as authorized by United States law and the laws of the jurisdiction in which the App was obtained. In particular, but without limitation, the App may not be exported or re-exported (a) into any U.S.-embargoed countries or (b) to anyone on the U.S. Treasury Department's Specially Designated Nationals List or the U.S. Department of Commerce Denied Persons List or Entity List. By using the App, You represent and warrant that You are not located in any such country or on any such list. You also agree that You will not use these products for any purposes prohibited by United States law, including, without limitation, the development, design, manufacture, or production of nuclear, missile, or chemical or biological weapons.
15. US Government Rights. The App and related documentation are "Commercial Items", as that term is defined at 48 C.F.R. §2.101, consisting of "Commercial Computer Software" and "Commercial Computer Software Documentation", as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished rights reserved under the copyright laws of the United States.
16. Governing Law and Jurisdiction. All matters relating to the App and this Agreement and any dispute or claim arising therefrom or related thereto (in each case, including non-contractual disputes or claims), shall be governed by and construed in accordance with the internal laws of the State of Washington without giving effect to any choice or conflict of law provision or rule (whether of the State of Washington or any other jurisdiction).
Any legal suit, action or proceeding arising out of, or related to, this Agreement or the App shall be instituted exclusively in the federal courts of the United States or the courts of the State of Washington, in each case located in the City of Seattle and County of King County, although we retain the right to bring any suit, action or proceeding against you for breach of this Agreement in your country of residence or any other relevant country. You waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts.
17. Arbitration. At Company's sole discretion, it may require You to submit any disputes arising from the use of this Agreement or the App, including disputes arising from or concerning their interpretation, violation, invalidity, non-performance, or termination, to final and binding arbitration under the Rules of Arbitration of the American Arbitration Association applying Washington law.
18. Limitation on Time to File Claims.
Any cause of action or claim You may have arising out of or relating to this Agreement must be commenced within one (1) year after the cause of action accrues, otherwise, such cause of action or claim is permanently barred.
19. Waiver and Severability. No waiver of by the Company of any term or condition set forth in this Agreement shall be deemed a further or continuing waiver of such term or condition or a waiver of any other term or condition, and any failure of the Company to assert a right or provision under this Agreement shall not constitute a waiver of such right or provision.
If any provision of this Agreement is held by a court or other tribunal of competent jurisdiction to be invalid, illegal or unenforceable for any reason, such provision shall be eliminated or limited to the minimum extent such that the remaining provisions of this Agreement will continue in full force and effect.
Last Updated October 31st, 2017