1. LICENSE GRANT
Subject to these Terms, Company grants you a limited, non-commercial, non-exclusive, non-sublicensable, non-transferable, non-assignable, revocable license to download and use a compiled version of the Mobile Application for its intended purpose, through a mobile computing device ("Mobile Device"). The Mobile Application is compatible only with IOS or Android Mobile Devices. This license grant is not a sale of the Mobile Application or any copy thereof, and Company retains all right, title, and interest in the Mobile Application. The Company reserves all rights not expressly granted herein in the Mobile Application. The Company may terminate this license at any time for any reason or no reason. Please note that you are solely responsible for the functioning of your Mobile Device and the Company has no liability for any inability to use the Mobile Application in consequence of any technical or other problems related to your Mobile Device, including any security breaches of the Mobile Device.
2. USE RESTRICTIONS
Company imposes certain restrictions on your permissible use of the Mobile Application. You represent, warrant and agree that you will not: (i) market or distribute access to the Mobile Application or any portion thereof; (ii) assign; sublicense, sell, lease or otherwise transfer or convey your rights under these Terms; (iii) remove, circumvent, disable, damage or otherwise interfere and/or violate or attempt to violate any security feature of the Mobile Application; (iv) access or attempt to access any content, data, programs or other Company systems not intended for you; (v) attempt to modify, reverse-engineer, decompile, disassemble, or otherwise reduce or attempt to reduce to a human-perceivable form any of the source code used by Company in connection with the Mobile Application, except to the extent that such restriction is expressly prohibited by law; (vi) delete copyright and/or other proprietary rights notices on the Mobile Application; (vii) attempt to modify, copy, distribute, transmit, display, perform, reproduce, publish, rent, lease, loan, license, or create derivative works based on the Mobile Application; or (viii) use the Mobile Application for any purpose other than its intended purpose, or in any manner which intentionally or unintentionally violates any applicable local, state, national or international law or regulation.
Company reserves the right to investigate suspected violations of these Terms. If Company becomes aware of a possible violation, Company may initiate an investigation which may include gathering information from you or companies involved and the complaining party. If Company believes, in its sole discretion, that a violation of these Terms has occurred, it may terminate your right to use the Mobile Application and take any other lawful responsive action it deems appropriate. Violations of these Terms could also subject you to criminal or civil liability.
3. USER SUBMISSIONS
Any comments, feedback, suggestions and ideas disclosed, submitted or offered to Company in connection with your use of the Mobile Application (collectively "Submissions") shall be owned exclusively by Company. You agree that Company shall: (i) not be under any obligation of confidentiality, express or implied, with respect to the Submissions; (ii) be entitled to use or disclose Submissions for any purpose, without restriction worldwide; and (iii) not owe you any compensation or reimbursement of any kind under any circumstances for use or disclosure of Submissions.
4. THIRD PARTY SERVICES AND SITES
The Mobile Application may provide links to other web sites or resources. Your business dealings with any third party, third party web site or third party content (collectively "Third Party") whether found on or through the Mobile Application or not, including payment and delivery of related goods or services, and any other terms, conditions, warranties or representations, associated with such dealings, are solely between you and such Third Party. Company makes no endorsement or guarantee about the content, goods or services provided by any Third Party. Company shall not be responsible for any loss or damage of any sort incurred as the result of: (i) any dealings or transaction between you and any Third Party or as the result of the presence of such Third Party on the Mobile Application; (ii) any insufficiency of or problems with any such Third Party's background, insurance, credit or licensing; or (iii) the quality of services performed by any such third party or any other legal liability arising out of or related to the performance of such services. In the event that you have a dispute with any such third party, you release Company, its parent, subsidiaries, affiliates, directors, officers, employees, agents, partners and licensors, from any and all claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes. Unless expressly provided otherwise, these Terms govern your use of any and all third party content.
You acknowledge that Company may from time to time issue upgraded versions of the Mobile Application, and may automatically electronically upgrade the version of the Mobile Application that you are using on your Mobile Device. You consent to such automatic upgrading on your Mobile Device, and agree that these Terms will apply to all such upgrades. Your continued use of any of the Mobile Application shall constitute your acceptance of the revised Terms. If you do not agree to any of such changes, you may terminate these Terms, immediately cease all use of the Mobile Application and delete the Application from your device. You agree that such termination will be your exclusive remedy if you do not wish to abide by any changes to these Terms.
6. PROPRIETARY RIGHTS
The design of the Mobile Application and all software, technology components, text, graphics, information, content, and other material therein or displayed thereon are protected by copyright, trademark and other laws and may not be used except as permitted in these Terms or with prior written permission of the owner of such material. All rights not expressly granted hereunder are reserved. You agree that as between the parties, Company is the exclusive owner of all intellectual property rights in and to the Mobile Application and all technology components thereof, including, without limitation, all Company trademarks, trade names, service marks, trade dress and logos, all enhancements and improvements thereto, and derivatives thereof, and all patent, copyright, trademark, trade secret, trade dress and other intellectual property rights therein throughout the world (collectively the "Company IP"). Any goodwill attached to, or generated by, such Company IP is owned exclusively by Company, or its licensors, and shall inure solely to the benefit of Company, or its licensors. Nothing contained herein or in the Mobile Application should be understood as granting you any right or license to any of the Company IP, except as expressly granted herein. All rights not expressly granted herein are reserved by Company, or its licensors. Company, or its licensors, retains full and complete title to the Company IP. You shall not: (i) use or copy the Company IP in any manner not specifically set forth herein; (ii) include Company IP in your corporate name, within a domain name or within any part of URL's; (iii) obtain, use, register, or otherwise acquire any trade names, trademarks, service marks, and/or trade dress that are confusingly similar to Company IP; (iv) have any claim of ownership in the Company IP; or (v) sell, redistribute, transfer, sublicense or reproduce the Company IP, nor may you decompile, reverse-engineer, disassemble, or otherwise convert any of the Company IP to a human-perceivable form. These Terms do not limit any rights that Company may have under trade secret, copyright, patent, trademark or other laws. You acknowledge and agree that the Mobile Application contains proprietary information that is protected by applicable intellectual property and other laws. You further acknowledge and agree that content contained in any sponsor advertisements or information that may have been presented to you through the Mobile Application, if any, may be protected by copyrights, trademarks, service marks, patents or other proprietary rights and laws. Other trademarks that may appear in the Mobile Application are the property of their respective owners.
7. DISCLAIMER OF WARRANTIES
YOU HEREBY ACKNOWLEDGE AND AGREE THAT THE MOBILE APPLICATION IS PROVIDED TO YOU SOLELY AS A SERVICE TO OUR CLIENTS AND IS INTENDED AS A REFERENCE TOOL ONLY, THE RESULTS OF WHICH SHALL BE BASED ENTIRELY ON THE INPUT YOU PROVIDE. THE COMPANY DISCLAIMS ALL LIABILITY REGARDING SUCH RESULTS AND ASSUMES NO LIABILITY OR RESPONSIBILITY IN CONNECTION WITH ANY PROJECT FOR WHICH YOU MAY DECIDE TO USE THE MOBILE APPLICATION.
WITHOUT DEROGATING FROM THE ABOVE, YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF THE MOBILE APPLICATION IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU TO THE FULLEST EXTENT PERMITTED BY LAW. THE MOBILE APPLICATION IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. THE INFORMATION CONTAINED IN THE MOBILE APPLICATION MAY INCLUDE INACCURACIES, ERRORS AND OMISSIONS. TO THE FULLEST EXTENT PERMITTED BY LAW, COMPANY, ITS PARENT, SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS: (A) EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT OR ANY WARRANTY ARISING BY LAW, STATUTE, USAGE OF TRADE, OR COURSE OF DEALING; AND (B) MAKE NO WARRANTY THAT THE MOBILE APPLICATION WILL MEET YOUR REQUIREMENTS. ANY CONTENT OR MATERIAL DOWNLOADED OR UPLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE MOBILE APPLICATION IS DONE AT YOUR OWN DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR NETWORK OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR UPLOAD OF ANY SUCH MATERIAL OR THE USE OF THE MOBILE APPLICATION. COMPANY IS NOT RESPONSIBLE FOR TYPOGRAPHICAL ERRORS OR OMISSIONS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM COMPANY OR THROUGH OR FROM THE MOBILE APPLICATION SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS, SO THE FOREGOING EXCLUSIONS AND LIMITATIONS ONLY APPLY TO THE MAXIMUM EXTENT PERMITTED BY LAW.
8. LIMITATION OF LIABILITY
YOU EXPRESSLY UNDERSTAND AND AGREE THAT COMPANY, ITS PARENT, SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS SHALL NOT BE LIABLE FOR AND HEREBY EXPRESSLY DISCLAIM ANY AND ALL ACTUAL, DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR PERSONAL INJURY, CORRUPTION OR LOSS OF DATA, OR OTHER INTANGIBLE LOSSES (EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM (I) THE USE OR THE INABILITY TO USE THE MOBILE APPLICATION OR ANY THIRD PARTY SOFTWARE INCLUDED THEREIN; OR (II) ANY BUGS, VIRUSES, TROJAN HORSES, OR OTHER ACTUALLY OR POTENTIALLY HARMFUL CODE INCLUDED THEREIN; AND/OR (III) ANY OTHER MATTER RELATING TO THE MOBILE APPLICATION. IN NO EVENT SHALL COMPANY, ITS OFFICERS, EMPLOYEES, AGENTS, AND LICENSORS, LIABILITY TO YOU OR TO ANY THIRD PARTY EXCEED FIFTY DOLLARS ($50.00).
You agree to defend, indemnify and hold Company, its parent, subsidiaries, affiliates, directors, officers, employees, agents, partners and licensors, harmless from and against any and all claims, demands, losses, liability, costs and expenses (including but not limited to attorneys' fees) arising from or related to your use of the Mobile Application, your violation of the provisions of these Terms, or your violation of any third party's rights, including but not limited to infringement of any intellectual property right, violation of any proprietary right and invasion of any privacy rights. This indemnification obligation will survive the termination of your account, your access to the Mobile Application and/or these Terms.
10. APPLE DEVICE AND APPLICATION TERMS
As you may obtain the Mobile Application through the Apple App Store, the following shall apply:
A. Both you and Company acknowledge that these Terms are concluded between you and Company only, and not with Apple, and that Apple is not responsible for the Mobile Application or its content;
B. The Mobile Application is licensed to you on a limited, non-exclusive, non-transferrable, non-sublicensable basis, solely subject to these Terms as they are applicable to the Mobile Application;
C. You will only use the Mobile Application in connection with an Apple device that you own or control;
D. You acknowledge and agree that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Mobile Application;
E. In the event of any failure of the Mobile Application to conform to any applicable warranty, including those implied by law, you may notify Apple of such failure; upon notification, Apple's sole warranty obligation to you will be to refund to you the purchase price, if any, of the Mobile Application;
F. You acknowledge and agree that Company, and not Apple, is responsible for addressing any claims you or any third party may have in relation to the Mobile Application;
G. You acknowledge and agree that, in the event of any third party claim that the Mobile Application or your possession and use of the Mobile Application infringes that third party's intellectual property rights, Company, and not Apple, will be responsible for the investigation, defense, settlement and discharge of any such infringement claim;
H. You represent and warrant that you are not located in a country subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a "terrorist supporting" country, and that you are not listed on any U.S. Government list of prohibited or restricted parties;
I. Both you and Company acknowledge and agree that, in your use of the Mobile Application, you will comply with any applicable third party terms of agreement which may affect or be affected by such use; and
J. Both you and Company acknowledge and agree that Apple and Apple's subsidiaries are third party beneficiaries of these Terms, and that upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as the third party beneficiary hereof.
11. GENERAL INFORMATION
A. Entire Agreement; Interpretation. These Terms and any documents referenced herein constitute the entire agreement between you and Company and govern your use of the Mobile Application, superseding any prior agreements between you and Company (including, but not limited to, any prior versions of these Terms) with respect to its subject matter. You also may be subject to additional terms and conditions that may apply when you use affiliate or other Company services or products, third-party content or third-party software. In the event any term contained in these Terms conflicts with any other term contained in any other agreement referenced in these Terms, these Terms shall control. Except as otherwise provided in these Terms, these Terms may only be modified in a writing signed by an authorized officer of Company. The language in these Terms shall be interpreted as to its fair meaning and not strictly for or against any party.
B. Consent to Email Communications. You consent to receive communications from Company electronically and agree that we may communicate with you by email. You agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.
C. Assignment; Waiver. You may not assign these Terms or any rights granted herein. Any attempt by you to transfer any of the rights, duties or obligations hereunder is void. Company may assign or transfer these Terms or its rights or obligations hereunder without notice and without your prior approval. These Terms are for the sole benefit of the parties hereto and do not create any third-party beneficiaries, whether intended or incidental. These Terms will inure to the benefit of Company and its successors and assigns. The failure of Company to exercise or enforce any right or provision of these Terms shall not constitute a waiver of such right or provision. No waiver, express or implied, by either party of any breach of or default under these Terms will constitute a continuing waiver of such breach or default or be deemed to be a waiver of any preceding or subsequent breach or default.
D. Governing Law. THE VALIDITY, CONSTRUCTION, INTERPRETATION, AND PERFORMANCE OF THESE TERMS WILL BE EXCLUSIVELY GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE DOMESTIC LAWS OF THE STATE OF OHIO. EXCEPT AS TO ITS PRINCIPALS OF CONFLICTS OF LAWS, AND WITHOUT REGARD TO THE UNITED NATIONS CONVENTION ON THE INTERNATIONAL SALE OF GOODS. THE PARTIES AGREE THAT THIS CONTRACT IS NOT A CONTRACT FOR THE SALE OF GOODS; THEREFORE, THIS AGREEMENT WILL NOT BE GOVERNED BY ANY CODIFICATION OF ARTICLE 2 OR 2A OF THE UNIFORM COMMERCIAL CODE, OR ANY CODIFICATION OF THE UNIFORM COMPUTER INFORMATION TECHNOLOGY ACT ("UCITA"), OR ANY REFERENCES TO THE UNITED NATIONAL CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS.
E. Injunctive Relief. You hereby acknowledge that a breach of these Terms may cause irreparable harm and significant injury to Company that may be difficult to ascertain, and that a remedy at law may be inadequate. Accordingly, you agree that Company shall be entitled, without waiving any additional rights or remedies otherwise available to Company at law or in equity and without the necessity of posting bond, to seek injunctive and other equitable relief in the event of a breach or intended or threatened breach by you. Notwithstanding anything to the contrary, Company shall be entitled to seek and obtain injunctive relief in any court of competent jurisdiction.
F. Arbitration. Except in the case of legal action brought by Company to obtain injunctive or other equitable relief of whatsoever kind, all of which may be brought in any court or other tribunal of competent jurisdiction, ANY CONTROVERSY, CLAIM, DISPUTE OR OTHER LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THESE TERMS OR THEIR SUBJECT MATTER, WHETHER BASED IN CONTRACT, TORT, STATUTE, FRAUD, MISREPRESENTATION OR ANY OTHER LEGAL THEORY, SHALL BE SUBMITTED TO THE OFFICE OF THE AMERICAN ARBITRATION ASSOCIATION LOCATED IN, OR CLOSEST TO, COLUMBUS, OHIO, AND WILL BE SETTLED BY ARBITRATION TO OCCUR IN COLUMBUS, OHIO, SAID ARBITRATION TO BE ADMINISTERED BY THE AMERICAN ARBITRATION ASSOCIATION IN ACCORDANCE WITH ITS COMMERCIAL ARBITRATION RULES, IN EFFECT AT THE TIME OF THE ARBITRATION, THE LAWS OF THE STATE OF OHIO GOVERNING SUCH ARBITRATIONS, AND IN ACCORDANCE WITH THESE TERMS. SUCH ARBITRATION MUST BE FILED WITHIN TWELVE (12) MONTHS OF THE FIRST ACCRUAL OF THE CAUSE OF ACTION, AND THE PARTIES AGREE THAT THE STATUTE OF LIMITATIONS FOR ANY CAUSE OF ACTION BROUGHT PURSUANT TO, IN CONNECTION WITH, OR RELATING TO A DISPUTE WILL BE TWELVE (12) MONTHS FROM THE FIRST ACCRUAL OF THE CAUSE OF ACTION, NOTWITHSTANDING ANY STATUTE TO THE CONTRARY. ANY ARBITRATION UNDER THESE TERMS WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED.
The arbitration will be heard and decided no later than seven (7) months after the notice of arbitration is filed with the American Arbitration Association by one arbitrator. The arbitrator will hear and determine any preliminary issue of law asserted by a party to be dispositive of any claim, in whole or in part, in the manner of a court hearing a motion to dismiss for failure to state a claim or for summary judgment, pursuant to such terms and procedures as the arbitrator deems appropriate. No witness or party may be required to waive any privilege recognized under Ohio law. The hearing will not last longer than four (4) days unless all parties agree otherwise, with time to be divided equally between you and Company. The arbitrator will be an attorney, licensed to practice law in the State of Ohio for no less than ten (10) years, with no less than five (5) years' experience as an arbitrator. The parties and the arbitrator will treat all aspects of the arbitration proceedings, including, without limitation, discovery, testimony and other evidence, briefs, and the award, as strictly confidential and not subject to disclosure to any third party or entity, other than to the parties, the arbitrator, and the American Arbitration Association. The arbitrator must give full effect to the applicable law and to all of these Terms, and are specifically divested of any power to add to, subtract from, modify or alter any of the terms or conditions of these Terms, or to render decisions in derogation thereof. The arbitrator will have no authority to award punitive or other damages not measured by the prevailing party's actual direct damages, except as may be required by statute. THE PARTIES UNDERSTAND THAT THEY ARE WAIVING THEIR RIGHTS TO A JURY TRIAL OR TO PARTICIPATE IN A CLASS ACTION. YOU AND COMPANY AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Company agree otherwise, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable, then the entirety of this arbitration provision shall be null and void. The arbitrator will issue written findings of fact and conclusions of law, the decisions of the arbitrator will be binding and conclusive upon all parties involved, and judgment upon any decision of the arbitrator may be entered in any federal or state courts with jurisdiction.
G. Attorney Fees. In any litigation, arbitration or other proceeding by which one party either seeks to enforce its rights under these Terms (whether in contract, tort, or both) or seeks a declaration of any rights or obligations under these Terms, in addition to any other relief to which the prevailing party may be entitled, the prevailing party will be entitled to recover its reasonable attorney fees, costs and expenses to resolve the dispute and to enforce the final judgment.
H. Legal Compliance. You agree to comply with all local laws and rules regarding use of the Mobile Application. Use of the Mobile Application is not authorized in any jurisdiction that does not give effect to all provisions of these Terms. Your use of the Mobile Application should not be construed as Company's purposefully availing itself of the benefits or privilege of doing business in any state or jurisdiction other than Ohio.
I. Severability. If any provision(s) of these Terms, including without limitation, the warranty disclaimers and liability limitations set forth above, are found by a court of competent jurisdiction to be invalid or unenforceable, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of these Terms shall continue in effect. The foregoing does not apply to the prohibition against class or representative actions that is part of the arbitration clause; if that prohibition is found to be unenforceable, the arbitration clause (but only the arbitration clause) shall be null and void.
J. Legal Equivalency. These Terms and any other electronic documents, policies and guidelines incorporated herein shall be: (i) deemed for all purposes to be a "writing" or "in writing," and to comply with all statutory, contractual, and other legal requirements for a writing; (ii) legally enforceable against any party hereto as a signed writing; and (iii) deemed an "original" when printed from electronic records established and maintained in the ordinary course of business. Any electronic documents introduced as evidence in any judicial, arbitration, mediation or administrative proceeding shall, if established and maintained in the ordinary course of business, be admissible to the same extent as business records in written form that are similarly established and maintained.