Last Revised: 6/1/2019
LICENSED APPLICATION END USER LICENSE AGREEMENT
The Products (as defined below) transacted through the Services (as defined below) are licensed, not sold, to You (for purposes of this license agreement, the term “You” shall mean the person to whom this license is granted, and shall include any corporation, partnership, limited liability company or other organization for whose benefit this license is accepted by such person, and the term “Your” shall have a derivative meaning) for use only under the terms of this license, unless a Product is accompanied by a separate license agreement, in which case the terms of that separate license agreement will govern, subject to Your prior acceptance of that separate license agreement. The licensor, Calibrr LLC, an Ohio limited liability company (“Application Provider”), reserves all rights not expressly granted to You.
The Product that is subject to this license (the “Product”) is referred to in this license as the “Licensed Application.”
a. Scope of License. This license granted to You for the Licensed Application by Application Provider is limited to a non-transferable, non-exclusive license to download, install, and use the Licensed Application for your personal, non-commercial use on any mobile device that is compatible with the Licensed Application and that You own or control, and as permitted by the Usage Rules set forth in the Apple Media Services Terms and Conditions (the “Usage Rules”). You may use the Licensed Application solely for the purpose of sharing Your personal information and personal social media profiles, and viewing personal analytics and other users' profiles. This license does not allow You to use the Licensed Application on any device that You do not own or control, and You may not distribute or make the Licensed Application available over a network where it could be used by multiple devices at the same time. You may not rent, lease, lend, sell, redistribute or sublicense the Licensed Application. You may not copy (except as expressly permitted by this license and the Usage Rules), decompile, reverse engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the Licensed Application, any updates, or any part thereof (except as and only to the extent any foregoing restriction is prohibited by applicable law or to the extent as may be permitted by the licensing terms governing use of any open source components included with the Licensed Application). Any attempt to do so is a violation of the rights of the Application Provider and its licensors. If You breach this restriction, You may be subject to prosecution and damages. The terms of this license will govern any upgrades provided by Application Provider that replace and/or supplement the original Product, unless such upgrade is accompanied by a separate license in which case the terms of that license will govern.
b. Consent to Use of Data. You agree that Application Provider may collect and use technical data and related information, including but not limited to technical information about Your device, system and application software, and peripherals, that is gathered periodically to facilitate the provision of software updates, product support and other services (if any) related to the Licensed Application. Application Provider may use this information, as long as it is in a form that does not personally identify You, to improve its products or to provide services or technologies.
d. Termination. The license is effective until terminated by You or Application Provider. Either You or Application Provider may terminate this license at any time, with or without reason, and without notice. Your rights under this license will terminate automatically without notice from the Application Provider if You fail to comply with any term(s) of this license. Upon termination of this license, You shall cease all use of the Licensed Application, and destroy all copies, full or partial, of the Licensed Application.
e. Services; Third Party Materials. The Licensed Application may enable access to Application Provider’s and third party services and web sites (collectively and individually, "Services"). Use of the Services may require Internet access and that You accept additional terms of service. You understand that by using any of the Services, You may encounter content that may be deemed offensive, indecent, or objectionable, which content may or may not be identified as having explicit language, and that the results of any search or entering of a particular URL may automatically and unintentionally generate links or references to objectionable material. Nevertheless, You agree to use the Services at Your sole risk and that the Application Provider shall not have any liability to You for content that may be found to be offensive, indecent, or objectionable. Certain Services may display, include or make available content, data, information, applications or materials from third parties (“Third Party Materials”) or provide links to certain third party web sites. By using the Services, You acknowledge and agree that the Application Provider is not responsible for examining or evaluating the content, accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect of such Third Party Materials or web sites. The Application Provider does not warrant or endorse and does not assume and will not have any liability or responsibility to You or any other person for any third-party Services, Third Party Materials or web sites, or for any other materials, products, or services of third parties. Third Party Materials and links to other web sites are provided solely as a convenience to You. Neither the Application Provider, nor any of its content providers, guarantees the availability, accuracy, completeness, reliability, or timeliness of any information or location data displayed by any Services. You agree that any Services contain proprietary content, information and material that is
protected by applicable intellectual property and other laws, including but not limited to copyright, and that You will not use such proprietary content, information or materials in any way whatsoever except for permitted use of the Services. No portion of the Services may be reproduced in any form or by any means. You agree not to modify, rent, lease, loan, sell, distribute, or create derivative works based on the Services, in any manner, and You shall not exploit the Services in any unauthorized way whatsoever, including but not limited to, by trespass or burdening network capacity. You further agree not to use the Services in any manner to harass, abuse, stalk, threaten, defame or otherwise infringe or violate the rights of any other party, and that the Application Provider is not in any way responsible for any such use by You, nor for any harassing, threatening, defamatory, offensive or illegal messages or transmissions that You may receive as a result of using any of the Services. In addition, third party Services and Third Party Materials that may be accessed from, displayed on or linked to from Your device are not available in all languages or in all countries. The Application Provider makes no representation that such Services and Materials are appropriate or available for use in any particular location. To the extent You choose to access such Services or Materials, You do so at Your own initiative and are responsible for compliance with any applicable laws, including but not limited to applicable local laws. The Application Provider, and its licensors, reserve the right to change, suspend, remove, or disable access to any Services at any time without notice. In no event will the Application Provider be liable for the removal of or disabling of access to any such Services. The Application Provider may also impose limits on the use of or access to certain Services, in any case and without notice or liability, and may require the payment of fees by You for the use of or access to certain Services.
f. No Warranty. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE LICENSED APPLICATION IS AT YOUR SOLE RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE LICENSED APPLICATION AND ANY SERVICES PERFORMED OR PROVIDED BY THE LICENSED APPLICATION ARE PROVIDED "AS IS" AND “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND APPLICATION PROVIDER HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE LICENSED
APPLICATION AND ANY SERVICES, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. APPLICATION PROVIDER DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE LICENSED
APPLICATION, THAT THE FUNCTIONS CONTAINED IN, OR SERVICES PERFORMED OR PROVIDED BY, THE LICENSED APPLICATION WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE LICENSED APPLICATION OR SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE LICENSED APPLICATION OR SERVICES WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY APPLICATION PROVIDER OR ITS AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE
ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO YOU.
g. Limitation of Liability. TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL APPLICATION PROVIDER BE LIABLE FOR PERSONAL INJURY, OR ANY INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION, VIOLATION OR INFRINGEMENT OF THIRD PARTY RIGHTS, OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE LICENSED APPLICATION OR SERVICES, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE) AND EVEN IF APPLICATION PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU. In no event shall Application Provider’s total liability to You for all damages (other than as may be required by applicable law in cases involving personal injury) exceed the amount of fifty dollars ($50.00). The foregoing limitations will apply even if the above stated remedy fails of its essential purpose.
h. Geographic Restrictions. The Services are based in the state of Ohio in the United States and provided for access and use only by persons located in the United States. You acknowledge that you may not be able to access all or some of the Services outside of the United States and that access thereto may not be legal by certain persons or in certain countries. If you access the Services from outside the United States, you are responsible for compliance with local laws.
i. Export Regulation. The Licensed Application may be subject to United States export control laws, including the US Export Administration Act and its associated regulations. You shall not, directly or indirectly, export, re-export, or release the Licensed Application to, or make the Licensed Application accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. You shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Application available outside the US.
j. Commercial Items. The Licensed Application 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 are reserved under the copyright laws of the United States.
k. Governing Law; Venue; Jury Trial Waiver. The laws of the State of Ohio, excluding its conflicts of law rules, govern this license and Your use of the Licensed Application. Your use of the Licensed Application may also be subject to other local, state, national, or international laws. You hereby agree that the sole and exclusive jurisdiction and venue of any action, proceeding, counterclaim, cross-claim, or other litigation relating to, involving or resulting from, or for the interpretation or enforcement of, this license (a “Subject Action”), shall lie solely in the state courts situated in Hamilton County, Ohio (the “Jurisdiction”). Accordingly, You hereby agree to submit to (a) the jurisdiction of the state courts of the Jurisdiction for such purposes, and (b) the enforcement in any appropriate jurisdiction other than the Jurisdiction of any decree, award or order entered by any court in the Jurisdiction. IN ANY SUBJECT ACTION, YOU HEREBY EXPRESSLY WAIVE ANY AND ALL RIGHT TO A TRIAL BY JURY.
l. Apple-Required End User License Terms. You and Application Provider also agree to the following terms:
1. Acknowledgement: It is acknowledged by You and Application Provider that this license agreement is concluded between You and the Application Provider, and not with Apple, and Application Provider, not Apple, is solely responsible for the Licensed Application and the content thereof. In no event may the preceding provisions of this license agreement provide for usage rules for the Licensed Application that are less restrictive than the Usage Rules in effect as of the effective date of this license agreement (which Usage Rules You and Application Provider acknowledge having had the opportunity to review).
2. Scope of License: The license granted to You for the Licensed Application is limited to a non- transferable license to use the Licensed Application on any Apple device that You own or control and only as permitted by the Usage Rules.
3. Maintenance and Support: Application Provider is solely responsible for providing any maintenance and support services with respect to the Licensed Application, as specified herein or as required under applicable law. You and the Application Provider acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Licensed Application.
4. Warranty: Application Provider is solely responsible for any product warranties, whether express or implied by law, to the extent not effectively disclaimed. In the event of any failure of the Licensed Application to conform to any applicable warranty, You may notify Apple, and Apple will refund the purchase price for the Licensed Application to You; and, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Licensed Application, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be Application Provider’s sole responsibility.
5. Product Claims: You and Application Provider acknowledge that Application Provider, not Apple, is responsible for addressing any of Your claims or any third party claims relating to the Licensed Application or Your possession and/or use of the Licensed Application, including, but not limited to: (i) product liability claims; (ii) any claim that the Licensed Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
6. Intellectual Property Rights: You and Application Provider acknowledge that, in the event of any third party claim that the Licensed Application or Your possession and use of the Licensed Application infringes that third party’s intellectual property rights, Application Provider, not Apple, will be solely responsible for the investigation, defense, settlement and
discharge of any such intellectual property infringement claim.
7. Legal Compliance: You represent and warrant that (i) You 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) You are not listed on any U.S. Government list of prohibited or restricted parties.
8. Developer Name and Address: Application Provider’s name and agent’s address is as follows: Calibrr LLC, 425 Walnut Street, Suite 1800, Cincinnati, OH 45202, and Application Provider’s contact information to which Your questions, complaints or claims with respect to the Licensed Application should be directed is as follows:
Telephone (513) 284 -9774, e-mail email@example.com.
9. Third Party Beneficiary: You and Application Provider acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of this license agreement, and upon Your acceptance of the terms and conditions of this license agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this license agreement against You as a third party beneficiary thereof.