LICENSED APPLICATION END USER LICENSE AGREEMENT
By downloading and using any applications available on Google Play, Apple iTunes App Store, Amazon, and other similar platforms, and published and released by Aplix Corporation (formerly known as Aplix IP Holdings Corporation) ("Licensed Application(s)"), you agree to be and are hereby bound by this Licensed Application End User License Agreement ("EULA"), which constitutes a binding agreement between you and Aplix Corporation (Tokyo, Japan) ("Application Provider"). The Licensed Applications are licensed, not sold, to you for use only under the terms of this EULA. Application Provider reserves all rights not expressly granted to you.
a. Scope of License.
Subject to your compliance with this EULA, Application Provider hereby grants to you, only, a limited, non-exclusive, non-sublicensable, non-transferable right to use the Licensed Application on any device that you own or control (and with respect to Licensed Applications made available on the Apple iTunes App Store, such device must be an iPhone or iPad and your use must be strictly as permitted by and must be in accordance with the Usage Rules set forth in Section 9.b. of the iTunes App Store Terms and Conditions). This EULA 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 EULA), 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). Any attempt to do so is a violation of the rights of the Application Provider and its licensors. The terms of this EULA will govern any upgrades provided by Application Provider that replace and/or supplement the original Licensed Application, unless such upgrade is accompanied by a separate license in which case the terms of that license will govern. Certain components or libraries included in or bundled with the Licensed Application may be covered by open source licenses. To the extent required by such open source licenses, the terms of such licenses will apply in lieu of the terms of this EULA, solely with respect to those libraries or components that are licensed under such open source licenses. You may at your option provide to Application Provider any feedback, comments, ideas, suggestions, or improvements that you may (“Evaluation Results”). You agree that Application Provider and its vendors and contractors may use in perpetuity any such Evaluation Results you provide for any business purpose, including for product support and development, without any obligation or payment to you.
b. Consent to Use of Data.
Your rights under this EULA will terminate automatically without notice from the Application Provider if you fail to comply with this EULA. Upon termination of the EULA, you shall cease all use of the Licensed Application, and destroy all copies, full or partial, of the Licensed Application.
d. Services; Third Party Materials.
The Licensed Application may enable access to Application Provider’s and third party services, products and web sites (collectively and individually, "Services"). Use of the Services may require Internet access and that you accept additional terms of service and privacy policies.
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, products, goods, consumables, 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. Location data provided by any Services is for basic navigational purposes only and is not intended to be relied upon in situations where precise location information is needed or where erroneous, inaccurate or incomplete location data may lead to death, personal injury, property or environmental damage. Neither the Application Provider, nor any of its content providers, guarantees the availability, accuracy, completeness, reliability, or timeliness of information or location data displayed by any Services or Third Party Materials. Application Provider will have no responsibility or liability for the deletion or failure to store any content or user data.
You agree that the 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, Services and Third Party Materials that may be accessed from, displayed on or linked to or from your device are not available in all languages or in all countries. The Application Provider makes no representation that such Services and Third Party Materials are appropriate or available for use in any particular location. To the extent you choose to access such Services or Third Party Materials, you do so at your own initiative and risk and are responsible for compliance with any applicable laws, including but not limited to applicable local laws. The Application Provider, its contracting parties, 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. Application Provider may also impose limits on the use of or access to certain Services, in any case and without notice or liability.
You may not use the Licensed Application or Services in a manner that
- (i) harasses, abuses, stalks, threatens, defames or otherwise infringes or violates the rights of any other party (including but not limited to rights of publicity or other proprietary rights);
- (ii) is unlawful, fraudulent or deceptive;
- (iii) uses technology or other means to access Application Provider's or its vendors' or contractors' networks or systems without authorization;
- (iv) uses or launches any automated system, including without limitation, "robots," "crawlers", "spiders," or the like, to access networks or systems;
- (v) attempts to introduce viruses or any other computer code that interrupt, destroy or limit the functionality of any computer software, hardware or network;
- (vi) attempts to gain unauthorized access to any computer network or user accounts;
- (vii) encourages conduct that would constitute a criminal offense, or that gives rise to civil liability;
- (viii) violates this EULA;
- (ix) attempts to damage, disable, overburden, or impair servers or networks; or
- (x) fails to comply with applicable third party terms or the terms and policies applicable to Third Party Materials.
You are wholly responsible for maintaining the confidentiality of login information needed for use of the Licensed Application and/or Services ("Access Information") and wholly liable for all activities occurring under such Access Information. You will not transfer to any party Access Information, or use Access Information of another, without our prior written consent. You will immediately notify us of any unauthorized use of Access Information or any other breach of security via the inquiry form. We will not be liable for any loss or damage arising from lost or forgotten Access Information, from failure to comply with this section or from unauthorized use of Access Information.
e. NO WARRANTY:
YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE LICENSED APPLICATION, THIRD PARTY MATERIALS AND SERVICES IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE LICENSED APPLICATION, THIRD PARTY MATERIALS AND ANY SERVICES 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, 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, THIRD PARTY MATERIALS OR SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE LICENSED APPLICATION, THIRD PARTY MATERIALS OR SERVICES WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY APPLICATION PROVIDER OR ITS AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. SHOULD THE LICENSED APPLICATION, THIRD PARTY MATERIALS OR SERVICES PROVE DEFECTIVE, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION. 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. Application Provider has no obligation whatsoever to furnish any maintenance and support services with respect to the Licensed Applications, Services or Third Party Materials. Because no online system is perfectly secure or reliable, the internet is an inherently insecure medium, and the reliability of hosting services, internet intermediaries, internet service providers, and others cannot be assured, you accept security risks, and the responsibility for choosing to use a technology that does not provide perfect security or reliability.
f. 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 OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE LICENSED APPLICATION, THE SERVICES, OR THIRD PARTY MATERIALS, 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 ten dollars ($10.00). The foregoing limitations will apply even if the above stated remedy fails of its essential purpose.
You will defend, indemnify, release and hold harmless Application Provider, and its vendors and contractors, and all officers, directors, employees, consultants, agents, and representatives of any of the foregoing from and against any and all claims (including third party claims), losses, liability, damages, and/or costs of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with:
- (a) your access to or use of the Licensed Application, Services or Third Party Materials, or conduct engendered thereby, or
- (b) your violation of this EULA.
With respect to Licensed Applications made available on the Apple iTunes App Store, you acknowledge that Apple is not responsible for
- (i) the investigation, defense, settlement and discharge of any intellectual property infringement claims, or
- (ii) addressing any claims of the end-user or any third party relating to the Licensed Application or the end-user’s possession and/or use of that Licensed Application, including, but not limited to:
- (a) product liability claims;
- (b) any claim that the Licensed Application fails to conform to any applicable legal or regulatory requirement; and
- (c) claims arising under consumer protection or similar legislation.
You may not use or otherwise export or re-export the Licensed Application except as authorized by United States law and the laws of the jurisdiction in which the Licensed Application was obtained. In particular, but without limitation, the Licensed Application may not be exported or re-exported
- (i) into any U.S. embargoed countries or
- (ii) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List.
h. Government Regulations.
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.
i. Emails; System Procurement.
You agree and consent to receive email messages from Application Provider, which may be transactional, for account management purposes, or for communications relating to or provided as part of the Licensed Application or Services. Access to and ability to effectively use the Licensed Application and Services is conditioned on your procurement of all necessary system, hardware, software, operating environment, applications, connectivity, and network access. You acknowledge that use of the Licensed Application and Services requires connection to, and data transfers over, the network and therefore may impact your data usage charges imposed by your wireless operator or other service provider, and may impact usage limitations imposed by other applications.
j. Governing Law.
The procedural and substantive laws of the State of California, excluding its conflicts of law rules, govern this EULA and your use of the Licensed Application and Services. If any of the provisions of this EULA are held to be in violation of applicable law, void, or unenforceable in any jurisdiction, such provisions will not affect the validity of the balance of this EULA, and such provisions are herewith waived or reformed to the extent necessary for this EULA to be otherwise enforceable in such jurisdiction. No modification to the EULA will be binding, unless in writing and signed by a duly authorized representative of Application Provider.
k. Dispute Resolution.
Any disputes between or claims brought by you or Application Provider arising out of or related to the terms of this EULA, the Licensed Application, or related Aplix products and services (including tort as well as contract claims, and whether pre-contractual or extra-contractual, as well as the arbitrability of any disputes) will be referred to and finally settled by binding arbitration before the International Court of Arbitration in accordance with the Rules of Arbitration of the International Chamber of Commerce ("ICC") in effect at the time of arbitration except as inconsistent with this section. The arbitration shall be conducted by telephone, on-line and/or based solely upon written submissions where no in-person appearance is required by the arbitrator. If in-person appearance is required, such hearings shall be held in San Francisco, California. The arbitrator shall apply the law specified in section (j) of this EULA. All awards may if necessary be enforced by any court having jurisdiction. The existence of any dispute, the existence or details of the arbitration proceeding, and all related documents, materials, evidence, judgments and awards therein, shall be kept confidential. Except as required by law, no party shall make any public announcements with respect to the proceeding or the award, except as required to enforce same. You and Application Provider agree that the parties hereby waive the right to a trial by jury and agree to only bring claims in an individual capacity and not as a plaintiff or class member in any purported class or representative proceeding. Notwithstanding the foregoing, nothing in this section shall preclude the right and ability to file and maintain at any time an action for recovery of injunctive or provisional relief in any court of competent jurisdiction under the laws applicable thereto (and the availability of such right is not subject to the obligation to arbitrate herein). All claims (excluding requests for injunctive or equitable relief) between the parties must be resolved using arbitration in accordance with this section. Should either party file an action contrary to this section, the other party may recover lawyers' fees and costs, provided that the party seeking the award has notified the other party in writing of the improperly filed claim, and the other party has failed to withdraw the claim in a timely manner.
You acknowledge and agree that Application Provider's subsidiaries and affiliates and, with respect to Licensed Applications made available on the Apple iTunes App Store, Apple and Apple's subsidiaries and affiliates, are third party beneficiaries of this EULA, and that such parties will have the right (and will be deemed to have accepted the right) to enforce this EULA against you as a third party beneficiary thereof. This EULA is concluded between you and Application Provider only, and not with Apple, Google, Amazon or other app store platforms owners, and such parties are not responsible for the Licensed Application and the content thereof.
The Licensed Application is not directed to and is not intended for use by children under the age of 13.
Effective date:January 13, 2017
Last modified date: March 6, 2018