KYNDRED ™ END USER LICENSE AGREEMENT
Version Date: May 3, 2018
END USER LICENSE AGREEMENT
This End User License Agreement (“Agreement”) constitutes a legally binding agreement made between you, whether personally or on behalf of an entity, institution or organization (“user” or “you”) and Fun and Function LLC
and its affiliated companies (collectively, “Company” or “we” or “us” or “our”), concerning your access to and use of our mobile application software, Kyndred ™ (the “Application”), which provides child behavioral management functionality to be used by parents, teachers and others. Supplemental terms and conditions or documents that may be posted on the Application from time to time, are hereby expressly incorporated into this Agreement by reference.
The Application is not intended for use by any person or entity in any jurisdiction or country where such use would be contrary to law or regulation or which would subject Company to any registration requirement within such jurisdiction or country. Accordingly, those persons who choose to use the Application in other locations do so on their own initiative and are solely responsible for compliance with local laws, if and to the extent local laws are applicable.
YOU ACCEPT AND AGREE TO BE BOUND BY THIS AGREEMENT BY ACKNOWLEDGING SUCH ACCEPTANCE DURING THE REGISTRATION PROCESS AND ALSO BY CONTINUING TO USE THE APPLICATION. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THIS AGREEMENT. IF YOU DO NOT HAVE SUCH AUTHORITY YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE APPLICATION. IF YOU DO NOT AGREE TO ABIDE BY THIS AGREEMENT, OR TO MODIFICATIONS THAT COMPANY MAY MAKE TO THIS AGREEMENT IN THE FUTURE, DO NOT USE OR ACCESS OR CONTINUE TO USE OR ACCESS THE APPLICATION.
All users who are minors in the jurisdiction in which they reside (generally under the age of 18) are not permitted to use the Application. Although the Application is designed for child behavioral management, the Application is not intended to be accessed or used by children, and the user is solely responsible for any access or use of the Application by a child that may occur. Company may offer external devices that allow very limited interactivity between a child and the Application.
LICENSE GRANT AND RESTRICTIONS ON USE
General. The Application is licensed, not sold, to you by Company for use strictly in accordance with the terms and conditions of this Agreement. The term "Application" shall refer to and consist of the following: (i) the mobile software application accompanying this License, including, without limitation, any software code, scripts, interfaces, graphics, displays, text, documentation and other components; (ii) any updates, modifications or enhancements to the items listed in subsection (i); and (iii) any specific Company website the Application directs you to via any browser located on your device.
License Grant. Company grants you a revocable, non-exclusive, non-transferable, limited right to install and use the Application on a single wireless handset owned and controlled by you ("Device"), and to access and use the Application on such Device strictly in accordance with the terms and conditions of this License.
Restrictions on Use. You shall use the Application strictly in accordance with the terms of this Agreement and shall not: (a) decompile, reverse engineer, disassemble, attempt to derive the source code of, or decrypt the Application; (b) make any modification, adaptation, improvement, enhancement, translation or derivative work from the Application; (c) violate any applicable laws, rules or regulations in connection with your access or use of the Application; (d) remove, alter or obscure any proprietary notice (including any notice of copyright or trademark) of Company or its affiliates, partners, suppliers or the licensors of the Application; (e) use the Application for any revenue generating endeavor, commercial enterprise, or other purpose for which it is not designed or intended; (f) install, use or permit the Application to exist on more than one Device at a time or on any other mobile device or computer; (g) distribute the Application to multiple Devices; (h) make the Application available over a network or other environment permitting access or use by multiple Devices or users at the same time; (i) use the Application for creating a product, service or software that is, directly or indirectly, competitive with or in any way a substitute for the Application; (j) use the Application to send automated queries to any website or to send any unsolicited commercial e-mail; or (k) use any proprietary information or interfaces of Company or other intellectual property of Company in the design, development, manufacture, licensing or distribution of any applications, accessories or devices for use with the Application.
Functionality. The Application has been primarily designed as a tool to assist in child behavioral management. You agree to use the Application only in a manner that complies with all applicable laws and regulations, including, without limitation, privacy and data security regulations. In particular, if used in a health or medical services facility, you agree to use the Application in compliance with laws and regulations applicable to patient information, including, without limitation, the Health Insurance Portability and Accountability Act (HIPAA).
USE BY SCHOOLS
If you are a teacher, school leader, aide, or other similar school-affiliated employee (“School Personnel”) accessing the Application on behalf of a school, school district, or other similar educational institution (the "Institution"), then you agree that you are acting on behalf of (or have permission from) your Institution to enter into this Agreement and to use the Application as part of your work with the Institution. Only School Personnel who are current employees of the Institution may use the Application on the Institution's behalf. The School Personnel are responsible for obtaining any necessary approvals from Institution authorities and administrators before using the Application. Upon termination of your employment with the Institution, you must cease using the Application.
You and your Institution are required to comply with the Family Education Rights and Privacy Act ("FERPA") and related regulations. Certain information that may be provided to Company by School Personnel that is directly related to a student and maintained by an Institution, may be considered an education record (“Education Record”) under FERPA. Additionally, certain information, provided to Company by School Personnel about a student, such as student name and grade level, may be considered directory information under FERPA (“Directory Information”) and thus not an Education Record. A school may not generally disclose personally identifiable information ("PII") from an eligible student’s education records to a third-party without written consent of the parent and/or eligible student or without meeting one of the exemptions set forth in FERPA (“FERPA Exemption(s)”), including the exemption for Directory Information (“Directory Information Exemption”) or disclosure to school officials with a legitimate educational interest (“School Official Exemption”).
As School Personnel or an Institution providing Directory Information or any Education Record to Company, you represent, warrant and covenant to Company, as applicable, that your Institution has: (i) complied with the Directory Information Exemption, including, without limitation, informing parents and eligible students what information the Institution deems to be directory information and may be disclosed and allowing parents and eligible students a reasonable amount of time to request that schools not disclose directory information about them; and/or (ii) complied with the School Official Exemption, including, without limitation, informing parents in their annual notification of FERPA rights that the Institution defines “school official” to include service providers and defines “legitimate educational interest” to include services such as the type provided by Company; or (iii) obtained all necessary parental or eligible student written consent to share the Directory Information and Educational Records with Company, in each case, solely to enable Company’s operation of the Application.
It is important that School Personnel not provide information to Company from any student or parent that has opted out of the disclosure of Directory Information. Company depends on our school partners to ensure that the school is complying with the FERPA provisions regarding the disclosure of Directory Information or the School Official Exemption for any student information that will be shared with Company. Company is not in a position to provide legal advice regarding whether the school's existing FERPA disclosures are sufficient. To the extent that School Personnel have questions regarding these issues, they should consult the school's own legal counsel for more information.
Company may use Directory Information and Education Records that have been de-identified for product development, research or other purposes (“De-Identified Data”). De-Identified Data will have all direct and indirect personal identifiers removed, this includes, but is not limited to, name, date of birth, demographic information, location information and school identity. Company agrees not to attempt to re-identify the De-Identified Data and not to transfer the De-Identified Data to a third-party unless that party agrees not to attempt re-identification.
INTELLECTUAL PROPERTY RIGHTS
Rights to Application. You acknowledge and agree that the Application and all copyrights, patents, trademarks, trade secrets and other intellectual property rights associated therewith are, and shall remain, the property of Company. Furthermore, you acknowledge and agree that the source and object code of the Application and the format, directories, queries, algorithms, structure and organization of the Application are the intellectual property and proprietary and confidential information of Company and its affiliates, licensors and suppliers. Except as expressly stated in this Agreement, you are not granted any intellectual property rights in or to the Application by implication, estoppel or other legal theory, and all rights in and to the Application not expressly granted in this Agreement are hereby reserved and retained by Company.
Third Party Software. The Application may utilize or include third party software that is subject to open source and third party license terms ("Third Party Software"). You acknowledge and agree that your right to use such Third Party Software as part of the Application is subject to and governed by the terms and conditions of the open source or third party license applicable to such Third Party Software, including, without limitation, any applicable acknowledgements, license terms and disclaimers contained therein. In the event of a conflict between the terms of this Agreement and the terms of such open source or third party licenses, the terms of the open source or third party licenses shall control with regard to your use of the relevant Third Party Software. In no event, shall the Application or components thereof be deemed to be "open source" or "publicly available" software.
Company Marks. You are not authorized to use the Company trademarks or logos in any advertising, publicity or in any other commercial manner without the prior written consent of Company, which may be withheld for any or no reason.
Restriction on Transfer. You may not rent, lease, lend, sublicense or transfer the Application, this Application or any of the rights granted hereunder. Any attempted transfer in contravention of this provision shall be null and void and of no force or effect.
The Application is currently provided at no charge. However, Company reserves the right, upon notice to you, in the future to charge for usage or features of the Application and to allow for in app purchases of actual, virtual or digital goods.
Regarding Your Registration
By using the Application, you represent and warrant that:
- all registration information you submit is truthful and accurate;
- you will maintain the accuracy of such information;
- you will keep your password confidential and will be responsible for all use of your password and account;
- you are not a minor in the jurisdiction in which you reside; and
- your use of the Application does not violate any applicable law or regulation.
You also agree to: (a) provide true, accurate, current and complete information about yourself as prompted by the Application’s registration form and (b) maintain and promptly update registration data to keep it true, accurate, current and complete. If you provide any information that is untrue, inaccurate, not current or incomplete, or Company has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, Company has the right to suspend or terminate your account and refuse any and all current or future use of the Application (or any portion thereof).
You are responsible to Company for the violation of this Agreement by any employee or agent of yours, any other person to whom you have given access to the Application, and any person who gains access to your account as a result of your failure to use reasonable security precautions, to the same extent as if you had committed the violation yourself, even if such violation was not authorized by you.
Regarding Content You Provide
The Application may invite you to chat or participate in forums and other functionality and may provide you with the opportunity to create, submit, post, display, transmit, perform, publish, distribute or broadcast content and materials via the Application, including, without limitation, text, writings, video, audio, photographs, graphics, comments, suggestions or personally identifiable information or other material (collectively "Contributions"). When you create or make available a Contribution, you thereby represent and warrant that:
- the creation, distribution, transmission, public display and performance, accessing, downloading and copying of your Contribution does not and will not infringe the proprietary rights, including but not limited to the copyright, patent, trademark, trade secret or moral rights of any third party;
- you are the creator and owner of or have the necessary licenses, rights, consents, releases and permissions to use and to authorize Company and the Application users to use your Contributions as necessary to exercise the licenses granted by you under this Agreement;
- you have the written consent, release, and/or permission of each and every identifiable individual person in the Contribution to use the name or likeness of each and every such identifiable individual person to enable inclusion and use of the Contribution in the manner contemplated by this Application;
- your Contribution is not obscene, lewd, lascivious, filthy, violent, harassing or otherwise objectionable (as determined by Company), libelous or slanderous, does not ridicule, mock, disparage, intimidate or abuse anyone, does not advocate the violent overthrow of any government, does not incite, encourage or threaten physical harm against another, does not violate any applicable law, regulation, or rule, and does not violate the privacy or publicity rights of any third party;
- your Contribution does not contain material that solicits personal information from anyone under 18 or exploit people under the age of 18 in a sexual or violent manner, and does not violate any federal or state law concerning child pornography or otherwise intended to protect the health or wellbeing of minors;
- your Contribution does not include any offensive comments that are connected to race, national origin, gender, sexual preference or physical handicap;
- your Contribution does not otherwise violate, or link to material that violates, any provision of this Agreement or any applicable law or regulation.
By posting Contributions to any part of the Application, or making them accessible to the Application by linking your account to any of your social network accounts, you automatically grant, and you represent and warrant that you have the right to grant, to Company an unrestricted, unconditional, unlimited, irrevocable, perpetual, non-exclusive, transferable, royalty-free, fully-paid, worldwide right and license to host, use, copy, reproduce, disclose, sell, resell, publish, broadcast, retitle, archive, store, cache, publicly perform, publicly display, reformat, translate, transmit, excerpt (in whole or in part) and distribute such Contributions (including, without limitation, your image and voice) for any purpose related to the operation of the Application. Company does not assert any ownership over your Contributions; rather, as between us and you, subject to the rights granted to us in this Agreement, you retain full ownership of all of your Contributions and any intellectual property rights or other proprietary rights associated with your Contributions.
Company has the right, in our sole and absolute discretion, to (i) edit, redact or otherwise change any Contributions, (ii) re-categorize any Contributions to place them in more appropriate locations or (iii) pre-screen or delete any Contributions that are determined to be inappropriate or otherwise in violation of this Agreement.
Company reserves the right to take steps Company believes are reasonably necessary or appropriate to enforce and/or verify compliance with any part of this Agreement. You acknowledge and agree that Company may, without liability to you, access, use, preserve and/or disclose your account information and Contributions to law enforcement authorities, government officials, and/or a third party, as Company believes is reasonably necessary or appropriate, if legally required to do so or if we have a good faith belief that such access, use, disclosure, or preservation is reasonably necessary to: (a) comply with legal process or request; (b) enforce this Agreement, including investigation of any potential violation thereof; (c) detect, prevent or otherwise address security, fraud or technical issues; or (d) protect the rights, property or safety of Company, its users, a third party, or the public as required or permitted by law.
Terms Applicable To Apple and Android Devices
The following terms apply when you use a mobile application obtained from either the Apple Store or Google Play to access the Application. You acknowledge that this Agreement is concluded between you and Company only, and not with Apple Inc. or Google, Inc. (each an “App Distributor”), and Company, not an App Distributor, is solely responsible for the Application and the content thereof. (1) SCOPE OF LICENSE: The license granted to you for the Application is limited to a non-transferable license to use the Application on a device that utilizes the Apple iOS or Android operating system, as applicable, and in accordance with the usage rules set forth in the applicable App Distributor terms of service. (2) MAINTENANCE AND SUPPORT: Company is solely responsible for providing any maintenance and support services with respect to the Application, as specified in this Agreement, or as required under applicable law. You acknowledge that each App Distributor has no obligation whatsoever to furnish any maintenance and support services with respect to the Application. (3) WARRANTY: Company 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 Application to conform to any applicable warranty, you may notify an App Distributor, and the App Distributor, in accordance with its terms and policies, may refund the purchase price, if any, paid for the Application, and to the maximum extent permitted by applicable law, an App Distributor will have no other warranty 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 will be Company’s sole responsibility. (4) PRODUCT CLAIMS: You acknowledge that Company, not an App Distributor, is responsible for addressing any claims of yours or any third party relating to the Application or your possession and/or use of 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. (5) INTELLECTUAL PROPERTY RIGHTS: You acknowledge that, in the event of any third party claim that the Application or your possession and use of the Application infringes a third party’s intellectual property rights, the App Distributor will not be responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim. (6) 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. (7) THIRD PARTY TERMS OF AGREEMENT: You must comply with applicable third party terms of agreement when using the Application, e.g., if you have a VoIP application, then you must not be in violation of their wireless data service agreement when using the Application. (8) THIRD PARTY BENEFICIARY: Company and you acknowledge and agree that the App Distributors, and their subsidiaries, are third party beneficiaries of this Agreement, and that, upon your acceptance of the terms and conditions of this Agreement, each App Distributor will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third party beneficiary thereof.
As part of the functionality of the Application, you may link your account with online accounts you may have with third party service providers (each such account, a “Third Party Account”) by either: (i) providing your Third Party Account login information through the Application; or (ii) allowing Company to access your Third Party Account, as is permitted under the applicable terms and conditions that govern your use of each Third Party Account. You represent that you are entitled to disclose your Third Party Account login information to Company and/or grant Company access to your Third Party Account (including, but not limited to, for use for the purposes described herein), without breach by you of any of the terms and conditions that govern your use of the applicable Third Party Account and without obligating Company to pay any fees or making Company subject to any usage limitations imposed by such third party service providers. By granting Company access to any Third Party Accounts, you understand that (i) Company may access, make available and store (if applicable) any content that you have provided to and stored in your Third Party Account (the “Social Network Content”) so that it is available on and through the Application via your account, including without limitation any friend lists, and (ii) Company may submit and receive additional information to your Third Party Account to the extent you are notified when you link your account with the Third Party Account. Depending on the Third Party Accounts you choose and subject to the privacy settings that you have set in such Third Party Accounts, personally identifiable information that you post to your Third Party Accounts may be available on and through your account on the Application. Please note that if a Third Party Account or associated service becomes unavailable or Company’s access to such Third Party Account is terminated by the third party service provider, then Social Network Content may no longer be available on and through the Application. You will have the ability to disable the connection between your account on the Application and your Third Party Accounts at any time. PLEASE NOTE THAT YOUR RELATIONSHIP WITH THE THIRD PARTY SERVICE PROVIDERS ASSOCIATED WITH YOUR THIRD PARTY ACCOUNTS IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH THIRD PARTY SERVICE PROVIDERS. Company makes no effort to review any Social Network Content for any purpose, including but not limited to, for accuracy, legality or non-infringement, and Company is not responsible for any Social Network Content. You acknowledge and agree that Company may access your e-mail address book associated with a Third Party Account and your contacts list stored on your mobile device or tablet computer solely for the purposes of identifying and informing you of those contacts who have also registered to use the Application. At your request made via email to our email address listed below, or through your account settings (if applicable), Company will deactivate the connection between the Application and your Third Party Account and delete any information stored on Company’s servers that was obtained through such Third Party Account, except the username and profile picture that become associated with your account.
You acknowledge and agree that any questions, comments, suggestions, ideas, feedback or other information about the Application ("Submissions") provided by you to Company are non-confidential and Company (as well as any designee of Company) shall be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
You may not access or use the Application for any other purpose other than that for which Company makes it available. The Application may not be used in connection with any commercial endeavors except those that are specifically endorsed or approved by Company. Prohibited activity includes, but is not limited to:
- criminal or tortious activity;
- systematic retrieval of data or other content from the Application to create or compile, directly or indirectly, a collection, compilation, database or directory without written permission from Company;
- tricking, defrauding or misleading Company and other users, especially in any attempt to learn sensitive account information such as passwords;
- engaging in any automated use of the system, such as using any data mining, robots or similar data gathering and extraction tools;
- attempting to impersonate another user or person or using the username of another user;
- using any information obtained from the Application in order to harass, abuse, or harm another person; or
- attempting to bypass any measures of the Application designed to prevent or restrict access to the Application, or any portion of the Application.
TERM AND TERMINATION
This Agreement shall remain in full force and effect while you use the Application. You may terminate your use or participation at any time, for any reason, by following the instructions for terminating user accounts in your account settings, if available, or by contacting us using the contact information found within the Application.
WITHOUT LIMITING ANY OTHER PROVISION OF THIS AGREEMENT, COMPANY RESERVES THE RIGHT TO, IN COMPANY’S SOLE DISCRETION AND WITHOUT NOTICE OR LIABILITY, DENY ACCESS TO AND USE OF THE APPLICATION, TO ANY USER FOR ANY REASON OR FOR NO REASON AT ALL, INCLUDING WITHOUT LIMITATION FOR BREACH OF ANY REPRESENTATION, WARRANTY OR COVENANT CONTAINED IN THIS AGREEMENT, OR OF ANY APPLICABLE LAW OR REGULATION, AND COMPANY MAY TERMINATE YOUR USE OF THE APPLICATION, DELETE YOUR PROFILE AND ANY CONTENT OR INFORMATION THAT YOU HAVE POSTED AT ANY TIME, WITHOUT WARNING, IN COMPANY’S SOLE DISCRETION.
Any provisions of this Agreement that, in order to fulfill the purposes of such provisions, need to survive the termination or expiration of this Agreement, shall be deemed to survive for as long as necessary to fulfill such purposes.
YOU UNDERSTAND THAT CERTAIN STATES ALLOW YOU TO CANCEL THIS AGREEMENT, WITHOUT ANY PENALTY OR OBLIGATION, AT ANY TIME PRIOR TO MIDNIGHT OF COMPANY’S THIRD BUSINESS DAY FOLLOWING THE DATE OF THIS AGREEMENT, EXCLUDING SUNDAYS AND HOLIDAYS. TO CANCEL, CALL A COMPANY CUSTOMER CARE REPRESENTATIVE DURING NORMAL BUSINESS HOURS USING THE CONTACT INFORMATION LISTING IN THE APPLICATION OR BY ACCESSING YOUR ACCOUNT SETTINGS. THIS SECTION APPLIES ONLY TO INDIVIDUALS RESIDING IN STATES WITH SUCH LAWS.
If Company terminates or suspends your account for any reason, you are prohibited from registering and creating a new account under your name, a fake or borrowed name, or the name of any third party, even if you may be acting on behalf of the third party. In addition to terminating or suspending your account, Company reserves the right to take appropriate legal action, including without limitation pursuing civil, criminal, and injunctive redress.
Company may modify this Agreement from time to time. Any and all changes to this Agreement will be posted in the Application and revisions will be indicated by date. You agree to be bound to any changes to this Agreement when you use the Application after any such modification becomes effective. You agree that you will periodically check the Application for updates to this Agreement and you will read the messages we send you to inform you of any changes. Modifications to this Agreement shall be effective upon notice or as may otherwise indicated.
Company reserves the right at any time to modify or discontinue, temporarily or permanently, the Application (or any part thereof) with or without notice. You agree that Company shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Application.
All questions of law, rights, and remedies regarding any act, event or occurrence undertaken pursuant or relating to this Application shall be governed and construed by the law of Pennsylvania, excluding such state’s conflicts of law rules. Any legal action of whatever nature by or against Company arising out of or related in any respect to this Application shall be brought solely in either the applicable federal or state courts located in or with jurisdiction over Montgomery County, State of Pennsylvania; subject, however, to the right of Company, at the Company's sole discretion, to bring an action to seek injunctive relief to enforce this Agreement or to stop or prevent an infringement of proprietary or other third party rights (or any similar cause of action) in any applicable court in any jurisdiction where jurisdiction exists with regard to a user. You hereby consent to (and waive any challenge or objection to) personal jurisdiction and venue in the above-referenced courts. Application of the United Nations Convention on Contracts for the International Sale of Goods is excluded from this Agreement. Additionally, application of the Uniform Computer Information Transaction Act (UCITA) is excluded from this Agreement. In no event shall any claim, action or proceeding by you related in any way to the Application (including your use of the Application) be instituted more than two (2) years after the cause of action arose. You will be liable for any attorneys' fees and costs if we have to take any legal action to enforce this Agreement.
YOU AGREE THAT YOUR USE OF THE APPLICATION WILL BE AT YOUR SOLE RISK. TO THE FULLEST EXTENT PERMITTED BY LAW, COMPANY, ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE APPLICATION AND YOUR USE THEREOF, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. COMPANY MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THE APPLICATION’S CONTENT AND ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (A) ERRORS, MISTAKES, OR INACCURACIES OF FUNCTIONALITY, CONTENT AND MATERIALS, (B) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF OUR APPLICATION, (C) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN, (D) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE APPLICATION, (E) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH THE APPLICATION BY ANY THIRD PARTY, AND/OR (F) ANY ERRORS OR OMISSIONS IN ANY FUNCTIONALITY, CONTENT AND MATERIALS OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE APPLICATION. COMPANY DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE APPLICATION OR ANY HYPERLINKED APPLICATION OR FEATURED IN ANY BANNER OR OTHER ADVERTISING, AND COMPANY WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES. AS WITH THE PURCHASE OF A PRODUCT OR SERVICE THROUGH ANY MEDIUM OR IN ANY ENVIRONMENT, YOU SHOULD USE YOUR BEST JUDGMENT AND EXERCISE CAUTION WHERE APPROPRIATE.
LIMITATIONS OF LIABILITY
IN NO EVENT SHALL COMPANY OR ITS DIRECTORS, EMPLOYEES, OR AGENTS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING LOST PROFIT, LOST REVENUE, LOSS OF DATA OR OTHER DAMAGES ARISING FROM YOUR USE OF THE APPLICATION, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, COMPANY’S LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE AMOUNT PAID, IF ANY, BY YOU TO COMPANY FOR THE APPLICATION DURING THE PERIOD OF 3 MONTHS PRIOR TO ANY CAUSE OF ACTION ARISING OR $25, WHICHEVER IS GREATER.
CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.
IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE SECTION 1542, WHICH SAYS: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH, IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR."
You agree to defend, indemnify and hold Company, its subsidiaries, and affiliates, and their respective officers, agents, partners and employees, harmless from and against, any loss, damage, liability, claim, or demand, including reasonable attorneys’ fees and expenses, made by any third party due to or arising out of your use of the Application, and/or arising from a breach of this Agreement and/or any breach of your representations and warranties set forth above. Company will use reasonable efforts to notify you of any such claim, action, or proceeding which is subject to this indemnification upon becoming aware of it.
Our Application will maintain certain data that you transfer to the Application during your use of the Application. Although we perform regular routine backups of data, you are primarily responsible for all data that you have transferred or that relates to any activity you have undertaken using the Application. You agree that Company shall have no liability to you for any loss or corruption of any such data, and you hereby waive any right of action against Company arising from any such loss or corruption of such data.
Your use of the Application includes the ability to enter into agreements and/or to make transactions electronically. YOU ACKNOWLEDGE THAT YOUR ELECTRONIC SUBMISSIONS CONSTITUTE YOUR AGREEMENT AND INTENT TO BE BOUND BY AND TO PAY FOR SUCH AGREEMENTS AND TRANSACTIONS. YOUR AGREEMENT AND INTENT TO BE BOUND BY ELECTRONIC SUBMISSIONS APPLIES TO ALL RECORDS RELATING TO ALL TRANSACTIONS YOU ENTER INTO RELATING TO THE APPLICATION, INCLUDING NOTICES OF CANCELLATION, POLICIES, CONTRACTS, AND APPLICATIONS. In order to access and retain your electronic records, you may be required to have certain hardware and software, which are your sole responsibility.
If you are a U.S. government entity, you acknowledge that any software and documentation are provided as “Commercial Items” as defined at 48 C.F.R. 2.101, and are being licensed to U.S. government end users as commercial computer software subject to the restricted rights described in 48 C.F.R. 2.101 and 12.212.
This Agreement constitutes the entire agreement between you and Company regarding the use of the Application. The failure of Company to exercise or enforce any right or provision of this Agreement shall not operate as a waiver of such right or provision. The section titles in this Agreement are for convenience only and have no legal or contractual effect. This Agreement operates to the fullest extent permissible by law. This Agreement and your account may not be assigned by you without our express written consent. Company may assign any or all of its rights and obligations to others at any time. Company shall not be responsible or liable for any loss, damage, delay or failure to act caused by any cause beyond Company's reasonable control. If any provision or part of a provision of this Agreement is unlawful, void or unenforceable, that provision or part of the provision is deemed severable from this Agreement and does not affect the validity and enforceability of any remaining provisions. Upon Company’s request, you will furnish Company any documentation, substantiation or releases necessary to verify your compliance with this Agreement. You agree that this Agreement will not be construed against Company by virtue of having drafted it. You hereby waive any and all defenses you may have based on the electronic form of this Agreement and the lack of signing by the parties hereto to execute this Agreement.