THIS LICENSED APPLICATION END USER LICENSE AGREEMENT
”) is a legal agreement between the person (“You”) that has licensed the mobile application (the “Licensed Application”) made available by Gamify, Inc., a corporation duly organized and existing under the laws of the State of Delaware, U.S.A. (the “Application Provider”). By downloading, operating or otherwise using the Licensed Application, You agree to the terms of this EULA. If You do not agree to the terms of this EULA, You are not authorized to download, operate or otherwise use the Licensed Application.
The Licensed Application is non-exclusively licensed, not sold, to You for use only in accordance with the terms of this EULA. Subject to Your having accepted or agreed to the terms of this EULA, the Licensed Application may be obtained only through the Apple App Store, the Apple iTunes Store or any other software distribution platform authorized by Apple, Inc. (each, an “
”), through the Google Play Store or any other software distribution platform authorized by Google Inc. or through the Amazon Appstore or any other software distribution platform authorized by Amazon Services LLC and/or its affiliates. The Application Provider reserves all rights not expressly granted to You under this EULA.
Scope of License
. This license granted to You for the Licensed Application by Application Provider is limited to a non-transferable license to use the Licensed Application on an iOS, Amazon or Android device (each a “Device”) that You own or control for Your personal, non-commercial use and, in the case of an iOS device, as expressly permitted by the Usage Rules set forth in the Apple, Inc. App Store Terms and Conditions. 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, 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. If You breach this restriction, You may be subject to prosecution and damages. The terms of the license will also govern any upgrade or update to the Licensed Application provided by Application Provider that replace, update 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.
- Termination. The license granted to You by way of this EULA will commence upon Your download of the Licensed Application and, unless earlier terminated in accordance with this EULA, will continue for so long as You have in Your possession or control any copies of the Licensed Application. Your rights under the license will terminate automatically without notice from the Application Provider if You fail to comply with any term(s) of this EULA. Upon termination of the license, You shall cease all use of the Licensed Application, and destroy all copies, full or partial, of the Licensed Application in Your possession.
- Third Party Services; Third Party Materials. The Licensed Application may enable access to Application Provider’s and third party services and web sites (collectively, the “Services”). Use of the Services may require Internet access and Your acceptance of 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 information or 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 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 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.
- NO WARRANTY. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE LICENSED APPLICATION 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 AND ANY SERVICES PROVIDED OR OTHERWISE MADE AVAILABLE 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. SHOULD THE LICENSED APPLICATION 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.
YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT THE LICENSED APPLICATION IS PROVIDED FOR INFORMATIONAL PURPOSES ONLY. YOU MAY NOT USE OR RELY ON THE LICENSED APPLICATION IN SITUATIONS WHERE PERSONAL INJURY, DEATH OR PROPERTY DAMAGE MAY OCCUR. ADDITIONALLY, YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT THE LICENSED APPLICATION IS NOT FAULT TOLERANT AND IS NOT DESIGNED OR INTENDED FOR USE IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE PERFORMANCE OR IN WHICH THE FAILURE OF THE LICENSED APPLICATION COULD LEAD DIRECTLY OR INDIRECTLY TO DEATH, PERSONAL INJURY OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE AND, WITHOUT LIMITING THE SCOPE OF THE DISCLAIMERS SET FORTH HEREIN, THE APPLICATION PROVIDER FOR ITSELF AND ON BEHALF OF ITS LICENSORS AND THEIR RESPECTIVE SUPPLIERS, DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR ANY SUCH HIGH RISK USES.
To the maximum extent permitted by applicable law, neither Google Inc., Amazon Services LLC and/or its affiliates, Apple, Inc. nor any Apple Source is a party to this EULA or Your use or license of the Licensed Application and none of the foregoing entities make, have made, and do not make any warranties, or assume any warranty obligation(s) or other obligation(s) whatsoever with respect to: (i) the Licensed Application; and/or (ii) any claims, losses, liabilities, damages, costs, and/or expenses attributable to the Licensed Application, including but not limited to any of the foregoing arising from claims of infringement of intellectual property or personal rights, products liability, and/or failure of the Licensed Application to perform, execute, or conform to any standard.
In the event it may be determined that the Licensed Application is subject to any warranty under law, the Licensed Application fails to conform to the warranty, and the Licensed Application was purchased and/or licensed through an Apple Source, You may notify Apple, Inc. and Apple will refund Your purchase price for the Licensed Application. To the maximum extent permitted by applicable law, Apple, Inc. 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 Your sole responsibility. The foregoing includes, but is not limited to claims arising from, or based on: (i) products liability; (ii) failure of the Licensed Application to conform to any applicable legal or regulatory requirement; and (iii) failure to comply with any consumer protection or similar legislation.
- Limitation of Liability. TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL APPLICATION PROVIDER BE LIABLE FOR PERSONAL INJURY, LOSS OF PROFITS, OR ANY INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, 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, 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 one dollar ($1.00). The foregoing limitations will apply even if the above stated remedy fails of its essential purpose.
- Indemnification. You agree to defend, indemnify and hold harmless the Application Provider from and against all liability, claims, actions and expenses, including attorneys’ fees and costs, arising out of Your use of the Licensed Application or Your breach or alleged breach of any term, condition, obligation, representation or warranty in this EULA. You agree that the provisions in this paragraph will survive any termination of Your use of the Licensed Application or this EULA.
- Export Control. 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 (a) into any U.S. embargoed countries or (b) 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. By using the Licensed Application, You represent and warrant that You are not located in any such country or on any such list. You also agree that You will not use these products for any purposes prohibited by United States law, including, without limitation, the development, design, manufacture or production of nuclear, missiles, or chemical or biological weapons.
- 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 reserved under the copyright laws of the United States.
- Dispute Resolution; Governing Law.
Informal Negotiations. To expedite resolution and reduce the cost of any dispute, controversy or claim related to this EULA (each, a “Dispute”), You and Application Provider agree to first attempt to negotiate any Dispute (except those Disputes expressly provided below) informally for at least thirty (30) days before initiating any arbitration or court proceeding. Such informal negotiations commence upon written notice.
Binding Arbitration. If You and Application Provider are unable to resolve a Dispute through informal negotiations, either You or Application Provider may elect to have the Dispute (except those Disputes expressly excluded below) finally and exclusively resolved by binding arbitration. Any election to arbitrate by one party will be final and binding on the other. YOU UNDERSTAND THAT IF EITHER PARTY ELECTS TO ARBITRATE, NEITHER PARTY WILL HAVE THE RIGHT TO SUE IN COURT OR HAVE A JURY TRIAL. If You are a resident of the United States, the arbitration will be commenced and conducted under the Streamlined Arbitration Rules and Procedures of JAMS (the “JAMS Rules”), which is available at the JAMS website www.jamsadr.com. If You reside outside the United States, the arbitration will be commenced and conducted under the WIPO Expedited Arbitration Rules, which are available at the WIPO website www.wipo.int. The determination of whether a Dispute is subject to arbitration will be governed by the Federal Arbitration Act and determined by a court rather than an arbitrator. Your arbitration fees and Your share of arbitrator compensation will be governed by the JAMS Rules (and, where appropriate, limited by the JAMS Consumer Rules) or by the WIPO Expedited Arbitration Rules, as applicable. If such costs are determined by the arbitrator to be excessive, Application Provider will pay all arbitration fees and expenses. The arbitration may be conducted in person, through the submission of documents, by phone or online. The arbitrator will make a decision in writing, but need not provide a statement of reasons unless requested by a party. The arbitrator must follow applicable law, and any award may be challenged if the arbitrator fails to do so. Except as otherwise provided in this EULA, You and Application Provider may litigate in court to compel arbitration, stay proceeding pending arbitration, or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator.
Exceptions to Alternative Dispute Resolution. You and Application Provider agree that the following Disputes are not subject to the above provisions concerning informal negotiations and binding arbitration: (a) any Disputes seeking to enforce or protect, or concerning the validity of, any of Your or Application Provider’s intellectual property rights; (b) any Dispute related to, or arising from, allegations of theft, piracy, invasion of privacy or unauthorized use; and (c) any claim for injunctive relief.
Restrictions. You and Application Provider agree that any arbitration will be limited to the Dispute between Application Provider and You individually. To the full extent permitted by law, (a) no arbitration will be joined with any other; (b) there is no right or authority for any Dispute to be arbitrated on a class-action basis or to utilize class action procedures; and (c) there is no right or authority for any Dispute to be brought in a purported representative capacity on behalf of the general public or any other persons.
Location. If You are a resident of the United States, any arbitration will take place in Boston, Massachusetts, USA. If You reside outside the United States, any arbitration will be initiated in Boston, Massachusetts, USA. You and Application Provider agree that for any Dispute not subject to arbitration (other than claims proceeding in any small claims court), or where no election to arbitrate has been made, the Massachusetts state and Federal courts located in Boston, Massachusetts, USA have exclusive jurisdiction and You and Application Provider agree to submit to the personal jurisdiction of such courts.
Governing Law. This EULA will be is governed by, and will be construed under, the laws of the USA and the Commonwealth of Massachusetts, without regard to choice of law principles. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded.
- Severability. You and Application Provider agree that if any provision, section or portion of this EULA is found illegal or unenforceable, that provision, section or portion will be severed and the remainder of this EULA will be given full force and effect.
- Intellectual Property. In the event of any third party claim that the Licensed Application or Your possession and use thereof infringes a third party’s intellectual property rights, it is agreed that Application Provider, and not Apple, Inc. or Google Inc., will be responsible for the investigation, defense, settlement and discharge of such intellectual property infringement claim.
- Third Party Beneficiaries. You acknowledge and agree that Apple, Inc. and its respective subsidiaries are third party beneficiaries of this EULA, and that, upon Your acceptance of the terms and conditions of the EULA, any of the foregoing third parties will have the right (and will be deemed to have accepted the right) to enforce the EULA against You as a third party beneficiary thereof.
- Support Services. Application Provider may in its sole discretion provide You with support Services related to the Licensed Application (“Support Services”). Application Provider is not required to provide Support Services unless otherwise required by applicable law. Apple, Inc. has no obligation whatsoever under any circumstances to furnish any maintenance and/or support services with respect to the Licensed Application and You agree that You will look solely to Application Provider in connection with Support Services.
- Notices. Notices to Application Provider shall be sent by email to info at gamify dot science or by U.S. mail or reputable courier service to: Gamify, Inc., Attn: Gamify EULA, P.O. Box 0194, West Newton, MA 02465 .
- Entire Agreement. This EULA is the entire agreement between You and Application Provider with respect to the Licensed Application and supersedes all prior or contemporaneous understandings. No failure to exercise and to delay exercising a right or power hereunder shall operate as a waiver. If there is a conflict between the terms of this EULA and any applicable purchase or other terms, as between You and Application Provider, this EULA shall govern.
- Amendment. Except with respect to Section 10, Application Provider reserves the right, in its sole discretion, to change, modify, add to, supplement or delete any terms and conditions of this EULA at any time; provided, however, that Application Provider will use reasonable efforts to provide You with notification of any material changes (as determined in Application Provider’s sole discretion) by email, postal mail, website posting, pop-up screen, in-app notice or otherwise.
YOU HEREBY ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THE FOREGOING TERMS AND CONDITIONS OF THIS EULA AND YOU AGREE THAT YOUR USE OF THE LICENSED APPLICATION IS AN ACKNOWLEDGMENT OF YOUR AGREEMENT TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS EULA.