FinSiteful Mobile Application End User License Agreement
Last Updated: January 5, 2023
Important Notice: at this time the Licensed Application may not be accessed or used by persons located outside of the United States. Please see the section below titled “Geographic Restrictions” for more information.
In the unlikely event that any dispute between you and the Licensor is not resolved by consultations between you and the Licensor, this EULA requires arbitration on an individual basis, rather than jury trials or class actions. Please see the Section below titled “Dispute Resolution; Binding Arbitration; Governing Law” to learn more.
The FinSiteful Mobile App (the “Licensed Application”) is licensed, not sold, to you by FINSITEFUL, INC. (the “Licensor”). Your license to the Licensed Application is subject to your prior acceptance of and your full compliance with this Licensed Application End User License Agreement (this “EULA”).
BY CLICKING THE “AGREE” BUTTON, YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS EULA; (B) REPRESENT THAT EITHER (1) YOU ARE 18 YEARS OF AGE OR OLDER OR OTHERWISE OF LEGAL AGE TO ENTER INTO A BINDING LEGAL AGREEMENT OR (2) IF YOU ARE NOT OF LEGAL AGE TO ENTER INTO A BINDING LEGAL AGREEMENT THEN YOUR PARENT OR GUARDIAN HAS REVIEWED THIS EULA CAREFULLY AND HAS AGREED TO BE BOUND BY THIS EULA ON YOUR BEHALF; (C) REPRESENT THAT YOU WILL COMPLY WITH ALL GEOGRAPHIC AND RESIDENCY RESTRICTIONS SET FORTH IN THE SECTION BELOW TITLED “GEOGRAPHIC RESTRICTIONS”; AND (D) ACCEPT THIS EULA AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT USE THE LICENSED APPLICATION AND DELETE IT FROM YOUR MOBILE DEVICE.
Licensor reserves all rights in and to the Licensed Application not expressly granted to you under this EULA.
a. Scope of License: Licensor grants to you a limited, nonexclusive, nontransferable license to download, install and use the Licensed Application for your personal, noncommercial use only on any Android- or iOS-based products that you own or control (your “Mobile Device”) and strictly in accordance with this EULA. The terms of this EULA will govern any content, materials, or services accessible from or purchased within the Licensed Application as well as upgrades provided by Licensor that replace or supplement the original Licensed Application, unless such upgrade is accompanied by separate or additional terms and conditions.
b. Limitations and Restrictions: Except as and only to the extent that any of the following limitations and restrictions are prohibited by applicable law or to the extent as may be permitted by the licensing terms governing use of any open-sourced components included with the Licensed Application, you may not: (i) copy the Licensed Application, except as expressly permitted by this EULA; (ii) modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Licensed Application; (iii) reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Licensed Application or any part thereof (including any updates) or the underlying structure, ideas, know-how or algorithms relevant to the Licensed Application; (iv) remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Licensed Application, including any copy thereof; (v) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Licensed Application, any content or materials available on or through the Licensed Application, or any features or functionality of the Licensed Application, to any third party for any reason, including by making the Licensed Application available on a network where it is capable of being accessed by more than one device at any time; (vi) remove, disable, circumvent, or otherwise create or implement any workaround to any copy protection, rights management, or security features in or protecting the Licensed Application; (vii) input, upload, transmit or otherwise provide to or through the Licensed Application any information or materials that are unlawful or injurious, or contain, transmit or activate any virus, malware or other harmful code; (viii) damage, destroy, disrupt, disable, impair, interfere with or otherwise impede or harm in any manner the Licensor’s or its service providers’ servers or systems associated with the Licensed Application or its ability to provide services to any third party; (ix) access or use the Licensed Application (or any data or materials available via the Licensed Application) in any way that infringes, misappropriates or otherwise violates any intellectual property right, privacy right or other right of any third party, or that violates any applicable law or regulation; (x) use any manual or automatic process (such as robots, spiders or other automatic devices) to monitor or copy any of the material on the Licensed Application or for any other unauthorized purpose without the prior written consent of Licensor; (xi) use the Licensed Application to impersonate or attempt to impersonate any person, or misrepresent your identity or affiliation with any person or organization; or (xii) knowingly aid or assist any other person in taking any of the actions prohibited by this Section (b). If you sell your Mobile Device to a third party, you must remove the Licensed Application from the Mobile Device before doing so.
c. Reservation of Rights: You acknowledge and agree that the Licensed Application is provided under license, and not sold, to you. You do not acquire any ownership interest in the Licensed Application under this EULA, or any other rights thereto other than to use the Licensed Application in accordance with the license granted, and subject to all terms, conditions, and restrictions, under this EULA. Licensor and its licensors and service providers reserve and shall retain their entire right, title, and interest in and to the Licensed Application, including all copyrights, trademarks, and other intellectual property rights therein or relating thereto, except as expressly granted to you in this EULA.
d. Account Security: If you choose, or are provided with, a user name, password or any other piece of information as part of Licensor’s security procedures, you must treat such information as confidential, and you must not disclose it to any other person or entity. You also acknowledge that your account is personal to you and agree not to provide any other person with access to the Licensed Application or portions of it using your user name, password or other security information. If you permit any other person to use your account, you will be responsible for their activities while using the Licensed Application. You agree to notify Licensor immediately of any unauthorized access to or use of your user name or password or any other breach of security. Licensor has the right to disable any user name, password or other identifier, whether chosen by you or provided by Licensor, at any time in its sole discretion if, in Licensor’s opinion, the continued use of that user name, password or other identifier would be inappropriate. Accessing and using the Licensed Application without proper user name and password is strictly prohibited, constitutes a breach of this EULA resulting in the immediate termination of your right to use the Licensed Application, and may violate copyright and other laws.
e. Consent to Use of Technical Data: You agree that Licensor, using automatic means such as cookies and otherwise, 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 to you (if any) related to the Licensed Application. Licensor 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 to you.
h. COOPERATION WITH AUTHORITIES: LICENSOR RESERVES THE RIGHT TO FULLY COOPERATE WITH ANY LAW ENFORCEMENT AUTHORITIES OR COURT ORDER REQUESTING OR DIRECTING IT TO DISCLOSE THE IDENTITY OR OTHER INFORMATION OF ANYONE POSTING ANY MATERIALS ON OR THROUGH THE LICENSED APPLICATION. YOU WAIVE ANY RIGHT TO ASSERT ANY CLAIMS RESULTING FROM ANY SUCH ACTION TAKEN BY LICENSOR.
i. Geographic and Residency Restrictions: The Licensed Application and its associated content and services are provided from the United States and provided for access and use only by persons located in the United States. The Licensed Application and its associated content and services may not be accessed or used by persons located outside of the United States.
j. Updates: Licensor may from time to time in its sole discretion develop and provide Licensed Application updates, which may include upgrades, bug fixes, patches, other error corrections, and/or new features (collectively, including related documentation, “Updates”). Updates may also modify or delete in their entirety certain features and functionality. You agree that Licensor has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality. Based on your Mobile Device settings, when your Mobile Device is connected to the internet either: (i) the Licensed Application will automatically download and install all available Updates; or (ii) you may receive notice of or be prompted to download and install available Updates. You shall promptly download and install all Updates and acknowledge and agree that the Licensed Application or portions thereof may not properly operate should you fail to do so. You further agree that all Updates will be deemed part of the Licensed Application and be subject to all terms and conditions of this EULA.
k. Third-Party Materials: The Licensed Application may display, include, or make available third-party content (including data, information, applications, and other products, services, and/or materials) or provide links to third-party websites or services, including through third-party advertising (“Third-Party Materials”). You acknowledge and agree that Licensor is not responsible for Third-Party Materials, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect thereof. Licensor does not assume and will not have any liability or responsibility to you or any other person or entity for any Third-Party Materials. Third-Party Materials and any links or other access thereto are provided solely as a convenience to you, and you access and use them entirely at your own risk and subject to such third parties’ terms and conditions. Licensor reserves the right to change, suspend, remove, disable or impose access restrictions or limits on any Third-Party Materials at any time without notice or liability to you. For the avoidance of doubt, the Third-Party Materials include any third-party services or applications you may choose to use with the Licensed Application for the purposes of connecting your financial accounts to the Licensed Application, such as the services offered by Plaid Inc. (“Plaid”), MX Technologies, Inc. (“MX Technologies”) or another similar provider (collectively, including Plaid and MX Technologies, the “Financial Account Link Providers”). Financial Account Link Providers are not subcontractors or service providers of the Licensor. You form a direct relationship with the Financial Account Link Providers when you choose to register an account with them and accept the applicable terms and conditions of such services. If you elect to use the services offered by a Financial Account Link Provider in connection with the Licensed Application, you should carefully review their respective terms and conditions and privacy policies. You acknowledge, understand and agree that Licensor is not responsible for (and will not be liable to you in any way for) any actions or omissions of any Financial Account Link Provider.
l. Termination. This EULA is effective until terminated by you or Licensor. Your rights under this EULA will terminate immediately and automatically without any notice to you if you fail to comply with any of its terms. You may terminate this EULA by deleting the Licensed Application and all copies thereof from your Mobile Device. Licensor may terminate this EULA at any time without notice, for any reason or for no reason, including, but not limited to, if Licensor ceases to support the Licensed Application, which Licensor may do in its sole discretion. Upon termination, all rights granted to you under this EULA will also terminate and you must cease all use of the Licensed Application and delete all copies of the Licensed Application from your Mobile Device and account. Termination will not limit any of Licensor’s rights or remedies at law or in equity.
m. NO WARRANTY; DISCLAIMERS: Licensor strives to provide a reliable and useful experience when using the Licensed Application, but does not guarantee that the Licensed Application will be available at any specific time and will not be liable for any reason if you cannot access the Licensed Application. Licensor reserves the right to alter, enhance, withdraw, restrict the use of or amend the Licensed Application (including, without limitation, the design, look and feel, functionality, content, material, information and/or services provided via the Licensed Application) in Licensor’s sole discretion at any time without notice. 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, THE CONTENT OR MATERIALS AVAILABLE ON OR THROUGH THE LICENSED APPLICATION, AND ANY SERVICES PERFORMED OR PROVIDED BY OR RELATED TO THE LICENSED APPLICATION ARE PROVIDED “AS IS” AND “AS AVAILABLE,” WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND LICENSOR HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE LICENSED APPLICATION, ANY CONTENT OR MATERIALS 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, OF TITLE, AND OF NONINFRINGEMENT OF THIRD-PARTY RIGHTS. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY LICENSOR OR ITS AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. SHOULD THE LICENSED APPLICATION, ANY CONTENT OR MATERIALS OR ANY RELATED SERVICES PROVE DEFECTIVE, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR, OR CORRECTION.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE LICENSED APPLICATION, THE CONTENT OR MATERIALS AVAILABLE ON OR THROUGH THE LICENSED APPLICATION, AND ANY SERVICES PERFORMED OR PROVIDED BY OR RELATED TO THE LICENSED APPLICATION OR OTHERWISE AVAILABLE THROUGH THE LICENSED APPLICATION WILL CREATE ANY WARRANTY REGARDING LICENSOR, THE LICENSED APPLICATION, ANY CONTENT OR MATERIALS OR ANY RELATED SERVICES THAT IS NOT EXPRESSLY STATED IN THESE TERMS. YOU USE, ACCESS, DOWNLOAD, OR OTHERWISE OBTAIN THE LICENSED APPLICATION, ITS CONTENT AND MATERIALS AND ANY RELATED SERVICES, AT YOUR OWN DISCRETION AND RISK. YOU ASSUME ALL RISK FOR ANY DAMAGE THAT MAY RESULT FROM YOUR USE OF OR ACCESS TO THE LICENSED APPLICATION, ITS CONTENT AND MATERIALS AND ANY RELATED SERVICES, FROM YOUR DEALINGS WITH ANY OTHER USER OF THE LICENSED APPLICATION (INCLUDING, BUT NOT LIMITED TO, YOUR HIGHER ED INSTITUTION) OR ANY THIRD PARTY, AND YOUR USE OF THE CONTENT AND MATERIALS AVAILABLE THROUGH THE LICENSED APPLICATION.
YOU ACKNOWLEDGE THAT THE LICENSED APPLICATION AND THE CONTENT AND MATERIALS AVAILABLE ON OR THROUGH THE LICENSED APPLICATION ARE PROVIDED FOR GENERAL EDUCATIONAL AND INFORMATIONAL PURPOSES ONLY AND DO NOT CONSTITUTE, ARE NOT INTENDED TO BE, AND SHOULD NOT BE CONSTRUED AS (X) FINANCIAL OR INVESTMENT ADVICE DESIGNED TO MEET ANY PARTICULAR INDIVIDUAL’S NEEDS OR CIRCUMSTANCES, OR (Y) AN OFFER TO BUY OR SELL, OR THE SOLICITATION OF ANY OFFER TO BUY OR SELL, ANY SECURITIES. THE INFORMATION PRESENTED ON OR THROUGH THE LICENSED APPLICATION IS NOT A SUBSTITUTE FOR, AND SHOULD NOT BE USED AS A SUBSTITUTE FOR OR A REPLACEMENT OF, PERSONALIZED ADVICE AND ANALYSIS OF A CERTIFIED AND/OR LICENSED FINANCIAL ADVISOR OR PLANNER. THE INFORMATION CONTAINED IN THE LICENSED APPLICATION AND ITS ASSOCIATED CONTENT AND MATERIALS ARE BASED UPON SOURCES LICENSOR BELIEVES TO BE RELIABLE, BUT IS NOT GUARANTEED AND DOES NOT PURPORT TO BE COMPLETE OR ERROR-FREE. LICENSOR DOES NOT WARRANT, ENDORSE OR GUARANTEE THE COMPLETENESS, ACCURACY, INTEGRITY OR TIMELINESS OF THE CONTENT AND MATERIALS AVIALABLE ON OR THROUGH THE LICENSED APPLICATION. LICENSOR MAY UPDATE THE CONTENT AND MATERIALS AVAILABLE ON AND THROUGH THE LICENSED APPLICATION FROM TIME TO TIME, BUT THE CONTENT AND MATERIALS ARE NOT NECESSARILY COMPLETE OR UP-TO-DATE. ANY OF THE CONTENT OR MATERIALS AVAILABLE ON OR THROUGH THE LICENSED APPLICATION MAY BE OUT OF DATE AT ANY GIVEN TIME, AND LICENSOR IS UNDER NO OBLIGATION TO UPDATE SUCH MATERIAL. AS A RESULT, ANY RELIANCE YOU PLACE ON INFORMATION AVAILABLE VIA THE LICENSED APPLICATION IS STRICTLY AT YOUR OWN RISK. LICENSOR WILL NOT BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY RELIANCE PLACED UPON THE CONTENT AND MATERIALS AVAILABLE ON OR THROUGH THE LICENSED APPLICATION.
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. NOTHING IN THIS SECTION SHALL AFFECT WARRANTIES WHICH ARE INCAPABLE OF EXCLUSION OR RESTRICTION UNDER APPLICABLE LAW.
n. LIMITATION OF LIABILITY: TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL LICENSOR BE LIABLE FOR PERSONAL INJURY OR ANY INCIDENTAL, SPECIAL, INDIRECT, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OF DATA, LOSS OF GOODWILL, BUSINESS INTERRUPTION, MOBILE DEVICE FAILURE OR MALFUNCTION, OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OF OR INABILITY TO USE THE LICENSED APPLICATION, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT, OR OTHERWISE) AND EVEN IF LICENSOR 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 LICENSOR’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.
o. Indemnification: You agree to indemnify, defend, and hold harmless Licensor and its officers, directors, employees, agents, affiliates, successors, and assigns from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including actual attorneys’ fees, arising from or relating to your misuse of the Licensed Application or your breach of this EULA.
p. Export Regulation: 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 Specially Designated Nationals List or the U.S. Department of Commerce Denied Persons 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, missile, or chemical or biological weapons.
q. U.S. Government Rights: 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.
r. User Disagreements: Your use of the Licensed Application may bring you into contact with other users, such as administrators at your educational institution who you may contact to discuss your financial concerns. You are solely responsible for your interactions with and involvement with other users. If you have a dispute with one or more users, you release Licensor (and Licensor’s owners, officers, directors, agents and employees) from claims, demands and damages (including, but not limited to, actual, special, consequential and punitive) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes.
s. Dispute Resolution; Binding Arbitration; Governing Law:
(i)PLEASE READ THIS SECTION (S) CAREFULLY, BECAUSE THE LICENSOR WANTS YOU TO KNOW AND UNDERSTAND HOW IT AFFECTS YOUR RIGHTS.
(ii)If you have an issue with the Licensed Application, Licensor encourages you to review the Licensed Application’s frequently asked questions page or contact Licensor through the Licensed Application’s chat feature or the means provided in the Section below titled “Comments and Concerns.”
(iii)If the guidance available on the frequently asked questions page or your consultation with Licensor is unable to resolve any issues, then you and the Licensor agree to first attempt to settle any claim, controversy or dispute arising out of or relating to this EULA through consultation and negotiation, in good faith and a spirit of mutual cooperation.
(iv)If the parties cannot resolve the claim, controversy or dispute within forty-five (45) days through direct consultation and negotiation, then the claim, controversy or dispute shall be determined by final and binding arbitration to be administered by JAMS under its Comprehensive Arbitration Rules and Procedures. The dispute shall be arbitrated by one mutually acceptable arbitrator. If the parties are unable to agree upon a single arbitrator, then the parties shall choose an arbitrator by striking from a list of arbitrators supplied by JAMS. The arbitration proceeding must be completed through the rendering of the award within six months of the selection of the arbitrator. The arbitration hearing shall be no longer than five consecutive business days to be equally divided between the parties. The arbitrator shall not have the power to award any punitive or exemplary damages nor attorneys’ fees to either party. The award of the arbitrator shall be accompanied by a written explanation of the basis of the award. The decision of the arbitrators shall be final and binding and may be enforced in any court of competent jurisdiction.
(v)The procedures set forth in this Section (s) are the exclusive means for resolving any claims, controversies or disputes of any nature whatsoever between the parties (whether in contract, tort or otherwise, including statutory, common law, fraud (whether by misrepresentation or by omission) or other intentional tort, property or equitable claims) arising out of or relating to the Licensed Application, this EULA or the validity, scope, interpretation or enforceability of this Section (s), and, except as otherwise expressly provided in this Section (s) neither party may initiate or maintain any proceeding in any court or similar tribunal relating to any dispute within the scope of this Section (s); provided that either party may seek temporary equitable relief to the extent reasonably necessary to protect its rights under this EULA, in each case from a court of competent jurisdiction.
(vi)This EULA and the rights the parties hereunder shall be governed by and construed in accordance with the laws of the United States and the State of Delaware, as applicable, exclusive of conflict or choice of law rules. The parties expressly waive and disclaim the applicability of the United Nations Convention on the International Sale of Goods to the fullest extent permitted by law. The parties acknowledge that this EULA evidences a transaction involving interstate commerce. Notwithstanding the provision immediately above with respect to applicable substantive law, any arbitration conducted pursuant to the terms of this EULA shall be governed by the Federal Arbitration Act (9 U.S.C., Secs. 1-16).
(vii)YOU AND THE LICENSOR AGREE TO ARBITRATE IN EACH PARTY’S INDIVIDUAL CAPACITY ONLY, AND NOT AS A REPRESENTATIVE OR MEMBER OF A CLASS, AND EACH PARTY EXPRESSLY WAIVES ANY RIGHT TO FILE A CLASS ACTION OR SEEK RELIEF ON A CLASS BASIS. YOU AGREE THAT ANY ARBITRATION PROCEEDING WILL ONLY CONSIDER YOUR CLAIMS. CLAIMS BY, OR ON BEHALF OF, OTHER INDIVIDUALS, WILL NOT BE ARBITRATED IN ANY PROCEEDING CONSIDERING YOUR CLAIMS. YOU AND THE LICENSOR UNDERSTAND AND AGREE THAT, BECAUSE OF THIS SECTION (S), NEITHER YOU NOR THE LICENSOR WILL HAVE THE RIGHT TO GO TO COURT (EXCEPT AS PROVIDED HEREIN) OR TO HAVE A JURY TRIAL OR PARTICIPATE AS ANY MEMBER OF A CLASS OF CLAIMANTS PERTAINING TO ANY CLAIM.
(viii)Except as may be required by law, neither you nor the Licensor nor any arbitrator may disclose the existence, content or results of any claim, controversy or dispute under, arising out of, or relating to this EULA or arbitration hereunder without the prior written consent of both parties, unless to protect or pursue a legal right.
(ix)Notwithstanding anything to the contrary in the foregoing, no party shall be precluded from bringing an individual claim in small claims court only, to the extent the applicable claim is within the jurisdictional limits of such court. The parties hereby agree to bring any such claim exclusively in the courts of the State of Delaware, and you and the Licensor hereby irrevocably submit to the exclusive jurisdiction of such courts in any such claim.
(x)This agreement to arbitrate may be enforced by the parties to this EULA and their permitted successors and assigns or their heirs, executors, administrators, affiliates and legal representatives (as applicable), and shall survive the termination or breach of this EULA.
t. Severability and Waiver: If any provision of this EULA is illegal or unenforceable under applicable law, the remainder of the provision will be amended to achieve as closely as possible the effect of the original term and all other provisions of this EULA will continue in full force and effect. No failure to exercise, and no delay in exercising, on the part of either party, any right or any power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or power hereunder preclude further exercise of that or any other right hereunder.
u. Amendment: Except as set forth in the Section below titled “Changes to this Agreement,” no change, consent or waiver under this EULA will be effective unless in writing and signed by the party against which enforcement is sought.
v. No Third Party Beneficiaries: Except as provided in the immediately following sentence, this EULA is for the sole benefit of the parties hereto and their respective successors and permitted assigns and/or heirs, executors, administrators, affiliates and legal representatives and nothing herein, express or implied, is intended to or will confer on any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this EULA. If (and only if) you are accessing and using the Licensed Application in connection with an iOS-based product, you acknowledge and agree that Apple Inc. (“Apple”), and Apple’s subsidiaries, are third party beneficiaries of this EULA and, upon your acceptance of this EULA, Apple will have the right (and will be deemed to have accepted the right) to enforce this EULA against you as a third party beneficiary hereof.
w. Injunctive Relief: You acknowledge and agree that the breach or threatened breach of this EULA would cause irreparable harm to Licensor, the extent of which would be difficult to ascertain. Accordingly, you agree that, in addition to any other remedies to which Licensor may be legally entitled, Licensor may seek immediate injunctive relief without the necessity to post a bond therefor in the event of such breach or threatened breach by you.
y. Changes to this Agreement: Licensor may revise and update this EULA from time to time in its sole discretion. Changes are effective immediately when Licensor posts them, but are not retroactive. Your continued use of the Licensed Application following the posting of a revised EULA means that you accept and agree to the changes. You must check this page frequently so that you are aware of any changes, and immediately discontinue access or use of the Licensed Application if you do not want to agree to the revised EULA.
z. Coordination with Apple Minimum Terms: If (and only if) you are accessing and using the Licensed Application in connection with an iOS-based product, then the additional terms and conditions of this Section (z) apply to you. This EULA is concluded between you and Licensor only, and not with Apple. You and Licensor each acknowledge that Licensor, and not Apple, is responsible for the Licensed Application and the content thereof, subject to the terms and conditions of this EULA. You and Licensor each acknowledge that Apple does not have any obligation whatsoever to furnish any maintenance or support services with respect to the Licensed Application. You and Licensor each acknowledge that, as between Licensor on the one hand, and Apple on the other, Licensor (and not Apple) is responsible for addressing any claims by you or any third party 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, privacy, or similar legislation, in each case subject to the terms and conditions of this EULA. To the maximum extent permitted by applicable law, Apple will not have any 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 Licensor’s sole responsibility, subject to the terms and conditions of this EULA. In the event of any third party claim that the Licensed Application or your possession and use of the Licensed Application in accordance with this EULA infringes that third party’s intellectual property rights (an “Infringement Claim”), Licensor (and not Apple), will be solely responsible for the investigation, defense, settlement and discharge of any such Infringement Claim. Notwithstanding the foregoing, Licensor will have no liability or obligation with respect to any Infringement Claim to the extent based upon or arising out of: (a) access to or use of the Licensed Application in combination with any hardware, system, software, network or other materials or service not provided by Licensor (or authorized in the Licensed Application’s documentation or otherwise in writing by Licensor); (b) modifications or configurations made to the Licensed Application, as applicable, by anyone other than Licensor (or a party acting under Licensor’s direction) without Licensor’s prior written consent; or (c) any action taken by you relating to use of the Licensed Application that violates this EULA or is otherwise outside the scope of the rights and authorizations granted in this EULA.
aa. Comments and Concerns: All feedback, comments and other communications relating to the Licensed Application should be directed to the Licensor: