This End User Licence Agreement ("Agreement”) is made between Evoque Ltd. ("Licensor”) as the licensor of the Ondle application ("Application”) and you the licensee ("Licensee”). The Licensor has agreed to license the Licensee to use the Application for the Purpose on the terms of this Agreement.
The definitions and rules of interpretation in this clause apply in this Agreement.
Application: all content including text, information, data, software, executable code, images, audio, or video material in any medium or form provided by the Licensor to the Licensee herein.
Disclaimer: the disclaimer provided to the Licensee together with the Application.
Intellectual Property Rights: patents, rights to inventions, copyright and related rights, moral rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, rights in computer software, database rights, rights to use and protect preserve the confidentiality of, confidential information (including know-how), and all other intellectual property rights.
Purpose: private, non-commercial and for information purposes only subject to Licensor’s Disclaimer.
Reserved Rights: all rights in, or in relation to, the Content that are not expressly granted to Licensee under this Agreement.
2.1 The Licensor hereby grants to the Licensee a non-transferable, non-exclusive worldwide licence to use the Application for the Purpose on any compatible device that Licensee owns or controls and as permitted by the Usage Rules set forth in Section 9.b. of the App Store Terms and Conditions (the "Usage Rules”).
2.2 The licence granted to the Licensee is strictly limited to, and the Licensee shall use the Application solely for, the Purpose. Licensee may not rent, lease, lend, sell, redistribute, sublicense or commercially exploit the Application or make the Application available to any third party.
2.3 Licensee may not copy (except as expressly permitted by this Agreement and the Usage Rules), decompile, reverse engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the Application any updates, or any part thereof (except as and only to the extent any foregoing restriction is prohibited by applicable law or to the extent as may be permitted by the licensing terms governing use of any open sourced components included with the Application).
2.4 Licensee agrees not to modify, rent, lease, loan, sell, distribute, or create derivative works based on the Application, in any manner, and Licensee shall not exploit the Application in any unauthorized way whatsoever, including but not limited to, by trespass or burdening network capacity. Licensee further agrees not to use the Application in any manner to harass, abuse, stalk, threaten, defame or otherwise infringe or violate the rights of any other party, and that the Licensor is not in any way responsible for any such use by Licensee, nor for any harassing, threatening, defamatory, offensive or illegal messages or transmissions that Licensee may receive as a result of using any of the Application.
2.5 Licensee acknowledges that the Agreement is entered into, by and between the Licensor and the Licensee and not with Apple Inc or its subsidiaries (Apple). Licensee also acknowledges that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Application.
2.6 Licensee’s use of the App constitutes Licensee’s acceptance of the terms of the Agreement which may be amended from time to time by Licensor. Licensor reserves the right to change or modify this Agreement or any other Licensor’s policies related to use of the Application at any time. Continued use of the Application following the posting of these changes or modifications will constitute acceptance of such changes or modifications.
3.1 The Licensor may require the Licensee to cease all use of any of the Application if it reasonably believes that the Licensee’s use of this Application infringes the Intellectual Property Rights of any third party, or breaches any applicable law or regulation. In this instance, the Licensor may, at its option either:
1. provide the Licensee with alternative Content so as to avoid the infringement; or
2. terminate this Agreement immediately on written notice.
4.1 The Licensee may not change, amend or develop the Application in any way.
4.2 The Licensee shall comply with all applicable laws in performing its obligations and exercising its rights under this Agreement.
4.3 The Licensee shall not infringe any moral rights (as defined in Chapter IV of the Copyright, Designs and Patents Act 1988) that subsist in respect of the Application.
4.4 If the Licensee becomes aware of any misuse of the Application, or any security breach in connection with this Agreement that could compromise the security or integrity of the Application or otherwise adversely affect the Licensor, the Licensee shall promptly notify the Licensor and fully co-operate with the Licensor to remedy the issue as soon as reasonably practicable. The Licensor may suspend the Licensee's rights under this Agreement until the misuse or security breach is remedied.
5.1 Licensee shall respect and not circumvent any DRM and ensure that the Application is used within the scope of the rights granted to the Licensee.
5.2 The Licensee shall not copy, transfer or communicate the Application to any other member of the public or in any way exploit the Application other than as allowed by this Agreement.
5.3 The Licensee shall not remove, bypass, circumvent, neutralise, or modify any of the DRM and technological protection measures used for the Application.
6.1 The Licensor retains ownership of all Intellectual Property Rights in the Application.
6.2 Licensee agrees that Licensor may collect and use technical data and related information, including but not limited to technical information about Licensee’s device, system and application software, and peripherals, that is gathered periodically to facilitate the provision of software updates, product support and other services to Licensee (if any) related to the Application. Licensor may use this information, as long as it is in a form that does not personally identify Licensee, to improve its products or to provide services or technologies to Licensee.
6.3 Licensee acknowledges that by using the Application, Licensee 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, Licensee agrees to use the Application at Licensee’s sole risk and that the Licensor shall not have any liability to Licensee for content that may be found to be offensive, indecent, or objectionable.
6.4 Certain Application 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 Application, Licensee acknowledges and agrees that the Licensor 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 Licensor does not warrant or endorse and does not assume and will not have any liability or responsibility to Licensee or any other person for any such 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 Licensee. Financial information displayed by any services is for general informational purposes only and is not intended to be relied upon as investment advice.
6.5 Third party services and Third Party Materials that may be accessed from, displayed on or linked to from the Application are not available in all languages or in all countries. The Licensor makes no representation that such services and materials are appropriate or available for use in any particular location. To the extent Licensee chooses to access such services or materials, Licensee does so at Licensee’s own initiative and is responsible for compliance with any applicable laws including but not limited to applicable local laws. The Licensor, 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 Licensor be liable for the removal of or disabling of access to any such services or the Application. The Licensor may also impose limits on the use of or access to certain services in any case and without notice or liability.
6.6 Licensor operates a notice and take down policy and reserves the right at any time to withdraw any item, data or information or part thereof that Licensor in its sole discretion wishes to make available or distribute for any reason.
7.1 Each party warrants to the other that it has full power and authority to enter into and perform its obligations under this Agreement.
7.2 The Licensor warrants that to the best of its knowledge and belief the Application does not infringe any third party's Intellectual Property Rights.
7.3 Licensee expressly acknowledges and agrees that use of the Application is at Licensee’s sole risk and that the entire risk as to satisfactory quality, performance, accuracy and effort is with Licensee.
Licensor does not warrant against interference with Licensee’s enjoyment of the Application, that the functions contained in, or Services performed or provided by, the Application will meet Licensee’s requirements, that the operation of the Application or Services will be uninterrupted or error-free, or that defects in the Application or Services will be corrected. Licensor assumes no responsibility for any error, omission, interruption, deletion, defect, delay in operation or transmission, communications line failure, theft or destruction or unauthorized access to, or alteration of, any communication. Licensor is not responsible for any problems or technical malfunction of any telephone network or lines, computer online systems, servers or providers, computer equipment, software, failure of any email or players due to technical problems or traffic congestion on the Internet or on any of the Services or combination thereof, including any injury or damage to users or to any person’s computer related to or resulting from participation or downloading materials in connection with the Licensor Services.
Under no circumstances shall Licensor be responsible for any loss or damage, including personal injury or death, resulting from use of the Services or from the conduct of any users of the Services, whether online or offline. Any unauthorised modifications will invalidate the warranty.
App must be used in line with Licensors instructions for use.
8.1 The Licensee agrees not to hold Licensor responsible (and shall indemnify the Licensor against all claims, liabilities and expenses arising thereof) regarding:
1. the Licensee's activities under this Agreement;
2. any infringement of any rights of any third party by use of the Application by the Licensee; or
3. the Licensee's failure to comply with all applicable laws and regulations.
8.2 Any indemnity under this agreement shall only apply to the extent that the indemnified party:
1. promptly notifies the indemnifying party in writing of any claim or suit relevant to the indemnity;
2. makes no admissions or settlements without the indemnifying party’s prior written consent;
3. allows the indemnifying party complete control over any negotiations or litigation and/or the defence or settlement of such suit or claim; and
4. gives the indemnifying party all information and assistance as it may reasonably require.
9.1 Each party shall promptly notify the other of any actual or suspected infringement of the Content within the Territory that comes to its attention ("Infringement”).
9.2 The Licensee shall co-operate fully with the Licensor by taking all steps required by the Licensor (in its sole discretion) in connection with any infringement, including, without limitation, legal proceedings in the name of the Licensor or in the joint names of the parties. The Licensor shall be responsible for the cost of any legal proceedings it requires, and is entitled to any damages, account of profits and/or awards of costs recovered. The Licensee shall use its best endeavours to assist the Licensor in any legal proceedings relating to any Infringement.
10.1 The Licensor may (by written notice to the Licensee) terminate this agreement immediately if:
1. the Licensee fails to pay any amount due under this Agreement in full; or
2. the Licensee commits any material breach of its obligations under this Agreement which is incapable of remedy, or if capable of remedy, is not remedied within five Business Days of the Licensor giving written notice requiring the breach to be remedied; or
3. the Licensee challenges or disputes the Licensor's ownership of, or rights in, the Application, or the validity of those rights.
10.2 On any expiration or termination of this Agreement:
1. all rights and authorisations granted by the Licensor to the Licensee under this Agreement shall automatically terminate and immediately revert to the Licensor; and
2. the Licensee shall immediately cease all use of the Application, and shall, at the Licensor's option and according to the Licensor's instructions, immediately return to the Licensor or destroy the Application in the Licensee's possession or subject to its control including from back-up systems and any cached Application within the Licensee’s control.
11.1 Save where expressly provided, all conditions, warranties or other terms which might have effect between the parties or be implied or incorporated into this Agreement or any collateral contract, whether by statute, common law or otherwise, are hereby excluded to the maximum extent permitted by law.
11.2 Nothing in this Agreement shall operate to exclude or limit the Licensor’s liability for:
1. any breach of the terms implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982;
2. fraud; or
3. any other liability which cannot be excluded or limited under applicable law.
11.3 The Licensor shall have no liability for any personal injury or any losses or damages which may be suffered by the Licensee (or any person claiming under or through the Licensee), whether the same are suffered directly or indirectly or are immediate or consequential, and whether the same arise in contract, tort (including negligence) or otherwise howsoever, which fall within any of the following categories:
1. loss of use;
2. loss of profits;
3. loss of anticipated savings;
4. business interruption or loss of business opportunity;
5. loss of contracts;
6. loss of goodwill; or
7. loss arising from damaged, corrupted or lost data;
provided that this clause shall not prevent claims for direct financial loss that are not excluded by any of categories (a) to (g) inclusive of this clause.
11.4 Subject to clause 11.2, the Licensor’s liability, whether in contract, tort (including negligence), or otherwise and whether in connection with this licence or any collateral contract, shall not exceed the amount paid by Licensee to Licensor.
A person who is not a party to this Agreement shall not have any rights under or in connection with it.
The Licensee shall not, without the prior written consent of the Licensor, assign, transfer or deal in any manner with this Agreement or any of its rights and obligations under this Agreement, or purport to do any of the same.
If any provision of this Agreement (or part of any provision) is found by any court or other authority of competent territory to be invalid, unenforceable or illegal, the other provisions shall remain in force. If any invalid, unenforceable or illegal provision would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
Licensee agrees that Licensor may collect and use technical data and related information, including but not limited to technical information about Licensee’s device, system and application software, and peripherals, that is gathered periodically to facilitate the provision of software and data updates, product support and other services to Licensee (if any) related to the Application. Licensor may use this information, as long as it is in a form that does not personally identify Licensee, to improve its products or to provide services or technologies to Licensee.
The Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with English law and the parties submit to the exclusive jurisdiction of the English courts to settle any claim or matter arising in relation to this agreement or its subject matter or formation (including non-contractual disputes or claims).
Copyright 2005-2019 Evoque Limited. Company registered in England and Wales.
Registered Number 5497986. Registered Address 27 Russell Road, London, England, N20 0TN.
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