LICENSED APPLICATION END USER LICENSE AGREEMENT
YOUR USE OF THE LICENSED APPLICATION CONSTITUTES YOUR AGREEMENT TO BE BOUND BY THESE TERMS AND CONDITIONS. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS, DO NOT INSTALL AND/OR USE THE LICENSED APPLICATION.
The products transacted through the Apple Media Service (the “Licensed Application”) are licensed, not sold, to You for use only under the terms of this license. The licensor, NX-Gentech, LLC, (“Application Provider”) reserves all rights not expressly granted to You.
a. Scope of License: Subject to the Apple Media Services Terms and Conditions (the “Usage Rules”), 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 any of the following devices or other devices that You own or control (“Supported Devices”): iOS iPhone 8 or later with a minimum native pixel resolution of 750 x 1334 iPad Pro, iPad Air 2, iPad Mini 2 or later This license does not allow You to use the Licensed Application on any Apple devices or other device that You do not own or control or that is not supported by Application Provider. To use the Licensed Application, You must have a mobile device that is compatible with the Licensed Application. Application Provider does not warrant that the Licensed Application will be compatible with Your mobile device. You may use mobile data in connection with the Licensed Application and may incur additional charges from Your wireless provider for these services. You agree that you are solely responsible for any such charges. 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. The Licensed Application may not be used on a service-bureau or time-sharing service. You may not rent, lease, lend, sell, redistribute or sublicense the Licensed Application. You may not copy (except as expressly permitted by this license and the Usage Rules), 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 or to the extent as may be permitted by the licensing terms governing use of any open sourced components included with the Licensed Application). 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 govern any upgrades provided by Application Provider that replace and/or supplement the original Product, unless such upgrade is accompanied by a separate license in which case the terms of that license will govern. In order to use the Products, You may be required to upgrade to the latest mobile application version. Application Provider may notify You via email or other mechanisms describing the applicable upgrade. You agree to use the Licensed Application only for purposes that are permitted by (a) the terms and conditions of this license, and (b) any applicable law, regulation or generally accepted practices or guidelines in the relevant jurisdictions. You agree to comply with all applicable local, state, federal and international laws and regulations including, without limitation, those related to the download, installation and/or use of the Licensed Application.
b. Consent to Use of Data; Moderation: You agree that Application Provider may collect and use technical data and related information, including but not limited to technical information about Your device, system and application software, error data, telemetry, usage 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. Application Provider will own and retain all rights to user-contributed content and data captured through the Licensed Application. Application Provider may use this information to improve its products, to provide services or technologies to You, or for any other lawful purpose. In addition, the Application Provider Privacy Policy located at [https://www.nxgware.com/privacy] shall govern the disclosure of personal information. [Ratings and Reviews, both positive and negative, will be displayed without censor. However, You agree to acceptable usage guidelines as outlined herein. Application Provider retains the right to moderate reviews that violate acceptable usage guidelines. Moderated reviews are not deleted from Application Provider’s database, but they are hidden from display to all web site visitors except the review author. Authors will be notified that their review has been moderated by a message adjacent to their review.]
c. Termination. The license is effective until terminated by You or Application Provider. The license may be terminated upon notice by either party. Your rights under this license will terminate automatically without notice from the Application Provider if You fail to comply with any term(s) of this license. 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.
d. Online Services; Third Party Materials. The Licensed Application may enable access to Application Provider’s and third party services and web sites (collectively and individually, "Online Services"). Use of the Online Services may require Internet access and that You accept additional terms of service. You understand that by using any of the Online 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 Online 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 Online 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 Online 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 Online Services, Third Party Materials or web sites, or for any other materials, products, or services of third parties. Third Party Materials and links to other web sites are provided solely as a convenience to You. Location data provided by any Online Services is for basic navigational purposes only and is not intended to be relied upon in situations where precise location information is needed or where erroneous, inaccurate or incomplete location data may lead to death, personal injury, property or environmental damage. Neither the Application Provider, nor any of its content providers, guarantees the availability, accuracy, completeness, reliability, or timeliness of information or location data displayed by any Online Services. You agree that any Online 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 Online Services. No portion of the Online 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 Online Services, in any manner, and You shall not exploit the Online Services in any unauthorized way whatsoever, including but not limited to, by trespass or burdening network capacity. You further agree not to use the Online Services or Licensed Applications 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 Online Services or Licensed Applications. In addition, third party Online Services and Third Party Materials that may be accessed from, displayed on or linked to from the Supported Devices or other device, are not available in all languages or in all countries. The Application Provider makes no representation that such Online Services and Third Party Materials are appropriate or available for use in any particular location. To the extent You choose to access such Online 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 Online Services or Third Party Materials 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 Online Services or Third Party Materials. The Application Provider may also impose limits on the use of or access to certain Online Services or Third Party Materials, in any case and without notice or liability.
e. 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 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.
f. Limitation of Liability; Third Party Providers. TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL APPLICATION PROVIDER BE LIABLE FOR PERSONAL INJURY, OR ANY INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE LICENSED APPLICATION, 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 fifty dollars ($50.00). The foregoing limitations will apply even if the above stated remedy fails of its essential purpose. CERTAIN APPLICATION COMPONENTS LICENSED HEREUNDER CONTAINS FUNCTIONALITY SUPPLIED BY THIRD PARTIES. IN NO EVENT SHALL SUCH THIRD PARTIES, INCLUDING APPLICATION PROVIDER’S THIRD PARTY DEVELOPERS, VENDORS, SUPPLIERS, CONTRACTORS, OR CONSULTANTS, BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, OR ANY DAMAGES ARISING FROM THIS AGREEMENT. SUCH THIRD PARTIES ARE BENEFICIARIES OF THE LICENSE OF SUCH LICENSED APPLICATIONS GRANTED TO YOU HEREUNDER. THIRD PARTY SOFTWARE COMPONENTS IN THE LICENSED APPLICATIONS OR OTHERWISE SUPPLIED BY APPLICATION PROVIDER MAY NOT BE USED INDEPENDENTLY OF THE LICENSED APPLICATIONS.
g. YOU hereby assume all risks associated with the use of the LICENSED APPLICATIONS AND SERVICES, including all risks of personal injury, DEATH or property damage. YOU HEREBY REMISE, RELEASE, ACQUIT AND FOREVER DISCHARGE APPLICATION PROVIDER, ANY EMPLOYEES, DIRECTORS, CONTRACTORS OR OFFICERS OF APPLICATION PROVIDER, AND ANY INDIVIDUALS ASSOCIATED WITH APPLICATION PROVIDER OR LICENSED APPLICATIONS AND SERVICES (“RELEASED PARTIES”) OF AND FROM ANY AND ALL LIABILITIES, CLAIMS, REMEDIES, DEMANDS, SUITS OR CAUSES OF ACTION OF WHATSOEVER KIND OR CHARACTER, IN WHOLE OR IN PART, WHETHER CHOATE OR INCHOATE, WHICH YOU MAY EVER HAVE AGAINST THE RELEASED PARTIES THAT IN ANY WAY DIRECTLY OR INDIRECTLY RELATE TO, RESULT FROM, ARE BASED UPON, OR ARISE OUT OF THE LICENSED APPLICATIONS OR SERVICES.YOU FURTHER AGREE TO DEFEND, INDEMNIFY, SAVE, AND HOLD THE RELEASED PARTIES HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, ACTIONS, DAMAGES, LIABILITIES, LAWSUITS, LITIGATION, ATTORNEYS FEES, EXPENSES, OR ARBITRATIONS ARISING OUT OF ANY YOUR ACTIONS, EITHER INTENTIONALLY OR NEGLIGENTLY, DURING THE USE OF THE LICENSED APPLICATIONS AND SERVICES.
h. 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.
i. 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.
j. Application Provider’s failure to perform its obligations hereunder shall not be deemed a breach of this license if such failure is due to fire, strike, war, civil unrest, terrorist action, government regulations, acts of Nature, or other causes beyond the reasonable control of the Application Provider.
k. The laws of the State of Texas, excluding its conflicts of law rules, govern this license and your use of the Licensed Application. Any action or suit related to this license shall be brought in Houston, Texas. Your use of the Licensed Application may also be subject to other local, state, national, or international laws. This license along with the terms of service available at [https://www.nxgware.com/terms/ios] shall constitute the entire agreement between the parties regarding the subject matter hereof and by acknowledging this license you also acknowledge the obligations in such terms of service. The parties agree that this license cannot be altered, amended or modified by You, except by a writing signed by Application Provider. Application Provider reserves the right to change the terms and conditions of this license at any time. Updated versions of the terms and conditions of this license will appear on Application Provider’s web site and/or Licensed Application and are effective immediately. You are responsible for regularly reviewing this license. Continued use of the Licensed Applications after any such changes constitutes Your consent to such changes. No failure or delay by the Application Provider in enforcing any right or exercising any remedy will be deemed a waiver of any right or remedy by Application Provider. You shall not assign or transfer this license without the prior written consent of Application Provider. Any attempt to assign or transfer this license by You shall be void. Each provision of this license is a separately enforceable provision. If any provision of this license is determined to be or becomes unenforceable or illegal, such provision shall be reformed to the minimum extent necessary in order for this license to remain in effect in accordance with its terms as modified by such reformation. Any dispute, controversy or claim arising under, out of or relating to this Agreement and any subsequent amendments of this Agreement, including, without limitation, its formation, validity, binding effect, interpretation, performance, breach or termination, as well as non-contractual claims, shall be submitted to arbitration before the American Arbitration Association (“AAA”) in accordance with the AAA Commercial Arbitration Rules. The place of arbitration shall be Houston, Texas and the single arbitrator shall be selected in the sole discretion of Application Provider. The language to be used in the arbitral proceedings shall be English. Application Provider may apply to any court of competent jurisdiction for a temporary restraining order, preliminary injunction, or other interim or conservatory relief as necessary, without breach of this Section and without abridgment of the powers of the arbitrator. The arbitrator may award any form of individual or equitable relief, including injunctive relief. Any award will be final, binding and conclusive to the parties and may be entered in any court of competent jurisdiction.
l. To prevent abuse of the Licensed Application, all postings by You must: (a) never harass, threaten or cause distress, unwanted attention or discomfort to a person or entity; (b) not contain or transmit sexually explicit images or other content that is offensive; (c) not contain or transmit any unlawful, harmful, threatening, abusive, harassing, defamatory, vulgar, obscene, or hateful content or content which is racially, ethnically or otherwise objectionable, or which infringes upon the rights of any third party; (d) not impersonate any person, including but not limited to, an information provider, or communicate under a false name or a name not entitled or authorized to use; and (e) not violate (intentionally or unintentionally) any applicable local, state, national or international law, including but not limited to any regulations having the force of law.