END USER LICENSE AGREEMENT
END USER LICENSE AGREEMENT (the “Agreement”) between Awarables Inc., a corporation having its headquarters at 300 West Pratt St., Suite 200, Baltimore, MD 21201 (“we” or “Awarables”) and the end user who accepts the terms in this agreement or otherwise accesses or makes use of the Services and/or Software (“you” or the “User”).
PLEASE READ THIS AGREEMENT CAREFULLY. THIS AGREEMENT IS A LEGALLY BINDING AGREEMENT BETWEEN YOU AND AWARABLES AND THIS AGREEMENT SHALL GOVERN YOUR ACCESS AND USE OF AWARABLES’ CUSTOMIZED MACHINE READABLE CODE-BASED SERVICES (THE “SERVICES”) THROUGH YOUR INSTALLATION OF THE EXECUTABLE SOFTWARE PROVIDED BY AWARABLES VIA ITS APPLICATION KNOWN AS AWARABLES SLEEPBETTER APP (THE "LICENSED SOFTWARE") ON YOUR COMPUTER HARDWARE AND YOUR USE OF SUCH SOFTWARE IN CONNECTION WITH HARDWARE, IF ANY, PROVIDED BY AWARABLES, AS WELL AS ANY MANUALS, INSTRUCTIONS, DESCRIPTIONS, SPECIFICATIONS OR OTHER MATERIALS, IN HARD COPY OR ELECTRONIC FORM, PROVIDED BY AWARABLES DESCRIBING OR RELATING TO THE USE OF THE SERVICES (THE "DOCUMENTATION"), ABSENT ANOTHER SIGNED LICENSE AGREEMENT COVERING THE SERVICES/SOFTWARE EFFECTIVE BETWEEN YOU AND AWARABLES. TO THE EXTENT THIS AGREEMENT IS CONSIDERED TO BE AN OFFER BY AWARABLES, YOUR ACCEPTANCE IS EXPRESSLY LIMITED TO THE TERMS AND CONDITIONS SET FORTH HEREIN. ANY TERMS IN ANY PURCHASE ORDER OR OTHER DOCUMENTATION ISSUED BY OR ON BEHALF OF YOU THAT CONTAINS ADDITIONAL OR CONFLICTING TERMS OR PURPORTS TO REPLACE, REJECT, MODIFY OR BE A COUNTER OFFER TO THIS AGREEMENT ARE EXPRESSLY REJECTED AND ARE VOID.
BY CLICKING THE "I ACCEPT" BUTTON OR BY INSTALLING THE LICENSED SOFTWARE OR OTHERWISE USING OR ACCESSING THE SERVICES, YOU AFFIRM THAT YOU HAVE READ AND UNDERSTAND THE TERMS AND CONDITIONS SET FORTH HEREIN AND ACCEPT ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT ACCEPT ALL TERMS AND CONDITIONS OF THIS AGREEMENT, CLICK THE "REJECT" BUTTON AND DO NOT INSTALL THE LICENSED SOFTWARE OR OTHERWISE USE OR ACCESS THE SERVICES.
BY CLICKING THE "I ACCEPT" BUTTON OR BY DOWNLOADING, INSTALLING, USING OR OTHERWISE ACCESSING THE SERVICES, YOU INDICATE THAT YOU INTEND YOUR ACT TO SERVE AS YOUR SIGNATURE TO THIS AGREEMENT AND TO HAVE THE SAME FORCE AND EFFECT AS THE USE OF A MANUAL SIGNATURE, AND IF YOU ARE INSTALLING, USING OR OTHERWISE ACCESSING THE SERVICES IN YOUR CAPACITY AS AN EMPLOYEE OR AGENT OF A BUSINESS ENTITY, YOU WARRANT THAT YOU HAVE ACTUAL AUTHORITY TO LEGALLY BIND SUCH ENTITY TO THIS AGREEMENT.
1. The Licensed Software is owned by Awarables The Licensed Software is licensed, not sold, only on the terms of this EULA. By using the Licensed Software, you represent and warrant that (a) you are 17 years of age or older and you agree to be bound by this Agreement; (b) if you are under 17 years of age, you have obtained verifiable consent from a parent or legal guardian; and (c) your use of the Licensed Software does not violate any applicable law or regulation. Your access to the Licensed Software may be terminated without warning if Awarables believes, in its sole discretion, that you are under the age of 17 years and have not obtained verifiable consent from a parent or legal guardian. If you are a parent or legal guardian and you provide your consent to your child's use of the Awarables App, you agree to be bound by this Agreement in respect to your child's use of the Licensed Software.
2. Upon installation of the Licensed Software, you will acquire the limited right to use the Licensed Software, directly from Awarables. You assume responsibility for the selection of the program to achieve your intended results, and for the installation, use and results obtained from the Licensed Software.
3. Awarables and you acknowledge that this Agreement is concluded between Awarables and you only, and not with any other person or entity, including, without limitation, Apple, Inc. Awarables is solely responsible for the Licensed Software and its content. Notwithstanding the foregoing, you acknowledge that Apple and its subsidiaries are third party beneficiaries of this Agreement and Apple has the right to enforce this Agreement against you.
4. In consideration of your acceptance of the terms and conditions contained in this EULA, Awarables grants you a non-exclusive license to use the Licensed Software and the associated documentation for your own needs on one device. You are not licensed to rent, lease, transfer, or distribute the Licensed Software. ALL RIGHTS NOT EXPRESSLY GRANTED HEREIN ARE RESERVED BY AWARABLES.
5. Title to the Licensed Software, including media and documentation, remain with Awarables. You may not copy, reproduce or make data transmissions, in whole or in part, except as is necessary for back-up or archival purposes. You may not reverse engineer, translate, disassemble, decompile or otherwise attempt to discover the source code of the Licensed Software or create similar software in whole or in part.
6. The license is effective upon your acceptance and installation of the Licensed Software and shall continue until terminated. You may terminate it at any time by uninstalling the Licensed Software. Awarables has the right to terminate this Agreement WITHOUT NOTICE if you fail to comply with any term or condition of this EULA. Upon termination you shall stop all use of the Software and uninstall the Licensed Software.
7. "Confidential Information" means any and all of Awarables’ confidential or proprietary technical or business information, in any tangible or non-tangible form. User acknowledges that the Services, the Licensed Software and the Documentation constitute valuable trade secrets of Awarables and that the Services, the Licensed Software and the Documentation are included in the Confidential Information of Awarables. User agrees that it shall (i) not use any of the Confidential Information except to achieve the purposes of this Agreement; (ii) not provide access to or disclose any Confidential Information to any third party; and (iii) take actions to protect the confidentiality of all Confidential Information which are at least as stringent as the precautions it takes to protect its own confidential information and which in all cases are at least reasonable precautions. Confidential Information received by Awarables from a third party will be deemed Confidential Information of Awarables. You expressly acknowledge and agree that any misuse or disclosure of Confidential Information would cause irreparable harm and, without limiting any of Awarables’ other remedies at law or equity, in the event of any actual or threatened breach or violation of the provisions of this Agreement concerning Confidential Information, Awarables is entitled, without limiting any of Awarables’ other remedies at law or equity, to obtain injunctive relief (temporary and permanent) from any court of competent jurisdiction immediately upon request and without the need to post a bond or security, with respect to any such breach or potential breach in addition to any other remedies. Confidentiality obligations pertaining to the Licensed Software will survive any termination of this EULA, to include the application, design, and functionality.
8. THIS LICENSED SOFTWARE IS DISTRIBUTED AS IS, WHERE IS AND AS-AVAILABLE, BUT WITHOUT ANY REPRESENTATION OR WARRANTY OF ANY KIND OR NATURE WHATSOEVER; WITHOUT EVEN THE EXPRESS, IMPLIED, STATUTORY OR OTHER WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR AGAINST INTELLECTUAL PROPERTY INFRINGEMENT OR MISAPPROPRIATION.
9. To the extent allowed by applicable law, in no event will Awarables or any Awarables affiliate be liable to user or any third party for any damages of any kind or nature whatsoever, including, but not limited to, loss of data, loss of use, or indirect, special, incidental or consequential damages in any way related to or arising out of the use of the Licensed Software, whether based upon warranty, contract, or otherwise, whether or not injury was sustained by persons or property or otherwise, and whether or not loss was sustained from, or arose out of, use of Licensed Software.
10. YOU UNDERSTAND THAT YOU ARE PERSONALLY RESPONSIBLE FOR THE USE OF AND ACCESS TO ALL DATA AND THE SERVICES, THE LICENSED SOFTWARE AND THE DOCUMENTATION BY YOU, ANY PERSON TO WHOM YOU HAVE GIVEN ACCESS TO YOUR DATA, THE SERVICES, THE SOFTWARE OR THE DOCUMENTATION, AND ANY PERSON WHO GAINS ACCESS TO ANY DATA, THE SERVICES, THE SOFTWARE OR THE DOCUMENTATION AS A RESULT OF YOUR FAILURE TO USE REASONABLE SECURITY PRECAUTIONS, EVEN IF SUCH USE OR ACCESS WAS NOT AUTHORIZED BY YOU, AS WELL AS ANY AND ALL RESULTS OF ANY SUCH USE OR ACCESS. YOU AGREE TO WAIVE ANY AND ALL CLAIMS AGAINST AWARABLES, ITS CONTRACTORS, SUBCONTRACTORS, AND SHALL INDEMNIFY AND HOLD HARMLESS AWARABLES, ITS CONTRACTORS, AND THEIR SUBCONTRACTORS FOR ANY DAMAGE THAT YOU MAY INCUR FROM YOUR USE OF THE LICENSED SOFTWARE.
11. Intellectual Property: You acknowledge that all intellectual property and other proprietary rights in and to the Licensed Software, the Documentation and the Services anywhere in the world belong to Awarables, that rights in the App are licensed (not sold) to you, and that you have no rights in, or to, the App, the Documents or the Technology other than the right to use each of them in accordance with the terms of this EULA. You acknowledge that you have no right to receive, discover, attempt to discover, use or examine any source code or design documentation relating to the Licensed Software or the Services.
12. Limitation of liability: You acknowledge that the App has not been developed to meet your individual requirements, and that it is therefore your responsibility to ensure that the facilities and functions of the App as described in the Documents meet your requirements. We only supply the App and Documents for domestic and private use. You agree not to use the App and Documents for any commercial, business or resale purposes, and we have no liability to you for any loss of profit, loss of business, business interruption, or loss of business opportunity. YOU AGREE TO INDEMNIFY, DEFEND AND HOLD HARMLESS AWARABLES, AND EACH OF ITS DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, REPRESENTATIVES, RESELLERS, LICENSORS, SUPPLIERS, INVENTORS, OWNERS ASSIGNS OR AFFILIATES (EACH, AN “AWARABLES AFFILIATE”), FROM AND AGAINST ANY AND ALL LIABILITIES, LOSSES, DAMAGES (INCLUDING ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES), CAUSES OF ACTION, CLAIMS, SETTLEMENT PAYMENTS, INTEREST, ACTIONS, SUITS, AWARDS, JUDGMENTS, DIMINUTION IN VALUE, FINES, FEES OR PENALTIES, AS WELL AS ANY OTHER CHARGES, COSTS OR EXPENSES (INCLUDING, BUT NOT LIMITED TO, ANY COURT FILING FEE, COURT COST, ARBITRATION FEE, ARBITRATION COST, WITNESS FEE, AS WELL AS ANY OTHER FEE OR COST OF INVESTIGATING, DEFENDING OR OTHERWISE ASSERTING ANY CLAIM FOR INDEMNIFICATION UNDER THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, IN EACH CASE, ANY ATTORNEYS' FEES, OTHER PROFESSIONALS' FEES OR DISBURSEMENTS) (COLLECTIVELY, "LOSS") , IN ANY WAY ARISING FROM OR RELATED TO ANY SUCH USE OR ACCESS. IN NO EVENT SHALL AWARABLES HAVE ANY LIABILITY TO YOU OR ANY THIRD PARTY IN ANY WAY ARISING FROM OR RELATED TO ANY USE OF OR ACCESS TO ANY DATA, THE SERVICES, THE SOFTWARE OR THE DOCUMENTATION.
You acknowledge and agree that the Licensed Software is a personalized self-help system designed to help you improve your own sleep and that if you choose to access the Licensed Software you are solely responsible for identifying the suggested techniques to put into practice and to apply those techniques. You also acknowledge and agree that the Licensed Software is not intended to diagnose, treat or otherwise address any medical problem and any information available by implementing the Licensed Software, whether posted by Awarables employees, or other users, is provided for your information and not as medical advice and should not be seen as a replacement for consultation with a doctor or other qualified healthcare professional. If you receive advice from a doctor or other qualified medical professional which conflicts with anything received by implementing the Licensed Software, then the former should take precedence. You are urged and advised to seek the advice of a doctor before beginning any sleep improvement program. If you are concerned about your sleep problem, or if you frequently struggle to stay awake during the day, or if you are pregnant, or if you fall asleep during the daytime without intending to, or if you have any other concerns or questions about your health or medicines, you should always consult an appropriate healthcare professional. Be cautious in making any changes to your sleep pattern if you have any serious mental health condition including (but not limited to) depression, bipolar disorder or schizophrenia. Likewise, be cautious about embarking on vigorous exercise if you have any serious medical condition, including (but not limited to) back pain, high blood pressure or heart disease, or if you are pregnant. If you feel excessively sleepy during the day for any reason do not take risks in driving or operating machinery or other equipment. Always seek professional medical advice when contemplating any changes in your prescribed medicines.
13. You expressly understand and acknowledge that Awarables has the absolute right to obtain injunctive relief (temporary and permanent) from any court of competent jurisdiction immediately upon request and without the need to post a bond or security to protect Awarables’ proprietary rights.
14. By using the Licensed Software, you further agree that this is the complete and exclusive statement of the Agreement which supersedes any proposal or prior agreement, oral or written, and any other communications relating to the subject matter of this EULA.
15. If any provision of this Agreement is held to be invalid or unenforceable the remaining provisions will not be affected.
16. Objectionable Content Policy: Content may not be submitted to Awarables SleepBetter App. Awarables will moderate all content and ultimately decide whether or not to post a submission to the extent such content includes, is in conjunction with, or alongside any, Objectionable Content. Objectionable Content includes, but is not limited to: (i) sexually explicit materials; (ii) obscene, defamatory, libelous, slanderous, violent and/or unlawful content or profanity; (iii) content that infringes upon the rights of any third party, including copyright, trademark, privacy, publicity or other personal or proprietary right, or that is deceptive or fraudulent; (iv) content that promotes the use or sale of illegal or regulated substances, tobacco products, ammunition and/or firearms; and (v) gambling, including without limitation, any online casino, sports books, bingo or poker.
18. Awarables does provide minimal maintenance or support for the Licensed Software but not to the extent that any maintenance or support is required by applicable law, Awarables, not Apple, shall be obligated to furnish any such maintenance or support.
19. Awarables, not Apple, is responsible for addressing any claims by you relating to the Licensed Software or use of it, including, but not limited to: (i) any product liability claim; (ii) any claim that the Licensed Software fails to conform to any applicable legal or regulatory requirement; and (iii) any claim arising under consumer protection or similar legislation. Nothing in this Agreement shall be deemed an admission that you may have such claims.
20. Disclaimer: The content of this application is intended for use only as an informative tool. It is not, is not intended to be, and should not be used in any way as a substitute for professional medical advice or training. The accuracy of the information provided is not guaranteed. You acknowledge in initiating this application that the information is not meant to diagnose a health condition or disease and is not meant to develop a health treatment plan. If you are in an emergency or life-threatening medical situation, seek medical assistance immediately. Dial emergency number (911 in the USA) for emergency medical services.
21. Miscellaneous. This Agreement may be amended only by a writing executed by both parties unless modified from time to time by Awarables and posted on the Site. The next time YOU use the Licensed Software after such an update, YOU may be prompted to agree to or decline an update of this Agreement. YOU must agree to all revisions if YOU choose to continue using the Licensed Software. By using the Licensed Software, YOU agree to the then-current version of this Agreement as posted on the Site. If at any point YOU do not agree to any portion of the then-current version of this Agreement, YOU must immediately stop using the Licensed Software and uninstall the Licensed Software. This Agreement shall be governed by, and will be construed under, the laws of the United States of America and the laws of the State of Maryland, 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.
All disputes arising out of or related to YOUR use of the Licensed Software, Service and/or Service Data shall be subject to the exclusive jurisdiction of the state and federal courts located within Maryland, and YOU agree to submit to the personal jurisdiction and venue of such courts. This Agreement constitutes the entire, final and integrated agreement between the parties concerning the subject matter hereof and supersedes all prior and contemporaneous understandings and communications, whether oral or written, between the parties relating to the subject matter hereof. Awarables reserves any rights or licenses other than those specifically granted herein. This Agreement shall not be assigned (by operation of law or otherwise) or transferred in any manner by YOU without the prior written consent of Awarables and any attempted assignment without Awarables’ consent shall be null and void. YOU will comply fully with all relevant export laws and regulations of the United States, including, without limitation, the U.S. Export Administration Regulations (collectively “Export Controls”). Without limiting the generality of the foregoing, YOU will not, and YOU will require YOUR representatives not to, export, direct or transfer the Licensed Software, or any direct product thereof, to any destination, person or entity restricted or prohibited by the Export Controls. If YOU are, or are entering into this Agreement on behalf of, any agency or instrumentality of the United States Government, the Licensed Software is “commercial computer software” and “commercial computer software documentation,” and pursuant to FAR 12.212 or DFARS 227.7202, and their successors, as applicable, use, reproduction, and disclosure of the Licensed Software are governed by the terms of this Agreement. YOU acknowledge that a breach of this Agreement would cause irreparable injury to Awarables for which monetary damages are not an adequate remedy. Accordingly, We shall be entitled to seek injunctive relief and other equitable remedies in the event of such breach.