Mobile Application License Agreement
1. Grant of License; Related Provisions.
a. License Grant. Chiry Corporation (“Chiry”), subject to the terms and conditions of this Mobile Application License Agreement (“License Agreement”), grants you a non-exclusive, non-transferable license (without right of sublicense) to use the Application on a device you personally control, for your individual benefit and not for sharing or resale.
b. iOS Platform: If you access the Application on a device that uses the iOS platform, Chiry and you acknowledge that this License Agreement is entered into by and between Chiry and you and not with Apple, Inc. Notwithstanding the previously stated, you acknowledge that Apple, Inc. and its subsidiaries are third-party beneficiaries of this License Agreement and that Apple, Inc. has the right (and is deemed to have accepted the right) to enforce this License Agreement. You further acknowledge that Apple has no obligation whatsoever to furnish any maintenance or support services with respect to the Application; that Apple has no warranty obligations whatsoever with respect to the Application, that Apple has no responsibility for addressing any claims relating to the Application including, but not limited to: (i) product liability claims; (ii) any claim that the Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection, privacy, or similar legislation, including in connection with any use of the Apple HealthKit and Apple HomeKit frameworks used by the Application, and that Apple has no obligation to investigate, defend, settle or discharge any intellectual property infringement claims that may be raised by third parties with respect to the Application.
c. Restrictions. you may not, and may not authorize or assist any other party to (i) duplicate the Application for any purpose other than as necessary to use it on your mobile device, (ii) publish the Application or use it other than for the purposes described in Section 1 of this License Agreement, (iii) reverse engineer, disassemble, decompile or translate the Application, (iv) change, modify or otherwise alter the Application, (v) transfer, pledge, rent, share or sublicense the Application, or (vi) use or abuse the Application to (A) store or transmit content that is unlawful, threatening, abusive, harassing, defamatory, obscene or indecent, libelous, hurtful or otherwise objectionable, (B) impersonate another individual or misrepresent your identity or your affiliations, or (C) knowingly or recklessly transmit false information.
d. Termination. This License Agreement is effective until terminated by you or Chiry. Your rights under this License Agreement will terminate automatically if you fail to comply with any of its terms.
e. Your Responsibilities. Effective use of the Application requires that you (i) enter all of the information the Application requests, (ii) ensure that your device is properly configured and charged, and subscribe to voice and data service fully covering the areas in which you use the Application, and (iii) paying the subscription fees, calling charges, text message charges and other fees imposed by your wireless service provider, and otherwise complying with the provider’s terms of service. You are solely responsible for fulfilling these responsibilities.
f. Consent to Use Data. You agree that Chiry 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 (“User Data”)—that is gathered periodically to facilitate the provision of software updates, product support, and other services to you (if any) related to the Application. Chiry 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. External Services. The Application may enable access to Chiry’s and/or third-party services and websites (collectively and individually, "External Services"). You agree to use the External Services at your sole risk. Chiry is not responsible for examining or evaluating the content or accuracy of any third-party External Services, and shall not be liable for any such third-party External Services. Data displayed by any Licensed Application or External Service, including but not limited to financial, medical and location information, is for general informational purposes only and is not guaranteed by Chiry or its agents. You will not use the External Services in any manner that is inconsistent with the terms of this License Agreement, the terms of External Service, or that infringes the intellectual property rights of Chiry or any third party. You agree not to use the External Services to harass, abuse, stalk, threaten or defame any person or entity, and that Chiry is not responsible for any such use. External Services may not be available in all languages or in your home country, and may not be appropriate or available for use in any particular location. To the extent you choose to use such External Services, you are solely responsible for compliance with any applicable laws. Chiry reserves the right to change, suspend, remove, disable or impose access restrictions or limits on any External Services at any time without notice or liability to you.
i. Legal Compliance. You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
2. Chiry Disclaimers.
a. No Warranties. CHIRY PROVIDES THE APPLICATION ON AN “AS IS, WHERE IS” BASIS WITHOUT WARRANTY OF ANY KIND. CHIRY DISCLAIMS ALL WARRANTIES AND CONDITIONS EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY, ANY IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE OR IMPLIED WARRANTY OF NONINFRINGEMENT, ANY WARRANTY THAT THE APPLICATION WILL OPERATE UNINTERRUPTED OR ERROR-FREE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY CHIRY OR ITS AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. SHOULD THE APPLICATION OR SERVICES PROVE DEFECTIVE, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR, OR CORRECTION.
b. No Obligations. Chiry accepts no obligation regarding your use of the Application. In particular, Chiry disclaims any obligation to monitor the operation of the Application or address any failures or faults that come to its attention.
3. Limitation of Liability. NOTWITHSTANDING ANY OTHER PROVISION OF THIS LICENSE AGREEMENT, UNDER NO CIRCUMSTANCES WILL EITHER PARTY OR, IN THE CASE OF CHIRY, ITS SUPPLIERS, OR THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, REPRESENTATIVES OR AGENTS HAVE ANY OBLIGATION OR LIABILITY TO THE OTHER HEREUNDER FOR ANY INCIDENTAL, INDIRECT, CONSEQUENTIAL OR SPECIAL DAMAGES INCURRED BY THE OTHER PARTY (INCLUDING DAMAGES FOR DEATH, INJURY TO PERSON OR PROPERTY, LOST BUSINESS, LOST PROFITS OR DAMAGES TO BUSINESS REPUTATION), REGARDLESS OF HOW SUCH DAMAGES ARISE AND REGARDLESS OF WHETHER OR NOT A PARTY WAS ADVISED SUCH DAMAGES MIGHT ARISE. IN THE EVENT THAT CHIRY IS FOUND LIABLE FOR ANY REASON UNDER THIS LICENSE AGREEMENT, IN NO CASE SHALL CHIRY’S LIABILITY FOR ACTUAL DAMAGES IN THE AGGREGATE EXCEED THE AMOUNTS YOU PAID FOR THE APPLICATION OR, IF YOU RECEIVED THE APPLICATION FOR FREE, IN NO CASE WILL CHIRY’S LIABILITY EXCEED $10.00.
4. Indemnity. You agree to indemnify and hold Chiry and its affiliates and their officers, directors, employees, and agents harmless from and against any and all actions, claims, demands, losses, liabilities, costs, damages, and expenses (including attorneys' fees), arising out of or in connection with: (i) your use of the Application or services or goods obtained through your use of the Application; (ii) your breach or violation of any of the terms of this License Agreement; (iii) Chiry's
5. Ownership. Chiry, as between Chiry and you, shall own all right, title and interest in the Application, including without limitation all error corrections, updates, upgrades and custom features and functions, and all patents, copyrights and other intellectual property rights, and any improvements to the Application that you might suggest to Chiry. You may not remove or modify any program markings or any notice of proprietary rights, and shall reproduce such markings and notices on all copies of the Application you make.
6. Intellectual Property. If a court of competent jurisdiction makes a determination that any Application infringes, or if Chiry determines that the Application likely infringes, the intellectual property rights of a third party, Chiry, at its option and expense, shall: (i) modify the infringing portion of the Application to make it noninfringing, (ii) replace the infringing product with a non-infringing product having substantially similar functionality, (iii) obtain the right to continue using the infringing portion of the Application, or (iv) terminate this License Agreement (including the license granted hereunder) and refund to you the fees, if any, you paid for the Application.
7. Miscellaneous Provisions.
a. Dispute Resolution. This License Agreement and the relationship between you and Chiry will be governed by the laws of the state of Delaware, excluding its conflicts of law provisions. You agree to submit to the personal and exclusive jurisdiction of the courts located in Delaware to resolve any dispute or claim arising from this License Agreement. As to intellectual property rights, you specifically agree that Chiry may file an action in any jurisdiction to protect or enforce its rights. The United Nations Convention on Contracts for the International Sale of Goods will not apply to this License Agreement. You agree that any claim or cause of action related to this License Agreement or the use of the Application must be filed within one (1) year after the cause of action arose or be forever barred.
b. Assignment. You may not assign this License Agreement or your rights or obligations under this License Agreement without Chiry’s prior written permission.
c. Force Majeure. Neither party shall be responsible for delays or failure in performance resulting from acts beyond the control of such party, including without limitation, acts of God, strikes, lockouts, riots, acts of war, epidemics, fire, communication line failures, power surges or failures, earthquakes or other disasters.
d. Sole Agreement; Amendment; Waiver. This License Agreement constitutes the sole and complete agreement between the parties regarding the Application, and may not be modified or amended except by a writing signed by both parties. This License Agreement may not be explained or supplemented by a prior performance, trade usage, or course of dealing between the parties, or by any prior performance between the parties under this License Agreement or otherwise. No amendment to this License Agreement shall be effective unless it is in writing signed by duly authorized representatives of both parties. No waiver of any breach of any provision by either party or the failure of either party to insist on the exact performance of any provision of this License Agreement shall constitute a waiver of any prior, concurrent or subsequent breach of performance of the same or any other provisions, and no waiver shall be effective unless made in writing.
e. Severability. If any of the provisions of this License Agreement shall be or become invalid or unenforceable, such invalidity or unenforceability shall not invalidate or render unenforceable the remaining provisions of this License Agreement. Instead, this entire License Agreement shall be construed as though not containing the particular invalid or unenforceable provision or provisions, and the rights and obligations of the parties shall be construed and enforced accordingly.
f. Notices. All notices under this License Agreement may be sent to you through the Application, and to Chiry at Chiry Corporation, 3304 Wooded Hill Arch, Chesapeake, VA 23321.