OCTAVA, LLC END USER LICENSE AGREEMENT
This End-User License Agreement (this "EULA" or “Agreement”) is an agreement between the end-user of the Application (''You'') and Octava, LLC, a Maryland limited liability corporation, having a place of business at 1450 South Rolling Road, Halethorpe, Maryland 21227, (“Octava”). The Agreement governs your use of the application distributed by Octava that you installed and any and all related updates and upgrades that replace or supplement the application in any respect (the “Application” or “App”), unless any such update or upgrade is accompanied by a separate license in which case the separate license shall govern.
This EULA governs the software that can operate on an/a a) iPhone, iPod Touch or iPad device or other computing device marketed or manufactured by Apple, Inc. (''iOS Platform''); and b) device powered by the Android operating system provided by Google, Inc. (''Android Platform'') (commonly referred to as the 'Platform/s''). This EULA governs different Platforms and includes general provisions applicable for all Platforms and Platform specific provisions, which are all clearly marked as such.
By installing or using the Application, You agree to and wish to be bound by the terms of this EULA, which consist of (commonly referred to as ''Terms''):
· This license.
· For iOS Platform: Licensed Application End User License Agreement (“Standard EULA”), published by Apple, Inc. (located online at http://www.apple.com/legal/itunes/appstore/dev/stdeula/), which is incorporated into this EULA by reference, whereas for the purposes of this EULA, the “Application” is considered the “Licensed Application” as defined in the Standard EULA and “Octava” is considered the “Licensor” as defined in the Standard EULA. You acknowledge that You have reviewed the App Store Terms and Conditions (located online at http://www.apple.com/legal/itunes/us/terms.html#APPS).
Octava and You acknowledge that the EULA is entered into by and between Octava 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 EULA and that Apple, Inc. has the right (and is deemed to have accepted the right) to enforce this EULA. 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, 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.
· For Android Platform: Android Market “Terms of Service” (located online at https://play.google.com/store) and the Android Market Business and Program Policies (located online at http://www.google.com/mobile/android/market-policies.html), if You are downloading the Application from the Google Play.
If You do not agree to the Terms, or do not wish to be bound by them, do not install or use the Application. If any terms of this EULA conflict with the other Terms, the terms of this EULA shall prevail.
By agreeing to the EULA and/or using the Application, You agree that Octava 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 Application. Octava 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.
As an iOS Platform user, You additionally 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 “watch list” of prohibited or restricted parties, including the Specially Designated Nationals list published by the Office of Foreign Assets Control of the U.S. Treasury or the Denied Persons List published by the U.S. Department of Commerce.
Limited License Grant
Through the use of the App, You are acquiring and Octava grants You a revocable limited, non-exclusive, non-sub-licensable, non-transferable license to install and use the Application for Your own use subject to the limitations defined in this EULA and the Terms. The Application is being licensed to You and You hereby acknowledge that no title or ownership in the Application is being transferred or assigned to You and this EULA is not to be constructed as a sale of any rights in the Application. Your rights granted herein are subject to Your compliance with this EULA and Terms and You agree not to use the Application for any other purpose.
Any use of the Application in violation of these License Limitations is strictly prohibited and can result in immediate revocation of Your Limited License and may trigger Your liability for violations of law.
Unless You have received prior written authorization from Octava, You agree not to:
- use the Application on any device that You do not own or control;
- use hacks or any other unauthorized software, designed to modify or interfere with the Application and/or any files that are part of the Application;
- commercially exploit the Application, its Design, Artwork or any other part of the Application;
- access or use the Application through any technology or means other than those provided in the Application, or through other explicitly authorized means Octava may designate;
- make a copy of the Application available on a network where it could be used by multiple users;
- register domain names, social media accounts or related addresses, which include Octava’s trademarks;
- use the Application or related assets and/or Octava’s trademarks on or in connection with content that (i) promotes hacks, violence, discrimination, inappropriate themes, illegal activities or sexually explicit content; (ii) makes untrue, dishonest, disparaging or libelous statements about Octava and/or its products, employees and agents; and/or (iii) contains other objectionable content;
- resell, copy (except as expressly permitted by this EULA and the Terms), transfer, distribute, display, translate, modify the Application or make derivative works of the Application or any part thereof;
- re-use, copy or distribute text, pictures, music, barcodes, video, data, hyperlinks, displays or any other content provided by the Application;
- redistribute, sublicense, rent, publish, perform, lend, sell, assign, lease, market, transfer, or otherwise make the Application available to third parties;
- seek to disable, reverse engineer, decompile, dissassemble or otherwise attempt to extract the source code of the Application or any part thereof, unless this is expressly permitted or required by applicable law or by the licensing terms governing use of any open sourced components included with the Application;
- delete, obscure, or in any manner alter any warning, notice (including but not limited to any copyright or other proprietary rights notice), or link that appears in the Application;
- remove or alter Octava’s trademarks or logos or legal notices included in the Application or related assets;
- use the service to try to gain unauthorized access to any service, data, account or network by any means; or
- use the Application in way that is unlawful, fraudulent or deceptive;
- use technology or other means to access Octava’s proprietary information that is not authorized by Octava;
- use or launch any automated system to access Octava’s website or computer systems;
- attempt to introduce viruses or any other malicious computer code that interrupts, destroys or limits the functionality of any computer software, hardware or telecommunications equipment;
- attempt to gain unauthorized access to Octava’s computer network or user accounts;
- encourage conduct that would constitute a criminal offense, or would give rise to civil liability; or
- use the Application in any manner not expressly allowed in the Terms.
Octava reserves the right to determine in its sole discretion what kind of conduct is considered to be in violation of the terms of this EULA. Furthermore, Octava reserves the right to take appropriate action as a result of Your violation of the terms of this EULA, including but not limited to prohibiting you from using Octava Application in whole or in part.
This EULA does not entitle You to receive, and does not obligate Octava to provide, hard-copy documentation, support, telephone assistance, or enhancements or updates to the Application.
Allowable Uses of the Application
USE OF THE APPLICATION AND ANY OF YOUR INFORMATION TRANSMITTED IN CONNECTION WITH THE APPLICATION IS LIMITED TO THE FUNCTIONALITY OF THE APPLICATION AND TO THE LICENSE GRANT ABOVE. YOU MAY NOT OTHERWISE USE THE APPLICATION OR ANY COMPONENT OF IT, EXCEPT AS EXPRESSLY AUTHORIZED BY OCTAVA IN WRITING IN ADVANCE.
Term of the License Grant/EULA
The terms of this EULA shall commence on the date You install or otherwise use the Application and shall end on the earlier of the date of Your disposal of the Application or Octava’s termination of this EULA. You may terminate this EULA by uninstalling the Application.
Uninstalling the Application does not result in a refund of the amount paid for the Application, if any. Your rights under this license will terminate automatically without notice from Octava if You fail to comply with any term(s) of this EULA, including infringement of Octava or third party copyrights. Upon termination of the EULA, You shall cease all use of the Application, and destroy all copies, full or partial, of the Application.
Termination will not limit any of Octava’s other rights or remedies at law or in equity. If any of the Platforms disable the ability to use the applications on Your devices pursuant to Your agreement with such Platform, any associated license rights with Octava will terminate as well.
Reservation of Rights
You have obtained a license to the Application and Your rights are subject to this EULA. Except as expressly licensed to You herein, Octava reserves all rights, titles and interests in the Application. This license is limited to the intellectual property rights of Octava and does not include any rights to other patents or intellectual property.
Octava retains all right, title and interest in and to the Octava Intellectual Property, as defined below, whether registered or not and all applications thereof, except of the copyright of the third parties technology. The Octava software is protected by applicable laws and treaties throughout the world.
For the purposes of this EULA, “Intellectual Property Rights” means all patent rights, trade names, proprietary rights, copyright rights, titles, computer codes, audiovisual effects, themes, characters, character names, stories, dialog, settings, artwork, sound effects, musical works, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction.
The Application may enable access to Octava’s and third party services and web sites (collectively and individually, "Services"). Use of the Services may require Internet access and that You accept additional terms of service.
You understand that by using any of the 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. Nevertheless, You agree to use the Services at Your sole risk and that Octava shall not have any liability to You for content that may be found to be offensive, indecent, or objectionable.
Certain 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 Services, You acknowledge and agree that Octava 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. Octava 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 Services, Third Party Materials or web sites, or for any other materials, products, or services of third parties.
You agree that any Services contain proprietary content, information and material that is protected by applicable intellectual property and other laws, including but not limited to copyright on materials from Octava and from third parties, and that You will not use such proprietary content, information or materials in any way whatsoever except for permitted use of the Services. No portion of the Services may be reproduced in any form or by any means. You agree not to copy, modify, rent, lease, loan, sell, distribute, or create derivative works based on the Services, in any manner, and You shall not exploit the Services in any unauthorized way whatsoever, including but not limited to, by trespass or burdening network capacity. You further agree not to use the Services in any manner to harass, abuse, stalk, threaten, defame or otherwise infringe or violate the rights of any other party, and that Octava 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 Services.
In addition, third party Services and Third Party Materials that may be accessed from, displayed on or linked to from Platform devices are not available in all languages or in all countries. Octava makes no representation that such Services and Third Party Materials are appropriate or available for use in any particular location. To the extent You choose to access such 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. Octava, 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 Octava be liable for the removal of or disabling of access to any such Services. Octava may also impose limits on the use of or access to certain Services, in any case and without notice or liability.
You must provide at Your own expense the equipment, Internet connections or mobile devices and/or service plans to access and use this Application. Octava does not guarantee that this Application is available in all geographic locations. You acknowledge that when You use this Application, Your wireless carrier may charge you fees for data, messaging, and/or other wireless access. Check with Your carrier to see if there are any such fees that apply to You. You are solely responsible for any costs You incur to access this application from Your mobile device. Your right to use the Application is also predicated on Your compliance with any applicable terms of agreements You have with third parties when using Your Application.
Disclaimer of Warranties
YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE 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 APPLICATION AND ANY SERVICES PERFORMED OR PROVIDED BY THE APPLICATION ("SERVICES") ARE PROVIDED "AS IS" AND “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND OCTAVA HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE 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. OCTAVA DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE APPLICATION, THAT THE FUNCTIONS CONTAINED IN, OR SERVICES PERFORMED OR PROVIDED BY, THE APPLICATION WILL MEET YOUR 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. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY OCTAVA 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. 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.
Limitation of Liability
TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, IN NO EVENT SHALL OCTAVA, ITS SUBSIDIARIES OR ITS AFFILIATES BE LIABLE TO YOU FOR ANY PERSONAL INJURY, PROPERTY DAMAGE, LOST PROFITS, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OF DATA, LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION OR ANY OTHER FORM OF DIRECT OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES FROM ANY CAUSES OF ACTION ARISING OUT OF OR RELATED TO THIS LICENSE OR THE APPLICATION, WHETHER ARISING IN TORT (INCLUDING NEGLIGENCE), CONTRACT, STRICT LIABILITY OR OTHERWISE, WHETHER OR NOT OCTAVA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE AND WHETHER OR NOT REPAIR, REPLACEMENT OR A REFUND (IF AWARDED AT OUR SOLE DISCRECTION) FOR THE APPLICATION DOES NOT FULLY COMPENSATE YOU FOR ANY LOSSES.
SOME JURISDICTIONS DO NOT ALLOW A LIMITATION OF LIABILITY FOR DEATH, PERSONAL INJURY, FRAUDULENT MISREPRESENTATIONS OR CERTAIN INTENTIONAL OR NEGLIGENT ACTS, OR VIOLATION OF SPECIFIC STATUTES, OR THE LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO SOME OR ALL OF THE ABOVE LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU. IN NO EVENT SHALL OCTAVA’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES (EXCEPT AS REQUIRED BY APPLICABLE LAW) EXCEED THE AMOUNT ACTUALLY PAID BY YOU FOR THE APPLICATION. THIS LIMITATION APPLIES, BUT IS NOT LIMITED TO ANYTHING RELATED TO THE APPLICATION, SERVICES OR CONTENT MADE AVAILABLE THROUGH THE APPLICATION. YOU AGREE THAT THE PROVISIONS IN THIS EULA THAT LIMIT LIABILITY ARE ESSENTIAL TERMS OF THIS EULA.
You agree to defend, indemnify, and hold harmless Octava and its employees, contractors, officers, and directors from any and all claims, suits, damages, costs, lawsuits, fines, penalties, liabilities, expenses (including attorney's fees) that arise from Your use or misuse of the Application, violation of the Terms or violation of any rights of a third party. Octava reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by You, in which event you will cooperate in asserting any available defenses.
You agree that a breach of this EULA or the Terms will cause irreparable injury to Octava for which monetary damages would not be an adequate remedy and Octava shall be entitled to seek equitable relief in addition to any remedies it may have hereunder or at law without a bond, other security, or proof of damages.
Severability and Survival
If any provision of this EULA is illegal or unenforceable under applicable law, the remainder of the provision shall be amended to achieve as closely as possible the effect of the original term and all other provisions of this EULA shall continue in full force and effect.
The Terms of this Agreement and the terms of the Master Services Agreement between You and Octava constitute the entire agreement between You and Octava with respect to the Application and supersedes all prior or contemporaneous understandings regarding such subject matter. No amendment to or modification of this EULA will be binding unless made in writing and posted on Octava’s website as described below. No failure to exercise, and no delay in exercising, on the part of either party, any right or any power hereunder preclude further exercise of any other right hereunder. In the event of a conflict between this EULA, any applicable purchase, or other terms, the terms of this EULA shall govern.
You agree to abide by Cyprus, U.S., EU and other applicable export control laws and agree not to transfer the Application to a foreign national, or national destination, which is prohibited by such laws, without first obtaining, and then complying with, any requisite government authorization. You certify that you are not a person with whom Octava is prohibited from transacting business under applicable law.
We will occasionally update this EULA as necessary to protect our users, furnish current information and respond to legal and technical changes. The most current version of the EULA will govern Your use of our Application and will be available at http://www.octavaonline.com/EULA. Please check this web page regularly for any changes. We reserve the right to change this EULA at any time and we will publish changes as needed. Your usage of the Application after the changes are integrated will constitute your acceptance of the changes.
Should You wish to contact the Octava with any questions, complaints or claims with respect to the Application, You should visit the Octava website at http://www.octavaonline.com/contact-us/ or contact email@example.com email.[EC1] Octava does not guarantee any level of maintenance or support for the Application beyond that required under applicable law. To the extent that maintenance or support shall be provided, this is the sole mechanism to access that support.
Governing Language and Law
The original version of this EULA is written in English. Any translation of this EULA into any other language is done for local requirements and in the event of a dispute, inconsistency or discrepancy between English and any non-English versions, the English version of this EULA shall govern, to the extent not prohibited by local law in your jurisdiction.
The laws of the State of Maryland, excluding its conflicts of law rules, govern this Agreement and your use of the Application. Your use of the Application may also be subject to other local, state, national, or international laws.
We will make every reasonable effort to resolve any disagreements that You have with Octava. If those efforts fail, by using the Application, You agree that any claim, dispute, or controversy You may have against Octava arising out of, relating to, or connected in any way with this Agreement and/or the Application, shall be resolved exclusively by final and binding arbitration.
If You are a resident of the United States of America: (a) any such arbitration shall be administered by the American Arbitration Association (the “AAA”) and conducted before a single arbitrator pursuant to the applicable rules and procedures established by the AAA (the “AAA Rules and Procedures”); (b) the arbitration shall be held at a location determined by the AAA pursuant to the Rules and Procedures (provided that such location is reasonably convenient for You), or at such other location as may be mutually agreed upon by You and Octava; (c) the arbitrator shall apply Maryland law consistent with the Federal Arbitration Act and applicable statutes of limitations, and shall honor claims of privilege recognized at law; (d) there shall be no authority for any claims to be arbitrated on a class or representative basis, arbitration can decide only Your and/or Octava’s individual claims, and the arbitrator may not consolidate or join the claims of other persons or parties who may be similarly situated; (e) in the event that You are able to demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation, Octava will pay as much of Your filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive; (f) all arbitration submissions, communications and proceedings shall be made or conducted in English; and (g) with the exception of clause (d) above, if any part of this arbitration provision is deemed to be invalid, unenforceable or illegal, or otherwise conflicts with the AAA Rules and Procedures, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein.
If You are a resident of any country other than the United States of America: (a) any such arbitration shall be administered by the International Chamber of Commerce (the “ICC”) conducted before a single arbitrator pursuant to the “Rules of Arbitration” of the ICC (the “ICC Rules of Arbitration”); (b) the arbitration shall be held in Baltimore, Maryland, or at such other location as may be mutually agreed upon by You and Octava; (c) the arbitrator shall apply Maryland law consistent with the ICC Rules of Arbitration and applicable statutes of limitations, and shall honor claims of privilege recognized at law; (d) all arbitration submissions, communications and proceedings shall be made or conducted in English; and (e) if any part of this arbitration provision is deemed to be invalid, unenforceable or illegal, or otherwise conflicts with the ICC Rules of Arbitration, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein.
Octava, LLC, last update June 2017
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