SWEATER INC. MOBILE APP END-USER LICENSE AGREEMENT
This End-User License Agreement (“Agreement”) states the terms and conditions under which you (“You” or “Your”) are permitted to use the mobile application (the “App”) offered by Sweater Inc. (the “Licensor,” “we,” “us,” or “our”).
Carefully read all the terms and conditions of this Agreement before using the App.
BY DOWNLOADING, INSTALLING OR USING THE APP, OR BY COPYING THE APP, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT BETWEEN LICENSOR AND YOU. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT DOWNLOAD, USE, INSTALL, OR COPY THE APP.
1.0 Ownership & Acknowledgements
The App is proprietary to Licensor and its licensors, and is protected under applicable copyright and/or trade secret laws. All right, title and interest in and to the App, including all copies thereof, shall remain with Licensor and its licensors. This Agreement does not constitute a sale of the App, but only conveys to You a limited right to use the App in accordance with the terms of this Agreement. Licensor and its licensors own and retain all worldwide rights, title, copyright and other interests, in and to the App including, without limitation, all source code, object code, executable code, libraries and audio, video, text, and graphical representation (screen layout). The App is protected by copyright laws and other international treaty provisions. Therefore, You must treat the App like any other copyrighted material, subject to the provisions of this Agreement.
You acknowledge that this Agreement is concluded solely between You and Licensor and that Apple, Samsung, Google, and any other App store or download source are not responsible for the App or the content thereof. Apple, Samsung, and Google are trademarks of the respective third-party owners of such rights.
You further acknowledge that certain features of the App are not available unless You open, activate, or enroll in specific products or services we, our affiliates, or our service providers provide and are subject to separate terms and conditions made available to You in connection with such additional products or services.
2.0 License Grant and Termination
When You properly obtain the Service from Licensor or its authorized distributors, You are granted a limited, revocable, nonexclusive, nontransferable license to use the App in object code (electronic) form only, for personal use only, in connection with the Service so obtained, contingent on Your compliance with the terms of this Agreement. In accordance with all other terms of this Agreement, Your authorized use of the App and related materials includes the right to store, load, execute and maintain the programs and related materials, in object code only, on one or more partitions on devices approved to download and use the App (the “Approved Equipment” and, by acceptance of this Agreement, each a “Licensed Device”). For use on Apple devices, the license is limited to a nontransferable license to use the App on Apple products that You own or control and as permitted by the Usage Rules set forth in the Apple App Store Terms of Service.
No proprietary notices in or on the App shall be altered or removed.
You may copy the App for back-up purposes only if (a) You first contact Licensor and Licensor advises You that it does not provide replacement App on demand at reasonable cost in the event of the loss or corruption of the original App, (b) the backup copy is made and kept by You alone for use only to replace original App that is lost or corrupted and installed and used for purposes of the Service, and (c) the original copy of the App which the back-up copy replaces is destroyed upon installation of the replacement copy. You may not otherwise copy the App, and in no event may You modify, reconfigure, divide, rent, lease or lend the App.
You may not use or install the App except for use of the Service.
You may not, and will not permit any third party, without Licensor's prior written consent or as otherwise expressly authorized under this Agreement:
- use, copy, modify, reconfigure, divide, sublicense or distribute the App or related materials;
- relicense, sublicense, rent, lease or lend the App or related materials or use the App or related materials for third-party training, hosting, or time sharing;
- remove or modify from the App or related materials any markings or any notice of Licensor or its licensors' proprietary rights;
- make the App or related materials available in any manner to any third party for use in the third party's business operations;
- cause or permit reverse engineering (unless required by law for interoperability), disassembly or decompilation of the App (the foregoing prohibition includes but is not limited to review of data structures or similar materials produced by the App);
- disclose results of any program benchmark tests; or
- re-host or use the programs or related materials on equipment, operating systems or a platform other than the Approved Equipment.
All rights in the programs and related materials not expressly granted in this Agreement are reserved or retained by Licensor. No right or license exists, is granted or conferred or may arise by implication or estoppel.
Your right to use the App shall terminate, and/or Licensor may at its option suspend or deactivate Your use of the App, upon Your failure to comply with any term or condition of this Agreement, any unlawful use of the App and/or Service, or any abusive conduct involving the App and/or Service that is outside the normal contemplated use thereof. Upon termination of the licenses granted herein, You must cease all use of the App and destroy all copies (physical or electronic) of the App (including all component parts and copies thereof), and certify to Licensor, if so requested by Licensor, that all such materials have been so destroyed.
3.0 Activation and Use Terms
Accounts. Before using the App, you may be required to establish an account (an “Account”) if not already established through the Website. Approval of your request to establish an Account will be at our sole discretion. Each Account and the User identification and password for each Account (the “Account ID”) is personal in nature. You will not distribute or transfer your Account or Account ID or provide a third party with the right to access your Account or Account ID. You are solely responsible for all use of the App through your Account. You will ensure the security and confidentiality of your Account ID and will notify us immediately if any Account ID is lost, stolen or otherwise compromised. Any activities completed through your Account or under your Account ID will be deemed to have been done by you. You may not: (1) select or use an Account ID of another User with the intent to impersonate that User; and (2) use an Account ID that we, in our sole discretion, deem offensive.
Remote Access. The single primary user of each Licensed Device designated for the Service has permission to access from any other device and to use this App when installed on the Licensed Device. You may also allow other users to access the App to provide You with support services. The App may not be accessed or used by other persons or for other purposes under the same license at the same time.
Trial and Conversion. Versions of the App in some cases may be licensed on a trial basis. Your rights to use trial versions of the App software are limited to the trial period. In such a case, the trial version and the duration of the trial period will be indicated during the activation process. You may have the option to convert Your trial rights to a full license by following the instructions given to You. It is Your responsibility to adhere to the limitations on use of trial versions of the App.
Mandatory Activation. Activation associates the use of the App with the Service and the Licensed Devices designated for the Service. During activation, the App may send information about the App and Your device to Licensor or its designees. This information may include the version or model of Your device, the license version and the product ID of the App, Internet protocol address of the device and information derived from the hardware configuration, including unique identifiers of the hardware, firmware, or operating system. BY USING THE APP, YOU CONSENT TO THE TRANSMISSION OF THIS INFORMATION AND TO THE USE OF THAT INFORMATION BY LICENSOR OR ITS DESIGNEES FOR PURPOSES OF THIS AGREEMENT.
Validation. The App may from time to time be subject to validation procedures employed by Licensor or its designees. Validation verifies that the App has been activated and is properly licensed. Validation in some cases also may permit You to use certain features of the App or to obtain additional benefits. During a validation check, the App will send information about the software to Licensor or its designees. This information may include the version of the App in use and the product key. BY USING THE APP, YOU CONSENT TO THE TRANSMISSION OF THIS INFORMATION AND TO THE USE OF THAT INFORMATION BY LICENSOR OR ITS DESIGNEES FOR PURPOSES OF THIS AGREEMENT. If the App fails the validation for any reason, the functionality of the software may be affected. For example, You may then need to reactivate the software to continue use.
Consent for Internet- and Location-Based Services. Licensor may provide Internet- and location-based services with the App. Additional software features of Licensor or other service providers may be provided via the Internet. In some cases, You will not receive a separate notice when they connect. BY USING THESE FEATURES, YOU CONSENT TO THE TRANSMISSION OF LOCATION, SALES, PAYMENT PROCESSING, COMPANY, EMPLOYEE AND CUSTOMER INFORMATION AND TO THE USE OF THAT INFORMATION BY LICENSOR OR ITS DESIGNEES FOR PURPOSES OF THIS AGREEMENT.
Computer Information. Certain features associated with the App or the Service use Internet protocols that send to the appropriate systems computer information, such as Your Internet protocol address, the type of operating system, browser and name and version of the software You are using, and the language code of the Licensed Device, and most importantly, data. Licensor or its designees use this information to make the Internet-based services available to you. The information collected may include swipe (data uploads, data and software downloads, payment processing, validation, etc.), remote data access, customer feedback system.
Device Integrity. The License Device's operating system must not be compromised (for example: hacked, jail-broken, or otherwise tampered with). Licensor assumes no liability whatsoever from compromised or unlicensed devices running any App.
Age. You must be the older of: (i) 18 years, or (ii) at least the age of majority in the jurisdiction where you reside to use the App.
Geographic Restrictions. The Content and Services are based in the state of Colorado in the United States and provided for access and use only by persons located in the United States. You acknowledge that You may not be able to access all or some of the Content and Services outside of the United States and that access thereto may not be legal by certain persons or in certain countries. If you access the Content and Services from outside the United States, you are responsible for compliance with local laws.
4.0 Third Party Software
Use of some third party materials included in or required for operation of the App may be subject to other terms and conditions provided by the third-party licensor. Such other terms and conditions are effective and shall apply solely between You and the named third party licensor or licensor that supplies such third party materials. Licensor is not responsible for such terms and conditions or their performance or non-performance, whether by the named third party licensor or another licensor, or by You.
Without limiting the generality of the foregoing, if software identified as “open source software” or “freeware” is included as third party materials, Your license or rights in such software is not provided by Licensor and instead shall be established directly between You and the third party owner or licensor of that software in accordance with its terms and conditions. Unless otherwise indicated by Licensor, such software is considered to be separate and distinct (in programming, operation and for legal purposes) from the App provided by Licensor, and You may exercise Your rights in such software independent of the App and the terms of this Agreement applicable to the App.
Licensor reserves the right to add to, change or delete its third-party licensors or service providers, and they may update their terms and conditions from time to time. Except as otherwise provided in these updates, such updates shall be effective and automatically incorporated by reference in this Agreement when posted.
5.0 App Updates
Licensor may from time to time in its sole discretion develop and provide App updates, which may include upgrades, bug fixes, patches and other error corrections and/or new features (collectively, including related documentation, "Updates"). Updates may also modify or delete in their entirety certain features and functionality. You agree that Licensor has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality. Based on your Licensed Device settings, when your Licensed Device is connected to the internet either: (i) the App will automatically download and install all available Updates; or (ii) you may receive notice of or be prompted to download and install available Updates.
You shall promptly download and install all Updates and acknowledge and agree that the App or portions thereof may not properly operate should you fail to do so. You further agree that all Updates will be deemed part of the App and be subject to all terms and conditions of this Agreement.
6.0 Limited Warranty and Disclaimer
THE APP LICENSED HEREIN IS LICENSED “AS IS” AND NEITHER LICENSOR NOR ITS REPRESENTATIVES OR DISTRIBUTORS MAKES ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE APP, ITS USE, OR THE RESULTS OF SUCH USE. ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND, PAST OR PRESENT, WHETHER STATUTORY, COMMON-LAW OR FROM A COURSE OF DEALING OR USAGE OF TRADE, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF TITLE OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ARE HEREBY EXPRESSLY DISCLAIMED BY LICENSOR TO THE FULLEST EXTENT PERMITTED BY LAW.
Without limiting the foregoing, Licensor does not warrant or represent that the operation of the App will be uninterrupted or error-free, or that any defect within the App will be corrected. Furthermore, Licensor does not warrant or make any representation regarding the results of Your use of the App in terms of capability, correctness, accuracy, reliability or otherwise, or that the App will meet Your requirements, or that the App is secure. Unless as expressly agreed in writing by Licensor, no presentation, specimen, oral or written information given by Licensor or any representative of Licensor through the App shall create a warranty or constitute legal, tax, or investment advice.
ANY LIABILITY OF LICENSOR OR ITS AFFILIATES FOR DEFECTS IN THE APP WILL BE LIMITED EXCLUSIVELY TO REPLACEMENT OF YOUR COPY OF THE APP WITH ANOTHER COPY OF THE APP, IF AVAILABLE.
Maintaining Operating System. Licensor is not responsible for the performance or maintenance of the Licensed Device operating systems that You employ. This includes bugs, viruses, spyware and other malware. Your operating system requires occasional security patches, updates, and service packs. You need to ensure that whenever possible the Licensed Device is set to update automatically and that it is receiving and installing updates and other maintenance releases. We also recommend that You install antivirus software where possible.
Third party software and hardware. Licensor is not responsible for other software installed on the Licensed Device. Common examples include other apps; email, office, publishing and accounting software; and antivirus software. We are also not responsible for any hardware. The reliability, security, and warranty of hardware is between You and the hardware manufacturer. You must comply with any applicable third-party terms, such as wireless data service agreement terms, when using the App. Providing support to hardware or software not created by us puts us in a position of being responsible if it fails. We cannot accept this responsibility.
Licensor is solely responsible for providing any maintenance and support services described in this section or as required under applicable law. You acknowledge that Apple, Samsung, Google, or any other App store or download source has no obligation whatsoever to furnish any maintenance or support services with respect to the App.
As the user of the App, You are solely responsible for the selection of the App to achieve Your intended results, for the installation and use made of the App, and for the results obtained from the App. In addition, You are solely responsible for selection and installation of appropriate equipment. You agree to follow the instructions contained in the App or materials provided from time to time in connection with the App, for installation and use of the App.
EXCEPT AS EXPRESSLY PROVIDED HEREIN, IN NO EVENT SHALL LICENSOR, ITS AFFILIATES OR LICENSORS (THE “LICENSOR PARTIES”) BE LIABLE WHETHER IN CONTRACT OR IN TORT, FOR ANY LOSSES, INJURIES OR DAMAGES OF ANY KIND, TO ANY PERSON OR ENTITY (INCLUDING WITHOUT LIMITATION, ANY DIRECT, INDIRECT, CONSEQUENTIAL, SPECIAL, MULTIPLE, EXEMPLARY, PUNITIVE OR INCIDENTAL DAMAGES WHATSOEVER) ARISING OUT OF OR RELATING TO ANY USE, INABILITY TO USE, CONDITION, PERFORMANCE, DEFECT OR FAILURE IN, OR IMPROPER USE OF, THE APP OR THE RESULTS OF THE APP (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFIT, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION OR OTHER PECUNIARY LOSS, OR DAMAGES FOR LOST OR CORRUPTED DATA), EVEN IF THE LICENSOR PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Some states or jurisdictions do not allow the exclusion or limitation of incidental, consequential or special damages, or the exclusion of implied warranties or limitations on how long a given warranty may last, so the above limitations may not apply to You. The limitations provided in this Agreement are intended to apply to the fullest extent allowable under applicable law.
You release and waive all claims against the Licensor Parties, and the directors, trustees, officers, shareholders, employees, agents and representatives of each of the foregoing, from any and all claims, damages, liabilities, costs and expenses arising out of Your use of the App. If You are a California resident, You waive any rights You may have under § 1542 of the California Civil Code, which reads: “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.” You agree to release unknown claims and waive all available rights under California Civil Code § 1542 or under any other statute or common law principle of similar effect. To the extent permitted by applicable law, this release covers all such claims regardless of the negligence of the Licensor Parties.
You acknowledge that the App may be subject to restrictions and controls imposed by the United States Export Administration Act (the “Act”) and the regulations thereunder. You agree and certify that neither the App nor any direct product thereof is being or will be acquired, shipped, transferred or re-exported, directly or indirectly, into any country prohibited by the Act and the regulations thereunder or will be used for any purposes prohibited by the same.
9.0 Government Users
The App is provided with RESTRICTED RIGHTS. Use, duplication, or disclosure by or on behalf of the United States of America, its agencies and/or instrumentalities is subject to restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer App clause at DFARS 252.227-7013, or subparagraphs (c) (1) and (2) of the Commercial Computer-Restricted Rights at 48 CFR 52.227-19, as applicable. Manufacturer for such purposes is Licensor, 4999 Nautilus Court, Boulder, CO 80301.
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; (ii) You are not listed on any U.S. Government list of prohibited or restricted parties; and (iii) Your use of the App and the Service will otherwise comply with applicable law.
Upon the request of Licensor or its designee, You agree to provide to Licensor promptly upon Licensor's request a certificate that provides such information as Licensor may request regarding Your installation and use of the App and related materials in order to allow Licensor to verify compliance with this Agreement.
You agree to create, retain and provide to Licensor and its auditors accurate written records, system tool outputs, and other system information sufficient to provide auditable verification that Your use of the App and related materials is and has been in compliance with this Agreement, including, without limitation, all of Licensor's applicable licensing and pricing terms, and compliance with Licensor's intellectual property rights. You agree to run scripts and tools requested by Licensor and to report the results thereof to Licensor as part of such verification.
Upon reasonable notice, Licensor or its designee shall be entitled to verify Your compliance with the terms of this Agreement for all environments in which You or anyone acting on Your behalf uses or installs the App or related materials. Each party shall be responsible for its own costs and expenses incurred in connection with the verification. In such verification, You will give Licensor access to the personnel, resources and facilities of You, Your affiliates and Your contractors, including the right to inspect all copies of the App and related materials in Your or their possession or use. Licensor or its designee may use an independent auditor to assist with such verification, provided Licensor has a written confidentiality agreement in place with such auditor.
Licensor will notify You in writing if any such verification indicates that You, Your affiliates, or Your contractors have used any App or related materials in excess of its authorized use or are otherwise not in compliance with this Agreement. You agree to promptly pay Licensor any charges that Licensor specifies in an invoice for: (a) any such excess use, and (b) any additional charges and other liabilities determined as a result of such verification.
This Agreement shall be governed by the laws of the State of New York, United States without regard to conflict of law principles.
Except as otherwise expressly set forth in this Agreement and except for actions for equitable relief, all disputes between the parties in connection with this Agreement will be decided by arbitration pursuant to the Code of Arbitration Procedure of the Financial Industry Regulatory Authority (“FINRA”) in effect at the time of the claim or dispute and in accordance with Title 9 of the United States Code. Notice of the demand for arbitration must be filed in writing with the other party and must be made within a reasonable time after the dispute has arisen. If the amount claimed to be in dispute is equal to or greater than Two Hundred Fifty Thousand Dollars ($250,000), then the arbitration will be decided by a panel of three (3) arbitrators selected under the Code of Arbitration Procedure of FINRA. If the amount claimed to be in dispute is less than that amount, then the arbitration will be decided by one (1) arbitrator selected pursuant to the same procedure. Arbitration will be initiated in Boulder, Colorado, United States at a site specified by us. The arbitration will occur within sixty (60) calendar days after the party demanding arbitration delivers the written demand on the other party, unless the parties agree otherwise in writing. The arbitrators will award to the prevailing party, if any, as determined by the arbitrators, all of its Costs and Fees. “Costs and Fees” for this purpose means all reasonable pre-award expenses of the arbitration, including the arbitrators’ fees, administrative fees, travel expenses, and out-of-pocket expenses, such as copying, telephone, court costs, witness fees and attorneys’ fees. The award rendered by the arbitrators will be final and specifically enforceable under applicable laws, and judgment may be entered upon it in any court having jurisdiction thereof. No arbitration arising out of or relating to this Agreement may include, by consolidation, joinder or in any other manner, any person or entity not a party to this Agreement. Neither party will appeal the award nor seek review, modification, or vacation of the award in any court or regulatory agency. Each party shall continue to perform its respective obligations during the pendency of any dispute until such time as the dispute is resolved. The foregoing will not prevent a party from instituting formal proceedings earlier to (i) preserve a superior position with respect to other creditors, or (ii) address a claim arising out of the breach of either party’s intellectual property rights under this Agreement. In addition, either party may resort to court action for injunctive relief at any time if the dispute resolution process set forth in this section may permit or cause irreparable injury to such party or any third party claiming against such party, due to delay arising out of the dispute resolution process. Any such legal action or proceeding shall be brought exclusively in the federal or state courts located in the State of Colorado and You hereby accept, generally and unconditionally, the jurisdiction of such courts.
This Agreement may not be altered or amended except by a written document signed by an authorized officer of Licensor.
For Apple users: You acknowledge and agree that Apple, and Apple’s subsidiaries are third party beneficiaries of this Agreement, and that, upon Your acceptance of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against You as a third party beneficiary hereof. In the event of any failure of the App to conform to any applicable warranty, You may notify Apple, and Apple will refund the purchase price (if any) for the App to You and, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App.
If for any reason a court of competent jurisdiction finds any provision of this Agreement, or a portion thereof, to be unenforceable, that provision shall be enforced to the maximum extent permissible so as to effect the intent of the parties and the remainder of this Agreement shall remain in full force and effect.
This Agreement constitutes the entire agreement between You and Licensor with respect to the App and supersedes any prior or contemporaneous understandings, representations, statements or agreements, written or oral, regarding the App. Additional terms, conditions, and agreements provided in connection with our delivery of certain optional functionality enabled by the App, if any, or in connection with App services provided by third parties, apply to such services.
Licensor may modify the App or the terms of this Agreement at any time for any reason. Except where required by applicable law, we may make such modifications effective upon implementation and without advance notice to you. Your continued use of the App or Service following any such modification constitutes evidence of your acceptance of it. We will generally make any amended form of this Agreement available to you through the App.
The section headings used herein are for convenience of reference only and do not form a part of these terms and conditions, and no construction or inference shall be derived therefrom.
Questions, complaints or claims related with respect to the App should be directed to firstname.lastname@example.org and 1-888-577-7987.