APPTOMIC LLC END-USER LICENSE AGREEMENT
1. Acknowledgement: By downloading APPTOMIC LLC applications, the end-user expressly agrees to the terms and conditions contained in this end-user license agreement (the “Agreement”). The EULA may not provide for usage rules for Licensed Applications that are less restrictive than the Usage Rules set forth for Licensed Applications in, or otherwise be in conflict with, the App Store Terms of Service as of the Effective Date.
2. Scope of License: The license granted to the end-user for the Licensed Application is limited
to a non-transferable license to use the Licensed Application on any iPhone, iPod, iPad, or other such device that the end-user owns or controls and as permitted by the Usage Rules set forth in the App Store Terms of Service.
3. Legal Compliance: The end-user must represent and warrant that (i) he/she is 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) he/she is not listed on any U.S. Government list of prohibited or restricted parties.
4. Legal Disclaimer: APPLICATIONS PROVIDED BY APPTOMIC LLC ARE SOLELY FOR ENTERTAINMENT PURPOSES ONLY. APPTOMIC LLC DOES NOT ASSUME ANY LIABILITY FOR ANY MISUSE OF THIS APPLICATION, WHETHER OR NOT SUCH MISUSE IS FORESEEABLE. DO NOT USE APPTOMIC LLC PRODUCTS NEAR OR AROUND INFANTS, SMALL CHILDREN, INDIVIDUALS WHO ARE HEARING IMPAIRED, OR INDIVIDUALS WHO ARE INCAPABLE OF A PHYSICAL RESPONSE TO SOUND. DO NOT USE IN CONJUNCTION WITH ANY SOUND AMPLIFICATION DEVICE, INCLUDING WITHOUT LIMITATION, STEREO SYSTEMS, SPEAKER SYSTEMS, HEADPHONES, OR OTHER SUCH DEVICES OR IMPLEMENTS. DO NOT USE THIS APPLICATION FOR PROLONGED PERIODS OF TIME. DO NOT USE THIS APPLICATION IN DIRECT PROXIMITY TO ANY AUDITORY ORGAN OR EAR OF ANY HUMAN OR ANIMAL. APPTOMIC LLC’S (AND ITS REPRESENTATIVES’) LIABILITY UNDER THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION, SHALL NOT EXCEED THE PRICE FOR THE APPLICATION THAT IS THE BASIS FOR THE CLAIM. IN NO CASE SHALL APPTOMIC LLC, ITS DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, CONTRACTORS, ASSIGNS, OR LICENSORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING FROM THE END-USER’S USE OF THIS APPLICATION, OR FOR ANY OTHER CLAIM RELATED IN ANY WAY TO THE END USER’S USE OF THIS APPLICATION, INCLUDING, BUT NOT LIMITED TO, ANY ERRORS OR OMISSIONS IN THIS APPLICATION, OR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE, EVEN IF ADVISED OF THEIR POSSIBILITY.
5. Disputes and Limitations on Liability: The law of the state of Wisconsin will govern any dispute between the parties. EACH PARTY EXPRESSLY WAIVES ALL RIGHTS TO A JURY TRIAL IN CONNECTION WITH ANY DISPUTE ARISING UNDER THIS AGREEMENT. Disputes between APPTOMIC LLC and the end-user arising under or relating to this agreement will be submitted to the American Arbitration Association (“AAA”) office located in Milwaukee, Wisconsin for binding. The cost of the arbitration, including the fees and expenses of the arbitrator, will be shared equally, with each party paying its own attorneys’ fees. The arbitrator will have the authority to award damages only to the extent otherwise available under this agreement. APPTOMIC LLC’s (AND ITS REPRESENTATIVES’) LIABILITY UNDER THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION, SHALL NOT EXCEED THE PRICE FOR THE PRODUCT THAT IS THE BASIS FOR THE CLAIM. IN NO CASE SHALL APPTOMIC LLC, ITS DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, CONTRACTORS, ASSIGNS, OR LICENSORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING FROM THE END-USER’S USE OF THE LICENSED APPLICATION, OR FOR ANY OTHER CLAIM RELATED IN ANY WAY TO THE END-USER’S USE OF THE LICENSED APPLICATION, INCLUDING, BUT NOT LIMITED TO, ANY ERRORS OR OMISSIONS IN THE LICENSED APPLICATION, OR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE, EVEN IF ADVISED OF THEIR POSSIBILITY. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS, APPTOMIC LLC’S LIABILITY SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW. The limitation of liability and exclusion of damages shall apply even if the limited remedies fail of their essential purpose.
6. Indemnity: The end-user shall indemnify and hold harmless APPTOMIC LLC, its affiliates, and its officers, directors, members, employees, contractors, assigns and agents from and against any and all claims, actions, suits or proceedings instituted by third parties, as well as any and all losses, liabilities, damages, costs and expenses (including reasonable attorneys fees) arising out of or accruing from (a) any breach of this Agreement; (b) any negligence or willful misconduct in connection with the use of the Licensed Application; and (c) any damages caused by the misuse of the licensed application, whether or not such misuse is foreseeable.
7. Severability: In the event that any one or more of the provisions of this Agreement or the Third Party EULAs shall be held invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions hereof shall not be affected, or if any one or more of the provisions contained herein shall be held to be excessively broad as to duration, activity or subject, such provision shall be construed by limiting and reducing such provisions so as to be enforceable to the maximum extent compatible with applicable law.
