THIS END USER LICENSE AGREEMENT (this "License") is between you, as Licensee (hereinafter referred to as "you" or "your"), and Suki, LLC d/b/a OhMiBod ("OMB") and governing your use of the OhMiBod Remote application (the "App"). By downloading and/or using the App, you are agreeing to this License, and all the terms contained herein. The App is licensed, not sold, to you for use only under the terms of this License. OMB is solely responsible for the development of this App and its content.
a. Age Restriction. YOU MUST BE AT LEAST 18 YEARS OF AGE TO USE THIS APP.
b. Scope of License. OMB grants you this limited, revocable, non-exclusive, non-assignable, non-transferable license to download, install, access and use the App on any device that you own or control, and for no other purpose, whether express or implied, as permitted by the Usage Rules set forth in Section 9.b. of the Apple App Store Terms and Conditions or any similar terms, conditions or rules (together, the "Usage Rules"). This License is solely for your personal, non-commercial use, and does not allow you to use the App on any device that you do not own or control, or for any other purpose, whether express or implied. You may not rent, lease, lend, sell, redistribute, sublicense or otherwise transfer the App to any third party. Additionally, you may not copy (except as expressly permitted by this License and the Usage Rules), decompile, reverse engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the App, any updates, or any part thereof (except as and only to the extent any foregoing restriction is prohibited by applicable law or to the extent as may be permitted by the licensing terms governing use of any open sourced components included with the App), and any attempt to do so is a violation of the rights of OMB and its affiliates. If you breach this restriction, you may be subject to prosecution and damages.
c. Use Restrictions. The terms of the License will govern any upgrades provided by OMB that replace and/or supplement the original App, unless such upgrade is accompanied by a separate license in which case the terms of that license will govern. OMB reserves the right to modify, suspend, change or discontinue the App without notice, and you agree that OMB will not be liable for the same. OMB further reserves the right to elect to charge for the App, certain features of the App, or services that integrate with the App.
d. Consent to Use of Data. You agree that OMB 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 App. OMB 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 to you.
e. Termination. This License is effective until terminated by you or OMB. Your rights under this License will terminate automatically without notice from OMB if you fail to comply with any term(s) of this License. Upon termination of the License, you shall cease all use of the App, and destroy all copies, full or partial, of the App.
f. Services; Third Party Materials. The App may enable access to OMB's and third party services and web sites (collectively and individually, "Services"). Use of the Services may require internet access and that you accept any additional terms of service. The App may display, include or make available Services, 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 OMB 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. OMB 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. Third Party Materials and links to other web sites are provided solely as a convenience to you. Location data provided by the App or any Services is for OMB's or any third parties' internal purposes only and is not intended to be relied upon for navigational purposes or in situations where precise location information is needed or where erroneous, inaccurate or incomplete location data may lead to death, personal injury, property or environmental damage. Neither OMB, nor any of its content providers, guarantees the availability, accuracy, completeness, reliability, or timeliness of information or location data displayed by any Services. You further agree not to use the App and/or Services in any manner to harass, abuse, stalk, threaten, defame or otherwise infringe or violate the rights of any other party, and that OMB is not in any way responsible for any such use by you, nor for any harassing, threatening, defamatory, offensive or illegal messages, pictures or transmissions that you may receive as a result of using the App and/or Services.
g. Offensive Content. You understand that by using the App or 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, and mature and suggestive themes, and that the use of the App may automatically and unintentionally generate links or references to objectionable material. Nevertheless, you agree to use the App and Services at your sole risk and that OMB shall not have any liability to you for content that may be found to be offensive, indecent, or objectionable.
h. Intellectual Property Rights.
(a) You acknowledge and agree that the App, and any applicable Services, contains proprietary content, information and material that is protected by applicable intellectual property and other laws, including, but not limited to, copyright, and that you will not use such proprietary content, information or materials in any way whatsoever except for the permitted use of the App or related Services. All trademarks are the property of their respective owners, and you are not authorized to use any such trademarks. No portion of the App or any related Services may be reproduced in any form or by any means. You agree not to modify, rent, lease, loan, sell, distribute, transfer or create derivative works based on the App or related Services, in any manner, and you shall not exploit the App and/or Services in any unauthorized way whatsoever, including but not limited to, by trespass or burdening network capacity.
(b) You acknowledge and agree that OMB is not obligated to indemnify or defend you with respect to any claim relating to the App or your use of the App. To the extent OMB is required to indemnify you under applicable law, in the event of any third party claim that the App or your possession and use of the App infringes on that third party's intellectual property rights, OMB will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
i. No Warranty. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE APP 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 APP AND ANY SERVICES PERFORMED OR PROVIDED BY THE APP ARE PROVIDED "AS IS" AND "AS AVAILABLE," WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND OMB HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE APP 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. OMB DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE APP, THAT THE FUNCTIONS CONTAINED IN, OR SERVICES PERFORMED OR PROVIDED BY, THE APP WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE APP OR SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE APP OR SERVICES WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY OMB OR ITS AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. SHOULD THE APP 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. Without limiting the foregoing, this License shall not constitute any representation or warranty to the Licensee, its affiliates or representatives by OMB or its representatives whatsoever, including any representation or warranty with respect to (a) the App not infringing, violating, misappropriating or otherwise interfering with any rights, including any intellectual property rights, of any other person and (b) the App containing any errors and/or other problems that may cause system failures.
j. Limitation of Liability. TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL OMB BE LIABLE FOR PERSONAL INJURY, OR ANY INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE APP, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE) AND EVEN IF OMB HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU. In no event shall OMB's total liability to you for all damages (other than as may be required by applicable law in cases involving personal injury) exceed the amount of five dollars ($5.00). The foregoing limitations will apply even if the above stated remedy fails of its essential purpose.
k. Maintenance and Support. OMB is solely responsible for providing any maintenance and support services with respect to the App and as required under applicable law. For purpose of this section, "maintenance" shall include enhancements and improvements to the App and its operation, as determined by OMB.
m. Music. The App may include certain musical tracks that OMB has licensed from third parties. You may not copy of reproduce these musical tracks for any purpose. All musical tracks are the property of their respective owners.
n. Product Claims. OMB is responsible for addressing any claims by you relating to the App or use of it, including, but not limited to: (i) products liability claims; (ii) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. Nothing in this License shall be deemed to be an admission that you have such claims or that OMB has any liability in connection with such claims.
o. Compliance. You may not use or otherwise export or re-export the App except as authorized by United States law and the laws of the jurisdiction in which the App was obtained. In particular, but without limitation, the App may not be exported or re-exported (a) into any U.S. embargoed countries or (b) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person's List or Entity List. By using the App, you represent and warrant that you are not located in any such country or on any such list. You also agree that you will not use these products for any purposes prohibited by United States law, including, without limitation, the development, design, manufacture or production of nuclear, missiles, or chemical or biological weapons.
p. Commercial Nature. The App and related documentation are "Commercial Items," as that term is defined at 48 C.F.R. §2.101, consisting of "Commercial Computer Software" and "Commercial Computer Software Documentation," as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable.
q. Miscellaneous. If any provision of this License is held to be void, invalid, unenforceable or illegal, the other provisions shall continue in full force and effect. All provisions of this License relating to disclaimers or warranties, limitation of liability, intellectual property rights, privacy and the ownership of the App survive termination. The laws of the State of New Hampshire, excluding its conflicts of law rules, govern this license and your use of the App. Your use of the App may also be subject to other local, state, national, or international laws.
r. Contact. Any questions, comments or other inquiries in connection with this License should be directed to OMB at the following address: Suki LLC, 45 Lafayette Road #332, North Hampton NH 03862