iOS Policy
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END USER LICENSE AGREEMENT & TERMS OF SERVICE
TWLOHA, Inc.This Agreement is effective as of: March 26, 2021
This END USER LICENSE AGREEMENT & TERMS OF SERVICE (this “Agreement”) is between TWLOHA, Inc. with a mailing address at PO Box 2203, Melbourne, Florida 32902 (“Licensor” or “TWLOHA” or “we” or “our”) and the user that downloads The Hopeful software application for use on a smartphone, tablet computer or any other hand held and/or mobile device (the “Application”) (“Licensee” or “you”). This Agreement is between TWLOHA and the Licensee and not with Apple, Inc. TWLOHA, and not Apple, Inc., is solely responsible for the Application and the content related thereto.
PLEASE CAREFULLY READ THIS AGREEMENT BEFORE DOWNLOADING THE APPLICATION. IT IS A BINDING CONTRACT BETWEEN YOU AND TWLOHA. BY DOWNLOADING THE APPLICATION AND/OR CLICKING ACCEPTANCE TO THIS AGREEMENT, YOU ACCEPT AND FULLY AGREE TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT AND TWLOHA’S PRIVACY POLICY (AVAILABLE AT Privacy Policy). IF YOU DO NOT FULLY AGREE, YOU MUST NOT INSTALL, ACCESS, DOWNLOAD OR USE THE APPLICATION.
BY INSTALLING, ACCESSING, DOWNLOADING OR USING THE APPLICATION, YOU REPRESENT AND WARRANT THAT: (I) YOU ARE AT LEAST EIGHTEEN (18) YEARS OLD OR YOU ARE THE AGE OF MAJORITY IN YOUR TERRITORY OF RESIDENCE IF THAT AGE IS HIGHER THAN EIGHTEEN (18) YEARS OLD OR IF YOU ARE NOT EIGHTEEN (18) YEARS OF AGE OR SUCH HIGHER AGE, THEN THE PERSON ENTERING INTO THIS AGREEMENT ON YOUR BEHALF MUST BE YOUR LEGAL GUARDIAN OR PARENT THAT HAS THE RIGHT TO ENTER INTO CONTRACTS ON YOUR BEHALF; (II) YOU HAVE READ AND UNDERSTOOD THIS AGREEMENT AND OUR PRIVACY POLICY AT Privacy Policy, AND (III) YOU HAVE AGREED TO THIS AGREEMENT.
THIS END USER LICENSE AGREEMENT & TERMS OF SERVICE, ALONG WITH OUR PRIVACY POLICY INCORPORATED HEREIN BY REFERENCE, ONLY APPLY TO THE HOPEFUL APPLICATION. OUR WEBSITE, WWW.TWLOHA.COM, HAS ITS OWN TERMS AND CONDITIONS OF USE (AVAILABLE AT HTTPS://TWLOHA.COM/TERMS-CONDITIONS/) AND PRIVACY POLICY (AVAILABLE AT HTTPS://TWLOHA.COM/PRIVACY-POLICY/), AND YOU SHOULD READ THEM BEFORE USING OUR WEBSITE OR PROVIDING INFORMATION ON OR THROUGH IT. THIRD PARTY WEBSITES, APPLICATIONS AND PROGRAMS THAT YOU MAY LINK TO THROUGH THE APPLICATION OR OUR WEBSITE MAY HAVE THEIR OWN TERMS OF USE, END USER LICENSE AGREEMENTS AND PRIVACY POLICIES WHICH APPLY TO SUCH APPLICATIONS, PROGRAMS AND WEBSITES AND YOU SHOULD READ THEM BEFORE USING SUCH APPLICATIONS, PROGRAMS AND WEBSITES OR PROVIDING INFORMATION ON OR THROUGH THEM.
The Application is for general health and wellness purposes and is not intended to be a substitute for you obtaining medical or psychological services from a licensed practitioner. The Application is not a therapeutic treatment for any physical or mental condition. TWLOHA is not monitoring the content that you provide to the Application to determine if you need treatment of any physical or mental condition.
Neither TWLOHA nor any of its personnel are licensed by any governmental authority and do not offer to engage in, or engage in the practice of medicine or any other licensed health care profession. TWLOHA does not diagnose, treat, operate or prescribe for any disease or physical or mental condition and does not offer or undertake by any means or methods to diagnose, treat, prevent, operate or prescribe for any human disease or physical or mental condition. In addition, the Application and TWLOHA do not offer or provide medical diagnostic or screening services. The Application and any statements made on TWLOHA’s website or its materials have not been evaluated by any governmental authority or the Food and Drug Administration.
1. License Grant.
Subject to the terms and conditions of this Agreement, TWLOHA grants Licensee a non-exclusive, limited, non-transferable license to use and download on Licensee’s iPhone, iPod Touch, iPad or other Apple device that Licensee owns or controls, the Application and enter Licensee Content (as further defined herein) into the Application. The use and download of the Application is solely for Licensee’s personal use. Except as set forth herein, no other use, access, copying, display or distribution in any form of the Application, in whole or in part, by Licensee is permitted. For purposes of this Agreement, “Licensee Content” shall mean all data, content, comments, materials and information entered into the Application by Licensee, including comments, content and other materials that you post and/or submit to the Application.
2. Limitations and Restrictions.
You shall not (i) copy the Application, except as expressly permitted by this Agreement; (ii) modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Application; (iii) reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Application or any part thereof; (iv) remove, delete, alter, or obscure any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Application, including any copy thereof; (v) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Application, or any features or functionality of the Application, to any third party for any reason, including by making the Application available on a network where it is capable of being accessed by more than one device at any time; or (vi) remove, disable, circumvent, or otherwise create or implement any workaround to any copy protection, rights management, or security features in or protecting the Application.
While using the Application you shall not: (i) violate any federal, state and/or local laws and/or ordinances, third party rights, or our policies set forth in or on the Application; (ii) use any content, data, information, or comments posted on or derived from the Application for any commercial purposes; (iii) post false, threatening, inflammatory, harassing, abusive, inaccurate, misleading, defamatory, obscene, racially or ethnically or otherwise objectionable, libelous content and/or personal information about other individuals without such person’s permission or post content that does not generally pertain to the theme or subject matter of the Application; (iv) distribute or post spam, chain letters, or pyramid schemes on or through the Application; or (v) impair, disable or otherwise adversely affect the Application or the functionality or operation of the Application, including without limitation, distributing, submitting, posting or uploading any materials that contain or distribute viruses or disabling code, files, programs or any other technologies that may harm TWLOHA, the Application or any other Application user.
In addition, you shall not (i) harvest or otherwise collect or develop any content, information or data from (a) information, data, comments or content provided on the Application including any data, content, comments, materials or information provided by third parties or other users of the Application, unless expressly authorized to do so in writing by an officer of TWLOHA, or (b) information with respect to any other Application users, including names and email addresses; (ii) provide any links or frames to or of any content on the Application without TWLOHA’s express written consent; (iii) use any spiders, automated programs, scripts, robots, software or any similar devices that obtain, copy or link, data, comments, content or information on the Application or with respect to the Application’s users, or affect the operation of the Application or (iv) attempt to identify or identify the names or identities of any other users of the Application (other than any users that publicly identify themselves as users of the Application).
3. Ownership and Responsibility for Licensee Content.
3.1 Licensee’s Ownership
Licensee acknowledges that Licensee is solely responsible for the Licensee Content (including, without limitation, its accuracy, quality, legality, and reliability) and Licensee’s use of the Application. Licensee is the owner of the Licensee Content and TWLOHA has no ownership rights with respect to the Licensee Content. Licensee shall not submit or post any Licensee Content protected by copyright or other intellectual property rights without the express permission of the owner of such content. By submitting or posting Licensee Content, Licensee warrants and represents that Licensee has the right to submit and post such Licensee Content through use of the Application.
Licensee represents and warrants that Licensee owns or otherwise controls all of the rights to any Licensee Content, that the Licensee Content are original works, and that the public posting and other public or private use of the Licensee Content will not infringe upon the privacy rights, intellectual property or other proprietary rights of any third party. Licensee acknowledges that Licensee is not entitled now, or in the future, to any compensation for any Licensee Content, and Licensee and Licensee’s heirs, legal representatives and permitted assigns hereby waive the benefits of any provisions of law with respect to moral rights or any similar laws. Licensee and Licensee’s heirs, designated recipients, legal representatives and permitted assigns hereby waive any and all rights and remedies Licensee may have against TWLOHA and its affiliates, officers, directors, trustees, agents and employees from any and all claims, demands, actions, causes of action, damages, obligations, losses and expenses of whatever kind, including without limitation, any tort or defamation claims for libel or slander and/or claims for violation of a third party’s privacy rights, relating to providing, transmitting or entering the Licensee Content into the Application, or TWLOHA’s or its affiliates’ receiving, evaluating, and utilizing the Licensee Content.
3.2 TWLOHA’s Ownership
TWLOHA shall own all right, title and interest, including all related intellectual property rights, in and to the Application, and any reviews, suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Licensee relating to the Application (the “Suggestions”). All Suggestions shall be considered “works made for hire” under United States and international copyright laws and shall be the sole property of TWLOHA. Licensee hereby agrees to assign and does hereby assign fully to TWLOHA all such Suggestions, all of Licensee’s interest in and to the Suggestions, and any copyrights, patents, trademarks or other intellectual property rights relating thereto. Licensee hereby waives, and agrees not to assert, any and all moral rights that Licensee may have in and to the Suggestions created by Licensee. The provisions of this Section shall be binding upon Licensee, Licensee’s heirs, legal representatives, and permitted assigns.
This Agreement does not convey to Licensee any rights of ownership in or related to the Application. TWLOHA’s name, trademarks, service marks, logos, and the names, trademarks, service marks and logos associated with the Application are trademarks and service marks of TWLOHA or third parties. TWLOHA owns all proprietary rights, including, without limitation, patent, copyright, trade secret and trademark rights to the Application and any modifications, enhancements and derivatives to the Application. Licensee acknowledges that Licensee is granted only a limited right of use of the Application, which right of use is not coupled with an interest and is revocable in accordance with the terms of this Agreement. Licensee agrees not to assert any ownership interest in the Application, the Suggestions or any software used in connection with producing or providing the Application. Licensee agrees that the Application embodies valuable, confidential and trade secret information of TWLOHA.
4. Passwords.
Licensee agrees to accept all responsibility for all activities that occur under Licensee’s account and password(s). Licensee shall use best efforts to maintain the security of Licensee’s account information and password(s). Licensee agrees to immediately notify TWLOHA of any unauthorized use of Licensee’s password(s) or account or any other breach of security or confidentiality thereof, and in such event TWLOHA shall have the right, without limitation of any other rights under this Agreement, at law or in equity, to immediately suspend or terminate any such account or this Agreement.
5. Collection and Use of Information
You acknowledge that when you download, install, or use the Application, we may use automatic means (including, for example, cookies) to collect information about your mobile device and about your use of the Application. You also may be required to provide certain information about yourself as a condition to downloading, installing, or using the Application or certain of its features or functionality, and the Application may provide you with opportunities to share information about yourself with others. All information we collect through or in connection with this Application is subject to our Privacy Policy available at Privacy Policy. By downloading, installing, using, and/or providing information to or through this Application, you consent to all actions taken by us with respect to your information in compliance with the Privacy Policy.
6. Content and Services.
The Application may provide you with access to our website located at www.twloha.com (the “Website”) and products and services accessible thereon, and certain features, functionality, and content accessible on or through the Application may be hosted on the Website (collectively, “Content and Services”). Your access to and use of such Content and Services are governed by the Website’s Terms of Use, located at HYPERLINK “https://twloha.com/terms-conditions/” https://twloha.com/terms-conditions/, and Privacy Policy, located at https://twloha.com/privacy-policy/, which are incorporated herein by this reference. Any violation of such Terms of Use or Privacy Policy will also be deemed a violation of this Agreement.
7. License to Use Licensee Content.
Licensee grants to Licensor and its affiliates the worldwide, perpetual, royalty-free, irrevocable, non-exclusive right to reproduce, publish, and display Licensee Content on the Application.
8. Withdrawal of the Application.
TWLOHA has the right in its sole discretion to terminate and cease Licensee’s use of and access to the Application at any time for any reason and with or without prior notification to Licensee, including without limitation, if Licensee breaches any of the terms of this Agreement or the Privacy Policy. Should such termination occur, all rights granted to Licensee under this Agreement shall cease, and Licensee shall promptly delete the Application from all devices and cease using the Application.
9. Confidentiality of Licensee Content.
Licensee Content shall be provided at Licensee’s own risk. No Licensee Content, regardless of how it may be marked shall be considered confidential nor shall any Licensee Content be subject to any express or implied obligation of confidentiality. Notwithstanding the foregoing, Licensor is bound by the Privacy Policy and Licensee shall only use the Licensee Content in connection with providing the Application as permitted by this Agreement and the Privacy Policy. TWLOHA and its affiliates shall not be liable for any use or disclosure of any Licensee Content by any third party, including other Application users.
10. No Assurance of Availability.
TWLOHA’s performance under the Agreement, and the Application’s operation is subject to interruption and delay without liability due to causes beyond its reasonable control, such as acts of God, acts of any government, war or other hostility, civil disorder, the elements, fire, explosion, power failure, equipment failure, epidemics, pandemics, industrial or labor dispute, inability to obtain necessary supplies and the like. TWLOHA is not liable to Licensee or any third party for damages arising from such unavailability and the time for performance of such obligation shall be extended for a period equal to the duration of the contingency that occasioned the delay, interruption or prevention.
11. Limitation of Liability.
TO THE MAXIMUM EXTENT NOT PROHIBITED BY APPLICABLE LAW, IN NO EVENT SHALL TWLOHA OR ANY OF ITS AFFILIATES, OFFICERS, DIRECTORS, TRUSTEES, AGENTS AND/OR EMPLOYEES BE LIABLE TO LICENSEE OR TO ANY THIRD PARTY FOR ANY SPECIAL, INDIRECT, PUNITIVE, CONSEQUENTIAL, INCIDENTAL, OR INDIRECT DAMAGES, INCLUDING WITHOUT LIMITATION, ANY TORT OR DEFAMATION CLAIMS FOR LIBEL OR SLANDER AND/OR CLAIMS FOR VIOLATION OF A THIRD PARTY’S PRIVACY RIGHTS, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY ARISING OUT OF THIS AGREEMENT, THE PRIVACY POLICY FOR THE APPLICATION, THE APPLICATION ITSELF, THE USE OR ACCESS OF THE APPLICATION, THE USE OR ACCESS OF THE LICENSEE CONTENT OR THE SUGGESTIONS AND ALL OTHER CONTENT AND INFORMATION ON THE APPLICATION PROVIDED BY TWLOHA OR ANY THIRD PARTY, WHETHER OR NOT ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. TO THE MAXIMUM EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL TWLOHA OR ANY OF ITS AFFILIATES, OFFICERS, DIRECTORS, TRUSTEES, AGENTS AND EMPLOYEES HAVE ANY LIABILITY OF ANY KIND WITH RESPECT TO THIS AGREEMENT, THE PRIVACY POLICY FOR THE APPLICATION, THE APPLICATION ITSELF, THE USE OR ACCESS OF THE APPLICATION, THE USE OR ACCESS OF THE LICENSEE CONTENT OR THE SUGGESTIONS OR ALL OTHER CONTENT AND INFORMATION ON THE APPLICATION PROVIDED BY TWLOHA OR ANY THIRD PARTY. TO THE MAXIMUM EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL TWLOHA’S OR ANY OF ITS AFFILIATES’, OFFICERS’, DIRECTORS’, TRUSTEES, AGENTS’ AND EMPLOYEES’ AGGREGATE LIABILITY UNDER ANY AND ALL LEGAL THEORIES WITH RESPECT TO THIS AGREEMENT, THE PRIVACY POLICY, THE APPLICATION, THE USE OR ACCESS OF THE APPLICATION, THE USE OR ACCESS OF THE LICENSEE CONTENT OR THE SUGGESTIONS OR ALL OTHER CONTENT AND INFORMATION ON THE APPLICATION PROVIDED BY TWLOHA OR ANY THIRD PARTY BE IN EXCESS OF TEN DOLLARS ($10.00).
THE LIMITATION OF LIABILITY SET FORTH IN THIS SECTION SHALL NOT APPLY TO ANY LICENSEE TO THE EXTENT PROHIBITED OR UNENFORCEABLE BY LAW WITH RESPECT TO SUCH LICENSEE.
12. Disclaimers.
THE APPLICATION IS PROVIDED ON AN “AS IS” BASIS. YOU UNDERSTAND AND AGREE THAT TWLOHA HAS NOT MADE AND DOES NOT MAKE ANY REPRESENTATIONS ABOUT THE RESULTS YOU MAY ACHIEVE BY DOWNLOADING OR USING THIS APPLICATION.
TWLOHA AND ITS AFFILIATES, OFFICERS, DIRECTORS, TRUSTEES, AGENTS AND EMPLOYEES DO NOT MAKE ANY REPRESENTATIONS OR WARRANTIES AS TO THE APPLICATION, THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE APPLICATION, THE ACCURACY OR RELIABILITY OF THE APPLICATION OR THE CONTENT PROVIDED BY TWLOHA OR ANY THIRD PARTY ON THE APPLICATION, THE ABILITY TO INSTALL, DOWNLOAD, ACCESS OR USE THE APPLICATION OR THE USE OR ACCESS OF THE LICENSEE CONTENT OR THE SUGGESTIONS OR ALL OTHER CONTENT AND INFORMATION ON THE APPLICATION PROVIDED BY TWLOHA OR ANY THIRD PARTY. TO THE MAXIMUM EXTENT NOT PROHIBITED BY APPLICABLE LAW, TWLOHA AND ITS AFFILIATES, OFFICERS, DIRECTORS, TRUSTEES, AGENTS AND EMPLOYEES SPECIFICALLY DISCLAIM ALL WARRANTIES, CONDITIONS, GUARANTEES OR REPRESENTATIONS AS TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED IN LAW OR IN FACT, ORAL OR IN WRITING, WITH RESPECT TO THE APPLICATION, THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE APPLICATION, THE ACCURACY OR RELIABILITY OF THE APPLICATION OR THE CONTENT PROVIDED BY TWLOHA OR ANY THIRD PARTY ON THE APPLICATION, THE ABILITY TO INSTALL, DOWNLOAD, ACCESS OR USE THE APPLICATION OR THE USE OR ACCESS OF THE LICENSEE CONTENT OR THE SUGGESTIONS OR ALL OTHER CONTENT AND INFORMATION ON THE APPLICATION PROVIDED BY TWLOHA OR ANY THIRD PARTY.
TWLOHA MAKES NO REPRESENTATION OR WARRANTIES OF ANY KIND WHATSOEVER WITH RESPECT TO THE APPLICATION, OR THE CONTENT, OR FUNCTIONS, OR FOR ANY BREACH OF SECURITY ASSOCIATED WITH THE TRANSMISSION OR STORING OF PERSONALLY IDENTIFIABLE INFORMATION THROUGH USE OF THE APPLICATION. NO ORAL OR WRITTEN INFORMATION OR COMMUNICATIONS PROVIDED BY TWLOHA, ITS EMPLOYEES OR AGENTS OR REPRESENTATIVES WILL AFFECT THE ABOVE DISCLAIMERS OR CREATE ANY NEW OR ADDITIONAL WARRANTIES.
TO THE MAXIMUM EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL TWLOHA AND ITS AFFILIATES, OFFICERS, DIRECTORS, TRUSTEES, AGENTS AND EMPLOYEES BE LIABLE FOR ANY DAMAGES SUFFERED OR INCURRED BY LICENSEE OR ANY THIRD PARTIES ARISING OUT OF ANY FAULTS, INTERRUPTIONS, DELAYS, INACCURACIES, ERRORS, DELETIONS OR OMISSIONS IN CONNECTION WITH THE APPLICATION, THE ABILITY TO INSTALL, ACCESS, DOWNLOAD OR USE THE APPLICATION, OR TO USE OR ACCESS THE LICENSEE CONTENT OR THE SUGGESTIONS OR ALL OTHER CONTENT AND INFORMATION ON THE APPLICATION PROVIDED BY TWLOHA OR ANY THIRD PARTY. TWLOHA AND ITS AFFILIATES, OFFICERS, DIRECTORS, TRUSTEES, AGENTS AND EMPLOYEES ARE NOT RESPONSIBLE OR LIABLE FOR THE DELETION, CORRECTION, DESTRUCTION, DAMAGE, LOSS OF OR FAILURE TO STORE ANY AND ALL LICENSEE CONTENT AND SUGGESTIONS.
TO THE MAXIMUM EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL TWLOHA AND ITS AFFILIATES, OFFICERS, DIRECTORS, TRUSTEES, AGENTS AND EMPLOYEES BE LIABLE FOR ANY DAMAGES SUFFERED OR INCURRED BY LICENSEE OR ANY THIRD PARTIES ARISING OUT OF THE USE AND DISCLOSURE OF THE LICENSEE CONTENT.
YOU ARE RESPONSIBLE FOR YOUR OWN PHYSICAL, MENTAL AND EMOTIONAL WELL-BEING, DECISIONS, CHOICES, ACTIONS AND RESULTS. THIS APPLICATION DOES NOT PROVIDE ANY DIRECT MENTAL HEALTH OR PSYCHOLOGICAL SERVICES OR ADVICE, NOR FINANCIAL, LEGAL OR MEDICAL SERVICES. THIS APPLICATION IS NOT A HEALTHCARE OR MEDICAL DEVICE PROVIDER, NOR SHOULD THE APPLICATION, OR ANY INFORMATION AVAILABLE ON THE APPLICATION, BE CONSIDERED MEDICAL ADVICE. NONE OF THE CONTENT ON THIS APPLICATION PREVENTS, CURES OR TREATS ANY MENTAL OR MEDICAL CONDITIONS. TWLOHA MAKES NO CLAIMS, REPRESENTATIONS OR GUARANTEES THAT THIS APPLICATION PROVIDES A THERAPEUTIC BENEFIT. ANY HEALTH INFORMATION AND LINKS AVAILABLE THROUGH THE APPLICATION, WHETHER PROVIDED BY TWLOHA OR FROM OUTSIDE PROVIDERS, IS PROVIDED SIMPLY FOR YOUR CONVENIENCE. ANY INFORMATION PROVIDED IN THE APPLICATION IS INTENDED FOR GENERAL INFORMATION PURPOSES ONLY AND IS NOT INTENDED TO BE RELIED UPON. USE OF THIS APPLICATION IS NOT A SUBSTITUTE FOR PROFESSIONAL MEDICAL ADVICE BASED ON YOUR INDIVIDUAL CONDITION AND CIRCUMSTANCES. THE MATERIALS AND TOOLS MADE AVAILABLE THROUGH THIS APPLICATION ARE INTENDED TO SUPPORT THE RELATIONSHIP BETWEEN YOU AND YOUR HEALTHCARE PROVIDERS – NOT REPLACE IT. TO THE FULLEST EXTENT PERMITTED BY LAW, TWLOHA MAKES NO REPRESENTATION OR WARRANTIES ABOUT THE ACCURACY, COMPLETENESS, OR SUITABILITY FOR ANY PURPOSE OF THE TOOLS OR INFORMATION PUBLISHED AS PART OF THE APPLICATION. USERS WITH EXISTING MENTAL HEALTH CONDITIONS SHOULD SPEAK WITH THEIR HEALTH CARE PROVIDERS BEFORE USING THIS APPLICATION.
13. Indemnification.
Licensee shall indemnify and hold harmless TWLOHA, and its affiliates, officers, directors, trustees, agents and employees with respect to any claim, demand, cause of action, liabilities, damages, awards, settlements, losses, and expenses (including, without limitation, reasonable attorneys’ fees and costs of investigation) of whatever kind, including without limitation, any tort or defamation claims for libel or slander and/or claims for violation of a third party’s privacy rights, arising out of or relating to Licensee’s use of the Application, the Licensee Content or the Suggestions provided by Licensee, or Licensee’s breach of any of the terms of this Agreement or the Privacy Policy.
14. General.
14.1 Governing Law; Limitation on Actions.
This Agreement and all disputes arising out of or relating to this Agreement, the Application, the Licensee Content, the Suggestions and the Privacy Policy, including without limitation tort claims, shall be interpreted, construed and enforced in all respects in accordance with the United States federal laws with respect to intellectual property rights, and with respect to all other claims, with the laws of the State of New Jersey, without regard to principles of conflict of laws. The Parties agree that the United Nations Convention for the International Sale of Goods shall not apply or govern this Agreement. The parties agree that all disputes and claims arising out of or relating to this Agreement, the Application, the Suggestions and/or the Privacy Policy shall be resolved exclusively by final and binding arbitration under the Comprehensive Arbitration Rules and Procedures of JAMS.
No action hereunder, regardless of form, may be brought by Licensee more than one year after the event claimed to have given rise to the claim.
14.2 Notices.
Notices will be deemed effective hereunder if in writing, delivered in person, or by email, certified or registered mail, or by FedEx or similar private mail service, and addressed to TWLOHA at its above address and to Licensee at the email address that Licensee provides to TWLOHA (or to such successor addresses as the parties may identify by providing notice in accordance with this Section). Licensee can also contact TWLOHA with respect to questions about the Application or this Agreement by emailing TWLOHA at [email protected].
14.3 Assignments.
This Agreement shall be binding upon and inure to the benefit of the parties and their affiliates, legal representatives, successors and permitted assigns. Neither party shall assign or transfer this Agreement or the obligations under this Agreement without the written consent of the other party, except that TWLOHA may assign or transfer this Agreement in connection with a sale, transfer or assignment of the Application or the merger, acquisition or sale of substantially all of the assets of TWLOHA. Any assignment or transfer in violation of this Section shall be null and void.
14.4 Independent Contractors.
The parties to this Agreement are independent contractors. Neither party is an agent, representative or partner of the other party. Neither party shall have any right, power or authority to enter into any agreement for, or on behalf of, or incur any obligation or liability of, or to otherwise bind, the other party. This Agreement shall not be interpreted or construed to create an association, agency, joint venture or partnership between the parties or to impose any liability attributable to such a relationship upon either party.
14.5 Amendments, Waivers, Entire Agreement.
Any waiver of this Agreement by TWLOHA must be in writing and executed by TWLOHA to be effective. The failure of Licensee at any time or times to require full performance of any provision hereof will in no manner affect the right of TWLOHA at a later time to enforce the same. This Agreement and the Privacy Policy constitute the entire agreement between the parties with respect to this Agreement, the Privacy Policy and the Application and supersedes all prior understandings between the parties, written or oral, with respect to the subject matter of this Agreement.
14.6 Construction; Headings.
In the event that any provision of this Agreement conflicts with the law under which this Agreement is to be construed or if any such provision is held invalid by a court with jurisdiction over the parties to this Agreement, such provision shall be deemed to be restated to reflect as nearly as possible the original intentions of the parties in accordance with applicable law, and the remainder of this Agreement shall remain in full force and effect. Headings of paragraphs and sections in this Agreement are for convenience only and should not be given any interpretative effect.
14.7 Survival.
The provisions of Sections 2 through 14 of this Agreement shall survive the termination and expiration of this Agreement.
14.8 Injunctive Relief.
In the event of a violation or threatened violation of TWLOHA’s intellectual property or proprietary rights with respect to the Application, the use of the Application or the Suggestions in violation of this Agreement, TWLOHA shall have the right, in addition to such other remedies as may be available pursuant to law or this Agreement, to injunctive or declaratory relief (including, temporary and preliminary relief) without the posting of any bond. Licensee acknowledges that legal remedies for such violation or threatened violation are inadequate.
14.9 Export Laws and Other Applicable Laws.
Licensee agrees to use the Application in accordance with all applicable export and other laws, including, without limitation, all Export Administration Regulations (“EAR”) of the United States Department of Commerce. Licensee agrees that Licensee bears sole responsibility for any violation of applicable laws and regulations. Licensee certifies that License is not an individual on the List of Specially Designated Nationals or Consolidated Sanctions List administered by the US Office of Foreign Assets Control and is not on the Denied Persons List, Entity List or Unverified List administered by the Bureau of Industry and Security or any successor to any of these lists or any similar additional lists. Licensee represents and warrants that (i) Licensee 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) Licensee is not listed on any U.S. Government list of prohibited or restricted parties. If after entering into this Agreement, Licensee is placed on any such lists or is otherwise not in compliance with this Section, Licensee shall immediately notify Licensor in writing of such status and this Agreement and Licensee’s right to use the Application shall immediately terminate.
14.10 Changes to This Agreement.
Any or all of this Agreement may be changed at any time by posting on the Application and such changes can be made without notice to you. Such revised agreement shall be effective five days after it is posted on the Application. Your use of or access to our Application five days after such revised agreement is initially posted will mean you accept such changes. Therefore, each time you use or access our Application, you should review this Agreement.
We will post our revised Agreement either within our Application or elsewhere as we deem necessary and may provide you with notice of any changes by e-mail at the email address you provide to us through our Application. For this reason, you should make sure that you maintain a current email address with us.
14.11 Additional Terms with Respect to Apple Inc.
TWLOHA and Licensee acknowledge and agree as follows:
• Apple, Inc. (“Apple”) has no responsibility or liability with respect to the Application and the content thereof. Apple’s only obligation with respect to any failure of the Application to conform to any applicable warranty or any error with respect to Application is for Apple to refund the purchase price or license fee paid by Licensee for the Application (if any) to Licensee. To the maximum extent permitted by law, Apple will have no other warranty obligation, whatsoever with respect to the Application and Apple shall have no liability with respect to any claims, losses, liabilities, damages, costs or expenses attributable to any failure of the Application to conform to any warranty.
• Licensee has reviewed the Apple Store and Apple iTunes Terms of Service (including, without limitation, the Usage Rules) and agrees to be bound by and comply with such terms. The Apple device used to access the Application is owned or controlled by the Licensee.
• Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Application.
• Apple is not responsible for addressing any claims of Licensee or any third party relating to the Application or the Licensee’s possession and/or use of 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 or similar legislation.
• In the event of any third-party claim that the Application or the Licensee’s possession or use of the Application infringes a third party’s intellectual property rights, Apple will have no responsibility or liability with respect to any such claim. TWLOHA will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
• Apple and its subsidiaries and affiliates are third party beneficiaries of this Agreement and upon the Licensee’s acceptance of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against the Licensee as a third party beneficiary thereof.
Android Policy
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END USER LICENSE AGREEMENT & TERMS OF SERVICE
TWLOHA, Inc.This Agreement is effective as of: March 31, 2021
This END USER LICENSE AGREEMENT & TERMS OF SERVICE (this “Agreement”) is between TWLOHA, Inc. with a mailing address at PO Box 2203, Melbourne, Florida 32902 (“Licensor” or “TWLOHA” or “we” or “our”) and the user that downloads The Hopeful software application for use on a smartphone, tablet computer or any other hand held and/or mobile device (the “Application”) (“Licensee” or “you”). This Agreement is between TWLOHA and the Licensee and not with Google LLC or any of its affiliates (Google, LLC and its affiliates, hereinafter referred to individually and collectively, as “Google”). TWLOHA, and not Google is solely responsible for the Application and the content related thereto.
PLEASE CAREFULLY READ THIS AGREEMENT BEFORE DOWNLOADING THE APPLICATION. IT IS A BINDING CONTRACT BETWEEN YOU AND TWLOHA. BY DOWNLOADING THE APPLICATION AND/OR CLICKING ACCEPTANCE TO THIS AGREEMENT, YOU ACCEPT AND FULLY AGREE TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT AND TWLOHA’S PRIVACY POLICY (AVAILABLE AT Privacy Policy). IF YOU DO NOT FULLY AGREE, YOU MUST NOT INSTALL, ACCESS, DOWNLOAD OR USE THE APPLICATION.
BY INSTALLING, ACCESSING, DOWNLOADING OR USING THE APPLICATION, YOU REPRESENT AND WARRANT THAT: (I) YOU ARE AT LEAST EIGHTEEN (18) YEARS OLD OR YOU ARE THE AGE OF MAJORITY IN YOUR TERRITORY OF RESIDENCE IF THAT AGE IS HIGHER THAN EIGHTEEN (18) YEARS OLD OR IF YOU ARE NOT EIGHTEEN (18) YEARS OF AGE OR SUCH HIGHER AGE, THEN THE PERSON ENTERING INTO THIS AGREEMENT ON YOUR BEHALF MUST BE YOUR LEGAL GUARDIAN OR PARENT THAT HAS THE RIGHT TO ENTER INTO CONTRACTS ON YOUR BEHALF; (II) YOU HAVE READ AND UNDERSTOOD THIS AGREEMENT AND OUR PRIVACY POLICY AT Privacy Policy, AND (III) YOU HAVE AGREED TO THIS AGREEMENT.
THIS END USER LICENSE AGREEMENT & TERMS OF SERVICE, ALONG WITH OUR PRIVACY POLICY INCORPORATED HEREIN BY REFERENCE, ONLY APPLY TO THE HOPEFUL APPLICATION. OUR WEBSITE, WWW.TWLOHA.COM, HAS ITS OWN TERMS AND CONDITIONS OF USE (AVAILABLE AT HTTPS://TWLOHA.COM/TERMS-CONDITIONS/) AND PRIVACY POLICY (AVAILABLE AT HTTPS://TWLOHA.COM/PRIVACY-POLICY/), AND YOU SHOULD READ THEM BEFORE USING OUR WEBSITE OR PROVIDING INFORMATION ON OR THROUGH IT. THIRD PARTY WEBSITES, APPLICATIONS AND PROGRAMS THAT YOU MAY LINK TO THROUGH THE APPLICATION OR OUR WEBSITE MAY HAVE THEIR OWN TERMS OF USE, END USER LICENSE AGREEMENTS AND PRIVACY POLICIES WHICH APPLY TO SUCH APPLICATIONS, PROGRAMS AND WEBSITES AND YOU SHOULD READ THEM BEFORE USING SUCH APPLICATIONS, PROGRAMS AND WEBSITES OR PROVIDING INFORMATION ON OR THROUGH THEM.
The Application is for general health and wellness purposes and is not intended to be a substitute for you obtaining medical or psychological services from a licensed practitioner. The Application is not a therapeutic treatment for any physical or mental condition. TWLOHA is not monitoring the content that you provide to the Application to determine if you need treatment of any physical or mental condition.
Neither TWLOHA nor any of its personnel are licensed by any governmental authority and do not offer to engage in, or engage in the practice of medicine or any other licensed health care profession. TWLOHA does not diagnose, treat, operate or prescribe for any disease or physical or mental condition and does not offer or undertake by any means or methods to diagnose, treat, prevent, operate or prescribe for any human disease or physical or mental condition. In addition, the Application and TWLOHA do not offer or provide medical diagnostic or screening services. The Application and any statements made on TWLOHA’s website or its materials have not been evaluated by any governmental authority or the Food and Drug Administration.
1. License Grant.
Subject to the terms and conditions of this Agreement, TWLOHA grants Licensee a non-exclusive, limited, non-transferable license to use and download on Licensee’s Android devices that Licensee owns or controls, the Application and enter Licensee Content (as further defined herein) into the Application. The use and download of the Application is solely for Licensee’s personal use. Except as set forth herein, no other use, access, copying, display or distribution in any form of the Application, in whole or in part, by Licensee is permitted. For purposes of this Agreement, “Licensee Content” shall mean all data, content, comments, materials and information entered into the Application by Licensee, including comments, content and other materials that you post and/or submit to the Application.
2. Limitations and Restrictions.
You shall not (i) copy the Application, except as expressly permitted by this Agreement; (ii) modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Application; (iii) reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Application or any part thereof; (iv) remove, delete, alter, or obscure any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Application, including any copy thereof; (v) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Application, or any features or functionality of the Application, to any third party for any reason, including by making the Application available on a network where it is capable of being accessed by more than one device at any time; or (vi) remove, disable, circumvent, or otherwise create or implement any workaround to any copy protection, rights management, or security features in or protecting the Application.
While using the Application you shall not: (i) violate any federal, state and/or local laws and/or ordinances, third party rights, or our policies set forth in or on the Application; (ii) use any content, data, information, or comments posted on or derived from the Application for any commercial purposes; (iii) post false, threatening, inflammatory, harassing, abusive, inaccurate, misleading, defamatory, obscene, racially or ethnically or otherwise objectionable, libelous content and/or personal information about other individuals without such person’s permission or post content that does not generally pertain to the theme or subject matter of the Application; (iv) distribute or post spam, chain letters, or pyramid schemes on or through the Application; or (v) impair, disable or otherwise adversely affect the Application or the functionality or operation of the Application, including without limitation, distributing, submitting, posting or uploading any materials that contain or distribute viruses or disabling code, files, programs or any other technologies that may harm TWLOHA, the Application or any other Application user.
In addition, you shall not (i) harvest or otherwise collect or develop any content, information or data from (a) information, data, comments or content provided on the Application including any data, content, comments, materials or information provided by third parties or other users of the Application, unless expressly authorized to do so in writing by an officer of TWLOHA, or (b) information with respect to any other Application users, including names and email addresses; (ii) provide any links or frames to or of any content on the Application without TWLOHA’s express written consent; (iii) use any spiders, automated programs, scripts, robots, software or any similar devices that obtain, copy or link, data, comments, content or information on the Application or with respect to the Application’s users, or affect the operation of the Application or (iv) attempt to identify or identify the names or identities of any other users of the Application (other than any users that publicly identify themselves as users of the Application).
3. Ownership and Responsibility for Licensee Content.
3.1 Licensee’s Ownership
Licensee acknowledges that Licensee is solely responsible for the Licensee Content (including, without limitation, its accuracy, quality, legality, and reliability) and Licensee’s use of the Application. Licensee is the owner of the Licensee Content and TWLOHA has no ownership rights with respect to the Licensee Content. Licensee shall not submit or post any Licensee Content protected by copyright or other intellectual property rights without the express permission of the owner of such content. By submitting or posting Licensee Content, Licensee warrants and represents that Licensee has the right to submit and post such Licensee Content through use of the Application.
Licensee represents and warrants that Licensee owns or otherwise controls all of the rights to any Licensee Content, that the Licensee Content are original works, and that the public posting and other public or private use of the Licensee Content will not infringe upon the privacy rights, intellectual property or other proprietary rights of any third party. Licensee acknowledges that Licensee is not entitled now, or in the future, to any compensation for any Licensee Content, and Licensee and Licensee’s heirs, legal representatives and permitted assigns hereby waive the benefits of any provisions of law with respect to moral rights or any similar laws. Licensee and Licensee’s heirs, designated recipients, legal representatives and permitted assigns hereby waive any and all rights and remedies Licensee may have against TWLOHA and its affiliates, officers, directors, trustees, agents and employees from any and all claims, demands, actions, causes of action, damages, obligations, losses and expenses of whatever kind, including without limitation, any tort or defamation claims for libel or slander and/or claims for violation of a third party’s privacy rights, relating to providing, transmitting or entering the Licensee Content into the Application, or TWLOHA’s or its affiliates’ receiving, evaluating, and utilizing the Licensee Content.
3.2 TWLOHA’s Ownership
TWLOHA shall own all right, title and interest, including all related intellectual property rights, in and to the Application, and any reviews, suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Licensee relating to the Application (the “Suggestions”). All Suggestions shall be considered “works made for hire” under United States and international copyright laws and shall be the sole property of TWLOHA. Licensee hereby agrees to assign and does hereby assign fully to TWLOHA all such Suggestions, all of Licensee’s interest in and to the Suggestions, and any copyrights, patents, trademarks or other intellectual property rights relating thereto. Licensee hereby waives, and agrees not to assert, any and all moral rights that Licensee may have in and to the Suggestions created by Licensee. The provisions of this Section shall be binding upon Licensee, Licensee’s heirs, legal representatives, and permitted assigns.
This Agreement does not convey to Licensee any rights of ownership in or related to the Application. TWLOHA’s name, trademarks, service marks, logos, and the names, trademarks, service marks and logos associated with the Application are trademarks and service marks of TWLOHA or third parties. TWLOHA owns all proprietary rights, including, without limitation, patent, copyright, trade secret and trademark rights to the Application and any modifications, enhancements and derivatives to the Application. Licensee acknowledges that Licensee is granted only a limited right of use of the Application, which right of use is not coupled with an interest and is revocable in accordance with the terms of this Agreement. Licensee agrees not to assert any ownership interest in the Application, the Suggestions or any software used in connection with producing or providing the Application. Licensee agrees that the Application embodies valuable, confidential and trade secret information of TWLOHA.
4. Passwords.
Licensee agrees to accept all responsibility for all activities that occur under Licensee’s account and password(s). Licensee shall use best efforts to maintain the security of Licensee’s account information and password(s). Licensee agrees to immediately notify TWLOHA of any unauthorized use of Licensee’s password(s) or account or any other breach of security or confidentiality thereof, and in such event TWLOHA shall have the right, without limitation of any other rights under this Agreement, at law or in equity, to immediately suspend or terminate any such account or this Agreement.
5. Collection and Use of Information
You acknowledge that when you download, install, or use the Application, we may use automatic means (including, for example, cookies) to collect information about your mobile device and about your use of the Application. You also may be required to provide certain information about yourself as a condition to downloading, installing, or using the Application or certain of its features or functionality, and the Application may provide you with opportunities to share information about yourself with others. All information we collect through or in connection with this Application is subject to our Privacy Policy available at Privacy Policy. By downloading, installing, using, and/or providing information to or through this Application, you consent to all actions taken by us with respect to your information in compliance with the Privacy Policy.
6. Content and Services.
The Application may provide you with access to our website located at www.twloha.com (the “Website”) and products and services accessible thereon, and certain features, functionality, and content accessible on or through the Application may be hosted on the Website (collectively, “Content and Services”). Your access to and use of such Content and Services are governed by the Website’s Terms of Use, located at HYPERLINK “https://twloha.com/terms-conditions/” https://twloha.com/terms-conditions/, and Privacy Policy, located at https://twloha.com/privacy-policy/, which are incorporated herein by this reference. Any violation of such Terms of Use or Privacy Policy will also be deemed a violation of this Agreement.
7. License to Use Licensee Content.
Licensee grants to Licensor and its affiliates the worldwide, perpetual, royalty-free, irrevocable, non-exclusive right to reproduce, publish, and display Licensee Content on the Application.
8. Withdrawal of the Application.
TWLOHA has the right in its sole discretion to terminate and cease Licensee’s use of and access to the Application at any time for any reason and with or without prior notification to Licensee, including without limitation, if Licensee breaches any of the terms of this Agreement or the Privacy Policy. Should such termination occur, all rights granted to Licensee under this Agreement shall cease, and Licensee shall promptly delete the Application from all devices and cease using the Application.
9. Confidentiality of Licensee Content.
Licensee Content shall be provided at Licensee’s own risk. No Licensee Content, regardless of how it may be marked shall be considered confidential nor shall any Licensee Content be subject to any express or implied obligation of confidentiality. Notwithstanding the foregoing, Licensor is bound by the Privacy Policy and Licensee shall only use the Licensee Content in connection with providing the Application as permitted by this Agreement and the Privacy Policy. TWLOHA and its affiliates shall not be liable for any use or disclosure of any Licensee Content by any third party, including other Application users.
10. No Assurance of Availability.
TWLOHA’s performance under the Agreement, and the Application’s operation is subject to interruption and delay without liability due to causes beyond its reasonable control, such as acts of God, acts of any government, war or other hostility, civil disorder, the elements, fire, explosion, power failure, equipment failure, epidemics, pandemics, industrial or labor dispute, inability to obtain necessary supplies and the like. TWLOHA is not liable to Licensee or any third party for damages arising from such unavailability and the time for performance of such obligation shall be extended for a period equal to the duration of the contingency that occasioned the delay, interruption or prevention.
11. Limitation of Liability.
TO THE MAXIMUM EXTENT NOT PROHIBITED BY APPLICABLE LAW, IN NO EVENT SHALL TWLOHA OR ANY OF ITS AFFILIATES, OFFICERS, DIRECTORS, TRUSTEES, AGENTS AND/OR EMPLOYEES BE LIABLE TO LICENSEE OR TO ANY THIRD PARTY FOR ANY SPECIAL, INDIRECT, PUNITIVE, CONSEQUENTIAL, INCIDENTAL, OR INDIRECT DAMAGES, INCLUDING WITHOUT LIMITATION, ANY TORT OR DEFAMATION CLAIMS FOR LIBEL OR SLANDER AND/OR CLAIMS FOR VIOLATION OF A THIRD PARTY’S PRIVACY RIGHTS, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY ARISING OUT OF THIS AGREEMENT, THE PRIVACY POLICY FOR THE APPLICATION, THE APPLICATION ITSELF, THE USE OR ACCESS OF THE APPLICATION, THE USE OR ACCESS OF THE LICENSEE CONTENT OR THE SUGGESTIONS AND ALL OTHER CONTENT AND INFORMATION ON THE APPLICATION PROVIDED BY TWLOHA OR ANY THIRD PARTY, WHETHER OR NOT ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. TO THE MAXIMUM EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL TWLOHA OR ANY OF ITS AFFILIATES, OFFICERS, DIRECTORS, TRUSTEES, AGENTS AND EMPLOYEES HAVE ANY LIABILITY OF ANY KIND WITH RESPECT TO THIS AGREEMENT, THE PRIVACY POLICY FOR THE APPLICATION, THE APPLICATION ITSELF, THE USE OR ACCESS OF THE APPLICATION, THE USE OR ACCESS OF THE LICENSEE CONTENT OR THE SUGGESTIONS OR ALL OTHER CONTENT AND INFORMATION ON THE APPLICATION PROVIDED BY TWLOHA OR ANY THIRD PARTY. TO THE MAXIMUM EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL TWLOHA’S OR ANY OF ITS AFFILIATES’, OFFICERS’, DIRECTORS’, TRUSTEES, AGENTS’ AND EMPLOYEES’ AGGREGATE LIABILITY UNDER ANY AND ALL LEGAL THEORIES WITH RESPECT TO THIS AGREEMENT, THE PRIVACY POLICY, THE APPLICATION, THE USE OR ACCESS OF THE APPLICATION, THE USE OR ACCESS OF THE LICENSEE CONTENT OR THE SUGGESTIONS OR ALL OTHER CONTENT AND INFORMATION ON THE APPLICATION PROVIDED BY TWLOHA OR ANY THIRD PARTY BE IN EXCESS OF TEN DOLLARS ($10.00).
THE LIMITATION OF LIABILITY SET FORTH IN THIS SECTION SHALL NOT APPLY TO ANY LICENSEE TO THE EXTENT PROHIBITED OR UNENFORCEABLE BY LAW WITH RESPECT TO SUCH LICENSEE.
12. Disclaimers.
THE APPLICATION IS PROVIDED ON AN “AS IS” BASIS. YOU UNDERSTAND AND AGREE THAT TWLOHA HAS NOT MADE AND DOES NOT MAKE ANY REPRESENTATIONS ABOUT THE RESULTS YOU MAY ACHIEVE BY DOWNLOADING OR USING THIS APPLICATION.
TWLOHA AND ITS AFFILIATES, OFFICERS, DIRECTORS, TRUSTEES, AGENTS AND EMPLOYEES DO NOT MAKE ANY REPRESENTATIONS OR WARRANTIES AS TO THE APPLICATION, THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE APPLICATION, THE ACCURACY OR RELIABILITY OF THE APPLICATION OR THE CONTENT PROVIDED BY TWLOHA OR ANY THIRD PARTY ON THE APPLICATION, THE ABILITY TO INSTALL, DOWNLOAD, ACCESS OR USE THE APPLICATION OR THE USE OR ACCESS OF THE LICENSEE CONTENT OR THE SUGGESTIONS OR ALL OTHER CONTENT AND INFORMATION ON THE APPLICATION PROVIDED BY TWLOHA OR ANY THIRD PARTY. TO THE MAXIMUM EXTENT NOT PROHIBITED BY APPLICABLE LAW, TWLOHA AND ITS AFFILIATES, OFFICERS, DIRECTORS, TRUSTEES, AGENTS AND EMPLOYEES SPECIFICALLY DISCLAIM ALL WARRANTIES, CONDITIONS, GUARANTEES OR REPRESENTATIONS AS TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED IN LAW OR IN FACT, ORAL OR IN WRITING, WITH RESPECT TO THE APPLICATION, THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE APPLICATION, THE ACCURACY OR RELIABILITY OF THE APPLICATION OR THE CONTENT PROVIDED BY TWLOHA OR ANY THIRD PARTY ON THE APPLICATION, THE ABILITY TO INSTALL, DOWNLOAD, ACCESS OR USE THE APPLICATION OR THE USE OR ACCESS OF THE LICENSEE CONTENT OR THE SUGGESTIONS OR ALL OTHER CONTENT AND INFORMATION ON THE APPLICATION PROVIDED BY TWLOHA OR ANY THIRD PARTY.
TWLOHA MAKES NO REPRESENTATION OR WARRANTIES OF ANY KIND WHATSOEVER WITH RESPECT TO THE APPLICATION, OR THE CONTENT, OR FUNCTIONS, OR FOR ANY BREACH OF SECURITY ASSOCIATED WITH THE TRANSMISSION OR STORING OF PERSONALLY IDENTIFIABLE INFORMATION THROUGH USE OF THE APPLICATION. NO ORAL OR WRITTEN INFORMATION OR COMMUNICATIONS PROVIDED BY TWLOHA, ITS EMPLOYEES OR AGENTS OR REPRESENTATIVES WILL AFFECT THE ABOVE DISCLAIMERS OR CREATE ANY NEW OR ADDITIONAL WARRANTIES.
TO THE MAXIMUM EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL TWLOHA AND ITS AFFILIATES, OFFICERS, DIRECTORS, TRUSTEES, AGENTS AND EMPLOYEES BE LIABLE FOR ANY DAMAGES SUFFERED OR INCURRED BY LICENSEE OR ANY THIRD PARTIES ARISING OUT OF ANY FAULTS, INTERRUPTIONS, DELAYS, INACCURACIES, ERRORS, DELETIONS OR OMISSIONS IN CONNECTION WITH THE APPLICATION, THE ABILITY TO INSTALL, ACCESS, DOWNLOAD OR USE THE APPLICATION, OR TO USE OR ACCESS THE LICENSEE CONTENT OR THE SUGGESTIONS OR ALL OTHER CONTENT AND INFORMATION ON THE APPLICATION PROVIDED BY TWLOHA OR ANY THIRD PARTY. TWLOHA AND ITS AFFILIATES, OFFICERS, DIRECTORS, TRUSTEES, AGENTS AND EMPLOYEES ARE NOT RESPONSIBLE OR LIABLE FOR THE DELETION, CORRECTION, DESTRUCTION, DAMAGE, LOSS OF OR FAILURE TO STORE ANY AND ALL LICENSEE CONTENT AND SUGGESTIONS.
TO THE MAXIMUM EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL TWLOHA AND ITS AFFILIATES, OFFICERS, DIRECTORS, TRUSTEES, AGENTS AND EMPLOYEES BE LIABLE FOR ANY DAMAGES SUFFERED OR INCURRED BY LICENSEE OR ANY THIRD PARTIES ARISING OUT OF THE USE AND DISCLOSURE OF THE LICENSEE CONTENT.
YOU ARE RESPONSIBLE FOR YOUR OWN PHYSICAL, MENTAL AND EMOTIONAL WELL-BEING, DECISIONS, CHOICES, ACTIONS AND RESULTS. THIS APPLICATION DOES NOT PROVIDE ANY DIRECT MENTAL HEALTH OR PSYCHOLOGICAL SERVICES OR ADVICE, NOR FINANCIAL, LEGAL OR MEDICAL SERVICES. THIS APPLICATION IS NOT A HEALTHCARE OR MEDICAL DEVICE PROVIDER, NOR SHOULD THE APPLICATION, OR ANY INFORMATION AVAILABLE ON THE APPLICATION, BE CONSIDERED MEDICAL ADVICE. NONE OF THE CONTENT ON THIS APPLICATION PREVENTS, CURES OR TREATS ANY MENTAL OR MEDICAL CONDITIONS. TWLOHA MAKES NO CLAIMS, REPRESENTATIONS OR GUARANTEES THAT THIS APPLICATION PROVIDES A THERAPEUTIC BENEFIT. ANY HEALTH INFORMATION AND LINKS AVAILABLE THROUGH THE APPLICATION, WHETHER PROVIDED BY TWLOHA OR FROM OUTSIDE PROVIDERS, IS PROVIDED SIMPLY FOR YOUR CONVENIENCE. ANY INFORMATION PROVIDED IN THE APPLICATION IS INTENDED FOR GENERAL INFORMATION PURPOSES ONLY AND IS NOT INTENDED TO BE RELIED UPON. USE OF THIS APPLICATION IS NOT A SUBSTITUTE FOR PROFESSIONAL MEDICAL ADVICE BASED ON YOUR INDIVIDUAL CONDITION AND CIRCUMSTANCES. THE MATERIALS AND TOOLS MADE AVAILABLE THROUGH THIS APPLICATION ARE INTENDED TO SUPPORT THE RELATIONSHIP BETWEEN YOU AND YOUR HEALTHCARE PROVIDERS – NOT REPLACE IT. TO THE FULLEST EXTENT PERMITTED BY LAW, TWLOHA MAKES NO REPRESENTATION OR WARRANTIES ABOUT THE ACCURACY, COMPLETENESS, OR SUITABILITY FOR ANY PURPOSE OF THE TOOLS OR INFORMATION PUBLISHED AS PART OF THE APPLICATION. USERS WITH EXISTING MENTAL HEALTH CONDITIONS SHOULD SPEAK WITH THEIR HEALTH CARE PROVIDERS BEFORE USING THIS APPLICATION.
13. Indemnification.
Licensee shall indemnify and hold harmless TWLOHA, and its affiliates, officers, directors, trustees, agents and employees with respect to any claim, demand, cause of action, liabilities, damages, awards, settlements, losses, and expenses (including, without limitation, reasonable attorneys’ fees and costs of investigation) of whatever kind, including without limitation, any tort or defamation claims for libel or slander and/or claims for violation of a third party’s privacy rights, arising out of or relating to Licensee’s use of the Application, the Licensee Content or the Suggestions provided by Licensee, or Licensee’s breach of any of the terms of this Agreement or the Privacy Policy.
14. General.
14.1 Governing Law; Limitation on Actions.
This Agreement and all disputes arising out of or relating to this Agreement, the Application, the Licensee Content, the Suggestions and the Privacy Policy, including without limitation tort claims, shall be interpreted, construed and enforced in all respects in accordance with the United States federal laws with respect to intellectual property rights, and with respect to all other claims, with the laws of the State of New Jersey, without regard to principles of conflict of laws. The Parties agree that the United Nations Convention for the International Sale of Goods shall not apply or govern this Agreement. The parties agree that all disputes and claims arising out of or relating to this Agreement, the Application, the Suggestions and/or the Privacy Policy shall be resolved exclusively by final and binding arbitration under the Comprehensive Arbitration Rules and Procedures of JAMS.
No action hereunder, regardless of form, may be brought by Licensee more than one year after the event claimed to have given rise to the claim.
14.2 Notices.
Notices will be deemed effective hereunder if in writing, delivered in person, or by email, certified or registered mail, or by FedEx or similar private mail service, and addressed to TWLOHA at its above address and to Licensee at the email address that Licensee provides to TWLOHA (or to such successor addresses as the parties may identify by providing notice in accordance with this Section). Licensee can also contact TWLOHA with respect to questions about the Application or this Agreement by emailing TWLOHA at [email protected].
14.3 Assignments.
This Agreement shall be binding upon and inure to the benefit of the parties and their affiliates, legal representatives, successors and permitted assigns. Neither party shall assign or transfer this Agreement or the obligations under this Agreement without the written consent of the other party, except that TWLOHA may assign or transfer this Agreement in connection with a sale, transfer or assignment of the Application or the merger, acquisition or sale of substantially all of the assets of TWLOHA. Any assignment or transfer in violation of this Section shall be null and void.
14.4 Independent Contractors.
The parties to this Agreement are independent contractors. Neither party is an agent, representative or partner of the other party. Neither party shall have any right, power or authority to enter into any agreement for, or on behalf of, or incur any obligation or liability of, or to otherwise bind, the other party. This Agreement shall not be interpreted or construed to create an association, agency, joint venture or partnership between the parties or to impose any liability attributable to such a relationship upon either party.
14.5 Amendments, Waivers, Entire Agreement.
Any waiver of this Agreement by TWLOHA must be in writing and executed by TWLOHA to be effective. The failure of Licensee at any time or times to require full performance of any provision hereof will in no manner affect the right of TWLOHA at a later time to enforce the same. This Agreement and the Privacy Policy constitute the entire agreement between the parties with respect to this Agreement, the Privacy Policy and the Application and supersedes all prior understandings between the parties, written or oral, with respect to the subject matter of this Agreement.
14.6 Construction; Headings.
In the event that any provision of this Agreement conflicts with the law under which this Agreement is to be construed or if any such provision is held invalid by a court with jurisdiction over the parties to this Agreement, such provision shall be deemed to be restated to reflect as nearly as possible the original intentions of the parties in accordance with applicable law, and the remainder of this Agreement shall remain in full force and effect. Headings of paragraphs and sections in this Agreement are for convenience only and should not be given any interpretative effect.
14.7 Survival.
The provisions of Sections 2 through 14 of this Agreement shall survive the termination and expiration of this Agreement.
14.8 Injunctive Relief.
In the event of a violation or threatened violation of TWLOHA’s intellectual property or proprietary rights with respect to the Application, the use of the Application or the Suggestions in violation of this Agreement, TWLOHA shall have the right, in addition to such other remedies as may be available pursuant to law or this Agreement, to injunctive or declaratory relief (including, temporary and preliminary relief) without the posting of any bond. Licensee acknowledges that legal remedies for such violation or threatened violation are inadequate.
14.9 Export Laws and Other Applicable Laws.
Licensee agrees to use the Application in accordance with all applicable export and other laws, including, without limitation, all Export Administration Regulations (“EAR”) of the United States Department of Commerce. Licensee agrees that Licensee bears sole responsibility for any violation of applicable laws and regulations. Licensee certifies that License is not an individual on the List of Specially Designated Nationals or Consolidated Sanctions List administered by the US Office of Foreign Assets Control and is not on the Denied Persons List, Entity List or Unverified List administered by the Bureau of Industry and Security or any successor to any of these lists or any similar additional lists. Licensee represents and warrants that (i) Licensee 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) Licensee is not listed on any U.S. Government list of prohibited or restricted parties. If after entering into this Agreement, Licensee is placed on any such lists or is otherwise not in compliance with this Section, Licensee shall immediately notify Licensor in writing of such status and this Agreement and Licensee’s right to use the Application shall immediately terminate.
14.10 Changes to This Agreement.
Any or all of this Agreement may be changed at any time by posting on the Application and such changes can be made without notice to you. Such revised agreement shall be effective five days after it is posted on the Application. Your use of or access to our Application five days after such revised agreement is initially posted will mean you accept such changes. Therefore, each time you use or access our Application, you should review this Agreement.
We will post our revised Agreement either within our Application or elsewhere as we deem necessary and may provide you with notice of any changes by e-mail at the email address you provide to us through our Application. For this reason, you should make sure that you maintain a current email address with us.
14.11 Additional Terms with Respect to Google
TWLOHA and Licensee acknowledge and agree as follows:
• Google has no responsibility or liability with respect to the Application and the content thereof. Google’s only obligation with respect to any failure of the Application to conform to any applicable warranty or any error with respect to Application is for Google to refund the purchase price or license fee paid by Licensee for the Application (if any) to Licensee. To the maximum extent permitted by law, Google will have no other warranty obligation, whatsoever with respect to the Application and Google shall have no liability with respect to any claims, losses, liabilities, damages, costs or expenses attributable to any failure of the Application to conform to any warranty.
• Google Play is owned and operated by Google. Licensee’s use of Google Play is governed by a legal agreement between Licensee and Google consisting of the Google Terms of Service and the Google Play Terms of Services. If there is any conflict between the Google Play Terms of Service and the Google Terms of Service, the Google Play Terms of Service shall govern and control. Licensee has reviewed the Google Terms of Service and the Google Play Terms of Service and agrees to be bound by and comply with such terms.
• In order to innovate and improve Google Play, Google may collect certain usage statistics from the Application, Google Play and Android devices, including but not limited to, information on how the Application, Google Play and Android devices are being used. Google’s privacy policies available at HYPERLINK “http://policies.google.com/privacy” http://policies.google.com/privacy explain how Google treats personal data and protects privacy when using Google Play.
• The Android device used to access the Application is owned or controlled by the Licensee.
• Google has no obligation whatsoever to furnish any maintenance and support services with respect to the Application.
• Google is not responsible for addressing any claims of Licensee or any third party relating to the Application or the Licensee’s possession and/or use of 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 or similar legislation.
• Google, your device manufacturer or your network service provider, may, at any time, and without notice, restrict, interrupt or prevent use of the Application, or delete the Application from your Android devices, or require TWLOHA to do any of the foregoing, without entitling Licensee to any compensation.
• In the event of any third-party claim that the Application or the Licensee’s possession or use of the Application infringes a third party’s intellectual property rights, Google will have no responsibility or liability with respect to any such claim. TWLOHA will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
• Google and its subsidiaries and affiliates are third party beneficiaries of this Agreement and upon the Licensee’s acceptance of this Agreement, Google and its subsidiaries and affiliates will have the right (and will be deemed to have accepted the right) to enforce this Agreement against the Licensee as a third party beneficiary thereof.
