Acceptance of EULA
Subject to the terms and conditions of this EULA, Company hereby grants to you a non-exclusive, non-transferable, revocable personal license to install the Application for your own use on a device that is supported by the Application and that you own or control until this license is terminated by you or Company. Your rights under this EULA will terminate automatically if you fail to comply with any of its terms. Title, ownership and all rights (including without limitation intellectual property rights) in and to the Application shall remain with Company. Except for those rights expressly granted in this EULA, no other rights, whether express or implied, are granted to the Application.
You may not, and you may not authorize others to:
Transfer, redistribute, assign, sell, lease or sublicense the Application, access thereto or any data obtained through use of the Application and, if you sell or otherwise transfer your device to a third party, you must remove the Application from the device before doing so.
Distribute or make the Application available over a network where it could be used by multiple devices at the same time.
Copy (except with respect to the backup of your device), decompile, reverse-engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the Application or any part thereof (except as and only to the extent that any foregoing restriction is prohibited by Applicable Law).
Use or export the Application in violation of Applicable Law, any third party terms applicable to your use of the Application (e.g., your wireless data service agreement, Apple terms and conditions) or this EULA.
This EULA will remain in full force and effect while you use the Application. We may revise and update this EULA from time to time in our sole discretion. All changes are effective immediately when we post them and apply to all access to and use of the Application thereafter. Your continued use of the Application following the posting of revised EULA means that you accept and agree to the changes.
Company may change, suspend, or discontinue any aspect of the Application including, without limitation, the availability of any Application feature, support, data or content, or may charge a fee for all or part of the Application, at any time, without prior notice or liability to you. Company may also impose limits on certain Application features or restrict your access to parts or all of the Application without notice or liability. If Company charges a fee in connection with the Application or any portion thereof, you will not be entitled to a refund of any unused portion of such fees or other payments if Company suspends or terminates your account, and/or access to the Application (or any portion of the Application), due to your breach of this EULA or violation of Applicable Law, as determined by Company, in its sole discretion.
Consent to Use of Information
YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE APPLICATION IS AT YOUR SOLE RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE APPLICATION AND ANY SERVICES PERFORMED OR PROVIDED BY THE APPLICATION ARE PROVIDED "AS IS" AND "AS AVAILABLE," WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND COMPANY HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE APPLICATION AND ANY SERVICES, EITHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, AND OF NONINFRINGEMENT OF THIRD-PARTY RIGHTS. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY COMPANY OR ITS AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. SHOULD THE APPLICATION OR SERVICES PROVE DEFECTIVE, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR, OR CORRECTION. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO YOU. YOU ACKNOWLEDGE AND AGREE THAT NEITHER COMPANY NOR APPLE, ANDROID OR ANY OTHER PLATFORM THROUGH WHICH YOU OBTAIN THE APPLICATION HAS ANY OBLIGATION TO PROVIDE YOU WITH SUPPORT OR MAINTENANCE SERVICES WITH RESPECT TO THE APPLICATION. DATA DISPLAYED BY OR THROUGH THE APPLICATION, INCLUDING, WITHOUT LIMITATION, FINANCIAL, MEDICAL AND LOCATION INFORMATION, IS FOR GENERAL INFORMATIONAL PURPOSES ONLY AND IS NOT GUARANTEED BY COMPANY OR ITS AGENTS.
THE APPLICATION MAY ENABLE ACCESS TO COMPANY’S AND/OR THIRD-PARTY SERVICES AND WEBSITES (COLLECTIVELY AND INDIVIDUALLY, “EXTERNAL SERVICES”). YOU AGREE TO USE THE EXTERNAL SERVICES AT YOUR SOLE RISK. COMPANY IS NOT RESPONSIBLE FOR EXAMINING OR EVALUATING THE CONTENT OR ACCURACY OF ANY THIRD-PARTY EXTERNAL SERVICES AND SHALL NOT BE LIABLE FOR ANY SUCH THIRD-PARTY EXTERNAL SERVICES. YOU WILL NOT USE THE EXTERNAL SERVICES IN ANY MANNER THAT IS INCONSISTENT WITH THE TERMS OF THIS EULA OR THAT INFRINGES THE INTELLECTUAL PROPERTY RIGHTS OF COMPANY OR ANY THIRD PARTY. YOU AGREE NOT TO USE THE EXTERNAL SERVICES TO HARASS, ABUSE, STALK, THREATEN OR DEFAME ANY PERSON OR ENTITY, AND THAT COMPANY IS NOT RESPONSIBLE FOR ANY SUCH USE. EXTERNAL SERVICES MAY NOT BE AVAILABLE IN ALL LANGUAGES OR IN YOUR LOCATION, AND MAY NOT BE APPROPRIATE OR AVAILABLE FOR USE IN ANY PARTICULAR LOCATION. TO THE EXTENT YOU CHOOSE TO USE SUCH EXTERNAL SERVICES, YOU ARE SOLELY RESPONSIBLE FOR COMPLIANCE WITH ANY APPLICABLE LAWS. COMPANY RESERVES THE RIGHT TO CHANGE, SUSPEND, REMOVE, DISABLE OR IMPOSE ACCESS RESTRICTIONS OR LIMITS ON ANY EXTERNAL SERVICES AT ANY TIME WITHOUT NOTICE OR LIABILITY TO YOU.
Limitation of Liability
TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL COMPANY, ITS AFFILIATES, RELATED PARTIES, ITS ADVERTISERS OR SPONSORS OR THE PLATFORM THROUGH WHICH YOU OBTAIN THE APPLICATION, OR THEIR RESPECTIVE LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS OR DIRECTORS (THE “COMPANY PARTIES”) BE LIABLE FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH YOUR USE, OR INABILITY TO USE, THE APPLICATION (INCLUDING, ANY CONTENT, DATA, SERVICES OR ITEMS OBTAINED THROUGH THE APPLICATION), INCLUDING, WITHOUT LIMITATION, ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR PERSONAL INJURY 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 OF OR INABILITY TO USE THE APPLICATION, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT, OR OTHERWISE) AND EVEN IF COMPANY 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 COMPANY’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 FIFTY DOLLARS ($50.00). THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
You agree to defend, indemnify and hold harmless the Company and the Company Parties, and its and their respective officers, directors, employees, contractors, agents, licensors, suppliers, successors and assigns from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses or fees (including reasonable attorneys’ fees) arising out of or relating to your violation of this EULA or your use of the Application.
The Company and you agree that any Dispute (as defined below) between you and the Company, regarding any aspect of your relationship with the Company, will be resolved in a binding, confidential, individual and fair arbitration process, and not in court. Each of you and the Company agrees to give up the right to sue in court. The term “Dispute” is to be given the broadest possible meaning that will be enforced, and shall include any dispute, claim, demand, count, cause of action, or controversy between you and the Company, whether based in contract, statute, regulation, ordinance, tort (including, but not limited to, fraud, misrepresentation, fraudulent inducement, negligence, or any other intentional tort), or any other legal or equitable theory. The term “Dispute” specifically includes, but is not limited to, any and all claims between you and the Company in any way related to or concerning this Arbitration Agreement, any other aspect of this EULA (including their applicability and their conformance to applicable law), any products or services provided by the Company, any billing disputes, and any disputes relating to telephonic, text message, or any other communications either of us received from the other. The only exceptions to this Arbitration Agreement are that (i) each of you and the Company retains the right to sue in small claims court and (ii) each of you and the Company may bring suit in court against the other to enjoin infringement or other misuse of intellectual property rights. Disputes over whether these exceptions apply shall be resolved by the court in which such action has been brought; all other disputes over arbitrability shall be resolved by the arbitrator. Each of you and the Company also agrees to give up the ability to seek to represent, in a class action or otherwise, anyone but each of you and the Company (see paragraph 6 below). There is no judge or jury in arbitration, and court review of an arbitration award is limited. An arbitrator must follow this EULA. The arbitrator, however, can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief, or statutory damages). This EULA evidences a transaction in interstate commerce, and thus the Federal Arbitration Act, 9 U.S.C. §§ 1-16, governs the interpretation and enforcement of this Arbitration Agreement. This Arbitration Agreement shall survive termination of this EULA.
Any arbitration between you and the Company will be conducted by the Judicial Arbitration and Mediation Services, Inc. (“JAMS”), pursuant to the JAMS Streamlined Arbitration Rules & Procedures effective July 1, 2014 (the “JAMS Rules”), as modified by this Arbitration Agreement. The arbitration shall be conducted by a single, neutral arbitrator, and if you and the Company cannot agree on who that single arbitrator will be, the arbitrator will be appointed pursuant to the JAMS Rules, with the participation and involvement of the Company and you pursuant to JAMS Rule 12. The JAMS Rules are available on its website at http://www.jamsadr.com/rules-streamlined-arbitration/. The Consumer Arbitration Minimum Standards are available at http://www.jamsadr.com/consumer-arbitration/. The arbitrator is bound by the terms of this EULA. If either you or the Company wants to arbitrate a claim, you or the Company must first send by mail to the other a written Notice of Dispute (“Notice”) that sets forth the name, address, and contact information of the party giving notice, the specific facts giving rise to the Dispute, the Company Service to which the Notice relates, and the relief requested. Your Notice to the Company must be sent by mail to Arbitration Notice of Dispute, [64 Knightsbridge, London, SW1X 7JF email: info@muzeitcom]. The Company will send any Notice to you at the contact information we have for you or that you provide. It is the sender’s responsibility to ensure that the recipient receives the Notice. During the first 45 days after you or we send a Notice to the other, you and we may try to reach a settlement of the Dispute. If you and we do not resolve the Dispute within 45 days, either you or we may initiate arbitration in accordance with the JAMS Rules. Further instructions on submitting a Demand for Arbitration may be found at http://www.jamsadr.com/files/Uploads/Documents/JAMS_Arbitration_Demand.pdf. In addition to filing this Demand for Arbitration with JAMS in accordance with its rules and procedures, you must send a copy of this completed Demand for Arbitration to the Company at the address listed above to which you sent your Notice of Dispute.
You and the Company acknowledge and agree to abide by the following rules for arbitration: (a) YOU AND COMPANY MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, REPRESENTATIVE OR MULTI-CLAIMANT PROCEEDING, AND THE ARBITRATOR SHALL HAVE NO POWER TO AWARD CLASS-WIDE RELIEF; (b) the Company will pay arbitration costs as required by the JAMS Consumer Arbitration Minimum Standards and consistent with paragraph 6 below; (c) the arbitrator may award any individual relief or individual remedies that are permitted by applicable law; and (d) each side pays his, her or its own attorneys’ fees, except as otherwise provided in paragraph 5 below. JAMS charges filing and other fees to conduct arbitrations. Ordinarily, the claimant has to pay the filing fee to initiate arbitration, but if you wish to commence an arbitration against the Company, you and the Company acknowledge and agree to abide by the following: (a) If you are seeking to recover less than $10,000 (inclusive of attorneys’ fees), the Company will pay the filing fee on your behalf or reimburse your payment of it; (b) If you are seeking to recover $10,000 or more, you will have to pay the filing fee charged by JAMS, but the Company will reimburse the filing fee if you prevail on all claims decided upon by the arbitrator; (c) the Company and you agree that, if the claims to be arbitrated total less than $10,000 (inclusive of attorneys’ fees), the claim ordinarily should be decided on written submissions only, without a telephonic or in-person hearing. The Company will not request a hearing for any claims totaling less than $10,000. This provision shall not be construed by the arbitrator to deprive you of any rights you may have to a telephonic or in-person hearing in your hometown area pursuant to the JAMS Rules; and (d) the Company and you agree that, if the claims to be arbitrated total $10,000 or more, the arbitration will occur in a manner and place consistent with the JAMS Rules.
Regardless of how the arbitration proceeds, each of you and the Company shall cooperate in good faith in the exchange of non-privileged documents and information as necessary in accordance with the JAMS Rules, and the arbitrator shall issue a reasoned written decision sufficient to explain his or her findings and conclusions.
Each of you and the Company may incur attorneys’ fees during the arbitration. Each side agrees to pay his, her or its own attorneys' fees unless the claim(s) at issue permit the prevailing party to be paid its attorneys' fees, and in such instance, the fees awarded shall be determined by the applicable law(s). In addition to whatever rights you may have to recover your attorneys’ fees under applicable law, if you prevail in the arbitration, and if the Company failed to make a settlement offer to you before the arbitration or the amount you win is at least 25% greater than the Company’s highest settlement offer, then the Company will pay your reasonable attorneys’ fees in addition to the amount the arbitrator awarded. If the Company wins the arbitration, you will be responsible for your own attorneys’ fees. In addition, if the arbitrator, at the request of the winning party, finds that the losing party brought a claim or asserted a defense frivolously or for an improper purpose, then regardless of the amount in dispute, the arbitrator must order the losing party to pay both sides’ arbitration fees and may order the losing party to pay the winning party’s reasonable attorneys’ fees, unless such an award of fees is prohibited by Applicable Law.
The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party's individual claim. The arbitrator may not order the Company to pay any monies to or take any actions with respect to persons other than you, unless the Company explicitly consents in advance, after an arbitrator is selected, to permit the arbitrator to enter such an order. Further, unless the Company expressly agrees, the arbitrator may not consolidate other persons’ claims with yours and may not otherwise preside over any form of a representative, multi-claimant or class proceeding.
You and the Company agree to maintain the confidential nature of the arbitration proceeding and shall not disclose the fact of the arbitration, any documents exchanged as part of any mediation, proceedings of the arbitration, the arbitrator’s decision and the existence or amount of any award, except as may be necessary to prepare for or conduct the arbitration (in which case anyone becoming privy to confidential information must undertake to preserve its confidentiality), or except as may be necessary in connection with a court application for a provisional remedy, a judicial challenge to an award or its enforcement, or unless otherwise required by law or court order.
With the exception of subpart (a) in paragraph (3) (i.e., the waiver of the ability to proceed on behalf of multiple claimants or a purported class), if any part of this Arbitration Agreement is deemed invalid, unenforceable, or illegal, then the balance of this Arbitration Agreement shall remain in effect and be construed in accordance with its terms as if the invalid, unenforceable, or illegal provision were not contained. If, however, subpart (a) in paragraph (3) is found invalid, unenforceable or illegal, then the entirety of this Arbitration Agreement shall be null and void, but the rest of this EULA, including the provisions governing where actions against the Company must be pursued, the choice of governing law, and our mutual waiver of the right to a trial by jury, will remain in effect and apply to any claim that, for this or any other reason, proceeds in court rather than in arbitration.
Use of the Application and any controversy, claim or dispute arising out of or relating in any way to your use of the Application, this EULA and/or services or products purchased through the Application shall be governed by the laws of the state of New York without respect to its choice (or conflict) of laws rules. Any claim or cause of action you may have with respect to the Company or the Application must be commenced within one (1) year after the claim or cause of action arose. Jurisdiction and venue for any dispute shall be in New York, New York. Each party submits to personal jurisdiction and venue in that forum for any and all purposes. BOTH YOU AND THE COMPANY WAIVE THE RIGHT TO BRING ANY CONTROVERSY, CLAIM OR DISPUTE ARISING OUT OF OR RELATING IN ANY WAY TO YOUR USE OF THE APPLICATION OR PURCHASES THROUGH THE APPLICATION AS A CLASS, CONSOLIDATED, REPRESENTATIVE, COLLECTIVE, OR PRIVATE ATTORNEY GENERAL ACTION, OR TO PARTICIPATE IN A CLASS, CONSOLIDATED, REPRESENTATIVE, COLLECTIVE, OR PRIVATE ATTORNEY GENERAL ACTION REGARDING ANY SUCH CLAIM BROUGHT BY ANYONE ELSE.
Software available in connection with the Application (the “Software”) is further subject to United States export controls. No Software may be downloaded from the Application or otherwise exported or re-exported in violation of U.S. export laws. Downloading or using the Software is at your sole risk. You may not use or otherwise export or re-export the Application except as authorized by United States law and the laws of the jurisdiction in which the Application was obtained. In particular, but without limitation, the Application 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 Specially Designated Nationals List or the U.S. Department of Commerce Denied Persons List or Entity List. By using the Application, you represent and warrant that you are not located in any such country or on any such list.
Government End Users
If the Application is supplied to or purchased by or on behalf of the United States Government, then the Application 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. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. All other terms and conditions of this EULA apply.
Third Party Beneficiaries
If you have obtained the Application on an Apple device, Apple and Apple’s subsidiaries are third party beneficiaries of this EULA and have the right (and will be deemed to have accepted the right) to enforce this EULA against you as a third party beneficiary thereof. Notwithstanding the foregoing, Apple is not responsible for addressing your end user or any third party claims relating to the Application. In the event of a failure of the Application to conform to any applicable warranty, your sole remedy is to notify Apple and Apple will refund the purchase price for the Application (if any); and to the maximum extent permitted by Applicable Law, Apple will have no other warranty obligation whatsoever with respect to the Application. Except for with respect to Company Parties (as applicable) and as otherwise expressly stated herein, this EULA is for the sole benefit of the parties hereto and not for the benefit of any third party.
Intellectual Property Rights
Complete Agreement; Conflict