END USER LICENSE AGREEMENT AND TERMS OF SERVICE
Effective Date: 23rd of october, 2017
This End User License Agreement and Terms of Service (this "EULA") is a binding contract between you, an individual user ("you"), and Vitus Animal Health Inc. ("Vitus," "we," "us" or "our"), governing your use of the mobile software applications that Vitus has made available for download (each, an "App," and collectively, the "Apps") the Vitus website located at www.vitusvet.com (and all related subdomains), and any other online properties owned or controlled by Vitus (together with the Apps, the "Service"). Notwithstanding the foregoing, and for clarity, this EULA does not govern your access to our online platform for pet medical record management ("SaaS Platform"), which will be governed by a separate agreement with Vitus (each, a "Subscription Agreement").BY INSTALLING ANY APP OR OTHERWISE ACCESSING OR USING ANY PORTION OF THE SERVICE, YOU AGREE THAT YOU HAVE READ, UNDERSTOOD AND AGREE TO BE BOUND BY THIS EULA.� IF YOU DO NOT AGREE TO THE TERMS OF THIS EULA, YOU MAY NOT USE ANY PORTION OF THE SERVICE. �
Material Terms: As provided in greater detail in this EULA (and without limiting the express language of this EULA), you acknowledge the following:
� the Service is licensed, not sold to you, and you may use the Service only as set forth in this EULA;
� the use of the Service may be subject to separate third party terms of service and fees, including, without limitation, your mobile network operator's (the "Carrier") terms of service and fees, including fees charged for data usage and overage, which are your sole responsibility;
� we provide the Apps to you on an "as is" basis without warranties of any kind and Vitus's liability to you is limited;
� disputes arising between you and Vitus will be resolved by binding arbitration. By accepting this EULA, as provided in greater detail in Section 10 below, you and Vitus are each waiving the right to a trial by jury or to participate in a class action; and���������
� you agree to and acknowledge the "Notice Regarding Apple" below.
1. General Terms and Conditions.
a. Consideration. We provide all users of the Service ("Users") with access to the publicly accessible portions of the Service free of charge, but certain Users must purchase access to additional features and functionalities as further described in Section 2.a below. In return for enjoying free or paid-for access to the Service, you acknowledge and agree that Vitus may generate revenues, increase goodwill or otherwise increase the value of Vitus from your use of the Service, and you will have no right to share in any such revenue, goodwill or value whatsoever.�
b. Changes to this EULA. You understand and agree that we may change this EULA at any time without prior notice; provided that we will endeavor to provide you with prior notice of any material changes that may apply to you, including through the posting of a revised EULA that you may be required to accept in order to continue using the Service. You may read a current, effective copy of this EULA at any time by selecting the appropriate link on the Service. The revised EULA will become effective at the time of posting unless specified otherwise. Any use of the Service after the effective date will constitute your acceptance of such revised EULA. If you find any change to this EULA or the Service unacceptable, then your sole remedy is to stop accessing, browsing and otherwise using the Service. The terms of this EULA will govern any updates Vitus provides to you that replace and/or supplement any portion of the Service, unless the upgrade is accompanied by a separate license or revised EULA, in which case the terms of that license or revised EULA will govern. Notwithstanding the preceding sentences of this Section 1.b, no revisions to this EULA will apply to any dispute between you and Vitus that arose prior to the effective date of such revision.
d. Jurisdictional Issues.� The Service is controlled and operated by Vitus from its offices in the State of Maryland. Vitus makes no representation that materials on the Service are appropriate, lawful or available for use in any locations other than the United States of America. Those who choose to access or use the Service from locations outside the United States of America, do so on their own initiative and are responsible for compliance with local laws, if and to the extent local laws are applicable. Access to the Service from jurisdictions where the contents or practices of the Service are illegal, unauthorized or penalized is strictly prohibited.
e. Eligibility. THE SERVICE IS NOT FOR PERSONS UNDER THE AGE OF 13 OR FOR ANY USERS PREVIOUSLY SUSPENDED OR REMOVED FROM THE SERVICE BY VITUS. IF YOU ARE UNDER 13 YEARS OF AGE, THEN YOU MUST NOT USE OR ACCESS THE SERVICE AT ANY TIME OR IN ANY MANNER. Furthermore, by accessing or using the Service, you affirm that either you are at least 18 years of age or you have been authorized to use the Service by your parent or legal guardian who is at least 18 years of age. If you are accessing or using the Service on behalf of a company, then you represent and warrant that you have the authority to bind such company to this Agreement.
f. Additional Terms. We also may require you to agree to additional terms and/or policies that we make available to you from time-to-time in connection with your use of the Service ("Additional Terms"). Any such Additional Terms are hereby incorporated into and subject to this EULA, and this EULA will control in the event of any conflict or inconsistency with the Additional Terms to the extent of the conflict or inconsistency.
2. The Service.
a. Description. The publicly accessible portions of the Service provide Users with general information about our products and services. If you register an account with us on the Service (each, an "Account") as a pet owner (each such person, a "Pet Owner") and download the App for Pet Owners, then you will gain access to additional features designed to allow you to better manage and track your pet's medical records, appointments and general health needs. If you register an Account as a veterinarian (each, a "Veterinarian") and enter into a Subscription Agreement, then we will allow you to download the App for Veterinarians, which will provide you with access to additional features designed to enable you to better communicate with Pet Owners and manage your veterinary practice.
b. Mobile Services. The Service will be accessible via a mobile phone, tablet or other wireless device (collectively, "Mobile Services"). Your mobile carrier's normal messaging, data and other rates and fees will apply to your use of the Mobile Services. In addition, downloading, installing or using certain Mobile Services may be prohibited or restricted by your mobile carrier, and not all Mobile Services may work with all carriers or devices. Therefore, you are solely responsible for checking with your mobile carrier to determine if the Mobile Services are available for your mobile device(s), what restrictions, if any, may be applicable to your use of the Mobile Services, and how much they will cost you. Nevertheless, all use of the Services and the related Mobile Services must be in accordance with this EULA.
c. Messages.
i. If you send messages to others using the functionality within the App for Pet Owners, then you hereby represent and warrant that you: (A) will only send such messages to others who have given you their express consent to receive such messages: (B) will indemnify and hold Vitus harmless from any and all claims arising out of your sending such messages; and (C) are responsible for all fees and charges associated with such messages.
ii. By using the Services, you agree that Vitus and those acting on its behalf may send you text (SMS) messages at the cell phone number you provide to us. Message and data rates apply. You understand and agree that these messages may be sent using an automatic telephone dialing system, may be deemed marketing under applicable law, and that your agreement to receive text messages is not a condition of any purchase or service offered by Vitus. You may opt-out of receiving text messages at any time by replying STOP to any Vitus text you receive, or by sending an email to [email protected] indicating that you no longer wish to receive texts along with the phone number of the mobile device receiving the messages. You may continue to receive text messages for a short period while Vitus processes your request, and you may also receive text messages confirming the receipt of your opt-out request. If you change or deactivate the phone number you provided to Vitus, you must update your Account information to help prevent us from inadvertently communicating with anyone who acquires your old number.
d. Refills. The Service may provide you with a platform to communicate with your Veterinarian to order refills of your pet medications ("Refills"). Without limiting any other terms in this EULA, including, without limitation, any terms set forth in Section 11, the following terms apply with respect to such Refills:
i. Our Role. WE MERELY PROVIDE A TECHNOLOGY PLATFORM THROUGH WHICH YOU CAN COMMUNICATE WITH YOUR REFILL SUPPLIER TO PURCHASE REFILLS. WE ARE NOT IN POSSESSION OR CONTROL OF ANY REFILLS AND WE ARE NOT RESPONSIBLE FOR SHIPPING THEM TO YOU. ACCORDINGLY, WE WILL HAVE NO LIABILITY TO YOU FOR ANY PROBLEMS WITH REFILLS.
ii. Fees. We will charge you a fee using the Service to purchase Refills. The fee will be displayed to you at the time you purchase the Refill. We use third-party payment processors for processing your payments for Refill purchases, and by using their services you agree to their terms and conditions of use. We disclaim all liability with regards to any fees or problems you have with our third-party payment processors.
iii. No Warranties. We do not make any representations or warranties to you in connection with any Refills.
3. Registration.
a. Account Security. You are responsible for the security of your Account, and are fully responsible for all activities that occur through the use of your credentials. You agree to notify Vitus immediately at [email protected] if you suspect or know of any unauthorized use of your log-in credentials or any other breach of security with respect to your Account. Vitus will not be liable for any loss or damage arising from unauthorized use of your credentials prior to you notifying Vitus of such unauthorized use or loss of your credentials. Separate log-in credentials may be required to access External Sites (defined in Section 7 below).
b. Accuracy of Information. When creating an Account, you will provide true, accurate, current and complete information as Vitus requests. You will update the information about yourself promptly, and as necessary, to keep it current and accurate. We reserve the right to disallow, cancel, remove or reassign certain usernames and permalinks in appropriate circumstances, as determined by us in our sole discretion, and may, with or without prior notice, suspend or terminate your Account if activities occur on your Account which, in our sole discretion, would or might constitute a violation of this EULA, cause damage to or impair the Service, infringe or violate any third party rights, damage or bring into disrepute the reputation of Vitus, or violate any applicable laws or regulations. If messages sent to the e-mail address you provide are returned as undeliverable, then Vitus may terminate your Account immediately without notice to you and without any liability to you or any third party.
4. Intellectual Property Rights
a. License.
i. Pet Owners. If you are a Pet Owner, then subject to your complete and ongoing compliance with this EULA, Vitus hereby grants you a revocable, non-exclusive, non-transferable, non-sublicensable, royalty-free and worldwide right and license to access and use the Service solely for your personal, non-commercial use and solely in strict compliance with the provisions of this EULA.
ii. Veterinarians. If you are a Veterinarian, then subject to your complete and ongoing compliance with this EULA, Vitus hereby grants you a revocable, non-exclusive, non-transferable, non-sublicensable, royalty-free and worldwide right and license to access and use the Service solely to communicate with Pet Owners and manage your veterinary practice and solely in strict compliance with the provisions of this EULA.
b. Content. The content that Vitus provides to Users on or through the Service, including without limitation, any text, graphics, photos, software and interactive features, may be protected by copyright or other intellectual property rights and owned by Vitus or its third party licensors (collectively, the "Vitus Content"). Moreover, Vitus solely owns all design rights, databases and compilation and other intellectual property rights in and to the Service, in each case whether registered or unregistered, and any related goodwill.
c. Marks. Vitus trademarks, service marks and logos (the "Vitus Trademarks") used and displayed on the Service are Vitus's registered and unregistered trademarks or service marks. Other product and service names located on the Service may be trademarks or service marks owned by third parties (the "Third-Party Trademarks," and, collectively with Vitus Trademarks, the "Trademarks").� Except as otherwise permitted by law, you may not use the Trademarks to disparage Vitus or the applicable third-party, Vitus's or a third-party's products or services, or in any manner (using commercially reasonable judgment) that may damage any goodwill in the Trademarks. You may not use any Trademarks as part of a link to or from any Service without Vitus's prior express written consent. All goodwill generated from the use of any Vitus Trademark will inure solely to Vitus's benefit.
d. Restrictions. Vitus hereby reserves all rights not expressly granted to you in this Section 4.� Accordingly, nothing in this EULA or on the Service will be construed as granting to you, by implication, estoppel or otherwise, any additional license rights in and to the Service or any Vitus Content or Trademarks located or displayed therein.���
a. Definition. "User Content" means any content that you submit or transmit (collectively, "Post") to the Service, including, without limitation, any photographs or other works subject to protection under the laws of the United States or any other jurisdiction. For clarity, User Content excludes any Vitus Content and Feedback (defined in Section 8 below).
b. License to Vitus. If you Post User Content to the Service, then you hereby grant to Vitus a worldwide, non-exclusive, transferable, and royalty-free right and license to host, store, transmit, reproduce, disclose, distribute, create derivative works from, publicly perform and display and otherwise use and exploit your User Content, in any media now known or later created, to provide, improve, advertise, promote and market the Service and our business.
c. You Must Have Rights to the Content You Post. You represent and warrant that: (i) you own the User Content Posted by you on the Service or otherwise have the right to grant the license set forth in this EULA; (ii) the Posting of your User Content on or through the Service and the use of the same as contemplated in this EULA does not and will not violate any right of any third party; (iii) the Posting of your User Content on the Service will not require us to pay any amounts or provide any attribution to any third parties; and (iv) the Posting of your User Content on the Service does not result in a breach of contract between you and a third party.
d. Disclaimer. We are under no obligation to edit or control User Content that you Post on the Service, and will not be in any way responsible or liable for User Content. Vitus may, however, at any time and without prior notice, screen, remove, edit, or block any User Content that in our sole judgment violates this EULA or is otherwise objectionable, such as, without limitation, User Content that Vitus determines is or could be interpreted to be abusive, bigoted, defamatory, harassing, harmful, infringing, obscene, offensive, pornographic, racist, threatening, unlawful, vulgar or otherwise inappropriate (collectively, "Objectionable Content").
6. Restrictions on Use of the Service.
a. In addition to any other restrictions set forth in this EULA, and without limiting those restrictions, when using the Service, you agree not to (and not to attempt to):
i. make unauthorized copies of any content made available on or through the Service;
ii. use any device, software or routine to interfere or attempt to interfere with the proper working of the Service, or any activity conducted on the Service;
iii. attempt to decipher, decompile, disassemble or reverse engineer any of the software or source code comprising or making up the Service;
iv. delete or alter any material Vitus posts on the Service;
v. frame or link to any of the materials or information available on the Service;
vi. alter, deface, mutilate or otherwise bypass any approved software through which the Service is made available;
vii. use any trademarks, service marks, design marks, logos, photographs or other content belonging to Vitus or obtained from the Service;
viii. access, tamper with or use non-public areas of the Service, Vitus's (and its hosting company's) computer systems and infrastructure or the technical delivery systems of Vitus's providers;
ix. provide any false personal information to Vitus;
x. create a false identity or impersonate another person or entity in any way;
xi. create a new account with Vitus, without Vitus's express written consent, if Vitus has previously disabled an account of yours;
xii. restrict, discourage or inhibit any person from using the Service, or disclose personal information about a third person on the Service without the consent of that person;
xiii. gain unauthorized access to the Service, to other Users' accounts, names or personally identifiable information, or to other computers or websites connected or linked to the Service;
xiv. post any virus, worm, spyware or any other computer code, file or program that may or is intended to disable, overburden, impair, damage or hijack the operation of any hardware, software or telecommunications equipment or any other aspect of the Service or communications equipment and computers connected to the Service;
xv. interfere with or disrupt the Service, networks or servers connected to the Service or violate the regulations, policies or procedures of those networks or servers;
xvi. Post any Objectionable Content; or
xvii. violate any applicable federal, state or local laws or regulations or the terms of this EULA.
7. External Sites. The Service may contain links to or the ability to share information with third party websites ("External Sites"). Vitus does not endorse any External Sites or the content made available on such External Sites. All External Sites and any content thereon is developed and provided by others. You should contact the site administrator or Webmaster for those External Sites if you have any concerns regarding such content located on such External Sites. Vitus is not responsible for the content of any External Sites and does not make any representations regarding the content or accuracy of any materials on such External Sites. You should take precautions when downloading files from all websites to protect your computer and mobile devices from viruses and other destructive programs. If you decide to access any External Sites, purchase any content from External Sites or subscribe to services offered by such External Site, then you do so at your own risk. You agree that Vitus will have no liability to you arising from your use, engagement, exposure to or interaction with any External Sites.
8. Feedback. While we are continually working to develop and evaluate our own product ideas and features, we know we don't have all the answers. We therefore welcome your feedback, comments and suggestions.� If you choose to contribute by sending Vitus or our employees any ideas for products, services, features, modifications, enhancements, content, refinements, technologies, content offerings (such as audio, visual, games or other types of content), promotions, strategies or product/feature names or any related documentation, artwork, computer code, diagrams or other materials (collectively "Feedback"), then regardless of what your accompanying communication may say, the following terms will apply, so that future misunderstandings can be avoided.� Accordingly, by sending Feedback to Vitus, you agree that:
a. Vitus has no obligation to review, consider or implement your Feedback, or to return to you all or part of any Feedback for any reason;
b. Feedback is provided on a non-confidential basis, and Vitus is not under any obligation to keep any Feedback you send confidential or to refrain from using or disclosing it in any way; and
c. You irrevocably grant Vitus perpetual and unlimited permission to reproduce, distribute, create derivative works of, modify, publicly perform (including on a through-to-the-audience basis), communicate to the public, make available, publicly display and otherwise use and exploit the Feedback and derivatives thereof for any purpose and without restriction, free of charge and without attribution of any kind, including by making, using, selling, offering for sale, importing and promoting commercial products and services that incorporate or embody Feedback, whether in whole or in part, and whether as provided or as modified.
9. Notice and Procedure for Making Claims of Copyright or Other Intellectual Property Infringements.
a. Repeat Infringer Policy. Vitus's intellectual property policy is to (i) remove or disable access to material that Vitus believes in good faith, upon notice from an intellectual property owner or his or her agent, is infringing the intellectual property of a third party by being made available through the Service; and (ii) disable access to the Service by any User that we determine to be a repeat infringer.
b. Procedure for Reporting Claimed Infringement. If you believe that any content made available on or through the Service has been used or exploited in a manner that infringes an intellectual property right you own or control, then please promptly send a "Notification of Claimed Infringement" containing the following information to the Designated Agent identified below. Your communication must include substantially the following:
i. A physical or electronic signature of a person authorized to act on behalf of the owner of the work(s) that has/have been allegedly infringed;
ii. Identification of works or materials being infringed, or, if multiple works are covered by a single notification, then a representative list of such works;
iii. Identification of the specific material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit Vitus to locate the material;
iv. Information reasonably sufficient to permit Vitus to contact you, such as an address, telephone number and, if available, an electronic mail address at which you may be contacted;
v. A statement that you have a good faith belief that the use of the material in the manner complained of is not authorized by the copyright owner, its agent or the law; and
vi. A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
You should consult with your own lawyer and/or see 17 U.S.C. � 512 to confirm your obligations to provide a valid notice of claimed infringement.
c. Designated Agent Contact Information. Vitus's designated agent for receipt of Notifications of Claimed Infringement (the "Designated Agent") can be contacted at:
Via E-mail: [email protected]
Via U.S. Mail: 6751 Columbia Gateway Dr, Suite 301, Columbia 21046
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a. General. In the interest of resolving disputes between you and Vitus in the most expedient and cost effective manner, you and Vitus agree that any dispute arising out of or in any way related to this EULA or your use of the Service will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or in any way related to this EULA or your use of the Service, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory, and regardless of whether a claim arises during or after the termination of this EULA. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THIS EULA, YOU AND VITUS ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION AND THAT THIS AGREEMENT SHALL BE SUBJECT TO AND GOVERNED BY THE FEDERAL ARBITRATION ACT.
b. Exceptions. Notwithstanding Section 10.a above, nothing in this EULA will be deemed to waive, preclude or otherwise limit the right of either party to: (i) bring an individual action in small claims court; (ii) pursue an enforcement action through the applicable federal, state or local agency if that action is available; (iii) seek injunctive relief in aid of arbitration from a court of competent jurisdiction; or (iv) to file suit in a court of law to address an intellectual property infringement claim.
c. Arbitrator. Any arbitration between you and Vitus will be governed by the Federal Arbitration Act and the Commercial Dispute Resolution Procedures and Supplementary Procedures for Consumer Related Disputes (collectively, "AAA Rules") of the American Arbitration Association ("AAA"), as modified by this EULA, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Vitus. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability or enforceability of this binding arbitration agreement.
d. Notice; Process.� A party who intends to seek arbitration must first send a written notice of the dispute to the other party by U.S. Mail ("Notice"). Vitus's address for Notice is: 6751 Columbia Gateway Dr, Suite 301, Columbia 21046, Attn: Chief Executive Officer. The Notice must: (i) describe the nature and basis of the claim or dispute; and (ii) set forth the specific relief sought ("Demand").� The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice is received, you or Vitus may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or Vitus must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the dispute is finally resolved through arbitration in your favor with a monetary award that exceeds the last written settlement amount offered by Vitus prior to selection of an arbitrator, Vitus will pay you the highest of the following: (1) the amount awarded by the arbitrator, if any; (2) the last written settlement amount offered by Vitus in settlement of the dispute prior to the arbitrator's award; or (3) $15,000.
e. Fees. If you commence arbitration in accordance with this EULA, Vitus will reimburse you for your payment of the filing fee, unless your claim is for more than $15,000 or as set forth below, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in Frederick County, Maryland, but if the claim is for $15,000 or less, you may choose whether the arbitration will be conducted: (i) solely on the basis of documents submitted to the arbitrator; (ii) through a non-appearance based telephone hearing; or (iii) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse Vitus for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. Each party agrees that such written decision, and information exchanged during arbitration, will be kept confidential except to the extent necessary to enforce or permit limited judicial review of the award. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator's ruling on the merits. Notwithstanding anything in this EULA to the contrary, and for the avoidance of doubt, the arbitrator can award injunctive relief as a remedy in any arbitration required under this Section 10.
f. No Class Actions. YOU AND VITUS AGREE THAT EACH 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 OR REPRESENTATIVE PROCEEDING. Further, unless both you and Vitus agree otherwise, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of a representative or class proceeding.
g. Modifications to this Arbitration Provision. Except as otherwise provided in this EULA, if Vitus makes any future change to this arbitration provision, other than a change to Vitus's address for Notice, you may reject the change by sending us written notice within 30 days of the change to Vitus's address for Notice, in which case this arbitration provision, as in effect immediately prior to the changes you rejected, will continue to govern any disputes between you and Vitus.
h. Enforceability. If Section 10.f above is found to be unenforceable or if the entirety of this Section 10 is found to be unenforceable, then the entirety of this Section 10 will be null and void.
11. Limitation of Liability and Disclaimer of Warranties. THE FOLLOWING TERMS IN THIS SECTION 11 APPLY TO THE FULLEST EXTENT PERMITTED BY LAW:
a. NEITHER VITUS NOR ITS AFFILIATES (COLLECTIVELY, THE "VITUS PARTIES") MAKE ANY WARRANTIES OR REPRESENTATIONS ABOUT THE SERVICE AND ANY CONTENT AVAILABLE ON THE SERVICE, INCLUDING, BUT NOT LIMITED TO, THE ACCURACY, RELIABILITY, COMPLETENESS APPROPRIATENESS, TIMELINESS OR RELIABILITY THEREOF. THE VITUS PARTIES WILL NOT BE SUBJECT TO LIABILITY FOR THE TRUTH, ACCURACY OR COMPLETENESS OF ANY CONTENT ON THE SERVICE, OR FOR ERRORS, MISTAKES OR OMISSIONS THEREIN, OR FOR ANY DELAYS OR INTERRUPTIONS OF THE DATA, OR INFORMATION STREAM FROM WHATEVER CAUSE. AS A USER, YOU AGREE THAT YOU USE THE SERVICE AND ANY CONTENT THEREON AT YOUR OWN RISK. YOU ARE SOLELY RESPONSIBLE FOR ALL CONTENT YOU UPLOAD TO THE SERVICE.
b. THE VITUS PARTIES DO NOT WARRANT THAT THE SERVICE WILL OPERATE ERROR FREE, OR THAT THE SERVICE AND ANY CONTENT THEREON ARE FREE OF COMPUTER VIRUSES OR SIMILAR CONTAMINATION OR DESTRUCTIVE FEATURES. IF YOUR USE OF THE SERVICE OR ANY CONTENT THEREON RESULTS IN THE NEED FOR SERVICING OR REPLACING EQUIPMENT OR DATA, NO VITUS PARTY WILL BE RESPONSIBLE FOR THOSE COSTS.
c. THE SERVICE AND ALL CONTENT THEREON ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT ANY WARRANTIES OF ANY KIND.� ACCORDINGLY, THE VITUS PARTIES DISCLAIM ALL WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTIES RIGHTS AND FITNESS FOR PARTICULAR PURPOSE.
d. IN NO EVENT WILL ANY VITUS PARTY BE LIABLE FOR ANY SPECIAL, INDIRECT, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOST PROFITS OR DAMAGES RESULTING FROM LOST DATA OR BUSINESS INTERRUPTION RESULTING FROM, OR IN CONNECTION WITH, THE USE OR INABILITY TO USE THE SERVICE AND ANY CONTENT THEREON, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, EVEN IF SUCH VITUS PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. VITUS'S LIABILITY, AND THE LIABILITY OF ANY OTHER VITUS PARTIES, TO YOU OR ANY THIRD PARTIES IN ANY CIRCUMSTANCE IS LIMITED TO U.S. $100.
12. Third Party Disputes. TO THE FULLEST EXTENT PERMITTED BY LAW, ANY DISPUTE YOU HAVE WITH ANY THIRD PARTY ARISING OUT OF YOUR USE OF THE SERVICE, IS DIRECTLY BETWEEN YOU AND SUCH THIRD PARTY, AND YOU IRREVOCABLY RELEASE THE VITUS PARTIES FROM ANY AND ALL CLAIMS, DEMANDS AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES.
13. Indemnification. To the fullest extent permitted by law, you agree to defend, indemnify and hold harmless the Vitus Parties from and against any claims, actions or demands, including, without limitation, reasonable legal and accounting fees, arising or resulting from (a) your breach of this EULA; or (b) your access to, use or misuse of Vitus Content or the Service. Vitus will provide notice to you of any such claim, suit or proceeding. Vitus reserves the right to assume the exclusive defense and control of any matter which is subject to indemnification under this Section if Vitus believes that you are unwilling or incapable of defending Vitus's interests. In such case, you agree to cooperate with any reasonable requests assisting Vitus's defense of such matter at your expense.
14. Term and Termination of the EULA.
a. Term. As between you and Vitus, the term of this EULA commences as of your first use of the Service and continues until the termination of this EULA by either you or Vitus.
b. Termination. You may terminate this EULA by sending written notification to Vitus at [email protected], deleting the applicable App from your mobile device and terminating all other uses of the Service. Vitus reserves the right, in its sole discretion, to restrict, suspend or terminate this EULA and your access to all or any part of the Service at any time without prior notice or liability if you breach any provision of this EULA or violate the rights of any third party copyright owner of musical works or sound recordings. Vitus may further terminate this EULA immediately for any other reason with or without notice to you, using the email address associated with your account credentials. Vitus reserves the right to change, suspend or discontinue all or any part of the Service at any time without prior notice or liability.
15. Consent to Electronic Communications. By using the Service, you consent to receiving certain electronic communications from us as further described in the Privacy Policy. Please read the Privacy Policy to learn more about your choices regarding our electronic communications practices. You agree that any notices, agreements, disclosures or other communications that we send to you electronically will satisfy any legal communication requirements, including that such communications be in writing.
16. Miscellaneous. This EULA is governed by the internal substantive laws of the State of Maryland without respect to its conflict of laws provisions. You agree that no joint venture, partnership, employment or agency relationship exists between you and Vitus as a result of this EULA or use of the Service. If any provision of this EULA is found to be invalid by any court having competent jurisdiction, the invalidity of such provision will not affect the validity of the remaining provisions of this EULA, which will remain in full force and effect. Failure of Vitus to act on or enforce any provision of this EULA will not be construed as a waiver of that provision or any other provision in this EULA. No waiver will be effective against Vitus unless made in writing, and no such waiver will be construed as a waiver in any other or subsequent instance. This EULA constitutes the entire agreement between you and Vitus with respect to the subject matter hereof, and supersedes all previous or contemporaneous agreements, whether written or oral, between the parties with respect to the subject matter herein; provided, for clarity, that this EULA does not supersede any Subscription Agreement between you and Vitus, and any such agreement will continue in effect in accordance with its terms. The Section headings are provided merely for convenience and will not be given any legal import. This EULA will inure to the benefit of our successors and assigns. You may not assign this EULA or any of the rights or licenses granted hereunder, directly or indirectly, without the prior express written consent of Vitus.
17. Contact Us. If you would like to contact us in connection with your use of the Service, then please refer to the contact information below: by mail at 6751 Columbia Gateway Dr, Suite 301, Columbia 21046, and by email at [email protected].�
18. NOTICE REGARDING APPLE. You acknowledge that this EULA is between you and Vitus only, not with Apple, and Apple is not responsible for any App or the content thereof. Apple has no obligation whatsoever to furnish any maintenance and support services with respect to any App. In the event of any failure of any App to conform to any applicable warranty, then you may notify Apple and Apple will refund the purchase price for the relevant App to you; and, to the maximum extent permitted by applicable law, Apple has no other warranty obligation whatsoever with respect to any App. Apple is not responsible for addressing any claims by you or any third party relating to any App or your possession and/or use of any App, including, but not limited to: (1) product liability claims; (2) any claim that any App fails to conform to any applicable legal or regulatory requirement; and (3) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement and discharge of any third party claim that any App or your possession and use of any App infringes that third party's intellectual property rights. You agree to comply with any applicable third party terms, when using any App. Apple, and Apple's subsidiaries, are third party beneficiaries of this EULA, and upon your acceptance of this EULA, Apple will have the right (and will be deemed to have accepted the right) to enforce this EULA against you as a third party beneficiary of this EULA. You hereby represent and warrant that (a) you are not located in a country that is subject to a U.S.� Government embargo, or that has been designated by the U.S. Government as a "terrorist supporting" country; and (b) you are not listed on any U.S. Government list of prohibited or restricted parties. If Vitus provides a translation of the English language version of this EULA, the translation is provided solely for convenience, and the English version will prevail.
19. Open Source Software. The Apps may include the following open source software owned by third parties:
The following open source software is governed by the Apache 2.0 license:
Licensed under the Apache License, Version 2.0 (the "License"); you may not use this file except in compliance with the License. You may obtain a copy of the License at
http://www.apache.org/licenses/LICENSE-2.0
Unless required by applicable law or agreed to in writing, software distributed under the License is distributed on an "AS IS" BASIS, WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, either express or implied. See the License for the specific language governing permissions and limitations under the License.
The following open source software is governed by the MIT License:
Permission is hereby granted, free of charge, to any person obtaining a copy of this software and associated documentation files (the "Software"), to deal in the Software without restriction, including without limitation the rights to use, copy, modify, merge, publish, distribute, sublicense, and/or sell copies of the Software, and to permit persons to whom the Software is furnished to do so, subject to the following conditions:
The above copyright notice and this permission notice shall be included in all copies or substantial portions of the Software.
THE SOFTWARE IS PROVIDED "AS IS", WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. IN NO EVENT SHALL THE AUTHORS OR COPYRIGHT HOLDERS BE LIABLE FOR ANY CLAIM, DAMAGES OR OTHER LIABILITY, WHETHER IN AN ACTION OF CONTRACT, TORT OR OTHERWISE, ARISING FROM, OUT OF OR IN CONNECTION WITH THE SOFTWARE OR THE USE OR OTHER DEALINGS IN THE SOFTWARE.
The following open source software is governed by an MIT-like license:
Copyright (c) 2014-present, Facebook, Inc. All rights reserved.
You are hereby granted a non-exclusive, worldwide, royalty-free license to use, copy, modify, and distribute this software in source code or binary form for use in connection with the web services and APIs provided by Facebook.
As with any software that integrates with the Facebook platform, your use of this software is subject to the Facebook Developer Principles and Policies [http://developers.facebook.com/policy/]. This copyright notice shall be included in all copies or substantial portions of the software.
THE SOFTWARE IS PROVIDED "AS IS", WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. IN NO EVENT SHALL THE AUTHORS OR COPYRIGHT HOLDERS BE LIABLE FOR ANY CLAIM, DAMAGES OR OTHER LIABILITY, WHETHER IN AN ACTION OF CONTRACT, TORT OR OTHERWISE, ARISING FROM, OUT OF OR IN CONNECTION WITH THE SOFTWARE OR THE USE OR OTHER DEALINGS IN THE SOFTWARE.
The following open source software is governed by the BSD-3 license:
� Bolts-ObjC: Copyright (c) 2013-present, Facebook, Inc. All rights reserved.
Redistribution and use in source and binary forms, with or without modification, are permitted provided that the following conditions are met:
* Redistributions of source code must retain the above copyright notice, this list of conditions and the following disclaimer.
* Redistributions in binary form must reproduce the above copyright notice, this list of conditions and the following disclaimer in the documentation and/or other materials provided with the distribution.
* Neither the name Facebook nor the names of its contributors may be used to endorse or promote products derived from this software without specific prior written permission.
THIS SOFTWARE IS PROVIDED BY THE COPYRIGHT HOLDERS AND CONTRIBUTORS "AS IS" AND ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE DISCLAIMED. IN NO EVENT SHALL THE COPYRIGHT HOLDER OR CONTRIBUTORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; LOSS OF USE, DATA, OR PROFITS; OR BUSINESS INTERRUPTION) HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) ARISING IN ANY WAY OUT OF THE USE OF THIS SOFTWARE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.