Mobile applications (“Apps”) made available by Orchard Labs Inc. with a place of business at 1139 College Street, Toronto, ON, M6H1B5 (“Orchard” or “Licensor”) through the Apple App Store, Google Play Store or any other app store are licensed, not sold, to you. Your license to each App is subject to your prior acceptance of this end user license agreement (“EULA”). The Licensor reserves all rights in and to the App not expressly granted to you under this EULA.
a.Scope of License: Licensor grants to you a nontransferable license to use the App on any mobile device products that you own or control. The terms of this EULA will govern any content, materials, or services accessible from or purchased within the App as well as upgrades provided by Licensor that replace or supplement the original App. You may not distribute or make the App available over a network where it could be used by multiple devices at the same time. You may not transfer, redistribute or sublicense the App. You may not copy, decompile, decrypt, reverse-engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the App, any updates, or any part thereof (except as and only to the extent that any foregoing restriction is prohibited by applicable law or to the extent as may be permitted by the licensing terms governing use of any open-sourced components included with the App).
b. Consent to Use of Data: You agree that Licensor may collect and use diagnostic and technical data and related information—including but not limited to technical information about your device, system and application software, and peripherals—that is gathered periodically to assess your device, communicate such information to your employer and such other third parties whom you agree to share that data with, facilitate the provision of software updates, product support, and other services to you (if any) related to the App. Licensor may use this information, to provide services or technologies to you and other and, as long as it is in a form that does not personally identify you, to improve its products.
c. Termination: This EULA is effective until terminated by you or Licensor. Your rights under this Standard EULA will terminate automatically if you fail to comply with any of its terms. The restrictions under section (a) of this EULA will survive such termination.
d. External Services:The App may enable access to Licensor’s and/or third-party services and websites (collectively and individually, "External Services"). You agree to use the External Services at your sole risk. Licensor 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. To the extent you choose to use such External Services, you are solely responsible for compliance with any applicable laws. Licensor 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.
e. NO WARRANTY: YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE APP IS AT YOUR SOLE RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE APP AND ANY SERVICES PERFORMED OR PROVIDED BY THE APP ARE PROVIDED "AS IS" AND “AS AVAILABLE,” WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND LICENSOR HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE APP AND ANY SERVICES, EITHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, AND OF NONINFRINGEMENT OF THIRD-PARTY RIGHTS. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY LICENSOR OR ITS AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. SHOULD THE APP OR SERVICES PROVE DEFECTIVE, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR, OR CORRECTION. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO YOU.
f. Limitation of Liability.TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL LICENSOR BE LIABLE FOR PERSONAL INJURY OR ANY INCIDENTAL, SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION, OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OF OR INABILITY TO USE THE APP, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT, OR OTHERWISE) AND EVEN IF LICENSOR 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 Licensor’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.
g. Export.You may not use or otherwise export or re-export the App except as authorized by United States law and the laws of the jurisdiction in which the App was obtained. In particular, but without limitation, the App may not be exported or re-exported (a) into any U.S.-embargoed countries or (b) to anyone on the U.S. Treasury Department's Specially Designated Nationals List or the U.S. Department of Commerce Denied Persons List or Entity List. By using the App, you represent and warrant that you are not located in any such country or on any such list. You also agree that you will not use these products for any purposes prohibited by United States law, including, without limitation, the development, design, manufacture, or production of nuclear, missile, or chemical or biological weapons.
h. Governing law.This Agreement and the relationship between you and Orchard shall be governed by the laws of (i) the Province of Ontario, Canada, if you are resident anywhere in the world outside of the USA; or (ii) theStateofCaliforniaif you are resident in the USA, in each case excluding its conflicts of law provisions. You and Orchard agree to submit to the personal and exclusive jurisdiction of the courts located in (i) Toronto, Ontario, if you are resident anywhere in the world outside of the USA; or (ii) the county of Santa Clara, California, if you are resident in the USA, in each case to resolve any dispute or claim arising from this Agreement.
Specifically excluded from application to this Agreement is that law known as the United Nations Convention on the International Sale of Goods.