May 26, 2017
FOR USE WITH iPHONE AND ANDROIDS
THIS AGREEMENT IS BETWEEN YOU AND ENER.CO LLC (“ENER.CO”), NOT APPLE, INC. (“APPLE”) OR OTHER VENDORS. ENER.CO IS SOLELY RESPONSIBLE FOR THE CONTENT OF THIS AGREEMENT. TO THE EXTENT, IF ANY, THAT THIS AGREEMENT CONTAINS ANY REPRESENTATIONS OR WARRANTIES, SUCH REPRESENTATIONS OR WARRANTIES ARE MADE BY ENER.CO AND NOT BY APPLE.
LICENSE AND SCOPE OF USE
The Application is licensed not sold, to You by ENER.CO and it’s subject to the terms and conditions of this Agreement, by which ENER.CO grants you a limited, non-transferable, irrevocable license to view, use and download a single copy of the Application for your informational, personal, non-commercial use (the “License”) on any iOS device and Androids that you own or control and as permitted by the Usage Rules set forth in the Apple App Store Terms and Conditions (the “Usage Rules”) and any other vendors. The License does not allow you to use the Application on any iOS device that you do not own or control, and you may not distribute or make the Application available over a network where it could be used by multiple devices at the same time. You may not rent, lease, lend, sell, redistribute or sublicense the Application. You may not copy (except as expressly permitted, if at all, by this Agreement and the Usage Rules), decompile, reverse engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the Application, any updates, or any part thereof (except as and only to the extent any foregoing restriction is prohibited by applicable law). Any attempt to do so is a violation of the rights of ENER.CO or its licensors. All rights not specifically and expressly granted under the License are reserved by ENER.CO.
ENER.CO may terminate, change, suspend, or discontinue any aspect of the Application, including the availability of any features of the Application, at any time and in ENER.CO’s sole discretion.
COMPLIANCE WITH LAWS
You agree to comply with all laws, rules and regulations applicable to your use of the Application. In addition, you represent and warrant that (i) 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 (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
INTELLECTUAL PROPERTY RIGHTS
YOU acknowledge and agree that the application and all copyrights, patents, trademarks, trade secrets and other intellectual property right associated herewith are the exclusive property of ENER.CO, its affiliates or third-party licensors. You are not granted any intellectual property rights in or to the Application by implication, estoppel or other legal theories, and all rights in or to the Application not expressly granted are hereby reserved and retained by ENER.CO.
This Agreement does not authorize you to use any Ener.co or Enercoat trademarks in any advertising, publicity or in any other commercial manner without the prior written consent of ENER.CO, which consent may be withheld in its sole discretion. Unauthorized use of any ENER.CO trademarks Mark may be a violation of federal and state trademark laws.
The Application is protected by U.S. copyright laws and international treaties. All materials contained in the Application are the copyrighted property of ENER.CO or its affiliates or third-party licensors. You may not use, modify, reproduce, distribute, transmit, republish or display the content, design or layout of the Application, or any components thereof, without the express written permission of ENER.CO.
LINKS TO THIRD PARTY WEBSITES
The Application contains links to other websites that provide services related to the Application or that you may find useful and informative. Also, the Application may utilize social networking sites. These other websites are not under the control of ENER.CO, and You acknowledge and agree that ENER.CO is not responsible for the accuracy, copyright compliance, legality, decency, or any other aspect of such websites, and the ENER.CO does not endorse any of the contents of the other websites. It is understood that You access and use those other websites at Your sole discretion and risk.
USER CONTENT ON THE APPLICATION
You understand that all information, data, or other materials that are posted on or transmitted in connection with the Application by you or another user (“User Content”) are the sole responsibility of the person from whom such User Content originated. This means that you, and not ENER.CO, are responsible for all User Content that you upload, post, email, transmit or otherwise make available in connection with the Application. ENER.CO does not control the User Content posted and, as such, does not guarantee the accuracy, integrity or quality of such User Content. You understand that by using the Application, you may be exposed to User Content that is offensive, indecent or objectionable. Under no circumstances will ENER.CO be liable in any way for any User Content, including, but not limited to, for any errors or omissions in any User Content, or for any loss or damage of any kind incurred as a result of the use of any User Content posted, emailed, transmitted or otherwise made available in connection with the Application.
REGISTRATION AND PASSWORDS
The Application may permit or require you to register or obtain a password prior to permitting access to certain products or services available through the Application. You acknowledge and agree that you are responsible for maintaining the confidentiality of your registration information and password, and for all uses of your password.
DISCLAIMER OF WARRANTIES
YOU acknowledge and agree that THE APPLICATION AND ALL MATERIALS, INFORMATION, SOFTWARE, PRODUCTS, AND SERVICES INCLUDED IN OR AVAILABLE THROUGH THE APPLICATION ARE PROVIDED “AS IS” AND “AS AVAILABLE” FOR YOUR USE. THE APPLICATION AND ALL MATERIALS, INFORMATION, SOFTWARE, PRODUCTS, AND SERVICES INCLUDED IN OR AVAILABLE THROUGH THE APPLICATION ARE PROVIDED WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT. ENER.CO AND ITS AFFILIATES DO NOT WARRANT THAT THE MATERIALS, INFORMATION, SOFTWARE, PRODUCTS, AND SERVICES INCLUDED IN OR AVAILABLE THROUGH THE APPLICATION ARE ACCURATE, RELIABLE OR CORRECT; THAT THE APPLICATION WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT THE APPLICATION IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOUR USE OF THE APPLICATION IS AT YOUR SOLE RISK. BECAUSE SOME JURISDICTIONS DO NOT PERMIT THE EXCLUSION OF CERTAIN WARRANTIES, THESE EXCLUSIONS MAY NOT APPLY TO YOU.
LIMITATION OF LIABILITY
UNDER NO CIRCUMSTANCES SHALL ENER.CO OR ITS AFFILIATES BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF, OR INABILITY TO USE, THE APPLICATION. THIS LIMITATION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR OTHER LEGAL THEORY, EVEN IF ENER.CO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN THE EVENT SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, ENER.CO’S LIABILITY IN SUCH JURISDICTIONS SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW. TO THE EXTENT, IF ANY, THAT YOU MAKE ANY CLAIM WITH REGARD TO THE APPLICATION OR YOUR USE OF THE APPLICATION, SUCH CLAIM SHALL BE MADE AGAINST ENER.CO AND NOT AGAINST APPLE.
You agree to defend, indemnify and hold harmless ENER.CO, its affiliates, and their respective employees, contractors, agents, officers, and directors from all liabilities, claims, and expenses (including reasonable attorneys’ fees) that arise out of or are related to any User Content you submit, post, transmit or make available through the Application, your violation of this Agreement, or your violation of any third party rights.
CHOICE OF LAW AND JURISDICTION
This Agreement shall be governed by the laws of the State of New York without regard to the conflicts of laws rules of any jurisdiction. Every dispute concerning the interpretation or effect of this Agreement and/or your use of the Application must be resolved in the state or federal courts situated in the State of New York. You agree to the personal jurisdiction, subject matter jurisdiction, and venue of these courts.
You acknowledge that any breach or threatened breach of this Agreement will result in irreparable harm for which damages would not be an adequate remedy, and, therefore, in addition to its rights and remedies otherwise available at law, ENER.CO shall be entitled to seek immediate equitable relief, including injunctive relief, as appropriate. If ENER.CO seeks any equitable remedies, it shall not be precluded or prevented from seeking remedies at law, nor shall it be deemed to have made an election of remedies. In addition to any other relief, the prevailing party in any action arising out of this Agreement shall be entitled to attorneys’ fees and costs.
If any provision of this Agreement is held unenforceable or invalid under any applicable law or is so held by applicable court decision, such unenforceability or invalidity will not render this Agreement unenforceable or invalid as a whole, and such provision will be changed and interpreted so as to best accomplish the objectives of such unenforceable or invalid provision within the limits of applicable law or the applicable court decisions.
Any waiver by ENER.CO of a breach of any provision of this Agreement shall not operate as or be construed to be a waiver of any other breach of such provision or of any breach of any other provision of this Agreement. Any waiver must be in writing. Failure by ENER.CO to insist upon strict adherence to any term of this Agreement on one or more occasions shall not be considered a waiver or deprive ENER.CO of the right to insist upon strict adherence to that term or any other term of this Agreement.
ENER.CO reserves the right, in its sole discretion, to terminate your access to all or part of the Application, with or without notice, for any reason or no reason, including without limitation your violation of this Agreement.
THIRD PARTY BENEFICIARY
You and ENER.CO acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of this Agreement, and that, upon your acceptance of the terms and conditions of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third party beneficiary hereof.
If you have any questions about this Agreement, you can contact us as follows:
You can send your request for information to the following email address: email@example.com You can send your request for information to the following postal address: Ener.co, LLC. 151 West 19th Street 3rd floor, NY 10011 – Attn: Customer Service.
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