This End User License Agreement ("Agreement") governs your download, installation and use of the mobile application (the "Licensed Application") that is provided by Whurk, Inc. ("Whurk"). This Agreement is a binding agreement between you and Whurk, and not with Apple Inc. Whurk, not Apple Inc., is solely responsible for the Licensed Application and the content thereof.
Ownership of the Licensed Application. The Licensed Application is the valuable property of Whurk and our licensors and is protected by copyright and other intellectual property laws and treaties. Whurk, and our licensors, own all right, title and interest in and to the Licensed Application, including all copyright and other intellectual property rights therein. Whurk reserves all rights not expressly granted to you.
Scope of License to the Licensed Application. The Licensed Application is licensed, not sold, to you. Subject to the terms and conditions of this Agreement, Whurk grants you a limited, non-exclusive, non-transferable license to download, install and use the Licensed Application on certain iOS products (each, a "Device") that you own or control and as permitted in the Usage Rules set forth in the App Store Terms of Service (the "Usage Rules"). The terms of this license will govern any upgrades provided by Whurk that replace or supplement the original License Application, unless an upgrade is accompanied by a separate license in which case the terms of that separate license will govern.
License Restrictions. The license granted to you in Section 2 does not allow you to do any of the following: (a) use the Licensed Application on any Device you do not own or control; (b) distribute, copy, license, rent, sell, publish, lease or otherwise transfer the Licensed Application (except as expressly permitted by this Agreement or the Usage Rules) or any proprietary materials of Whurk to any third party; (c) reverse engineer, decompile, disassemble or attempt to discover any source code or trade secrets related to the Licensed Application or any proprietary materials of Whurk; (d) modify, alter or create any derivative works of the Licensed Application or based on any proprietary materials of Whurk; (e) remove, alter, or obscure any copyright, trademark or other proprietary rights notice on or in the Licensed Application; (f) work around any technical limitations in the Licensed Application; or (g) use the Licensed Application for purposes for which it was not designed. Unless explicitly stated herein or otherwise by Whurk, nothing in this Agreement shall be construed as conferring any license to intellectual property rights, whether by estoppel, implication or otherwise. If you breach any of these restrictions, you may be subject to prosecution and damages.
Support Services. Whurk is not obligated to provide any support or maintenance services for the Licensed Application at this time. If you have any questions regarding the Licensed Application, please contact us at email@example.com. Apple Inc. has no obligation whatsoever to furnish any support or maintenance services with respect to the Licensed Application.
Product Claims. Whurk, not Apple Inc., is responsible for addressing any questions, comments or claims relating to the Licensed Application or your possession and use of the Licensed Application, including but not limited to: (a) product liability claims; (b) any claim that the Licensed Application fails to conform to the applicable legal or regulatory requirement; or (c) claims arising under consumer protection or similar legislation. If you have any questions or comments, please contact Whurk at:
Attn: [insert name and/or title]
Services; Additional Terms. The Licensed Application may enable access to services and websites provided by Whurk and third parties (collectively and individually, the "Services"). Your use of the Services may require your acceptance of, and compliance with, additional terms (collectively, "Additional Terms") provided by Whurk or such third parties.
No Warranty. YOU ACKNOWLEDGE AND AGREE THAT: (A) THE LICENSED APPLICATION AND SERVICES MAY CONTAIN BUGS, ERRORS, AND DEFECTS; (B) USE OF THE LICENSED APPLICATION AND SERVICES IS AT YOUR SOLE RISK; AND (C) THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU. ACCORDINGLY, THE LICENSED APPLICATION AND SERVICES ARE PROVIDED "AS IS," "AS AVAILABLE," WITH ALL FAULTS, DEFECTS AND ERRORS AND WITHOUT WARRANTY OF ANY KIND. WHURK DISCLAIMS ALL WARRANTIES (EXPRESS AND IMPLIED AND ARISING BY LAW OR OTHERWISE) REGARDING THE LICENSED APPLICATION AND SERVICES AND THEIR PERFORMANCE OR SUITABILITY FOR YOUR INTENDED USE, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY AND NON-INFRINGEMENT. WHURK SHALL HAVE NO LIABILITY OF ANY KIND FOR THE USE OF, OR INABILITY TO USE, THE LICENSED APPLICATION, SERVICES OR ANY SERVICE THAT THE LICENSED APPLICATION IS INTENDED TO ACCESS OR FOR ANY LOSS OF DATA. WHURK DOES NOT REPRESENT OR WARRANT THAT THE LICENSED APPLICATION OR SERVICES WILL BE DELIVERED FREE OF ANY INTERRUPTIONS, DELAYS, OMISSIONS OR ERRORS (“FAULTS”) OR IN A SECURE MANNER OR THAT ANY FAULTS WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY WHURK OR ITS AUTHORIZED REPRESENTATIVES SHALL CREATE A WARRANTY. IN THE EVENT THAT THE LICENSED APPLICATION OR SERVICES PROVE DEFECTIVE, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION.
APPLE INC. HAS NO WARRANTY OBLIGATION WHATSOEVER WITH RESPECT TO THE LICENSED APPLICATION OR SERVICES AND ANY OTHER CLAIMS, LOSSES, LIABILITIES, DAMAGES, COSTS OR EXPENSES ATTRIBUTABLE TO ANY FAILURE OF THE LICENSED APPLICATION.
The laws of some states or jurisdictions do not allow the exclusion of implied warranties. To the extent that those laws apply, the exclusions set forth above may not apply to you.
Indemnification. You agree to defend, indemnify, and hold harmless Whurk, its affiliates, independent contractors and service providers, and each of their respective members, directors, offices, employees and agents ("Representatives") from and against all claims, damages, costs, liabilities and expenses (including but not limited to reasonable attorneys' fees) arising out of or related to your use of, or inability to use, the Licensed Application and/or Services. In the event of any claim that the Licensed Application, or your possession or use thereof, or Services infringe any intellectual property rights of a third party, you agree to contact Whurk directly, and Apple Inc. will not be responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim. Whurk will, at its option and expense, terminate the license granted herein, settle or defend the claim.
Limitation of Liability. WHURK AND ITS REPRESENTATIVES SHALL HAVE NO LIABILITY (WHETHER IN CONTRACT, WARRANTY, TORT, NEGLIGENCE OR OTHERWISE) FOR ANY DAMAGES SUSTAINED BY YOU ARISING FROM YOUR USE OR INABILITY TO USE THE LICENSED APPLICATION OR SERVICES, INCLUDING WITHOUT LIMITATION ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES OR LOSS OF DATA, EVEN IF WHURK OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE EXTENT NOT PROHIBITED BY LAW, YOU CAN RECOVER ONLY DIRECT DAMAGES FOR THE GREATER OF $10.00 OR THE AMOUNT YOU PAID FOR THE LICENSED APPLICATION OR SERVICES.
No Export. You may not use or otherwise export or re-export the Licensed Application or any content contained therein, except as authorized by United States law and the laws of the jurisdiction in which the Licensed Application or any content was obtained. In particular, but without limitation, the Licensed Application and the content contained therein may not be exported or re-exported to (a) any U.S. embargoed countries, or (b) anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person's List or Entity List.
Legal Compliance. By downloading the Licensed Application, you 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. You agree to comply with all applicable laws, rules and regulations, including but not limited to U.S. export control laws.
Commercial Items. If acquired by any agency of the United States government, such agency acknowledges that: (a) the Licensed Application constitutes "commercial computer software" or "commercial computer software documentation" for purposes of 48 C.F.R. §12.212 and 48 C.F.R. §227.7202, as applicable and (b) such agency's rights are limited to those specifically granted under this Agreement.
Third-Party Beneficiaries. Apple Inc. and Apple Inc.'s subsidiaries are third-party beneficiaries of this Agreement. Upon your acceptance of this Agreement, Apple Inc. will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third-party beneficiary thereof.
Termination of the License. Any use of the Licensed Application or Services other than as specifically authorized under this Agreement or the Additional Terms, without the prior written permission of Whurk, is strictly prohibited and will terminate the license granted herein. Such unauthorized use may also violate applicable laws, including without limitation copyright and trademark laws and applicable communications regulations and statutes. The license granted under this Agreement is revocable at any time.
Termination of the Agreement. You may terminate this Agreement at any time by (a) ceasing use of the Licensed Application and Services and (b) deleting all copies of the Licensed Application in your possession or control. Whurk reserves the right to terminate your license to use the Licensed Application at any time, for any or no reason. In the event of termination, the license granted to you herein will automatically terminate and you must immediately cease all use of the Licensed Application and Services and destroy all copies of the Licensed Application within your possession or control.
Survival. Sections 1, 3, 5, 6, 8-14 and 17-21 of this Agreement shall survive any termination of this Agreement.
Modifications. Whurk reserves the right to modify or discontinue, temporarily or permanently, the Licensed Application or Services (or any features or portions thereof) without prior notice. You agree that Whurk will not be liable for any modification, suspension or discontinuance of the Licensed Application or Services (or any part thereof). Whurk also may impose limits on the use of or access to certain Services, in any case and without notice or liability.
Governing Law; Jurisdiction and Venue. This Agreement is governed by the laws of the State of Oregon, without regard to its choice of law principles. You hereby irrevocably consent to jurisdiction of the state and federal courts located in Multnomah County, Oregon with respect to any proceeding regarding this Agreement or the Licensed Application. You will not prosecute any action, suit, proceeding or claim arising under or by reason of this Agreement or the Licensed Application except in such courts.
Miscellaneous. If any provision of this Agreement is found to be invalid or unenforceable, such provision will be deemed to be restated to reflect the original intention of the parties to the maximum extent possible and in accordance with applicable law, and the remaining provisions, terms, covenants, and restrictions of this Agreement will remain in full force and effect. You may not assign this Agreement or any of your rights under this Agreement without the prior written consent of Whurk, and any attempted assignment without such consent shall be void. Subject to the foregoing restriction, this Agreement will be fully binding upon, inure to the benefit of, and be enforceable by Whurk and our respective successors and assigns. Any failure by Whurk to insist upon or enforce performance by you of any of the provisions of this Agreement or to exercise any rights or remedies under this Agreement or otherwise by law will not be construed as a waiver or relinquishment of any right to assert or rely upon the provision, right or remedy in that or any other instance; rather, the provision, right or remedy will be and shall remain in full force and effect.
Developer Name and Address. If you have any questions, complaints or claims with respect to the Licensed Application, please contact us at:
Attn: [insert name and/or title]