Term of Service
Application User License Agreement
This Application User License Agreement (the “Agreement”) applies to persons or entities who access the Eyeballs Financial downloadable mobile application (the “App”), including without limitation, individuals, businesses and third-party organizations that use the App and/or use services offered through the App (collectively, with all persons who access the App, “Users,” or “you”).
The App is owned and operated by Eyeballs Financial, LLC, a Delaware Limited Liability corporation with its principal place of business in Orange County, California (collectively, with its subsidiaries and affiliates, “Company,” “we,” or “us”). Throughout this Agreement, all references to the “App” and “Company” shall include any websites of affiliates and subsidiaries of the Company that are involved with the provision of the Services and/or the operation of the App.
IMPORTANT – PLEASE READ CAREFULLY. THIS AGREEMENT CONSTITUTE A LEGAL AGREEMENT BETWEEN THE COMPANY AND YOU (EITHER AN INDIVIDUAL OR A SINGLE ENTITY). THIS AGREEMENT, ALONG WITH ANY OTHER TERMS THAT MAY BE POSTED ON THE APP WITH RESPECT TO COMPANY, SERVICES AND/OR ANY SEPARATE WRITTEN AGREEMENT OR CONTRACT PROVIDING OTHER TERMS AND CONDITIONS THAT INCORPORATE THESE TERMS BY REFERENCE, SET FORTH THE TERMS AND CONDITIONS ON WHICH YOU MAY ACCESS AND USE THE APP AND SERVICE. IF YOU DO NOT AGREE TO THESE TERMS, YOU MAY NOT USE THE APP OR SERVICE.
Subject to these terms and conditions, Company allows Users access to its electronic platform and provides an easy and convenient method for Users to access their investment account information, which includes, among other things, balance, performance returns, and other transactions impacting those investments, bank, or other accounts (collectively “Accounts”), which User links to the App.
1. YOUR ACCEPTANCE
Your use of the App constitutes your binding acceptance of the terms and conditions (the “Terms”) of this Agreement, including any modifications made to the Terms. Read these Terms carefully and completely as they set forth your rights and obligations with respect to your use of the App. Company is pleased to provide the App conditioned upon your acceptance, without modification, of the terms, conditions and notices comprising the Terms.
2. EYEBALLS IS NOT A PARTY TO THE TRANSACTIONS
2.1. Company serves as a platform for Users to access their Account information. User permits the App to access one or more Accounts (each a “Linked Account”) and, once linked, the App will display the data as provided for by the Account (“User Content”). Company does not own, manage, or otherwise modify the data provided. Company is not involved in any transactions between User and any accounts other than providing the Account information and facilitating the communication of Account information to the User. As a result, Company shall not be liable under any circumstances for the information provided through the App or any other interactions between User and Linked Accounts.
2.2. Company encourages all Users of the App, to engage in responsible use of the App and to exercise sound judgment when relying on information provided by the App. Users are advised to consult with their financial adviser and/or the official statements and documents of each Account for official Account records and transactions. By using the App, you release Company from any claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with the use of the App.
3. ACCESS AND USE OF THE APP
3.1 Company hereby grants to you a revocable, non-exclusive, non-transferable, limited right to use the App. You agree to access and use the App in accordance with the terms and conditions of this Agreement.
3.2. Company is providing you with the information and functionality of the App. You are responsible for providing at your own cost all equipment necessary to establish a connection to the Internet, access to the Internet, and any telephone, wireless or other connection and service fees associated with such access.
3.3. Company has the right, but not the obligation, to take any of the following actions without providing any prior notice to you: (i) change or terminate all or any part of the App or our Services; (ii) restrict or terminate your access to all or any part of the App or our Services; or (iii) refuse, move, or remove any content that is available on the App and any material that you submit to the App.
3.4. Subject to your compliance with these Terms, Company hereby grants you permission to access and use the App and Services, provided that you shall not either directly or indirectly through others: (i) engage in commercial use of the App or any content on the App; (ii) reproduce, copy, display, store, perform, re-post, publish, transmit, distribute, sell, offer for sale, license, modify, create derivative works, or otherwise use any portion of the content offered on the App for other than your own personal, non-commercial use; (iii) remove any copyright, trademark or other proprietary rights notices contained in or on the App or Service or in or on any content or other material obtained via the App or Service; (iv) use any robot, spider, Site search/retrieval application, or other automated device, process or means to access, retrieve or index any portion of the App or Services, including, but not limited to, for purposes of constructing or populating a searchable database of businesses, reviews, or Incentives; (v) collect or harvest any information about other Users or Network Participants (including usernames and/or email addresses) for any purpose; (vi) reformat or frame any portion of the web pages that are part of the App or Services; (vii) create user accounts by automated means or under false, misleading or fraudulent pretenses; (viii) create or transmit unwanted electronic communications such as “spam” to other users or members of the App or Service or otherwise interfere with other users’ or members’ enjoyment of the App or Services; (ix) transmit any viruses, worms, defects, Trojan horses or other items of a destructive nature; (x) use the App or Services to violate the security of any computer network, crack passwords or security encryption codes, transfer or store illegal material, including any material that may be deemed threatening or obscene; (xi) copy or modify the HTML code used to generate web pages on the App; (xii) use any device, software or procedure that interferes with the proper working of the App or Services, or otherwise attempt to interfere with the proper working of the App or Services; (xiii) take any action that imposes, or may impose in Company’s sole discretion, an unreasonable or disproportionately large load on our IT infrastructure; (xiv) modify, adapt, translate, or reverse engineer any portion of the App or Services; or (xv) use the App or Services, intentionally or unintentionally, to violate any applicable provincial, national or international law or regulation, including, but not limited to, Canada’s anti-spam legislation (CASL).
4. USER CONTENT
Company has no responsibility or duty to review, approve or pre- screen any content provided and Company is not responsible for such content. You understand that all content transmitted through or in connection with the App is provided through the Linked Account. Company disclaims any and all liability relating to the User Content. Company does not guarantee, and you will not hold Company responsible for, the User Content (including the accuracy or truth of such User Content). You agree that you bear the responsibility to evaluate, and bear all risks associated with the use of any User Content, and that under no circumstances will Company be liable for any User Content or for any damage or loss of any kind incurred as a result of the use of, or reliance on any User Content.
5. DATA AVAILABILITY
Data provided in the App is not real-time. Data is updated according to the schedule set by [ORION]. Company does not own the Data provided by Waveland. Any discrepancy in the content or any incomplete/inaccurate information needs to be communicated to your assigned Financial Advisor.
6. ADDITIONAL REQUIREMENTS
The Services may be subject to additional guidelines, technical and non-technical specifications, and other requirements, rules, or policies that are not set forth in these Terms, and may be posted on the App or the applicable screens or page(s) throughout the App. All such additional guidelines and specifications are hereby incorporated by reference into these Terms. In the event of a conflict between such additional guidelines and specifications and these Terms, the terms of such additional guidelines and specifications shall govern.
Company may modify or update these Terms from time to time, in its sole discretion, and reserves the right at any time and from time to time to modify, suspend, or discontinue, temporarily or permanently, the App (or any part thereof) or any or all of the Services, or any feature thereof, with or without notice and without liability to you. You agree that Company has no responsibility or liability for the failure of the App and the deletion of other content maintained or transmitted by the App. You further agree that Company shall not be liable to you or to any third party for any modification, suspension, or discontinuance of the App. Modifications to these Terms, including, but not limited to, any Company requirements, will be posted on the relevant area of the App and will be effective immediately upon posting. You can review the most current version of the Terms at any time by clicking on the Terms and Conditions link from webpages throughout the App. You agree to review the Terms from time to time to ensure you are updated as to any modifications. By continuing to use the App or Services following any such modification, you accept and agree to be bound by such modifications.
IF ANY MODIFICATION IS NOT ACCEPTABLE TO YOU, YOUR SOLE AND EXCLUSIVE REMEDY AND RECOURSE IS TO DISCONTINUE USE OF THE APP AND SERVICES.
8. ACCOUNT REGISTRATION AND USE
To use certain features of the App or applicable Services, you will have to register and create a password-protected account (“Your Account”) and/or submit information, content, data or other material (“Information” or “Material”).
8.1. Your Account. You agree to: (i) provide true, accurate, current, and complete information as prompted by the registration form; and (ii) maintain and update such information to keep it true, accurate, current, and complete at all times. Company reserves the right to delete Your Account and refuse any and all current or future use of the App (or any portion thereof) without notice if you are found to have misrepresented your age, identity, or any other information submitted in connection with Your Account or if Company has reasonable grounds to suspect that such information is untrue, inaccurate, incomplete or not current. You are responsible for maintaining the confidentiality of your password, your email address and Your Account, and are fully responsible for all activities that occur under your password and Your Account. You agree to: (i) immediately notify Company of any unauthorized use of your password or account, or any other breach of security, (ii) immediately change your password if you become aware that Your Account has been compromised, (iii) ensure that you fully exit from Your Account at the end of each session. You agree and acknowledge that you will not allow others to utilize Your Account and that you will not disclose your Company password to anyone. You will be solely responsible for safeguarding your password and for any actions under your password and Your Account, whether authorized by you or not. If you lose control of your password, you may lose substantial control of your personal information and could potentially be subject to legally binding actions taken on your behalf. You further agree not to use anyone else’s password on the App or attempt to gain access to the Company account of any other person. Company cannot and will not be liable for any loss or damage arising from your failure to comply with this section.
9. SERVICES AND SUBSCRIPTIONS
9.1. Users will not be directly billed by Eyeballs Financial, LLC through credit cards or personal checks. Instead, the financial institution holding customer accounts will handle who covers this cost. It may be modified or covered by the participating financial institution.
9.2. Services May be Modified or Changed Without Notice. Company reserves the right at any time, and from time to time, to modify or discontinue, the Service (or any part thereof) with or without notice. Company shall not be liable to you or to any third party for any modification, price change, suspension or discontinuance of the App or any Services.
9.3. Notice of Change of Location. You are responsible for providing the Company any updates as your use and location of the Services by contacting customer service at firstname.lastname@example.org.
10. CANCELLATION AND TERMINATION
10.1. Cancel Anytime. You may cancel Your Account at any time.
10.2. Modification or Termination of Your Account by Company. We reserve the right to modify or terminate Your Account or your Services, for any reason, without notice at any time.
10.3. Fraud Prohibited. Without limiting any other remedies, Company may suspend or terminate Your Account if we suspect that you have engaged in fraudulent activity in connection with the App.
10.4. Procedure on Termination of Your Account. Upon termination of the Services by either party for any reason, Company will cease providing you with the Services and you will no longer be able to access Your Account. Unless otherwise provided in these Terms, [any outstanding balance owed to Company for your use of the Services through the effective date of such termination will immediately become due and payable in full]; and Your Account will be taken offline.
11. COMPANY’S RIGHTS
You acknowledge that Company has the right to investigate and prosecute violations of these Terms, including intellectual property, publicity and privacy rights infringement and App security issues, to the fullest extent of the law. Company may involve and cooperate with law enforcement authorities in prosecuting users who violate these Terms. You acknowledge that Company has no obligation to monitor your access to or use of the App or any Service, but has the right to do so for the purpose of operating the App, to ensure your compliance with these Terms, or to comply with applicable law or the order or requirement of a court, administrative agency or other governmental body.
12. APP CONTENT GENERALLY
It is solely your responsibility to evaluate the accuracy, completeness, and usefulness of all opinions, advice, statements, representations, services, and other information to include without limitation User Content provided through the App. Company does not endorse or represent the reliability, accuracy or quality of any information, goods, services or products displayed or advertised on the App, if any. We make no representations or warranties, express or implied, with respect to the information provided on the App.
13. THIRD-PARTY LINKS, PRODUCTS AND SERVICES
13.1. Third Party Websites and Services. The App may contain links to third-party websites or resources, including, but not limited to, webs or other Apps with information about specific Network Participants. Third-party links are included solely for the convenience of Users, and do not constitute any endorsement or approval by Company of the organizations sponsoring these Apps or their products or services. We make no representations or warranties, express or implied, with respect to the information provided on the App or any third-party web or service which may be accessed by a link from the App, including any representations or warranties as to accuracy or completeness. Because Company has no control over third-party sites, resources or services, you acknowledge and agree that Company is not responsible or liable for, and does not endorse, the availability, accuracy, completeness or authenticity of information available through such sites, resources or services, your use or your exchange of any information with such sites or services, or the content, statements, representations, advertising, products, properties, services or other materials available on such third-party sites. You acknowledge and agree that Company shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused in connection with your use or reliance on any such content, information, goods, or services available on or through any such App or resource. If you decide to access any such third-party webs, resources or services, or to transact with such third party for their products, properties or services, you do so entirely at your own risk. You may be subject to the terms and conditions and the privacy policies of such third-party sites. You acknowledge and understand that Company does not (i) provide legal, brokerage or other professional advice or services to any Users who use the App or the Services, or (ii) participate in any negotiations with respect to transactions between third parties, including negotiations and transactions between Users and the Linked Accounts.
You acknowledge and agree that the App and Services contain content, information and proprietary and confidential technology owned by or licensed to Company, and protected by applicable intellectual property and other laws and international treaties (collectively, “Company Content”). The Company Content displayed on or through the App and Services includes, without limitation, information, data, text, software, music, sound, photographs, graphics, video, messages, tags, or other materials. Company Content is copyrighted and/or trademarked by Company under applicable copyright and trademark laws. All rights reserved. You agree not to reproduce, copy, display, store, perform, re-post, publish, transmit, distribute, sell, offer for sale, license, modify, create derivative works, or otherwise use or exploit for any commercial purposes any or all Company Content, the App or access to the App in any way without the prior written permission of Company. All content on the App that is not Company Content is the property and responsibility of other parties. You must abide by all copyright notices, information, or restrictions contained in or attached to any Company Content, the Company logo, Company, and the Company logo (the “Company Marks”) are trademarks, trade names, or service marks of Company. You are not authorized to use or display the Company Marks, without the express prior permission of Company. Ownership of all Company Marks and the goodwill associated therewith remains with Company. All other trademarks are the property of their respective owners.
15. INDEPENDENT CONTRACTORS
The Parties (“App Users”, “Financial Advisers”, and “Company”) herein act on their own behalf as independent contractors. Nothing in this Agreement shall create any joint venture, agency, franchise, sales representative, employment or any other relationship between the Parties beyond the relations set out in this Agreement, and App User is expressly precluded from acting on Company’s behalf.
You agree to indemnify, defend and hold Company and its officers, directors, employees, shareholders, successors, agents, affiliates, subsidiaries and relevant third parties including advertisers, distributors, service providers, licensors, licensees, consultants and contractors (collectively the “Indemnified Parties”) harmless from and against any claims, liabilities, losses, costs, damages or expenses including reasonable attorneys’ fees and costs, directly or indirectly, arising out of or in any way relating to: (i) your negligence or misconduct; (ii) your Information or material contributed to or submitted through the App, including without limitation information associated with Your Account; (iii) your conduct, including your use of the App and Services; (iv) your connection to the App; (v) any violation or breach of these Terms; or (vi) any violation or infringement of any intellectual property, privacy, publicity, confidentiality or proprietary rights of any third-party as a result of your use of the App (collectively, the “Claims”). You are solely responsible for defending any such Claims, and for payment of losses, costs, damages or expenses resulting from the foregoing to both a third party and to the Indemnified Parties. Company shall have the right, in its sole discretion, to select its own legal counsel to defend Company from any Claims (but by doing so shall not excuse your indemnity obligations) and you shall be solely responsible for the payment of all of Company’s reasonable attorneys’ fees incurred in connection therewith. You shall notify Company immediately if you become aware of any actual or potential claims, suits, actions, allegations or charges that could affect your or Company’s ability to fully perform their respective duties or to exercise its rights under these Terms. You shall not, without the prior written approval of Company, settle, dispose or enter into any proposed settlement or resolution of any Claim (whether having been finally adjudicated or otherwise) brought against you, if such settlement or resolution results in any obligation or liability for Company.
17. DISCLAIMER OF WARRANTIES.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT:
17.1. YOUR USE OF THE APP AND SERVICES IS AT YOUR SOLE RISK. THE APP AND SERVICES AND ALL MATERIALS, INFORMATION, PRODUCTS, AND SERVICES INCLUDED THEREIN, ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND. WITH RESPECT TO THE APP AND INFORMATION AND MATERIAL IN THE APP, COMPANY AND ITS LICENSORS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, EXPRESSED, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION THE WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, COURSE OF DEALING OR COURSE OF PERFORMANCE.
17.2. COMPANY AND ITS LICENSORS MAKE NO WARRANTY: (I) REGARDING THE SECURITY, ACCURACY, RELIABILITY, COMPLETENESS, TIMELINESS AND PERFORMANCE OF THE APP OR SERVICE; (II) REGARDING THE SERVICES, ADVICE, INFORMATION OR LINKS OBTAINED THROUGH THE APP; (III) THAT THE SERVICES OR THE APP, OR ANY INFORMATION AND MATERIALS THEREIN WILL MEET YOUR REQUIREMENTS; (IV) THAT THE SERVICES OR APP, OR ANY FUNCTIONS CONTAINED IN THE APP, WILL BE ERROR-FREE, SECURE, TIMELY, OR UNINTERRUPTED; (V) THAT THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE APP OR INFORMATION AND MATERIALS THEREIN WILL BE ACCURATE, RELIABLE, OR AVAILABLE, (VI) THAT ANY ERRORS IN THE APP OR INFORMATION OR MATERIALS THEREIN WILL BE CORRECTED, AND (VII) THE APP AND ITS CONTENTS AND SERVER THAT MAKES THE APP AVAILABLE ARE FREE OF ANY VIRUSES OR OTHER HARMFUL COMPONENTS.
17.3. ANY MATERIAL, INFORMATION, PRODUCTS OR SERVICES DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE APP IS DONE AT YOUR OWN DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
17.4. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM COMPANY OR FROM YOUR USE OF THE APP OR SERVICES, SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
18. LIMITATION OF LIABILITY
18.1. COMPANY AND ITS OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, SUCCESSORS, AGENTS, AFFILIATES, SUBSIDIARIES AND RELEVANT THIRD PARTIES INCLUDING ADVERTISERS, DISTRIBUTION PARTNERS, SERVICE PROVIDERS, LICENSORS, LICENSEES, CONSULTANTS AND CONTRACTORS WILL NOT BE LIABLE FOR:
ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES (INCLUDING LOSS OF USE, DATA OR PROFITS, COST OF PROCURING SUBSTITUTE PRODUCTS OR BUSINESS INTERRUPTION), WHETHER BASED ON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR ANY OTHER LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, YOUR ACCESS AND USE OF OR INABILITY TO ACCESS OR USE OF THE APP AND/ OR ANY COMPANY SERVICE, ANY MATERIALS AVAILABLE TO YOU FROM OR THROUGH THE APP (INCLUDING SUCH DAMAGES INCURRED BY THIRD PARTIES), WHETHER THE DAMAGES ARE FORESEEABLE AND WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES;
ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES (INCLUDING LOSS OF USE, DATA OR PROFITS, COST OF PROCURING SUBSTITUTE PRODUCTS OR BUSINESS INTERRUPTION), WHETHER BASED ON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR ANY OTHER LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH ANY BREACH OF PRIVACY OR OTHER UNAUTHORIZED ACCESS, USE, AND/OR DISCLOSURE OF YOUR PERSONAL INFORMATION OBTAINED FROM OR THROUGH THE APP (INCLUDING SUCH DAMAGES INCURRED BY THIRD PARTIES), WHETHER THE DAMAGES ARE FORESEEABLE AND WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES;
THE CONTENTS OF ANY COMMUNICATION, MESSAGE, OR INFORMATION POSTED BY YOU OR OTHER THIRD PARTIES;
THE CONTENT, SERVICES OR INFORMATION PROVIDED BY ANY WEBApp PURPORTING TO BE OPERATED BY COMPANY OR ITS AFFILIATES, BUT NOT ACTUALLY AFFILIATED WITH, CONTROLLED, OWNED, OR OPERATED BY COMPANY;
THE CONTENT OF ANY WEBApp NOT CONTROLLED, OWNED, OR OPERATED BY COMPANY THAT IS ACCESSED FROM OR LINKED TO THE App;
ANY DAMAGES OR INJURY CAUSED BY, INCLUDING BUT NOT LIMITED TO, ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DEFECT, DELAY IN OPERATION OF TRANSMISSION, COMPUTER VIRUS, OR LINE FAILURE.
18.2. BUSINESS INTERRUPTION, WHETHER BASED ON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR ANY OTHER LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, YOUR ACCESS AND USE OF OR INABILITY TO ACCESS OR USE THE App AND/ OR ANY COMPANY SERVICE, ANY MATERIALS AVAILABLE TO YOU FROM OR THROUGH THE App (INCLUDING SUCH DAMAGES INCURRED BY THIRD PARTIES), WHETHER THE DAMAGES ARE FORESEEABLE AND WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES (INCLUDING LOSS OF USE, DATA OR PROFITS, COST OF PROCURING SUBSTITUTE PRODUCTS OR BUSINESS INTERRUPTION), WHETHER BASED ON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR ANY OTHER LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH ANY BREACH OF PRIVACY OR OTHER UNAUTHORIZED ACCESS, USE, AND/OR DISCLOSURE OF YOUR PERSONAL INFORMATION OBTAINED FROM OR THROUGH THE APP (INCLUDING SUCH DAMAGES INCURRED BY THIRD PARTIES), WHETHER THE DAMAGES ARE FORESEEABLE AND WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; THE CONTENTS OF ANY COMMUNICATION, MESSAGE, OR INFORMATION POSTED BY YOU OR OTHER THIRD PARTIES; THE CONTENT, SERVICES OR INFORMATION PROVIDED BY ANY WEBApp PURPORTING TO BE OPERATED BY COMPANY OR ITS AFFILIATES, BUT NOT ACTUALLY AFFILIATED WITH, CONTROLLED, OWNED, OR OPERATED BY COMPANY; THE CONTENT OF ANY WEBApp NOT CONTROLLED, OWNED, OR OPERATED BY COMPANY THAT IS ACCESSED FROM OR LINKED TO THE App; ANY DAMAGES OR INJURY CAUSED BY, INCLUDING BUT NOT LIMITED TO, ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DEFECT, DELAY IN OPERATION OF TRANSMISSION, COMPUTER VIRUS, OR LINE FAILURE.
You acknowledge that the limitations set forth above are an essential basis of the bargain and of the allocation of risks between the parties. Some states or jurisdictions do not allow the limitation or exclusion of liability for incidental or consequential damages. Accordingly, some of the above limitations may not apply to you. If you are dissatisfied with any portion of the App, or with any of these Terms, your sole and exclusive remedy is to discontinue use of the App and Services.
Company does not assume responsibility to you or others for any failure by Company to enforce the provisions contained in the Terms.
20. TERMINATION [REPEAT OF 10?]
You agree that Company, in its sole discretion and with or without notice, may terminate your use of the App (or any part thereof) or any or all Services for any reason, including, without limitation, for lack of use or if Company believes that you have violated or acted inconsistently with the letter or spirit of the Terms. Company may also in its sole discretion and at any time discontinue providing the App, or any part thereof, or any or all of the Services with or without notice. You agree that any termination of your access to the App under any provision of the Terms may be affected without prior notice, and acknowledge and agree that Company may immediately bar any further access to the App. Further, you agree that Company shall not be liable to you or any third party for any termination of your access to the App or the Services.
You hereby represent and warrant to Company that: (i) you have all the requisite power and authority, to enter into the binding contract created by these Terms; (ii) you have the right to submit and use your Information in the manner you have done so to or through the App and/or through Your Account; (iii) your performance under these Terms and/or the rights granted herein do not and will not conflict with or result in a breach or violation of any of the terms or provisions, or constitute a default under any contract or agreement, to which you are currently bound or will become bound in the future; and (v) your performance under these Terms will comply with all applicable laws, rules and regulations (including, without limitation, export control, privacy and obscenity laws), domestic or foreign.
23.1. Governing Law. All questions arising with respect to the provisions of this Agreement shall be determined by application of the laws of the State of Delaware, without giving any effect to any conflict of law provisions thereof, except to the extent Delaware state law is preempted by federal law. Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. You and Company hereby irrevocably and unconditionally submit to the jurisdiction of San Diego, California.
23.2. Assignment. You may not assign or transfer this Agreement, in whole or in part, without the prior written consent of Company, which may be granted or withheld by Company in its sole discretion. Any attempted assignment in violation of this Section will be null and void and of no force or effect. Company may assign this Agreement freely at any time without notice. Subject to the foregoing, this Agreement will bind and inure to the benefit of each party’s permitted successors and assigns.
23.3. Waiver. The failure to exercise or enforce any right or provision shall not affect Company’s right to exercise or enforce such right or provision at any time thereafter, nor shall a waiver of any breach or default of these Terms constitute a waiver of any subsequent breach or default or a waiver of the provision itself.
23.4. Severability. If any portion of these Terms is found by a court of competent jurisdiction to be invalid or unenforceable, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in such provision, and, notwithstanding such finding, the remaining provisions of these Terms shall remain in full force and effect.
23.6. Time Limitation. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to the Terms or use of the App must be filed within one (1) year after such claim or cause of action arose or be forever barred.
23.7. Headings. The section headings and sub-headings contained in the Terms and Conditions are for convenience only and have no legal or contractual effect.