END USER LICENSE AGREEMENT
IMPORTANT: PLEASE CAREFULLY READ THIS END USER LICENSE AGREEMENT (THE
"AGREEMENT") BETWEEN "YOU" AND WHOSHERE, INC. ("COMPANY," "WE," "US," OR "OUR")
REGARDING YOUR USE OF THE SOFTWARE APPLICATION KNOWN AS "EM" and/or "EMwith.ME",
WITH WHICH THIS AGREEMENT HAS BEEN PROVIDED (THE "SOFTWARE"). BY USING THE
SOFTWARE, YOU AGREE THAT YOU HAVE READ THIS ENTIRE AGREEMENT AND AGREE TO BE
BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO BE
BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT YOU MAY NOT USE THE
1. Use of the Software.
In addition to Company's terms and conditions set
forth below, You agree and acknowledge that Your use of the Software may be
subject to additional terms and conditions of the device manufacturer, provider
or carrier for the Mobile Device (as defined below) on which You download,
access or use the Software, which are not governed by this Agreement. In
addition, when using particular functionalities and features that are part of
the Software, You may be subject to additional guidelines, terms, or rules
applicable to such functionalities and features ("Additional Terms"), which may
be posted from time to time and are hereby incorporated by reference into this
Agreement. To the extent additional functionalities and features are provided to
us by any of our partners, the additional terms that govern Your use of such
functionalities and features are not incorporated into this Agreement, but shall
govern Your use of such functionalities and features, and You hereby agree to
comply with and be bound by such terms as a condition to Your access and use of
such functionalities and features. This Agreement shall govern any corrections,
bug fixes, enhancements, updates or other modifications to the Software
(collectively, "Upgrades") provided by Company, except to the extent such
Upgrades are accompanied by a separate license, in which case the terms of such
license will govern.
2. Limited License Grant.
Subject to the terms and conditions of this
Agreement, Company hereby grants to You a terminable, nonexclusive,
nontransferable, nonsublicenseable license to use, perform, and display the
Software on a compatible mobile computing device (e.g., an iOS or Android-based
smartphone or tablet) that You own or control (Your "Mobile Device"), solely for
Your personal, non-commercial use in accordance with this Agreement. This
license does not allow You to use, perform, or display the Software on any
device that You do not own or control, and You may not distribute or make the
Software available over a network where it could be used by more than one device
at the same time.
3. Usage Restrictions.
You may not use, copy, modify, download or
transfer the Software or any component of the Software, in whole or in part. You
may not reverse engineer, disassemble, decompile, or translate the Software,
attempt to derive the source code of the Software, create any derivative work
from the Software, or authorize any third party to do any of the foregoing. Any
attempt to transfer any of the rights, duties or obligations under this
Agreement is void. You may not rent, lease, loan, resell for profit, or
distribute the Software, or any part thereof, nor may You provide access to the
Software for third parties in the nature of a service bureau or application
services provider. You may not remove or alter any proprietary notice or legend
regarding Company’s proprietary rights in the Software. You may not use the
Software except in accordance with applicable laws and regulations.
4. Acceptable Use.
You agree not to use the Software in any manner that
violates this Agreement, including our then-current acceptable use policy
("Acceptable Use Policy"), the latest version of which is available at
http://EMwith.ME/use.html, which is
incorporated in this Agreement by reference. We reserve the right to enforce the
Acceptable Use Policy in any legal manner we deem appropriate in our sole
discretion, including, without limitation, by restricting the number of
communications which You may send to other users in any 24-hour period and/or by
not delivering your messages. We may modify the Acceptable Use Policy from time
to time in our discretion. You agree that you are solely responsible for all
content which you transmit to others using the Software. You represent and
warrant that you have the lawful right to upload and transmit such content, and
that our reproduction, storage, transmission and display of such content on your
behalf will not violate the rights of any third parties. You hereby grant to us
a non-exclusive license to use, reproduce, display, create derivative works of,
distribute and transmit all such content as necessary to provide the features
further hereby grant to us a non-exclusive license to review such content and/or
to provide such content to governmental authorities and law enforcement as we
determine necessary or appropriate to comply with applicable law and/or to
enforce our rights under this Agreement.
5. Internet-Connected Functionality and Data Exchange.
In order to
provide some of its functionality, the Software must connect via the Internet
with computer servers operated by or on behalf of Company and must exchange data
with such servers. For example, the Software may transmit information to such
servers regarding Your preferences and selections from among options presented
within the Software, or the Software may transmit communications that you elect
to send. Information collected from the Software will be treated in accordance
agree that, as a condition of Your use of the Software, You consent to such
connectivity and data exchange. If You do not consent to such connectivity
and/or data exchange, You must not use the Software.
6. Responsibility for Telecommunications Charges.
By accessing and using
the Software with Your Mobile Device, You acknowledge and agree that You may
incur fees from Your mobile communications carrier, such as data usage fees, and
You are solely responsible for the payment of such fees.
You acknowledge that Company may collect information
in connection with Your use of the Software, and may use, process and disclose
collection, use, processing, and disclosure, collectively our "Privacy
forms an integral part of this Agreement, and You agree that we may treat all
information collected in connection with Your use of the Software in accordance
8. Ownership of Intellectual Property Rights.
The Software is licensed to
You, not sold. As between You and Company, You acknowledge that Company and its
licensors own and retain all proprietary rights in the Software (including all
Upgrades thereto). The Software includes copyrighted material, trademarks, and
other proprietary information ("Intellectual Property") of Company, and its
licensors. There are no implied licenses under this Agreement, and all rights
not expressly granted are hereby reserved. You agree that any questions,
comments, or suggestions (collectively, "Feedback") that You send to Company
shall become the sole property of Company. You further agree that Company shall
be free to use and exploit in any manner any ideas, concepts, know-how, methods,
or techniques contained in such Feedback for any purpose without Your consent
and without payment of any consideration to You, You hereby assign all rights,
title and interest in such Feedback to Company.
9. Third Party Trademarks and Content; Copyright Agent.
that the Software may display information, advertisements, media and trademarks
provided to us by third parties (collectively, "Third-Party Content"). YOU
ACKNOWLEDGE AND AGREE THAT COMPANY IS NOT RESPONSIBLE FOR THE ACCURACY,
COMPLETENESS, CURRENCY, SUITABILITY OR QUALITY OF THIRD-PARTY CONTENT AND SHALL
HAVE NO LIABILITY TO YOU IN CONNECTION WITH THIRD-PARTY CONTENT OR IN CONNECTION
WITH ANY PRODUCT, SERVICE OR OTHER OFFERING DESCRIBED THEREIN. You may not
reproduce, publicly perform, publicly display, modify, create derivative works,
or distribute any Third-Party Content.
Company respects the intellectual property rights of third parties. In the event
that You have a good faith belief that Your copyrights have been violated by the
use or display of certain content within the Software, it is our policy to
investigate and promptly undertake efforts to resolve the issue. To notify us
regarding an alleged copyright violation, You must provide us with all of the
following information: (i) a physical or electronic signature of a person
authorized to act on behalf of the owner of the exclusive right that is
allegedly infringed; (ii) identification of the copyrighted work(s) claimed to
have been infringed, and information reasonably sufficient to permit us to
locate the material; (iii) information reasonably sufficient to permit us to
contact You, such as an address, telephone number, and if available, an
electronic mail address at which You may be contacted; (iv) a statement that You
have a good faith belief that use of the material in the manner complained of is
not authorized by the copyright owner, its agent, or the law; and (v) 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. For this notification to be
effective, You must provide it to Company’s designated agent at:
Attention: Copyright Agent
950 North Washington Street
Alexandria, VA 22314
10. Third-Party Websites and Services.
The Software may contain links to
websites and/or services not operated by Company. Company is not responsible for
the content, products, materials, or practices (including privacy practices) of
such websites and/or services. You understand that by using the Software You may
be exposed to third-party content that You find offensive, indecent or otherwise
objectionable. Company makes no warranty, representation, endorsement, or
guarantee regarding any such third-party websites, any products or services
accessible through such third-party websites, or any other third-party services.
YOU ACKNOWLEDGE AND AGREE THAT COMPANY IS NOT RESPONSIBLE FOR THE CONTENT OR
FUNCTIONALITY OF ANY THIRD-PARTY WEBSITE OR THE PERFORMANCE OF ANY THIRD-PARTY
SERVICES, NOR FOR THE PRACTICES (INCLUDING PRIVACY PRACTICES) OF THE PROVIDERS
OF ANY SUCH THIRD-PARTY WEBSITES OR SERVICES, AND COMPANY SHALL HAVE NO
LIABILITY TO YOU IN CONNECTION WITH ANY SUCH THIRD-PARTY WEBSITES, SERVICES,
CONTENT, FUNCTIONALITY, PROVIDERS OR PRACTICES, OR THE QUALITY OR SUITABILITY OF
policies of all third-party websites You visit.
11. Disclaimer of Warranties.
THE SOFTWARE IS PROVIDED BY COMPANY ON AN
"AS IS" BASIS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, COMPANY HEREBY
DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND, WHETHER EXPRESS,
IMPLIED, OR STATUTORY, IN CONNECTION WITH THIS AGREEMENT, INCLUDING WITHOUT
LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, QUIET ENJOYMENT, NON-INFRINGEMENT, SYSTEM INTEGRATION, DATA ACCURACY,
AND ANY WARRANTIES ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING, OR
TRADE USAGE. WITHOUT LIMITING THE FOREGOING, YOU ACKNOWLEDGE THAT COMPANY DOES
NOT REPRESENT OR WARRANT THAT THE SOFTWARE WILL MEET YOUR REQUIREMENTS, THAT THE
SOFWARE WILL BE ERROR-FREE, THAT ERRORS IN THE SOFTWARE WILL BE CORRECTED, THAT
ANY CONTENT OR INFORMATION DISPLAYED WITHIN THE SOFTWARE OR ACCESSED THROUGH THE
SOFTWARE WILL BE ACCURATE, COMPLETE, RELIABLE, OR ERROR-FREE, THAT THE SOFTWARE
OR ANY MATERIALS AVAILABLE FOR DOWNLOAD VIA THE SOFTWARE WILL BE FREE OF VIRUSES
OR OTHER HARMFUL COMPONENTS. Please note that some jurisdictions may not allow
the exclusion of implied warranties, so some of the above exclusions may not
apply to You.
12. Limitation of Liability.
IN NO EVENT SHALL COMPANY BE LIABLE TO YOU
OR TO ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL OR
PUNITIVE DAMAGES IN CONNECTION WITH THIS AGREEMENT, INCLUDING LOSS OF PROFITS,
LOST OR CORRUPTED DATA, OR BUSINESS INTERRUPTION, REGARDLESS OF WHETHER COMPANY
WAS OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF SUCH DAMAGES, AND REGARDLESS
OF THE NATURE OF THE CLAIM OR THE THEORY OF LIABILITY, WHETHER ARISING IN
CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE. IN NO EVENT SHALL COMPANY BE
LIABLE TO YOU, IN AGGREGATE FOR ALL CLAIMS ARISING IN CONNECTION WITH THIS
AGREEMENT, FOR MONETARY DAMAGES IN EXCESS OF ONE DOLLAR (U.S. $1.00).
IN ADDITION, TO THE EXTENT PERMITTED UNDER APPLICABLE LAWS, YOU HEREBY RELEASE
US FROM ANY LIABILITY RELATED TO (I) ANY LOSS OR DAMAGE ARISING IN CONNECTION
WITH CONTENT TRANSMITTED THROUGH THE SOFTWARE, INCLUDING, WITHOUT LIMITATION,
ANY INCORRECT OR INACCURATE INFORMATION, (II) THE CONDUCT, WHETHER ONLINE OR
OFFLINE, OF ANY USER OF THE SOFTWARE, (III) ANY PROBLEMS OR TECHNICAL
MALFUNCTION OF ANY TELECOMMUNICATIONS NETWORK, COMPUTER NETWORK OR SYSTEMS,
EQUIPMENT OR SOFTWARE, (IV) ANY ERROR, OMISSION, INTERRUPTION OR DELAY IN
OPERATION OF THE SOFTWARE OR RELATED SERVICES, AND (V) ANY LOSS, DESTRUCTION,
THEFT, MODIFICATION OR UNAUTHORIZED ACCESS TO ANY CONTENT TRANSMITTED USING THE
SOFTWARE. IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL
CODE SECTION 1542, WHICH STATES: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS
WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF
EXECUTING THE RELEASE, WHICH, IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS
SETTLEMENT WITH THE DEBTOR."
YOU UNDERSTAND THAT THE FOREGOING LIMITATIONS OF LIABILITY ARE AN ESSENTIAL
BASIS OF THIS AGREEMENT, AND WITHOUT THIS LIMITATION OF LIABILITY COMPANY WOULD
BE UNWILLING TO GRANT YOU THE LICENSE AND RIGHTS GRANTED UNDER THIS AGREEMENT.
13. Contract Parties.
You acknowledge and agree that this Agreement is a
contract directly between You and Company. You acknowledge that Apple is not a
party to this Agreement and shall have no obligations or liabilities to you or
to any third party in connection with this Agreement. You agree, however, that
Apple is an intended third-party beneficiary of this Agreement and shall have
the authority to enforce this Agreement against you, including, without
limitation, the disclaimers and limitations of liability set forth in this
14. Your Representations and Warranties.
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.
You agree to hold harmless and indemnify Company, its
affiliates, and their respective officers, directors, employees and agents from
and against all damages, liabilities and expenses (including attorneys’ fees and
court costs) in connection with any claim brought by a third party and arising
in connection with Your use of the Software and/or Your breach of this
The Agreement will be in effect as of the date You
accept this Agreement, or as of the date You first install or use the Software,
whichever first occurs. You may terminate this Agreement and the license granted
to You with respect to the Software at any time by removing the Software in its
entirety from Your Mobile Device. This Agreement will terminate immediately
without notice to You if You materially breach any term or condition herein.
Upon termination, all rights granted to You under this Agreement will
immediately cease. Even after this Agreement is terminated, the following
provisions of this Agreement will remain in effect: Sections 3, 4, 6, 7, 8, 9,
10, 11, 12, 13, 14, 15, 16, 17, 18, 19 and 20.
17. Government End Users.
Company is a "commercial item" as that term is
defined at 48 C.F.R. 2.101, consisting of "commercial computer software" and
"commercial computer software documentation" as such terms are used in 48 C.F.R.
12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through
227.7202-4, all U.S. Government end users acquire Company with only those rights
set forth herein.
18. Applicable Law and Jurisdiction; Informal Dispute Resolution.
agree that this Agreement shall be governed by the laws of the Commonwealth of
Virginia, without giving effect to any principles of conflicts of laws that
would require the application of the laws of a different state. You also consent
to the personal jurisdiction and venue of the state and federal courts located
within Virginia for all disputes arising out of or relating to this Agreement.
You further agree that, prior to instituting any suit or action in any court,
You will exercise reasonable efforts to resolve any disputes arising in
connection with this Agreement through informal, good faith discussions with us,
and You will first permit us a reasonable opportunity to resolve any such
disputes before resort to any court proceedings.
19. General Provisions.
This Agreement is personal to You, and You may
not transfer, assign or delegate this Agreement to anyone without the express
written permission of Company. Any attempt by You to assign, transfer or
delegate this Agreement without the express written permission of Company shall
be null and void. You acknowledge that Company will have the right hereunder to
so seek an injunction, if necessary to stop or prevent a breach of Your
obligations hereunder. The paragraph headings in this Agreement are included
only to help make the agreement easier to read and have no binding effect. Any
delay or failure by us to exercise or enforce any right or provision of this
Agreement will not constitute a waiver of such right or provision. No waiver by
us shall have effect unless such waiver is set forth in writing, signed by us;
nor shall any such waiver of any breach or default constitute a waiver of any
subsequent breach or default. This Agreement constitutes the complete and
exclusive agreement between You and Company with respect to the subject matter
hereof, and supersedes all prior oral or written understandings, communications
or agreements. If for any reason a court of competent jurisdiction finds any
provision of this Agreement, or portion thereof, to be unenforceable, that
provision of the Agreement will be enforced to the maximum extent permissible so
as to effect the intent of the parties, and the remainder of this Agreement will
continue in full force and effect.
20. Contact Information.
If you have any questions about this Agreement
and/or regarding the Software, please contact Company at the following address:
Attention: Customer Service
950 North Washington Street