HVR app end user license agreement
PLEASE READ THIS HVR app end user license agreement (“EULA”) CAREFULLY BEFORE FIRST USING THE HVR app (the “app”).the term “APP” shall also include: (a) any modified versions, updates, or upgrades of the App that may be MADE AVAILABLE AND licensed to you by HVR; and (b) any Software identified as pre-commercial, evaluation, “alpha”, or “beta” software (“Beta Software”). the term “app” shall not include any Third Party Software, whether or not the Third Party Software is distributed by HVR or on behalf of HVR, or the Third Party Software accompanies, is provided with, or operates in conjunction with, the app. if you download, install, copy, or otherwise use beta software or a modified version, update, or upgrade of the app, then this eula terminates as to the previous version of the app, and you have a license to only such beta software, modified version, update, or upgrade of the App under the terms of this EULA or the end user license agreement that accompanies the beta software, modified, updated, or upgraded version of the app.
THIS EULA PROVIDES IMPORTANT INFORMATION CONCERNING THE app, PROVIDES YOU WITH A LICENSE TO USE THE app AND CONTAINS WARRANTY AND LIABILITY INFORMATION. BY FIRST USING THE app, YOU ARE ACCEPTING THE APP AND AGREEING TO BECOME BOUND BY THE TERMS OF THIS EULA. IF YOU DO NOT agree with all of the terms and conditions of this eula, do not download, install, copy, agree to this EUla, or otherwise use the app.
1. Grant of License
(a) HVR hereby grants you a limited, non-sublicensable, non-exclusive, non-transferable right to install and use for personal or internal business purposes the App on one or more computer(s) and/or mobile device(s) (collectively, the “Device”) and make one copy of the App in machine-readable form for backup purposes.
(b) HVR also grants you the right to make one copy for personal or internal business purposes of the manuals and other documents relating to the installation and use of the App (the “Documentation”). Documentation shall include, but not be limited to,
any “online” or electronic data provided by or obtained from HVR with regard to this App.
(c) The App and Documentation are licensed, not sold.
(d) If the App is licensed as a suite or bundle with more than one specified application or software product, this EULA applies to all such specified applications or software products, subject to any accompanying terms and conditions that applies to any of the applications or software products.
(e) If any third party software is included as part of the default installation and no license is presented for acceptance the first time that third party software is invoked, then the use of that third party software shall be governed by this EULA, but the term “HVR”, with respect to such third party software, shall mean the manufacturer of that software and the third party software is provided to you by HVR “AS IS” and “AS AVAILABLE”, with no express or implied conditions, endorsements, guarantees, representations, or warranties, and as between you and HVR, the limitations and exclusions of liability and disclaimers provisions set out in this EULA for the App shall also apply to third party software.
(f) With the exception of the situation described in (e) immediately above, the use of any included third party software shall be governed by the third party’s license agreement and not by this EULA, whether that license agreement is presented for acceptance the first time that the third party software is invoked or is included in a file in electronic form as part of the software that is downloaded.
(g) The license rights set out above with respect to your use of Beta Software apply only for the time period authorised by HVR (“Test Period”) and solely to the extent necessary to enable you to test and provide Feedback to HVR regarding the Beta Software. Such license will automatically terminate upon the expiration of the Test Period, which period may be extended or terminated by HVR at any time, in its sole discretion, but, unless you are in breach of this Agreement, HVR will, if feasible, use commercially reasonable efforts to provide you with prior notice of any change to the duration of the Test Period. Notwithstanding the Test Period, you acknowledge and agree that HVR may include technical measures in the Beta Software that render it inoperable after a specified period of time and you agree that you will not circumvent such technical measures, nor attempt to do so. In consideration of the grant of license
to the Beta Software, you agree that you will provide HVR with Feedback on Beta Software as HVR reasonably requests, including ongoing feedback regarding bugs and faults experienced during the Test Period, without any compensation or reimbursement of any kind from HVR, and that the Section below entitled “Feedback” will apply to such Feedback.
2. Additional Terms
(a) You may be required to agree to additional terms and conditions:
i. with HVR in relation to third party software (e.g. open source components) or services and for modified, updated, and upgraded versions of the App; and
ii. with a third party to acquire or use third party software or services.
(a) This EULA and the licenses granted herein, do not imply any rights or entitlement to future modifications, updates, and upgrades of the App. Notwithstanding the foregoing, the App may contain a component that will use your Device’s internet or airtime service connection to automatically check for modifications, updates, and upgrades to or notifications about the App. By installing the App on your Device, you consent to have the App initiate the internet or airtime service connection to check for modifications, updates, and upgrades or receive notices about the App.
4. Ownership and Limits to Use
(a) The App and the Documentation will remain at all times the sole and exclusive property of HVR. Any copy made in accordance with this license must indicate the ownership of HVR. All rights not specifically granted in this EULA, are reserved. In order to protect the rights of HVR, you undertake to comply with the following conditions:
1. you may not reproduce, transmit, or provide access to the App on any Device that is not authorised by this EULA, either because it is not owned by you,
because it exceeds the limits on copying and use set by this EULA, or the use is for the benefit of another person;
2. you may not loan, sell, distribute, or create derivative works of all or any part of the App or Documentation;
iii. you shall use the App in compliance with all applicable laws and not for any unlawful purpose;
1. you may not decompile, disassemble, or undertake any form of reverse engineering or reengineering process on the App or provide your assistance to any effort of a third party to do so; and
2. you may not modify or alter in any manner the App or the Documentation or take part in any such an effort initiated by a third party.
5. Access to the Source Code
(a) This EULA does not grant you the right to access the source code of the App.
6. Use of the Software
(a) You are responsible for ensuring that the Device onto which the App will be installed has wireless carrier access and airtime service, run the appropriate operating systems for use of the App, as well as any other hardware, software, service, and minimal requirements prescribed by HVR.
(b) You must follow the instructions found in the Documentation relating to the proper use of the App.
(a) You may provide feedback to HVR about the App. Unless HVR otherwise agrees in writing, you hereby agree that HVR shall own all feedback, comments, suggestions, ideas, concepts, and changes that you provide to HVR regarding the App and all associated intellectual property rights (collectively the “Feedback”) and you hereby assign to HVR all of your right, title and interest thereto. You will not knowingly provide HVR any Feedback that is subject to third party intellectual property rights. You agree to cooperate fully with HVR with respect to signing further
documents and doing such other acts as are reasonably requested by HVR to confirm that HVR owns the Feedback and to enable HVR to register and/or protect any associated intellectual property rights and/or confidential information.
8. Content and Use of App
(a) You, and not HVR, are entirely responsible for the content and information (“Content”) you input, receive, and share via the App. HVR does not control the Content that is made available to you by other users of the App. Other than as expressly provided in this EULA or an addendum hereto, this EULA does not transfer any ownership of your Content to HVR. With respect to any Content that you make available for inclusion on publicly accessible aspects of the App (such as the comments you post and share on tagged webpages) or services, you grant HVR a worldwide, perpetual, irrevocable, transferable, royalty-free, and non-exclusive license to use, analyse, distribute, reproduce, modify, adapt, publicly perform, and publicly display that Content in connection with the activation, provision, maintenance, support, trouble shooting, analytics, billing, resolving of disputes, deactivation of the App and service.
(b) Our automated systems analyze your Content to provide you personally relevant product features, such as customized search results and tailored advertising. This analysis occurs as the Content is sent, received, and when it is stored.
(c) You understand that by using the App you may be exposed to Content that is, or that you consider to be, offensive, indecent, or otherwise objectionable. HVR and its designees shall have the right (but not the obligation) in their sole discretion to pre-screen, refuse, or remove any Content that you make available for inclusion on publicly accessible aspects of the App or comments you post and share on tagged webpages.
(d) You agree not to misuse the App. For example, you must not, and must not attempt to, use the App to do the following things.
* Probe, scan, or test the vulnerability of any system or network;
* Breach or otherwise circumvent any security or authentication measures;
* Access, tamper with, or use non-public areas of the App, shared areas of the App you have not been invited to;
* Interfere with or disrupt any user, host, or network, for example by sending a virus, overloading, flooding, spamming, or mail-bombing any part of the App;
* Plant malware or otherwise use the App to distribute malware;
* Access or search the App by any means other than our publicly supported interfaces (for example, “scraping”);
* Send unsolicited communications, promotions or advertisements, or spam;
* Send altered, deceptive or false source-identifying information, including “spoofing” or “phishing”;
* Publish anything that is fraudulent, misleading, or infringes another’s rights;
* Promote or advertise products or services other than your own without appropriate authorization;
* Impersonate or misrepresent your affiliation with any person or entity;
* Publish or share materials that are unlawfully pornographic or indecent, or that advocate bigotry, religious, racial or ethnic hatred; or
* Violate the law in any way, or to violate the privacy of others, or to defame others.
9. Personal Information and Privacy
10. Limitation of Liability and Indemnification
(a) The App as well as the documentation is provided to you as is. HVR disclaims all liability and, other than what is expressly set out in this eula, HVR offers no warranty of any nature, express or implied, relating to the use, performance, or results that may be obtained through the use of the App and documentation. In no event will HVR be held liable for any loss or damage, direct or indirect, consequential or incidental resulting from the use of the App and documentation, including, without limiting the preceding, the loss or alteration of data, loss of profit, interruption of business, and loss of employee work time. This exclusion of the liability of HVR will prevail even when you advise of the possibility of such damages or losses.
(b) You agree to indemnify, defend (if we so request), and hold harmless HVR and its affiliates, personnel, partners, and agents from and against any claims, demands,
losses, damages, or expenses (including reasonable legal fees) arising from the Content you post or submit, your use of and connection to the App, your violation of this EULA, or your violation of any rights of any third party. Your indemnification obligation will survive the termination of this EULA and your use of the App.
11. Representations of HVR
(a) HVR represents for your benefit that:
1. it is duly authorised and holds all rights necessary to execute this EULA and there are no legal, judicial, or contractual limitations preventing its execution; and
2. the App and the Documentation are original works that, to HVR’s knowledge, do not violate any copyright.
(a) HVR does not make any warranties, express, implied or statutory, with respect to the App, including without limitation any implied warranty of merchantability, fitness for a particular purpose, non-infringement, or arising from course of performance, dealing, usage or trade.
(a) You acknowledge and agree that the App was: (i) developed at considerable time and expense by HVR; and (b) that the App contains confidential information including the trade-secrets of HVR,
(b) You expressly undertake to use the confidential information relating to the App you receive in conformity with the license and to hold such information in confidence without disclosing it to any third party during this EULA and at all times subsequent to its termination or expiration for whatever reason.
(c) Without limiting the foregoing, for Beta Software, confidential information includes the appearance, ‘look and feel’, performance, specifications, features and functionality of software, which information may not be discussed or shown to the public by you in any manner until publicly released by HVR.
(a) If you breach any of the terms and conditions of this EULA or refuse or neglect to pay the applicable license fees or in-app fees, HVR will have the right to terminate this EULA immediately and/or take certain actions HVR deems appropriate. Such actions may include temporary or permanent removal of Content and/or the immediate suspension or termination of all or any portion of your use of the App. You undertake in such an event to cease using the App and Documentation and destroy all copies of the App and Documentation.
(b) HVR may terminate this EULA without any liability whatsoever to you if HVR is prevented from providing any portion or all of the App by any law, regulation, requirement or ruling issued in any form whatsoever by judicial or other governmental body, or if a notice from a government agency or department indicates HVR is not permitted to provide any portion or all of the App. Nothing herein shall be construed to require HVR to seek a waiver of any such law, rule, regulation, or restriction, or seek judicial review or appeal of any court order.
(c) Except as expressly provided herein, HVR shall not have any liability to you arising from or related to the termination of this EULA, or any rights or licenses granted herein, in accordance with this EULA.
(d) Except to the extent prohibited by law, HVR reserves the right in its sole discretion, and at any time, for any reason and without notice to you, to change, suspend, remove, disable, limit, preclude or terminate your access and remove from your Device the App and you will have no recourse against HVR should this occur.
15. Entire Agreement
(a) It is the intent of the parties that in case any one or more of the provisions contained in this EULA shall be held to be invalid or unenforceable in any respect, such invalidity or unenforceability shall not affect the other provisions of this EULA, and this EULA shall be construed as if such invalid or unenforceable provision had never been contained herein.
17. No Waiver
(a) If either party should waive any breach of any provision of this EULA, it shall not thereby be deemed to have waived any preceding or succeeding breach of the same or any other provision hereof.
18. Governing Law and Dispute Resolution
(a) This EULA is to be governed by and construed under the laws of the Province of Ontario, Canada, excluding any body of law governing conflicts of law. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is hereby excluded in its entirety from application to this EULA. Any disagreement or dispute arising out of or relating to this EULA, or the breach thereof, which the parties are unable to resolve after good faith negotiations, shall be submitted first to the upper management level of the parties. The parties, through their upper management level representatives, which if you are an individual, is You, shall meet within thirty (30) days of the dispute being referred to them and if the parties are unable to resolve such disagreement or dispute within thirty (30) days of meeting, except to the extent specifically prohibited by applicable law in your jurisdiction, such disagreement or dispute shall be settled by final and binding arbitration to be conducted in Toronto, Ontario, Canada in accordance with the Commercial Rules of the American Arbitration Association (“Rules”) and shall be heard by one arbitrator appointed in accordance with the Rules and to be mutually agreed to by the parties within thirty (30) days of the appointment of the arbitrator, failing which a neutral third party shall appoint the arbitrator. If the provisions of the foregoing are prohibited by law in your jurisdiction, the arbitration shall be: (i) held in your jurisdiction; (ii) settled by arbitration in accordance with the Rules of Arbitration of the International Chamber of Commerce (“ICC Rules”); and (iii) heard by one arbitrator appointed in accordance with the ICC Rules and to be mutually agreed to by the parties within thirty (30) days of the appointment of the arbitrator, failing which a neutral third party shall appoint the arbitrator. Each party shall bear
one half of the costs associated with the arbitration proceedings. No dispute between the parties, or involving any person but you, may be joined or combined together, without the prior written consent of HVR. Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Notwithstanding the foregoing, HVR has the right to institute legal or equitable proceedings, including proceedings seeking injunctive relief, in a court of law for claims or disputes regarding: (i) amounts owed by you to HVR in connection with your acquisition of the App or any portion thereof, if applicable; and (ii) your violation or threatened violation of the Sections of this EULA entitled “Grant of License” (Section 1), “Ownership and Limits to Use” (Section 4), “Access to the Source Code” (Section 5), “Confidentiality” (Section 13), and “Termination” (Section 14). You irrevocably waive any objection on the grounds of venue, forum non-conveniens or any similar grounds and irrevocably consent to service of process by mail or in any other manner permitted by applicable law and irrevocably consent and attorn to the jurisdiction of the courts located in the City of Toronto, Ontario, Canada for any such claims arising from or related to this EULA. The parties specifically agree that, in the event that there is a dispute under this EULA and such dispute is to be resolved in a court of law, such dispute shall not be resolved by jury trial. The parties hereby waive all rights to a trial by jury in any matter related to or arising from this EULA.
19. Force Majeure
(a) Any delay or nonperformance of any provision of this EULA (other than for the payment of amounts due hereunder) caused by conditions beyond the reasonable control of the performing party shall not constitute a breach of this EULA, and the time for performance of such provision, if any, shall be deemed to be extended for a period equal to the duration of the conditions preventing performance.
(a) All notices, requests, claims, demands and other communications required or permitted hereunder shall be in writing, to the address specified below or at such other address for notice which may be given by notification of the other party. Notice shall be given by delivery in person or by courier service (with signature required) or by registered or certified mail (postage prepaid, return receipt requested), by electronic mail or by facsimile (and telephoning to confirm receipt). Notice is deemed to be made and effective on the date that the notice is received.
To: hvr – 1240 Bay St, Suite 600 Toronto, ON M5R2A7, Canada
(a) HVR may assign this EULA without notice to you. You shall not assign this EULA in whole or in part without the prior written consent of HVR and any assignment without HVR’s prior written consent shall be null and void and of no effect. HVR may perform all obligations to be performed under this EULA directly or may have some or all obligations performed by its contractor or subcontractors.
(a) The terms, conditions and warranties contained in this EULA that by their sense and context are intended to survive the performance hereof shall so survive the completion of performance, cancellation or termination of this EULA, including Sections 1(e), 1(f), 1(g), 4, 5, and Sections 7 through 23 (inclusive).
(a) The parties confirm hereby that they each require that this EULA and all documents and notices in connection therewith be drawn up in English.
You hereby acknowledge that you have read this EULA, understand it, and agree to be bound by its terms and conditions.