Last Modified August 14, 2019
This Mobile Application End User License Agreement (this “Agreement”) is a binding agreement between you (“you”) and Jiveworld SPC (“Jiveworld”, “we”, “us” or “our”). This Agreement governs your use of the Lupa mobile application, (including all related documentation and content, the “App”). The App is licensed, not sold, to you.
BY INSTALLING OR USING THE APP, YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENT THAT YOU ARE OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT; AND (C) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS.
THESE TERMS CONTAIN AN ARBITRATION PROVISION AND A WAIVER OF CLASS ACTION RIGHTS AS SET FORTH IN BELOW. By agreeing to arbitration, each party waives its rights to have any claims heard in a court by a judge or jury. By agreeing to waive class action rights, each party agrees to assert claims against the other only in an individual capacity and not as a plaintiff or class member in any purported class or representative proceeding.
IF YOU DO NOT AGREE TO THESE TERMS, THEN DO NOT DOWNLOAD, INSTALL OR USE THE APP, AND DELETE IT FROM YOUR MOBILE DEVICE.
- License Grant. Subject to the terms of this Agreement, Jiveworld grants you a limited, non-exclusive, worldwide, perpetual and nontransferable license to download, install, perform, display and use the App for your personal use on any mobile device (including a smartphone or tablet) owned or otherwise controlled by you (“Mobile Devices”) strictly in accordance with the App’s documentation.
- License Restrictions. You will use the App only for lawful purposes and in accordance with this Agreement. You will not:
- use the App in any way that violates any applicable federal, state, local or international law or regulation, or for any unlawful purpose or to promote illegal activities;
- copy the App, except as expressly permitted by this Agreement;
- modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the App;
- reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the App or any part thereof;
- remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the App, including any copy thereof;
- rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the App, or any features or functionality of the App, to any third party for any reason, including by making the App available on a network where it is capable of being accessed by more than one device at any time; or
- remove, disable, circumvent, or otherwise create or implement any workaround to any copy protection, rights management, or security features in or protecting the App.
- Reservation of Rights. You acknowledge and agree that the App is provided under license, and not sold, to you. You do not acquire any ownership interest in the App under this Agreement, nor do you acquire any rights thereto other than to use the App in accordance with the license granted, and subject to all terms, conditions, and restrictions, under this Agreement. Jiveworld and its licensors and service providers reserve and will retain their entire right, title, and interest in and to the App, including all copyrights, trademarks, and other intellectual property rights therein or relating thereto, except as expressly granted to you in this Agreement. Without limiting the foregoing, Jiveworld and all related trade names, logos, product and service names, designs and slogans are trademarks of Jiveworld or its affiliates, and you will not use such marks without our prior written permission. All other names, logos, product and service names, designs, and slogans on the App, including but not limited to Lupa and Radio Ambulante, are the trademarks of their respective owners.
- Account Registration and Security. You acknowledge and agree that you are entirely responsible for taking precautions and providing security measures best suited to your situation and intended use of the App. You acknowledge and agree that you are entirely responsible for any and all activities that occur using and within the App installed on your Mobile Devices or under your user account.
- In creating a user account, you agree that you will (i) provide true, accurate, current and complete information about yourself as prompted by the registration process, and (ii) maintain and promptly update such information in order to ensure that it remains true, accurate, current and complete. If you provide any such information that is, or if Jiveworld has reasonable grounds to suspect that such information is, untrue, inaccurate, not current or incomplete, then Jiveworld may, at its sole discretion, suspend or terminate your user account and refuse any and all current or future use of the App.
- You are entirely responsible for the security and confidentiality of your user account and password. You will not share your user account and password with any third party. You agree that you will immediately notify Jiveworld of any unauthorized use of your user account or other breach of the security of the App of which you become aware.
- User Materials. The App may include features that enable you to upload, display, make available, interact with, access or otherwise use certain content and materials provided by you as the user of the App (“User Materials”).
- You represent and warrant that (i) you own or control all rights in and to any User Materials or have sufficient rights to use User Materials via the App, and (ii) all such User Materials and the use thereof will comply with this Agreement.
- You acknowledge and agree that you are solely responsible for all User Materials that you access or use via the App. Jiveworld has no control over User Materials and will not be liable for the content or accuracy of any User Materials accessed or used via the App.
- Third-Party Materials. The App may display, include, or make available third-party content (including but not limited to data, audio files, documents, information and other materials and provide links to third-party websites or services. (“Third-Party Materials”). You acknowledge and agree that Jiveworld is not responsible for Third-Party Materials, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect thereof. Jiveworld does not assume and will not have any liability or responsibility to you or any other person or entity for any Third-Party Materials. Third-Party Materials and links thereto are provided solely as a convenience to you, and you access and use them entirely at your own risk and subject to such third parties’ terms and conditions.
- Updates. Jiveworld may from time to time in its sole discretion develop and provide App updates, which may include upgrades, bug fixes, patches, other error corrections, or new features (collectively, including related documentation, “Updates”). You acknowledge and agree that Updates may modify or delete in their entirety features and functionality of the App. You agree that Jiveworld has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality. Based on your Mobile Devices settings, when your Mobile Devices are connected to the internet:
You will promptly download and install all Updates, and you acknowledge and agree that the App or portions or functionality thereof may not properly operate should you fail to do so. You further agree that all Updates will be deemed part of the App and be subject to all terms and conditions of this Agreement.
- the App will automatically download and install Updates when Updates are available; or
- you may receive notice of or be prompted to download and install available Updates; or
- Updates may be made available for you to download and install in a similar manner to the means by which you downloaded and installed the App.
- Term and Termination.
- The term of Agreement commences when you download or install the App and will continue in effect until terminated by you or Jiveworld as set forth in this Section 10.
- You may terminate this Agreement by deleting the App and all copies thereof from your Mobile Devices.
- Jiveworld may terminate this Agreement at any time without notice if it ceases to support the App, which Jiveworld may do in its sole discretion. In addition, Jiveworld may terminate this Agreement immediately if Jiveworld determines, in its sole discretion, that you have violated any of the terms or conditions of this Agreement.
- Upon termination:
- all rights granted to you under this Agreement will also terminate; and
- you must cease all use of the App and delete all copies of the App from your Mobile Devices.
- Termination will not limit any of Jiveworld’s rights or remedies at law or in equity.
- Disclaimer of Warranties. TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE APP IS PROVIDED “AS IS” AND WITH “ALL FAULTS” AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, JIVEWORLD, ON ITS OWN BEHALF AND ON BEHALF OF ITS LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES OF ANY NATURE, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE APP, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND ALL WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING TO FOREGOING, JIVEWORLD PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE APP WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE, OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS, DOCUMENTS, MATERIALS OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR-FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATIONS ON IMPLIED WARRANTIES OR THE LIMITATIONS ON THE APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.
- Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL JIVEWORLD OR ANY OF ITS AFFILIATES OR REPRESENTATIVES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, HAVE ANY LIABILITY ARISING FROM OR RELATED TO YOUR USE OF OR INABILITY TO USE THE APP FOR:
THE FOREGOING LIMITATIONS WILL APPLY WHETHER SUCH DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR JIVEWORLD WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
- PERSONAL INJURY, PROPERTY DAMAGE, LOST PROFITS, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS, DAMAGE, CORRUPTION OR RECOVERY OF DATA, HARM TO REPUTATION, LOSS OF GOODWILL, BUSINESS INTERRUPTION, COMPUTER FAILURE OR MALFUNCTION, OR ANY OTHER CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED OR PUNITIVE DAMAGES.
- DIRECT DAMAGES IN AMOUNTS THAT IN THE AGGREGATE EXCEED THE AMOUNT ACTUALLY PAID BY YOU FOR THE APP.
SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY SO SOME OR ALL OF THE ABOVE LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU.
- Indemnification. You agree to indemnify, defend and hold harmless Jiveworld and its affiliates, and each of its and their respective officers, directors, employees, agents, successors and assigns (each, an “Indemnitee”) from and against any and all losses incurred by such Indemnitee in connection with any claim or action by a third party arising out of or relating to any: (i) content that you upload, post, email, transmit or otherwise make available via the App; (ii) your breach of any of your representations, warranties, covenants or obligations under this Agreement; or (iii) negligence or any more culpable act or omission (including recklessness or willful misconduct) by you in connection with this Agreement or its subject matter.
- Export Regulation. The App may be subject to US export control laws, including the US Export Administration Act and its associated regulations. You will not, directly or indirectly, export, re-export, or release the App to, or make the App accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. You will comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the App available outside the US.
- US Government Rights. The App is commercial computer software, as such term is defined in 48 C.F.R. §2.101. Accordingly, if you are an agent of the US Government or any contractor therefor, you receive only those rights with respect to the App as are granted to all other end users under license, in accordance with (a) 48 C.F.R. §227.7201 through 48 C.F.R. §227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. §12.212, with respect to all other US Government licensees and their contractors.
- Notices. Jiveworld may provide you with notices regarding the App by messages sent via the App or by email, postal mail, or similar methods. For all requests and notices to Jiveworld regarding this Agreement, your communication must be sent via email to [email protected].
- Severability. If any provision of this Agreement is illegal or unenforceable under applicable law, the remainder of the provision will be amended to achieve as closely as possible the effect of the original term and all other provisions of this Agreement will continue in full force and effect.
- Governing Law. This Agreement is governed by and construed in accordance with, and any dispute arising out of or relating to this Agreement or the App will be governed by, the laws of the State of California without giving effect to any choice or conflict of law provision or rule.
- Dispute Resolution by Arbitration. Any and all claims, causes of action or disputes (regardless of theory) arising out of or relating to this Agreement or the App, and in which Jiveworld is a party, will be settled by arbitration administered by the American Arbitration Association or its successor in accordance with its Commercial Arbitration Rules or other applicable rules as determined by the arbitrator(s). Arbitration proceedings will be conducted in Marin County, California in the English language, and, at the request of either party, result in a written statement of the facts and legal reasoning supporting the decision of the arbitrator(s). The costs of arbitration will be borne equally by the parties. Judgement on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.
- Waiver of Class and Collective Actions. To the fullest extent permitted by applicable law, YOU AND JIVEWORLD AGREE THAT (a) ANY CLAIM THAT ARISES FROM OR RELATES TO THIS AGREEMENT OR THE APP WILL NOT BE ASSERTED AS A CLASS ACTION OR COLLECTIVE ACTION, WHETHER IN ARBITRATION, COURT OR ANY OTHER FORUM; AND (b) THE ARBITRATOR(S) MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, NOR OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING AND MAY NOT AWARD CLASS-WIDE RELIEF. Disputes between You and Jiveworld arising from or relating to this Agreement or the App will be resolved only on an individual basis and will not be joined or consolidated with any other proceeding that involves any claim or controversy of any other party. Neither party will have a right to resolve such disputes on a class action basis or on any basis involving such disputes brought in a purported representative capacity on behalf of other persons or entities similarly situated or the general public.
- Legal Expenses. In the event that any action, suit, or other legal or administrative proceeding arising out of or relating to this Agreement or use of the App is instituted or commenced by either party against the other party, the prevailing party will be entitled, in addition to any other rights or remedies it may have, to recover its expenses relating to such proceeding from the non-prevailing party, including reasonable attorneys’ fees, court costs, and arbitration fees and expenses.
- Waiver. No failure to exercise, and no delay in exercising, on the part of either party, any right or any power hereunder will operate as a waiver thereof, nor will any single or partial exercise of any right or power hereunder preclude further exercise of that or any other right hereunder. In the event of a conflict between this Agreement and any applicable purchase or other terms, the terms of this Agreement will govern.
- Limitation of Time to File Claims. Each party agrees that any regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to this Agreement or use of the App must be filed within one (1) year after such claim or cause of action arose or be forever barred.