R8TR APP END USER LICENSE AGREEMENT
This End User License Agreement (“Agreement”) is a binding
agreement between you (“Licensee” or “you”) and R8TR LLC, a Missouri limited
liability company and its related subsidiaries affiliates and concerns
(collectively, “Company”). This Agreement governs your use of the R8TR App (the
“Application”). The Application is licensed, not sold, to you.
BY INSTALLING, DOWNLOADING, USING OR CLICKING THE “AGREE”
BUTTON YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT;
(B) REPRESENT THAT YOU ARE 18 YEARS OF AGE OR OLDER/OF LEGAL AGE TO ENTER INTO
A BINDING AGREEMENT; AND (C) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE
LEGALLY BOUND BY ITS TERMS. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT
DOWNLOAD, INSTALL, OR USE THE APPLICATION AND YOU MUST DELETE IT FROM ANY AND
ALL YOUR DEVICES.
Our Privacy Policy, and any other policies, rules or
guidelines that may be applicable to particular offers or features of the
Application (the “Policies”) are also incorporated into these Terms. By using,
installing or downloading the Application, you accept these Policies and agree
that you are legally bound by the terms contained therein.
This Agreement is between you and the Company only, and does
not include any third-party service provider, marketplace provider, or hardware
or platform provider such as, but not limited to Apple, Inc.
(“Apple”), Google, Inc. (“Google”) or Amazon, Inc. (“Amazon”),
collectively (“Platform Providers”). The Company, not the Platform Providers,
is solely responsible for the Application and its content. Although the
Platform Providers are not a party to this Agreement, Platform Providers have
the right to enforce this Agreement against you as a third-party beneficiary
relating to your use of the Application. In the event that the provisions of
this agreement are less restrictive or in conflict with any Usage Rules or
Terms of Service provided by any Platform Provider, the terms provided shall
control.
1.
License Grant. The Application is licensed, not sold, to you. Subject to the
terms of this Agreement, Company grants you a limited, non-exclusive and
nontransferable license to:
(a) download, install and use the Application for your
personal use on a single mobile device owned or otherwise controlled by you
(“Mobile Device”) strictly in accordance with the Application’s documentation
and as permitted by the usage rules set forth in any Platform Provider’s Terms
of Service;
(b) access, view, download and use on such Mobile Device the
content and services made available in or otherwise accessible through the
Application, strictly in accordance with this Agreement and the Privacy Policy.
2.
Your Restrictions. You shall not:
(a) copy the Application or any portion thereof, except as
expressly permitted by this license;
(b) modify, translate, adapt or otherwise create derivative
works or improvements, whether or not patentable, of the Application;
(c) reverse engineer, disassemble, decompile, decode or
otherwise attempt to derive or gain access to the source code of the
Application or any part thereof;
(d) remove, delete, alter or obscure any trademarks or any
copyright, trademark, patent or other intellectual property or proprietary
rights notices from the Application, including any copy thereof;
(e) rent, lease, lend, sell, sublicense, assign, distribute,
publish, transfer or otherwise make available the Application or any features
or functionality of the Application, to any third party for any reason,
including by making the Application available on a network where it is capable
of being accessed by more than one device at any time;
(f) remove, disable, circumvent or otherwise create or
implement any workaround to any copy protection, rights management or security
features in or protecting the Application;
(g) breach or circumvent any laws, regulations, third-party
rights or our systems, policies, or determinations of your account status;
(h) post, upload, transmit or communicate false, fraudulent,
inaccurate, misleading, deceptive, defamatory, or libelous content or
information;
(i)
distribute viruses or any other technologies that may cause harm or damage;
(j)
harvest or otherwise collect information about users without their consent;
3.
Your Obligations.
(a) You are
responsible for your account activity, so you must preserve the confidentiality
of your username and password.
(b) The
Application allows certain users to create, post, upload and/or transmit,
including but not limited to photos, text, or other materials (“User
Content”). Users are solely responsible for their User Content. You
understand that your User Content may be viewable by others. Company is not
responsible for User Content, but Company reserves the right, and have absolute
discretion, to review, screen and delete User Content at any time and for any
reason. By submitting, posting or displaying content on or through the
Application, you grant Company a worldwide, non-exclusive, royalty-free license
(with the right to sublicense) to use, copy, reproduce, process, adapt, modify,
publish, transmit, display and distribute such content in any and all media or
distribution methods (now known or later developed).
(c) You are
responsible for all dealings and transactions with other users. Company is not
a party to any such dealings and transactions and is not responsible for any
breach or failure of a party to abide by the party’s promises, representations
or obligations.
4.
Fees. The fees charged for using Company services are listed on the fees page
at https://www.r8tr.com/________________/.
Company also make fee information available on the Application. Company may
change fees from time to time by posting the changes on such page and other
locations Company lists fee information at least 10 days in advance, but with
no advance notice required for promotions or any changes that result in the
reduction of fees.
5. Reservation of Rights. You acknowledge and agree that the
Application is provided under license, and not sold, to you. You do not acquire
any ownership interest in the Application under this Agreement, or any other
rights thereto other than to use the Application in accordance with the license
granted, and subject to all terms, conditions and restrictions, under this
Agreement. Company and its licensors and service providers reserves and shall retain
their entire right, title and interest in and to the Application, including all
copyrights, trademarks and other intellectual property rights therein or
relating thereto, except as expressly granted to you in this Agreement.
6. Collection and Use of Your Information. You acknowledge
that when you download, install or use the Application, Company may use
automatic means (including, for example, cookies and web beacons) to collect
information about your Mobile Device and about your use of the Application. You
also may be required to provide certain information about yourself as a
condition to downloading, installing or using the Application or certain of its
features or functionality, and the Application may provide you with
opportunities to share information about yourself with others. All information
we collect through or in connection with this Application is subject to our
Privacy Policy. By downloading, installing, using and providing information to
or through this Application, you consent to all actions taken by us with
respect to your information in compliance with the Privacy Policy.
7. Intellectual Property. The Application is protected by
copyright laws and international copyright treaties, as well as other
intellectual property laws, trade secrets laws, and treaties. The Application
is licensed, not sold. You acknowledge that the Application contains
proprietary and confidential information and valuable trade secrets of the
Company, which the Company has entrusted to you in confidence to use only as
expressly permitted herein. Except for the limited license and rights granted
to you under the terms of this Agreement, Company retains all right, title, and
interest in and to the Application, all copies thereof, and all copyright,
trade secret, and any other intellectual property or proprietary rights
relating thereto. This Application is not for sale, distribution, or inclusion
with other products. In the event of any third-party claim that the Application
or the end-user’s possession and use of that Application infringes that third
party’s intellectual property rights, You, not the Platform Providers, will be
solely responsible for the investigation, defense, settlement and discharge of
any such intellectual property infringement claim.
8. Content and Services. The Application may provide you
with access to Company’s website located at www.r8tr.com
(the “Website”) and products and services accessible thereon, and certain
features, functionality and content accessible on or through the Application
may be hosted on the Website. Your access to and use of such content and
services are governed by Website’s Terms of Service and Privacy Policy located
at https://www.r8tr.com/terms_of_service/
and https://www.r8tr.com/privacy_policy/,
which are incorporated herein by this reference. Your access to and use of such
content and services may require you to acknowledge your acceptance of such
Terms of Service and Privacy Policy and/or to register with the Website and
your failure to do so may restrict you from accessing or using certain of the
Application’s features and functionality. Any violation of such Terms of
Service and Privacy Policy will also be deemed a violation of this Agreement.
9. Updates. Company may from time to time in its sole
discretion develop and provide Application updates, which may include upgrades,
bug fixes, patches and other error corrections and/or new features
(collectively, including related documentation, “Updates”). Updates may also
modify or delete in their entirety certain features and functionality. You
agree that Company has no obligation to provide any Updates or to continue to
provide or enable any particular features or functionality. Based on your
Mobile Device settings, when your Mobile Device is connected to the internet
either:
(a) the Application will automatically download and install
all available Updates; or
(b) you may receive notice of or be prompted to download and
install available Updates.
You shall promptly download and install all Updates and
acknowledge and agree that the Application or portions thereof may not properly
operate should you fail to do so. You further agree that all Updates will be
deemed part of the Application and be subject to all terms and conditions of
this Agreement. To the extent that any maintenance or support is required by
applicable law, the Company, not the Platform Providers, shall be obligated to
furnish any such maintenance or support.
10. Third-Party Materials. The Application may display,
include or make available third-party content (including data, information,
applications and other products services and/or materials) or provide links to
third-party websites or services, including through third-party advertising
(“Third-Party Materials”). You acknowledge and agree that Company is not
responsible for Third Party Materials, including their accuracy, completeness,
timeliness, validity, copyright compliance, legality, decency, quality or any
other aspect thereof. Company 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 at entirely at your own risk and
subject to such third parties’ terms and conditions.
11. Term and Termination.
(a) The term of Agreement commences when you download the
Application and will continue in effect until terminated by you or Company as
set forth in this Section 11.
(b) You may terminate this Agreement by deleting the
Application and all copies thereof from your Mobile Device.
(c) Company may terminate this Agreement at any time without
notice [if it ceases to support the Application, which Company may do in its
sole discretion. In addition, this Agreement will terminate immediately and
automatically without any notice if you violate any of the terms and conditions
of this Agreement.
(d) Upon termination:
(i) all rights granted to you under this Agreement will also
terminate; and
(ii) you must cease all use of the Application and delete
all copies of the Application from your Mobile Device and account.
(e) Termination will not limit any of Company’s rights or
remedies at law or in equity.
12. Disclaimer of Warranties. THE APPLICATION IS PROVIDED TO
LICENSEE “AS IS” AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND.
TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, COMPANY, ON ITS OWN
BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS
AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS,
IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE APPLICATION, INCLUDING ALL
IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE
AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING,
COURSE OF PERFORMANCE, USAGE OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING,
COMPANY PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY
KIND THAT THE APPLICATION WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED
RESULTS, BE COMPATIBLE OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS
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, BUT IN NO EVENT SHALL THE PLATFORM PROVIDERS
BE RESPONSIBLE FOR ANY WARRANTIES. IN THE EVENT OF ANY FAILURE OF THE
APPLICATION TO CONFORM TO ANY APPLICABLE WARRANTY, YOU MAY NOTIFY THE PLATFORM
PROVIDER (WHERE APPLICABLE), AND PLATFORM MAY REFUND THE PURCHASE PRICE FOR THE
LICENSED APPLICATION TO YOU; AND THAT, TO THE MAXIMUM EXTENT PERMITTED BY
APPLICABLE LAW, THE PLATFORM PROVIDER WILL HAVE NO OTHER WARRANTY OBLIGATION
WHATSOEVER WITH RESPECT TO THE APPLICATION, AND ANY OTHER CLAIMS, LOSSES,
LIABILITIES, DAMAGES, COSTS OR EXPENSES ATTRIBUTABLE TO ANY FAILURE TO CONFORM
TO ANY WARRANTY WILL BE THE SOLE RESPONSIBILITY OF THE COMPANY. TO THE EXTENT
YOU HAVE ANY CLAIM ARISING FROM OR RELATING TO YOUR USE OF THE APPLICATION, THE
COMPANY, NOT THE PLATFORM PROVIDERS, IS RESPONSIBLE FOR ADDRESSING ANY SUCH
CLAIMS, WHICH MAY INCLUDE, BUT ARE NOT LIMITED TO: (I) ANY PRODUCT LIABILITY
CLAIM; (II) ANY CLAIM THAT THE APPLICATION FAIL TO CONFORM TO ANY APPLICABLE
LEGAL OR REGULATORY REQUIREMENT; AND (III) ANY CLAIM ARISING UNDER CONSUMER
PROTECTION OR SIMILAR LEGISLATION. NOTHING IN THIS MOBILE ADDENDUM SHALL BE
DEEMED AN ADMISSION THAT YOU MAY HAVE SUCH CLAIMS.
13. Limitation of Liability. UNDER NO CIRCUMSTANCES WILL THE
COMPANY, ITS AFFILIATES, ITS LICENSORS, OR ANY OF SUCH PARTIES’ AGENTS,
EMPLOYEES, OFFICERS, DIRECTORS, CORPORATE PARTNERS, OR PARTICIPANTS BE LIABLE
TO YOU FOR ANY LOSS OR DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, FOR
ANY DIRECT, INDIRECT, ECONOMIC, EXEMPLARY, SPECIAL, PUNITIVE, INCIDENTAL OR
CONSEQUENTIAL LOSSES OR DAMAGES) THAT ARE DIRECTLY OR INDIRECTLY RELATED TO:
(A) THE APPLICATION; (B) THE CONTENT AND SERVICES; (C) YOUR USE OF, INABILITY
TO USE THE APPLICATION; (D) THE PERFORMANCE OF THE APPLICATION; (E) ANY ACTION
TAKEN IN CONNECTION WITH AN INVESTIGATION BY THE COMPANY, ITS AFFILIATES, ITS
LICENSORS, OR ANY OF SUCH PARTIES’ AGENTS, EMPLOYEES, OFFICERS, DIRECTORS,
CORPORATE PARTNERS, OR PARTICIPANTS OR LAW ENFORCEMENT AUTHORITIES REGARDING
YOUR OR ANY OTHER PARTY’S USE OF THE APPLICATION; (F) ANY ACTION TAKEN IN
CONNECTION WITH COPYRIGHT OR OTHER INTELLECTUAL PROPERTY OWNERS; (G) ANY ERRORS
OR OMISSIONS IN THE APPLICATION’S OPERATION; OR (H) ANY DAMAGE TO ANY USER’S
COMPUTER, MOBILE DEVICE, OR OTHER EQUIPMENT OR TECHNOLOGY INCLUDING, WITHOUT
LIMITATION, DAMAGE FROM ANY SECURITY BREACH TO A USERS COMPUTER OR TO A USERS
DATA VIA A SECURITY BREACH TO A THIRD PARTY HOST, OR FROM ANY VIRUS, BUGS,
TAMPERING, HACKING, FRAUD, ERROR, OMISSION, INTERRUPTION, DEFECT, DELAY IN
OPERATION OR TRANSMISSION, COMPUTER LINE OR NETWORK FAILURE OR ANY OTHER
TECHNICAL OR OTHER MALFUNCTION, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST
PROFITS, LOSS OF GOODWILL, LOSS OF DATA, WORK STOPPAGE, ACCURACY OF RESULTS, OR
COMPUTER FAILURE OR MALFUNCTION, EVEN IF FORESEEABLE OR EVEN IF THE COMPANY,
ITS AFFILIATES, ITS LICENSORS, OR ANY OF SUCH PARTIES’ AGENTS, EMPLOYEES,
OFFICERS, DIRECTORS, CORPORATE PARTNERS, OR PARTICIPANTS HAVE BEEN ADVISED OF
OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER IN AN ACTION
OF CONTRACT, NEGLIGENCE, STRICT LIABILITY OR TORT (INCLUDING, WITHOUT
LIMITATION, WHETHER CAUSED IN WHOLE OR IN PART BY NEGLIGENCE, ACTS OF GOD,
TELECOMMUNICATIONS FAILURE, OR THEFT OR DESTRUCTION OF THE APPLICATION). IN NO
EVENT WILL THE COMPANY, ITS AFFILIATES, ITS LICENSORS, OR ANY OF SUCH PARTIES’
AGENTS, EMPLOYEES, OFFICERS, DIRECTORS, CORPORATE PARTNERS, OR PARTICIPANTS BE
LIABLE TO YOU OR ANYONE ELSE FOR LOSS, DAMAGE OR INJURY, INCLUDING, WITHOUT
LIMITATION, DEATH OR PERSONAL INJURY. SOME STATES DO NOT ALLOW THE EXCLUSION OR
LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR
EXCLUSION MAY NOT APPLY TO YOU. IN NO EVENT WILL THE COMPANY, ITS AFFILIATES,
ITS LICENSORS, OR ANY OF SUCH PARTIES’ AGENTS, EMPLOYEES, OFFICERS, DIRECTORS,
CORPORATE PARTNERS, OR PARTICIPANTS TOTAL LIABILITY TO YOU FOR ALL DAMAGES,
LOSSES OR CAUSES OR ACTION EXCEED ONE UNITED STATES DOLLAR ($1.00).
BY ACCESSING THE APPLICATION, YOU UNDERSTAND THAT YOU MAY BE
WAIVING RIGHTS WITH RESPECT TO CLAIMS THAT ARE AT THIS TIME UNKNOWN OR
UNSUSPECTED.
YOU ARE SOLELY RESPONSIBLE FOR YOUR INTERACTIONS, DEALINGS
AND TRANSACTIONS WITH OTHER USERS. YOU UNDERSTAND THAT THE COMPANY CURRENTLY
DOES NOT CONDUCT CRIMINAL BACKGROUND CHECKS OR SCREENINGS ON ITS USERS. THE
COMPANY ALSO DOES NOT INQUIRE INTO THE BACKGROUNDS OF ALL OF ITS USERS OR
ATTEMPT TO VERIFY THE STATEMENTS OR REPRESENTATIONS OF ITS USERS. THE COMPANY
MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT OR ABILITIES OF USERS.
THE COMPANY RESERVES THE RIGHT TO CONDUCT ANY CRIMINAL BACKGROUND CHECK OR
OTHER SCREENINGS, AT ANY TIME AND USING AVAILABLE PUBLIC RECORDS. COMPANY IS NOT
RESPONSIBLE FOR THE ACTIONS, CONTENT, INFORMATION, OR DATA OF USERS OR OTHER
THIRD PARTIES, AND YOU RELEASE US, OUR DIRECTORS, OFFICERS, MANAGERS, OWNERS,
EMPLOYEES, AND AGENTS FROM ANY CLAIMS AND DAMAGES, KNOWN AND UNKNOWN, ARISING
OUT OF OR IN ANY WAY CONNECTED WITH ANY CLAIM YOU HAVE AGAINST ANY SUCH USERS
OR OTHER THIRD PARTIES.
14. Indemnification. You agree to indemnify, defend and hold
harmless Company and its officers, directors, employees, agents, affiliates,
successors and assigns from and against any and all losses, damages,
liabilities, deficiencies, claims, actions, judgments, settlements, interest,
awards, penalties, fines, costs, or expenses of whatever kind, including
attorneys’ fees, arising from or relating to your use or misuse of the
Application or your breach of this Agreement. Furthermore, you agree that
Company assumes no responsibility for the content you submit or make available
through this Application.
15. Export Regulation and Compliance. The Application may be
subject to US export control laws, including the US Export Administration Act
and its associated regulations. You agree to not, directly or indirectly,
export, re-export or release the Application to, or make the Application
accessible from, any jurisdiction, or country to which export, re-export or
release is prohibited by law, rule or regulation, including but not limited to
any “terrorist supporting country.” You shall 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
Application available outside the US. You represent and warrant that you are
not listed on any U.S. Government list of prohibited or restricted parties.
16. 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.
17. Governing Law; Jurisdiction and Venue. This Agreement is
governed by and construed in accordance with the internal laws of the State of
Missouri without giving effect to any choice or conflict of law provision or
rule. Any legal suit, action or proceeding arising out of or related to this
Agreement or the Application shall be instituted exclusively in the federal
courts of the United States or the courts of the State of Missouri in each case
located in St. Louis County, Missouri. You waive any and all objections to the
exercise of jurisdiction over you by such courts and to venue in such courts.
YOU MAY ONLY RESOLVE DISPUTES WITH COMPANY ON AN INDIVIDUAL BASIS, AND MAY NOT
BRING A CLAIM AS A PLAINTIFF OR A CLASS MEMBER IN A CLASS, CONSOLIDATED, OR
REPRESENTATIVE ACTION. CLASS ARBITRATIONS, CLASS ACTIONS, PRIVATE ATTORNEY
GENERAL ACTIONS, AND CONSOLIDATION WITH OTHER ARBITRATIONS ARE NOT ALLOWED.
18. Entire Agreement. This Agreement and our Privacy Policy
constitute the entire agreement between you and Company with respect to the
Application and supersede all prior or contemporaneous understandings and
agreements, whether written or oral, with respect to the Application.
19. Waiver. No failure to exercise, and no delay in
exercising, on the part of either party, any right or any power hereunder shall
operate as a waiver thereof, nor shall 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 shall govern.
20. Assignment. The Application and this Agreement may not
be assigned, sublicensed, sold, pledged, or otherwise transferred or allow this
Agreement to be assumed by a successor, whether voluntarily, by operation of
law, or otherwise, without prior written consent from the Company. Any
purported assignment or assumption made in violation of this provision shall be
null and void.
21. Survival. You acknowledge that, except for the
provisions of Section 1, all other provisions of this Agreement shall survive
any expiration or termination of this Agreement.
