SPENZ INC.
LICENSED APPLICATION END USER LICENSE AGREEMENT
This agreement applies to you, your successors, assigns, agents, guardians, trustees, or other individuals or entities with the authority to bind you to contract, the user (hereinafter referred to as “You”) of Spenz (“the Licensed Application”) and is made with Spenz Inc. (“Spenz”), the owner of the Licensed Application. You acknowledge that Spenz is the sole provider of the Licensed Application and that your agreement for the use of the Licensed Application is not with Apple Inc., its subsidiaries or affiliates. Any terms that conflict with or are less restrictive in this Agreement than the App Store Terms of Service shall be interpreted so as to conform with App Store Terms of Service, which You have acknowledged you have had the opportunity to review. Your agreement to comply with and be bound by this end user license application agreement along with the general terms and conditions contained herein (the “Agreement”) is deemed to occur upon your purchase and/or first use of the Licensed Application. If you do not agree to be bound by this Agreement, you should not download and/or purchase and stop using the Licensed Application immediately.
You represent and warrant that you are the owner of the iPhone or iPod Touch (the “Device”) and that You have authorized the download and installation of the Licensed Application, or the owner of the Device has authorized You to do so. You agree, with respect to all other users of the Device, that You have caused the Licensed Application to reside, to provide a copy of the Privacy Statement and this Agreement, and to obtain their consent to same before allowing them to use the Device to use the Licensed Application. Also, You agree not to use the Licensed Application, in a manner prohibited by law, or in violation of any contractual provision by which You are bound. You agree to comply with all applicable laws, rules and regulations in your use of the Licensed Application.
You agree that you will not use, or encourage others to use, any robot, spider, other automatic or non-automatic manual device or process intended to interfere or attempt to interfere with the proper working of the Licensed Application, or third party supported software or application. You agree not to use any means to avoid the delivery of any advertising with our branding while retaining the ability to use any part of the Licensed Application.
You understand that the Licensed Application comprise voluntary software programs and you may uninstall any of them at any time. Thereafter, the Licensed Application will remove itself. Please note that uninstalling all supported Licensed Application does not uninstall any of the enhancement technologies.
This Agreement may be terminated at any time, by You, by uninstalling all of the Licensed Application from the Device using the standard Apple Inc. uninstall procedures and destroying any other copies of the Licensed Application you may have made. The uninstall instructions posted on our Web site at the following URL: http://www.spenz.com/uninstall are herein incorporated by reference -- a list of supported Licensed Applications on your Device and more detailed removal instructions are provided by clicking on the previously referenced URL or copying same into your Device browser.
You are solely responsible for maintaining the confidentiality of your password(s). You are also responsible for all uses of Your information stored in any supported Licensed Application, whether or not authorized by You.
The Licensed Application may enable access to Spenz’ and third party services and web sites (collectively and individually, "Services"). Use of the Services may require Internet access and that You accept additional terms of service.
You understand that by using any of the Services, You may encounter content that may be deemed offensive, indecent, or objectionable, which content may or may not be identified as having explicit language, and that the results of any search or entering of a particular URL may automatically and unintentionally generate links or references to objectionable material. Nevertheless, You agree to use the Services at Your sole risk and that Spenz shall not have any liability to You for content that may be found to be offensive, indecent, or objectionable.
Certain Services may display, include or make available content, data, information, applications or materials from third parties (“Third Party Materials”) or provide links to certain third party web sites. By using the Services, You acknowledge and agree that Spenz is not responsible for examining or evaluating the content, accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect of such Third Party Materials or web sites. Spenz does not warrant or endorse and does not assume and will not have any liability or responsibility to You or any other person for any third-party Services, Third Party Materials or web sites, or for any other materials, products, or services of third parties. Third Party Materials and links to other web sites are provided solely as a convenience to You. Financial information displayed by any Services is for general informational purposes only and is not intended to be relied upon as investment advice. Before executing any securities transaction based upon information obtained through the Services, You should consult with a financial professional. Location data provided by any Services is for basic navigational purposes only and is not intended to be relied upon in situations where precise location information is needed or where erroneous, inaccurate or incomplete location data may lead to death, personal injury, property or environmental damage. Neither Spenz, nor any of its content providers, guarantees the availability, accuracy, completeness, reliability, or timeliness of stock information or location data displayed by any Services.
You agree that any Services contain proprietary content, information and material that is protected by applicable intellectual property and other laws, including but not limited to copyright, and that You will not use such proprietary content, information or materials in any way whatsoever except for permitted use of the Services. No portion of the Services may be reproduced in any form or by any means. You agree not to modify, rent, lease, loan, sell, distribute, or create derivative works based on the Services, in any manner, and You shall not exploit the Services in any unauthorized way whatsoever, including but not limited to, by trespass or burdening network capacity. You further agree not to use the Services in any manner to harass, abuse, stalk, threaten, defame or otherwise infringe or violate the rights of any other party, and that Spenz is not in any way responsible for any such use by You, nor for any harassing, threatening, defamatory, offensive or illegal messages or transmissions that You may receive as a result of using any of the Services.
In addition, third party Services and Third Party Materials that may be accessed from, displayed on or linked to from the iPhone or iPod touch are not available in all languages or in all countries. Spenz makes no representation that such Services and Materials are appropriate or available for use in any particular location. To the extent You choose to access such Services or Materials, You do so at Your own initiative and are responsible for compliance with any applicable laws, including but not limited to applicable local laws. Spenz, and its licensors, reserve the right to change, suspend, remove, or disable access to any Services at any time without notice. In no event will Spenz be liable for the removal of or disabling of access to any such Services. Spenz may also impose limits on the use of or access to certain Services, in any case and without notice or liability.
We grant you a non-exclusive, non-transferable, limited licence, pursuant to the terms hereof, to install and use the most current versions of Licensed Application on any Device that You own or control solely for the purpose of accessing and using Licensed Application available through Spenz’ Web site or servers, or the Web sites and servers of our business associates; and use of Licensed Application for your personal, non-commercial purposes all in accordance with the controls permitted by the Usage Rules set forth in the App Store Terms of Service.
Your licence to an existing version of the Licensed Application may, at Spenz’ discretion, expire when new versions of the Licensed Application are released. We reserve the right to add additional features or functions to existing Licensed Application(s), or to add new applications to the Licensed Application, at any time. When installed on your Device, all Licensed Application(s) that communicate with our or third party servers do so as described in the Privacy Statement. Additionally, Spenz may require the update or automatic distribution of the Licensed Application on your Device when a new version of the Licensed Application is released to the general public, when new features are available, to deliver promotional offers, and/or to add new applications to the applications that comprise the Licensed Application. This update or new download may occur automatically or through other means. You understand that Spenz and/or one of its business associates may require Your review and acceptance of the Spenz or business associates’ then current privacy statement and/or licence agreement before You will be permitted a limited licence to any subsequent versions of the Licensed Application.
Notwithstanding the foregoing, Spenz and its business associates have no obligation to make available to You any subsequent versions of Licensed Application. You may not distribute or copy (other than for backup purposes) Licensed Application. You may not modify, reverse-engineer, decompile, disassemble, or otherwise discover or disassemble Licensed Application or equivalent of Licensed Application in any way. You do not have the right to create derivative works of Licensed Application, and you agree not to attempt, or allow others to attempt, to reverse-engineer Licensed Application and/or modify Licensed Application source code. Any and all such modifications or enhancements to Licensed Application by You, Spenz, or its business associates shall remain sole property of Spenz or that of our business associates. You further agree not to access either Spenz’ or its business associates' services or software applications by any means other than the interface provided by Spenz or them to access the relevant service. Without limiting our rights, you understand that Spenz, in its discretion, may modify, discontinue, or suspend Your right to access any of the Licensed Application at any time.
Spenz reserves all rights in Licensed Application not expressly granted to you in this Agreement.
You may not rent, lend, transfer, assign or lease the Licensed Application, but You may transfer Your rights under this Agreement on a permanent basis provided that you transfer all copies of the Licensed Application and this Agreement, and the recipient agrees to be bound by this Agreement. Any transfer must include the most recent product upgrade.
You agree that all Licensed Materials are licensed, not sold to you. You agree that Licensed Materials belong to us, including all intellectual and proprietary rights, unless otherwise specified. We retain all right, title and interest in and to Licensed Materials at all times, and regardless of the form or media in or on which the original or other copies may subsequently exist. Additionally, all content accessed through Licensed Materials is the property of the applicable content owner and may be protected by applicable intellectual property laws. This Agreement gives you no rights to such content. Finally, any suggestions, ideas or inventions that you voluntarily and optionally disclose to us through any means will be used, or not used, by us at our sole discretion; and, we will have no obligation to you regarding any ideas or inventions that you disclose through such means.
Should You receive notice that a third party disputes the right, title, or interest held by Spenz in and to the Licensed Application, through a claim, objection, filing, or other procedure, or claims that Spenz is infringing on the right of any third party by making the Licensed Application available, you shall notify Spenz and Spenz shall be solely responsible for the investigation, defence, settlement and discharge of any such intellectual property infringement claim.
You acknowledge that Apple Inc., its affiliates and subsidiaries have no obligation to provide maintenance or support services for the Licensed Application(s). Any questions concerning the operation of the Licensed Application(s), maintenance, or support issues should be directed to info@spenz.com, in writing to 10 Dundas St. E., Suite AMC-502, Toronto, Ontario, M5B 2G9 or by telephone to 416-455-6080. Spenz will make commercially reasonable efforts to address Your concerns regarding the Licensed Application. All other communication, including both positive and negative feedback may be directed to info@spenz.com or 416-455-6080. While Spenz makes an effort to respond to customer inquiries, it cannot guarantee a specific response time.
Use of the Licensed Application is at Your own risk. Spenz provides the Licensed Application on an “as is”, “where is”, basis without warranty of any kind, either express, implied or statutory, including but not limited to the implied warranties or conditions of merchantability, fitness for a particular purpose, accuracy or non-infringement. Spenz also disclaims all liability with regard to your viewing of any Web Sites or other content that may be linked from any Licensed Application. This disclaimer or warranty constitutes an essential part of this Agreement. Spenz makes no warranty that the Licensed Application is accurate, timely, uninterrupted or error-free, the results that may be obtained from the use of the Licensed Application will be reliable, the Licensed Application will identify any identity theft, the quality of any products obtained or purchased through the use of the Licensed Application will meet your expectations or any errors in the Supplied Materials will be corrected.
The above exclusions may not apply in jurisdictions that do not allow the exclusion of certain implied warranties.
Should the Licensed Application fail to conform to any applicable warranty (which has not already been disclaimed or which may not be disclaimed by operation of law), You may notify Apple Inc. and Apple Inc. will refund the purchase price for the Licensed Application and to the maximum extent permitted by applicable law, neither Apple, its subsidiaries or affiliates shall have no other warranty obligation whatsoever with respect to the Licensed Application, and any other claims, losses, liabilities, damages, costs or expenses attributable to any breach of warranty, insofar as such warranty has not been disclaimed, shall by the sole responsibility of Spenz.
In no event will Spenz, our distributors, distributees, suppliers, merchant business associates, advertisers, third party developers or distributors of supported software, or any of the foregoing entities’ officers, directors, employees, or agents (collectively “protected parties”) be liable for any indirect damages, including, by way of illustration and not limitation, lost profits, lost business or lost opportunity, or any indirect, special, incidental or consequential or exemplary damages, including legal fees, arising out of our privacy statement, this Agreement, or your use or inability to use Licensed Application even if a protected party has been advised of the possibility of such damages. In no event will protected parties’ maximum cumulative liability under this Agreement, or our Privacy Statement, exceed $50.00.
Because some jurisdictions do not allow the exclusion or the limitation of liability for consequential or incidental damages, in such provinces, states or jurisdictions, protected parties' liability shall be limited to the extent permitted by law.
You agree that Spenz, and not Apple Inc., its affiliates or subsidiaries, is responsible for responding to any claims made by You or third parties relating to the Licensed Application or Your possession and/or use of the Licensed Application, including but not limited to: (i) product liability claims; (ii) any claim that the Licensed Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
Protected parties assume no liability hereunder for, and shall have no obligation to defend you or to pay costs, damages or legal fees for, any claim arising from:
(a) any method or process in which Licensed Application may be used by you;
(b) any results of using Licensed Application;
(c) any use of other than a current unaltered release of Licensed Application; or
(d) the combination, operation or use of any Licensed Application furnished hereunder with non-Licensed Application(s) where such infringement would have been avoided by avoidance of the combination, operation or use of the Licensed Application with other programs, data or other materials.
You agree to be bound by and comply with the Privacy Statement applicable to any Licensed Application, the privacy statements applicable to third party supported software, and any other policies governing the use of the Licensed Application which, as appropriate, you have accepted via a click-thru agreement; or have been provided notice. Visit http://www.spenz.com to view a list of any third parties, if any, who set and access cookies on your Device in order to facilitate a feature or service of the supported Licensed Application. This list will also include links to their privacy statements. In addition to the agreement provided by you under the Privacy Statement, you further agree and acknowledge that Spenz may communicate aggregated financial data, geographic data, demographic data, and time data to third parties for the purposes of providing you with third party offers, services, and products that correspond with Your user profile. Third parties will only receive non-identifying data which allows them to communicate offers, products, or services to all individuals with similar user profiles and not directly to you. You agree that you will not use or display the Licensed Application in such a way that would give rise to the unauthorized collection, use, or disclosure of private, confidential or personal information of any third party without that third party’s prior written consent. You agree to hold Spenz, its employees, agents, directors, officers, assigns, affiliates, and subsidiaries, and Apple Inc. harmless and defend and indemnify them against any claim by a third party that you have breached their rights to privacy and confidentiality at common law or by statute.
Subject to the Human Rights Code (Ontario), the Licensed Application, and the underlying information and technology may not be downloaded or otherwise exported or re-exported into (or to a national or resident of) any other country to which the U.S. has embargoed goods; or to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Table of Deny Orders, or other country or national of a country that has been designated as a “terrorist supporting” country. By downloading or using the Licensed Application, You are agreeing to the foregoing and you represent and warrant that you are not located in, under the control of, or a national or are resident of any such country or on any such list, and that you will otherwise comply with all applicable export control laws. Where this clause 16 is in conflict with the Human Rights Code (Ontario), it shall be interpreted in a way so as not to be in conflict with the law.
The laws of the Province of Ontario will govern this agreement, without reference to conflicts of law principles. The parties hereby submit to the jurisdiction of, and waive any venue objections against, the provincial and federal courts in Toronto, Ontario. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this agreement.
17. Arbitration
Any claim or controversy arising out of or related to this Agreement, Licensed Application, or any other supported software shall be settled by binding arbitration in accordance with the rules of ADR Chambers Expedited Arbitration Rules, in Toronto, Ontario and in accordance with the Arbitration Act, 1991 (Ontario). Any such claim or controversy shall be arbitrated on an individual basis and shall not be consolidated with a claim of any other party. The foregoing shall not preclude Spenz from seeking any injunctive relief in any local, provincial or federal courts for protection of our intellectual property rights or the protection of third party personal information.
This Agreement may change in the future. In such case, Spenz will notify you of changes and by using the Licensed Application You provide your ongoing consent to the changes.
In most cases, Spenz will provide you with an online pop-up window notice informing you that changes have been made to the Agreement and will provide you either with an active link, or inactive URL address, that you can use to view a Web page containing the revised documents (or leading you to the appropriate documents). Spenz will always post our most recent Privacy Statement and this Agreement on its Web site that can be accessed at http://www.spenz.com.
You agree that after receipt of such change notice, you consent to Spenz’ revised terms and conditions unless you uninstall all supported Licensed Applicaiton from your Device, and destroy all copies of same you may have created. Failure to uninstall and destroy all supported Licensed Applications from your device will be deemed an acceptance of the terms of Spenz’ most current terms and conditions for which you have given your consent, or for which you have been given notice, as appropriate. Except as provided in this section, these terms and conditions may not be revised except in writing signed by all relevant parties.
Licensed Materials are provided with restricted rights. Use, duplication or disclosure by the United States Government is subject to restrictions set forth in subparagraph (c)(1)(ii) of The Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or subparagraphs (c)(1) and (2) of the Commercial Computer Software-Restricted Rights at 48 C.F.R. 52.227-19, as applicable.
These terms and conditions, as modified from time to time as described above, and including the policies incorporated by reference, set forth the entire understanding and agreement between You and Spenz with respect to the subject-matter hereof. You further acknowledge and agree that Apple Inc. and its affiliates and subsidiaries are third party beneficiaries of this Agreement and that, upon your acceptance of the within terms and conditions, Apple Inc. has the right to enforce this Agreement against You as a third party beneficiary hereof. If any provision or provisions hereof shall be held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not be in any way affected or impaired thereby. Spenz shall not be liable for any delay or failure in performance under this Agreement or interruption of service resulting from acts of God, civil or military authority, war, labour disputes, materials provided by third parties, or any cause beyond our reasonable control. Except as described herein, you may not assign this agreement without our explicit consent.
(1) Spenz is a mark of Spenz Inc. The use of the mark Spenz, alone, is strictly prohibited.
