This Mobile App End User License Agreement (the “Agreement”) is a binding agreement between you (“End User” or “you”) and PHY.net, a Delaware corporation (“PHY.net”). This Agreement governs your use of this mobile device application (the application, together with all related documentation, the “App”) on any supported mobile platform and device (“Mobile Device”).
BY INSTALLING AND 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. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT INSTALL OR USE THE APP.
- License Grant. Subject to the terms of this Agreement, PHY.net grants you a limited, non-exclusive, and nontransferable license to download, install, and use the App on a Mobile Device.
- License Restrictions. Licensee shall not copy the App (except as expressly permitted by this license), 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, or 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.
- 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, or any other 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. PHY.net reserves and shall retain its 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.
- Updates. PHY.net from time to time in its sole discretion may develop and provide App updates, which may include upgrades, bug fixes, patches, and other error corrections and/or new features (collectively, including related documentation, “Updates”). Updates also may modify or delete in their entirety certain features and functionality. You agree that PHY.net 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 the App will automatically download and install all available Updates or you may receive notice of or be prompted to download and install available Updates. You further agree that all Updates will be deemed part of the App and be subject to all terms and conditions of this Agreement.
- Term and Termination. The term of this Agreement commences when you install the App and will continue in effect until terminated as set forth in this paragraph. You may terminate this Agreement by deleting the App and all copies thereof from your Mobile Device. This Agreement will terminate immediately and automatically without any notice if you violate any of the terms and conditions of this Agreement. Termination will not limit any of PHY.net’s rights or remedies at law or in equity.
- Disclaimer of Warranties. THE APP IS PROVIDED TO YOU “AS IS,” WITH ALL FAULTS AND DEFECTS, AND WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, PHY.NET, 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 APP, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, PHY.NET 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, 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 PHY.NET OR ITS AFFILIATES, 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 OR THE CONTENT AND SERVICES. 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 PHY.NET WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- Indemnification. You agree to indemnify, defend, and hold harmless PHY.net, its affiliates, and their respective officers, directors, employees, and agents, and the heirs, successors, and assigns of the foregoing, 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 claims of third parties relating to your use of the App or your breach of this Agreement.
- Users of the Apple Platform. If you download and use the iOS version of the App from the Apple App Store, you agree to the provisions in this paragraph. You acknowledge that this Agreement is entered into by and between PHY.net and you and not with Apple, Inc. The foregoing notwithstanding, you acknowledge that Apple, Inc., and its subsidiaries are third-party beneficiaries of this Agreement and that Apple, Inc., has the right (and is deemed to have accepted the right) to enforce this Agreement. You acknowledge that Apple, Inc. has no obligation whatsoever to furnish any maintenance and support services with respect to the App. You acknowledge that you have reviewed the App Store Terms and Conditions (located online at http://www.apple.com/legal/itunes/us/terms.html#APPS). This Agreement incorporates by reference the Licensed App End User License Agreement (the “Apple Agreement”) published by Apple, Inc. (located online at http://www.apple.com/legal/itunes/appstore/dev/stdeula/). For purposes of this Agreement, the App is considered the “Licensed App” as defined in the Apple Agreement and PHY.net is considered the “App Provider” as defined in the Apple Agreement. If any terms of this Agreement conflict with the terms of the Apple Agreement, the terms of this Agreement shall control unless otherwise required by the Apple Agreement. You further acknowledge and agree that in no event will Apple, Inc., be responsible for any claims relating to the App (including without limitation a third-party claim that the App infringes that third party’s intellectual property rights) or your use or possession of the App, including without limitation (i) product liability claims. (ii) any claim that the App fails to conform to any applicable legal or regulatory requirement, and (iii) claims arising under consumer protection or similar legislation.
- Users of the Google Play Store. If you download and use the Android version of the App from the Google Play Store, you agree to the provisions in this paragraph. You acknowledge that this Agreement is entered into by and between PHY.net and you, not with Google, Inc. This Agreement incorporates by reference the Google Play Developer Distribution Agreement (the “Google Agreement”) published by Google, Inc. (located online at https://play.google.com/about/developer-distribution-agreement.html). If any terms of this Agreement conflict with the terms of the Google Agreement, the terms of this Agreement shall control unless otherwise required by the Google Agreement.
- 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 the internal laws of the State of Tennessee, USA, 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 App shall be instituted exclusively in the federal courts of the United States or the courts of the State of Tennessee in each case located in Davidson County. You waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts.
- Waiver of Jury Trial. EACH OF THE PARTIES HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION ARISING OUT OF, RELATING TO OR IN CONNECTION WITH THIS AGREEMENT. FURTHER, EACH PARTY CERTIFIES THAT NO REPRESENTATIVE OR AGENT OF EITHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH PARTY WOULD NOT, IN THE EVENT OF SUCH LITIGATION, SEEK TO ENFORCE THIS WAIVER OF RIGHT TO JURY TRIAL PROVISION. Each of the parties acknowledges that this section is a material inducement for the other party to enter into this Agreement.
- Limitation of Time to File Claims. ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE APP MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES; OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
- 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.