DIAMOND KINETICS, INC. MOBILE APPLICATION END USER LICENSE AGREEMENT
Last Updated: 4/4/2023
BY USING, ACCESSING, DOWNLOADING, INSTALLING OR OTHERWISE INTERACTING WITH THE APPLICATION, OR BY CLICKING “ACCEPT” OR “AGREE” TO THIS AGREEMENT WHEN THIS OPTION IS MADE AVAILABLE TO YOU, YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENT THAT YOU ARE 18 YEARS OF AGE OR OLDER; AND (C) UNDERSTAND AND ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT USE, ACCESS, DOWNLOAD, INSTALL, OR OTHERWISE INTERACT WITH THE APPLICATION AND DELETE IT FROM YOUR MOBILE DEVICE, OR ANY OTHER EQUIPMENT PLATFORM IN WHICH THE APPLICATION MAY BE ACCESSIBLE FROM TIME TO TIME.
1.) Terms Service. This Agreement governs your license to download, install, use, or otherwise access the Application. The content and services offered on or made available through the Application and our other products and services whether offered on or made available through the Application, the Website, products, or otherwise (the “Services”) are governed by our Terms of Service. Unless otherwise expressly provided herein, this Agreement shall be subject to all the terms and conditions of the Terms of Service, each of which shall not be superseded hereby, but shall remain in full force and effect to the fullest extent provided therein and herein. In the event of any conflict or inconsistency between the Terms of Service and this Agreement, the terms of the Terms of Service shall govern
2.) Application License Grant. Subject to the terms of this Agreement and Terms of Service, Diamond Kinetics grants you a limited, non-exclusive, and non-transferable, non-sublicensable, revocable license to:
(a) download, install, and use a copy of the Application for your personal, non-commercial use on a single mobile device, computer, or other technology platform in which the Application is made available from time to time, owned or otherwise controlled by you (“Mobile Device”) strictly in accordance with the Application’s documentation; and
(b) access, stream, download, and use on such Mobile Device the Content and Services (as defined in Section 6) made available in or otherwise accessible through the Application, strictly in accordance with this Agreement and the Terms of Service applicable to such Content and Services as set forth in Section 6.
3.) License Restrictions. Except as otherwise expressly permitted by this Agreement, you shall not:
(a) copy the Application;
(b) modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of or based on 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; or
(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.
4.) 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. Diamond Kinetics and its licensors and service providers reserve and shall retain all such 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.
7.) Geographic Restrictions. You acknowledge that you may not be able to access all or some of the Services and Application outside of the United States and that access thereto may not be legal by certain persons or in certain countries. If you access the Services and Application from outside the United States, you are solely responsible for compliance with all applicable local laws. In addition to the foregoing, you represent and warrant that:
(a) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a terrorist-supporting country;
(b) you are not listed on any U.S. Government list of prohibited or restricted parties; and
(c) you are not otherwise subject to or affected in any way by any national security or terrorism related rules whether applicable to you personally or to your location or other circumstances.
8.) Updates. We may from time to time in its sole discretion develop and provide the Application updates, which may include upgrades, bug fixes, patches, 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 Diamond Kinetics 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, and 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
9.) 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 Diamond Kinetics is not responsible for Third-Party Materials, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect thereof. Diamond Kinetics 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.
10.) Term and Termination.
(a) Term. The term of this Agreement commences when you download, install, access, use, or otherwise interact with the Application and will continue in effect until terminated by you or Diamond Kinetics as set forth in this Section 10. You acknowledge, understand, and agree that the Services and your use thereof, which in part may be available and accessible on and through the Application, are governed by our Terms of Service.
(i) Termination by You. You may terminate this Agreement by deleting the Application and all copies thereof from your Mobile Device.
(ii) Termination by Diamond Kinetics. Diamond Kinetics may terminate this Agreement at any time without notice. In addition, this Agreement will terminate immediately and automatically without any notice if you violate any of the terms and conditions of this Agreement.
(c) Effect of Termination. Upon any termination, all rights granted to you under this Agreement will terminate; and you must cease all use of the Application and delete all copies of the Application from your Mobile Device and account. Termination will not limit any of Diamond Kinetics’ rights or remedies at law or in equity. You further hereby acknowledge, understand, and agree that any termination of this Agreement will not terminate any subscription or term for which you have entered into to use the Services pursuant to and in accordance with our Terms of Service.
11.) Disclaimer of Warranties. Without limiting, and in addition to the disclaimer of warranties related to the Services provided under the Terms of Service, THE APPLICATION IS PROVIDED TO END USER “AS IS” AND “AS AVAILABLE,” AT “YOUR OWN RISK,” AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE FULLEST EXTENT PERMITTED BY LAW, DIAMOND KINETICS, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, 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, DIAMOND KINETICS 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.
12.) Limitation of Liability. Without limiting, and in addition to the Limitation of Liability related to the Services provided under the Terms of Service, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL DIAMOND KINETICS OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, LICENSORS OR SERVICE PROVIDERS, HAVE ANY LIABILITY ARISING FROM OR RELATED TO YOUR USE OF OR INABILITY TO USE THE APPLICATION OR THE SERVICES FOR: (A) PERSONAL INJURY, PROPERTY DAMAGE, LOST PROFITS OR REVENUE, DIMINUTION IN VALUE, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OF DATA, PRODUCTION, LOSS OF GOODWILL, BUSINESS INTERRUPTION, REPUTATION, COMPUTER FAILURE OR MALFUNCTION, OR ANY OTHER CONSEQUENTIAL, INCIDENTAL, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES OR LOSSES, WHETHER DIRECT OR INDIRECT.
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 DIAMOND KINETICS WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY SO SOME OR ALL OF THE ABOVE LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU.
13.) Indemnification. You agree to indemnify, defend, and hold harmless Diamond Kinetics 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, including but not limited to the content you submit or make available through this Application. This Section 13 and your indemnification obligations hereunder shall survive any termination of this Agreement.
14.) Export Regulation. The Application may be subject to US export control laws, including the Export Control Reform Act and its associated regulations. You shall 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. 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.
15.) 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.
16.) Governing Law. This Agreement, and any dispute or claim arising therefrom or related thereto (in each case, including non-contractual disputes or claims), shall be governed by and construed in accordance with the internal laws of the Commonwealth of Pennsylvania without giving effect to any choice or conflict of law provision or rule (whether of the Commonwealth of Pennsylvania or any other jurisdiction). The Uniform Commercial Code, the Uniform Computer Information Transaction Act, and the United Nations Convention of Controls for International Sale of Goods shall not apply.
Any legal suit, action, or proceeding arising out of, or related to, these Terms shall be instituted exclusively in the federal courts of the United States or the courts of the Commonwealth of Pennsylvania, in each case located in the City of Pittsburgh in Allegheny County, although we retain the right to bring any suit, action, or proceeding against you for breach of these Terms in your country of residence or any other relevant country. You waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts.
17.) Limitation of Time to File Claims. TO THE FULLEST EXTENT ALLOWED UNDER APPLICABLE LAW, ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE APPLICATION MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES OTHERWISE SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
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.