This End User License Agreement (“EULA”) is a binding legal agreement between you, as an individual or entity, and HASHMEMO Inc., a Delaware corporation. By downloading, installing, or using this application for Android, iOS, or other mobile platform, as applicable (the “Software”), you agree to be bound by the terms of this EULA. If you do not agree to this EULA, do not use the Software and delete it. You agree that installation or use of the Software signifies that you have read, understood, and agree to be bound by this EULA.
For clarification, any HashMemo service (collectively, the “Services”) accessed through the Software is also subject to the HashMemo Terms of Service, Privacy Policy, and Cookie Policy. Additional terms may apply to specific features. The Software is provided to you under this EULA solely for your private, non-commercial use.
1. Description of Software
The Software is a downloadable software application that enables you to access HashMemo Services directly from your Android phone, iPhone, iPad, or other mobile device supported by HashMemo (collectively, “Devices”). You may download the Software whether or not you use the Services, but you must register and log in to your HashMemo account to enable its full functionality.
2. License
HashMemo hereby grants you, subject to the terms and conditions of this EULA, a non-exclusive, non-transferable, on- sublicensable, revocable, limited use personal license to:
· Use the Software for your own personal use;
· Install the Software on only one (1) Device; and
· Make one (1) copy of the Software in any machine-readable form solely for back-up purposes, provided you reproduce the Software in its original form and with all proprietary notices on the back-up copy.
For clarity, the foregoing is not intended to prohibit you from installing and backing-up the Software for another Device on which you also agreed to the EULA. Each instance of this EULA that you agree to grants you the aforementioned rights in connection with the installation, use and back-up of one copy of the Software on one Device.
3. Title
Title, ownership, and all rights (including, without limitation, intellectual property rights) in and to the Software shall remain with HashMemo. Except for those rights expressly granted in this EULA, no other rights are granted, whether express or implied.
4. Restrictions
You understand and agree that you shall only use the Software in a manner that complies with any and all applicable laws in the jurisdictions in which you use the Software. Your use shall be in accordance with applicable restrictions concerning privacy and intellectual property rights.
You may not:
· Create derivative works based on the Software;
· Use the Software for any purpose other than as described herein;
· Copy or reproduce the Software except as described in this EULA;
· Sell, assign, license, disclose, distribute or otherwise transfer or make available the Software or any copies of the Software in any form to any third parties;
· Alter, translate, decompile, reverse assemble or reverse engineer the Software, or attempt to do any of the foregoing, except to the extent this prohibition is not permitted under an applicable law;
· Remove any form of technical protection used by HashMemo in connection with the Software, including, but not limited to, any measure provided or made available by HashMemo for managing, monitoring or controlling access to the Software;
· Bypass or delete any functionality or technical limitations of the Software that (or that are designed to) prevent or inhibit the unauthorized copying or access to the Software;
· Remove or alter any proprietary notices or marks on the Software; or
· use or share the Software in any manner or for any purpose not authorized or contemplated by this EULA.
5. Personal Information and Privacy
Our handling of personal information we collect through the HashMemo Services, or the Software is governed by the HashMemo Privacy Policy.
6. No Warranty
If you are located in the US or Canada: HASHMEMO DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE WILL MEET ANY REQUIREMENTS OR NEEDS YOU MAY HAVE, OR THAT THE SOFTWARE WILL OPERATE ERROR FREE, OR IN AN UNINTERRUPTED MANNER, OR THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED, OR THAT THE SOFTWARE IS FULLY COMPATIBLE WITH ANY PARTICULAR PLATFORM. THE SOFTWARE IS OFFERED ON AN “AS-IS” BASIS AND NO WARRANTY, EITHER EXPRESS OR IMPLIED, IS GIVEN. HASHMEMO EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. SOME JURISDICTIONS DO NOT ALLOW THE WAIVER OR EXCLUSION OF IMPLIED WARRANTIES SO THEY MAY NOT APPLY TO YOU.
If you are located outside the US or Canada: AS THE SOFTWARE IS LICENSED TO YOU, HASHMEMO DOES NOT GUARANTEE OR WARRANT ANY FEATURES OR QUALITIES OF THE SOFTWARE OR GIVE ANY UNDERTAKING WITH REGARD TO ANY OTHER QUALITY. NO SUCH WARRANTY OR UNDERTAKING SHALL BE IMPLIED BY YOU FROM ANY DESCRIPTION IN THE SOFTWARE ITSELF OR ANY AVAILABLE DOCUMENTATION OR ANY OTHER COMMUNICATION OR ADVERTISEMENT FOR THE SOFTWARE, EXCEPT TO THE EXTENT THAT HASHMEMO HAS EXPRESSLY CONFIRMED A SPECIFIC QUALITY IN WRITING. IN PARTICULAR, HASHMEMO DOES NOT WARRANT THAT THE SOFTWARE WILL BE AVAILABLE UNINTERRUPTED OR PERMANENTLY. ALL WARRANTY CLAIMS ARE SUBJECT TO THE LIMITATION OF LIABILITY STIPULATED IN SECTION 7 BELOW.
7. Limitation of Liability
YOU EXPRESSLY UNDERSTAND AND AGREE THAT HASHMEMO SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF HASHMEMO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES). THESE LIMITATIONS AND EXCLUSIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATIONS OF DAMAGES AND/OR EXCLUSIONS OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
8. Indemnification
To the fullest extent permitted by law, you agree to indemnify and otherwise hold harmless HASHMEMO Inc., its officers, employees, agents, and other partners from any direct, indirect, incidental, special, consequential, or exemplary damages arising out of, relating to, or resulting from your use of the Software or any other matter relating to the Software.
9. Right to Terminate or Modify Software
HashMemo may modify the Software and this EULA without notice. You may cease use of the Software at any time. Either party may terminate this EULA at any time, with or without notice.
10. Open Source
The Software may contain or be provided together with open-source software. Each item of open-source software is subject to its own applicable license terms, which can be found at this list and/or in the Software documentation or the applicable help, notices, about or source files. Copyrights to the open-source software are held by the respective copyright holders indicated therein.
11. Export Restrictions
This EULA is expressly made subject to any laws, regulations, orders or other restrictions on the export of software from the United States of America and may be subject to export and import regulations of other countries. You acknowledge and agree not to import, export, re-export, transfer, or use, directly or indirectly, the Software without compliance with such laws, regulations, orders, or other restrictions.
12. Dispute Resolution; Arbitration
In the unlikely event we end up in a legal dispute relating to this EULA, the Software and/or our Services, you and HashMemo agree to resolve it in Delaware courts using Delaware law.
YOU AND HASHMEMO AGREE THAT ANY DISPUTE RELATING TO THIS CONTRACT AND/OR THE SERVICES SHALL BE RESOLVED BY THE FINAL AND BINDING ARBITRATION PROCEDURES SET BELOW. THE PARTIES FURTHER AGREE THAT THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING. THE PARTIES VOLUNTARILY AND KNOWINGLY WAIVE ANY RIGHT THEY HAVE TO A JURY TRIAL. ANY CONTROVERSY CONCERNING WHETHER A DISPUTE IS ARBITRABLE SHALL BE DETERMINED BY THE ARBITRATOR AND NOT BY THE COURT. JUDGMENT UPON ANY AWARD RENDERED BY THE ARBITRATOR MAY BE ENTERED BY A DELAWARE STATE OR FEDERAL COURT HAVING JURISDICTION THEREOF. PROCEEDINGS HEREUNDER SHALL BE GOVERNED BY THE FEDERAL ARBITRATION ACT.
Accordingly, the following arbitration procedures shall apply:
In the event a party elects to proceed with binding arbitration, it shall provide written notice thereof to the other party by registered or certified mail and shall describe in such notice, with reasonable particularity, the nature and basis of such claim and the total amount of the claim. Within thirty (30) days of receipt of such notice, the party receiving notice of a claim shall provide a written response which, with reasonable particularity, sets forth its position concerning the claim. If the parties are unable to resolve the dispute arising from the claim by good faith negotiations to be conducted within the thirty (30)-day period following the written response, either of them may initiate binding arbitration pursuant to the terms and conditions set forth herein. The arbitration will be governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”) and will be administered by the AAA. The arbitration will be presided over by a single arbitrator and shall be conducted in English. If the AAA is unavailable or refuses to arbitrate the parties’ dispute for any reason, the arbitration shall be administered and conducted by a widely recognized arbitration organization that is mutually agreeable to the parties, but neither party shall unreasonably withhold their consent. The AAA Rules are available online at www.adr.org.
BY AGREEING TO THIS ARBITRATION PROVISION, YOU ARE GIVING UP YOUR RIGHT TO GO TO COURT, INCLUDING YOUR RIGHT TO A JURY TRIAL. In arbitration, a dispute is resolved by a neutral arbitrator or panel of arbitrators, rather than by a judge or jury. Arbitration is more informal than a court trial; however, an arbitrator can award the same relief that a court can award. Separate and apart from the agreement to arbitrate set forth above, the parties hereby independently waive any right to bring or participate in any class action in any way related to, or arising from, this EULA. You acknowledge that this class action waiver is material and essential to the arbitration of any disputes between the parties and is nonseverable from this EULA to arbitrate claims. If any portion of this class action waiver is limited, voided, or cannot be enforced, then the parties’ agreement to arbitrate shall be null and void.
13. General Terms
This EULA constitutes the entire agreement between you and HashMemo regarding the Software. If any provision of this EULA is held by a court of competent jurisdiction to be contrary to law, such provision will be changed and interpreted to best accomplish the objectives of the original provision to the fullest extent allowed by law and the remaining provisions of this EULA will remain in full force and effect. You may not assign this EULA, and any assignment of this EULA by you will be null and void. The section titles and numbering of this EULA are displayed for convenience and have no legal effect.
