User License Agreement
Date Last Modified: June 1, 2017
This Mobile Application End User License Agreement (“Agreement”) is a binding agreement between you (“you”) and OpinionUP LLC, a Virginia limited liability (“Company,” “we,” “our” or “us”). This Agreement governs your use of the OpinionUP Mobile Application, (including all related documentation, the “Application”). The Application is licensed, not sold, to you.
BY DOWNLOADING, INSTALLING, OR USING THE APPLICATION, YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS BINDING AGREEMENT; (B) REPRESENT THAT YOU ARE 18 YEARS OF AGE OR OLDER; 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 DELETE IT FROM YOUR MOBILE DEVICE.
- License Grant. Subject to the terms of this Agreement, we grant you a limited, non-exclusive and nontransferable license to download, install and use the Application for your personal, non-commercial use on a single mobile device owned or otherwise controlled by you (“Mobile Device”) strictly in accordance with the Application’s rules, regulations and stated purpose, including those set forth in this Agreement.
- License Restrictions. You will not:
- copy the Application, except as expressly permitted by this Agreement;
- modify, translate, adapt or otherwise create derivative works or improvements, whether or not patentable, of the Application;
- reverse engineer, disassemble, decompile, decode or otherwise attempt to derive or gain access to the source code of the Application or any part of it;
- 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 of it;
- 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 another network; or
- remove, disable, circumvent or otherwise create or implement any workaround to any copy protection, rights management or security features in or protecting the Application.
- 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 to it other than to use the Application in accordance with the license granted, and subject to all terms, conditions and restrictions, under this Agreement. We reserve and retain our entire right, title and interest in and to the Application, including all copyrights, trademarks and other intellectual property rights in it or relating to it, except as expressly granted to you in this Agreement.
- User Conduct. You are responsible for all postings, messages, text, files, images, photos, video, sounds, polls or other materials (“User Content”) posted on, transmitted through, or linked from your account, on the Application. You agree not to post, email or otherwise make available User Content:
- that is unlawful, harmful, threatening, abusive, harassing, defamatory, libelous, invasive of another’s privacy or is harmful to minors in any way;
- that is pornographic, offensive, vulgar, obscene or invasive of another’s privacy;
- that harasses, degrades, intimidates or is hateful toward an individual or group of individuals on the basis of religion, gender, sexual orientation, race, ethnicity, age or disability;
- that impersonates any person or entity, including, but not limited to, a Company employee, or falsely states or otherwise misrepresents your affiliation with a person or entity (this provision does not apply to User Content that constitutes lawful non-deceptive parody of public figures);
- that includes personal or identifying information about another person without that person’s explicit consent;
- that is false, deceptive, misleading, deceitful or constitutes “bait and switch”;
- that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party, or User Content that you do not have a right to make available;
- that constitutes or contains affiliate marketing, link referral code, junk mail, spam, chain letters, pyramid schemes or any unsolicited commercial advertisement;
- that constitutes or contains any form of advertising or solicitation;
- that includes links to commercial services, applications or websites;
- that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
- that disrupts the normal flow of our Application with an excessive amount of User Content (flooding attack) to the Application, or that otherwise negatively affects other users’ ability to use the Application; or
- that employs misleading email addresses or forged headers or otherwise manipulated identifiers to disguise the origin of User Content transmitted through the Application.
Additionally, you agree not to:
- contact anyone who has asked not to be contacted;
- engage in conduct that distorts our questionnaires, data or questionnaire results;
- make unsolicited contact with anyone for any commercial purpose;
- “stalk” or otherwise harass anyone;
- collect personal data about other users;
- use automated means, including spiders, robots, crawlers, data mining tools or the like to download data from the service;
- post non-local or otherwise irrelevant User Content, repeatedly post the same or similar User Content or otherwise impose an unreasonable or disproportionately large load on our infrastructure;
- attempt to gain unauthorized access to the Company’s computer systems or engage in any activity that disrupts, diminishes the quality of, interferes with the performance of, or impairs the functionality of, the Application; or
- use any form of automated device or computer program that enables the submission of postings on the Application without each posting being manually entered by the author thereof (an “automated posting device”), including without limitation, the use of any such automated posting device to submit postings in bulk, or for automatic submission of postings at regular intervals. Further, you agree not to sell, resell, or offer for any commercial purposes, any portion of the Application, use of the Application, or access to the Application.
- User Content. With respect to all communications and interaction you make via the Application, including but not limited to your User Content: (a) you acknowledge that you have no right of confidentiality in your contributions and we have no obligation to protect your communications from disclosure; (b) we are free to reproduce, use, disclose and distribute User Content to others without limitation; (c) we are free to use any ideas, concepts, know-how, content or techniques contained in User Content for any purpose, including but not limited to the development, production and marketing of products and services that incorporate such information; and (d) you grant us and other users of the application a non-exclusive, royalty-free, perpetual, world-wide, irrevocable, sub-licensable and transferable right and license to use, reproduce, create derivative works of, distribute, or publicly display User Content freely, and for any purpose whatsoever.
You represent and warrant that: (a) you own or control all rights in and to the User Content and have the right to grant the license granted above; and (b) all of your User Content do and will comply with this Agreement. We are not responsible, or liable to any third party or you, for the content or accuracy of any User Content posted or communicated by you or any other user. Information and content on the Application, including, without limitation, poll results, may contain technical inaccuracies and other errors. You agree that we are not responsible or liable for any such inaccuracies, errors or omissions, and shall have no obligation related to information affected by such inaccuracies. We reserve the right to make changes, corrections, cancellations or improvements to information and contents on the Application, and to the products and programs described in such information therein, at any time without notice, including after confirmation of a transaction.
- Geographic Restrictions. Our Application is based in the Commonwealth of Virginia in the United States and provides for access and use only by persons located in the United States. You acknowledge that you may not be able to access all or some of our content and services outside of the United States and that access to our Application may not be legal by certain persons or in certain countries. If you access our Application from outside the United States, you are responsible for compliance with local laws.
- Updates. We may from time to time develop and provide Application updates, which may include upgrades, bug fixes, patches and other error corrections or new features (collectively, including related documentation, “Updates”). Updates may also modify or delete in their entirety certain features and functionality. You agree that we have 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 Application will automatically download and install all available Updates; or
- you may receive notice of or be prompted to download and install available Updates.
You will promptly download and install all Updates and acknowledge and agree that the Application or portions of it may not properly operate if 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.
- Third Party Materials. The Application may display, include or make available third-party content (including data, information, applications, trademarks 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 we are not responsible for Third Party Materials, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect of them. We do 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 to them 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.
- Term and Termination.
- The term of this Agreement commences when you download the Application and will continue in effect until terminated by you or Company as set forth in this Section 10.
- You may terminate this Agreement by deleting the Application and all copies of it from your Mobile Device.
- We may terminate this Agreement at any time without notice if it ceases to support the Application. In addition, this Agreement will terminate immediately and automatically if you violate any of the terms and conditions of it.
- Upon termination:
- all rights granted to you under this Agreement will also 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 our rights or remedies at law or in equity.
- Disclaimer of Warranties. THE APPLICATION IS PROVIDED TO YOU “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 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, INCLUDING YOUR MOBILE DEVICE, 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. PLEASE CHECK YOUR APPLICABLE STATE LAWS BEFORE AGREEING TO BE BOUND BY THIS AGREEMENT.
- Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL COMPANY 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 APPLICATION OR THE CONTENT AND SERVICES FOR:
- PERSONAL INJURY, PROPERTY DAMAGE, LOST PROFITS, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OF DATA, LOSS OF GOODWILL, BUSINESS INTERRUPTION, COMPUTER FAILURE OR MALFUNCTION OR ANY OTHER CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES, OR
- DIRECT DAMAGES IN AMOUNTS THAT IN THE AGGREGATE EXCEED THE AMOUNT ACTUALLY PAID BY YOU FOR THE APPLICATION.
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 COMPANY 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. PLEASE CHECK YOUR APPLICABLE STATE LAWS BEFORE AGREEING TO BE BOUND BY THIS AGREEMENT.
- Indemnification. You agree to indemnify, defend and hold harmless Company and its officers, members, managers, shareholders, 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 the Company assumes no responsibility for the User Content that you submit or make available through this Application and acknowledge that your indemnity obligations extend to your User Content.
- Export Regulation. The Application may be subject to US export control laws, including the US Export Administration Act and its associated regulations. You will 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 will 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.
- Severability. If any provision of this Agreement is illegal or unenforceable under applicable law, to the maximum extent permitted by 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 Commonwealth of Virginia 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 will be instituted exclusively in the federal courts of the Eastern District of the United States, Alexandria Division, or the state courts of the Commonwealth of Virginia in Arlington County, Virginia. The parties agree that the Application is only for use in the United States, and, as a result, the parties agree that all international laws, treaties or regulations are inapplicable to this Agreement. You irrevocably waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts.
- 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 APPLICATION 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 will operate as a waiver thereof, nor will 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 will govern.
- Assignment. You will not assign this Agreement. We may assign this Agreement.
- Respecting Copyright. If you believe that your work has been copied in a way that constitutes copyright infringement, please provide our Copyright Agent at Info@OpinionUP.com the following information:
- an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest;
- a specific description of the copyrighted work that you claim has been infringed;
- a specific description of where the material that you claim is infringing is located in our Application;
- your name, address, telephone number, and email address;
- a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and
- a written statement by you, made under penalty of perjury, that all of the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.
- Contact Information. To ask questions about or comment on this Agreement, contact us at: Info@OpinionUP.com. You can also write to us at: 21400 Ridgetop Circle, Suite 210, Dulles, VA 20166.