TIMECO APPLICATION END USER LICENSE AGREEMENT FOR IOS
Last Modified: May 2023
This Agreement is solely by and between You and Corporation, not Apple, and Corporation, not Apple, is solely responsible for this Application and the content thereof.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT OR YOUR ACCEPTANCE OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, NO LICENSE IS GRANTED (WHETHER EXPRESSLY, BY IMPLICATION, OR OTHERWISE) UNDER THIS AGREEMENT, AND THIS AGREEMENT EXPRESSLY EXCLUDES ANY RIGHT, CONCERNING ANY SOFTWARE THAT YOU DID NOT ACQUIRE LAWFULLY OR THAT IS NOT A LEGITIMATE, AUTHORIZED COPY OF CORPORATION’S SOFTWARE.
Grant and Scope of Rights
Subject to the terms of this Agreement and to the Usage Rules set forth in the Apple Media Services Terms and Conditions (the “Apple Terms of Service“), Corporation hereby grants you a non-exclusive, non-transferable, non-sublicensable, limited license to download, access, install, and use this Application on the Mobile Devices branded by Apple solely for your employer’s internal business purposes; provided that, for the avoidance of doubt, this Application may be accessed and used by other accounts associated with the purchaser via Family Sharing or volume purchasing, which access and use will be subject to the terms of this Agreement.
Notwithstanding anything appearing to the contrary herein, you agree not to:
- download, install, access, or use this Application beyond the scope of the rights granted herein;
- copy, modify, translate, adapt, or otherwise create a derivative work or improvement of this Application or any part thereof, whether or not patentable;
- rent, lease, lend, sell, resell, license, sublicense, assign, distribute, publish, transfer, share, or otherwise make available or provide any access to or use of, this Application or any features or functionality thereof to any other person or entity for any reason, in all cases whether or not over a network or on a hosted basis, including in connection with the internet or any web hosting, wide area network (WAN), virtual private network (VPN), virtualization, time-sharing, service bureau, software as a service, cloud, or other technology or service;
- combine or incorporate this Application or any part thereof with or in any other program;
- reverse engineer, disassemble, decompile, decode, adapt, reconstruct, or otherwise attempt to derive or gain access to this Application; any related source code, algorithm, file format, or programming interface; or any other part thereof;
- input, upload, transmit, post, or otherwise provide to or through this Application any data, content, information, or material that is unlawful, deceptive, misleading, obscene, defamatory, or inappropriate in any manner;
- attempt to gain unauthorized access to any service, account, system, or network through any means;
- remove, delete, falsify, misrepresent, alter, or obscure any documentation, agreement, warranty, disclaimer, or any copyright, trademark, patent, or other intellectual property or proprietary rights notice from this Application, including any copy thereof;
- access or use this Application in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property, privacy, or other right of any third party (including by any unauthorized access to, or misappropriation, use, alteration, destruction, or disclosure of, the data of any of Corporation’s customers) or that violates any applicable law, statute, rule, or regulation (including, without limitation, any law regarding the export of data or software);
- access or use this Application in, or in association with, the design, construction, maintenance, or operation of any hazardous environment, system, or application; any safety response system or other safety-critical application; or any other use or application in which the use or failure of this Application could lead to personal injury or severe physical or property damage;
- bypass, breach, remove, disable, circumvent, or otherwise create or implement any workaround to any copy protection, right management, or security device or feature in or protecting this Application;
- use this Application for purposes of competitive analysis; the development, provision, or use of a competing software product or service; or any other purpose that is to Corporation’s detriment or commercial disadvantage;
- breach any applicable third-party terms of agreement when using this Application;
- access this Application for purposes of monitoring its availability, performance, or functionality or for any other benchmarking or competitive purpose;
- create Internet “links” to this Application on any other server or wireless or Internet-based device;
- use this Application in any manner that could disable, overburden, damage, destroy, disrupt, harm, impair, or otherwise impede, interfere with, or harm in any manner, this Application, Corporation’s network, or any other party’s use of any of the foregoing (including their ability to engage in real-time activities ) or otherwise engage in activities harmful to the operations of Corporation or any of its goods, services, customers, or users;
- use any robot; web scraping or scraping method; data mining; spider; other similar data gathering or extraction method; or other automatic device, process, or means to access this Application for any purpose, including monitoring or copying any of the material on this Application;
- use any manual process to monitor or copy any of the material on this Application or for any other purpose not expressly allowed;
- use any device, software, or routine that interferes with the proper working of this Application;
- introduce any harmful content such as malware, adware, or spyware; a virus, trojan horse, worm, logic bomb, time bomb, or cancelbot; or other material that is malicious or technologically harmful;
- attempt to gain unauthorized access to, or interfere with, damage, or disrupt any part of, this Application; the server on which this Application is stored; or any server, computer, or database connected to this Application; or
- attack this Application via a denial-of-service attack or a distributed denial-of-service attack.
You agree that you are responsible and liable for all uses of this Application through access thereto provided by you, directly or indirectly, whether or not such access is permitted under this Agreement.
Reservation of Rights
You acknowledge and agree that this Application is provided under license, and not sold, to you. You do not acquire any ownership interest in this Application or any other rights thereto other than to download, install, access, and use this Application in accordance with the license granted and subject to all terms, conditions, and restrictions under this Agreement. Corporation otherwise reserves and retains all of its right, title, and interest in and to this Application (including, without limitation, all intellectual property rights arising out of or relating thereto). You agree to use commercially reasonable efforts to safeguard this Application from infringement, misappropriation, theft, misuse, or unauthorized access.
Corporation may from time to time, in its sole discretion, develop and provide maintenance, support, and updates to this Application, 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. Based on your Mobile Devices’ settings, when your Mobile Devices are connected to the internet either:
- this 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 agree to promptly download and install all Updates and acknowledge and agree that this 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 this Application and be subject to all terms and conditions of this Agreement.
You agree that, while Corporation is solely responsible for providing Updates, Corporation has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality. You and Corporation acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to this Application.
You acknowledge and agree that, if you suggest or recommend to Corporation any changes to this Application or any of its other goods or services including, without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (collectively, “Feedback”), Corporation is free to use such Feedback irrespective of any other obligation or limitation governing such Feedback. You hereby assign to Corporation all right, title, and interest in, and Corporation and its licensors are free to use, without any attribution or compensation to any party, the Feedback, including any ideas, know-how, concepts, techniques, other intellectual property, and all rights contained therein or related to the foregoing for any purpose whatsoever, although Corporation is not required to use any Feedback.
Website Content and Services
Collection and Use of Information
You acknowledge that when you download, install, access, or use this Application, Corporation may use automatic means (including, for example, cookies and web beacons) to collect and use technical data and related information about your Mobile Devices and about your use of this Application. You also may be required to provide certain information about yourself as a condition to downloading, installing, accessing or using this Application or certain of its features or functionality, and this Application may provide you with opportunities to share information about yourself with others.
This 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 (collectively, "Third-Party Materials"). You acknowledge and agree that Corporation is not responsible for Third-Party Materials, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect thereof. Corporation 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.
Term and Termination
You may terminate this Agreement by deleting this Application and all copies thereof from all Mobile Devices.
Corporation may terminate this Agreement immediately (A) if you materially breach this Agreement or (B) upon the termination or expiration of the Master Agreement.
Upon expiration or earlier termination of this Agreement, all rights to download, install, access, and use this Application granted hereunder will also terminate, and you agree to cease accessing and using this Application and immediately delete this Application and all copies thereof from all Mobile Devices. The following sections of this Agreement, in addition to any other provision, right, or obligation that, by its nature, should survive termination or expiration of this Agreement or otherwise aids in the interpretation of this Agreement, will survive the termination or expiration of this Agreement or the Master Agreement: “Restrictions”, “Reservation of Rights”, “Feedback”, “Collection and Use of Information”, “Term and Termination”, “Complete Disclaimer of All Warranties and Liability”, “Indemnification”, “Equitable Relief”, “Waiver of Jury Trial”, and “Class Action Waiver”. No termination of your right to download, install, access, or use this Application will limit any of Corporation's rights, remedies, or protections under this Agreement or otherwise at law or in equity.
Complete Disclaimer of All Warranties and Liability
TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, (A) THIS APPLICATION IS PROVIDED TO YOU "AS IS" AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY TO YOU OF ANY KIND AND (B) IN NO EVENT WILL CORPORATION OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, BE LIABLE TO YOU OR ANY THIRD PARTY (OTHER THAN THE SOFTWARE CUSTOMER AS PROVIDED HEREIN) FOR YOUR DOWNLOAD, INSTALLATION, ACCESS, OR USE, OR INABILITY TO DOWNLOAD, INSTALL, ACCESS, OR USE, THIS APPLICATION. YOU ACKNOWLEDGE AND AGREE THAT YOU ARE PROVIDED THIS APPLICATION PURSUANT TO THE MASTER AGREEMENT, SOLELY FOR THE BENEFIT OF YOUR EMPLOYER AND AT YOUR EMPLOYER’S DISCRETION. YOU ACKNOWLEDGE AND AGREE THAT YOU HAVE NO RIGHTS UNDER THE MASTER AGREEMENT, INCLUDING ANY RIGHT TO ENFORCE AY OF ITS TERMS. ANY OBLIGATION OR LIABILITY CORPORATION OR ANY OF ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, MAY HAVE WITH RESPECT TO YOUR DOWNLOAD, INSTALLATION, ACCESS, OR USE, OR YOUR INABILITY TO DOWNLOAD, INSTALL, ACCESS, OR USE, THIS APPLICATION WILL BE SOLELY TO THE SOFTWARE CUSTOMER PURSUANT TO THE MASTER AGREEMENT AND SUBJECT TO ALL TERMS AND CONDITIONS THEREOF, AND YOU HEREBY WAIVE ANY AND ALL CLAIMS RELATED TO THE FOREGOING.
TO THE EXTENT ANY WARRANTIES ARE NOT FOUND TO BE EXCLUDED OR LIMITED, AND IN THE EVENT THIS APPLICATION FAILS TO CONFORM TO ANY APPLICABLE WARRANTY, YOU MAY NOTIFY APPLE, AND APPLE WILL REFUND TO YOU THE PURCHASE PRICE FOR THIS APPLICATION (IF ANY). TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, APPLE WILL HAVE NO OTHER WARRANTY OBLIGATION WHATSOEVER WITH RESPECT TO THIS APPLICATION, AND ANY OTHER CLAIMS, LOSSES, LIABILITIES, DAMAGES, COSTS, OR EXPENSES ATTRIBUTABLE TO ANY FAILURE TO CONFORM TO ANY WARRANTIES THAT ARE NOT FOUND TO BE EXCLUDED OR LIMITED WILL BE CORPORATION’S SOLE RESPONSIBILITY.
You and Corporation acknowledge that (a) Corporation, and not Apple, is responsible for addressing any claims by you or any third party relating to this Application or your possession and/or use of this Application including, but not limited to: (i) product liability claims; (ii) any claim that this Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection, privacy, or similar legislation, including in connection with this Application’s use of the HealthKit and HomeKit frameworks; and (b) Corporation will not be obligated to defend or indemnify you with respect to any third-party claim arising out of or relating to this Application; provided that, to the extent Corporation is required by applicable law to provide indemnification in the event of any third-party claim that this Application or your possession and use of this Application infringes that third party’s intellectual property rights, Corporation, not Apple, will be solely responsible for the investigation, defense, settlement, and discharge of any such intellectual property infringement claim. Nothing in this Agreement will be deemed an admission that you may have any of the foregoing claims.
Governing Law and Jurisdiction
All matters relating to this Agreement or your download, installation, access, or use of this Application will be governed by and construed in accordance with the internal laws of the State of Florida without giving effect to any choice or conflict of law provision or rule (whether of the State of Florida or any other jurisdiction). Corporation retains the right to bring any suit, action, or proceeding against you arising out of or related to this Agreement or your download, installation, access, or use of this Application in the state courts or the federal courts located in or for Sarasota, Florida; your country or state of residence; or any other relevant country or state. You waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts.
Changes to this Agreement
This Agreement may be revised or updated from time to time at Corporation’s sole discretion. You will receive a notice when an updated version of this Agreement has been posted, and you should review the then-current Agreement before downloading, installing, accessing, or using this Application. All changes to this Agreement are effective immediately when Corporation posts them and apply to all downloads, installations, access to, and use of this Application thereafter.
Your continued access or use of this Application after a posted change to this Agreement will constitute your acceptance of and agreement to such changes. You are expected to check this Application from time to time so you are aware of any changes, as they are binding on you.
Corporation is based in the State of Florida in the United States, and this Application is provided for download, installation, access, and use only by persons located in the United States. Corporation makes no claims that this Application or any of its content is accessible or appropriate outside of the United States. You acknowledge that you may not be able to access or use all or some of the features, functionality, or content outside of the United States and that download, installation, access, or use thereof may not be legal by certain persons or in certain countries. If you access or use this Application from outside the United States, you do so on your own initiative and are responsible for compliance with local laws. You represent and warrant that, at all times during your use of this Application, you are not and will not be located in a country that is (A) subject to a U.S. Government embargo or that has been designated by the U.S. Government as a “terrorist supporting” country or (B) listed on any U.S. Government list of prohibited or restricted parties.
US Government Rights
This Application is commercial computer software, as such term is defined in 48 C.F.R. §2.101. Accordingly, if you are an agency of the US Government or any contractor therefor, you receive only those rights with respect to this Application as are granted to all other end users under license, in accordance with (a) 48 C.F.R. §227.7201 through 48 C.F.R. §227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. §12.212, with respect to all other US Government licensees and their contractors.
Waiver, Severability, and Interpretation
No waiver by Corporation of any term or condition set forth in this Agreement will be deemed a further or continuing waiver of such term or condition or a waiver of any other term or condition, and any failure of Corporation to assert a right or provision under this Agreement will not constitute a waiver of such right or provision.
If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, this Agreement will be modified so as to effect the original intent as closely as possible in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible. The headings within this Agreement are purely for convenience and are not to be used as an aid in interpretation. Moreover, this Agreement will not be construed against any party as the author or drafter of this Agreement.
You agree to defend, indemnify, and hold harmless Corporation and its affiliates, licensors, and service providers, and its and their respective officers, directors, managers, equityholders, employees, contractors, agents, licensors, suppliers, successors, and assigns, from and against any and all claims, liabilities, deficiencies, actions, damages, judgments, settlements, interest, awards, penalties, fines, losses, costs, expenses, and fees (including reasonable attorneys' fees) of whatever kind arising out of or relating to your: (a) violation of this Agreement; (b) use or misuse of this Application (including, but not limited to, any use of this Application’s content, goods, or services other than as expressly authorized; use of any information obtained from this Application; or the violation of any law or regulation); or (c) gross negligence or willful misconduct.
You acknowledge that a breach or threatened breach of this Agreement would give rise to irreparable harm to Corporation for which monetary damages would not be an adequate remedy, and you hereby agree that, in the event of such a breach or a threatened breach, Corporation will, in addition to any and all other rights and remedies that may be available to it in respect of such breach, be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from a court of competent jurisdiction (without any requirement to post bond or prove actual damages or that monetary damages will not afford an adequate remedy). Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.
You agree to, from time to time at the request of Corporation, without any additional consideration, furnish Corporation such further information; execute and deliver such additional agreements, certificates, documents, instruments, and conveyances; and take such other actions and do such other things, in each case as may be necessary or convenient for Corporation to carry out the provisions of this Agreement or to carry out the intent and accomplish the purposes of this Agreement and to give effect to the transactions contemplated hereby.
Third Party Beneficiary
You and Corporation acknowledge and agree that Apple and Apple’s subsidiaries are third-party beneficiaries of this Agreement and that, upon your acceptance of the terms and conditions of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third-party beneficiary hereof.
Any questions, complaints, or claims should be directed to:
1819 Main Street
Sarasota, FL 34236
Email: [email protected]
Waiver of Jury Trial
To the maximum extent permitted by law, YOU AGREE TO have a judge (rather than a jury) resolve any and all issues arising in any action or proceeding relating to THIS APPLICATION OR THIS AGREEMENT, and you waive THE RIGHT TO a trial by jury. YOU understand that the right to a trial by jury is a constitutional right and that this election to have a judge, rather than a jury, determine ALL claims is a voluntary choice.
Class Action Waiver
YOU IRREVOCABLY AND UNCONDITIONALLY WAIVE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT YOU MAY HAVE TO ASSERT ANY CLAIMS AGAINST CORPORATION AS A REPRESENTATIVE OR MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION, EXCEPT WHERE SUCH WAIVER IS DETERMINED BY A COURT OF COMPETENT JURISDICTION TO BE AGAINST PUBLIC POLICY. TO THE EXTENT YOU ARE PERMITTED BY APPLICABLE LAW OR COURT OF LAW TO PARTICIPATE IN A CLASS OR REPRESENTATIVE ACTION AGAINST CORPORATION, YOU AGREE THAT: (A) YOU WILL NOT BE ENTITLED TO RECOVER ATTORNEYS’ FEES OR COSTS ASSOCIATED WITH PURSUING THE CLASS OR REPRESENTATIVE ACTION (NOTWITHSTANDING ANY OTHER PROVISION IN THIS AGREEMENT); AND (B) YOU WILL NOT SUBMIT A CLAIM OR OTHERWISE PARTICIPATE IN ANY RECOVERY SECURED THROUGH THE CLASS OR REPRESENTATIVE ACTION.