WEARABLE DEVICES TERMS AND CONDITIONS
THESE TERMS AND CONDITIONS (THIS “Agreement“) CONSTITUTE A BINDING AGREEMENT BETWEEN YOU AND WEARABLE DEVICES LTD. (“COMPANY” OR “WE”) AND BY USING MUDRA BAND AND/OR THE APP (OR OTHERWISE DOWNLOADING IT), AS EACH OF THOSE TERMS ARE DEFINED BELOW, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THE FOLLOWING (THE DATE OF SUCH OCCURRENCE BEING THE “Effective Date“):
1. THIS AGREEMENT, AND
2. OTHER SUPPLEMENTAL TERMS AND POLICIES REFERENCED HEREIN, WHICH ARE HEREBY INCORPORATED INTO, AND MADE A PART OF, THIS AGREEMENT BY REFERENCE.
IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS SET FORTH HEREIN PLEASE DO NOT USE THE PRODUCTS AND SERVICES.
By entering into the Agreement you hereby waive (to the extent legally permitted) any Law applicable to you requiring that the Agreement be localized to meet your language, as well as any other local requirements.
We reserves the right to make changes to this Agreement at any time by posting the changed Agreement at mudra-band.com. Such changes will be effective seven (7) days after such posting, and your continued use of Mudra Band or App means that you agree to be bound by the changes. Please check the above webpage regularly for any changes.
At Wearable Devices’s option, Wearable Devices’s obligations hereunder may be performed in whole or in part, and its rights may be exercised in whole or in part, by a Wearable Devices Affiliate.
1. DEFINITIONS AND INTERPRETATION
This Agreement contains a range of capitalized terms, some of which are defined in this Definitions Section, and some of which are defined elsewhere. The section and sub-section headings in this Agreement are for convenience of reading only, and are not to be used or relied upon for interpretive purposes.
“App” means the Mudra Band Companion mobile application for Mudra Band.
“Mudra Band” means, collectively, the Device and the Firmware. For the avoidance of doubt, references to the purchase or sale (or similar designation) of Mudra Band shall not be construed as transferring any title in or to the Firmware.
“Content” means, but is not limited to, text, data, information, documents, images, descriptions, graphics, photos, sounds, videos, photographs, audio clips, posts, comments, links, software code and scripts.
“Device” means the hardware component of Mudra Band (as well as the accompanying charging stand and any subcomponents thereof).
“Documentation” means any manuals, specifications, and similar documentation related to the Device and/or Software, which accompany Mudra Band, or that are otherwise made available by Wearable Devices (for example, made available online).
“Firmware” means the software components pre-installed on, or embedded in, Mudra Band.
“Wearable Devices Affiliate” means, with respect to Wearable Devices, any person, organization or entity controlling, controlled by, or under common control with, Wearable Devices, where “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such person, organization or entity, whether through the ownership of voting securities or by contract or otherwise.
“Wearable Devices Reseller” means a reseller authorized by Wearable Devices to resell Mudra Band to end user customers in a certain geographical territory.
“Intellectual Property” means any and all inventions, discoveries, improvements, new uses, works of authorship, technical information, data, technology, know-how, show-how, designs, drawings, utility models, topography and semiconductor mask works, specifications, formulas, methods, techniques, processes, databases, computer software and programs (including object code, source code, and non-literal aspects), algorithms, architecture, records, documentation, and other similar intellectual property, in any form and embodied in any media, whether or not protectable or registerable.
“Intellectual Property Rights” means any and all rights, titles, and interests in and to Intellectual Property, including without limitation patents, copyright and similar authorship rights, mask work rights, trade secret and similar confidentiality rights, design rights, industrial property rights, trademark, trade name, trade dress and similar branding rights, as well as: (a) all applications, registrations, renewals, extensions, continuations, continuations-in-part, divisions or reissues of the foregoing rights; and (b) all goodwill associated with the foregoing rights.
“Law” means any federal, state, foreign, regional or local statute, regulation, ordinance, or rule of any jurisdiction.
“Site” means mudra-band.com.
“Software” means, collectively, the Firmware and the App.
“Warranty Period” means the warranty period set forth and defined in the Warranty Policy.
2. AGE REPRESENTATION
You represent that you are at least thirteen (13) years old, but in any event of a legal age to form a binding contract. Children under the age of thirteen (13) are not permitted to use Mudra Band or App. If you are between thirteen (13) and eighteen (18) years old, you must review this Agreement with your parent or guardian.
3. ORDERING Mudra Band
Pre-Orders. In pre-ordering a Mudra Band directly from Wearable Devices, you understand that you are contributing (that is, making a donation) to a campaign for a product in development and has not yet been manufactured, and that you are not making a purchase (a “Pre-Order“). “Pre-Orders” can be initiated by clicking a button on the homepage of http://mudra-band.com which redirects to the order completion page. The button may list multiple forms of terminology such as: “ORDER”, “ORDER NOW”, “GET MUDRA!”. Regardless of terminology, all orders on the mudra-band.com website are considered Pre-Orders and the terms and conditions of a Pre-Order apply. Wearable Devices reserves the right, in its sole discretion, to reject a Pre-Order. If Wearable Devices accepts a Pre-Order, you may be charged immediately for the Pre-Order, and your reward under the Pre-Order will be the number of Mudra Band products you pre-ordered. Our estimated shipping date for your Mudra Band is December 2020,, but we may be in contact with you nearer the time of estimated shipping to update you about any delays. Notwithstanding the foregoing, you acknowledge that Wearable Devices alone, in its sole discretion, will determine whether it is able to fulfill your reward. If Wearable Devices determines that it is unable to fulfill your reward, then: (a) it will use commercially reasonable efforts to explore if there are reasonable alternative rewards it can provide, but there is no assurance that these will be possible; and (b) both you and Wearable Devices agree that this Agreement (including, but not limited to, the Controlling Law and Dispute Resolution provisions below at Sections 21 and 22) will still apply. If you cancel your Pre-Order, you will be entitled to a refund based on our shipping, return and refund policy, which can be found on www.mudra-band.com
General. Unless stated otherwise, all pricing will be quoted and payable in US Dollars. Wearable Devices will charge the payment method you select at the time of pre-order, and you hereby authorize Wearable Devices to charge the corresponding payment sums to such payment method. If you pay with a credit card, Wearable Devices may seek pre-authorization of your credit card account prior to your order to verify that the credit card is valid and has the necessary funds or credit available to cover your order. Your order will only be deemed complete once you have received an order confirmation (not just an order acknowledgement). It is your responsibility to provide accurate billing, contact and shipping information when placing your pre-order (and to cooperate with Wearable Devices in any post-order requests for additional information) in order for Wearable Devices to process and ship your pre-order, and Wearable Devices will have no obligation to make efforts to determine the correct billing, contact or shipping information. Any shipping dates or times provided by Wearable Devices (or a courier) are estimates only and are not guaranteed. The risk of loss of, and damage to, any Mudra Band you order, and the responsibility to insure Mudra Band, passes to you upon its delivery to you.
Taxes. Except for taxes based on Wearable Devices net income, you are responsible for any and all taxes, duties, and other governmental charges relating to your order, including without limitation VAT, GST, or any other any sales, use, or consumption tax.
4. DOWNLOADING THE APP
In order to purchase Mudra Band and download the App you will need to set up an account (“Account“). You must provide accurate and complete information during the registration process, and keep such information up-to-date at all times. You agree to immediately notify Wearable Devices (via an email to [email protected]) of any unauthorized use of your Account. You are solely responsible and liable for the security of your computer system or mobile device, as well as all activity on or in your Account (even if such activities were not undertaken by you). Wearable Devices will not be liable for any unauthorized use of your Account.
If you are downloading the App from a third party app-distribution platform (“App Platform“), please be aware that the App Platform may have established usage rules which also govern your use of the App (“Usage Rules“). We specifically refer to the Usage Rules of certain App Platforms below in Annex 1, but other Usage Rules may be applicable depending on where the App has been downloaded from. You represent that, prior to downloading the App from an App Platform, you have had the opportunity to review and understand its Usage Rules, and you warrant that you will comply with its Usage Rules. The Usage Rules that are applicable to your use of the App are hereby incorporated into this Agreement by reference. You also represent that you are not prohibited by any applicable Usage Rules and/or applicable Law from using the App; if you are unable to make such a representation you are prohibited from downloading or otherwise using the App.
5. FIRMWARE LICENSE
Subject to the terms and conditions of this Agreement, Wearable Devices grants you a limited, non-exclusive, non-assignable, non-sublicensable, revocable license to use the Device’s copy of the Firmware solely: (a) on, and in connection with, the Device you purchased (or otherwise own); and (b) for your own personal and non-commercial use (the “Firmware License“).
For the avoidance of doubt, the copy of the Firmware is only licensed under this Agreement, and no title in or to such copy (or the Firmware itself) passes to you. Except for the Firmware License, you are granted no other right in or to the Firmware, whether by implied license, estoppel, patent exhaustion, operation of law, or otherwise.
You may assign the Firmware License once, and only if you meet all of the following conditions: (i) the assignment is of the Firmware License as a whole; (ii) the assignment is permanent; (iii) the assignment is to a party in connection with the transfer of ownership to such party of the Device and all Documentation that accompanied Mudra Band, and such party has read and agreed to the terms and conditions of this Agreement; and (iv) you retain no copy (regardless of medium) of the Firmware or said Documentation.
6. APP LICENSE
Subject to the terms and conditions of this Agreement, Wearable Devices grants you a limited, non-exclusive, non-assignable, non-sublicensable, revocable license, during the Term, to install the App on your mobile device and use the App solely: (a) in connection with Mudra Band you purchased (or otherwise own); and (b) for your own personal and non-commercial use (the “App License“).
For the avoidance of doubt, the copy of the App you install is only licensed under this Agreement, and no title in or to such copy (or the App itself) passes to you. Except for the App License, you are granted no other right in or to the App, whether by implied license, estoppel, patent exhaustion, operation of law, or otherwise.
7. LICENSE RESTRICTIONS
You shall not (and shall not permit or encourage any third party to) do any of the following: (a) copy or reproduce the Software; (b) sell, assign, lease, lend, rent, sublicense, or make available the Software to any third party, or otherwise use the Software in a time-sharing, outsourcing, or service bureau environment; (c) modify, alter, adapt, arrange, translate, decompile, disassemble, reverse engineer, decrypt, or otherwise attempt to discover the source code or non-literal aspects (such as the underlying ideas, algorithms, structure, sequence, organization, and interfaces) of, the Software; (d) remove, alter, or conceal, in whole or in part, any copyright, trademark, or other proprietary rights notice or legend displayed or contained on or in the Software; (e) circumvent, disable or otherwise interfere with security-related or technical features or protocols of the Software; (f) make a derivative work of the Software, or use the Software to develop any service or product that is the same as (or substantially similar to or competitive with) the Software; (g) disclose to the public the results of any internal performance testing or benchmarking studies of or about the Software, without first (x) sending the results and related study(ies) to Wearable Devices, and (y) obtaining Wearable Devices’s written approval of the assumptions, methodologies and other parameters of the testing or study; and/or (h) publish or transmit any robot, malware, Trojan horse, spyware, or similar malicious item intended (or that has the potential) to damage or disrupt the Software.
Your full compliance with all the foregoing licensing limitations is a condition to each of the Firmware License and App License; provided however, that such limitations shall not apply to the extent expressly permitted otherwise in this Agreement, or to the extent any limitation is prohibited by the Law applicable to you or by any Third Party Terms (as defined below).
References in this Section 6 (License Restrictions) to “Software” shall be taken to mean (a) the Software, whether in whole or in part; and (b) any Documentation.
You have no obligation to provide us with any feedback, ideas or suggestions concerning Mudra Band or the App (collectively, “Feedback“). Nevertheless, to the extent you provide us with any Feedback, you hereby grant Wearable Devices and all Wearable Devices Affiliates a worldwide, non-exclusive, royalty-free, fully-paid, perpetual, irrevocable, sublicensable (through multiple tiers of sublicensees), and assignable license to use, copy, distribute, transmit, modify, create derivative works of, publicly display, publicly perform, and otherwise commercially exploit such Feedback, in any media format and through any media channels (the “Feedback License“). The Feedback License shall survive any termination of this Agreement. Wearable Devices will not treat Feedback as being confidential or sensitive to you.
9. NO DATA STORAGE
Neither Mudra Band nor the App is intended to, and will not operate as, a data storage product or service, and you must not rely on Mudra Band or App for the storage of any Content whatsoever. You are solely responsible and liable for the maintenance and backup of all Content on (or otherwise accessible via) Mudra Band and the App.
10. THIRD PARTY SOFTWARE
The Firmware and the App may each include or utilize third party, including open source, software components (“Third Party Software“), which may be governed by third party terms and conditions (“Third Party Terms“). You agree that your use of such Third Party Software is also governed by the applicable Third Party Terms, and that to the extent of any conflict between this Agreement and any Third Party Terms, the latter shall control. Wearable Devices may make available in the Documentation a list of any such Third Party Software and related Third Party Terms and acknowledgements, and will comply with any valid request you submit to us for exercising your rights under such Third Party Terms.
11. THIRD PARTY CONTENT
The App may present, or otherwise allow you to view, access, link to, and interact with, Content from third parties and other sources that are not owned or controlled by Wearable Devices (such Content, “Third Party Content“). The App may also enable you to communicate with the related third parties. The display or communication to you of such Third Party Content does not (and shall not be construed to) in any way imply, suggest, or constitute any sponsorship, endorsement, or approval by Wearable Devices of such Third Party Content or third party, nor any affiliation between any Wearable Devices and such third party.
12. RESPONSIBILITY FOR CONTENT
You are solely responsible and liable for the Content that you create, upload to, or otherwise link to your Account (“Account Content“). You hereby grant Wearable Devices and all Wearable Devices Affiliates a worldwide, non-exclusive, royalty-free, fully-paid, perpetual, irrevocable, sublicensable (through multiple tiers of sublicensees), and assignable license to use, copy, distribute, transmit, modify, create derivative works of, publicly display, publicly perform, and otherwise use your Account Content for the purpose of providing, making available, and promoting the App and any other items or services under this Agreement (the “Content License“). The Content License shall survive any termination of this Agreement.
You represent that: (a) your Account Content complies with all applicable Laws, and does not infringe, misappropriate, or violate any third party’s intellectual property rights or personal rights (such as, but not limited to, moral rights, rights of privacy, and publicity rights); (b) your Account Content is not disparaging, threatening, offensive, harassing, deceptive, abusive, promoting of violence, and does not contain obscenity or pornography; (c) your Account Content does not contain any or link to any robot, spider, crawler, virus, malware, Trojan horse, spyware, or similar malicious code or item intended (or that has the potential) to damage, disrupt, compromise, or exploit any Software or a third party’s browser, computer, or mobile (or other) device; and (d) you have obtained any and all licenses, permissions, consents, and authorizations required to grant Wearable Devices the Content License. You also warrant that the foregoing representations in (a) through (d) will continue to remain true and accurate.
13. APP FEATURES
The App contains various functions, features and tools (collectively, “Features“). Wearable Devices reserves the right to remove, modify, and/or add Features at any time, without any notice to you, and for any reason whatsoever. Some Features may in any event be limited, suspended or restricted by geography, volume, duration or any other criteria decided by Wearable Devices. Moreover, if Wearable Devices determines that you are in breach of any provision of this Agreement, we reserve the right to block you from certain Features, as well as block your presence and your Content from other users. We make Features available because we believe it enhances the user experience of the App; but you acknowledge and agree that just because we make a Feature available, it does not mean we endorse, or can otherwise control, every manner in which such Feature is used. It is your sole responsibility to ensure that you use all Features in accordance with the restrictions described in this Agreement as well as with applicable Laws.
We may from time to time provide updates or upgrades to the App (each, an “Update“), but are not under any obligation to do so. Such Updates will be supplied according to our then-current policies, which may include automatic updating or upgrading without any notice to you. You consent to any such automatic updating or upgrading of the App. All references herein to the App shall include its Updates as well, and this Agreement shall govern any Update, unless the Update is accompanied by separate or additional licensing terms, in which case such terms will (also) apply.
You hereby acknowledge that the Device, Software and Documentation are or may be protected by intellectual property (and similar) Laws, treaties, and conventions. Any rights not expressly granted herein are hereby reserved by Wearable Devices and its licensors. As between you and Wearable Devices, Wearable Devices is the sole and exclusive owner of all Intellectual Property Rights in and to the Device, the Software, the Documentation, and any related services provided pursuant to this Agreement.
17. DISCLAIMER OF WARRANTIES
EXCEPT AS STATED OTHERWISE IN THE WARRANTY POLICY, THE DEVICE, FIRMWARE, APP, DOCUMENTATION, AND ANY SERVICES (SUCH AS WARRANTY SERVICES) ARE PROVIDED AND MADE AVAILABLE TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS AND WITH ALL FAULTS, WITHOUT ANY REPRESENTATION, WARRANTY, GUARANTEE OR CONDITION OF ANY KIND WHATSOEVER, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, POSSESSION, QUALITY OF SERVICE, NON-INFRINGEMENT, SATISFACTORY QUALITY, USABILITY, REGARDING LATENT DEFECTS, OR THAT OTHERWISE ARISE FROM A COURSE OF PERFORMANCE OR DEALING, OR USAGE OF TRADE, ALL OF WHICH ARE HEREBY DISCLAIMED BY WEARABLE DEVICES.
IN ADDITION, WEARABLE DEVICES MAKES NO REPRESENTATION, WARRANTY, GUARANTEE OR CONDITION:
• REGARDING THE CONTENT, EFFECTIVENESS, USEFULNESS, RELIABILITY, AVAILABILITY, TIMELINESS, QUALITY, ACCURACY, OR COMPLETENESS OF THE DEVICE, FIRMWARE, APP, OR DOCUMENTATION; OR
• THAT YOUR USE OF MUDRA BAND, APP OR DOCUMENTATION WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, OR WILL BE INTERRUPTED, SECURE OR ERROR-FREE.
Some jurisdictions do not allow: (x) the disclaimer of certain implied warranties or conditions, and to the extent applicable to you Wearable Devices limits the duration of such warranties and conditions to the duration of the Warranty Period; and (y) limitation on the duration of a warranty or condition, and to the extent applicable to you the time limitation of the Warranty Period shall not apply.
YOU ACKNOWLEDGE AND AGREE THAT THIS SECTION 17 (DISCLAIMER OF WARRANTIES) IS AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN YOU AND WEARABLE DEVICES.
If any third party (such as, but not limited to, a regulator or governmental authority) brings any kind of demand, claim, suit, action or proceeding against Wearable Devices, a Wearable Devices Affiliate, and/or any of our respective directors, officers, employees, agents, representatives, customers, suppliers, or licensors (each, an “Indemnitee“), and it is based upon or arises from:
• your use of MUDRA BAND (or part thereof);
• your use of the App; and/or
• your breach of any provision of this Agreement;
(each of the foregoing, a “Claim“) then, upon written request by Wearable Devices (to be decided in its sole and absolute discretion), you agree to assume full control of the defense and settlement of the Claim; provided, however, that (a) Wearable Devices reserves the right, at any time thereafter, to take over full or partial control of the defense and/or settlement of the Claim; and (b) you shall not settle any Claim, or admit to any liability thereunder, without the express prior written consent of Wearable Devices.
In addition, and regardless of whether (or the extent to which) you participated in the defense and/or settlement of a Claim, you agree to indemnify and hold harmless the Indemnitee for and against:
• any costs and expenses (including reasonable attorneys’ fees) incurred by the Indemnitee in the defense of such Claim; and
• any amounts to be paid in settlement of the Claim, or awarded against the Indemnitee under such Claim (such as, but not limited to, damages, liabilities, and fines).
19. LIMITATION OF LIABILITY
IN NO EVENT WILL WEARABLE DEVICES OR ANY WEARABLE DEVICES AFFILIATE BE LIABLE UNDER, OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT (SUCH AS, BUT NOT LIMITED TO, FOR ANY FAILURE TO DELIVER ANY PRODUCT OR SERVICE, OR INABILITY TO USE ANY PRODUCT OR SERVICE), FOR:
• ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES;
• ANY LOSS OF PROFITS, LOSS OF BUSINESS, LOSS OF REVENUE, OR LOSS OF ANTICIPATED SAVINGS;
• ANY LOSS OF, OR DAMAGE TO, DATA, REPUTATION, OR GOODWILL; AND/OR
• THE COST OF PROCURING ANY SUBSTITUTE GOODS OR SERVICES.
THE COMBINED AGGREGATE LIABILITY OF WEARABLE DEVICES AND WEARABLE DEVICES AFFILIATES UNDER, OR OTHERWISE IN CONNECTION WITH, THIS AGREEMENT (SUCH AS, BUT NOT LIMITED TO, FOR ANY FAILURE TO DELIVER ANY PRODUCT OR SERVICE, OR INABILITY TO USE ANY PRODUCT OR SERVICE) SHALL NOT EXCEED THE AMOUNTS ACTUALLY PAID BY YOU TO WEARABLE DEVICES (IF ANY) DURING THE THREE (3) MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH YOU BRING YOUR CLAIM. ACCORDINGLY, IF YOU HAVE NOT PAID WEARABLE DEVICES ANY AMOUNTS IN SUCH THREE-MONTH PERIOD, WEARABLE DEVICES SHALL HAVE NO LIABILITY TO YOU WHATSOEVER.
THE FOREGOING EXCLUSIONS AND LIMITATIONS SHALL APPLY TO THE MAXIMUM EXTENT NOT PROHIBITED BY THE LAW APPLICABLE TO YOU:
• EVEN IF WEARABLE DEVICES OR A WEARABLE DEVICES AFFILIATE HAS BEEN ADVISED, OR SHOULD HAVE BEEN AWARE, OF THE POSSIBILITY OF LOSSES, DAMAGES, OR COSTS;
• EVEN IF ANY REMEDY IN THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE; AND
• REGARDLESS OF THE THEORY OR BASIS OF LIABILITY (SUCH AS, BUT NOT LIMITED TO, BREACH OF CONTRACT, TORT, NEGLIGENCE AND STRICT LIABILITY).
Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, or of other damages, and to the extent applicable to you, such exclusions and limitations shall not apply.
YOU ACKNOWLEDGE AND AGREE THAT THIS SECTION 19 (LIMITATION OF LIABILITY) IS AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN YOU AND WEARABLE DEVICES.
20. TERMINATION AND SURVIVAL
Wearable Devices reserves the right to immediately terminate this Agreement, or otherwise modify, suspend or discontinue your access to and use of the App (or any part thereof), for any reason whatsoever, at any time, and without notice to you, and you agree that Wearable Devices will have no liability or obligation to you for any such termination, modification, suspension, or discontinuance. You may terminate this Agreement at any time and for any reason, but only by uninstalling the App. If you object to any term or condition of this Agreement or any subsequent changes thereto, or become dissatisfied with the App or Mudra Band in any way, your only recourse is to terminate this Agreement and uninstall the App. If you terminate the Agreement by uninstalling the App, you agree that Wearable Devices may still send you messages (whether by email, SMS, or otherwise) notifying you about one of your contacts that has downloaded the App.
Upon termination of this Agreement: (a) the App License will automatically terminate and you must immediately cease use of the App; and (b) your access to your Account will be disabled and Wearable Devices may permanently delete your Account Content. Sections 12 (Responsibility for Content) and 1616 (Ownership) through 22 (Miscellaneous) shall survive any termination of this Agreement, as shall any provision that is stated to so survive.
21. GOVERNING LAW & JURISDICTION
This Agreement is governed by the laws of the State of Israel without regard to conflict of laws provisions thereof. The courts of Tel Aviv, Israel shall have exclusive jurisdiction and venue to adjudicate any dispute arising out of this Agreement and both parties hereby irrevocably submit to the exclusive jurisdiction of those courts.
23.1. Entire Agreement. This Agreement (as well as its Annexes) represents the entire agreement of the parties with respect to the subject matter hereof, and supersedes and replaces any and all prior and contemporaneous oral or written understandings and statements by the parties with respect to such subject matter. You acknowledge and agree that in entering into this Agreement you have not relied on any representation not expressly set out in this Agreement (for example, statements and explanations in any FAQs or other marketing material on the Site are for convenience only, and are not binding). The language of this Agreement is expressly agreed to be the English language.
23.2. Assignment. Wearable Devices may assign this Agreement (or any of its rights and obligations hereunder) without your consent and without notice to you. This Agreement is personal to you, and you shall not assign this Agreement (or any of your obligations or rights hereunder) without Wearable Devices’s express prior written consent. Any prohibited assignment shall be null and void.
23.3. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, illegal, or unenforceable, then: (a) the remaining provisions of this Agreement shall remain in full force and effect; and (b) such affected provision shall be ineffective solely as to such jurisdiction (and only to the extent and for the duration of such invalidity, illegality, or unenforceability), and shall be substituted (in respect of such jurisdiction) with a valid, legal, and enforceable provision that most closely approximates the original legal intent and economic impact of such provision.
23.4. Remedies. Except as stated otherwise in this Agreement, no right or remedy conferred upon or reserved by any party under this Agreement is intended to be, or shall be deemed, exclusive of any other right or remedy under this Agreement, at law or in equity, but shall be cumulative of such other rights and remedies.
23.5. Waiver. No failure or delay on the part of any party hereto in exercising any right or remedy under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or remedy preclude any other or further exercise thereof or the exercise of any other right or remedy. Any waiver granted hereunder must be in writing (for waivers by you, emails will be acceptable; for waivers by Wearable Devices, the writing must be signed by Wearable Devices), and shall be valid only in the specific instance in which given.
23.6. Relationship. The relationship of the parties is solely that of independent contractors. Nothing in this Agreement shall be deemed to create any employment, fiduciary, joint venture, agency or other relationship between the parties.
23.7. Notices. You agree that Wearable Devices may send you notices by email, via your Account, by regular mail, and/or via postings on or through App. Except as stated otherwise in this Agreement or required by Law applicable to you, you agree to send all notices to Wearable Devices, to [email protected]
23.8. No Third Party Beneficiaries. You agree that, except as otherwise expressly provided in this Agreement (for example, Indemnitees), there shall be no third-party beneficiaries to this Agreement.
23.9. U.S. Government Rights. The Software is “commercial computer software” and the Documentation is “commercial computer software documentation,” pursuant to DFAR Section 227.7202 and FAR Section 12.212, as applicable. If you are an agency, department, employee or other entity of the United States Government, then your access to and use of the Software and/or the Documentation shall be subject solely to the terms and conditions of this Agreement.
23.10. Export Compliance. You must not use or otherwise export or re-export any Software except as authorized by Export Control Laws. “Export Control Laws” means all applicable export and re-export control Laws applicable to you, as well as the United States’ Export Administration Regulations (EAR) maintained by the US Department of Commerce, trade and economic sanctions maintained by the US Treasury Department’s Office of Foreign Assets Control, and the International Traffic in Arms Regulations (ITAR) maintained by the US Department of State.
23.11. Force Majeure. Wearable Devices shall not be responsible for any failure to perform any obligation or provide any service hereunder because of any (a) act of God, (b) war, riot or civil commotion, (c) governmental acts or directives, strikes, work stoppage, or equipment or facilities shortages, and/or (d) other similar cause beyond Wearable Devices’s reasonable control. For the avoidance of doubt, any problems relating to the hosting of the App shall not be deemed within Wearable Devices’s reasonable control.
Last Updated: August 24, 2020
APP PLATFORM USAGE RULES
If you download the App from the Apple, Inc. (“Apple“) App Store (or in any event if you download an Apple iOS app) then, without derogating from the warranty disclaimers and limitation of liability as set forth in the Agreement:
• You acknowledge and agree that:
o the Agreement is concluded between Wearable Devices and you only, and not with Apple, and Wearable Devices and its licensors, and not Apple, are solely responsible for the App and the content thereof.
o your use of the App is also subject to the Usage Rules established by Apple, including those set forth in the Apple App Store Terms of Service, effective as of the date that you enter into this Agreement.
o the App License granted herein is limited to a non-transferable right to use the App on an Apple iPhone, iPod Touch, iPad, or other Apple-branded product that you own or control and that runs the iOS;
o Wearable Devices is solely responsible for providing any maintenance and support services with respect to the App, as specified in the Agreement, or as required under applicable Law. Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App;
o Wearable Devices is solely responsible for any product warranties, whether express or implied by law, to the extent not effectively disclaimed. In the event of any failure of the App to conform to any applicable warranty, you may notify Apple, and Apple will, to the extent applicable, refund any purchase price paid (if any) by you for the App to you. To the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be Wearable Devices’ sole responsibility;
o Wearable Devices, and not Apple, is responsible for addressing any product claims you, or any third party, may have relating to the App or your possession and/or use of the App, including, but not limited to: (a) product liability claims; (b) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (c) claims arising under consumer protection or similar legislation;
o in the event of any third party claim that the App or your possession and use of the App infringes that third party’s intellectual property rights, Apple shall not be responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim;
o Apple and its subsidiaries are third party beneficiaries of this Agreement, and that, upon your acceptance of the terms and conditions of the Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce the Agreement against you as a third party beneficiary thereof.
• 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; and (b) you are not listed on any U.S. Government list of prohibited or restricted parties.
• If you have any questions, complaints, or claims regarding the App, please contact Wearable Devices at [email protected]
By entering into the Agreement you, to the extent legally permitted, hereby waive any applicable law requiring that the Agreement be localized to meet your language and other local requirements. To the extent that the foregoing is not permitted, you agree to be bound by the standard Apple Licensed App End User License Agreement which is part of the Apple App Store Terms of Service, at www.apple.com/legal/itunes/us/terms.html#SERVICE (as amended from time to time).