Effective: September 6, 2022
This end-user license agreement (hereinafter "the EULA") is a software license agreement between:
You (an individual, company or any other entity) And Wolkin, Inc, a company incorporated under the Laws of Delaware and addressed at 16192 Coastal Highway, Lewes, Delaware 19958, County of Sussex (hereinafter "the Licensor", "Us" or "We"), for the use of the VibeMate software.
We license the use of the software to you on the basis of this EULA and subject to any rules or policies applied by both Apple and Google Android application stores from whose site (app stores) the End-user downloads the App (app stores' Rules). We do not sell the software to you. We and/or the owners of the software remain the rightful owners of the software and Documents at all times and the License to use the software is non-exclusive, non-negotiable and fully revocable
By downloading the software from the app stores, our website or anywhere else you agree to be bound by the terms of the EULA. The terms of the EULA include, inter alia, limitations on the liability in Section 7. If you do not agree to the terms of this EULA, we will not license the software to you and you must stop the downloading or streaming process (as applicable) immediately. Otherwise, you will be liable for unauthorized and illegal use of the software, and take the legal consequence.
1.1 The terms of this EULA apply to the Software or any of the services accessible through the Software (Services), including any updates or supplements to the Software or any Services; unless they come with separate terms, in which case those terms apply. If any open-source software is included in the Software or any Services, the terms of an open-source license may prevail over some of the terms of this EULA.
1.2 We may change these terms at any time by sending you a message of the change or notifying you of a change when you start the Software. The new terms may be displayed on-screen and you may be required to read and accept them before continuing your use of the Services.
1.3 From time to time, updates to the Software may be issued through the Appstores. Depending on the update, you may not be able to use the Services until you have downloaded or streamed the latest version of the Software and accepted any new terms.
1.4 You will be assumed to have obtained permission from the owners of the mobile telephone, handheld devices in your possession and those described in condition 2.2(a) (Devices) to download or stream a copy of the Software onto the Devices. You and they may be charged by your and their service providers for internet access on the Devices. You are deemed to accept the obligations in accordance with the terms of this EULA for the use of the Software or any Services on or in relation to any Device, whether or not it is owned by you.
1.5 By using the Software or any of the Services, you consent to us collecting and using technical information about the Devices and related software, hardware and peripherals for Services that are internet-based or wireless solely for the purpose of improving our products and providing related Services to you.
1.6 The Software or any Services may contain links to other independent third-party websites (Third-party Sites). Third-party Sites are not under our control, and we are not responsible for and do not endorse their content or their privacy policies (if any). You will need to make your own independent judgement regarding your interaction with any Third-party Sites, including the purchase and use of any products or services accessible through them.
1.8 Any words following the terms "including", "include", "in particular" and "for example" or any similar phrase shall be construed as illustrative and shall not limit the generality of the related general words.
2.2You may only download or stream a copy of the Software onto a Device and to view, use and display the Software on the Devices for your personal purposes only.
Except as expressly set out in this EULA or as permitted by any local law, you agree:
(a) not to copy the Software except where such copying is incidental to normal use of the Software, or where it is necessary for the purpose of back-up or operational security
(b) not to rent, lease, sub-license, loan, translate, merge, adapt, vary or modify the Software;
(c) not to make alterations to, or modifications of, the whole or any part of the Software, or permit the Software or any part of it to be combined with, or become incorporated in, any other programs;
(d) not to disassemble, decompile, reverse-engineer or create derivative works based on the whole or any part of the Software or attempt to do any such thing.
(e) to keep all copies of the Software secure and to maintain accurate and up-to-date records of the number and locations of all copies of the Software;
(f) to include our copyright notice on all entire and partial copies you make of the Software on any medium;
(g) not to provide or otherwise make available the Software in whole or in part (including object and source code), in any form to any person without prior written consent from us; and
(h) to comply with all technology control or export laws and regulations that apply to the technology used or supported by the Software or any Services (Technology).
You agree that you are required to:
(a) not use the Software or any Services in any unlawful manner, for any unlawful purpose, or in any manner inconsistent with this EULA, or act fraudulently or maliciously, for example, by hacking into or inserting malicious code, including viruses, or harmful data, into the Software, any Services or any operating system;
(b) not infringe our intellectual property rights or those of any third party in relation to your use of the Software or any Services (to the extent that such use is not licensed by this EULA);
(c) not transmit any material that is defamatory, offensive or otherwise objectionable in relation to your use of the Software or any Services;
(d) not use the Software or any Services in a way that could damage, disable, overburden, impair or compromise our systems or security or interfere with other users; and
(e) not collect or harvest any information or data from any Services or our systems or attempt to decipher any transmissions to or from the servers running any Services.
5.1 You acknowledge that all intellectual property rights and the Technology in the Software belong to us or our licensors, that rights in the Software are licensed (not sold) to you, and that you have no rights in, or to, the Software or the Technology other than the right to use each of them in accordance with the terms of this EULA.
5.2 You acknowledge that you have no right to have access to the Software in source-code form.
6.1 You expressly acknowledge and agree that you bear any risk in relation to the use of the Software and Services in respect of its satisfactory quality, performance and accuracy.
6.2 To the maximum extent permitted by applicable law, the Software and Services are provided "as is" and "as available", with all faults and without warranty of any kind, and we hereby disclaim all warranties and conditions with respect to the Software and Services, either express, implied or statutory, including, but not limited to, any implied warranties and/or conditions of merchantability, of satisfactory quality, of fitness for a particular purpose, of accuracy, of quiet enjoyment, and non-infringement of third party rights. We do not warrant against interference with your enjoyment of the Software that the functions contained in the Software or Services will meet your requirements, that the operation of the Software or Services will be uninterrupted or error-free, or that defects in the Software or Services will be corrected. No oral or written information or advice given by us or our authorized representative shall constitute a warranty. Should the Software or Services prove defective, you assume the entire cost of all necessary servicing, repair or correction.
7.1 The Licensor will not take any responsibility for software use problems caused by abuse, misuse, or unauthorized modification.
7.2 To the extent not prohibited by applicable law, under no circumstances shall the Licensor, its employees, other licensees, or affiliates be liable for any lost profits, revenue, sales, data or costs of procurement of substitute goods or services, property damage, personal injury, interruption of business, loss of business information or for any special, direct, indirect, incidental, economic, punitive or consequential damages, however caused and whether arising under contract, tort, negligence, or other theory of liability arising out of the use of or inability to use the software, even if the Licensor or its other licensees or affiliates are advised of the possibility of such damages. Some jurisdictions do not allow the limitation of liability for personal injury, or of incidental or consequential damages, so this limitation may not apply to you.
7.3 In no event shall the Licensor's total liability to you for all damages (other than as may be required by applicable law in cases involving death or personal injury resulting from the Licensor's negligence) exceed the amount you paid for your Lovense device.
7.4 The laws of some countries/regions do not allow the exclusion or limitation of certain warranties, guarantees or liabilities. If such laws apply to you, all or part of the exclusions or limitations described herein may not apply to you and you may have additional rights. Nothing in this Agreement affects your legal rights that you are always entitled to as a consumer and which you cannot contractually agree to alter or waive.
8.1 This Agreement is effective from the first date you install the Software. You may terminate this Agreement at any time by permanently deleting, destroying and returning, at your own cost, the Software, all backup copies and all related materials provided by the Licensor.
8.2 We may terminate this EULA immediately by written notice to you:
(a) if you commit a material or persistent breach of this EULA which you fail to remedy (if remediable) within 14 days after the service of written notice requiring you to do so;
(b) if you breach any of the License Restrictions or the Acceptable Use Restrictions;
(c) on thirty days' notice.
8.3 Upon termination for any reason:
(a) all rights granted to you under this EULA shall cease;
(b) you must immediately cease all activities authorized by this EULA;
(c) you must immediately delete or remove the App from all Devices, and immediately destroy all copies of the App and Documents then in your possession, custody or control and certify to us that you have done so..
9.1 If you wish to contact us in writing, or if any condition in this EULA requires you to give us notice in writing, you can send this to us by e-mail at [email protected]. We will confirm receipt of this by contacting you in writing, normally by e-mail.
9.2 If we have to contact you or give you notice in writing, we will do so by e-mail to the email address you provide to us in your request for the App.
10.1 We will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under this EULA that is caused by any act or event beyond our reasonable control, including failure of public or private telecommunications networks (Event Outside Our Control).
10.2 Should any Event Outside Our Control take place that affects the performance of our obligations under this EULA:
(a) our obligations under this EULA will be suspended and the time for performance of our obligations will be extended for the duration of the Event Outside Our Control;
(b) we will use our reasonable endeavors to find a solution by which our obligations under this EULA may be performed despite the Event Outside Our Control.
11.1 We may transfer our rights and obligations under this EULA to another entity, but this will not affect your rights or our obligations under this EULA.
11.2 You may only transfer your rights or obligations under this EULA to another person if we agree in writing.
11.3 If we fail to insist that you perform any of your obligations under this EULA, or if we do not enforce our rights against you, or if we delay in doing so, that will not mean that we have waived our claims against you and will not mean that you do not have to comply with those obligations. If we do waive any claim against you, we will only do so in writing, and that will not mean that we will automatically waive any subsequent claim against you.
11.4 Each of the terms of this EULA operates separately. If any court or competent authority decides that any of them are unlawful or unenforceable, the remaining conditions will remain in full force and effect.
11.5 Any dispute, controversy, difference or claim arising out of or relating to this Agreement, including the existence, validity, interpretation, performance, breach or termination thereof or any dispute regarding non-contractual obligations arising out of or relating to it shall be referred to and finally resolved by arbitration administered by the Hong Kong International Arbitration Centre (HKIAC) under the HKIAC Administered Arbitration Rules in force when the Notice of Arbitration is submitted. The applicable law of this arbitration clause shall be Hong Kong law；The seat of arbitration shall be Hong Kong； The number of arbitrators shall be one. The arbitration proceedings shall be conducted in English.
11.6 The governing law of the Agreement shall be the law of the Hong Kong Special Administrative Region of the People's Republic of China, without regard to principles of conflict of laws.
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