SWYSH MOBILE APPLICATION END USER LICENSE AGREEMENT
BY DOWNLOADING, INSTALLING OR USING THE APP YOU ACKNOWLEDGE AND AGREE THAT:
your use of the App in conjunction with the SWYSH App is solely at your own risk;
the App is licensed, not sold to you and you may use the App only as set forth in this EULA;
you acknowledge that third party terms and fees may apply to the use and operation of your mobile device in connection with your use of the App, such as your carrier’s terms of service, and fees for phone service, data access, media content or messaging capabilities, and that you are solely responsible for payment of any and all such fees;
as set forth in this EULA, the App is provided “as is”;
you may send an e-mail to email@example.com to have a copy of this EULA sent to you; and
if you are using the App on an iOS product, you agree to and acknowledge the “Notice Regarding Apple,” below.
IF YOU DO NOT AGREE TO BE BOUND BY ABOVE TERMS (AS DESCRIBED IN FURTHER DETAIL BELOW) YOU MAY NOT DOWNLOAD, INSTALL OR USE THE APP.
MODIFICATION OF THE EULA. LYCHEE LABS reserves the right to modify and/or change any of the terms and conditions of this EULA at any time and without prior notice. If LYCHEE LABS materially modifies this EULA it will post the updated EULA in the “Settings Menu” of the App via a hyperlink or by other reasonable means now known or hereafter developed. By continuing to use the App after LYCHEE LABS has posted a modification of this EULA, you agree to be bound by the modified EULA. If the modified EULA is not acceptable to you, your only recourse is to discontinue the use of and uninstall the App. This Agreement will also govern any software upgrades and/or updates provided by LYCHEE LABS that upgrade and/or supplement the App, unless such upgrades and/or updates are accompanied by a separate license, in which case the terms of that separate license will apply.
LIMITED LICENSE. Conditioned upon your compliance with the terms and conditions of this EULA, LYCHEE LABS hereby grants to you a limited, revocable, non-exclusive, personal, non-sublicensable, non-transferable, non-assignable license to install and use the executable form of the App solely for your personal use on a device (whether mobile device or other) owned or controlled by you. LYCHEE LABS reserves all rights in the App not expressly granted to you in this EULA.
PHONE SETTINGS AND UNINSTALL PROCEDURES. As part of the installation process of the App, you may be changing your mobile device settings. By installing the App, you agree you have approved such changes and you understand you can reconfigure such settings at any time from the “Settings Menu” available in the App, in the configuration options available in your mobile device from within your mobile device Setting Menu. Such changes may include, without limitation, the following:
Allowing software updates of the App once a new version is released and the ability to send notifications.
Allowing LYCHEE LABS access to location-based information.
Allowing LYCHEE LABS to access information about the use of the App.
To uninstall the App, you may use the standard uninstall procedures offered by your device’s Operating System.
USE RESTRICTIONS. You may not use the App in any manner that could: (i) damage, disable, overburden, or impair the App (or any server or networks connected to any the App), or (ii) interfere with any third party’s use and/or enjoyment of the App (or any server or networks connected to the App). Except as expressly specified in this EULA, you may not: (a) copy, modify or otherwise create derivative works of the App; (b) transfer, sublicense, lease, lend, rent or otherwise distribute the App or any features or functionality of the App to any third party; or (c) use the App in any unlawful manner, for any unlawful purpose, or in any manner inconsistent with this EULA. You acknowledge and agree that portions of the App, including, without limitation, the source code and the specific design and structure of individual modules or programs, constitute or contain trade secrets of LYCHEE LABS and its licensors. Accordingly, you agree not to disassemble, decompile or otherwise reverse engineer any components of the App provided in object code or any other LYCHEE LABS products or services, in whole or in part, or permit or authorize a third party to do so, except to the extent such activities are expressly permitted by law notwithstanding this prohibition. Further, you agree not to remove, delete, alter or obscure any trademarks or any copyright, trademark, patent or other intellectual property or proprietary rights notices from the App, including any copy thereof.
OPEN SOURCE. Any Open Source Software that may be accompanying the App is provided to you under the terms of the open source license agreement or copyright notice accompanying such Open Source Software or in the open source licenses file accompanying the Software. As used herein “Open Source Software” mean open source software components provided with the App that are licensed to you under the terms of the applicable license agreements included with such open source software components or other materials for the App. This EULA does not apply to any Open Source Software accompanying the App and LYCHEE LABS hereby disclaims any and all liability to you or any third party related thereto.
RESERVATION OF RIGHTS. The software, content, visual interfaces, interactive features, information, graphics, design, compilation, computer code and all other elements of the App (the “LYCHEE LABS Materials”), are protected by copyright, trade dress, patent, and trademark laws of the United States and other jurisdictions, international conventions, and all other relevant intellectual property and proprietary rights, and applicable laws. All LYCHEE LABS Materials, including intellectual property rights therein and thereto, are the property of LYCHEE LABS or its subsidiaries or affiliated companies and/or third-party licensors. LYCHEE LABS reserves all rights not expressly granted in this EULA. You shall not acquire any right, title or interest to the LYCHEE LABS Materials, whether by implication, estoppel, or otherwise, except for the limited rights set forth in this EULA.
TERM AND TERMINATION. The term of this EULA and all incorporated Terms shall commence when you download the Application and will remain in effect until terminated. The EULA, and your rights and licenses hereunder, will terminate immediately upon your breach of the EULA. LYCHEE LABS may terminate support of the App and/or this EULA, or limit or terminate your access to the App at any time for any reason. Upon termination all rights and license granted to you under this EULA will also terminate and you must cease all use of the App and delete all copies of the App from your mobile device and account. You may terminate the EULA by uninstalling and discontinuing your use of the App. Sections entitled Reservation of Rights, Term and Termination, Warranty Disclaimer and Limitation of Liability, Indemnification, and Miscellaneous shall survive any termination of this EULA.
WARRANTY DISCLAIMER AND LIMITATION OF LIABILITY. THE APP IS PROVIDED ON AN “AS IS” BASIS, WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, LYCHEE LABS DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, TITLE, QUALITY, AND NONINFRINGEMENT. LYCHEE LABS EXPRESSLY DISCLAIMS ANY WARRANTIES OF ANY KIND WITH RESPECT TO THE ACCURACY, VALIDITY, OR COMPLETENESS OF ANY INFORMATION OR FEATURES AVAILABLE THROUGH THE SERVICE, OR THE QUALITY OR CONSISTENCY OF THE SERVICE. LYCHEE LABS DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE LICENSED APPLICATION, THAT THE FUNCTIONS CONTAINED IN, OR SERVICES PERFORMED OR PROVIDED BY, THE LICENSED APPLICATION WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE LICENSED APPLICATION OR SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE LICENSED APPLICATION OR SERVICES WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY APPLICATION PROVIDER OR ITS AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. SHOULD THE LICENSED APPLICATION OR SERVICES PROVE DEFECTIVE, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION.
LIABILITY WAIVER. UNDER NO CIRCUMSTANCES WILL LYCHEE LABS, ITS OFFICERS OR DIRECTORS BE LIABLE TO YOU OR ANYONE ELSE FOR ANY LOSS OR INJURY OR ANY DIRECT, INDIRECT, SPECIAL OR OTHER CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH YOUR ACCESS OR USE OF, OR INABILITY TO ACCESS OR USE THE SERVICE AND ANY INFORMATION AVAILABLE THEREON, EVEN IF LYCHEE LABS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. THIS INCLUDES LIABILITY FOR PHYSICAL DAMAGE TO PROPERTY OR PERSONS HARMED IN THE COURSE OF USING THE SERVICES. IN NO EVENT WILL LYCHEE LABS’ TOTAL CUMULATIVE LIABILITY ARISING FROM OR RELATED TO YOUR USE OF THE SERVICE, WHETHER IN CONTRACT OR TORT, EXCEED FIVE DOLLARS ($5). Some states do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to you.
INDEMNIFICATION. To the maximum extent permitted by law, You agree to defend, indemnify and hold LYCHEE LABS harmless from any and all claims, suits, losses, liability, costs or expenses (including, but not limited to reasonable attorneys fees) arising from or incurred as a result of your use of the App or any breach by you of this EULA.
MISCELLANEOUS. (a) This EULA, the Terms and all the policies referenced herein constitute the entire agreement between LYCHEE LABS and you concerning the subject matter hereof, and it may only be modified by a written amendment signed by an authorized executive of LYCHEE LABS. (b) The section titles in this EULA are provided solely for convenience and have no legal or contractual significance. (c) This EULA shall be governed by and interpreted under the laws of the State of California, without regard to its conflicts of laws provisions. All actions relating to this EULA and the App shall be brought in a state or federal court located in San Francisco County, California. (d) The failure of either party to enforce any rights granted hereunder or to take action against the other party in the event of any breach hereunder shall not be deemed a waiver by that party as to subsequent enforcement of rights or subsequent actions in the event of future breaches. (e) You may not assign your rights under this EULA to any party without LYCHEE LABS’s consent. (f) If any provision of this EULA shall be deemed unlawful, void or for any reason unenforceable, that provision of this EULA shall be enforced to the maximum extent permissible so as to affect the intent of the parties, and the remainder of this EULA shall continue in full force and effect.
NOTICE REGARDING APPLE. You acknowledge that this EULA is between you and Lychee Labs, LLC. only, not with Apple, and Apple is not responsible for the App and the content thereof. Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App. In the event of any failure of the App to conform to any applicable warranty, then you may notify Apple and Apple will refund the purchase price for the relevant App to you; and, to the maximum extent permitted by applicable law, Apple has no other warranty obligation whatsoever with respect to the App. Apple is not responsible for addressing any claims by you or any third party relating to the App or your possession and/or use of the App, including, but not limited to: (i) product liability claims; (ii) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement and discharge of any third party claim that your possession and use of the App infringes that third party’s intellectual property rights. You agree to comply with any applicable third party terms, when using the App. Apple, and Apple’s subsidiaries, are third party beneficiaries of this EULA, and upon your acceptance of this EULA, Apple will have the right (and will be deemed to have accepted the right) to enforce this EULA against you as a third party beneficiary of this EULA. You hereby represent and warrant that (i) 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 (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. If SWYSH provides a translation of the English language version of this EULA is provided, the translation is provided solely for convenience, and the English version shall prevail.