FastAccess EULA for Apple iOS
Sensible Vision, Inc. FastAccess™ and Fast Access Anywhere™Software END-USER LICENSE AGREEMENT and CLOUD SERVICES LICENSE AGREEMENT
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IMPORTANT—READ CAREFULLY: This End-User License Agreement (“EULA”)/Cloud Services License Agreement is a legal agreement between you (either an individual or a single entity) and Sensible Vision, Inc. (hereinafter Sensible Vision) for the FastAccess and Fast Access Anywhere software products, which include computer software and may include associated media, Internet downloads, printed materials, “online” or electronic documentation, Internet-based services and imaging hardware (“Product”). Apple, Inc. is not a party to this agreement. An amendment or addendum to this EULA may accompany the Product. YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS EULA/CLOUD SERVICES AGREEMENT BY INSTALLING, COPYING, OR OTHERWISE USING THE PRODUCT and SERVICES. IF YOU DO NOT AGREE, DO NOT INSTALL OR OTHERWISE USE THE PRODUCT OR SERVICES; YOU MAY RETURN IT TO YOUR PLACE OF PURCHASE FOR A FULL REFUND.
1. GRANT OF LICENSE. Sensible Vision grants you the following rights provided that you comply with all terms and conditions of this EULA:
1.1. Installation and use. You may install, use, access, display and run one copy of the Product in object code form on a single computer, such as a workstation, terminal or other device (“Workstation Computer”).
1.2. Product Activation. The license rights granted under this EULA are limited to the first the seven (7) days after you first install the Product (the “Trial Period”) unless you supply mandatory information required to activate your licensed copy in the manner described during the setup sequence of the Product. This license expires at the end of the trial period if the Product is not activated before then. You can activate the Product either using the information supplied with the software media or through use of the Internet. You will also need to reactivate the Product if you modify your computer hardware or alter the Product. There are technological measures in this Product that are designed to prevent unlicensed or illegal use of the Product. You agree that Sensible Vision may use those measures.
1.3. Storage or Network Use. You may also store or install a copy of the Product on a storage device, such as a network server, used only to install or run the Product on your other Workstation Computers over an internal network; however, you must acquire and dedicate an additional license for each separate Workstation Computer on or from which the Product is installed, used, accessed, displayed or run. A license for the Product may not be shared or used concurrently on different Workstation Computers.
1.4 Reservation of Rights. The license granted herein is a non-exclusive license. Sensible Vision reserves all rights not expressly granted to you in this EULA.
2. UPGRADES. To use a Product identified as an upgrade, you must first be licensed for the product identified by Sensible Vision as eligible for the upgrade. After upgrading, you may no longer use the product that formed the basis for your upgrade eligibility. In order to use an upgrade of the Product you may be required to purchase and obtain a license to use the upgrade. The purchase of the Product does not include or apply towards the purchase of any Product upgrade.
3. ADDITIONAL SOFTWARE/SERVICES. Sensible Vision agrees to supply you with an update (not upgrade) as they may become available for a limited 365 day period from the purchase of the Product. You may purchase additional updates or upgrades after this limited 365day period as they become available. This EULA applies to updates, upgrades, supplements, add-on components, or Internet-based service components, of the Product that Sensible Vision may provide to you or make available to you after the date you obtain your initial copy of the Product unless we provide other terms along with the update, upgrade, supplement, add-on component or Internet-based services component. Sensible Vision reserves the right to discontinue any Internet-based update services provided to you or made available to you through the use of the Product.
4. TRANSFER—INTERNAL. You may move the Product to a different Workstation Computer. After the transfer, you must completely remove the Product from the former Workstation Computer. Transfer to Third Party. The initial user of the Product may make a one-time transfer of the Product to another end-user. The transfer has to include all component parts, media, printed materials, this EULA, and if applicable, the Certificate of Authenticity. The transfer may not be an indirect transfer, such as a consignment prior to the transfer, the end-user receiving the transferred Product must agree to all the EULA terms. No Rental. You may not rent lease, lend or provide commercial hosting services to third parties with the Product.
5. LIMITATION ON REVERSE ENGINEERING, DECOMPILATION, AND DISASSEMBLY. You may not reverse engineer, decompile, or disassemble the Product except and only to the extent that it is expressly permitted by applicable law notwithstanding this limitation.
6. TERMINATION. Without prejudice to any other rights, Sensible Vision may cancel this EULA if you do not abide by the terms and conditions of this EULA, in which case you agree to destroy all copies of the Product and all of its component parts.
7. DESCRIPTION OF OTHER RIGHTS AND LIMITATIONS.
7.1. Consent to Use of Data. You agree that Sensible Vision and its affiliates may collect and use technical information related to the Product gathered in any manner as part of the product support services provided to you. Sensible Vision may use this information solely to improve its products or to provide customized services or technologies to you. Sensible Vision will not collect personal information or passwords and will not disclose any technical information to others that personally identifies you.
7.2. Internet-Based Services Components. The Product contains components that enable and facilitate the use of certain Internet-based services. You acknowledge and agree that Sensible Vision may automatically check the version of the Product and/or its components that you are utilizing and may provide upgrades or fixes to the Product that will be automatically downloaded to your Workstation Computer.
8. NOT FOR RESALE SOFTWARE. Product identified as “Not for Resale” or “NFR,” may not be resold, transferred or used for any purpose other than demonstration, test or evaluation.
9. EXPORT RESTRICTIONS. You acknowledge that the Product is of U.S. origin and subject to U.S. export jurisdiction. You agree to comply with all applicable international and national laws that apply to the Product, including the U.S. Export Administration Regulations, as well as end-user, end-use, and destination restrictions issued by U.S. and other governments. For additional information see http://www.sensiblevision.com
10. LIMITED WARRANTY FOR PRODUCT ACQUIRED IN THE US AND CANADA. Sensible Vision warrants that the Product will perform substantially in accordance with the accompanying materials for a period of thirty (30) days from the date of receipt or download. All media embodying the Product shall be free of defect in materials and workmanship for thirty (30) days. If an implied warranty or condition is created by your state/jurisdiction and federal or state/provincial law prohibits disclaimer of it, you also have an implied warranty or condition BUT ONLY AS TO DEFECTS DISCOVERED DURING THE PERIOD OF THIS LIMITED WARRANTY (THIRTY DAYS). AS TO ANY DEFECTS DISCOVERED AFTER THE THIRTY (30) DAY PERIOD, THERE IS NO WARRANTY OR CONDITION OF ANY KIND. Some states/jurisdictions do not allow limitations on how long an implied warranty or condition lasts, so the above limitation may not apply to you. Any supplements or updates to the Product including, without limitation, any (if any) service packs or hot fixes provided to you after the expiration of the thirty day Limited Warranty period are not covered by any warranty or condition, express, implied or statutory. Sensible Vision 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 Product to conform to any applicable warranty, the end-user may notify Apple, Inc., and Apple, Inc. will refund the purchase price for the Product to that end-user; and that, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Product, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the responsibility of Sensible Vision.
LIMITATION ON REMEDIES. NO CONSEQUENTIAL OR OTHER DAMAGES. Your exclusive remedy for any breach of this Limited Warranty is set forth herein. Except for any refund by Sensible Vision or Apple, Inc., YOU ARE NOT ENTITLED TO ANY DAMAGES, INCLUDING BUT NOT LIMITED TO CONSEQUENTIAL DAMAGES, if the Product does not meet Sensible Vision’s Limited Warranty, and, to the maximum extent allowed by applicable law, even if any remedy fails of its essential purpose. The terms of Section 13 below (“Exclusion of Incidental, Consequential and Certain Other Damages”) are also incorporated into this Limited Warranty. Some states/jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to you. This Limited Warranty gives you specific legal rights. You may have others which vary from state/jurisdiction to state/jurisdiction.
YOUR EXCLUSIVE REMEDY. Sensible Vision’s and its suppliers’ entire liability and your exclusive remedy shall be, at Sensible Vision’s option from time to time exercised subject to applicable law, (a) return of the price paid (if any) for the Product or (b) repair or replacement of the Product that does not meet this Limited Warranty and that is returned to Sensible Vision with a copy of your receipt. You will receive the remedy elected by Sensible Vision without charge, except that you are responsible for any expenses you may incur (e.g., cost of shipping the Product to Sensible Vision). This Limited Warranty is void if failure of the Product has resulted from accident abuse, misapplication, abnormal use or a virus and does not include any costs for installation or other professional services. Any replacement Product will be warranted for the remainder of the original warranty period or thirty (30) days, whichever is longer. Outside the United States or Canada, neither these remedies nor any product support services offered by Sensible Vision are available without proof of purchase from an authorized international source. To exercise your remedy, contact Sensible Vision, Inc. 40376 Blue Star Highway; Covert, MI 49043. Telephone (269) 932-4548.
LIMITED WARRANTY FOR PRODUCT ACQUIRED OUTSIDE THE U.S. OR CANADA. FOR THE LIMITED WARRANTIES AND SPECIAL PROVISIONS PERTAINING TO YOUR PARTICULAR JURISDICTION, PLEASE REFER TO YOUR WARRANTY ON THE SENSIBLE VISION WEB SITE: http\\:www.sensiblevision.com.
11. DISCLAIMER OF WARRANTIES. The Limited Warranty that appears above is the only express warranty made to you and is provided in lieu of any other express warranties (if any) created by any documentation, packaging, or other communications. Except for the Limited Warranty and to the maximum extent permitted by applicable law, Sensible Vision and its suppliers provide the Product and support services (if any) AS IS WITH ALL FAULTS, and hereby disclaim all other warranties and conditions, either express, implied or statutory, including, but not limited to, any (if any) implied warranties, duties or conditions of merchantability, of fitness for a particular purpose, of reliability or availability, of accuracy or completeness of responses, of results, of workmanlike effort, of lack of viruses, and of lack of negligence, all with regard to the Product, and the provision of or failure to provide support or other services, information, software, and related content through the Product or otherwise arising out of the use of the Product. ALSO, THERE IS NO WARRANTY OR CONDITION OF TITLE, QUIET ENJOYMENT, QUIET POSSESSION OR CORRESPONDENCE TO DESCRIPTION WITH REGARD TO THE PRODUCT.
12. EXCLUSION OF INCIDENTAL, CONSEQUENTIAL AND CERTAIN OTHER DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL SENSIBLE VISION OR ITS SUPPLIERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS OR CONFIDENTIAL OR OTHER INFORMATION, FOR BUSINESS INTERRUPTION, FOR PERSONAL INJURY, FOR LOSS OF PRIVACY, FOR FAILURE TO MEET ANY DUTY INCLUDING OF GOOD FAITH OR OF REASONABLE CARE, FOR NEGLIGENCE, AND FOR ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER) ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF OR INABILITY TO USE THE PRODUCT, THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT OR OTHER SERVICES, INFORMATION, SOFTWARE, AND RELATED CONTENT THROUGH THE PRODUCT OR OTHERWISE ARISING OUT OF THE USE OF THE PRODUCT, OR OTHERWISE UNDER OR IN CONNECTION WITH ANY PROVISION OF THIS EULA, EVEN IN THE EVENT OF THE FAULT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, BREACH OF CONTRACT OR BREACH OF WARRANTY OF SENSIBLE VISION OR ANY SUPPLIER, AND EVEN IF SENSIBLE VISION OR ANY SUPPLIER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
13. LIMITATION OF LIABILITY AND REMEDIES. Notwithstanding any damages that you might incur for any reason whatsoever (including, without limitation, all damages referenced above and all direct or general damages), the entire liability of Sensible Vision and any of its suppliers under any provision of this EULA and your exclusive remedy for all of the foregoing (except for any remedy of repair or replacement elected by Sensible Vision with respect to any breach of the Limited Warranty) shall be limited to the greater of the amount actually paid by you for the Product or USD $5.00. The foregoing limitations, exclusions and disclaimers (including Sections 11, 12 and 13 above) shall apply to the maximum extent permitted by applicable law, even if any remedy fails its essential purpose.
14. U.S. GOVERNMENT LICENSE RIGHTS. All Products provided to the U.S. Government pursuant to solicitations issued on or after December 1, 1995, is provided with the commercial license rights and restrictions described elsewhere herein. All Product provided to the U.S. Government pursuant to solicitations issued prior to December 1, 1995, is provided with “Restricted Rights” as provided for in FAR, 48 CFR 52.227-14 (JUNE 1987) or DFAR, 48 CFR 252.227-7013 (OCT 18), as applicable.
15. APPLICABLE LAW. If you acquired this Product in the United States, this EULA is governed by the laws of the State of Michigan. If you acquired this Product in Canada, unless expressly prohibited by local law, this EULA is governed by the laws in force in the Province of Ontario, Canada; and, in respect of any dispute which may arise hereunder, you consent to the jurisdiction of the federal and provincial courts sitting in Windsor, Ontario. If this Product was acquired outside the United States, then local law may apply.
16. EQUITABLE REMEDIES. You agree that the terms and conditions of this EULA are reasonable for the protection of Sensible Vision's business interests and that irreparable injury will result to Sensible Vision if terms of this EULA are breached. In the event of an actual or threatened breach of any such terms and conditions, Sensible Vision will have no adequate remedy at law. You further agree that in the event of any actual or threatened breach Sensible Vision shall be entitled to immediate temporary injunctive and other equitable relief. Nothing contained herein shall be construed as prohibiting Sensible Vision from pursuing any other remedies available to it for such breach or threatened breach, including the recovery of any damages which it is able to prove.
17. ENTIRE AGREEMENT. This EULA (including any addendum or amendment to this EULA which is included with the Product) are the entire agreement between you and Sensible Vision relating to the Product and the support services (if any) and they supersede all prior or contemporaneous oral or written communications, proposals and representations with respect to the Product or any other subject matter covered by this EULA. To the extent the terms of any Sensible Vision policies or programs for support services conflict with the terms of this EULA, the terms of this EULA shall control.
18. PRODUCT LICENSE. The Product is protected by copyright and other intellectual property laws and treaties. Sensible Vision or its suppliers own the title, copyright, trade secret and other intellectual property rights in the Product. The Product is licensed, not sold. Sensible Vision and the end-user acknowledge that, in the event of any third party claim that the Product or the end-user’s possession and use of that Product infringes that third party’s intellectual property rights, Sensible Vision will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
19. THIRD PARTY BENEFICIARY. Sensible Vision and the end-user both acknowledge and agree that Apple, Inc. and its subsidiaries are third party beneficiaries of the EULA, and that, upon the end-user’s acceptance of the terms and conditions of this EULA, Apple, Inc. will have the right (and will be deemed to have accepted the right) to enforce the EULA against the end-user as a third party beneficiary thereof.
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IMPORTANT—READ CAREFULLY The following terms and conditions pertain to Cloud Services Terms of Service as used in connection with Sensible Vision products. Please read this Agreement before downloading or using any Sensible Vision cloud services and software tools offered by Sensible Vision in connection with these services (all of which are referred to in this Agreement as the "Cloud Services ").
This Agreement is between Sensible Vision and the user of the Cloud Services (“you”). You signify assent to the terms of this Agreement by downloading or using the Cloud Services. An individual acting on behalf of an entity represents that the individual has the authority to enter this agreement on behalf of that entity. You may not use the Cloud Services if you do not accept the terms of the EULA or this Agreement. This Agreement forms a legally binding contract between you and Sensible Vision as relates to your use of the Cloud Services the Fast Access software.
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19. DEFINITIONS. “Content” means any software, data, or application that you create using Fast Access (TM) or Fast Access Anywhere (TM) or is stored on servers owned or operated by Sensible Vision using the Cloud Services.
20. CLOUD SERVICES LICENSE GRANT.
20.1. Subject to the terms of this Agreement, Sensible Vision grants you a limited, worldwide, non- transferrable non-exclusive license to install and use the Cloud Services as long as you use the services according to generally accepted business practices and pay any applicable fees to Sensible Vision.
20.2. You are granted no rights to the Cloud Services except those rights specified in this Agreement. You agree that Sensible Vision or other third parties own all legal right, title and interest in and to the Cloud Services, including any Intellectual Property Rights that subsist in the Cloud Services. "Intellectual Property Rights" means any and all rights under patent law, copyright law, trade secret law, trademark law, and any other proprietary rights. Sensible Vision reserves all rights not expressly granted to you.
20.3. Except as expressly permitted in this Agreement or to the extent required by applicable third party licenses, you shall not (a) copy (except for backup purposes), modify, adapt, reverse engineer, decompile, disassemble, or create derivative works of the Cloud Services or any part of the Cloud Services; (b) redistribute sublicense, lease, rent, sell, loan or otherwise transfer the Cloud Services to any third party; (c) copy or otherwise reproduce the Cloud Services, except for back-up purposes; (d) build or sell a product competitive with the Cloud Services; (e) copy any features, functions or graphics of the Cloud Services or (f) attempt to disable or circumvent any security mechanisms used by the Cloud Services or any applications running on the Cloud Services. Except to the extent required by applicable third party licenses, you may not combine any part of the Cloud Services with other software, or distribute any software or device incorporating a part of the Cloud Services. You shall not re-sell, re-distribute or re-package the Cloud Services to a third-party.
20.4. In the event the Cloud Services use any open source code, the use, reproduction and distribution of components of the Cloud Services licensed thereunder are subject to an open source software license governed solely by the terms of that open source software license and not this Agreement.
20.5. You agree that the form and nature of the Cloud Services that Sensible Vision provides may change without prior notice to you and that future versions of the Cloud Services may be incompatible with applications developed on previous versions of the Cloud Services. You agree that Sensible Vision may stop or suspend (permanently or temporarily) providing the Cloud Services (or any features within the Cloud Services) to you or to users generally at Sensible Vision's sole discretion, without prior notice to you. Fees paid for the Cloud Services suspended by Sensible Vision may be subject to a pro rata refund at the discretion of Sensible Vision.
20.6. Nothing in this Agreement gives you a right to use any of Sensible Vision's trade names, trademarks, service marks, logos, domain names, or other distinctive brand features.
20.7. You shall not remove, obscure, or alter any proprietary rights notices (including copyright and trademark notices) that may be affixed to or contained within the Cloud Services.
20.8. If Sensible Vision reasonably believes that some Content violates the law, infringes or misappropriates the rights of any third party or otherwise violates a material term of the Agreement (“Prohibited Content”), Sensible Vision will notify You of the Prohibited Content and may request that such Prohibited Content be removed from servers owned or managed by Sensible Vision or that access to the Prohibited Content be disabled. If you do not remove or disable access to the Prohibited Content within two (2) business days of Sensible Vision’s notice, Sensible Vision may remove or disable access to the Prohibited Content. Notwithstanding the foregoing, Sensible Vision may remove or disable access to any Prohibited Content without prior notice in connection with illegal content or as required to comply with law or any judicial, regulatory or other governmental order or request. In the event that Sensible Vision removes content without prior notice, Sensible Vision will provide prompt notice to you unless prohibited by law.
21. YOUR USE OF THE CLOUD SERVICES.
21.1. You may use the Cloud Services only for purposes that are permitted by (a) this Agreement and (b) any applicable law, regulation or generally accepted practices or guidelines in the relevant jurisdictions. You shall not violate any laws regarding the export of data or software to and from the United States or other countries.
21.2. You shall not engage in any activity with the Cloud Services, including the distribution or storage of an application, that interferes with, disrupts, damages, or accesses in an unauthorized manner the servers, networks, or other properties or services of any third party including, but not limited to, Sensible Vision or any mobile communications carrier.
21.3. You are solely responsible for (and Sensible Vision has no responsibility to you or to any third party for) your use of the Cloud Services data stored with or made using the Cloud Services, and for the consequences of your actions (including any loss or damage which Sensible Vision may suffer) by doing so.
21.4. You are solely responsible for (and that Sensible Vision has no responsibility to you or to any third party for) any breach of Your obligations under this Agreement, any applicable third party contract or Terms of Service, or any applicable law or regulation, and for the consequences (including any loss or damage which Sensible Vision or any third party may suffer) of any such breach.
21.5. You agree that you will not transmit worms, viruses, or any other code of a destructive nature.
21.6. You will not use the Cloud Services to upload, post, host, or transmit unsolicited email, SMS, or “spam” messages.
21.7. Even with your consent, Sensible Vision will not and can not disclose Content and has no access to such Content.
21.8. You shall not access (or attempt to access) any administrative interface of the Cloud Services by any means other than through the interface that is provided by Sensible Vision in connection with the Cloud Services or engage in any activity that interferes with or disrupts the Cloud Services (or the servers and networks which are connected to the Cloud Services).
22. PRIVACY AND INFORMATION.
Sensible Vision may collect and retain certain usage statistics from your use of the Cloud Services including but not limited to a unique identifier, associated IP address, version number of the application(s), and information on which tools and/or services in the Cloud Services are being used and how they are being used. Except as needed to resolve disputes with you, for purposes of defense in the event Sensible Vision is sued in relation to your use of the Cloud Services, or to comply with applicable laws, this information will not be shared with third parties in any way that identifies you or other users.
23. YOUR ACCOUNT.
You are responsible for maintaining the security of your Cloud Services account, and you are fully responsible for all activities that occur under the Cloud Services account and any other actions taken in connection with it. You must immediately notify Sensible Vision of any unauthorized uses of your Cloud Services account or any other breaches of security to your Cloud Services account. Sensible Vision will not be liable for any acts or omissions by you, including any damages of any kind incurred as a result of such acts or omissions. Without limiting any of those representations or warranties, Sensible Vision has the right (though not the obligation) to, in Sensible Vision’s discretion to (i) refuse or remove any Cloud Services content that, in Sensible Vision reasonable opinion, violates any Sensible Vision policy or is in any way harmful or objectionable, or (ii) terminate or deny access to and use of the Website to any individual or entity for any reason. In the event of such refusal or termination, Sensible Vision will have no obligation to provide a refund of any Cloud Services fees previously paid.
24. TERMINATING THIS AGREEMENT.
24.1. This Agreement will continue until terminated by either you or Sensible Vision as set out below.
24.2. You may terminate this Agreement at any time by ceasing your use of the Cloud Services and any relevant credentials.
24.3. Sensible Vision may terminate this Agreement without cause at any time at Sensible Vision’s sole discretion.
24.4. When this Agreement terminates or is terminated, all of the legal rights, obligations and liabilities that You and Sensible Vision have benefited from, been subject to (or which have accrued over time while this Agreement has been in force) or which are expressed to continue indefinitely, shall be unaffected by this cessation, and the provisions of paragraphs 3, 5, 7, and 8 shall continue to apply to such rights, obligations and liabilities indefinitely.
24.5. All Content will be deleted thirty (30) days after termination upon this Agreement.
25. DISCLAIMERS.
25.1. YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF THE CLOUD SERVICES IS AT YOUR SOLE RISK AND THAT THE CLOUD SERVICES ARE PROVIDED "AS IS" AND "AS AVAILABLE" WITHOUT WARRANTY OF ANY KIND FROM SENSIBLE VISION, INCLUDING ANY WARRANTY THAT THE CLOUD SERVICES WILL BE UNINTERRUPTED, ERROR FREE OR FREE OF HARMFUL COMPONENTS, OR THAT ANY CONTENT, INCLUDING YOUR CONTENT OR THE THIRD PARTY CONTENT, WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED.
25.2. YOUR USE OF THE CLOUD SERVICES AND ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE CLOUD SERVICES IS AT YOUR OWN DISCRETION AND RISK AND YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR OTHER DEVICE OR LOSS OF DATA THAT RESULTS FROM SUCH USE.
25.3. SENSIBLE VISION FURTHER EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
26. PAYMENT TERMS.
26.1. Billing for the Cloud Services is on an annual basis and is nonrefundable. Payment the Cloud Services or other Sensible Vision Products must be made using the Sensible Vision website http://www.sensiblevision.com.
26.2. All fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and you shall be responsible for payment of all such taxes, levies, or duties.
27. LIMITATION OF LIABILITY.
27.1. SENSIBLE VISION’S TOTAL AGGREGATE LIABILITY AND YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY CLAIM OF ANY TYPE SHALL BE LIMITED TO PROVEN DIRECT DAMAGES ARISING OUT OF, OR IN CONNECTION WITH, ANY CLAIM WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, CAUSED BY SENSIBLE VISION’S SOLE NEGLIGENCE, IN AN AMOUNT NOT TO EXCEED THE FEES PAID BY YOU TO SENSIBLE VISION DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE CLAIM.
27.2. SENSIBLE VISION, ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS SHALL NOT BE LIABLE TO YOU UNDER ANY THEORY OF LIABILITY FOR ANY DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES THAT MAY BE INCURRED BY YOU, INCLUDING ANY LOSS OF DATA, WHETHER OR NOT SENSIBLE VISION OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES ARISING.
28. INDEMNIFICATION. To the maximum extent permitted by law, You agree to defend, indemnify and hold harmless Sensible Vision, its affiliates and their respective directors, officers, employees and agents from and against any and all claims, actions, suits or proceedings, as well as any and all losses, liabilities, damages, costs and expenses (including reasonable attorneys fees) arising out of or accruing from (a) Your use of the Cloud Services, (b) any application You develop or store on the Cloud Services that is accused of infringing any copyright, trademark, trade secret, trade dress, patent or other intellectual property right of any person or defaming any person or violating their rights of publicity or privacy, and (c) any non-compliance by You with this Agreement.
29. CHANGES TO THIS AGREEMENT. Sensible Vision may make changes to the Agreement as it distributes new versions of the Cloud Services. When these changes are made, Sensible Vision will make a new version of the Agreement available on the website where the Cloud Services are made available.
30. GENERAL TERMS.
30.1. This Agreement constitutes the whole legal agreement between You and Sensible Vision and governs Your use of the Cloud Services (excluding any services which Sensible Vision may provide to You under a separate written agreement), and completely replaces any prior agreements between You and Sensible Vision in relation to the Cloud Services.
30.2. If Sensible Vision does not exercise or enforce any legal right or remedy which is contained in this Agreement (or which Sensible Vision has the benefit of under any applicable law), this will not be taken to be a formal waiver of Sensible Vision's rights and those rights or remedies will still be available to Sensible Vision.
30.3. If any court of law rules that any provision of this Agreement is invalid, then that provision will be removed from this Agreement without affecting the rest of this Agreement. The remaining provisions of this Agreement will continue to be valid and enforceable.
30.4. Each member of the group of companies of which Sensible Vision is the parent or subsidiary shall be third party beneficiaries to this Agreement and that such other companies shall be entitled to directly enforce, and rely upon, any provision of this Agreement that confers a benefit on (or rights in favor of) them. Other companies such as Apple, Inc. may also be a third party beneficiary of this Agreement. Other than this, no other person or company shall be third party beneficiaries to this Agreement.
30.5. EXPORT RESTRICTIONS. THE CLOUD SERVICES ARE SUBJECT TO UNITED STATES EXPORT LAWS AND REGULATIONS. YOU MUST COMPLY WITH ALL DOMESTIC AND INTERNATIONAL EXPORT LAWS AND REGULATIONS THAT APPLY TO THE CLOUD SERVICES. THESE LAWS INCLUDE RESTRICTIONS ON DESTINATIONS, END-USERS AND END USE.
30.6. The rights granted in this Agreement may not be assigned or transferred by you without Sensible Vision’s prior written approval. You shall not be permitted to delegate its responsibilities or obligations under this Agreement without Sensible Vision’s prior written approval.
30.7. This Agreement, and your relationship with Sensible Vision under this Agreement, shall be governed by the laws of the State of Michigan without regard to its conflict of laws provisions. You and Sensible Vision agree to submit to the exclusive jurisdiction of the courts located within Grand Rapids, Michigan to resolve any legal matter arising from this Agreement. Notwithstanding this, you agree that Sensible Vision shall still be allowed to apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction.
30.8. Force Majeure. Neither party shall be liable for, or be considered in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of any external causes or conditions which are beyond such party's reasonable control and which such party is unable to overcome by the exercise of reasonable diligence. If any force majeure event continues for a period of thirty days or more or when it is agreed by both parties that such an event will continue for longer than thirty days from the day it started, the party who is not receiving performance hereunder because of the force majeure event shall have the right to terminate this Agreement without liability (except for the accrued rights and obligations of the parties) upon giving five (5) business days written notice to the other party.
30.9. You represent and warrant that you are (1) not located in a country that is subject to a United States Government embargo, or that has been designated by the United States Government as a “terrorist supporting” country; and (2) not listed on any United States Governmental list of prohibited or restricted parties.