MOBILE APP END USER LICENSE AGREEMENT (EULA)
THE APPLICATION (AS DEFINED BELOW) YOU ARE DOWNLOADING OR HAVE DOWNLOADED HAS BEEN PROVIDED BY HIPPOTLIAN, INC., OR ITS AFFILIATES OR LICENSORS (COLLECTIVELY, "Hippotlian" or "we"). BY INSTALLING OR USING ALL OR ANY PORTION OF THE APPLICATION, YOU ACCEPT ALL THE TERMS AND CONDITIONS OF THIS END USER LICENSE AGREEMENT ("AGREEMENT"). UPON ACCEPTANCE, THIS AGREEMENT IS ENFORCEABLE AGAINST YOU AND ANY ENTITY THAT OBTAINED THE APPLICATION AND ON WHOSE BEHALF, IT IS USED. IF YOU DO NOT ACCEPT THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT INSTALL OR USE THE APPLICATION. ACCORDINGLY, YOU AND HIPPOTLIAN AGREE TO THE FOLLOWING:
The Mobile Application entitled Hippotlian Platform (the "Application") consists of: (a) the Hippotlian mobile application provided in connection with an authorized link to this Agreement, including all software, code, text, graphics, logos, layouts, designs, interfaces, modules and other items included in or associated with the application; and (b) any files that are delivered to you by Hippotlian (via online transmission, through a third party distributor, or otherwise) to patch, update, or otherwise modify the Hippotlian mobile application.
The Application may provide a means for you to access one or more websites, other applications, or other products and services offered by Hippotlian (collectively, the "Services"), and audio and video materials, photographs, text, graphics, logos, modules, layouts, designs, interfaces, software, data and other content associated with the Services ("Content"). The Application, Services and Content are copyrighted works of Hippotlian and may contain trademarks, service marks, trade names, and other intellectual property of Hippotlian.
The Application and Content, and your use of the Services, are also subject to Hippotlian's
If you are obtaining the Application from a distribution channel such as the Apple App Store or the Android Marketplace ("Distribution Channel"), your purchase, if the application is paid, and any subscription, if the Application or its Content requires a subscription, may be subject to additional terms of the Distribution Channel. This Agreement is between you and us only, and not with the Distribution Channel. We, rather than the Distribution Channel, are responsible for the Application and the content thereof. Neither we nor the Distribution Channel has any obligation to furnish any maintenance and support services with respect to the Application. YOU ACKNOWLEDGE AND AGREE THAT NO DISTRIBUTION CHANNEL MAKES ANY WARRANTIES WHATSOEVER UNDER THIS AGREEMENT OR HAS ANY WARRANTY OBLIGATIONS WITH RESPECT TO THE APPLICATION.
The Application may use location-based services to locate you. If you choose to use the Application, you consent to Hippotlian and its third party providers determining your location.
1. CHANGES TO THIS AGREEMENT AND HIPPOTLIAN TERMS
This Agreement applies to all downloading or installation of the Application after the Effective Date above, and use of any copy of the Application downloaded or installed after the Effective Date above. Hippotlian may make changes to this Agreement from time to time by posting a copy of the updated Agreement on our website. Changes to this Agreement will be applicable to downloading or installation of the Application after the effective date of the changes. If you do not agree with any changes to this Agreement, your sole remedy is not to download or install the Application after the effective date of the changes.
Hippotlian also may make changes to the Hippotlian Terms as provided therein. Such changes will apply to your use of the Application to access Services and Content after the effective date of the changes. If you do not agree with any such changes, your sole remedy is to discontinue use of the Application to access the relevant Services and Content. If you continue to use the Application to access Services and Content after the effective date of the changes, you accept all changes.
2. CHANGES TO PRODUCT AND SERVICE OFFERINGS
Hippotlian or the Distribution Channel may change pricing for the Application, Services and Content. We may not provide price protection or refunds due to price reductions, promotional pricing, or any other changes to pricing for any reason.
You acknowledge and agree that Hippotlian may suspend or discontinue offering the Application; modify the Application; change or discontinue the Services available through the Application; change how we offer and operate such Services (e.g., to begin charging a fee to access features or Content that we previously made available without charge); remove Content; impose limits on certain features or restrict your access to part or all of the Application, Services and Content; or make other changes in Hippotlian's product and service offerings at its sole discretion and with or without notice to you. We will not be liable to you or any third party for taking any of these actions and we will not be limited to the remedies above if you violate these Hippotlian Terms. You further acknowledge and agree that even if a copy of the Application continues to reside on your device, after we make changes in our product or services offerings, the Application may not work as it did prior to such action, and Hippotlian will have no liability to you or any third party as a result.
You acknowledge and agree that Hippotlian has all right, title, and interest in and to the Application and all intellectual property rights associated with the Application. The Application is protected by the copyright laws of the United States, international treaties and conventions, and other laws. Except as expressly stated herein, you have no intellectual property rights in the Application (including without limitation any rights to use the trademarks, trade names, service marks, logos, domain names, and other distinctive brand features), and Hippotlian reserves all rights not expressly granted to you. You must comply with all laws when using the Application as well as all applicable copyright, trademark or other legal notices or restrictions.
You will not:
- in whole or in part, copy, reproduce, translate, modify, adapt, create derivative works based on, or reverse engineer, derive source code from, disassemble, decompile, or otherwise attempt to discover the source code of, the Application, except to the extent required by applicable law;
- install or use the Application on a computer or other device that is primarily used as a file server;
- remove, obscure, or alter any copyright, trademark, logo, or other proprietary notices in or on the Application;
- use any unauthorized third-party software that intercepts, "mines," or otherwise collects information from or through the Application, unless authorized by Hippotlian in its sole discretion;
- distribute, publish, display, perform, sell, rent, lease, sublicense, assign, transfer, or grant a security interest in your rights in the Application, or authorize all or any portion of the Application to be copied onto another user's computer except as permitted hereunder;
- intercept, emulate, or redirect the communication protocols used by the Application in any way, for any purpose, or engage in any activity that interferes with or disrupts the Application or Hippotlian's or its vendors' servers or other infrastructure; or
- facilitate, create, or maintain any unauthorized connection to the Application, including without limitation: (a) any connection to any unauthorized server that emulates, or attempts to emulate, Hippotlian's or its vendors' servers; and (b) any connection using programs or tools not approved by Hippotlian in its sole discretion.
The Services and Content accessible through the Application are also protected by intellectual property and other laws in the U.S. and in other countries, and are subject to limitations on your use thereof, as set forth more fully in the Hippotlian Terms.
4. GRANT OF A LIMITED USE LICENSE TO USE THE APPLICATION
Subject to your compliance with the Hippotlian Terms and this Agreement, Hippotlian hereby grants, and you hereby accept, a limited, revocable, non-sublicenseable, non-exclusive license to: (a) install the Application on one mobile device owned by you or under your legitimate control; and (b) engage in non-commercial use of the Application. All rights to use the Application are granted on the condition that such rights are forfeited if you fail to comply with the terms of this Agreement.
- To download, install and use the Application, you must be at least 18 years of age and register for an account on the Application account. Basic information is required when registering for an Application. Each User is required to provide certain information, including but not limited to their name, email address and password when registering for an account. Each User agrees to provide accurate, current and complete information during the registration process and update such information to keep it accurate, current and complete. It is each User's responsibility to keep their Application account details and password confidential. Each User is liable for all activity on their Application account.
- You must solely determine the device suitable for downloading, installing and using the Application and Hippotlian is not liable and responsible if your mobile device does not support the Application. To download, install and use the Application, you may be required to have internet and telecommunication connectivity. Hippotlian will not be liable for any internet or telecommunication costs which you incur as a result of your use of the Application.
- We strongly encourage the use of cautionary measures to protect the security of your password.
5. USE OF THE APPLICATION
When you use the Application, you may connect to Hippotlian's or its vendors' servers. Your communication with Hippotlian's properties is governed by the Hippotlian
As part of the Application, you may receive push notifications, text messages, MMS messages or other types of messages directly sent to you outside or inside the Application (collectively, "Push Messages"). You may control the Push Messages in your device's or the Application's settings. Some of the Push Messages may be related to your location or to your use of the Application or Content. Your carrier may charge standard messaging, data and other fees for use of Push Messages, and these fees may appear on your mobile bill or be deducted from your pre-paid balance. Your carrier may prohibit or restrict certain Push Messages and certain Push Messages may be incompatible with your carrier or mobile device. Contact your carrier with questions regarding these issues. You may discontinue Push Messages in your device's or the Application's settings or by deleting the Application. We may collect information related to your use of Push Messages. If you have registered for Push Messages, you agree to notify Hippotlian of any changes to your mobile number, as applicable, and update your account on the Application to reflect this change.
The Application may allow you to access and interoperate with third-party properties, software applications, and data services (collectively, "Third Party Properties"). Hippotlian does not control any Third-Party Properties to which you may connect using the Application and is not responsible for the practices of any third party. You acknowledge and agree that Hippotlian is not liable for any loss or damage which may be incurred by you as a result of any reliance placed by you on the completeness, accuracy, or existence of any advertising, products, or other materials on or available from Third Party Properties. You acknowledge that the Application may check for updates to the Application that may be available to you.
6. WARRANTY DISCLAIMER
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE APPLICATION, SERVICES AND CONTENT ARE PROVIDED "AS IS" AND "AS AVAILABLE", WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND HIPPOTLIAN AND THE DISTRIBUTION CHANNELS HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS WITH RESPECT THERETO, EITHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, NONINFRINGEMENT OF THIRD-PARTY RIGHTS, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, TITLE, OF ACCURACY, OF QUIET ENJOYMENT, OF AVAILABILITY AND AS TO SUBJECT MATTER OF CONTENT. HIPPOTLIAN DOES NOT WARRANT: (1) THAT THE APPLICATION'S FUNCTIONS OR ANY SERVICES OR CONTENT WILL BE UNINTERRUPTED OR FREE OF ERRORS OR OMISSIONS; (2) THAT DEFECTS WILL BE CORRECTED; (3) THAT THE APPLICATION OR THE SERVERS HOSTING CONTENT ARE FREE OF VIRUSES OR OTHER HARMFUL CODE; OR (4) THAT THE APPLICATION OR SERVICES OR CONTENT AVAILABLE THROUGH THE APPLICATION WILL CONTINUE TO BE AVAILABLE. HIPPOTLIAN SHALL HAVE NO LIABILITY FOR ANY SUCH ISSUES.
YOUR ACCESS TO AND USE OF THE APPLICATION, SERVICES AND CONTENT IS AT YOUR RISK. IF YOU ARE DISSATISFIED WITH THE APPLICATION OR ANY OF THE SERVICES OR CONTENT AVAILABLE THROUGH THE APPLICATION, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE ACCESSING AND USING THE APPLICATION.
The Distribution Channel will not be responsible for addressing any claims by you or any third party relating to the Application or your possession and/or use of the Application, including: (i) product liability claims; (ii) any claim that the Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. If you have any questions on those issues, you should contact us at the address below. The Distribution Channel will also not be responsible for investigation, defense, settlement and discharge of any third party intellectual property infringement claim.
7. LIMITATION OF LIABILITY/RELEASE OF CLAIMS
HIPPOTLIAN WILL NOT BE LIABLE FOR ANY FAILURE OR DELAY IN ITS PERFORMANCE DUE TO ANY CAUSE BEYOND ITS REASONABLE CONTROL, INCLUDING ACTS OF WAR, ACTS OF GOD, ACTS OF THIRD PARTY SERVICE PROVIDERS, EARTHQUAKE, FLOOD, EMBARGO, RIOT, SABOTAGE, LABOR SHORTAGE OR DISPUTE, GOVERNMENTAL ACT, POWER FAILURE OR FAILURE OF THE INTERNET OR COMPUTER EQUIPMENT.
HIPPOTLIAN WILL NOT BE LIABLE TO YOU OR ANYONE ELSE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH THE APPLICATION (INCLUDING THE SERVICES AND CONTENT AVAILABLE THROUGH THE APPLICATION) OR THIS AGREEMENT, EVEN IF FORESEEABLE OR EVEN IF HIPPOTLIAN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES (INCLUDING, WITHOUT LIMITATION, WHETHER CAUSED IN WHOLE OR IN PART BY NEGLIGENCE, GROSS NEGLIGENCE, OR OTHERWISE, BUT EXCLUDING WILLFUL MISCONDUCT). HIPPOTLIAN WILL NOT BE LIABLE TO YOU OR ANYONE ELSE FOR ANY DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION, CYBER ATTACK, OR ANY COMMERCIAL DAMAGES, BODILY INJURY DAMAGES, PHYSICAL HARM, EMOTIONAL DISTRESS, DEATH OR LOSSES OF ANY KIND, IN NO EVENT WILL HIPPOTLIAN'S LIABILITY FOR ANY DAMAGES SUFFERED BY YOU OR ANY THIRD PARTIES EXCEED THE AMOUNT PAID BY YOU TO LICENSE THE APPLICATION. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF ANY STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
YOU ACKNOWLEDGE AND AGREE THAT IF YOU INCUR ANY DAMAGES THAT ARISE OUT OF HIPPOTLIAN'S ACTS OR OMISSIONS, THE DAMAGES, IF ANY, ARE NOT IRREPARABLE AND ARE NOT SUFFICIENT TO ENTITLE YOU TO AN INJUNCTION OR OTHER EQUITABLE RELIEF RESTRICTING EXPLOITATION OF ANY WEBSITE, PROPERTY, PRODUCT, PROGRAM, TELEVISION SHOW, MOTION PICTURE, OR OTHER AUDIO/VISUAL CONTENT OWNED, CONTROLLED, OR DISTRIBUTED BY HIPPOTLIAN, INCLUDING WITHOUT LIMITATION THE APPLICATION.
SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES, SO SOME OF THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU.
You will indemnify, defend, and hold Hippotlian and all of its officers, directors, owners, employees, agents, information providers, service providers, vendors, contractors, affiliates, partners, and licensors (collectively, the "Hippotlian Indemnified Parties") harmless from and against any and all liability, losses, costs, and expenses (including attorneys' fees) incurred by any of the Hippotlian Indemnified Parties in connection with any claim, including, but not limited to, claims for defamation, violation of rights of publicity or privacy, copyright infringement, or trademark infringement arising out of: your use of the Application; any use or alleged use of your account or your passwords by any person, whether or not authorized by you; your connection to Hippotlian's or its vendors' servers; your violation of this Agreement; or your violation of the rights of any other person or entity. Hippotlian reserves the right, at its own expense, to assume the exclusive defense and control of any matter for which you are required to indemnify Hippotlian, and you will cooperate with Hippotlian's defense of these claims.
This Agreement is effective until terminated. You may terminate this Agreement at any time by: (i) irretrievably erasing, deleting, or destroying all copies of the Application in your possession or control; and (ii) ceasing to use the Services and Content available through the Application. Hippotlian may terminate this Agreement at any time for any reason or no reason. Upon termination for any reason, the license granted in Section 4 will immediately terminate. The provisions in Sections 1, 2, 3, 5, 6, 7, 8, 12, 13, and 14 will survive any termination.
10. EXPORT CONTROLS
You may not use or otherwise export or re-export the Application or elements thereof except as authorized by United States law and the laws of the jurisdiction in which the Services was accessed or obtained. In particular, but without limitation, the Application may not be exported or re-exported (a) into any U.S.-embargoed countries or (b) to anyone on the U.S. Treasury Department's Specially Designated Nationals List or the U.S. Department of Commerce Denied Person's List or Entity List. By using the Application, you represent and warrant that it is not located in any such country or on any such list. You also agree that you will not use the Application for any purposes prohibited by applicable law.
11. CONSENT TO USE OF DATA
You agree that Hippotlian may collect and use technical data and related information—including but not limited to technical information about your device, system and application software, and peripherals—that is gathered periodically to facilitate the provision of software updates, product support, to statistically analyze your information and data for patterns of use and behaviors and other services to you (if any) related to the Licensed Application. Hippotlian may use this information, as long as it is in a form that does not personally identify you, to improve its products or to provide services or technologies to you.
12. APPLICABLE LAW
By using the Application you agree that the laws of the State of Delaware without regard to principles of conflict of laws, will govern this Agreement and any dispute of any sort that might arise between You and Hippotlian.
ANY DISPUTE RELATING IN ANY WAY TO YOUR USE OF THE APPLICATION SHALL BE SUBMITTED TO CONFIDENTIAL BINDING ARBITRATION IN THE STATE OF DELAWARE EXCEPT FOR INTELLECTUAL PROPERTY CLAIMS BROUGHT BY EITHER PARTY (WHICH FOR PURPOSES OF THIS SECTION DO NOT INCLUDE PRIVACY AND PUBLICITY CLAIMS) AND CLAIMS THAT MAY BE BROUGHT IN SMALL-CLAIMS COURT.
CONFIDENTIAL ARBITRATION UNDER THIS AGREEMENT SHALL BE RESOLVED EXCLUSIVELY UNDER THE CONSUMER ARBITRATION RULES THEN PREVAILING OF THE AMERICAN ARBITRATION ASSOCIATION ("AAA'S CONSUMER RULES"), EXCLUDING ANY RULES AND PROCEDURES GOVERNING OR PERMITTING CLASS OR REPRESENTATIVE ACTIONS. THE RULES ARE AVAILABLE AT THE AMERICAN ARBITRATION ASSOCIATION'S WEBSITE.
YOU AND HIPPOTLIAN AGREE TO EXPRESSLY WAIVE ANY RIGHTS TO FILE CLASS OR REPRESENTATIVE ACTIONS OR SEEK RELIEF ON A CLASS OR REPRESENTATIVE BASIS IN ANY JURISDICTION OR FORUM.
THE ARBITRATOR SHALL APPLY DELAWARE LAW, AND THE ARBITRATOR'S AWARD SHALL BE BINDING AND MAY BE ENTERED AS A JUDGMENT IN ANY COURT OF COMPETENT JURISDICTION. THERE SHALL BE NO APPEAL FROM ANY AWARD OF THE ARBITRATOR. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, NO ARBITRATION UNDER THIS AGREEMENT SHALL BE JOINED TO AN ARBITRATION INVOLVING ANY OTHER PARTY SUBJECT TO THIS AGREEMENT, WHETHER THROUGH CLASS ARBITRATION PROCEEDINGS OR OTHERWISE. IF ANY PART OF THIS ARBITRATION PROVISION IS FOUND TO BE INVALID, UNENFORCEABLE OR ILLEGAL, THE REST OF THIS PROVISION SHALL REMAIN IN EFFECT.
IF THE ENTIRE ARBITRATION PROVISION IS FOUND TO BE INVALID OR UNENFORCEABLE, THEN THE PARTIES CONSENT TO PERSONAL JURISDICTION AND EXCLUSIVE VENUE IN THE STATE AND FEDERAL COURTS IN THE STATE OF DELAWARE.
If you initiate the arbitration, your arbitration fees will be limited to the filing fee set forth in the AAA's Consumer Rules.
This Agreement constitutes the entire agreement between the parties with respect to its subject matter and supersedes any prior oral or written agreements, provided, however, that this Agreement will coexist with the Hippotlian Terms and any Additional Terms. To the extent that the provisions of this Agreement conflict with the Hippotlian Terms, this Agreement will govern. We may be required by state or federal law to notify you of certain events. You hereby acknowledge and agree that such notices will be effective upon our posting them on our sites or delivering them to you via email, if you have provided it to us. If you do not provide us with accurate information or we do not have access to your email address, we will not be responsible for failure to notify you. If any part of this Agreement is determined to be invalid or unenforceable under applicable law, that provision will be removed, and the remainder of the Agreement will continue to be valid and enforceable, except as expressly stated. Our failure to exercise or enforce any right or provision in this Agreement will not constitute a waiver of such right or provision. Except as otherwise required by law, the controlling language of this Agreement is English. This Agreement will be binding upon and will inure to the benefit of the parties, their successors and permitted assigns. You and we acknowledge and agree that the Distribution Channel and its subsidiaries are intended third party beneficiaries of this Agreement and will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you.
15. CONTACT INFORMATION
If you have any questions, claims, or complaints, please contact us at:
Tel: +1 (256) 673-4867
Address: Hippotlian Inc., 8 The Green, Suite B, Dover, Kent, Delaware, 19901
You hereby acknowledge that you have read and understood this Agreement and agree that by clicking "Accept" or by installing, copying, or using the Application you are acknowledging your agreement to be bound by this Agreement.
EFFECTIVE: October 14, 2020