App License Agreement for DIGITAL WELLBEING
THIS LICENSE AGREEMENT IS AN AGREEMENT BETWEEN YOU (HEREINAFTER, USER) AND FLEXXIBLE IT USA, LLC. (HEREINAFTER REFERRED TO AS FLEXXIBLE IT APPLICABLE TO THE USE OF THE APPLICATION).
BEFORE PROCEEDING WITH THE INSTALLATION OF DIGITAL WELLBEING BY FLEXXIBLE IT, PLEASE READ THIS CONTRACT CAREFULLY, AS THE INSTALLATION IMPLIES FULL AND UNRESERVED ACCEPTANCE OF EACH AND EVERY ONE OF THE TERMS CONTAINED IN THIS CONTRACT. IF YOU DO NOT AGREE WITH THEM, DO NOT INSTALL THE APPLICATION. ALSO, THE ACCEPTANCE OF THE SAME GIVES YOU THE STATUS OF USE
R BUT DOES NOT GRANT YOU ANY RIGHTS OVER DIGITAL WELLBEING NOT CONTAINED IN THIS LICENSE.
1.- IDENTIFICATION OF THE PARTIES: On the one hand, FLEXXIBLE IT, sole and exclusive owner of the existing rights to Digital Wellbeing by Flexxible IT (HEREINAFTER referred to as Digital Wellbeing, APPLICABLE TO THE USE OF THE APPLICATION), Tax Id: 37-1867779, a company incorporated under the laws of the United States of America with the registered office located at 6750 N. ANDREWS AVE. SUITE 200, FORT LAUDERDALE, FL 33309. On the other hand, the USER, whose data has been entered by him/her. All data has been entered directly by the USER, and therefore the responsibility for the authenticity of the data lies directly and exclusively with the USER.
2.- GRANT OF LICENSE. FLEXXIBLE IT hereby grants the USER a non-exclusive, non-transferable and limited license for the use of DIGITAL WELLBEING BY FLEXXIBLE IT, during the entire duration of the intellectual property rights over the same and according to the terms and conditions contemplated in this License.
The authorization object of the License shall have a duration in accordance with the order placed by the customer which shall be computed from the date of purchase, download or receipt of the DIGITAL WELLBEING Application by the User. Subject to the conditions set forth in the previous paragraph, FLEXXIBLE IT grants the User a non-exclusive, free license to use the DIGITAL WELLBEING application for personal use, limited to the national territory. Said license is also granted under the same terms with respect to the updates and improvements that may be made to the DIGITAL WELLBEING application. Such use of licenses may be revoked by FLEXXIBLE IT unilaterally at any time, by simply notifying the User. The User may use DIGITAL WELLBEING on as many devices as he/she deems convenient. However, the User acknowledges and agrees that such use may not be carried out simultaneously on more than one device. This License does not grant any right to obtain future versions, updates or upgrades of DIGITAL WELLBEING. However, if updates, upgrades, new versions or add-ons of DIGITAL WELLBEING are obtained, the use of such new versions or upgrades shall be governed by this Agreement and any amendments hereto, unless there are other conditions for the new versions, upgrades or add-ons, in which case such other conditions shall apply.
3.- INTELLECTUAL PROPERTY. All the intellectual and industrial property rights of DIGITAL WELLBEING, including the software, images, texts, drawings, as well as any other product or work that could be included, are exclusive property of FLEXXIBLE IT, or in its case, of its suppliers who have authorized FLEXXIBLE IT to exploit them, and the User acknowledges this. The present License does not grant the User any right over DIGITAL WELLBEING, beyond the right to use it, revocable in accordance with the present provisions. The User shall use DIGITAL WELLBEING as any other copyright product, but may make a backup copy of DIGITAL WELLBEING, to use it as necessary, provided that such a copy includes the notice of ownership of FLEXXIBLE IT and, if applicable, its suppliers. The loss, for any cause whatsoever, of DIGITAL WELLBEING or of the backup copy, shall not entitle the user to claim reimbursement or any other compensation. In case of breach of the current legislation on intellectual and industrial property,
FLEXXIBLE IT will be able to exercise as many actions as it deems convenient in defense of its interests. In no case will FLEXXIBLE IT be responsible for the violation of third-party rights if it occurs because of use of DIGITAL WELLBEING by the User contrary to the stipulations or instructions of FLEXXIBLE IT. Notwithstanding anything in this License, owning and using the DIGITAL WELLBEING Application does not give the User any rights or title to the intellectual property of DIGITAL WELLBEING or the Documentation. FLEXXIBLE IT reserves all rights related to the Application and the Documentation, including all associated copyrights, patents, trade secrets, trademarks and other intellectual property rights. The User shall refrain from copying the licensed programs for profit or non-profit purposes and shall take the necessary internal measures to protect the copyrights of the owners of the licensed programs.
4.- RESTRICTIONS. Any reproduction, total or partial, even for personal use, of DIGITAL WELLBEING, by any means and under any form, whether permanent or transitory, that is not necessary for the use of the same by the User in accordance with the present License, is prohibited. It is also forbidden the translation, adaptation, arrangement or any other transformation of DIGITAL WELLBEING or any of its components, and/or its copies. In particular, the User will not be allowed to modify and/or manipulate all or part of the software composing DIGITAL WELLBEING, nor use all or part of DIGITAL WELLBEING to create their own products, successive versions and/or any other derivative work of DIGITAL WELLBEING, nor license, sub-license, or transfer in any form, including but not limited to, sale, lease, rental, loan or any other means of distribution, all or any part of DIGITAL WELLBEING, without the express written consent of FLEXXIBLE IT. The User may not, under any circumstances, reverse engineer, decompile, disassemble or translate in any way the software or any other component of DIGITAL WELLBEING.
5.- OPERATING SYSTEM. DIGITAL WELLBEING is designed and prepared to run on devices with the following operating systems, Windows, Mac, Android and iOS, and as an extension of Google Chrome, which have internet access and meet the following technical specifications:
– Android® 4.0 or higher; Apple iPhone® 12 and iPad® with iOS 12 or higher; Windows 10; Mac Catalina or higher.
– Internet connection, either via Wi-Fi (wireless network) or with a data plan.
– Available space on your phone/mobile device of 50 MB for any device.
FLEXXIBLE IT is not responsible for the malfunction of DIGITAL WELLBEING in the case of non-compliance and/or partial or total variation of the required configuration.
6.- WARRANTY AND LIMITATIONS OF LIABILITY. FLEXXIBLE IT does not guarantee that the functions contained in the DIGITAL WELLBEING application are adapted to the User’s requirements nor that it is free of errors or that it will work without interruptions. The User shall be solely responsible for the content and/or data that he/she incorporates, sends and uses through the APP and guarantees that he/she has the necessary licenses, rights, consents and permissions of use to incorporate, send and/or use such content and/or data through DIGITAL WELLBEING. In no event shall FLEXXIBLE IT be liable for any damages whether direct or indirect, which may be caused as a result of the use of DIGITAL WELLBEING, by way of illustration, but not limited to, infringement of third-party rights, consequential damages, loss of profits, or damages caused by loss of data or malfunction. The User shall hold FLEXXIBLE IT harmless from any liability that may arise from third party claims regarding the infringement of rights that may result from its use. FLEXXIBLE IT will not be responsible for the malfunctions or damages caused by the non-
7.- INDEMNITY. The User agrees to protect, defend and hold harmless FLEXXIBLE IT and its licensors, including licensors, service providers, channel partners, suppliers, assignees, subsidiaries, affiliates and their respective officers, directors, employees, shareholders, agents and representatives of each of them from and against any and all liabilities, losses, damages (including those resulting in death), demands, actions, costs, expenses or claims of any nature whatsoever, including, without limitation, costs of suit, arising out of or in connection with the User’s use or possession of the Application or the Data.
8.- DURATION. The present License shall be effective from the moment the User completes the installation process of DIGITAL WELLBEING and shall extend for the entire duration of the intellectual property rights over DIGITAL WELLBEING, i.e., in accordance with the order placed by the customer. The authorization subject to the License shall have a duration in accordance with the order placed by the Customer, which shall be computed from the date of purchase, download or receipt of the DIGITAL WELLBEING Application by the User. Subject to the conditions set forth in the previous paragraph, FLEXXIBLE IT grants the User a non-exclusive, free license to use the DIGITAL WELLBEING Application for personal use, limited to the national territory. FLEXXIBLE IT reserves the right to terminate the present Contract in case the User breaches any of the terms contained in the same, by way of example but not limited to, fraudulent or incorrect use of DIGITAL WELLBEING, in which case the User agrees to delete all the copies of DIGITAL WELLBEING and the corresponding documentation that the User may have in his/her possession, and without generating any right in favor of the User.
9.- PRIVACY: TREATMENT OF PERSONAL AND OTHER INFORMATION
The User agrees that the use of the DIGITAL WELLBEING is subject to U.S. and local export control legislation and regulations. The User must comply with all export and re-export (control) restrictions and regulations. The User must not transfer, promote, encourage or authorize the transfer of the DIGITAL WELLBEING application or its underlying information or technology to a prohibited country, or otherwise violate any such restrictions and regulations. By using DIGITAL WELLBEING, the User agrees to the foregoing and represents and warrants that the User is not (i) located in, under the control of, or a national or resident of any country, or (ii) an entity or person, whose assets are subject to seizure by the relevant government agency or export authorities.
11. IMPORTANT NOTICE ABOUT YOUR RIGHTS AS A CONSUMER
NON-EU RESIDENTS: SOME COUNTRIES, STATES AND/OR PROVINCES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN CONDITIONS OR WARRANTIES, AND DO NOT ALLOW THE MARKETING OF PRODUCTS OR SERVICES WITHOUT WARRANTIES. THEREFORE, IF THIS WERE TO BE YOUR CASE, PART OR ALL OF THIS SECTION ENTITLED “WARRANTY AND LIABILITY” MAY NOT APPLY. ONLY THOSE EXCLUSIONS AND LIMITATIONS THAT MAY APPLY IN THE USER’S JURISDICTION SHALL APPLY TO THE USER. IN SUCH CASES, THE LIABILITY OF FLEXXIBLE IT SHALL BE LIMITED ONLY TO THE MAXIMUM EXTENT PERMITTED BY LAW. THE ENFORCEABILITY OF THESE LIMITED WARRANTIES MAY VARY DEPENDING ON THE USER’S RELEVANT LOCAL LAW. EU RESIDENTS: Nothing in this License is intended or shall be intended to limit any rights that you may have under European Union law and/or the laws of the User’s country of residence, including rights relating to the quality and fitness for a particular purpose of the DIGITAL WELLBEING application and compliance with its description, which was prepared prior to the User’s acceptance of the License. The User agrees to use the DIGITAL WELLBEING application in compliance with relevant laws, including the local laws of the country or region in which the User resides, downloads or uses DIGITAL WELLBEING.
12.- BINDING ARBITRATION
12.1. UNLESS OTHERWISE RESTRICTED UNDER ANY APPLICABLE LAW, ANY “DISPUTE” THAT IS NOT RESOLVED THROUGH THE INFORMAL NEGOTIATION PROCESS SHALL BE RESOLVED EXCLUSIVELY BY BINDING ARBITRATION. “CONTROVERSY” is defined as any disagreement, cause of action, claim, demand, dispute or lawsuit between User and any FLEXXIBLE IT entity related to or arising out of the DIGITAL WELLBEING application or this License. CONTROVERSY shall be given the broadest possible enforceable meaning. In the event a CONTROVERSY arises, you agree to first notify FLEXXIBLE IT by contacting FLEXXIBLE IT USA LLC. WITH registered office 6750 ANDREWS AVE. SUITE 200, FORT LAUDERDALE, FL 33309 and engage in good faith negotiations to attempt to resolve any CONTROVERSY for at least 14 days, except that User or FLEXXIBLE IT (or any affiliate of FLEXXIBLE IT) may omit this informal negotiation procedure for resolution of the CONTROVERSY, if the purpose of the CONTROVERSY is to enforce or protect the validity of intellectual property rights, or where it affects intellectual property rights.
12.2. Arbitration Instructions: To commence arbitration, either the User or FLEXXIBLE IT must provide a written demand for arbitration to the other party. The arbitration shall be conducted before a single arbitrator. It shall be administered in compliance with the Expedited Procedures of the Commercial Arbitration Rules and the Supplementary Procedures for Commercial Product Disputes, where applicable, (“Rules”) of MIAMI INTERNATIONAL ARBITRATION in force at the time the demand is filed. The filing costs for commencing and conducting the arbitration shall be shared between the User and FLEXXIBLE IT, but in no event shall the User’s costs exceed the amount allowed by the special rules for Consumer DISPUTES provided by the Miami Chamber of Arbitration, at which time FLEXXIBLE IT shall cover additional administrative costs and expenses. This does not forbid the arbitrator from giving the prevailing party its arbitration costs and expenses where appropriate in accordance with the Rules. Unless the User and FLEXXIBLE IT agree otherwise, the arbitration shall take place in Miami (USA), and the applicable law of Miami (USA) shall govern the substance of any DISPUTE. The arbitrator’s decision shall be final and binding. The arbitrator may declare precautionary measures only in favor of the party seeking compensation, or only to the extent necessary to provide the support warranted by such party’s individual claim. Any court having jurisdiction over the parties can enforce the arbitration award.
12.3.- SMALL CLAIMS EXCEPTION: Notwithstanding the provisions set forth above, the User has the right to litigate any DISPUTES in small claims court or similar courts of limited jurisdiction, provided that the amount in dispute does not exceed US$15,000, and provided that such court has proper jurisdiction and all other requirements (including the amount in dispute) are met.
12.4.- EXCLUSION INSTRUCTIONS: IF THE USER DOES NOT WANT TO BE BOUND BY THE REQUIRED ARBITRATION PROVISIONS ABOVE, THEN: (1) THE USER MUST NOTIFY FLEXXIBLE IT IN WRITING WITHIN 30 DAYS FROM THE DATE THE USER FIRST USED THE DIGITAL WELLBEING APPLICATION OR ACCEPTED THIS LICENSE; (2) THE USER’S WRITTEN NOTICE MUST BE MAILED TO FLEXXIBLE IT USA LLC. registered office 6750 ANDREWS AVE. SUITE 200, FORT LAUDERDALE, FL 33309); (3) THE USER’S WRITTEN NOTICE MUST INCLUDE: (A) USER’S NAME; (B) USER’S ADDRESS; (C) THE DATE USER FIRST USED THE WELLBEING DIGITAL APPLICATION OR AGREED TO THIS LICENSE; AND (D) A CLEAR STATEMENT THAT THE USER DOES NOT DESIRE TO RESOLVE DISPUTES WITH ANY FLEXXIBLE IT ENTITY THROUGH ARBITRATION. Opting out of this dispute resolution procedure will not affect the terms and conditions of this License, which will still apply to the User.
12.5 If you are a consumer and reside in the European Union, Norway, Iceland or Liechtenstein, you may be entitled to submit the dispute through a virtual platform for online dispute resolution established by the European Commission (the “ODR Platform”). The ODR Platform is intended to facilitate out-of-court resolutions related to online purchases of goods and services between consumers and traders located in the European Union, Norway, Iceland and Liechtenstein. To access the ODR Platform, please follow this link: https://ec.europa.eu/consumers/odr/main/?event=main.home2.show
12.6. JURISDICTION AND APPLICABLE LAW. Any determined CONTROVERSY not subject to arbitration and not initiated in the small claims courts shall be litigated, by either party, in the Courts of Justice of Madrid (Spain) under Spanish law, the parties waiving any other jurisdiction that may correspond to them.
13. GENERAL ASPECTS
13.1. Notice: FLEXXIBLE IT may at any time send the User notifications by e-mail, pop-up window, dialog box or any other means, even though in certain cases said notification is not received until the User starts an Application. Such notices shall be deemed delivered as of the date FLEXXIBLE IT provides them through an Application regardless of when they are received.
13.2. Cases of force majeure: FLEXXIBLE IT shall not be liable for failures or delays in performance due, in whole or in part, to facility failures (including power supply), Internet failures, telecommunications or computer service failures, telecommunications or computer equipment failures, strikes or other labor problems (including, but not limited to, a strike or other labor problem related to any of the members of the Seller Group or its partners), war or terrorist actions, denial of service attacks or other computer attacks or breaches affecting any member of the FLEXXIBLE IT Group or its partners, flood, sabotage, fire, other acts of nature or force majeure, or any other cause beyond the reasonable control of the members of the FLEXXIBLE IT Group or its partners.
13.3. Assignment: You may not assign your rights or obligations under this License without the prior written consent of FLEXXIBLE IT. FLEXXIBLE IT may, at any time and at its sole discretion, assign this License without the prior written consent of the User.
13.4 For any questions regarding this License you may contact FLEXXIBLE IT by writing to the following address: firstname.lastname@example.org.