Last Modified: April 20, 2017
This End-User License Agreement (“Agreement”) governs (“user”, “you” or “your”) use of the WebPunch mobile and web applications (the “WebPunch Apps”), provided by WebPunch, LLC, a Colorado limited liability company (“WebPunch”, “we”, “our” or “us”) and made available through the Apple App Store, the Google Play Store or certain supported web browsers. By installing, using or otherwise accessing the WebPunch Apps and/or using the information, content, tools, software, features and functionality including any updates and new releases (collectively, the “Services”) provided through such WebPunch Apps, you expressly agree to the following terms and conditions contained in this Agreement. In addition, when using particular Services made available through the WebPunch Apps, you shall be subject to any posted policies and guidelines applicable to such Services available through the WebPunch Apps, including any terms or conditions applicable to Services that may be provided in conjunction with any of our business partners. All such rules and guidelines are hereby incorporated by this reference into this Agreement.
THIS AGREEMENT COMPRISES A LEGAL AGREEMENT BETWEEN YOU AND WEBPUNCH (COLLECTIVELY, THE “PARTIES”). PLEASE READ THIS AGREEMENT CAREFULLY. BY INSTALLING OR USING ANY PART OF THE WEBPUNCH APPS OR SERVICES, YOU AGREE TO BE LEGALLY BOUND AND TO ABIDE BY ALL OF THE TERMS AND CONDITIONS HEREIN. IF YOU DO NOT UNDERSTAND OR AGREE TO BE LEGALLY BOUND BY THIS AGREEMENT, PLEASE DO NOT INSTALL OR USE THE WEBPUNCH APPS OR SERVICES OR COMPLETE THE REGISTRATION PROCESS.
By installing or using the WebPunch Apps, you represent and warrant that you have the right, authority, and capacity to enter into this Agreement and to abide by all its terms and conditions. Specifically, you represent and warrant that you are eighteen (18) years of age or older.
3. LICENSES WE GRANT YOU
WebPunch hereby grants you a revocable, limited, nonexclusive, personal, nontransferable and nonsublicensable license to install and use the WebPunch Apps subject to the terms and conditions of this Agreement. Use of the WebPunch Apps that constitutes unlawful use, abuse or violation of the terms under this Agreement shall be determined by WebPunch, in its sole discretion. WebPunch reserves the right to refuse your registration and use of the WebPunch Apps and Services, cancel your account, and/or to limit or terminate your access to or use of the WebPunch Apps and Services at any time without notice.
4. LICENSE YOU GRANT US
By submitting or providing account information, data, passwords, usernames, log-in information, materials and other content (collectively, the “User Content”) to WebPunch through the WebPunch Apps, you hereby grant a license to WebPunch to use such User Content for the purpose of providing the WebPunch Apps or the Services. WebPunch may use, transmit and store the User Content, but only to provide the WebPunch Apps or the Services to you. By submitting the User Content to WebPunch, you represent and warrant that you are fully and lawfully entitled to submit the User Content to WebPunch for its use for the foregoing purposes, without any obligation or liability on the part of WebPunch.
5. ACCOUNTS AND SECURITY
Users of the WebPunch Apps must register for an account before using the WebPunch Apps and the Services by providing certain registration details and other information. By registering for an account, you represent and warrant that all of the information, data and other materials you provide are true, accurate, current and complete. You are solely responsible for updating and correcting the information you have provided to WebPunch.
You agree that any username, password or any other piece of information provided by us to you shall be treated as confidential, and you must not disclose it to any third party. You agree to immediately notify WebPunch of any unauthorized use of your username or password or any other breach of security related to your account, the WebPunch Apps or the Services. You are solely responsible for any and all activities that occur under your account. WebPunch will assume that any communications we receive from your email or other address, or communications that are associated with your login credentials or your account, have been made by you unless we receive notice indicating otherwise. You agree that you are solely responsible for securing your mobile device and that WebPunch has no liability for any such failure in properly securing your mobile device.
By installing or using the WebPunch Apps, you agree to receive e-mails from us regarding our Services and related third-party financial service providers. Registered users may choose not to receive e-mail communications from us by clicking on the “Unsubscribe” link in the e-mails themselves or by clicking on the “My Account” link in the WebPunch Apps and modifying your e-mail preferences.
Additionally, the WebPunch Apps send push notifications to your mobile device through services such as Apple’s Push Notification Service for iOS devices and Google’s CD2M and Cloud Messaging for Android devices. The notifications will alert you to important changes regarding our Services, your WebPunch Score, your WebPunch account or your financial accounts with third-party financial institutions. You can manage these push notifications by clicking on the “My Account” link in the WebPunch Apps and modifying your preferences.
7. PROHIBITED USES
You shall use the WebPunch Apps only for lawful purposes and in strict accordance with this Agreement. You agree not to use the WebPunch Apps:
• In any way that violates any Appslicable federal, state, local and international law or regulation (including, without limitation, any laws regarding the export of data or software to and from the U.S. or other countries).
• For the purpose of exploiting, harming or attempting to exploit or harm minors in any way by exposing them to inappropriate content, asking for personally identifiable information or otherwise.
• To impersonate or attempt to impersonate WebPunch or our employees or representatives, another user, or person or entity (including, without limitation, the use of e-mail addresses associated with any of the foregoing).
• To engage in any other conduct that restricts or inhibits anyone’s use or enjoyment of the WebPunch Apps or Services, or which, as determined by us, may harm WebPunch or users of the WebPunch Apps or Services or expose them to liability.
Additionally, you agree not to:
• Use the WebPunch Apps or Services in any manner that could disable, overburden, damage, or impair the WebPunch Apps or Services or interfere with any other party’s use of the WebPunch Apps or Services.
• Remove, circumvent, disable, damage or otherwise interfere with any security-related features of the WebPunch Apps or Services.
• Utilize framing techniques to enclose any trademark, logo, or other materials belonging to WebPunch without our written consent.
• Use any device, software or routine that interferes with the proper working of the WebPunch Apps or Services.
• Introduce any viruses, trojan horses, worms, logic bombs or other material which is malicious or technologically harmful.
• Otherwise attempt to interfere with the proper working of the WebPunch Apps or Services.
WebPunch reserves the right to terminate this Agreement and your use of the WebPunch Apps and Services for any or no reason, and with or without notice, including without limitation, any violation of the terms and conditions of this Agreement. You agree that WebPunch shall not be liable to you or any third party for any such termination. Upon termination of this Agreement, you agree to immediately cease use of and uninstall the WebPunch Apps. We also reserve the right to take appropriate legal action. These remedies are in addition to any other remedies WebPunch may have at law or in equity.
You may also terminate this Agreement and your rights to use the WebPunch Apps and Services at any time by deactivating your account and uninstalling the WebPunch Apps. Unless otherwise provided by applicable law, the termination of your account is your only remedy with respect to any dispute that you may have hereunder.
9. Links TO THIRD PARTY WEBSITES AND MOBILE APPLICATIONS
The WebPunch Apps and Services may contain links to other websites and mobile applications provided by third parties and may link you automatically to third-party websites, mobile applications or services. These links are provided for your convenience only. WebPunch has no control over the contents of those websites, mobile applications or services, and accepts no responsibility for them or for any loss or damage that may arise from your use of these websites, applications or services. If you decide to access any of the third party websites, mobile applications or services linked to or through the WebPunch Apps and the Services, you do so entirely at your own risk and subject to the terms and conditions of use for such websites, mobile applications or services.
10. Disclaimer of Warranties
You understand that we cannot and do not guarantee or warrant that the WebPunch Apps or Services will be free of viruses or other destructive code. You are responsible for implementing sufficient procedures and checkpoints to satisfy your particular requirements for anti-virus protection and accuracy of data input and output, and for maintaining a means external to the WebPunch Apps for any reconstruction of any lost data.
WEBPUNCH WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY VIRUSES OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR MOBILE DEVICE, COMPUTER PROGRAMS, DATA OR OTHER MATERIAL DUE TO YOUR USE OF THE WEBPUNCH APP OR SERVICES OR ITEMS OBTAINED THROUGH THE WEBPUNCH APP OR SERVICES OR TO YOUR DOWNLOADING OF ANY MATERIAL POSTED ON ANY WEBSITE OR MOBILE APPLICATION LINKED TO THE WEBPUNCH APP. THE WEBPUNCH APP, ITS CONTENT AND SERVICES OR ITEMS OBTAINED THROUGH THE WEBPUNCH APP AND SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE, NON-INFRINGEMENT, OR ANY WARRANTIES ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE.
11. Limitation on Liability
IN NO EVENT WILL WEBPUNCH, ITS AFFILIATES OR THEIR LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS, MEMBERS OR DIRECTORS BE LIABLE FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH YOUR USE, OR INABILITY TO USE, THE WEBPUNCH APP OR SERVICES, ANY WEBSITES OR MOBILE APPLICATIONS LINKED TO THE WEBPUNCH APP, ANY CONTENT ON THE WEBPUNCH APP OR SUCH OTHER WEBSITES OR MOBILE APPLICATIONS OR ANY FEATURES OR ITEMS OBTAINED THROUGH THE WEBPUNCH APP OR SUCH OTHER WEBSITES OR MOBILE APPLICATIONS, INCLUDING ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT OR OTHERWISE, EVEN IF FORESEEABLE OR IF WEBPUNCH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE MAXIMUM LIABILITY OF WEBPUNCH TO YOU OR ANY USER OR ANY THIRD PARTY FOR ANY LOSS, CLAIM, DAMAGE, OR LIABILITY OF ANY KIND WHATSOEVER, INCLUDING DUE TO WEBPUNCH’S NEGLIGENCE OR MISCONDUCT, SHALL BE LIMITED TO $1,000.00 (ONE THOUSAND UNITED STATES DOLLARS).
You agree to defend, indemnify and hold harmless WebPunch, its affiliates and licensors and their respective officers, directors, members, employees, contractors, agents, licensors and suppliers from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses or fees (including reasonable attorneys’ fees) resulting from your violation of this Agreement or your use of the WebPunch Apps or Services.
13. Governing Law
This Agreement and any dispute or claim arising out of, or related to, it, its subject matter or its formation shall be governed by and construed in accordance with the internal laws of the State of Colorado without regard to its conflict of law principles.
14. DISPUTE RESOLUTION
With the exception of any equitable or injunctive relief, any dispute, claim, or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation, or validity thereof, including the determination of the scope or applicability of this Agreement to arbitrate, shall be submitted to and resolved by legally binding arbitration with a single arbitrator. The arbitration shall be conducted in accordance with the rules of the American Arbitration Association (“AAA”). Within seven (7) days of the service of the notice of arbitration, the Parties shall mutually agree upon a single AAA arbitrator. If at the conclusion of those seven (7) days, the Parties have not agreed upon a single AAA arbitrator, the Parties shall petition AAA to provide a list of five (5) qualified arbitrators with experience presiding over claims substantially similar to those pled in the notice of arbitration. Within five (5) days of receiving the list of qualified arbitrators, each Party shall submit to AAA a numerical ranking of their preference as between these five (5) arbitrators. The highest mutually ranked arbitrator shall preside over the Parties’ dispute. The arbitration shall take place in Denver, Colorado. A hearing shall be held within ninety (90) days of the filing of the notice of arbitration. Such hearing shall last no more than three (3) days. The prevailing party, as determined by the arbitrator, shall be awarded all reasonable costs and fees of the arbitration including, without limitation, the arbitrator’s fees and reasonable attorneys’ fees, at the sole discretion of the arbitrator. Except as may be required by law, neither party nor an arbitrator shall disclose the existence, content, or results of any arbitration hereunder without the prior written consent of the parties.
15. Waiver and Severability
No waiver of any term or condition in this Agreement by WebPunch shall be deemed a further or continuing waiver of such term or condition or any other term or condition, and any failure of WebPunch to assert a right under this Agreement shall not constitute a waiver of such right or provision.
If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, illegal or unenforceable for any reason, such provision shall be eliminated or limited to the minimum extent such that the remaining provisions will continue in full force and effect.
16. Entire Agreement
17. AdDITIONAL MANDATORY APPLE TERMS
In order for the WebPunch Apps to be offered on the Apple App Store, Apple Inc. (“Apple”) requires you and WebPunch to agree to the following additional mandatory terms:
a. Acknowledgement: You acknowledge that this Agreement is concluded between you and WebPunch only, and not with Apple, and WebPunch, not Apple, is solely responsible for the WebPunch Apps and the content thereof.
b. Use Restrictions: You acknowledge that you may only use the WebPunch Apps on an Apple Device that you own or control and as permitted by the “Usage Rules” set forth in the Apps Store Terms of Service, which can be found here http://www.apple.com/legal/internet-services/itunes/us/terms.html.
c. Maintenance and Support: WebPunch is solely responsible for providing any maintenance and support services explicitly provided for by this Agreement with respect to the WebPunch Apps. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the WebPunch Apps.
d. Warranty: You acknowledge that, to the maximum extent permitted by applicable law, Apple has no other warranty obligation whatsoever with respect to the WebPunch Apps, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be WebPunch’s sole responsibility.
e. Product Claims: You acknowledge that WebPunch, not Apple, is responsible for addressing any claims you or any third party relating to the WebPunch Apps or the your possession and/or use of that WebPunch Apps, including, but not limited to: (i) product liability claims; (ii) any claim that the WebPunch Apps fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
f. Intellectual Property Rights: You acknowledge that, in the event of any third-party claim that the WebPunch Apps or the your possession and use of the WebPunch Apps infringes that third party’s intellectual property rights, WebPunch, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
g. Legal Compliance: You 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.
h. Third Party Beneficiary: You acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of this Agreement, and that, upon your acceptance of the terms and conditions of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third party beneficiary thereof.
18. Your Comments and Concerns
The WebPunch Apps and Services is operated by WebPunch, LLC. If you have any questions or comments about the WebPunch Apps or the Services, please contact us by e-mail at [email protected]
[End of Agreement]