Last updated: April 6th, 2020
IMPORTANT, READ CAREFULLY : YOUR USE OF AND ACCESS TO THE NECTAR WEBSITE AND PRODUCTS AND SERVICES AND ASSOCIATED SOFTWARE (COLLECTIVELY, "NECTAR" OR THE "SERVICES") OF CALLYO 2009 CORP. AND ITS AFFILIATES ("THE COMPANY") IS CONDITIONED UPON YOUR COMPLIANCE WITH AND ACCEPTANCE OF THESE TERMS, WHICH INCLUDES THE TERMS OF DISPUTE RESOLUTION. PLEASE REVIEW THOROUGHLY BEFORE ACCEPTING.
BY CLICKING/CHECKING THE "I AGREE" BUTTON/BOX, ACCESSING THE NECTAR APP, NECTAR WEBSITE OR BY UTILIZING THE NECTAR SERVICES YOU AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS AND ALL EXHIBITS, ORDER FORMS, AND INCORPORATED POLICIES (THE "AGREEMENT"). THE NECTAR SERVICES ARE NOT AVAILABLE TO PERSONS WHO ARE NOT LEGALLY ELIGIBLE TO BE BOUND BY THESE TERMS OF SERVICE.
1. Acceptance. Please carefully read the representations, warranties, conditions, covenants and agreements set forth below in this end user license agreement (the "Agreement") as they contain the legal terms that govern Your use of NECTAR ("Nectar", "We", "Us" or "Our") service known as "Services" and the App (as defined below). This Agreement is a binding contract between you ("You", "Your" or the "User") and The Company and it explains Your rights and obligations when You use the NECTAR App and Services. In this Agreement "App" means the software application distributed by The Company for use on Your Device (as defined below) in order to access the Services, as well as any future versions, improvements, developments, programming fixes, updates and upgrades thereof; and "Device" means a mobile phone, smartphone, handset, tablet, laptops, or other devices enabled for internet access and/or communication including web applications running under browsers and applications running under Android and iOS operating systems.
2. BY INSTALLING NECTAR, YOU (THE USER) ACKNOWLEDGE, ACCEPT AND AGREE TO BE BOUND BY THIS AGREEMENT IN CONNECTION WITH YOUR USE OF BOTH THE APP AND THE SERVICES.
3. Modification. The Company reserves the right to change the terms of this Agreement at any time by publishing the revised Agreement on the Nectar website. The revised Agreement shall become effective within thirty (30) days of such publication, unless You expressly accept the revised Agreement earlier by clicking on the accept button (if this option is made available). Your express acceptance or Your continued use of the Services after expiry of the notice period of thirty (30) days, shall constitute Your acceptance to be bound by the terms and conditions of the revised Agreement. You can find the latest version of this Agreement at https://nectarcall.com/terms.
(a) Downloading of the App, use of the Services and registration for an account to use the Services ("Your Account") is void where prohibited by law. You must not be under 13 years of age to use the Services (including, but not limited to, registering for an account). By registering for the Services, You represent and warrant that You are not a minor and that You have the capacity to enter, understand, agree to and comply with this Agreement. Your Account may be deleted and Your access to the Services may be terminated without warning if We believe that You or Your Account is not in compliance with this Section a or any other provision of this Agreement.
(b) You represent and warrant that You are not a resident of the European Economic Area or EU. If You are a resident of the European Economic Area or EU, please deactivate Your account with Us. We are currently focused on US and Canadian markets and have not yet implemented the EU's General Data Protection Regulations.
5. Your access to, and use of, the Services may involve the collection, use and disclosure to or by The Company, as the case may be, of Your personal information, device information, information regarding your use of the Services, and other information collected in accordance with the Privacy Policy (as defined below) (collectively, "Your Personal Information"), and by agreeing to this Agreement You consent to The Company's collecting, using or disclosing Your Information in accordance with Our privacy policy located at https://nectarcall.com/privacy (the "Privacy Policy"), which is incorporated into this Agreement by reference and includes the Privacy Policy as may be amended from time to time. The Privacy Policy provides Your rights and Our responsibilities with regard to Your Personal Information. We will not use Your Personal Information in any way that is inconsistent with the purposes and limitations provided for in the Privacy Policy or as otherwise consented or agreed to by You.
6. You are responsible for all activities undertaken by You using the Services (including, without limitation, any personal update features made available through the Services). You should give due consideration before agreeing to have Your personal information disclosed to other persons. Personal information provided by You will be stored on servers operated by or on behalf of The Companyin the United States.
7. You agree to additional terms and conditions associated with the specific Services You may subscribe to or order from The Company, which additional terms and conditions are incorporated into this Agreement by reference.
8. Subject to the terms and conditions of this Agreement, The Company hereby grants You a limited, personal, non-exclusive, non-sublicensable, non-assignable license to: (i) download, install and use the App on Your Device for the sole purpose of personally using the Services; and (ii) use the Services together with the App in accordance with this Agreement and the Privacy Policy.
9. Unless The Company has given You specific written permission to do so, You may not assign (or grant a sub-license of) Your rights to use the App or otherwise transfer any part of Your rights to use the App.
10. Account Setup. To subscribe for the Services and download the App, You must create Your Account. During the registration and set-up of Your Account, You will be required to provide Us with certain information about Yourself including, without limitation, Your telephone number.
11. You represent and warrant to The Company that: (i) all required registration information You submit is truthful, current, accurate and complete and (ii) You will maintain the accuracy and completeness of such information by providing updates to The Company, as needed. You agree that We may use and rely on any such information provided by You for all purposes in connection with Your use of the Services, subject to the Privacy Policy. If You violate any of Your representations and warranties in this Section or we suspect that you have, or will, violate any of your representations and warranties in this Section, We have the absolute right, in Our sole discretion, to terminate or suspend Your access to the Services and to Your Account (which will also result in You not being able to use the App). You agree to immediately notify Us of any unauthorized use, or suspected unauthorized use, of Your Account or any other breach of security. The Company shall not be liable for any loss or damage arising from Your failure to comply with the above requirements.
12. Fees; No Charge for Use of Nectar
Currently Nectar is a "free" Service. If fees are to be charged on any such free services in the future, The Company will provide You with thirty (30) days written notice to the email address if you have volunteered one, or sent via text message to the number associated with Your Nectar Account at registration.
Standard message and data rates from your mobile carrier may apply when receiving SMS from Nectar's short code (20911).
13. The Services are a community-oriented service. Please remember that any Content that You post, submit or otherwise communicate to or through the Services are Your own responsibility and We expect You to take utmost care to ensure that it remains lawful, friendly, courteous, respectful of others and is in compliance with this Agreement. You are required to comply with all applicable laws in connection with Your use of the Services and such further limitations as may be set forth in this Agreement and in any written or on-screen notice from The Company. You may not use the Services for any purpose that is unlawful or prohibited by this Agreement or that otherwise harms The Company, its affiliates, its App Providers or customers. "App Providers" shall mean, collectively, The Company's channel partners (including, without limitation, distributors or sales agents) and any service providers or suppliers (including, without limitation, connecting or underlying carriers, local exchange or access providers or any other providers of networks, connections or services (other than Nectar's services), which are involved in the provision and use of the Services.
14. You agree that You will not use the Services to post, transmit, make available, submit or otherwise communicate any Content that: (i) is harmful or obscene; (ii) is defamatory, slanderous, libelous, harassing or abusive other otherwise harasses or advocates harassment of another person; (iii) contains nudity, pornography, excessive violence, or offensive subject matter or contains a link to an adult website; (iv) constitutes or promotes information that You know is false or misleading or promotes illegal activities or conduct that is abusive, threatening, defamatory or libelous; (v) infringes the copyrights, patents, trade secrets, trademarks, trade names or other proprietary rights of any person or entity; (vi) constitutes "spam", advertising or promotion of commercial services or products and or attempts to fundraise or solicit money from any other Services user; (vii) or contains, or contains links to, files that contain viruses, malware, corrupted files, or any other similar software, programs or files.
15. You shall not, directly or indirectly, to do any of the following acts in connection with Your use of the Services or the App: (i) reverse engineer, de-compile, disassemble or otherwise attempt to discover the source code or underlying ideas or algorithms of the Services or the App; (ii) modify, translate, or create derivative works based on the Services or the App; (iii) rent, lease, distribute, license, sublicense, sell, resell, assign, or otherwise commercially exploit the Services or the App or make the Services or the App available to a third party other than as contemplated in this Agreement; (iv) use the Services or the App for timesharing or service bureau purposes or otherwise for the benefit of a third party; (v) transfer, publish or disclose to third parties any evaluation of the Services or the App without The Company's prior written consent; (vi) create any link to the Services or the App or frame or mirror any content contained or accessible from, the Services or the App; (vii) violate any local, state, federal or foreign law, treaty, regulation or convention applicable to You, which may include, but shall not be limited to, laws related to privacy, publicity, data protection, electronic communications and anti-spamming laws; (viii) commit any fraudulent or otherwise abusive activities; or (ix) intentionally avoid the payment of charges for Services that are not provided to You on a no-fee basis.
16. The Company reserves the right to investigate and take appropriate action against anyone who, in The Company's sole discretion, violates Sections 15, 16, or 17. Any use or misuse of the Services in a manner that violates Sections 15, 16, or 17, of this Agreement or that is otherwise disruptive, damaging, unlawful, offensive or intrusive as determined by The Company, in its sole discretion, shall be a breach of the terms of this Agreement, which shall result in The Company terminating this Agreement (and Your Account) as outlined herein.
17. You acknowledge and additionally agree that, in accordance with the Privacy Policy, We reserve the right to disclose any information, including Your identity, as necessary to satisfy any legal, regulatory or other governmental request, and further, to cooperate with App Providers for the purposes of discouraging and resisting abuses of acceptable use policies.
18. The Companymay, from time to time and without notice to You, upgrade, maintain, or migrate the Nectar App and/or the Services. In the event The Company determines that it is necessary to interrupt the App and/or the Services or that there is a potential for the App and/or the Services to be interrupted for the performance of system maintenance, The Company will use reasonable commercial efforts to notify You prior to such interruption. The Company will use reasonable commercial efforts to schedule system maintenance during non-peak hours (midnight to 6 a.m. local time). In no event shall interruption for system or emergency maintenance constitute a failure of performance by The Company.
19. Despite Our safety and privacy controls, We cannot guarantee that You will not encounter inappropriate or illegal conduct from other users of the Services. Consequently, if You encounter such content and/or conduct, You can help The Company by notifying us of any inappropriate or illegal conduct or content (such as, nudity or pornography, or harassing statements, unwelcome contact or fraud) by contacting hello@nectarcall.com. The reporting of complaints will be confidential and once a complaint is received, We will first acknowledge the receipt of Your complaint and then take steps to address the complaint that may include, but is not limited to, removing the offending content or to warn or, as appropriate, to prevent from the Services those transmitting such content or engaging in such conduct. We will also promptly provide You with an explanation of the steps taken to address the complaint.
20. Notwithstanding anything to the contrary contained in this Agreement, You make use of the App and the Services at Your own risk. These risks include, among other things, identity theft, fraud, solicitation, stalking, invasion of privacy, unwanted receipt of offensive or obscene material, trespass to chattels or denial of service attacks. The Company expressly disclaims any obligation to monitor its users with respect to violations of its acceptable use policies. The Company accepts no responsibility, whether in contract, tort or otherwise for any damage sustained by You or any users in using the App and Services.
21. Your Personal Information is not used by The Company for advertising, and Your Personal Information is not sold to other parties for any reason. Whether now, or in the future, the Services may be supported by advertising revenue and may display advertisements and promotions provided by third party partners or providers. The manner, mode and extent of advertising on the Services are subject to change without specific notice to You. While there are no immediate plans to incorporate advertising into the Service, in consideration for The Company granting You access to and use of the Services, You agree that The Company may place or allow the placement of such advertising on the Services.
22. Using the Services may result in the display of results, advertisements or other content that contain(s) hyper-links to or suggestions or results for websites, locations, products, services or activities. Such websites, advertisements, products, services or activities are not created or controlled by The Company (collectively, "Third Party Services"), are wholly independent from The Company and as such are intended for convenience only. The Company shall not be responsible for the contents of, updates to, or privacy practices of these third parties, which may differ from those of The Company. You acknowledge and agree that Third Party Services are not under the control of The Company, are in no way endorsed by The Company and The Company is not responsible for the content, use, accuracy, completeness, usefulness, timeliness, copyright compliance, availability, legality or any other aspect of such Third Party Services. The personal data/Personal Information You may choose to give to the providers of such Third Party Services are not covered by The Company's policies. Third Party Services may not be available in all languages or in all countries. The Company makes no representation that such Third Party Services are appropriate or available for use in any particular location. To the extent You choose to access such Third Party Services, You do so at Your own initiative and are responsible for compliance with any applicable laws, including, but not limited, to applicable local laws. The Company, and its licensors, reserve the right to change, suspend, remove, or disable access to any Third Party Services at any time without notice. In no event will The Company be liable for the removal of or disabling of access to any such Third Party Services. The Company may also impose limits on the use of or access to certain Third Party Services, in any case and without notice or liability.
23. You acknowledge and agree that any questions, comments, suggestions, ideas, feedback or other information about the App or the Services (collectively, "Submissions") provided by You to Us are solely Your Submissions and not that of a third party, are non-confidential to You and shall become the sole property of The Company. The Company shall own exclusive rights, including all intellectual property rights, and shall be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to You. You hereby waive to and in favor of The Company, Your moral rights in and to Submissions made by You.
24. Term. The term of this Agreement ("Term") will commence, and You may begin using the App and the Services, once You agree to this Agreement. The Agreement will remain in effect until terminated by You or Us in accordance with Section 25.
25. Termination.
(a) You may terminate this Agreement with immediate effect at any time.
(b) Without limiting other remedies, The Company may limit, suspend, or terminate this Agreement and Your use of the Services and the App, prohibit access to the Services and delete Your Account, with immediate effect, if We think that You are in breach of this Agreement (or will be in breach of this Agreement), creating problems, legal liabilities (actual or potential), infringing someone else's intellectual property rights, engaging in fraudulent, immoral or illegal activities, or for other similar reasons. The Company shall effect such termination by providing notice to You to the agency email address You have provided, and/or by preventing Your access to Your User Account. We reserve the right to cancel User Accounts that have been inactive for more than one (1) year.
(c) The Company reserves the right to terminate this Agreement and the Services with You, without notice, for any reason or no reason.
26. Consequences of Termination. Upon termination of this Agreement: (a) all licenses and rights to use the App and the Services shall immediately terminate; (b) You will immediately cease any and all use of the App and the Services; and (c) You will immediately remove the App from Your Devices and all copies of the App in Your possession or under Your control.
27. YOU AGREE TO INDEMNIFY, DEFEND AND HOLD THE COMPANY AND ITS AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS AND APP PROVIDERS HARMLESS FROM AND AGAINST ANY AND ALL LIABILITY AND COSTS, INCLUDING REASONABLE LEGAL FEES INCURRED BY THE COMPANY, IN CONNECTION WITH OR ARISING OUT OF YOUR: (I) VIOLATION OR BREACH OF ANY TERM OF THIS AGREEMENT OR ANY APPLICABLE LAW OR REGULATION, WHETHER OR NOT REFERENCED HEREIN; (II) VIOLATION OF ANY RIGHTS OF ANY THIRD-PARTY; (III) USE OR MISUSE OF THE APP AND/OR THE SERVICES; OR (IV) YOUR CONTENT.
28. No Warranties: TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE SERVICES AND THE APP ARE PROVIDED "AS IS" WITH NO WARRANTIES OR CONDITIONS WHATSOEVER; THE COMPANY DOES NOT MAKE ANY WARRANTIES, CLAIMS, CONDITIONS OR REPRESENTATIONS WITH RESPECT TO THE SERVICES INCLUDING, BUT NOT LIMITED TO THE APP, WHETHER EITHER EXPRESSED OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OR CONDITIONS OF QUALITY, PERFORMANCE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR USE FOR A PARTICULAR PURPOSE. THE COMPANY FURTHER DOES NOT REPRESENT OR WARRANT THAT THE SERVICES OR THE APP, WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, ACCURATE, COMPLETE AND ERROR-FREE OR WILL OPERATE WITHOUT PACKET LOSS, NOR DOES THE COMPANY MAKE ANY WARRANTIES REGARDING ANY CONNECTION TO OR TRANSMISSION FROM ANY NETWORK OR CONNECTION INVOLVED IN THE PROVISION OR USE OF THE SERVICES (INCLUDING, WITHOUT LIMITATION THE INTERNET OR ANY CELLULAR NETWORK), THE QUALITY OF COMMUNICATIONS MADE THROUGH THE SERVICES, OR THE SECURITY OF ANY TRANSACTION MADE THROUGH THE SERVICES. YOU ACKNOWLEDGE THAT YOU HAVE NOT RELIED UPON ANY REPRESENTATION, WARRANTY, CONDITION OR GUARANTEE MADE BY THE COMPANY.
29. Data and Access Disclaimer: TO THE MAXIMUM EXTENT PERMITTED BY LAW, WE DISCLAIM ANY RESPONSIBILITY FOR THE DELETION, THE FAILURE TO STORE, THE MISDELIVERY, OR THE UNTIMELY DELIVERY OF ANY INFORMATION OR MATERIAL INCLUDING, WITHOUT LIMITATION, ANY OF YOUR CONTENT. WE DISCLAIM ANY RESPONSIBILITY FOR ANY HARM RESULTING FROM DOWNLOADING OR ACCESSING ANY CONTENT THROUGH THE SERVICES OR THE APP. BY USING THE SERVICES OR THE APP, YOU ACKNOWLEDGE AND AGREE THAT TECHNICAL PROCESSING AND TRANSMISSION OF INFORMATION USING THE SERVICES MAY INVOLVE TRANSMISSIONS OVER VARIOUS NETWORKS AND CHANGES TO CONFORM AND ADAPT TO TECHNICAL REQUIREMENTS OF CONNECTING NETWORKS OR DEVICES. THE COMPANY IS, AND SHALL, NOT BE RESPONSIBLE OR LIABLE FOR ANY: (A) INCORRECT OR INACCURATE TRANSCRIPTION OF INFORMATION; (B) HUMAN ERROR OR PRINTING ERROR; (C) INTERRUPTION, DELETION, OMISSION, DEFECT, OR LINE FAILURE OF ANY TELEPHONE NETWORK OR ELECTRONIC TRANSMISSION; (D) PROBLEMS RELATING TO YOUR DEVICE OR ANY OTHER COMPUTER EQUIPMENT, SOFTWARE, INABILITY TO ACCESS THE APP OR THE SERVICES; OR (E) OTHER TECHNICAL OR NON-TECHNICAL ERROR OR MALFUNCTION.
30. Specific Disclaimers.
(a) YOU ACKNOWLEDGE AND AGREE THAT: (I) THE SERVICES CANNOT TRANSMIT COMMUNICATIONS OR OTHER ELECTRONIC REQUESTS TO DEVICES THAT ARE UNREACHABLE (I.E. OUT OF CELLULAR COVERAGE, POWERED OFF, ETC.); AND (II) THAT THE SERVICES ARE NOT A SERVICE TO BE RELIED UPON AS THE SOLE MEANS OF RECEIVING CRITICAL INFORMATION.
(b) IN NO EVENT SHALL THE COMPANY'S APP PROVIDERS BE LIABLE FOR THE SALE, DISTRIBUTION OR YOUR USE OF THE APP OR THE PERFORMANCE OR NON-PERFORMANCE OF THE APP. TO THE MAXIMUM EXTENT PERMISSIBLE BY LAW, THE APP PROVIDERS SHALL BE THIRD PARTY BENEFICIARIES TO THIS SECTION.
(c) YOU FURTHER ACKNOWLEDGE AND AGREE TO DISCHARGE, WAIVE AND RELEASE THE APP PROVIDERS FROM ANY CLAIMS, LIABILITIES AND DAMAGES, KNOWN OR UNKNOWN, ARISING OUT OF OR RELATING TO YOUR INTERACTIONS WITH SUCH PARTIES AND THEIR PRODUCTS AND SERVICES.
(d) NOTWITHSTANDING ANY OTHER SECTION, THE COMPANY DISCLAIMS ALL LIABILITY OF ANY KIND IN RELATION TO THE APP PROVIDERS AND THEIR PRODUCTS AND SERVICES.
31. No Liability: YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE COMPANY, ITS AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR APP PROVIDERS WILL HAVE NO LIABILITY IN CONNECTION WITH OR ARISING FROM YOUR USE OF THE SERVICES OR THE APP. YOUR ONLY RIGHT OR REMEDY WITH RESPECT TO ANY PROBLEMS OR DISSATISFACTION WITH THE SERVICES OR THE APP IS TO IMMEDIATELY UNINSTALL AND CEASE USE OF THE APP AND THE SERVICES.
32. Limitation of Liability: TO THE MAXIMUM EXTENT PERMITTED BY LAW, AND WITHOUT LIMITING THE GENERALITY OF THE ABOVE TERMS, IN NO EVENT SHALL THE COMPANY, ITS AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR APP PROVIDERS BE LIABLE, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER FORM OF LIABILITY, FOR:
(a) ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION ANY LOSS OF OR CORRUPTION TO DATA, INTERRUPTION, COMPUTER FAILURE OR PECUNIARY LOSS) ARISING OUT OF THE USE OR INABILITY TO USE THE SERVICES OR THE APP;
(b) ANY LOSS OF INCOME, BUSINESS OR PROFITS (WHETHER DIRECT OR INDIRECT) ARISING OUT OF THE USE OR INABILITY TO USE THE SERVICES OR THE APP;
(c) ANY LOSS OR DAMAGE WHICH MAY BE INCURRED BY YOU AS A RESULT OF: (I) ANY DISRUPTIONS OR DELAYS IN ANY COMMUNICATION WHEN USING THE SERVICES; (II) THE SUSPENSION OR TERMINATION OF THIS AGREEMENT BY YOU OR BY THE COMPANY FOR ANY REASON; OR (III) THE RELEASE OR THE DECISION NOT TO RELEASE NEW VERSIONS OF THE APP TO YOU; OR
(d) ANY ACT OR OMISSION OF ANY OF ITS APP PROVIDERS.
33. THE LIMITATIONS ON THE COMPANY'S LIABILITY TO YOU IN THE PARAGRAPHS ABOVE SHALL APPLY WHETHER OR NOT SUCH PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES ARISING.
34. NOTWITHSTANDING ANYTHING CONTRARY IN THIS AGREEMENT AND WITHOUT LIMITING THE GENERALITY OF THE SECTION ABOVE, IN NO EVENT SHALL THE COMPANY'S MAXIMUM AGGREGATE LIABILITY TO YOU EXCEED THE AMOUNT OF ONE-HUNDRED DOLLARS ($100.00). THE LIMITATIONS OF THIS SECTION SHALL APPLY WHETHER OR NOT THE ALLEGED BREACH OR DEFAULT IS A BREACH OF A FUNDAMENTAL CONDITION OR TERM.
35. Jurisdiction's Limitations: As some jurisdictions do not allow some of the exclusions or limitations as set forth above, some of these exclusions or limitations may not apply to You. In such event The Company's liability will be limited to the maximum extent permissible under the applicable laws of such jurisdiction.
36. App Merchants: You acknowledge and agree that the availability of the App is dependent on the third party from which You downloaded or received the App (the "App Merchant"). You acknowledge that this Agreement is between You and The Company and not with the App Merchant. The Company, not the App Merchant, is solely responsible for the App and the Services, the content thereof, maintenance, support services, and warranty therefor, and addressing any claims relating thereto. You agree to pay all fees charged by the App Merchant in connection with Your download of the App (if any). You agree to comply with, and Your license to use the App and the Services are conditioned upon Your compliance with, all applicable third party terms of agreement when using the App. You acknowledge that to the maximum extent permissible by law, the App Merchant (and its subsidiaries) are third party beneficiaries of this Agreement and will have the right to enforce this Agreement.
37. Apple Devices: If You download the App from the Apple app store (the "App Store") or use the App to run on the Apple Inc. ("Apple") operating system ("iOS"), such as with the iPhone, iPod, iPad or other related device using such iOS, the following terms will also apply and You acknowledge and agree to the following terms:
(a) Acknowledgement: You and The Company acknowledge that this Agreement is concluded between The Company and You only, and not with Apple, and The Company, not Apple, is solely responsible for the Services and the App and the content thereof. To the extent the other terms and conditions of this Agreement are less restrictive than, or otherwise conflict with, the terms and conditions of this Section, the more restrictive or conflicting terms and conditions in this Section apply, but solely with respect to the use of the Services and the App when used on iOS.
(b) Scope of License: The license granted to You for the App is limited to a non-transferable license to use the App on any iOS Device that You own or control and as permitted by the Usage Rules set forth in the App Store terms of service (https://www.apple.com/legal/itunes/appstore/dev/stdeula/).
(c) Maintenance and Support: The Company is solely responsible for providing any maintenance and support services with respect to the Services and the App, as specified in this Agreement (if at all), or as required under applicable law. The Company and You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App.
(d) Warranty: The Company is solely responsible for any product warranties with respect to the Services and the App, whether express or implied by law, to the extent not otherwise disclaimed. In the event of any failure of the App to conform to any applicable warranty, You may notify Apple, and Apple will refund the purchase price for the App to You; and that, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be The Company's sole responsibility.
(e) Product Claims: The Company and You acknowledge that The Company, not Apple, is responsible for addressing any claims of You or any third party relating to the Nectar App or Your possession and/or use of Nectar, including, but not limited to: (i) product liability claims; (ii) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. This Agreement does not limit The Company's liability to You beyond what is permitted by applicable law.
(f) Intellectual Property Rights: The Company and You acknowledge that, in the event of any third party claim that the Services or the App or Your possession and use of that App infringes that third party's intellectual property rights, The Company and/or You, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
(g) Third Party Beneficiary: The Company and 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 the Agreement against You as a third party beneficiary thereof.
38. Entire Agreement: This Agreement, together with the Privacy Policy, constitutes the entire agreement between You and The Company with respect to the subject matter hereof and will supersede and replace all prior understandings and agreements, in whatever form, regarding the subject matter.
39. Survival: Any terms and conditions of this Agreement which by their nature extend beyond the termination or expiration of this Agreement shall survive the termination or expiry of this Agreement.
40. Governing Law: This Agreement is governed, construed and interpreted by the law of the State of Nevada and the Federal laws of the United States, without regard to conflict of laws principles. You irrevocably and unconditionally submit to the personal jurisdiction of the courts of the State of Nevada and the venue of the courts of Nevada, in respect of any disputes relating to or arising out of this Agreement. The parties specifically disclaim the United Nations Convention on Contracts for the International Sale of Goods. If either party brings a legal action arising out of or relating to this Agreement, the prevailing party shall be entitled to recover all reasonable costs and attorney's fees incurred prior to and during the litigation of the matter, as well as reasonable collection costs.
41. Language. The Parties have expressly required that this Agreement, any communication and all other contracts, documents and notices relating to this Agreement be drafted in the English language.
42. Severability: If any of the provisions (or parts thereof) contained in this Agreement are determined to be void, invalid or otherwise unenforceable by a court of competent jurisdiction, such determination shall not affect the remaining provisions (or parts thereof) of this Agreement.
43. Headings: The use headings are for convenience only and are not part of this Agreement.
44. Relationship: Nothing contained in this Agreement shall be deemed or construed as creating a joint venture or partnership between the parties; no party is by virtue of this Agreement authorized as an agent, employee or agent representative of the other party.
45. Waiver: Any waiver of any right or remedy under this Agreement must be in writing and signed by each party. No delay in exercising any right or remedy shall operate as a waiver of such right or remedy or any other right or remedy. A waiver on one occasion shall not be construed as a waiver of any right or remedy on any future occasion.
46. Assignment: You may not assign any rights or obligations under the Agreement and any assignment shall be ineffective. The Company may assign or delegate all rights and obligations under this Agreement without notice to You.
Should You have any questions concerning this Agreement, contact us at hello@nectarcall.com.