Mobile Application End User License Agreement
This Mobile Application End User License Agreement (“Agreement”) is a binding agreement between you (“End User” or “you”) and SWI-DE, LLC d/b/a Drew Estate (“Company”). This Agreement governs your use of the Drew Diplomats application on Android and ITunes/iPhone Devices, (including all related documentation, hereinafter the “Application”). The Application is licensed, not sold, to you.
BY CLICKING THE “AGREE” BUTTON AT THE DESIGNATED PLACE, AND/OR DOWNLOADING AND/OR INSTALLING AND/OR USING THE APPLICATION, YOU: (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENT THAT YOU ARE 21 YEARS OF AGE OR OLDER; AND (C) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT DOWNLOAD/INSTALL/USE THE APPLICATION AND DELETE IT FROM YOUR MOBILE DEVICE.
This Agreement only applies to the Application. If the Application is automatically installed on multiple mobile devices when it is downloaded/installed as a result of the mobile devices being synched or linked to one application platform account, then you are responsible for all uses of the Application, regardless of the mobile device, under this Agreement.
The purpose of the Application is to allow cigar enthusiasts a forum to share and participate in a loyalty program.
- License Grant. Subject to the terms of this Agreement, Company grants you a limited, non-exclusive, revocable, and nontransferable license to:
(a) download, install and use the Application for your personal, non-commercial use on a single mobile device/Apple or Android (or on additional devices if synched to your application platform account) owned or otherwise controlled by you (“Mobile Device”) strictly in accordance with the Application’s documentation and intended purposes; and
- License/Application Restrictions. End User shall not:
(a) copy the Application or Content and Services, except as expressly permitted by this Agreement;
(b) modify, distribute, translate, publish, adapt or otherwise create derivative works or improvements, whether or not patentable, of the Application or Content and Services;
(c) reverse engineer, disassemble, decompile, decode or otherwise attempt to derive or gain access to the source code of the Application or any part thereof;
(d) remove, delete, alter or obscure any trademarks or any copyright, trademark, service mark, patent or other intellectual property or proprietary rights notices from the Application or Content and Services, including any copy thereof;
(e) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available the Application or any features or functionality of the Application, to any third party for any reason, including by making the Application available on a network where it is capable of being accessed by more than one device at any time;
(f) remove, disable, circumvent or otherwise create or implement any workaround to any copy protection, rights management or security features in or protecting the Application;
(g) violate any laws or regulations when using the Application;
(h) take any actions that may impose an unreasonable or disproportionate strain on Company’s network or computer infrastructure, including but not limited to, uploading any viruses or other malicious computer code;
(i) engage in any behavior designed to hack into or gain unauthorized access to protected areas of the Company’s computers or computer/network systems; or
(j) use any automated technology to spider, scrape, or data mine any of the Company’s computer systems.
Other than the exceptions referenced in this Agreement or noted elsewhere, all other intellectual property rights in the Application and its underlying code are owned by the Company.
- Reservation of Rights. You acknowledge and agree that the Application is provided under license, and not sold, to you. You do not acquire any ownership interest in the Application under this Agreement, or any other rights thereto other than to use the Application in accordance with the license granted, and subject to all terms, conditions and restrictions, under this Agreement. Company and its licensors and service providers reserves and shall retain their entire right, title and interest in and to the Application, including all copyrights, trademarks and other intellectual property rights therein or relating thereto, except as expressly granted to you in this Agreement.
- Geographic Restrictions. The source of the Application and the Content and Services are based in the state of Florida in the United States and are provided for access and use only by persons located in the United States. You acknowledge that you may not be able to use or access all or some of the Application or Content and Services outside of the United States and that access thereto may not be legal by certain persons or in certain countries. If you use or access the Application or Content and Services from outside the United States, you are responsible for compliance with local laws. By using the Application, you agree and acknowledge that personal information about you may be transmitted to and stored in the United States.
- Updates. Company may from time to time in its sole discretion develop and provide Application updates, which may include upgrades, bug fixes, patches and other error corrections and/or new features (collectively, including related documentation, “Updates”). Updates may also modify or delete in their entirety certain features and functionality of the Application. You agree that Company has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality. Based on your Mobile Device settings or the settings of your application platform, when your Mobile Device is connected to the internet either:
(a) the Application will automatically download and install all available Updates; or
(b) you may receive notice of or be prompted to download and install available Updates.
You should promptly download and install all Updates, and you acknowledge and agree that the Application or portions thereof may not properly operate should you fail to do so. You further agree that all Updates will be deemed part of the Application and be subject to all terms and conditions of this Agreement.
- Third Party Materials. The Application may display, include, or make available third-party content (including data, information, applications and other products services and/or materials) or provide links to third-party websites or services, including through third-party advertising (“Third Party Materials”). You acknowledge and agree that Company is not responsible for Third Party Materials, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect thereof. Company does not assume and will not have any liability or responsibility to you or any other person or entity for any Third Party Materials. Third Party Materials and links thereto are provided solely as a convenience to you and you access and use them entirely at your own risk and subject to such third parties’ terms and conditions and privacy policies. Any inclusion of any Third Party Materials in or through the Application does not imply that the Company endorses or recommends the Third Party Materials or any goods or services referenced in the Third Party Materials.
Company may also allow interaction between the Application and other third party sites or locations such as Twitter and other social media services. This may include “Like” buttons or other interactions through third party buttons or plugins on the Application that when used, may allow you to share content from the Application or other content with other persons on or through the third party services or elsewhere. Please consult the privacy policies of these third party services before using them to make sure you are comfortable with the level of sharing that will take place once you interact with them. It may be very different than how your user generated and other content is shared on the Application. Company has no control over these third party services and you use these interaction functions and services at your own risk. Company is in no way liable for any harm to you as a result of using one these interaction functions or services.
- Term and Termination.
(a) The term of this Agreement commences when you download/install the Application and acknowledge your acceptance the terms and conditions of this Agreement, and will continue in effect until terminated by you or Company as set forth in this Section 9.
(b) You may terminate this Agreement by deleting the Application and all copies of it from your Mobile Device and related platform accounts.
(c) Company may terminate this Agreement at any time, without notice to you, for any reason including but not limited to, if it ceases to support the Application in its sole discretion for any or no reason, or if the Drew Diplomat loyalty program ends. In addition, this Agreement will terminate immediately and automatically without any notice if you violate any of the terms and conditions of this Agreement.
(d) Upon termination:
(i) all rights granted to you under this Agreement will also terminate; and
(ii) you must cease all use of the Application and delete all copies of the Application from your Mobile Device and related platform accounts.
(e) Termination will not limit any of Company’s rights or remedies at law or in equity.
- User Generated Content. The Application may allow you to upload your own user generated content (“UGC”) in certain areas. This may include, but is not limited to, photographs, images, graphics, videos, and/or text.
Any UGC you upload/post to the Application is done on a non-proprietary and non-confidential basis, and you agree that Company has a royalty-free, perpetual, irrevocable, worldwide, non-exclusive right and license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform, and display any UGC for the purpose of operating and/or marketing the Application or any related services offered through the Application. This license includes any right of publicity rights that may be present in the UGC.
Company is not required to treat any UGC as confidential.
You further agree that you will not upload/post to the Application any UGC that infringes the rights, including but not limited to, intellectual property, privacy, publicity, or contract of some other person or entity. You shall be solely liable for any damages, royalties, or fees resulting from any infringement of rights or any other harm resulting from any UGC you upload/post.
You further represent and warrant that: (i) you own all right, title, and interest, including the intellectual property rights, to any UGC uploaded/posted by you to the Application or you have been granted the right by the owner to upload/post the UGC; and (ii) your UGC does not violate the intellectual property rights, privacy rights, publicity rights, contract rights or any other rights of any person or entity.
Company reserves the right to refuse, delete, or edit any UGC without cause and without notice for any or no reason including, but not limited to, for any action that Company determines is inappropriate or disruptive to the Application or to any other user of the Application.
Company is under no duty to, and does not represent it will, monitor and/or remove any UGC.
Company reserves the right to comply and cooperate with any and all legal requirements, legal authorities, and/or law enforcement agencies regarding the investigation of, or request to disclose, information related to your UGC.
By accepting this Agreement, you waive and hold harmless Company from any claims resulting from any action taken by Company during or as a result of Company’s investigation and/or from any actions taken as a consequence of investigations by either Company or law enforcement.
Please note that Company does not accept unsolicited content or ideas you may attempt to transmit to Company directly. As such, we take no responsibility for such transmitted content or ideas. If you do send Company unsolicited content or ideas, you agree that Company may use such content and ideas in any way Company wishes without any compensation to you.
- Copyright Infringement Notification
If you believe that any content available on or through the Application infringes your copyright and you want the content removed from the Application, please send a detailed message (under the Digital Millennium Copyright Act, the following information must be included in the message) to Company’s designated agent for notice of claims of copyright infringement:
(i). A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
(ii). Identification of the copyrighted work claimed to have been infringed, or, if multiple works at a single online site or location are covered by a single notification, a representative list of such works at that site or location .
(iii). Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled and information reasonably sufficient to permit Company to locate the material.
(iv). Information reasonably sufficient to permit Company to contact you as the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted.
(v). A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.
(vi). A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Company’s Designated Agent is: Copyright Agent / SWI-DE, LLC 12415 SW 136th Ave, #7, Miami, FL 33186, facsimile (786) 581-1810, telephone (786) 581-1800, email email@example.com.
Company takes copyright and other intellectual property issues seriously, and will terminate any Application users or related accounts that are connected to valid and repeat copyright infringement complaints.
If you believe that any content on the Application violates or infringes your intellectual property rights, other than related to copyright, please send a detailed email to firstname.lastname@example.org detailing your allegation. Company takes infringement of intellectual property rights seriously, and will investigate the matter.
- Disclaimer of Warranties. YOU USE THE APPLICATION AT YOUR OWN RISK.
TO THE EXTENT ALLOWED UNDER THE LAW, THE APPLICATION IS PROVIDED TO END USER “AS IS” AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND.
TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, COMPANY, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, AND ITS AND THEIR OFFICERS, DIRECTORS, MANAGERS, EMPLOYEES AND CONTRACTORS, EXPRESSLY DISCLAIM ALL WARRANTIES (AND MAKE NO SUCH WARRANTIES), WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE APPLICATION, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, SECURITY, AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OR TRADE PRACTICE.
TO THE EXTENT ALLOWED UNDER THE LAW, AND WITHOUT LIMITATION TO THE FOREGOING, COMPANY PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE APPLICATION WILL MEET YOUR REQUIREMENTS, BE ACCURATE, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS OR SERVICES, OPERATE WITHOUT INTERRUPTION, BE SECURE OR VIRUS FREE, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR FREE OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED. .
THE APPLICATION IS PROVIDED “AS IS” AND “AS AVAILABLE,” AND TO THE EXTENT ALLOWED UNDER THE LAW, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED.
YOU ASSUME THE ENTIRE COST OF NECESSARY REPAIRS IN THE EVENT YOU EXPERIENCE ANY LOSS OR DAMAGE ARISING FROM YOUR USE OF THE APPLICATION.
ALL PROVISIONS IN THIS AGREEMENT ARE APPLICABLE TO THE EXTENT ALLOWED UNDER THE LAW.
- Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL COMPANY OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS, SERVICE PROVIDERS, officers, directors, managers, employees, agents, successors, and/or assigns, HAVE ANY LIABILITY ARISING FROM OR RELATED TO YOUR USE OF OR INABILITY TO USE THE APPLICATION OR THE CONTENT AND SERVICES FOR:
(a) PERSONAL INJURY, PAIN AND SUFFERING, PROPERTY DAMAGE, LOST PROFITS, LOST DATA, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OF GOODWILL, BUSINESS INTERRUPTION, COMPUTER FAILURE OR MALFUNCTION OR ANY OTHER CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES
(b) DIRECT DAMAGES IN AMOUNTS THAT IN THE AGGREGATE EXCEED THE AMOUNT ACTUALLY PAID BY YOU FOR THE APPLICATION OR ANY GOOD OR SERVICE PURCHASED THROUGH THE APPLICATION.
TO THE EXTENT ALLOWED UNDER THE LAW, THE FOREGOING LIMITATIONS WILL APPLY WHETHER SUCH DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR COMPANY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
IF YOU ARE DISSATISFIED WITH THE APPLICATION, YOUR SOLE AND EXCLUSIVE REMEDY, TO THE EXTENT ALLOWED UNDER THE LAW, IS TO CEASE USING THE APPLICATION.
ALL OF THE PROVISIONS OF THIS AGREEMENT ARE APPLICABLE TO THE EXTENT ALLOWED UNDER THE LAW.
- Indemnification. You agree to indemnify, defend and hold harmless Company and its affiliates, and its and their officers, directors, managers, employees, agents, successors and assigns from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees, arising from or relating to your use or misuse of the Application, your inability to use the Application, or your breach of this Agreement. Furthermore, you agree that Company assumes no responsibility for the content you submit or make available through this Application. This indemnification obligation shall survive the termination of this Agreement.
- Password/Username Protection. You may be required to set up an Application account in order to use some the Application functions. You are responsible for maintaining the confidentiality of your password and agree to immediately notify Company if you believe the password was compromised or stolen. You are responsible for all activity that occurs under your Application account. If the Company suspends or cancels your Application account, which it can do for any or no reason, you acknowledge that all information and content associated with your account will no longer be available to you.
- Export Regulation. The Application may be subject to U.S. export control laws, including the U.S. Export Administration Act and its associated regulations. You shall not, directly or indirectly, export, re-export or release the Application to, or make the Application accessible from, any jurisdiction or country to which export, re-export or release is prohibited by law, rule or regulation. You shall comply with all applicable federal laws, regulations and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing or otherwise making the Application available outside the U.S.
- Severability. If any provision of this Agreement is illegal or unenforceable under applicable law, the remainder of the provision will be amended to achieve as closely as possible the effect of the original term and all other provisions of this Agreement will continue in full force and effect.
- Governing Law. YOU AGREE THAT this Agreement is governed by and construed in accordance with the internal laws of the State of Florida without giving effect to any choice or conflict of law provision or rule.
YOU HEREBY IRREVOCABLY AND UNCONDITIONALLY CONSENT THAT any legal suit, action or proceeding arising out of or related to this Agreement or the Application shall be instituted exclusively in the federal courts of the United States or the courts of the State of Florida in each case located in Miami-Dade County.
YOU HEREBY IRREVOCABLY AND UNCONDITIONALLY CONSENT to waive any and all objections to the exercise of jurisdiction over you by such Florida courts and to venue in such courts.
YOU HEREBY IRREVOCABLY AND UNCONDITIONALLY AGREE not to plead or claim in any Florida court that such litigation brought therein has been brought in an inconvenient forum.
- Limitation of Time to File Claims. ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE APPLICATION MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
- Waiver. No failure to exercise, and no delay in exercising, on the part of either party, any right or any power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or power hereunder preclude further exercise of that or any other right hereunder. In the event of a conflict between this Agreement and any applicable purchase or other terms, the terms of this Agreement shall govern.
- Survival. The proprietary rights, disclaimers of warranties, representations made by you, indemnities, limitations of liability, and any other provision or language that by its nature is meant to survive, shall survive the termination of this Agreement.
To download a copy of this EULA, click here.