TERMS OF SERVICES
This End-User Agreement (hereinafter referred to as the “Agreement“) is a legally binding agreement between:
- KORNEA Inc., a corporation governed under the laws of the state of California (USA), with registration number C4614091 and having its principal place of business located at 1049 El Monte Avenue, Suite C#804 Mountain View, California 94040, USA (the “Company”), and
- each Freemium End-User (defined below), Subscribed End-User (defined below), customer, individual, entity, visitor and user (“you” or “your”),
hereinafter referred to together as the “Parties” and individually as the “Party”.
This Agreement governs your access to and use of Company’s online Visual Art-On-Demand (VAOD) streaming mobile application platform called KORNEA (hereinafter referred to as the “Kornea VAOD Mobile App Platform”) made available through:
- smartphones (including but not limited to Apple iOS and Android OS);
- smart televisions (including but not limited to Sony, LG, and Samsung);
- television connecting and/or streaming devices such as Apple TV, Roku, Chromecast, and Amazon Fire Stick;
- iPad and tablets; and
- any other currently existing or future remote screens on which Artworks (defined below) can be displayed
(collectively “Smart Device(s)”).
- Acceptance of Terms
PLEASE READ THIS AGREEMENT CAREFULLY BEFORE ACCEPTING ITS TERMS AND CONDITIONS. BY SELECTING “I ACCEPT”, CLICKING THE “SUBMIT” BUTTON BELOW, AND BY DOWNLOADING, INSTALLING, OR USING THE KORNEA VAOD MOBILE APP PLATFORM, YOU ACKNOWLEDGE AND AGREE THAT YOU: (1) HAVE READ AND UNDERSTOOD THE TERMS AND CONDITIONS OF THIS AGREEMENT; (2) REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY AND CAPACITY TO ENTER INTO THIS AGREEMENT; (3) ARE ELECTRONICALLY SIGNING/EXECUTING THIS AGREEMENT IN A MANNER WHICH IS LEGALLY EQUIVALENT TO YOUR HANDWRITTEN SIGNATURE, (4) AGREE THAT THIS AGREEMENT WILL COME INTO FORCE IMMEDIATELY AND AUTOMATICALLY AND (5) WILL BECOME LEGALLY BOUND BY ALL ENFORCEABLE TERMS AND CONDITIONS CONTAINED IN THIS AGREEMENT INCLUDING WITHOUT LIMITATION THE TERMS OF OTHER DOCUMENTS AND/OR POLICIES THAT ARE INCORPORATED HEREIN BY REFERENCE.
IF YOU DO NOT AGREE WITH ANY OR ALL OF THE TERMS OF THIS AGREEMENT, OR YOU DO NOT HAVE THE NECESSARY AUTHORITY, YOU (I) SHALL NOT BE AUTHORIZED TO DOWNLOAD, INSTALL, AND/OR USE THE KORNEA VAOD MOBILE APP PLATFORM FOR ANY PURPOSE, AND (II) MUST REFRAIN FROM ACCESSING AND/OR USING THE KORNEA VAOD MOBILE APP PLATFORM IMMEDIATELY.
- Artist’s Artwork, Types of End-Users & Access to the Kornea VAOD Mobile App Platform
2.1. Subject to the terms and conditions herein, the Company provides you via the Kornea VAOD Mobile App Platform with certain categories of artworks, including but not limited to photographs, videos, digitized paintings and other digital, born-digital and digitized visual artworks (hereinafter referred to collectively as “Artwork(s)”), which have been licensed by artists (“Artist(s)”) to the Company on a non-exclusive basis. As such, you acknowledge and understand that each Artist is and shall remain at all times the sole and exclusive owner of all Artworks (including all digital images and/or visual representations thereof) created and/or owned by such Artist and which Company considers for listing on the Kornea VAOD Mobile App Platform (individually “Artist’s Artwork(s)” or collectively “Artists’ Artwork(s)”).
2.2. Subject to Section 3 of this Agreement, Company, through its Kornea VAOD Mobile App Platform, makes Artists’ Artwork(s) available to:
- (a) you, as a freemium end-user (“Freemium End-User(s)”), in such a way that you may browse and view (in-app) under the «Feed» tab of the Kornea VAOD Mobile App Platform all digital images and/or visual representations of Artists’ Artwork(s) listed on the Kornea VAOD Mobile App Platform, and have access to the «Search», «Product», and «Playlist» tab on the Kornea VAOD Mobile App Platform. However, you acknowledge that the following features of the Kornea VAOD Mobile App Platform will not be available to Freemium End-Users: (i) under the «Product» tab of the Kornea VAOD Mobile App Platform, the digital images and/or visual representations of Artist’s Artwork will be blurred; (ii) the zoom-in feature will be deactivated on your Smart Device(s); (iii) the full screen version of the digital images and/or visual representations of Artists’ Artwork(s) which automatically appears when your Smart Device is titled horizontally, will be blurred; and (iv) the add, delete and modify features under the «Playlist» tab will be deactivated on your Smart Device(s).
- (b) you on a recurring subscription basis (“Subscribed End-User(s)”) so that you may (i) access, watch and display the digital image and/or visual representation of all Artists’ Artwork(s), for your personal use, and in full screen mode on your Smart Device(s) which are linked to your personal credentials that you use to log into your account on such Smart Device(s); and (ii) have access to and use of all features available on the Kornea VAOD Mobile App Platform.
2.3. Access. You acknowledge and agree that you must provide at your own expense the equipment, Internet connection, Smart Device(s) and data service plan to access and use the Kornea VAOD Mobile App Platform. You shall be solely responsible for any and all costs you incur to access the Kornea VAOD Mobile App Platform from your Smart Device(s). Downloading, installing or using the Kornea VAOD Mobile App Platform may be prohibited or restricted by your network provider or Smart Device(s) or may not work with your network provider or Smart Device(s). Company makes no representation that the Kornea VAOD Mobile App Platform (a) can be accessed on all Smart Device(s), (b) is available in all languages, or (c) is appropriate, suitable and/or available for use in any particular location.
- Grant of License to Use the Kornea VAOD Mobile App Platform
Subject to the terms and conditions of this Agreement and particularly to the limitations and restrictions set out under Section 5 of this Agreement, Company grants you a non-exclusive, non-transferable, non-sublicensable, revocable and limited license to download, install, access and use the Kornea VAOD Mobile App Platform, free of charge, through the Apple Store or Google Play on the Smart Device(s) that you own or control and solely for your lawful, personal and non-commercial entertainment purposes.
- Sub-License & Ownership of Artist’s Artwork
- 4.1. You acknowledge and understand that Company, acts as a licensee who shall sub-license Artist’s Artwork to you in your capacity as sub-licensee. As such, Artist under the relevant license agreement with Company, has granted Company with a worldwide, perpetual license to host, list, transmit, stream, distribute, sub-license, and promote the Artist’s Artwork(s) to Freemium End-Users and Subscribed End-Users via the Kornea VAOD Mobile App Platform.
- 4.2. Freemium End-User(s). Company hereby grants Freemium End-User(s) a sub-license to browse and view under the «Feed» tab of the Kornea VAOD Mobile App Platform the digital images and/or visual representations of Artists Artworks on Freemium End-Users’ Smart Device(s), subject to the restrictions outlined in Section 2.2(a) of this Agreement.
- 4.3. Subscribed End-User(s). Company grants each Subscribed End-User a sub-license to watch and display all Artists’ Artwork(s), listed on the Kornea VAOD Mobile App Platform, on Subscribed End-User’s Smart Device(s).
- 4.4. You acknowledge, understand and agree that each Artist owns and shall at all times (while Artist’s Artwork(s) is/are listed on the Kornea VAOD Mobile App Platform and thereafter) solely retain all rights, titles and interests, including all related copyrights, moral rights, trademark rights and other intellectual property rights, statutory or otherwise, in and to such Artist’s Artwork(s).
- Limitations & Restrictions
5.1. Except as expressly set forth in this Agreement, you agree that you will not and are not permitted to:
- (a) unbundle, transfer, sublicense, or assign your rights under this Agreement to any other person or entity;
- (b) modify, adapt, copy or create derivative works of the Kornea VAOD Mobile App Platform;
- (c) reverse-engineer, decompile, decrypt, disassemble or otherwise attempt to derive the source code for the Kornea VAOD Mobile App Platform;
- (d) use the Kornea VAOD Mobile App Platform in violation of the terms of this Agreement;
- (e) infringe upon any Company’s intellectual property right or upon any third party’s intellectual property right in relation to the Kornea VAOD Mobile App Platform;
- (f) remove, delete, hide, move or alter any proprietary notices, labels, logos, icons, images, text or marks on the Kornea VAOD Mobile App Platform;
- (g) sell, rent, lease, record, license, sublicense, share, distribute, publicly communicate, transfer or exploit in any other manner the Kornea VAOD Mobile App Platform and/or the digital image and/or visual representation of Artists’ Artworks listed on the Kornea VAOD Mobile App Platform;
- (h) make copies, publish, or reproduce the Kornea VAOD Mobile App Platform and/or the digital image and/or visual representation of Artist’s Artwork listed on the Kornea VAOD Mobile App Platform;
- (i) alter or modify the Kornea VAOD Mobile App Platform and/or the digital image and/or visual representation of Artist’s Artwork;
- (j) transmit viruses, malware, malicious or destructive code, or any other prohibited items, into the Kornea VAOD Mobile App Platform. Such prohibited items include: any routine (sequence of code that is intended to be called and used repeatedly when executing a computer program), device, or other undisclosed malicious programs (e.g. time bomb, virus, software lock, drop dead device, malicious logic, worm, Trojan horse, or trap, back door or software routine) that is either (1) designed to delete, disable, deactivate, interfere with, or otherwise harm any software, program, data, device, system, or service; or (2) intended to provide unauthorized access or produce unauthorized modifications;
- (k) use any robot, spider, data scraping or extraction tool, or similar mechanism in the Kornea VAOD Mobile App Platform;
- (l) use the Kornea VAOD Mobile App Platform for phishing/scamming or other malicious purposes;
- (m) access, use, or otherwise exploit the Kornea VAOD Mobile App Platform (including, but not limited to, by benchmarking, monitoring availability, performance and functionality, or conducting competitive analysis) for the purpose of competing with or disparaging the Company or its Kornea VAOD Mobile App Platform;
- (n) access or use portions of the Kornea VAOD Mobile App Platform that Company has not authorized you to access or use; and/or
- (o) reject, avoid, elude, remove, deactivate, or evade, in any way, any security mechanism put in place by the Company to protect the Kornea VAOD Mobile App Platform.
5.2. In addition to the limitations and restrictions provided under Section 5.1 of this Agreement, Subscribed End-User(s) shall not (a) sell the digital image and/or visual representation of any Artist’s Artwork; (b) use the digital image and/or visual representation of any Artist’s Artwork in any marketing material; or (c) edit, copy or manipulate the digital image and/or visual representation of any Artist’s Artwork for financial gain.
5.3. To the extent permitted by applicable law, you agree to Company conducting audits, from time to time, to determine your compliance with the terms and conditions of this Agreement.
- Updates to Kornea VAOD Mobile App Platform & Support Services
- 6.1. Company may from time to time in its sole discretion develop and publish updates for the Kornea VAOD Mobile App Platform, which may include upgrades, bug fixes, patches and other error corrections and/or new features and functionalities (collectively “Update(s)“). Updates may also modify or delete in their entirety certain features and functionality of the Kornea VAOD Mobile App Platform. You acknowledge and agree that Company has no obligation to you whatsoever (i) regarding the provision to you of any Updates, or (ii) to continue to enable or provide you with any particular features or functionality of the Kornea VAOD Mobile App Platform.
- 6.2. Subject to your Smart Devices’ settings, when any of your Smart Devices is connected to the internet, EITHER all available Updates in relation to the Kornea VAOD Mobile App Platform will automatically download and install ORyou may receive notice of an available Update for the Kornea VAOD Mobile App Platform or be prompted by your Smart Device(s) to download and install available Updates.
- 6.3. You acknowledge and agree that the Kornea VAOD Mobile App Platform or any/some portion(s) thereof may not operate properly should you fail to download and install any Updates. You further agree that all Updates shall be deemed an integral part of the Kornea VAOD Mobile App Platform once published by Company and therefore shall be subject to all the terms and conditions contained in this Agreement.
- 6.4.4 Support Services. Company may provide you with minimal technical support services via email ([email protected]) in relation to the Kornea VAOD Mobile App Platform. However, you acknowledge and understand that Company shall have no obligation whatsoever to furnish such technical support services to you and may terminate such technical support services at any time without notice.
- 7.1. Company makes certain features and functionalities on the Kornea VAOD Mobile App Platform available to you on a recurring subscription basis. This includes a monthly or yearly paid subscription-based service to access, watch and display all Artist’s Artwork on the Subscribed End-Users Smart Device(s) (“Subscription”). Subscribed End-User’s subscription will automatically renew each month or year unless (a) the auto-renew feature available under Subscribed End-User’s account held with Apple Store or Google Play is turned off at least 24 hours before the start of the next billing cycle, or (b) Subscribed End-User cancels or terminates Subscribed End-User’s Subscription in accordance with Section 14.3 of this Agreement.
- 7.2. In order for you to subscribe to the Kornea VAOD Mobile App Platform (to become a Subscribed End-User), you will be required to create a user account and provide the necessary information (including but not limited to the provision of personal data, as well as current and valid payment method) through the Apple Store or Google Play.
- 7.3. By subscribing to the Kornea VAOD Mobile App Platform, each Subscribed End-User agrees to Company charging such Subscribed End-User’s payment method with the applicable Subscription fee for each billing period on the specific billing date. Subscribed End-Users acknowledge and understand that the Subscription fee is non-refundable.
- 7.4. Company reserves the right to modify the fees at any time in its sole discretion. All Subscription fees shall be exclusive of any applicable federal or state sales or use taxes. Subscribed End-User(s) shall be solely responsible to bear, remit, and pay any and all taxes, which shall include but not be limited to sales, use, value-added, or other similar taxes in connection with the Kornea VAOD Mobile App Platform.
- Company’s Intellectual Property Rights in the Kornea VAOD Mobile App Platform
- 8.1. All content, Artwork, trademarks, logos and names, data, software, or information contained in any materials, or documents used by Company in relation to the Kornea VAOD Mobile App Platform, including, but not limited to, any and all copyrighted works, databases, text, tools, software, technology, algorithms, graphics, icons, designs, logos, hyperlinks, domain names, codes, and agreements (“Materials”), are the sole and exclusive property of or are licensed (e.g. by Artists) to Company and as such all updates and modifications to the Kornea VAOD Mobile App Platform will vest in Company or Company’s licensors. You may not reproduce, distribute or copy the Materials by any means, whether electronically or not, without Company’s prior written permission.
- 8.2. Any and all intellectual property rights in the Materials, Kornea VAOD Mobile App Platform, including all patents, rights in inventions, rights in designs, trademarks, trade and business names and all associated goodwill, rights to sue for passing off or for unlawful competition, copyright, moral rights and related rights, rights in databases, topography rights, domain names, rights in information (including know how and trade secrets) and all other similar or equivalent rights existing in the Materials and Kornea VAOD Mobile App Platform, now or in the future in any part of the world, in each case whether registered or unregistered and including all applications for, and renewals or extensions of, such rights for their full term (“Company’s Intellectual Property Right(s)”), vests solely and exclusively in Company, its group affiliates (if any), licensors (e.g. by Artists) or vendors, as the case may be. All rights not expressly granted by Company to you are reserved by Company s. Save as expressly set out under this Agreement, you shall not acquire any right, title or interest in Company’ Intellectual Property Rights.
- Confidential Information
- 9.1. You acknowledge and agree that the Kornea VAOD Mobile App Platform incorporates confidential and proprietary information developed, acquired or licensed by Company including, but not limited to, technical and non-technical data, formulas, patterns, compilations, source codes, digital files, features, Updates, releases, enhancements, bug fixes, workarounds, patches, devices, methods, techniques, drawings and processes in connection with the Kornea VAOD Mobile App Platform, which constitutes the valuable intellectual property of Company and its licensors (“Confidential Information”).
- 9.2. You agree that all Confidential Information provided to you by Company under this Agreement is to be held by you in confidence, and shall not be disclosed except as permitted by the terms of this Agreement.
- Privacy & Data Protection
- 10.3. Personal information, usernames, passwords and prompts exchanged through the Kornea VAOD Mobile App Platform are protected by advanced encryption techniques. However, you acknowledge, understand and agree that keeping your personal information, username(s) and password(s) secure from disclosure requires your responsible behavior in protecting such data. As such, you shall assume the entire responsibility at all times for the supervision, management, control and confidentiality of your data and Smart Device(s) and assume the entire risk for the fraudulent or unauthorized use of your data and/or Smart Device(s). You understand that failure to protect your data and/or Smart Device(s) may allow an unauthorized third party to access the Kornea VAOD Mobile App Platform.
- Limitation of Liability
- 11.1. IN NO EVENT, WHETHER IN TORT, CONTRACT, OR OTHERWISE, SHALL COMPANY OR ITS LICENSORS, PARTNERS, OR VENDORS BE LIABLE TO YOU OR ANY THIRD PARTIES UNDER THIS Agreement FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, COSTS, LOSSES OR EXPENSE, (INCLUDING BUT NOT LIMITED TO LOST PROFITS, LOSS OR INTERRUPTION OF USE, LOSS OF DATA, LOSS OF GOODWILL, WORK STOPPAGE, DAMAGE TO NETWORKS, EQUIPMENT, OR HARDWARE, OR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR TECHNOLOGY) ARISING FROM OR IN ANY WAY CONNECTED WITH (I) THIS AGREEMENT; AND/OR (II) THE KORNEA VAOD MOBILE APP PLATFORM.
- 11.2. REGARDLESS OF WHETHER THE CLAIM FOR SUCH DAMAGES IS BASED IN CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, IN NO EVENT SHALL COMPANY’S AGGREGATE LIABILITY TO YOU UNDER THIS AGREEMENT EXCEED FIFTY PERCENT (50%) OF THE ORIGINAL PURCHASE PRICE PAID BY SUBSCRIBED END-USER FOR THE SUBSCRIPTION FEE, OR OTHER AMOUNTS PAID BY YOU, IN THE PRECEDING THREE (3) MONTHS PRIOR TO THE COMMENCEMENT OF A CLAIM, EVEN IF COMPANY HAS BEEN ADVISED OF SUCH DAMAGES. THE FOREGOING LIMITATIONS SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
- 11.3. YOU ACKNOWLEDGE THAT EXCEPT AS SET FORTH HEREIN, NO PROMISE, REPRESENTATION, WARRANTY OR UNDERTAKING HAS BEEN MADE BY COMPANY TO YOU OR TO ANY PERSON ON YOUR BEHALF AS TO THE PROFITABILITY OR ANY OTHER CONSEQUENCES OR BENEFITS TO BE OBTAINED FROM THE USE OF THE KORNEA VAOD MOBILE APP PLATFORM. YOU HAVE RELIED SOLELY UPON YOUR OWN SKILL AND JUDGMENT IN ACCESSING AND USING THE KORNEA VAOD MOBILE APP PLATFORM.
- 12.1. You agree to indemnify and hold Company harmless from and against any liability, demand, damages, cost, or expense arising from any third-party claim based on: (i) your violation of the terms of this Agreement; (ii) your use or misuse of the the Kornea VAOD Mobile App Platform; (iii) your access to the Kornea VAOD Mobile App Platform; and/or (iv) your infringement of Company’ Intellectual Property Rights.
- 12.2. Company shall indemnify and hold you harmless from and against any liability or expense arising from a third-party claim(i) resulting from any breach by Company of its obligations under this Agreement; and/or (ii) arising from the Kornea VAOD Mobile App Platform violating or infringing upon any applicable law or any right of any third party (including any copyright, trademark right, moral right, patent right and other intellectual property rights, statutory or otherwise).
- 12.3. In the event of a claim subject to indemnification hereunder, the indemnified Party shall: (i) promptly notify the indemnifying Party of the claim, (ii) provide the indemnifying Party with reasonable cooperation and assistance, at the indemnifying Party’s expense, to defend such claim; and (iii) allow the indemnifying Party the opportunity to assume the control of the defense and settlement of such claim. The indemnified Party shall be entitled to participate in the defense of such claim and to employ counsel at its own expense to assist in the handling of such claim. The indemnifying Party must obtain the prior written approval from a duly authorized signatory of the indemnified Party prior to entering into any settlement affecting the indemnified Party’s rights.
- Disclaimer of Warranties
- 13.1. Your use of the Kornea VAOD Mobile App Platform is at your sole risk. The Kornea VAOD Mobile App Platform is provided and licensed “as is” and “as available” basis with all faults, defects, bugs, and errors.
- 13.2. COMPANY EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WITH REGARD TO YOUR USE OF THE KORNEA VAOD MOBILE APP PLATFORM WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT QUIET ENJOYMENT OR INTEGRATION. SUCH EXCLUSIONS OF IMPLIED WARRANTIES APPLY WITHIN THE EXTENT PERMITTED BY LAW.
- 13.3. COMPANY AND/OR ITS RESPECTIVE AFFILIATES (IF ANY), LICENSORS AND VENDORS MAKE NO REPRESENTATIONS ABOUT THE SUITABILITY, ACCURACY, RELIABILITY OR COMPLETENESS OF (i) THE INFORMATION CONTAINED ON THE KORNEA VAOD MOBILE APP PLATFORM, AND (ii) RELATED GRAPHICS PUBLISHED ON THE KORNEA VAOD MOBILE APP PLATFORM FOR ANY PURPOSE. COMPANY AND/OR ITS RESPECTIVE AFFILIATES (IF ANY) HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS WITH REGARD TO THE INFORMATION CONTAINED ON THE KORNEA VAOD MOBILE APP PLATFORM, INCLUDING ALL WARRANTIES AND CONDITIONS OF MERCHANTABILITY, WHETHER EXPRESS, IMPLIED OR STATUTORY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
- 13.4. YOU ACKNOWLEDGE THAT THE INFORMATION AND RELATED GRAPHICS PUBLISHED ON THE KORNEA VAOD MOBILE APP PLATFORM COULD INCLUDE TECHNICAL INACCURACIES OR TYPOGRAPHICAL ERRORS AND CHANGES.
- 13.5. NEITHER COMPANY NOR ITS AFFILIATES (IF ANY), LICENSORS AND VENDORS MAKE ANY REPRESENTATION, WARRANTY OR GUARANTEE THAT THE INFORMATION THAT MAY BE AVAILABLE ON THE KORNEA VAOD MOBILE APP PLATFORM IS FREE OF INFECTION FROM ANY VIRUSES OR OTHER CODE OR COMPUTER PROGRAMMING ROUTINES THAT CONTAIN CONTAMINATING OR DESTRUCTIVE ELEMENTS OR THAT ARE INTENDED TO DAMAGE, SURREPTITIOUSLY INTERCEPT OR EXPROPRIATE YOUR COMPUTER SYSTEM, DATA OR PERSONAL INFORMATION.
- 13.6. COMPANY MAKES NO WARRANTY THAT (I) THE KORNEA VAOD MOBILE APP PLATFORM WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, OR BE COMPATIBLE WITH YOUR SMART DEVICE(S) (II) THAT YOUR ACCESS TO OR USE OF THE KORNEA VAOD MOBILE APP PLATFORM WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR FREE, (III) THAT ANY DEFECTS IN THE KORNEA VAOD MOBILE APP PLATFORM WILL BE CORRECTED, OR (IV) THAT THE KORNEA VAOD MOBILE APP PLATFORM OR ANY SERVER THROUGH WHICH YOU ACCESS THE KORNEA VAOD MOBILE APP PLATFORM S ARE FREE FROM VIRUSES OR OTHER HARMFUL COMPONENTS.
- 13.7. FOR THE AVOIDANCE OF DOUBT, ANY AND ALL RISK ARISING FROM YOUR USE OR PERFORMANCE OF THE KORNEA VAOD MOBILE APP PLATFORM SHALL REMAIN SOLELY WITH YOU.
- 13.8. YOU ACKNOWLEDGE AND UNDERSTAND THAT SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF IMPLIED WARRANTIES. IN SUCH JURISDICTIONS, THE FOREGOING DISCLAIMERS MAY NOT APPLY TO YOU INSOFAR AS THEY RELATE TO IMPLIED WARRANTIES.
- Term, Termination and Cancellation
- 14.1. The term of this Agreement shall come into force when you download/install the Kornea VAOD Mobile App Platform and will remain in effect until this Agreement is terminated by you or Company as set forth under this Section 13.
- 14.2. Freemium End-User(s) may terminate this Agreement at any time by deleting the Kornea VAOD Mobile App Platform from their Smart Device(s).
- 14.3. Subscribed End-Users:
- 14.4. may cancel their Subscription and unsubscribe from the Kornea VAOD Mobile App Platform via the Apple Store or Google Play at any time. As such, and for the avoidance of doubt, Subscribed End-Users will not have access to the functionalities of the Kornea VAOD Mobile App Platform which is reserved for and made available only to Subscribed End-Users, but will continue to have the same access as Freemium End-Users. Subscribed End-Users must cancel their Subscription via their Subscription account settings held with the Apple Store or Google Play prior to the commencement of the next billing cycle; AND
- 14.5. acknowledge and understand that if their account, held with Apple Store or Google play, is suspended or terminated, the Subscribed End-User will automatically lose access to the Kornea VAOD Mobile App Platform.
- 14.6. Company reserves the right to suspend or terminate your access to the Kornea VAOD Mobile App Platform for any reason or no reason at all, at any time, with or without notice and shall have no liability to you in any manner whatsoever.
- 14.7. Company may terminate any Subscribed End-User’s access to and use of the Kornea VAOD Mobile App Platform if such Subscribed End-User materially breaches any provision of this Agreement. A material breach shall include but not be limited to Subscribed End-User’s failure to timely pay any applicable Subscription fee on its due date.
- 14.8. Company may terminate your access to and use of the Kornea VAOD Mobile App Platform if Company suspects you of partaking in any illegal activity, or Company reasonably believes that you have violated the terms of this Agreement.
- 14.9. Upon either Party’s termination of this Agreement, all licenses and rights granted to you will immediately terminate; and you shall cease all use of the Kornea VAOD Mobile App Platform.
- Modification of Agreement
Company reserves the right, at any time and in its sole discretion, to modify or replace this Agreement. You shall be solely responsible for checking the terms of this Agreement periodically, to stay abreast of any changes to the Agreement. If you object to any such changes, your sole recourse shall be to cease using the Kornea VAOD Mobile App Platform. Your continued use/access to the Kornea VAOD Mobile App Platform following the posting of any changes to this Agreement shall indicate your acknowledgement of such changes and satisfaction with the Kornea VAOD Mobile App Platform as so modified and therefore you shall be subject to the newly modified terms.
- General Provisions
16.1. Non-Exclusivity. The Parties’ respective obligations under this Agreement are non-exclusive, and nothing herein is intended to restrict you from accessing or using any other third party’s products or services, even if such products or services are similar to the services provided by Company on the Kornea VAOD Mobile App Nothing herein is intended to limit Company’s right to provide access and use of the Kornea VAOD Mobile App Platform to other users.
16.2. Notices. Except as otherwise provided under this Agreement, any notice required or permitted to be given will be effective only if it is in writing and sent by certified mail, registered mail, courier or to [email protected].
16.3. Force Majeure. A Force Majeure event means any event beyond a Party’s reasonable control that, by its nature, could not have been foreseen or, if it could have been foreseen, was unavoidable, including strikes, lock-outs or other industrial disputes (whether involving its own workforce or a third party’s), acts of God, war, riot, embargoes, acts of civil or military authorities, acts of terrorism or sabotage, shortage of supply or delay in delivery by our vendors, fire, flood, earthquake, accident, radiation, inability to secure transportation, failure of communications or energy sources, malicious damage, breakdown of plant or machinery, or default of suppliers or sub-contractors. Company shall not be liable for delays or failures to perform any of its obligations under this Agreement to the extent caused by a Force Majeure Event.
16.4. No Waiver. Each Party agrees that any delay or omission on the part of the other Party to exercise any right, power or remedy under this Agreement will not automatically operate as a waiver of such right, power or remedy or any other right, power or remedy and no waiver will be effective unless it is in writing and signed by the waiving Party. Further the waiver or the single or partial exercise of any right, power or remedy by either Party hereunder on one occasion will not be construed as a bar to a waiver of any successive or other right, power or remedy on any other occasion.
16.5. In the event that any provision of this Agreement shall be unenforceable or invalid under any applicable law or be so held by applicable court decision, such unenforceability or invalidity shall not render this remaining provisions of the Agreement unenforceable or invalid, and, in such event, such remaining provisions shall be changed and interpreted so as to best accomplish the objectives of such unenforceable or invalid provision within the limits of applicable law or applicable court decision.
16.6. This Agreement shall not be assigned by either Party without the prior written permission of the other. However, Company may assign its rights and obligations hereunder without your prior written permission to any entity acquiring all, or substantially all, of the Company’s assets or shares. Notwithstanding the above, this Agreement shall be binding upon any permitted successors and assigns of either Party.
16.7. Entire Agreement. This Agreement contains the full and entire agreement between the Parties with respect to the subject matter hereof. This Agreement supersedes all prior negotiations, representations and proposals, written or otherwise, relating to its subject matter.
16.8. Dispute Resolution. If any dispute or difference shall arise between the Parties as to the meaning or application of this Agreement, the rights or liabilities of the Parties or otherwise in relation to this Agreement, then (without prejudice to any other express or implied rights or powers) the dispute or difference (“Dispute“) shall be determined as follows:
- (a) a Party must not commence arbitration or court proceedings (except proceedings seeking interlocutory relief) relating to a Dispute arising under this Agreement unless it has complied with this Section 16.8.
- (b) A Party claiming that a Dispute has arisen under this Agreement must give the other Party written notice of the particulars of the Dispute.
- (c) In the event of a Dispute, difference or claim between the Parties hereto, arising out of the use of the Kornea VAOD Mobile App Platform; or in any way relating to this Agreement, or any term, condition or provision herein mentioned or the construction or interpretation thereof or otherwise in relation hereto, the Parties shall first endeavor to settle such difference, dispute, claim or question by mutual discussion, failing which the same shall be referred to the American Arbitration Association in California (USA), or any statutory modification or re-enactment thereof for the time being in force.
16.9. Governing Law & Jurisdiction. In the event of any disagreement between the Parties with respect to any aspect of this Agreement, the Parties agree to discuss in good faith to reach an amicable resolution prior to starting any litigation/legal proceedings against each other.
This Agreement shall be construed and enforced in accordance with the laws of the state of California (USA).
The Courts located within the San Mateo County, California (USA) shall have exclusive jurisdiction to settle any disputes which may arise out of or in connection with this Agreement. Both Parties hereby submit to the jurisdiction of said Courts for purposes of any such suit or proceeding and waive any claim that any such forum is an inconvenient forum.
This Agreement was last modified on April 23rd, 2021.