END USER LICENSE AGREEMENT FOR EVERNYM MOBILE APPLICATION
This End User License Agreement for Evernym Mobile Application (this “Agreement”) is a legal agreement between you (“You” or the “User”) and Evernym, Inc. (“Evernym”, and together with User, the “Parties”, and each, a “Party”) related to your use of the Evernym mobile application associated with this Agreement (the “Application”).
By clicking “Accept” or downloading, accessing and/or using the Application, you agree to be bound by this Agreement. If you do not agree to be bound by this Agreement, do not download, access and/or use the Application. If the person accepting this Agreement is doing so on behalf of a User which is a corporation or other form of business entity, the person accepting this Agreement confirms that they are authorized to enter into this Agreement on the User’s behalf and to bind the User to the terms and conditions of this agreement. evernym reserves the right, at its sole discretion, to modify or replace this agreement at any time. you shall be responsible for reviewing any such modifications to the agreement. use of the application by you aFter any modification or replacement of this agreement constitutes your acceptance of such modifications or replacement.
1. LICENSE AND USE RESTRICTIONS; USER REQUIREMENTS. Subject to the terms and conditions of this Agreement and the payment by User of any applicable fees, Evernym hereby grants to the User a limited, nonexclusive, nontransferable, non-assignable, non-sublicensable, revocable, royalty free license (the “License”) to use the Application for personal, non-commercial purposes on any User mobile phone and/or other IT hardware device (“Device”) that User owns or controls which uses an Apple Inc. (“Apple”) provided operating system, and as such, Device is permitted to be used by the rules or terms of service governing use set forth by Apple. Evernym, not Apple, shall be solely responsible for the Application. For clarity, the License does not include any right to: make and/or distribute copies of the Application; use the Application for the benefit of any third party; or monetize the use of, or otherwise commercially exploit, the Application. Without limiting the generality of the foregoing, any and all access to the Application by automated inquiry devices, robots or repetitive data gathering and extraction tools, routines, scripts or other mechanisms with similar functionality is expressly prohibited.
User agrees that User will not use the Application to: (i) violate any law or regulation; (ii) associate, input or upload to or through any Application any virus, Trojan horse, worm, time bomb or other computer programming routine that may damage, interfere with, intercept or expropriate the Application and/or any other Evernym software, system, technology or other intellectual property; and/or (iii) infringe any intellectual property right or any other right of any third party. User represents and warrants that: (i) User is not located in a country that is subject to a U.S. Government embargo, or that that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) User is not listed on any U.S. Government list of prohibited or restricted parties.
Sophistication and Risk of Cryptographic Systems
By utilizing the Application, User represents and warrants that User understands the inherent risks associated with cryptographic systems and that User has an understanding of the usage and intricacies of key cryptography, native cryptographic tokens, and blockchain-based software systems.
Risk of Weaknesses or Exploits in the Field of Cryptography
User acknowledges and agrees that cryptography is a progressing ﬁeld. Advances in code cracking or technical advances such as the development of quantum computers may present risks to cryptographic systems and the Application, which could result in the theft or loss of your cryptographic tokens or property. To the extent possible, Evernym intends to update the Application to account for any advances in cryptography and to incorporate additional security measures but does not guarantee or otherwise represent and/or warrant security of the Application. By using the Application, User acknowledges these inherent risks.
User acknowledges and agrees that data that may be involved in connection with any service accessible through use of the Application is stored on User’s Device.
User further acknowledges and agrees that User is solely responsible for securely maintaining:
User’s tokens (including cryptographic tokens);
username, password and othER IDENTITY-RELATED credentials;
the security of User’s Device; and
separate backup copies of any data stored on its Device including without limitation encrypted data that may be involved in connection with any service accessible through use of the Application.
2. TERM AND TERMINATION. This Agreement shall be effective upon User’s acceptance hereof by downloading, accessing, using and/or clicking “Accept” and shall remain in full force and effect thereafter until terminated as provided herein (the “Term”). User may terminate this Agreement for convenience at any time by deleting the Application from all Devices that User owns or controls. Evernym may terminate this Agreement for convenience at any time with or without notice to User. Notwithstanding the foregoing, with respect to any User, this Agreement shall terminate without any further action needing to be taken by Evernym upon a material breach by such User of this Agreement. Upon the termination of this Agreement for any reason whatsoever all licenses granted hereunder shall immediately terminate and the affected User shall immediately cease and desist from all access to and use of the Application and shall immediately purge from such User’s mobile devices all copies of the Application. The terms set forth in the following paragraphs of this Agreement shall survive the termination of this Agreement for any reason: “INTELLECTUAL PROPERTY”; “DISCLAIMER OF WARRANTIES”; “LIMITATION OF LIABILITY”; “CHOICE OF LAW; VENUE”; “NO CLASS ACTIONS; JURY TRIAL WAIVER”, “INDEMNITY AND RELEASE”; “ADDITIONAL TERMS FOR USERS ON APPLE PLATFORM”; and “GENERAL.”
3. SUSPENSION AND TERMINATION OF RIGHTS
Evernym may in Evernym’s sole discretion suspend or terminate User’s rights in and to the Application accessible through the Application including, without limitation, if a newer version of the Application is available; to improve the Application or any functionality therein; to add or remove access to any service accessible through the Application; to improve ease of use for the User or Evernym; to correct an error or bug; to prevent or discontinue harmful, improper or unauthorized access to the Application or a service therein; to comply with an Apple request or any governmental request; and/or to comply with a law, regulation, statute and/or judicial order.
4. INTELLECTUAL PROPERTY
A. User acknowledges and agrees that the Application contains proprietary and confidential information that is protected by applicable copyright, trademark, trade secret and other intellectual property laws including without limitation the software and other code contained in the Application. The trademarks, service marks and logos used and displayed on this Application are registered and unregistered trademarks of Evernym and others. Nothing in this Application should be construed as granting, by implication, estoppel or otherwise, any license or right to use any trademark displayed in the Application without the written permission of the trademark owner. Evernym and its licensors reserve the right to enforce its and their intellectual property rights to the fullest extent of the law. All images on the Application are legally protected and are not to be used, reproduced, modified or distributed without written consent of Evernym or its licensors.
B. User and Evernym acknowledge that, in the event of any third-party claim that User’s possession and use of the Application infringes that third party’s intellectual property rights, Evernym, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
C. The Application and all improvements, additions, derivatives and other modifications thereto and any information pertaining to the foregoing are and shall remain the exclusive property of Evernym and/or its licensors and shall be considered and treated by Licensee as the proprietary information of Evernym (the “Evernym Proprietary Information”). User acknowledges and agrees that Evernym is the owner of the Evernym Proprietary Information and User agrees that User has no right, title or interest in any of the Evernym Proprietary Information except the right to use the Application in accordance with and subject to this Agreement. User agrees not to, directly or indirectly, disclose, sell or otherwise transfer or exploit the Evernym Proprietary Information, or any portion thereof, to any other person or entity or allow any other person or entity to use the Evernym Proprietary Information, or any portion thereof, without the prior written consent of Evernym, which may be withheld in Evernym’s sole discretion. User further agrees not to challenge or assist with or participate in any challenge, directly or indirectly, of Evernym’s ownership of the Evernym Proprietary Information or any right, title or interest therein or any portion thereof.
D. User acknowledges and agrees that Evernym is the owner of or has rights to the trade names, trademarks and service marks “Evernym”, “connect.me” and such other names, marks, and logos and other intellectual property Evernym used, uses or may in the future use in or related to its business, products or services, including, without limitation, all improvements, additions, derivatives and other modifications thereof (the “Evernym Marks”). User agrees that User has no right, title or interest in any of the Evernym Marks. User further agrees not to challenge or assist with or participate in any challenge, directly or indirectly, of Evernym’s ownership of or right to the Evernym Marks and the Proprietary Information or any right, title or interest therein or any portion thereof.
E. User agrees to not remove, obscure or alter any copyright, trademark or other proprietary rights notice affixed to, contained within or accessed in conjunction with or through the Application. The User further agrees not to modify, adapt, translate, prepare derivative works from, transmit, decompile, reverse engineer, disassemble or otherwise attempt to derive source code from any portion of the Application.
F. User agrees that Evernym and/or its Representatives may (a) collect and use technical data and related information including, without limitation, technical information about your Device (including, without limitation, system and application software, and peripherals) that is gathered periodically to facilitate the provision of software updates, product support and other services to you (if any) related to the Application and (b) use this information, as long as it is in a form that does not personally identify you, to evaluate or improve the Application, its products and/or to provide services or technologies.
5. SUPPORT AND MAINTENANCE. Evernym is not, and User acknowledges that Apple is not, obligated to provide any support or maintenance services to User related to the Application. Any complaints related to the Application can be addressed to our Customer Service Department per the contact information provided below.
6. EXPORT CONTROL LAWS. User agrees to comply with all United States and all other applicable laws, rules, and regulations relating to the export, re-export, or transshipment of the Application.
8. DISCLAIMER OF WARRANTIES. THE USER HEREBY ACKNOWLEDGES AND AGREES THAT THE USE OF THE APPLICATION IS ENTIRELY AT THE USER’S OWN RISK. THE APPLICATION IS PROVIDED FREE OF CHARGE ON AN “AS IS” BASIS WITHOUT ANY WARRANTIES OF ANY KIND. ALL EXPRESS, IMPLIED AND STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, RELIABILITY, ACCESSIBILITY AND NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OR OTHER PROPRIETARY RIGHTS (“ALL WARRANTIES”), ARE EXPRESSLY DISCLAIMED BY EVERNYM TO THE FULLEST EXTENT PERMITTED BY LAW. EVERNYM MAKES NO WARRANTY WITH RESPECT TO THE SECURITY, TIMELINESS, CONTENT OR PERFORMANCE OF THE APPLICATION. EVERNYM FURTHER DISCLAIMS ALL WARRANTIES AND ANY RESPONSIBILITY AND/OR OTHER OBLIGATION FOR STORING, MAINTAINING AND/OR OTHERWISE MANAGING ANY User tokens, username and/OR password credentials; the security of User’s Device; and ANY data stored on USER’S Device including without limitation encrypted data that may be involved in connection with any service accessible through use of the Application. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTY, SO THE LIMITATIONS AND EXCLUSIONS IN THIS SECTION MAY NOT APPLY TO EVERY USER. THIS AGREEMENT GIVES USER SPECIFIC LEGAL RIGHTS. USER MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM JURISDICTION TO JURISDICTION. USER AGREES AND ACKNOWLEDGES THAT THE LIMITATIONS AND EXCLUSIONS OF LIABILITY AND WARRANTY PROVIDED IN THIS AGREEMENT ARE FAIR AND REASONABLE. IF USER IS AN INDIVIDUAL ACTING AS A CONSUMER, USER MAY HAVE CERTAIN STATUTORY RIGHTS WHICH MAY NOT BE WAIVED, AND SUCH STATUTORY RIGHTS ARE NOT AFFECTED BY THE FOREGOING.
9. LIMITATION OF LIABILITY. NEITHER EVERNYM NOR ANY OF ITS REPRESENTATIVES NOR APPLE SHALL BE LIABLE TO USER AND/OR ANY THIRD PARTY, TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, EXEMPLARY, PUNITIVE, MULTIPLE, INCIDENTAL, AND/OR SPECIAL DAMAGES, LOST PROFITS, LOSS OF DATA OR DATA USE, LOST SAVINGS, OR COSTS OF PROCURING SUBSTITUTE GOODS ARISING OUT OF THIS AGREEMENT, DUE TO BREACH OF CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE), USE OF THE APPLICATION OR OTHERWISE, EVEN IF EVERNYM, ANY OF ITS REPRESENTATIVES OR APPLE HAVE BEEN ADVISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING. THE ABOVE LIMITATIONS AND EXCLUSIONS OF LIABILITY SHALL BE APPLICABLE ONLY TO THE EXTENT PERMITTED BY LAW IN THE EVENT OF THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF EVERNYM OR IN THE EVENT OF PERSONAL INJURY OR DEATH OR IN RESPECT OF ANY OTHER LIABILITY THAT MAY NOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW. IF USER IS AN INDIVIDUAL ACTING AS A CONSUMER, USER MAY HAVE CERTAIN STATUTORY RIGHTS WHICH MAY NOT BE WAIVED, AND SUCH STATUTORY RIGHTS ARE NOT AFFECTED BY THE FOREGOING. In no event shall Evernym and/or any of its Representatives’ total cumulative liability to User for any and all damages exceed the amount of US$50.00 (or its equivalent).
10. CHOICE OF LAW; VENUE. This Agreement and the relationship between User and Evernym will be governed by the laws of the State of Utah, excluding its conflicts of law provisions. User irrevocably agrees to submit to the personal and exclusive jurisdiction of the courts located in Salt Lake, Utah to resolve any dispute or claim arising from this Agreement. As to intellectual property rights, User specifically agrees that Evernym may file an action in any jurisdiction to protect or enforce its rights. The United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement.
11. NO CLASS ACTIONS; JURY TRIAL WAIVER.
USER AND EVERNYM AGREE THAT ALL CLAIMS BETWEEN US WILL BE RESOLVED IN AN INDIVIDUAL ARBITRATION. WE BOTH AGREE THAT THERE WILL BE NO CLASS, REPRESENTATIVE OR CONSOLIDATED ACTIONS IN ARBITRATION. In addition, neither User, nor Evernym may participate in a class or representative action in court as a class member if the claims asserted in the arbitration would fall within the scope of this Agreement or the arbitration agreement paragraph if asserted directly by you or Evernym. To be clear, the User and Evernym both waive any right to participate in any class action involving disputes between us.
You and Evernym expressly and knowingly WAIVE THE RIGHT TO TRIAL BY JURY.
User agrees that any claim and/or cause of action related to this Agreement or the use of the Software must be filed within one (1) year after the cause of action arose or be forever barred.
12. INDEMNITY AND RELEASE. When the User downloads, accesses, and/or uses the Application, the User shall indemnify, defend and hold harmless Evernym and its owners, shareholders, subsidiaries, affiliates, officers, employees, partners, successors, assigns, licensors, advisors, contractors and other representatives (“Representatives”) from any and all claims and expenses including, without limitation, attorney’s fees arising from the use of the Application. By using the Application, the User is agreeing to release Evernym and its Representatives from any and all claims, fees, costs, damages and obligations of any kind whatsoever that the User may have against any of them directly or indirectly arising out of or in any way related to such claims and/or obligations and/or to any disputes regarding the Application. YOU HEREBY AGREE TO WAIVE ALL LAWS THAT MAY LIMIT SUCH RELEASES. FOR EXAMPLE, YOU SPECIFICALLY AGREE TO WAIVE THE PROVISIONS OF CALIFORNIA CIVIL CODE SECTION 1542, WHICH PROVIDES:
“A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IS KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.”
13. ADDITIONAL TERMS FOR USERS ON APPLE PLATFORM. The following terms apply only to Users of Apple Inc. platforms. In the event of any conflict between this Section and the rest of the Agreement, this Section will control only for Users of Apple Inc. platforms.
B. User acknowledges and agrees that Apple and Apple’s subsidiaries are third party beneficiaries of this Agreement, and, on User’s 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 User as a third-party beneficiary thereof. Subject to the rights of Apple to enforce this Agreement as a third-party beneficiary, a person who is not a party to this Agreement has no right under any applicable law to enforce any term of this Agreement. Notwithstanding that any term of this Agreement may be or become enforceable by Apple or any other third party, the terms of this Agreement or any of them may be varied, amended or modified or this Agreement may be suspended, cancelled or terminated by agreement in a writing signed by a duly authorized representative of Evernym or this Agreement may be rescinded in each case without the consent of Apple or such other third party.
C. USER HEREBY REPRESENTS AND WARRANTS THAT (I) HE/SHE IS 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) HE/SHE IS NOT LISTED ON ANY U.S. GOVERNMENT LIST OF PROHIBITED OR RESTRICTED PARTIES.
D. USER ACKNOWLEDGES APPLE HAS NO WARRANTY OBLIGATION WHATSOEVER WITH RESPECT TO THE APPLICATION.
E. USER ACKNOWLEDGES THAT TO THE EXTENT PERMITTED BY LAW, APPLE WILL NOT BE LIABLE TO USER FOR ANY CLAIMS, LOSSES, LIABILITIES, DAMAGES, COSTS OR EXPENSES ATTRIBUTABLE TO ANY FAILURE OF THE APPLICATION.
F. AS BETWEEN EVERNYM AND APPLE, BUT SUBJECT TO THE TERMS, CONDITIONS AND LIMITATIONS OF THIS AGREEMENT, APPLE WILL NOT BE RESPONSIBLE TO USER FOR ANY CLAIM RELATING TO THE APPLICATION AND/OR USER’S POSSESSION AND/OR USE OF THE APPLICATION INCLUDING, WITHOUT LIMITATION, PRODUCT LIABILITY CLAIMS; ANY CLAIM THAT THE APPLICATION FAILS TO CONFORM TO ANY APPLICABLE LEGAL AND/OR REGULATORY REQUIREMENT; AND CLAIMS ARISING UNDER CONSUMER PROTECTION AND/OR SIMILAR LEGISLATION.
14. OPEN SOURCE LICENSES. User acknowledges that a certain component of the Application may be covered by so-called "open source" software licenses ("OSS Licenses"), which means any software licenses approved as an open source license by the Open Source Initiative or any substantially similar licenses, including without any limitation any license that, as a condition of distribution of the software licensed under such license, requires that the distributor make the software available in source code format ("Open Source Component"). In respect of the Open Source Component, the following stipulations shall apply: i) to the extent expressly required by the OSS license, the terms of relevant OSS license (including in particular the scope of license as well as disclaimers of warranties and liabilities) shall apply to the respective Open Source Components in lieu of this Agreement and ii) to the extent the applicable terms of OSS License prohibit any of the restrictions in this Agreement such restrictions will not apply to respective Open Source Component. Such OSS License relating to the Open Source Component is located at the installation directory of the Application or in such other place as indicated in the Application, when so required by the terms of OSS Licenses.
The Open Source Component is Libindy, Copyright 2017 Sovrin Foundation, and is licensed under the Apache License, Version 2.0 (the "Apache 2.0 License").
You may obtain a copy of the Apache 2.0 License at: http://www.apache.org/licenses/LICENSE-2.0.
You may not use the Application except in compliance with the Apache 2.0 License.
Unless required by applicable law or agreed to in writing, software distributed under the Apache 2.0 License is distributed on an "AS IS" BASIS, WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, either express or implied.
See the Apache 2.0 License for the specific provisions governing permissions and limitations under the Apache 2.0 License.
15. GENERAL. User may not assign or transfer any of your rights or obligations under this Agreement to a third party without the prior written consent of Evernym. Evernym may freely assign this Agreement. Any waiver of any provision of this Agreement will be effective only if in writing and signed by or on behalf of Evernym. This Agreement constitutes the entire and only agreement between the Parties in relation to its subject matter and replaces and supersedes all prior or simultaneous agreements, undertakings, arrangements, understandings and/or statements of any nature made by the Parties or any of them, whether oral or written (and, if written, whether or not in draft form) with respect to such subject matter. Each of the Parties acknowledge that they are not relying on any representations, warranties and/or any other statements given or made by any of them in relation to the subject matter of this Agreement and that neither Party nor any of their Representatives shall have any right or remedy with respect to any such subject matter otherwise than under this Agreement. No modification or amendment of this Agreement shall be effective unless it is in writing and signed by a duly authorized representative of Evernym. If a court of competent jurisdiction finds any provision or portion of this Agreement to be unenforceable, the remainder of this Agreement will continue in full force and effect.
16. RECEIVING AN SMS TEXT LINK to install Connect.Me. If you have agreed to install Connect.Me through a 3rd party website or service, you may recieve a short code SMS text message from Evernym, Inc containing a link to install our Connect.Me application. If you have questions or require support regarding this single SMS message, contact email@example.com. Though Evernym only sends a single text message to users after a 3rd party has obtained their consent, You may reply STOP to not receive further SMS text messages from Evernym, Inc. You may reply HELP to the text message to receive a support email address to contact regarding the text message. Mobile carriers are not responsible for delayed or lost messages. Message and data rates may apply.
17. CONTACTING EVERNYM. If User has any questions, complaints and/or claims with respect to the Application, please contact Evernym at:
Attention: Customer Service Department
13867 S. Bangerter Parkway
Draper, UT 84020