Mobile App License Agreement
Please carefully read this Mobile App License Agreement (“Agreement”). This Agreement establishes the terms and conditions under which Common Areas, LLC (“Common Areas”) will permit the download, installation, and operation of the Software you are attempting to download or install. This Agreement forms a binding legal agreement between, on one hand, Common Areas and, on the other hand, you and your employer and/or any other entity or organization that you are acting on behalf of or otherwise acting as an agent of (collectively, “You” or “Your”). Common Areas is willing to allow you to download, install, and operate the Software (as defined below), provided that you accept and agree to be bound by this Agreement.
By clicking “I agree”, or by downloading, installing, or operating the Software, You acknowledge that You have read, understand, and agree to be bound by the terms of this Agreement. If you are entering into this Agreement on behalf of your employer or another entity, by clicking “I agree” you represent that you have authority to bind that entity. If you do not have such authority or you do not agree to the terms of this Agreement, do not click “I agree” or download, install, or operate the software.
THIS AGREEMENT CONTAINS PROVISIONS, WITH LIMITED EXCEPTIONS, WHICH REQUIRE DISPUTES BETWEEN YOU AND common areas TO BE SUBMITTED TO BINDING AND FINAL ARBITRATION. PLEASE SEE SECTION 22 FOR MORE INFORMATION REGARDING THIS ARBITRATION AGREEMENT.
- Additional Agreements. This Agreement is in addition to any other agreement you enter into with Common Areas (“Additional Agreements”). Your use of the Software is subject to compliance with both this Agreement and any Additional Agreement. In the event of a conflict between this Agreement and any Additional Agreement, the terms of this Agreement will control as to the Software and Your rights to download, install, operate, or otherwise access or use the Software, unless such Additional Agreement expressly indicates that it is intended to amend or revise the provisions of this Agreement, and any Additional Agreement will control in all other respects.
- As used in this Agreement, the term “Software” means not only the software application You are currently attempting to download or install, but also any updates, upgrades, bug fixes or enhancements thereto, as well as any accompanying manuals, packaging, documentation and other written files, electronic or on-line materials or documentation, and all copies of any of the foregoing. For the avoidance of doubt, Common Areas has no obligation to provide any updates, upgrades, bug fixes or enhancements to the Software. You acknowledge that the Software and information that You receive through the Software constitute valuable trade secrets of Common Areas. Common Areas reserves the right to suspend, remove or disable access to the Software at any time without notice and Common Areas will not be liable to You for the same.
- App Stores. If the Software is obtained through a third-party app store or other software distribution platform, the Software is for use solely on a mobile or device or computer owned or controlled by You (“Device”) that operates such third party’s operating system. If the Software is obtained through Common Areas, the Software is for use solely on a Device meeting the specifications for the Software provided by Common Areas. For the avoidance of doubt, no such third-party is a party to this Agreement. Your use of the Software is also subject to any applicable third-party app store terms specified in the Addendum to this Agreement. In addition, the Software may also be subject to terms and conditions and privacy policies of such third-party and Common Areas is not a party to nor responsible for the same.
- Third-Party Software. The Software may include software owned or provided by third-parties. If any such third party software is indicated to be subject to the terms of a third party software license separate from this Agreement, then the terms of that third party license will apply to such third party software independent of the terms of this Agreement. All other third-party software included in or with the Software will be subject to the terms of this Agreement and may be used by You only under the terms of this Agreement. Nothing in this Agreement is intended to limit Your rights under, or to grant rights or impose restrictions that supersede, the terms of any open-source software license applicable to any such third party software.
- The Software is licensed, not sold, to You for use under the terms of this Agreement. The Software and all intellectual property and proprietary rights therein and related thereto are the sole and exclusive property of Common Areas. Except as expressly stated in this Agreement, Common Areas grants no rights or licenses to You (whether by implication, estoppel, or otherwise) in or to the Software or any intellectual property or proprietary rights of Common Areas or its licensors and Common Areas and its licensors retain and reserve all rights in and to the Software and all such intellectual property and proprietary rights.
- Term and Termination. This Agreement will begin on the first to occur of, you clicking “I Agree” or first downloading, installing, or operating the Software, and will automatically terminate effective upon any breach of these terms by You, with or without notice from Common Areas. Moreover, Common Areas may also terminate this Agreement at any time upon notice to You. Upon termination of this Agreement, all rights and licenses to the Software granted to You in this Agreement will immediately cease and You agree to promptly discontinue all use of the Software and destroy the Software and all copies thereof in Your possession or control. The following provisions of this Agreement will survive termination: 5 (Ownership), 10 (Representations), 11 (Indemnification), 12 (Limitation of Liability), 13 (Disclaimer of Warranties), 15 (Equitable Relief), 18 (Notice), 20 (Arbitration of Disputes) and 21 (Additional).
- License Grant. Conditioned on Your compliance with the terms and conditions of this Agreement and any applicable Additional Agreement, You are hereby provided a non-exclusive, limited, personal, non-transferrable, non-sublicenseable license to install and use Software on a Device owned or controlled by You solely for access to and use of the applicable Common Areas offerings as intended.
- You may not and will not permit any third party to: (1) modify, adapt, alter, translate, or create derivative works of or from the Software; (2) sublicense, distribute, sell, or otherwise transfer the Software to any third party; (3) use the Software for service bureau use, or lease, rent or loan the Software or the use thereof to any third party; (4) reverse engineer, decompile, disassemble or otherwise attempt to modify or derive the source code for any portions of the Software not made available to You by Common Areas in source code form; (5) impersonate any other person or entity in Your use of the Software; (6) access or attempt to access any information regarding any other person or entity or provided to any other person or entity; (7) circumvent or overcome (or attempt to circumvent or overcome) any technological protection measures intended to restrict access to the Software or any systems of Common Areas; (8) challenge the validity or enforceability of this Agreement; or (9) exploit the Software in any unauthorized way including by trespass or burdening network capacity. You may not remove, alter or obscure any trademark, logo, copyright notice or any other proprietary notice that appears on or in the Software or on any copies.
- You acknowledge that the Software may include pre-release versions of software, as well as bugs, viruses and other errors, may have limited functionality, may be subject to interruptions or delays in service, may not process data properly, may not operate in accordance with any specifications or documentation, and/or may not support or be supported by Your business requirements or Your Device on which You operate the Software (“Errors”). Any documentation, user’s manuals, specifications, and other materials supplied by Common Areas pertaining to the Software may contain inaccuracies or typographical errors.
- You represent, warrant, and covenant that: (1) You are 18 years of age or older; (2) You have the right to and are able to enter into this Agreement; (3) any information submitted by You during the registration process or in connection with Your Account is accurate and complete; and (4) all Your use of the Software is and will remain in compliance with all applicable laws, rules and regulations and will not cause You, Common Areas or any third party to violate any laws, rules or regulations.
- You will defend, indemnify, and hold harmless Common Areas (and its officers, directors, employees, contractors, agents, and licensors) from and against any damages, liabilities, losses, costs, and expenses (including reasonable attorneys’ fees) arising out of or in connection with Your download, installation, operation, or other access to or use of the Software or Your breach of this Agreement. Common Areas will give You notice of any such claim for indemnification by Common Areas.
- Limitation of Liability. YOUR USE OF THE SOFTWARE IS AT YOUR OWN RISK, AND YOU AGREE THAT IN NO EVENT WILL COMMON AREAS BE LIABLE FOR ANY DAMAGES OF ANY KIND, INCLUDING DIRECT DAMAGES, INDIRECT DAMAGES, CONSEQUENTIAL DAMAGES, SPECIAL DAMAGES, INCIDENTAL DAMAGES, PUNITIVE DAMAGES OR ANY SIMILAR DAMAGES, OR FOR ANY LOST PROFITS OF ANY KIND OR NATURE WHATSOEVER ARISING OUT OF, RELATING TO, OR RESULTING FROM THIS AGREEMENT, THE SOFTWARE OR THE USE OR OPERATION THEREOF. THE FOREGOING LIMITATIONS WILL APPLY REGARDLESS OF WHETHER EITHER PARTY IS AWARE OR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY, HOWEVER CAUSED AND WHETHER UNDER THEORY OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE. IN STATES WHERE LIMITATIONS OF LIABILITY FOR ANY OF THE FOREGOING ARE NOT PERMITTED, THEN YOU AGREE THAT THE MAXIMUM TOTAL LIABILITY OF COMMON AREAS RELATING TO THIS AGREEMENT, THE SOFTWARE, OR THE OPERATION OR USE THEREOF, WILL BE LIMITED TO (a) $100 OR (b) IN STATES WHERE A LIMITATION OF LIABILITY OF $100 WOULD BE DEEMED UNENFORCEABLE, THE MAXIMUM EXTENT PERMITTED BY LAW.
- Disclaimer TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SOFTWARE AND ANY RESULTS OBTAINED FROM THE USE OR OPERATION THEREOF ARE PROVIDED “AS-IS” AND COMMON AREAS MAKES NO REPRESENTATIONS OR WARRANTIES WHATSOEVER REGARDING THE SOFTWARE OR THE USE OR OPERATION THEREOF. WITHOUT LIMITING THE FOREGOING, COMMON AREAS MAKES NO WARRANTY THAT THE SOFTWARE OR THE USE OR OPERATION THEREOF WILL BE UNINTERRUPTED OR ERROR- OR VIRUS-FREE. COMMON AREAS HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES WITH RESPECT TO THE SOFTWARE OR THE USE OR OPERATION THEREOF, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN ANY ADDITIONAL AGREEMENT, COMMON AREAS HEREBY DISCLAIMS, AND YOU HEREBY AGREE THAT COMMON AREAS SHALL NOT BE LIABLE FOR, ANY DEFENSE, INDEMNITY OR HOLD HARMLESS OBLIGATIONS IN CONNECTION WITH THIS AGREEMENT, THE SOFTWARE OR THE USE OR OPERATION THEREOF.
- Improvements; Feedback. If you provide observations, comments, criticisms, suggestions, improvements, or other feedback relating to the use, operation, performance, functionality, or features of the Software (“Feedback”), Common Areas may use that Feedback for any purpose, without notice, payment, or other obligation to you. All use of any Feedback will be at Common Areas’ sole discretion.
- Equitable Relief. You agree that any use of the Software in breach of this Agreement will cause Common Areas irreparable harm for which monetary damages is not an adequate remedy; in such event, Common Areas will be entitled to injunctive or other equitable relief in any court of competent jurisdiction without prejudice to any other right or remedy and without posting a bond or proving actual damages.
- U.S. Government. The Software is a “commercial item” as that term is defined at FAR 2.101 (Oct 1995), consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212 (Sep 1995) and is provided to the U.S. Government only as a commercial end item. Consistent with FAR. 12.212 and DFARS 227.7202 (Jun 1995), all U.S. Government End Users acquire the Software with only those rights set forth herein.
- Export. The Software and related technology are subject to U.S. export control laws and may be subject to export or import regulations in other countries. You agree to strictly comply with all such laws and regulations and acknowledge that You have the responsibility to obtain such licenses to export, re-export, or import as may be required.
- Any notice (including questions, claims or complaints) to be given or delivered by You to Common Areas under this Agreement will be in writing and addressed and delivered Common Areas at:
Common Areas, LLC
195 S. C St.
Tustin, CA 92780
All notices sent to Common Areas will be sent by US mail (postage prepaid), using a reputable, expedited overnight or international courier, or hand-delivered. All notices will be deemed to have been received by Common Areas on the day actually received by Common Areas. Any notice by Common Areas to You under this Agreement may be provided to You either through the Software itself or at the email address or street address provided by You to Common Areas or in connection with the download of the Software or otherwise on file with Common Areas. All notices will be deemed to have been received by You on the 3rd business day after which such Notice is sent by Common Areas. Either party may change its address for receipt of Notice purposes upon issuance of Notice thereof in accordance with this Section.
- Modifications Common Areas may modify this Agreement at any time. Common Areas will notify You of any modifications as set forth in this Agreement. You are responsible for regularly reviewing such modifications. By using the Software after such modifications are made, You agree to comply with such modifications.
- Arbitration of Disputes. The parties will attempt to resolve all disputes, controversies, or claims arising under, out of, or relating to this Agreement, including the formation, validity, binding effect, interpretation, performance, breach or termination of this Agreement (each, a “Dispute”) through discussion between the parties. If any Dispute cannot be resolved through negotiations between the parties, either party may submit such Dispute for final settlement through binding arbitration to be administered by the American Arbitration Association (or any successor thereto), in accordance with the American Arbitration Association’s Commercial Arbitration Rules (the “Rules”). Either party may commence the arbitration by delivering a request for arbitration as specified in the Rules. The arbitration will be conducted before a sole neutral arbitrator, selected as provided in the Rules. The arbitration will be conducted in the English language at a site specified by Common Areas in Orange County, California, U.S.A. The arbitrator will apply the laws of the State of California, U.S.A. to any such arbitration and shall have the power to award any remedy available at law or in equity; provided, however, that the arbitrator shall have no jurisdiction to amend this Agreement or grant any relief not permitted herein or beyond the relief permitted herein. The award of the arbitrator will be the exclusive remedy of the parties for all claims, counterclaims, issues or accountings presented or plead to the arbitrator. The award of the arbitrator will require the non-prevailing party to pay the prevailing party’s costs, fees and expenses (including attorneys’ fees). Judgment upon the award may be entered in any court or governmental body having jurisdiction thereof. Any additional costs, fees or expenses incurred in enforcing the award may be charged against the party that resists its enforcement.
- Additional. English (U.S.A.) will be the language used in all notices and other communications under this Agreement and the English (U.S.A.) version of this Agreement and any notice or communication under this Agreement will prevail in the case of any ambiguity or inconsistency with any version in any other language. The interpretation of the rights and obligations of the parties under this Agreement, including, to the extent applicable, any negotiations, arbitrations or other proceedings hereunder, will be governed in all respects exclusively by the laws of the State of California (U.S.A.) as such laws apply to contracts between California residents performed entirely within California, without regard to the conflict of laws provisions thereof. Subject to Section 20 (Disputes) each party will bring any action or proceeding arising from or relating to this Agreement exclusively in a federal or state court in Orange County, California (U.S.A.). You irrevocably submit to the personal jurisdiction and venue of any such court in any such action or proceeding brought in such courts by Common Areas. If any provision of this Agreement is held to be unenforceable, that provision will be removed and the remaining provisions will remain in full force. The parties expressly exclude (as may be applicable) the application of the Uniform Computer Information Transactions Act (UCITA) and the United Nations Convention on the International Sale of Goods. The failure of either party to require performance by the other party of any provision hereof shall not affect the full right to require such performance at any time thereafter; nor shall the waiver by either party of a breach of any provision hereof be taken or held to be a waiver of the provision itself. Neither this Agreement nor any of Your rights or obligations hereunder may be assigned, transferred or delegated by You in whole or in part, and whether by operation of law or otherwise, without the prior written approval of Common Areas. Any assignment, transfer or delegation in derogation of the foregoing shall be null and void. Common Areas may assign or transfer this Agreement for any reason with or without notice to You. This Agreement (including the Addendums included herewith) comprises the complete and exclusive statement of the agreement between Common Areas and You with respect to the Software and supersedes any proposal or prior agreement, oral or written, and any other communications between the parties in relation to the subject matter of this Agreement. Each party is acting solely as an independent contractor and no agency, employment, joint venture, partnership, or fiduciary relationship is created between the parties by this Agreement.
Addendum: Supplemental Terms
Notwithstanding anything set forth above, if You obtained a license to the Software through the Apple App Store, the following additional terms and conditions apply.
- Acknowledgement: You acknowledge that the Agreement is concluded between You and Common Areas only, and not with Apple, and Common Areas, not Apple, is solely responsible for the Software and the content thereof. In the event this Agreement contains any usage rules for the Software that are in conflict with the Apple App Store Terms of Service (“App Store TS”) the App Store TS shall control. You acknowledge You have had the opportunity to review the App Store TS. Capitalized terms not defined in this Addendum or the Agreement have the meaning set forth in the App Store TS.
- Scope of License: The license granted to You for the Software is limited to a non-transferable license to use the Software on any Apple-branded Products that You own or control and as permitted by the Usage Rules set forth in the App Store TS except that such Software may be accessed and used by other accounts associated with You via Family Sharing or volume purchasing.
- Maintenance and Support: Common Areas and not Apple is solely responsible for providing any maintenance and support services with respect to the Software as specified in the Agreement, or as required under applicable law. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Software.
- Warranty: Common Areas is solely responsible for any product warranties, whether express or implied by law, to the extent not effectively disclaimed. In the event of any failure of the Software to conform to any applicable warranty, You may notify Apple, and Apple will refund the purchase price for the Software to you; and, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Software and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty are Common Areas’ sole responsibility.
- Product Claims: You acknowledge that Common Areas, not Apple, is responsible for addressing any claims by You or any third party relating to the Software or Your possession and/or use of the Software, including, but not limited to: (i) product liability claims; (ii) any claim that the Software fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection, privacy, or similar legislation, including in connection with the Software’s use of the HealthKit and HomeKit frameworks, if any. The Agreement is not intended to limit Common Areas’ liability to You beyond what is permitted by applicable law.
- Intellectual Property Rights: You acknowledge that, in the event of any third party claim that the Software or Your possession and use of the Software infringes that third party’s intellectual property rights, Common Areas, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
- Legal Compliance: You represent and warrant that (i) You are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) You are not listed on any U.S. Government list of prohibited or restricted parties.
- Third-Party Terms of Agreement: You must comply with applicable third-party terms of agreement when using the Software, e.g., You must not be in violation of Your wireless data service agreement when using the Software.
- Third-Party Beneficiary: You and Common Areas acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of the Agreement, and that, upon Your acceptance of the terms and conditions of the 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 hereof.
Last modified: August 31, 2020