Terms of Service - Stay App

Stay App Inc. (“Company”, “we” “us” or “our”) makes the STAY mobile application and related hosted services, solutions, and proprietary software, services, extensions, and application programming interfaces (collectively, the “App”) available for your use subject to the terms and conditions herein and any additional terms contained in any attachment hereto (collectively, this “Agreement”). This Agreement conditions your use of the App as an end user (“you”) and is effective as of the date executed by you and accepted by Company (such date, the “Effective Date”). The disclaimers, terms, and conditions in this Agreement are of general application and may be supplemented by additional policies, procedures, disclaimers, guidelines, rules, terms, and conditions of specific application that Company discloses.

Last Updated 11.01.25

DEFINITIONS

The terms in this Article 1 shall have the meanings described below, and other terms may be defined within the context of this Agreement.

“Documentation” means any documentation distributed by Company from time-to-time pertaining to the App, including without limitation any accompanying or online user guides or technical information relating to the App, in each case, as may be updated or amended by or on behalf of Company from time to time.

“Fees” means the fees, expenses, and other amounts charged for the right to access and use certain features of or all of the App.

“Personal Information” means any data that identifies, relates to, describes, or could reasonably be linked, directly or indirectly, to a particular individual.

“Third Party Materials” means software, services, interfaces, and firmware, provided by third parties which may be available, incorporated into, and/or distributed as part of the App.

“User” means an individual who is authorized to use the App (either you personally or an individual you manage an account for), who has a user identification and password. Users may include, for example, yourself, family members, or caregivers, among other suitable individuals. Unless the context clearly indicates otherwise, references to “you” herein shall mean you as a User and, as applicable, you on behalf of a User.

“User Data” means any data, information, content, or materials which is uploaded, entered, collected, or otherwise processed by or through the App by or on behalf of you through or in connection with the App.

OUR SERVICE
1. Right to Access. On the condition you comply with your obligations under this Agreement, and subject to additional terms of any licenses applicable to third-party software included in the App including, but not limited to, as set forth in Section 3.6, below, Company hereby grants to you a limited, revocable, non-exclusive, non-transferable, right to access and use the App and Documentation solely in connection with your personal purposes on behalf of yourself or on behalf of a User. Other than as expressly granted in this Agreement, no other rights are granted, including without limitation any and all Company patents, copyrights, moral rights, trade secrets, trademarks, service marks, publicity rights, and other proprietary rights (whether or not perfected or perfectible) (collectively, “Intellectual Property Rights”). All ownership rights, title, interest, and Intellectual Property Rights in and to the App shall remain with Company and/or its licensors. If you or your User(s) do not comply with this Agreement, Company reserves the right to revoke any rights granted hereunder and limit your access to the App. You are jointly and severally responsible for compliance with terms and conditions of this Agreement if the User is someone other than you. Any use of the App that exceeds the rights expressly granted in this Agreement is strictly prohibited and constitutes a violation of this Agreement, which may result in the suspension or termination of your right to access and use the App.
2. Modification. You agree that Company has the right to modify any aspect or feature of the App at any time with or without notice. From time to time and without notice to you, Company may, but is under no obligation to, release upgrades, fixes or new versions of the App.
3. Removal of Access. Company reserves the right to refuse access to the App to you or any User. Your access to the App is provided subject to the terms and conditions of this Agreement and all restrictions set forth herein. You agree that Company may immediately suspend or terminate your access to the App or any part thereof in the event that: (1) you breach or violate this Agreement or other incorporated agreements or guidelines; (2) Company discontinues the App or any portion thereof (in which case, for clarity, Company will refund to you a pro-rata portion of any pre-paid but unused Fees for the discontinued App); (3) there is an unexpected technical or security issue or problem; or (4) you engage in fraudulent or illegal activities or a material breach of your obligations under the terms of this Agreement. You further agree that such measures may be taken in Company’s sole discretion and without any liability to you or any third party.
4. Defects and Availability. Company uses commercially reasonable efforts to maintain the App, however, Company is not responsible for any defects or failures associated with the App, any part thereof, or any damages (either direct or indirect) that may result from any such defects or failures. Company provides standard support for the App. However, Company is not obligated to provide you support for, and shall not be responsible or liable for, any errors of the App or any damages resulting from your failure to use the App in accordance with the Documentation. The App may be inaccessible or inoperable for any reason, including, without limitation: (1) equipment malfunctions; (2) periodic maintenance procedures or repairs which may be undertaken from time-to-time; or (3) causes beyond Company’s reasonable control or which could not reasonably foreseen. You understand that the App is provided over the Internet and so the quality and availability of the App may be affected by factors outside of Company’s control. Company does not make any guarantees regarding the reliability or availability of the App and will not be liable to you or any third party for damages or losses related to the App being unavailable.
5. Third Party Materials. In the course of providing the App, Company may provide or make available access to certain Third Party Materials that are integrated or embedded within the App. Such Third Party Materials may include service offerings, including but not limited to, physical therapy, home health visits, ride-sharing platforms, delivery services, or other professional services. Upon requesting Third Party Materials through the App, the App may transmit your information and request to applicable third party providers via an application programming interface or similar technical integration (“API”) to facilitate ordering, scheduling, or fulfilment of such Third Party Materials. You acknowledge and agree that Company is not responsible for the availability of such Third Party Materials, and Company does not endorse and is not responsible or liable for any content, advertising, products, services, or other materials on or available in connection with Third Party Materials or for any privacy or other practices of such third parties operating those websites or providing such Third Party Materials. Company strongly encourages you to review any separate terms of use and privacy policies governing the use of such third-party websites and Third Party Materials. You acknowledge and agree that Third Party Materials are provided by independent entities that are not owned, controlled, or operated by Company, and Company disclaims all liability arising from your use of or reliance on such Third Party Materials. Your use of the App to refer or connect to Third Party Materials constitutes your consent for Company to transmit your data and service requests through the relevant API as necessary to facilitate your request.
6. Ownership of Intellectual Property. All images, trademarks, service marks, logos and icons displayed on the App are the property of Company and/or its licensors and may not be used without Company’s prior authorization. The App, including all systems, databases, information, data, documents, materials, works, images, trademarks, service marks, logos, and all Intellectual Property Rights in and to the foregoing (collectively, the “Company Materials”) shall at all times remain the exclusive intellectual property of Company and its third-party licensors. You are not acquiring any Intellectual Property Rights in or to the Company Materials other than the non-exclusive rights set forth in this Agreement. The Company Materials may not be reproduced, recreated, sublicensed, modified, accessed, or used in any manner or disseminated or distributed to any other party without Company’s prior written consent. Any unauthorized use of any Company Materials, whether owned by Company or any other parties, may violate copyright laws, trademark laws, intellectual property, privacy and publicity laws and communications regulations and statutes.
7. Wellness Features Disclaimer. The App may include features designed to assist Users in managing their wellness or accessing wellness-related services, including but not limited to medication reminders, emergency alert functions, wellness tracking tools, or other similar features (“Wellness Features”). These Wellness Features are provided on an “As Is” and “As Available” basis without warranty of any kind solely for informational, organizational, and convenience purposes and are not a substitute for professional medical advice, diagnoses, treatment, or other medical services. We are not engaged in providing professional medical advice via the App or otherwise. If you have questions regarding a medical condition, treatment, medication, or other similar health-related topics, you should seek the advice of a qualified medical professional, and should not disregard such advice based on the information or features made available through the App. You acknowledge and agree that (1) the App, its content, and any communications from Company or its affiliates do not constitute medical advice or clinical guidance; and (2) the App is not intended to be a substitute for contacting emergency medical services, and you should immediately contact 911 or an applicable emergency response line or seek care from the nearest medical facility if you believe you are experiencing a medical emergency. Company makes no representations, warranties, or guarantees regarding the accuracy, reliability, completeness, or usefulness of any Wellness Features. The App may rely on third-party systems, APIs, or networks that are beyond Company’s control, and Company expressly disclaims any responsibility for delays, failures, or errors in the operation of such features. Company does not warrant the accuracy, completeness, or currency of the information provided on or made available through the App. TO THE FULLEST EXTENT PERMITTED BY LAW, COMPANY EXPRESSLY DISCLAIMS ALL LIABILITY FOR ANY PERSONAL INJURY, HEALTH OUTCOME, OTHER DAMAGES, WHETHER DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR SPECIAL ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF, OR RELIANCE ON, ANY WELLNESS FEATURES OR RELATED INFORMATION PROVIDED THROUGH THE APP. You assume full responsibility for your use of the App and any decisions made based on its features or outputs.
8. Fraud Detection Disclaimer. The App may include certain tools, alerts, analytics, Third Party Materials, or other features designed to assist Users in identifying, avoiding, or mitigating fraudulent, deceptive, or otherwise suspicious activities (“Fraud Prevention Features”). These Fraud Prevention Features are provided solely as an informational and convenience resource and are offered on an “As Is” and “As Available” basis without warranty of any kind. You acknowledge and agree that (1) Company does not represent, warrant, or guarantee that the Fraud Prevention Features will detect, prevent, or protect against all fraudulent or unauthorized activities, scams, or security threats to you; and (2) you remain solely responsible for your actions and decisions in connection with your accounts, transactions, communications, and any other activities, including any actions taken or not taken in reliance upon the Fraud Prevention Features or information provided by the App. TO THE FULLEST EXTENT PERMITTED BY LAW, COMPANY EXPRESSLY DISCLAIMS ALL LIABILITY FOR ANY LOSSES, DAMAGES, OR HARMS, WHETHER DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR SPECIAL ARISING OUT OF OR RELATED TO ANY (I) FRAUDULENT, UNAUTHORIZED OR DECEPTIVE ACTS COMMITTED BY THIRD PARTIES; (II) ANY FAILURE OF THE FRAUD PREVENTION FEATURES TO DETECT OR PREVENT SUCH ACTS; OR (III) ANY ACTIONS OR INACTIONS YOU TAKE BASED ON, OR IN RELIANCE UPON, ANY RECOMMENDATIONS, WARNINGS, OR LACK THEREOF PROVIDED BY THE APP. Company expressly disclaims any duty or obligation to monitor, investigate, or intervene in any transaction, communication, or User activity and shall not be responsible for any failure to do so. The Fraud Detection Features are not designed to and will not help you retrieve money or other property that you transferred to a third party in connection with a fraudulent scheme (e.g. successful phishing attempt). The Fraud Detection Features do not offer cyber insurance or cyber security of any kind and Company’s liability to you in connection with your use of the Fraud Detection Features for any reason shall not exceed in any event $5.00 USD. If you believe you are or may be subject to a fraudulent scheme, contact your local police authorities immediately.
9. AI Technology. In the course of providing the App, Company may utilize or make available to you for your use within the App deep learning, machine learning, large language models, generative, and other proprietary embodied artificial intelligence made available by third parties (collectively, “AI Technology”). Such AI Technology may include access to an automated virtual assistant or artificial intelligence-powered chatbots designed to assist Users with inquiries, troubleshooting, IT support, and other informational or functional aspects of the App and offerings therein. You acknowledge and agree that AI Technology is provided as a convenience tool for your use of the App, and that any outputs generated by AI Technology are generated based on User input and data available to the AI Technology and may not always be accurate, complete, or current. You should not rely solely on the AI Technology for decisions requiring professional judgement or factual verification, and are responsible for any actions or decisions you take based on such information. Where the AI Technology is hosted, operated, or powered in whole or in part by a third party platform or provider, you acknowledge and consent by using the AI Technology that your interactions, queries, and related data may be transmitted to and processed by the third party platform or provider in accordance with its privacy notice or other similar policy. Company does not control and is not responsible for the functionality, operation, or performance of any third party provided AI Technology. Company makes no warranties of any kind, whether express or implied, including but not limited to warranties of accuracy, reliability, merchantability, or fitness for a particular purpose in relation to the AI Technology. Company makes no representation that the AI Technology will resolve any technical issue, provide correct information, or perform without interruption or error, and to the fullest extent permitted by law, Company disclaims all liability for any losses, damages, or harms arising out of or related to your reliance on or use of the AI Technology or its outputs.
10. Premium Features. In the course of providing the App, Company may make available certain custom features, content, services, or the like (“Premium Features”). By electing to access Premium Features, Users agree to pay applicable Fees connected to the Premium Features as described in Article 5. Premium Features may not be available to all Users or in all geographic regions. Eligibility for, access to, and functionality of Premium Features may depend on account type, subscription level, device compatibility, or other applicable factors. Company reserves the right to modify, suspend, or discontinue any Premium Feature at any time with or without notice. Premium Features subscribed to or otherwise obtained by a User shall be deemed to form part of the App and shall be subject to all applicable terms, conditions, limitations, disclaimers and policies governing the App, unless expressly stated otherwise.
YOUR RESPONSIBILITIES, REPRESENTATIONS, AND RESTRICTIONS
1. Account Registration. Access to the App will be managed by you. You may receive access as part of a paid service through a third party application store (e.g. pursuant to Section 3.6), or you may receive access as part of a passkey or other credential provided to you outside of the App. In registering an account for access to the App, you may have the option to affiliate your access to the App with a community, organization, or other entity (each, a “Community”). By affiliating your access to the App with a Community, you may receive custom services and offerings. You are responsible for choosing the Community you affiliate with, and Company is not responsible for any errors, omissions, or offerings caused by or related to a User’s affiliation with a Community.
2. Unauthorized Use and Information Changes. You must immediately notify Company if you learn of or have reason to suspect any unauthorized use of your account or any other breach of security. You are responsible for maintaining the confidentiality of your access credentials and are fully responsible for all activities that occur under your account, including any damages to Company or the App resulting from unauthorized access to the App from your account or any of your Users’ accounts. Company will have no liability to you, to any User, or any third party for damages or loss related to such unauthorized use or access.
3. Representations. You hereby represent and warrant that: (1) you have the legal capacity and authority to enter into and perform your obligations under this Agreement; (2) you will comply with the terms and conditions of this Agreement and any other agreement to which you are subject that is related to your use of the App or any part thereof; (3) you have provided and will maintain accurate and complete information, and will provide any additional information Company may reasonably require; (4) your access to and use of the App or any part thereof will not constitute a breach or violation of any other agreement, contract, terms of use or any law or regulation to which you are subject; (5) you will immediately notify Company in the event that you learn or suspect that any Personal Information which you are a controller of has been disclosed or otherwise made known to any other person; (6) you will not use the App in order to gain competitive intelligence about Company, the App, or any product or service offered via the App or to otherwise compete with Company; and (7) User Data does not violate the rights of any third party, including, without limitation, the intellectual property, privacy or publicity rights of any third party, and you have acquired all appropriate consents and authorizations of all third parties as required under applicable law to provide the User Data through our App.
4. Restrictions. You may not: (1) license, sublicense, sell, resell, transfer, assign, distribute, or otherwise commercially exploit or make available to any third party any portion of our App in any way; (2) copy, modify, adapt, alter, translate, create derivative works, reverse engineer, decompile, disassemble, or otherwise attempt to learn the source code, communications protocol, structure, or ideas upon which the App is based; (3) use the App or any data, content, or information accessed through the App to develop a competing service or product or advertise other products or services to other Users; (4) use any device, software, or routine intended to damage or otherwise interfere with the proper functioning of the App, servers, data centers, or networks connected to the App or take any other action that interferes with any other person’s use of the App; (5) decrypt, transfer, create Internet links to the App, or “frame” or “mirror” the App on any other server or wireless or Internet-based device; (6) use or merge the App or any component thereof with other software, databases, or services not provided or approved by Company; (7) circumvent or attempt to circumvent any electronic protection measures in place to regulate or control access to the App, or remove, obscure, or alter any notices or indications of any Intellectual Property Rights, any trade names, trademarks, service marks, logos, trade dress, and any other distinctive or proprietary symbols, labels, designs, or designations, or any electronic notices; (8) use the App for any fraudulent or otherwise unlawful purposes or in violation of this Agreement or for any manner outside of your personal use of the App; (9) develop, distribute, or sell any software or other functionality capable of launching, being launched from, or otherwise integrated with the App; (10) use any bot, spider, or other automatic or manual device or process for the purpose of harvesting or compiling information on the App for any reason; (11) access or attempt to access any other User’s account or use the App in a way that prevents or inhibits another User from enjoying the App; (12) use any data, content, or information made available through the App in any manner that misappropriates any trade secret or infringes any copyright, trademark, patent, rights of publicity, or other proprietary right of any party; (13) introduce into the App any virus, rogue program, Trojan horse, worm or other malicious or intentionally destructive code, software routines, or equipment components designed to permit unauthorized access to or disable, erase, or otherwise harm the App, or perform any such actions; (14) introduce into the App any back door, time bomb, drop dead device, or other software routine designed to disable a computer program automatically with the passage of time or under the positive control of an unauthorized person; (15) delete, modify, hack, or attempt to change or alter the App, any data, content, or information made available through the App, or any notices on the App; (16) connect to or access any Company computer system or network other than the App; (17) impersonate any other person or entity to use or gain access to the App; and (18) conduct or otherwise participate in any distributed denial-of-service attack or similar malicious attack intended or designed to artificially delay, disrupt or otherwise adversely affect the App or any other User’s access to or use of the App. Company reserves the right to fully investigate and prosecute violations of any of the above of the law. Company may involve and cooperate with law enforcement authorities in prosecuting Users who violate this Agreement. Company may remove any data or content posted by you within the App for any reason in its sole and absolute discretion.
5. Application Limited Right to Access. Access to the App will be managed by you through a registered User account. Access to the App may be available through the Android and iOS app stores (individually and collectively, the “App Store”). Company hereby grants you a limited, non-exclusive, revocable, non-transferable, non-sublicensable right to install and use the App as provided through the App Store on a mobile device that you own or control. By accessing the App through the App Store, you agree to comply with any additional third-party provider hosting and mobile application agreements, including, but not limited to, those agreements described below in Section 3.6.
6. Supplemental Third-Party Terms
  1. Apple Specific Terms. In addition to your agreement with the foregoing terms and conditions, and notwithstanding anything to the contrary herein, the following provisions apply with respect to your use of any version of the App compatible with the iOS operating system of Apple Inc. (“Apple”). Apple is not a party to this Agreement and does not own and is not responsible for the App. Apple is not providing any warranty for the App except, if applicable, to refund the purchase price for it. Apple is not responsible for maintenance or other support services for the App and shall not be responsible for any other claims, losses, liabilities, damages, costs or expenses with respect to the App, including any third-party product liability claims, claims that the App fails to conform to any applicable legal or regulatory requirement, claims arising under consumer protection or similar legislation, and claims with respect to intellectual property infringement. Any inquiries or complaints relating to the use of the App, including those pertaining to Intellectual Property Rights, must be directed to Company in accordance with this Agreement. The right you have been granted herein is limited to a non-transferable right to use the App on an Apple-branded product that runs Apple’s iOS operating system and is owned or controlled by you, or as otherwise permitted by the usage rules set forth in Apple’s App Store Terms of Service. In addition, you must comply with the terms of any third-party agreement applicable to you when using the App, such as your wireless data service agreement. Apple and Apple’s subsidiaries are third-party beneficiaries of this Agreement and, upon your acceptance of the terms and conditions of this Agreement, will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third-party beneficiary thereof; notwithstanding the foregoing, Company’s right to enter into, rescind or terminate any variation, waiver or settlement under this Agreement is not subject to the consent of any third party.
  2. Google Maps Specific Terms. In addition to your agreement with the foregoing Agreement, and notwithstanding anything to the contrary herein, the following provisions apply with respect to your use of the Google Maps functionality that may be embedded in the App. Your use of such functionality is governed by the Google Maps/Google Earth Additional Terms of App, which are available at http://www.google.com/help/terms_maps.html, and by the Google Privacy Policy, which is available at https://www.google.com/policies/privacy/. By using such functionality, you agree to be bound by the then-current versions of the Google Maps/Google Earth Additional Terms of App and Google Privacy Policy.
  3. Microsoft Bing Maps Specific Terms. In addition to your agreement with the foregoing Agreement, your use of any Bing Maps functionality embedded within the App shall be subject to the terms of use found at http://www.microsoft.com/maps/assets/docs/terms.aspx.
DATA RIGHTS, USES, AND LIMITATIONS
1. User Data; Protections. You shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, of User Data, and you agree that Company shall not be responsible or liable for the unauthorized access to, alteration of, or deletion, correction, destruction, corruption, damage, loss, or failure to secure or store User Data arising from your use, or your User’s use, of the App. You acknowledge and agree that you bear sole responsibility for adequately controlling, processing, storing, and backing up User Data. Company reserves the right, but not the obligation, to refuse to post or to remove any information or materials, in whole or in part, that Company believes to be unacceptable, undesirable, or in violation of this Agreement or the rights of third parties.
2. User Data Representations. You represent, warrant, and covenant that: (1) you have all necessary rights and licenses to grant Company the rights set forth herein; (2) you have obtained all consents necessary under applicable law to disclose User Data to Company; and (3) you will not publish, post, upload, record, or otherwise distribute or transmit any data or other material that: (i) infringes or would infringe any copyright, patent, trademark, trade secret or other Intellectual Property Rights or proprietary right of any party, or any rights of publicity or privacy of any party; (ii) violates any law, statute, ordinance, or regulation; (iii) is inappropriate, profane, defamatory, libelous, obscene, indecent, threatening, harassing, or otherwise unlawful; (iv) is harmful to minors or otherwise pornographic; (v) is materially false, misleading, or inaccurate; and/or (vi) contains information for which you not have the right to permit Company to access and process any User Data.
3. Privacy. Company processes Personal Information in accordance with its privacy notice which can be accessed here [INSERT LINK TO PRIVACY NOTICE].
4. Usage Data. Company may generate de-identified data, statistics, and other performance or usage-related information (“Usage Data”) while providing the App to you. You acknowledge and agree that, as between you and Company, all Usage Data is and shall remain the property of Company. Company may use, aggregate, and share Usage Data for the purposes of providing the App, conducting research, preparing industry benchmarking reports, product development, and other commercial uses subject to applicable law. Company will ensure that You and its Users cannot be identified through the Usage Data or any derivative thereof.
5. Feedback. Company welcomes comments, feedback, information, or materials regarding the App or any of the other Company products or services (collectively, “Feedback”). By submitting Feedback to Company, you agree to assign, and hereby irrevocably assign to Company, all right, title, and interest, on a worldwide basis, in and to the Feedback and all copyrights, moral rights, and other Intellectual Property Rights embodied in such. Company will be free to use, copy, distribute, publish, and modify the Feedback on an unrestricted basis, without compensation to you.
FEES AND PAYMENT
1. Payment Terms. You agree to pay to Company all applicable Fees due for the App in accordance with terms of this Agreement and any other agreement between you and Company. You will be responsible for payment of all amounts incurred or arising from your use of a third party accessed through the App, including any premium charges, additional charges for services, or other amounts you incur in the course of your use and dealing with such third party. All such amounts will be billed to you and Company shall be entitled to use all means of collection to ensure satisfaction of amounts charged by third parties. All legal fees and other expenses incurred by Company to collect outstanding amounts will be billed to you in Company’s sole discretion. All payment obligations under this Agreement are non-cancelable and non-refundable. Any payments (including those for third party services rendered) more than thirty (30) days past due will bear a late payment fee of two percent interest (2.0%) per month or the highest amount permitted by law, whichever is less. You agree to be responsible for payment for all activity by third parties who access or use the App through your account. You are responsible for all charges related to using the App such as charges for Internet access, use of third party products and services that are purchased through the App, or other fees incurred with third parties. If there is a conflict in the payment terms between this Agreement and any other agreement with Company, the terms of the other agreement will prevail. Notwithstanding, the terms of this Agreement and any other agreement between you and Company shall be read to supplement and complement each other to the greatest extent possible.
2. Payment Method. You must keep a card on file in your account at all times to use Premium Features. Until all amounts due have been paid in full, you agree to keep your payment information current at all times and authorize Company to charge such payment method (including but not limited to wire transfer and/or automated clearing house) provided by you, all amounts due under this Agreement.
3. Invoicing. Company will provide you with certain billing and payment options, which may include annualized billing (in which case Company bills you in advance annually for recurring annual plans) or monthly plans. All amounts due shall be paid in US dollars. Company may fulfill payments via your credit card, ACH provided information, invoices sent to you electronically or by paper invoice sent to you. You must notify Company within thirty (30) days of the receipt of the invoice of any billing errors thereon. If you do not notify Company within this time, Company will not be required to correct the error and/or make adjustments to your account and you hereby waive any claim, allegation, or contention with respect to such invoice. Company will not issue refunds for Fees paid for your App account, even for periods of inactivity.
4. Suspension. If any undisputed amount owing by you for the App is overdue, we may, upon prior notice, and without limiting our other rights and remedies, suspend access to the App until such overdue amounts are paid in full.
TERM AND TERMINATION
1. Term. You will be bound for the entire Term of this Agreement. “Term” is defined as the period beginning on the Effective Date and shall continue until terminated in writing by either party or when terminated in accordance with Section 6.2 below. Subscriptions will automatically renew for additional Terms equal to the expiring Term length, unless either party gives the other party notice of non-renewal at least thirty (30) days and no more than sixty (60) days before the end of the applicable Term.
2. Termination of Access. A party may terminate this Agreement for cause: (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. Upon termination of this Agreement, all rights and services provided by Company to you in this Agreement shall cease immediately. Termination of this Agreement, any license granted hereunder, or your access to the App, shall not limit Company from pursuing other remedies available to Company, including but not limited to injunctive relief. Company may also permanently or temporarily terminate, suspend, or otherwise refuse to permit your use of the App upon reasonable prior written notice without incurring liability as a result thereof, if in our sole determination, you violate, or are reasonably likely to violate, this Agreement, including without limitation, by your nonpayment of Fees.
3. Effect of Termination. Company shall have no obligation to maintain or provide any of your User Data upon or after termination and may unless legally prohibited, delete all your User Data in our systems or otherwise in our possession or under our control.
NO WARRANTY; DISCLAIMER
1. COMPANY MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION, MERCHANTABILITY, FITNESS FOR A PARTICULAR USE AND NON-INFRINGEMENT. THE APP IS PROVIDED BY COMPANY AND ITS LICENSORS “AS IS” AND “AS AVAILABLE.” YOU ASSUME ALL RISK FOR YOUR USE OF THE APP, INCLUDING WITHOUT LIMITATION ANY HARM CAUSED BY VIRUSES, THIRD PARTY MATERIALS, USE OF THIRD PARTY PROVIDED SERVICES OR PRODUCTS (INCLUDING ANY BODILY, PHYSICAL, OR PROPERTY DAMAGE OR DEATH) OR OTHER DAMAGING MATERIALS. IN NO EVENT DOES COMPANY GUARANTEE ANY RESULTS FOR YOU. COMPANY DOES NOT WARRANT THAT THE APP OR ANY PORTION THEREOF, IS ACCURATE, ERROR OR BUG FREE, THAT YOUR USE OF THE APP WILL BE UNINTERRUPTED, OR THAT THE APP’S OPERATION WILL NOT NEGATIVELY AFFECT OTHER SOFTWARE OR HARDWARE. THIS SECTION APPLIES TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW. COMPANY MAKES NO REPRESENTATIONS THAT THE APP IS APPROPRIATE OR AVAILABLE FOR USE IN OTHER COUNTRIES OUTSIDE THE UNITED STATES. THOSE WHO ACCESS OR USE THE APP FROM OTHER JURISDICTIONS DO SO AT THEIR OWN RISK AND ARE RESPONSIBLE FOR COMPLIANCE WITH ALL APPLICABLE LAWS.
2. COMPANY DOES NOT PROVIDE, ENDORSE, OR OTHERWISE PERFORM ANY OF THE SERVICES OR PRODUCE ANY OF THE PRODUCTS YOU FIND ON THE APP. COMPANY MERELY PROVIDES A PLATFORM TO ALLOW YOU TO ACCESS AND USE THIRD PARTY MATERIALS, SERVICES, AND PRODUCTS. YOUR SELECTION OF A THIRD PARTY IS ENTIRELY AT YOUR DISCRETION AND COMPANY HAS NO RESPONSIBILITY TO YOU, YOUR HEIRS, OR YOUR FAMILIAL RELATIONSHIPS REGARDING YOUR DECISIONS RELATED TO THE USE OR NON-USE OF THE APP.
INDEMNIFICATION
1. Company Indemnification. Company shall defend you against any third party claims that the App infringes any United States patent, trademark, or copyright or misappropriates any trade secret (to the extent it qualifies as a trade secret under US law) (“Infringement Claim”), and shall indemnify you for any costs and damages finally awarded by a court of competent jurisdiction or agreed upon in settlement with respect to such Infringement Claims, provided Company is promptly notified of any such Infringement Claim related thereto and given reasonable assistance and sole control over defense and settlement. Company will not be responsible for any settlement it does not preapprove in writing. The foregoing obligations do not apply with respect to the App or portions or components thereof which are: (1) not supplied by Company , (2) modified after delivery by Company, or (3) combined with other products, processes, or materials where the alleged infringement relates to such combination. Additionally, Company shall have no obligation to indemnify you under this Section 8.1 where you continue any allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or where your use of the App is not in accordance with this Agreement or with the Documentation.
2. Your Indemnification. You agree to defend, indemnify, and hold harmless each of Company, its affiliates and respective officers, employees, consultants, shareholders and representatives from and against any and all claims, liabilities, damages, and/or costs (including attorneys’ and expert witness fees, costs and other expenses) arising out of or related to any actual or alleged claims involving or resulting from: (1) violation of this Agreement or applicable law, rule or regulation by you or any person accessing or using the App by or through you; (2) infringement or misappropriation by you, or any person accessing or using the App by or through you, of any Intellectual Property Right, privacy right or other right of any person or entity (except claims of infringement or misappropriation arising solely from use of the App as provided under this Agreement); (3) acts and omissions of you or your Users, or arising out of or relating to your relationship with any of your Users; (4) User Data; or (5) you or your Users’ use, consumption, access, or ordering of products or services through the App, including to the extent causing bodily harm, economic harm, or property damage to you or another user. Company reserves the right, at its own expense and its sole discretion, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you. For the avoidance of doubt, Company bears no responsibility for fulfillment of any products or services ordered by you through the App from a third party. Company bears no responsibility for any acts or omissions of a third party in the performance of services or delivery of products. Your use of the App and interaction with third parties is solely at your risk and you agree to indemnify, defend, and hold Company harmless from and against any and all use of, access to, interaction with, or consumption of products and services rendered by a third party (whether ordered via the App or otherwise).
LIMITATION OF LIABILITY
1. Limitation. IN NO EVENT SHALL COMPANY AND/OR ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, OR REPRESENTATIVES (“RELEASED PARTIES”) AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID FROM YOU TO COMPANY AS CONSIDERATION FOR USE OF THE APP DURING THE THREE (3) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY. IN NO EVENT WILL RELEASED PARTIES BE LIABLE FOR ANY CLAIM ATTRIBUTABLE TO ERRORS, OMISSIONS, OR OTHER INACCURACIES IN THE APP OR ARISING FROM THIRD PARTY MATERIALS, PRODUCTS OR SERVICES, OR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES RELATED TO OR ARISING FROM YOUR USE, MISUSE, OR INABILITY TO USE THE APP OR THIRD PARTY MATERIALS, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOST DATA, LOST PROFITS, OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, PERSONAL INJURY, DEATH, ECONOMIC INJURY, OR PROPERTY DAMAGE OF ANY NATURE, OR UNAUTHORIZED ACCESS TO THE SERVERS, OR SERVER UNAVAILABILITY, HOWEVER CAUSED UNDER ANY THEORY OF LIABILITY AND WHETHER OR NOT COMPANY WAS AWARE OR ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. YOU ACKNOWLEDGE AND AGREE THAT COMPANY WOULD NOT ENTER INTO THIS AGREEMENT UNLESS IT COULD RELY ON THE LIMITATIONS DESCRIBED IN THIS PARAGRAPH.
MISCELLANEOUS
1. Choice of Law. This Agreement and the rights of the parties hereunder will be governed by and construed in accordance with the laws of the State of Missouri, exclusive of conflict or choice of law rules. The parties agree that any controversy, claim, or litigation arising out of or in connection with this Agreement shall be resolved in a federal or state court in St. Louis County in the State of Missouri, and consent to the jurisdiction of such court over the parties hereto and such controversy, claim or litigation. The parties acknowledge that this Agreement evidences a transaction involving interstate commerce.
2. Independent Contractors. You understand and expressly agree that you and Company are independent contractors and not agents or employees of the other party. Neither you nor Company has any right, power, or authority to act or create any obligation, express or implied, on behalf of the other party.
3. Notices. Any notice given under this Agreement shall be in writing and in the English language and shall be emailed to Company at the contact set forth in the App, or if to you, to the email or physical address associated with your account. You hereby consent to receiving any notices relevant to the App or this Agreement by email.
4. Force Majeure. Neither party shall be liable for failing or delaying performance of its obligations (except for the payment of money) resulting from any condition beyond its reasonable control, including but not limited to, governmental action, acts of terrorism, natural disasters, earthquake, fire, flood, or other acts of God, labor conditions, power failures, and Internet disturbances (each, a “Force Majeure Event”). If a Force Majeure Event causes delays in performance by either party for a period longer than ninety (90) days, either party may terminate this Agreement, either party may terminate this Agreement upon thirty (30) days written notice.
5. Consent to Do Business Electronically. You agree not to contest the authorization for, or validity or enforceability of, electronic records and electronic signatures, or the admissibility of copies thereof, under any applicable law.
6. Equitable Relief. You agree that your breach of the terms and responsibilities under this Agreement would cause irreparable harm and significant injury to Company which would be both difficult to ascertain and for which there is no adequate remedy at law and that Company shall be entitled, in addition to any other rights and remedies it may have, to injunctive relief (without the requirement of posting bond), specific performance and other equitable remedies to restrain any threatened, continuing, or further breach, or other equitable relief without prejudice to any other rights and remedies Company may have under this Agreement.
7. Entire Agreement. This Agreement constitutes the entire agreement between you and Company with respect to the subject matter hereof and supersedes all prior agreements, both oral and written. Company may update this Agreement at any time without notice to you. Any changes to this Agreement will be posted on Company’s website or within the App. You can determine when this Agreement was last revised by referring to the “Last Updated” legend at the top of the first page. UNLESS OTHERWISE STATED IN THE AMENDED VERSION OF THE AGREEMENT, ANY CHANGES TO THIS AGREEMENT ARE EFFECTIVE IMMEDIATELY UPON POSTING. Your continued use of the App will constitute your agreement to any new provisions within the revised Agreement.
8. Waiver; Severability. Either party’s failure to enforce any provision of this Agreement will not be deemed to be a waiver of its right to enforce them. If any term or provision of this Agreement will be held to be invalid, illegal, or unenforceable, the remaining terms and provisions of this Agreement will remain in full force and effect, and such invalid, illegal, or unenforceable term or provision will be deemed not to be part of this Agreement.
9. Publicity. You hereby consent to inclusion of your name in Company lists that may be published as part of Company’s marketing and promotional efforts. Company may identify you as a User when referring to lists of its Users.
10. Assignment. You may not assign, transfer, or sell (voluntarily or by operation of law) your rights or obligations under this Agreement without the prior written consent of Company. Any purported assignment without Company’s consent will be void and will constitute a breach of this Agreement. Company may assign this Agreement or delegate or subcontract its obligations under this Agreement at any time.
11. Survival. The following articles and sections will survive the expiration or termination of this Agreement for any reason: Sections 2.6, 3.4, 4.5, 6.2, and 6.3; Articles 1, 5, 8, 9, and 10; and to the extent such sections discuss liability and any limitations thereof, Sections 2.5, 2.7, 2.8, and 2.9.