End User License Agreement

PLEASE READ THIS END USER LICENSE AGREEMENT CAREFULLY. BY DOWNLOADING, INSTALLING, ACCESSING OR USING ANY CAPSULA PRODUCT(S) FOR APPLE-BRANDED PRODUCTS RUNNING THE IOS OPERATING SYSTEM (“IOS PRODUCTS”) OR ANDROID BASED PRODUCTS (“ANDROID PRODUCTS”) (“CAPSULA PRODUCT(S)”), YOU AGREE TO USE SUCH LANFEAR PRODUCT(S) SOLELY IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THIS END USER LICENSE AGREEMENT (“AGREEMENT”), AND YOU AGREE THAT YOU ARE BOUND BY AND ARE A PARTY TO THIS AGREEMENT. YOU WARRANT THAT YOU ARE AT LEAST EIGHTEEN YEARS OLD AND THAT YOU HAVE THE LEGAL CAPACITY TO ENTER INTO CONTRACTS.

YOUR USE OF CAPSULA PRODUCT(S) IS EXPRESSLY CONDITIONED ON YOUR ACCEPTANCE OF THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT OR ANYTHING IN THE CAPSULA TERMS OF USE OR PRIVACY POLICY, YOU MAY NOT DOWNLOAD, INSTALL, ACCESS OR USE CAPSULA PRODUCT(S). BY INSTALLING AND USING THE CAPSULA PRODUCT(S) YOU AGREE TO THE CAPSULA PRIVACY POLICY AND TERMS OF USE.

 

The terms of your agreement with your mobile carrier apply to your relationship between you and your mobile carrier. 

 

Capsula Products are licensed, not sold, to You for use only under the terms of this license, unless a Capsula Product is accompanied by a separate license agreement, in which case the terms of that separate license agreement will govern, subject to Your prior acceptance of that separate license agreement. The licensor, Capsula, LLC, (“Capsula”) and its licensors reserve all rights not expressly granted to You. The Capsula Product that is subject to this license is referred to in this Agreement as the “Licensed Application.” 

 

This Agreement is made between you and Capsula (the “Parties”). Neither Apple Inc. Google LLC, nor any subsidiary or affiliate of Apple Inc. or Google LLC (collectively and individually referenced in this Agreement as "Apple" and “Google,” respectively) is a party to this Agreement. Except as specifically provided in Section A, this Agreement does not confer any enforceable rights or remedies upon any person other than the Parties. The Parties acknowledge that this Agreement is concluded between themselves only, and not with Apple or Google, and Capsula, not Apple or Google, is solely responsible for the Licensed Application and the content thereof. 

 

A. Scope of License. This license granted to You for the Licensed Application by Capsula is limited to a non-transferable license to use the Licensed Application on any Apple-branded, Android devices or other similar devices that You own or control and as permitted by the Usage Rules of the Apple App Store or Android App Stores Terms and Conditions the “Usage Rules”), except that for Apple-branded products such Licensed Application may be accessed and used by other accounts associated with the You via Family Sharing or volume purchasing. For Apple-branded products the Usage Rules are set forth in the Apple Media Services Terms and Conditions available at available at https://www.apple.com/legal/internet-services/itunes/us/terms.html. This license does not allow You to use the Licensed Application on any Apple-branded product, Android device or other similar device that You do not own or control, and You may not distribute or make the Licensed Application available over a network where it could be used by multiple devices at the same time. You may not rent, lease, lend, sell, redistribute or sublicense the Licensed Application. You may not copy (except as expressly permitted by this license and the Usage Rules), decompile, reverse engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the Licensed Application, any updates, or any part thereof (except as and only to the extent any foregoing restriction is prohibited by applicable law or to the extent as may be permitted by the licensing terms governing use of any open sourced components included with the Licensed Application). Any attempt to do so is a violation of the rights of Capsula and its licensors. If You breach this restriction, You may be subject to prosecution and damages. The terms of the license will govern any upgrades provided by Capsula that replace and/or supplement the original Product, unless such upgrade is accompanied by a separate license in which case the terms of that license will govern. In order to use the Products, You may be required to upgrade to the latest mobile application version. Capsula may notify You via email or other mechanisms describing the applicable upgrade. The Parties acknowledge and agree that Capsula’s licensors and Apple are the intended third party beneficiaries of this Agreement and, upon your acceptance of the terms and conditions of this Agreement, have the express right (and will be deemed to have accepted the right) to rely upon and directly enforce the terms of this Agreement against you as a third party beneficiary hereof. There are no implied licenses granted by Capsula under this Agreement. Except as specified above, you shall have no rights to the Licensed Application. 

  

B. Use Restrictions.  You, directly or indirectly, alone or with any other party, may not:

 

  1. modify, change, create derivative works of, disassemble, decompile or otherwise reverse engineer the Licensed Application, or remove proprietary legends in the Licensed Application.  

  2. distribute, transfer, resell, rent, lease, or loan the Licensed Application to any other party, except as described above.

  3. make the Licensed Application available to others in a service bureau arrangement or for any similar commercial time-sharing or third party training use.

  4. transfer the Licensed Application to any third party for outsourcing or any other purpose without the express prior written consent of Capsula.

  5. Remove or modify the source code responsible for displaying the Capsula branding that links back to http://www.Capsula.xyz as part of rendered pages.  Furthermore, when the Licensed Application is being used in a website or application, the Capsula branding must stay fully visible and not visually overlapped by other elements.

  6. Disable, modify or restrict Capsula’s access to usage statistics.

 

C. Ownership.  You acknowledge and agree that the Licensed Application belongs to Capsula or its Licensors. You agree that you neither own nor hereby acquire any claim or right of ownership to the Licensed Application or to any related patents, copyrights, trademarks or other intellectual property. Capsula and its Licensors retain all right, title and interest in and to all copies of the Licensed Application at all times, regardless of the form or media in or on which the original or other copies may subsequently exist. This license is not a sale of the original or any subsequent copy. The Licensed Application is protected by copyright and other intellectual property laws and by international treaties. You may not make any copies of the Licensed Application except for your own personal use. Any and all other copies of the Licensed Application made by you are in violation of this license. All content accessed through the Licensed Application is the property of the applicable content owner and may be protected by applicable copyright law. This license gives you no rights to such content. All trademarks used in connection with the Licensed Application are owned by Capsula, its affiliates and/or its Licensors and other suppliers, and no license to use any such trademarks is provided hereunder. All suggestions or feedback provided by you to Capsula with respect to the Software shall be Capsula’s property and deemed confidential information of Capsula. You and Capsula acknowledge that, in the event of any third party claim that the Licensed Application or your possession and use of the Licensed Application infringes that third party’s intellectual property rights, Capsula, not Apple, will be solely responsible for the investigation, defense, settlement, and discharge of any such intellectual property claim. 

 

D. Support. This Agreement does not entitle you to receive from Capsula, its Licensors, or Apple hard-copy documentation, support, telephone assistance, maintenance, or enhancements or updates to the Licensed Application. The Parties acknowledge and agree that Apple has no obligation whatsoever to furnish any maintenance or support services with respect to the Licensed Application. Capsula may, in its sole discretion, provide to You updates to the Licensed Application. 

 

E. Consent to Use of Data; Moderation. You agree that Capsula may collect and use technical data and related information, including but not limited to technical information about Your device, 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 Licensed Application. Capsula will own and retain all rights to user-contributed content and data captured through the Licensed Application. Capsula may use this information to improve its products, to provide services or technologies to You, or for any other lawful purpose.  In addition, the Capsula Privacy Policy located at www.capsula.xyz/privacy shall govern the collection, use and disclosure of personal information and is incorporated herein by this reference.  

 

Ratings and reviews, both positive and negative, will be displayed without censor. However, You agree to acceptable usage guidelines as outlined herein. Capsula retains the right to moderate reviews that violate acceptable usage guidelines. Moderated reviews are not deleted from Capsula’s database, but they are hidden from display to all web site visitors except the review author. Authors will be notified that their review has been moderated by a message adjacent to their review.

 

F. Termination. The license is effective until terminated by You or Capsula. The license may be terminated upon notice by either party.  Your rights under this license will terminate automatically without notice from Capsula if You fail to comply with any term(s) of this license. Upon termination of the license, You shall cease all use of the Licensed Application, and destroy all copies, full or partial, of the Licensed Application.

 

G. Services; Third-Party Materials. The Licensed Application may enable access to Capsula’s and third-party services and web sites (collectively and individually, "Services"). Use of the Services may require Internet access and that you accept additional terms and conditions, including the Terms of Use Agreement available at https://www.capsula.xyz/  (which are incorporated herein by this reference). 

 

You understand that by using any of the Services, You may encounter content that may be deemed offensive, indecent, or objectionable, which content may or may not be identified as having explicit language, and that the results of any search or entering of a particular URL may automatically and unintentionally generate links or references to objectionable material. Nevertheless, You agree to use the Services at Your sole risk and that Capsula shall not have any liability to You for content that may be found to be offensive, indecent, or objectionable.

 

Certain Services may display, include or make available content, data, information, applications or materials from third parties (“Third-Party Materials”) or provide links to certain third-party web sites. By using the Services, You acknowledge and agree that Capsula is not responsible for examining or evaluating the content, accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect of such Third-Party Materials or web sites. Capsula does not warrant or endorse and does not assume and will not have any liability or responsibility to You or any other person for any third-party Services, Third-Party Materials or web sites, or for any other materials, products, or services of third parties. Third-Party Materials and links to other web sites are provided solely as a convenience to You. Location data provided by any Services is for basic navigational purposes only and is not intended to be relied upon in situations where precise location information is needed or where erroneous, inaccurate or incomplete location data may lead to death, personal injury, property or environmental damage. Neither Capsula, nor any of its content providers, guarantees the availability, accuracy, completeness, reliability, or timeliness of location data displayed by any Services.

 

You agree that any Services which contain proprietary content, information and material is protected by applicable intellectual property and other laws, including but not limited to copyright, and that You will not use such proprietary content, information or materials in any way whatsoever except for permitted use of the Services. No portion of the Services may be reproduced in any form or by any means. You agree not to modify, rent, lease, loan, sell, distribute, or create derivative works based on the Services, in any manner, and You shall not exploit the Services in any unauthorized way whatsoever, including but not limited to, by trespass or burdening network capacity. You further agree not to use the Services in any manner to harass, abuse, stalk, threaten, defame or otherwise infringe or violate the rights of any other party, and that Capsula is not in any way responsible for any such use by You, nor for any harassing, threatening, defamatory, offensive or illegal messages or transmissions that You may receive as a result of using any of the Services.

 

In addition, Third-Party Services and Third-Party Materials that may be accessed from, displayed on or linked to from the iPhone, iPod touch, iPad, Android devices or other device, are not available in all languages or in all countries. Capsula makes no representation that such Services and Materials are appropriate or available for use in any particular location. To the extent You choose to access such Services or Materials, You do so at Your own initiative and are responsible for compliance with any applicable laws, including but not limited to applicable local laws. Capsula, and its licensors, reserve the right to change, suspend, remove, or disable access to any Services at any time without notice. In no event will Capsula be liable for the removal of or disabling of access to any such Services. Capsula may also impose limits on the use of or access to certain Services, in any case and without notice or liability.

 

H. Product Claims. The Parties acknowledge that Capsula, not Apple, is responsible for addressing any claims made by you or third parties relating to the Licensed Application or your possession and/or use of the Licensed Application, including, but not limited to: (i) product liability claims; (ii) any claim that the Licensed Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation, including in connection with the Licensed Application’s use of the HealthKit and HomeKit frameworks, if applicable.

 

I. Restrictions. To prevent abuse of the Licensed Application, all postings by You must: (a) never harass, threaten or cause distress, unwanted attention or discomfort to a person or entity; (b) not contain or transmit sexually explicit images or other content that is offensive; (c) not contain or transmit any unlawful, harmful, threatening, abusive, harassing, defamatory, vulgar, obscene, or hateful content or content which is racially, ethnically or otherwise objectionable, or which infringes upon the rights of any third party; (d) not impersonate any person, including but not limited to, an information provider, or communicate under a false name or a name not entitled or authorized to use; and (e) not violate (intentionally or unintentionally) any applicable local, state, national or international law, including but not limited to any regulations having the force of law.

 

J. NO WARRANTY. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE LICENSED APPLICATION IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE LICENSED APPLICATION AND ANY SERVICES ARE PROVIDED "AS IS" AND “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND LANFEAR HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE LICENSED APPLICATION AND ANY SERVICES, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. LANFEAR DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE LICENSED APPLICATION, THAT THE FUNCTIONS CONTAINED IN, OR SERVICES PERFORMED OR PROVIDED BY, THE LICENSED APPLICATION WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE LICENSED APPLICATION OR SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE LICENSED APPLICATION OR SERVICES WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY LANFEAR OR ITS AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. SHOULD THE LICENSED APPLICATION OR SERVICES PROVE DEFECTIVE, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO YOU.  

 

K. LIMITATION OF LIABILITY. TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL LANFEAR BE LIABLE FOR PERSONAL INJURY, OR ANY INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE LICENSED APPLICATION, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE) AND EVEN IF LANFEAR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU. IN NO EVENT SHALL LANFEAR’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES (OTHER THAN AS MAY BE REQUIRED BY APPLICABLE LAW IN CASES INVOLVING PERSONAL INJURY) EXCEED THE AMOUNT OF FIFTY DOLLARS ($50.00). THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

 

L. ASSUMPTION OF RISK. YOU HEREBY ASSUME ALL RISKS ASSOCIATED WITH THE USE OF THE LICENSED APPLICATION AND SERVICES, INCLUDING ALL RISKS OF PERSONAL INJURY OR PROPERTY DAMAGE. YOU HEREBY REMISE, RELEASE, ACQUIT AND FOREVER DISCHARGE LANFEAR, ANY EMPLOYEES OR OFFICERS OF LANFEAR, AND ANY INDIVIDUALS ASSOCIATED WITH LANFEAR OR THE LICENSED APPLICATION AND SERVICES (“RELEASED PARTIES”) OF AND FROM ANY AND ALL LIABILITIES, CLAIMS, REMEDIES, DEMANDS, SUITS OR CAUSES OF ACTION OF WHATSOEVER KIND OR CHARACTER, IN WHOLE OR IN PART, WHETHER CHOATE OR INCHOATE, WHICH YOU MAY EVER HAVE AGAINST THE RELEASED PARTIES THAT IN ANY WAY DIRECTLY OR INDIRECTLY RELATE TO, RESULT FROM, ARE BASED UPON, OR ARISE OUT OF THE LICENSED APPLICATION OR SERVICES.YOU FURTHER AGREE TO DEFEND, INDEMNIFY, SAVE, AND HOLD THE RELEASED PARTIES HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, ACTIONS, DAMAGES, LIABILITIES, LAWSUITS, LITIGATION, ATTORNEYS FEES, EXPENSES, OR ARBITRATIONS ARISING OUT OF ANY YOUR ACTIONS, EITHER INTENTIONALLY OR NEGLIGENTLY, DURING THE USE OF THE LICENSED APPLICATION AND SERVICES.

 

M. Injunctive Relief. You acknowledge and agree that your breach or threatened breach of this Agreement shall cause Capsula irreparable damage for which recovery of money damages would be inadequate and that Capsula therefore may obtain timely injunctive relief to protect its rights under this Agreement in addition to any and all other remedies available at law or in equity.

 

N. Legal/Export Compliance. You may not use or otherwise export or re-export the Licensed Application except as authorized by United States law and the laws of the jurisdiction in which the Licensed Application was obtained. In particular, but without limitation, the Licensed Application may not be exported or re-exported (a) into any U.S. embargoed countries or that has been designated by the U.S. Government as a “terrorist supporting” country or (b) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. By using the Licensed Application, you represent and warrant that you are not located in any such country or on any such list. You also agree that you will not use these products for any purposes prohibited by United States law, including, without limitation, the development, design, manufacture or production of nuclear, missiles, or chemical or biological weapons.

 

O. US Government Use. The Licensed Application and related documentation are "Commercial Items", as that term is defined at 48 C.F.R. §2.101, consisting of "Commercial Computer Software" and "Commercial Computer Software Documentation", as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished-rights reserved under the copyright laws of the United States.

 

P. Governing Law. The laws of the State of Texas, excluding its conflicts of law rules, govern this license and your use of the Licensed Application. Notwithstanding the foregoing, the Arbitration Agreement in Section Q above shall be governed by the Federal Arbitration Act. For the avoidance of doubt, the choice of Texas governing law shall not supersede any mandatory consumer protection legislation in such jurisdictions. 

 

Q. Arbitration Agreement. Any dispute, controversy or claim arising under, out of or relating to this Agreement and any subsequent amendments of this Agreement, including, without limitation, its formation, validity, binding effect, interpretation, performance, breach or termination, as well as non-contractual claims, shall be submitted to arbitration before the American Arbitration Association (“AAA”) in accordance with the AAA Consumer Arbitration Rules.  The place of arbitration shall be Austin, Texas. The language to be used in the arbitral proceedings shall be English.  The Parties may apply to any court of competent jurisdiction for a temporary restraining order, preliminary injunction, or other interim or conservatory relief as necessary, without breach of this Section and without abridgment of the powers of the arbitrator.  The arbitrator may award any form of individual or equitable relief, including injunctive relief. Any award will be final and conclusive to the Parties and may be entered in any court of competent jurisdiction.  You agree to the entry of injunctive relief to stop any lawsuit or to remove you as a participant in such a suit. By using the Licensed Application in any manner, you agree to this arbitration agreement. In doing so, YOU GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend any claims between you and Capsula. YOU ALSO GIVE UP YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION OR OTHER CLASS PROCEEDING. This provision preventing you from bringing, joining or participating in class action lawsuits is an independent covenant. You may opt-out of this Section by providing written notice of your decision within thirty (30) days of the date that you first use the Licensed Application.  

 

All claims arising out of or relating to this Agreement, to the Services, or to your relationship with Capsula that for whatever reason are not submitted to arbitration will be litigated exclusively in the federal or state courts of Travis County, Austin, Texas, U.S.A. You and Capsula consent to the exercise of personal jurisdiction of courts in the State of Texas and waive any claim that such courts constitute an inconvenient forum.

 

If (a) you are not a U.S. citizen; (b) you do not reside in the U.S.; (c) you are not accessing the Service from the U.S.; and (d) you are a citizen of one of the countries identified below, you hereby agree that any dispute or claim arising from this Agreement shall be governed by the applicable law set forth below, without regard to any conflict of law provisions, and you hereby irrevocably submit to the non-exclusive jurisdiction of the courts located in the state, province or country identified below whose law governs:

 

If you are a citizen of any European Union country or Switzerland, Norway or Iceland, the governing law and forum shall be the laws and courts of your usual place of residence.

 

Specifically excluded from application to this Agreement is that law known as the United Nations Convention on the International Sale of Goods.

 

Q. General. This Agreement along with the terms of service available at www.Capsula.com/terms-of-service shall constitute the entire agreement between the Parties regarding the subject matter hereof and by acknowledging this license you also acknowledge the obligations in such terms of service. The Parties agree that this license cannot be altered, amended or modified by You, except by a writing signed by Capsula. No failure or delay in enforcing any right or exercising any remedy will be deemed a waiver of any right or remedy. You shall not assign or transfer this license without the prior written consent of Capsula. Any attempt to assign or transfer this license by You shall be void. Each provision of this license is a separately enforceable provision. If any provision of this license is determined to be or becomes unenforceable or illegal, such provision shall be reformed to the minimum extent necessary in order for this license to remain in effect in accordance with its terms as modified by such reformation.

 

R. User Outside the U.S. If you are using the Licensed Application outside the U.S.A., then the following shall apply: (a) You confirm that this Agreement and all related documentation is and will be in the English language; (b) you are responsible for complying with any local laws in your jurisdiction which might impact your right to import, export or use the Licensed Application or any services accessed or used in connection with the Software and Documentation, and you represent that you have complied with any regulations or registration procedures required by applicable law to make this license enforceable. 

 

S. Open Source Software. The Licensed Application may include the following Open Source Software and any such Open Source Software is subject to additional license terms and conditions.

 

T. Contact.  If You have any questions, complaints or claims with respect to the Licensed Application or any conduct or content, You can contact us at: Capsula, 7415 Southwest Parkway, Building 6, Suite 500, Box 100 Austin Texas 78735, and 512-766-8443 and hello@capsula.xyz