THESE TERMS AND CONDITIONS (THIS "Agreement") CONSTITUTE A BINDING CONTRACT BETWEEN YOU AND HOLOWAY ("Holoway", "we", "us" and "our"), AND BY CLICKING "I AGREE" BELOW, OR BY OTHERWISE INSTALLING OR USING THE API (AS DEFINED BELOW), YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THE FOLLOWING (THE DATE OF SUCH OCCURRENCE BEING THE "Effective Date"):
IF YOU DO NOT AGREE WITH ANY OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MAY NOT DOWNLOAD OR USE THE API.
You represent that you are of a legal age in your jurisdiction to form a binding contract, but in any event at least thirteen (13) years old. Children under the age of thirteen (13) are not permitted to use the Api. If you are between thirteen (13) and eighteen (18) years old, you must review this Agreement with your parent or guardian, have him/her accept it on your behalf, as well as approve your use of the Api.
This Agreement (including its Schedules) represents the entire agreement between Holoway and you with respect to the subject matter hereof, and supersedes and replaces any and all prior and contemporaneous oral and/or written agreements, understandings and statements between you and Holoway with respect to such subject matter. You acknowledge and agree that in entering into this Agreement you have not relied on any statement or representation (whether negligently or innocently made) not expressly set out in this Agreement; for example, statements and explanations in any FAQs or other marketing material on the Site (defined below) are for convenience only, and are not binding or a part of this Agreement. The language of this Agreement is expressly agreed to be the English language. By entering into the Agreement you hereby irrevocably waive, to the maximum extent legally permitted, any Law (defined below) applicable to you requiring that the Agreement be localized to meet your language, as well as any other localization requirements.
Holoway reserves the right to make changes to this Agreement at any time by posting the changed Agreement . Such changes will be effective ten (10) days after such posting, and your continued use of the Api shall be deemed your agreement to such changes. In such cases, we will also update the "Last Updated" date set forth above. Please check the above webpage regularly for any changes.
At Holoway's sole discretion, any Holoway obligation hereunder may be performed (in whole or in part), and any Holoway right or remedy may be exercised (in whole or in part), by a Holoway Affiliate (defined below)
Holoway is not yet a corporation and is represented by Bram Verhoef & Thomas Verhoef
1.DEFINITIONS AND INTERPRETATION
This Agreement contains a range of capitalized terms, some of which are defined in this Section, and some of which are defined elsewhere. The Section and sub-Section headings in this Agreement are for convenience of reading only, and may not to be used or relied upon for interpretive purposes.
"Api" means Holoway's mobile software SDK (currently known as Holoway.studio).
"Account Content" means Content inputted, hosted, shared, posted, published, or otherwise generated by you in relation to your use of the Api (such as your Api Account profile picture, Messages, User Submissions, each as defined below).
"Content" means any text, data, information, images (such as logos and trademarks), graphics, sounds, videos, audio clips, links, and/or other similar materials.
"Documentation" means any electronic manuals, specifications, and similar documentation that accompany the Api.
"Feature" means any module, tool, and/or feature of the Api (such as those providing for creating AR holograms, ... ).
"Holoway Affiliate" means, with respect to Holoway, any person, organization or entity controlling, controlled by, or under common control with, Holoway, where "control" means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such person, organization or entity, whether through the ownership of voting securities or by contract or otherwise.
"Holoway Partners" means brand, media, or similar marketing partners of Holoway or a Holoway Affiliate.
"Intellectual Property" means any and all inventions, discoveries, improvements, new uses, works of authorship, technical information, data, technology, know-how, show-how, designs, drawings, utility models, specifications, formulas, methods, techniques, processes, databases, computer software and programs (including object code, source code, and non-literal aspects), algorithms, architecture, records, documentation, and other similar intellectual property, in any form and embodied in any media, whether or not protectable or registerable.
"Intellectual Property Rights" means any and all rights, titles, and interests in and to Intellectual Property, including without limitation patents, copyright and similar authorship rights, mask work rights, trade secret and similar confidentiality rights, design rights, industrial property rights, trademark, trade name, trade dress and similar branding rights, as well as: (a) all applications, registrations, renewals, extensions, continuations, continuations-in-part, divisions or reissues of the foregoing rights; and (b) all goodwill associated with the foregoing rights.
"Law" means any federal, state, foreign, regional or local statute, regulation, ordinance, or rule of any jurisdiction.
"Moral Rights" means any rights of paternity or integrity, any right to claim authorship of a work, to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, any work, whether or not such would be prejudicial to the honor or reputation of the creator of the work, and any similar right, existing under judicial or statutory law of any jurisdiction, or under any treaty.
"Site" means https://holoway.studio
"Update" means an upgrade, update (such as a fix or patch), or other modification, improvement, enhancement or customization to or of the Api.
Subject to the terms and conditions of this Agreement, Holoway grants you a limited, non-exclusive, non-assignable, non-sublicensable, revocable license, during the Term (defined below), to install the Api (in executable code version) on a device that you own or control ("Device"), and use the Api solely for your own personal and non-commercial use (the "License"). Use of the Api must be in accordance with the Documentation.
You may make one (1) backup and one (1) archival copy of the Api, provided your backup and archival copies are not installed or used on any device or other equipment, and further provided that all such copies shall bear the original and unmodified copyright, trademark, and other proprietary rights notices or legends displayed or contained on or in the Api.
For the avoidance of doubt, the copy(ies) of the Api, as well as the Documentation, are only licensed under this Agreement, and no title in or to such copy(ies) (or the Api or Documentation themselves) passes to you. Except for the License, you are granted no other right in or to the Api or Documentation, whether by implied license, estoppel, patent exhaustion, operation of law, or otherwise.
3.DATA AND PRIVACY
3.1 Storage. The Api is not intended to, and will not, operate as a data storage product or service, and you agree not to rely on the Api for the storage of any Account Content whatsoever. You are solely responsible and liable for the maintenance and backup of all Account Content. Notwithstanding the foregoing, Holoway reserves the right to automatically download Account Content to Holoway’s cloud-based database(s).
3.2 Stored On Device. You acknowledge that certain Account Content (including without limitation personal information and other information provided by you in connection with your use of the Device) may be saved to or stored on your Device (even if we do not collect that Account Content).
You shall not (and shall not permit or encourage any third party to) do any of the following: (a) reproduce the Api; (b) sell, assign, lease, lend, rent, distribute, or make available the Api to any third party, or otherwise use the Api in a time-sharing, outsourcing, or service bureau environment; (c) modify, alter, adapt, arrange, translate, decompile, disassemble, reverse engineer, decrypt, or otherwise attempt to discover the source code or non-literal aspects (such as the underlying ideas, algorithms, structure, sequence, organization, and interfaces) of, the Api; (d) remove, alter, or conceal, in whole or in part, any copyright, trademark, or other proprietary rights notice or legend displayed or contained on or in the Api; (e) circumvent, disable or otherwise interfere with security-related or technical features or protocols of the Api; (f) make a derivative work of the Api, or use the Api to develop any service or product that is the same as (or substantially similar to or competitive with) the Api; (g) disclose to the public the results of any internal performance testing or benchmarking studies of or about the Api, without first sending the results and related study(ies) to Holoway , and obtaining Holoway's written approval of the assumptions, methodologies and other parameters of the testing or study; (h) publish or transmit any robot, virus, malware, Trojan horse, spyware, or similar malicious item intended (or that has the potential) to damage or disrupt the Api; and/or (i) use the Api to infringe, misappropriate or violate any third party's Intellectual Property Rights or personal rights (such as Moral Rights, rights of privacy, and publicity rights), or any Law. References in this paragraph to "Api" shall be taken to mean the Api in whole or in part, as well as any Documentation.
Your full compliance with the above limitations is a condition to the License; provided however, that such limitations shall not apply to the extent expressly permitted otherwise in this Agreement, or to the extent any limitation is prohibited by the Law applicable to you or by any Third Party Software Terms and Notices (defined below). You acknowledge that the Api contains information and materials that are confidential and proprietary to Holoway (and may even constitute Holoway 's, or a Holoway Affiliate's, trade secrets), and therefore you agree that a breach or threatened breach of this Section (License Restrictions) may cause Holoway and/or a Holoway Affiliate to suffer irreparable harm or damage for which monetary damages will be inadequate, and accordingly, if Holoway or a Holoway Affiliate seeks an injunction, specific performance, or other equitable relief to enforce any provision under this Section, Holoway or the Holoway Affiliate (as the case may be) shall not be required to post a bond or to prove the likelihood of irreparable harm.
To the extent you are given the right, under any Law applicable to you, to receive information and/or materials for purposes of making the Api interoperable with other software products, you agree to first request from Holoway (in a reasonably detailed writing) access to such information and/or materials, and if Holoway accepts such request, Holoway may (in its sole discretion) impose additional conditions on such access and use (but such use shall in any event be solely for the purpose of achieving the desired inter-operability).
5.THIRD PARTY SOFTWARE
The Api may include third party software components that are subject to open source and/or pass-through commercial licenses and/or notices ("Third Party Software" and "Third Party Software Terms and Notices", respectively). Holoway will reasonably comply with any valid written request submitted by you to Holoway for exercising your rights under such Third Party Software Terms and Notices. You acknowledge that your use of the Api is also governed by such Third Party Software Terms and Notices, and that to the extent of any conflict between this Agreement and any Third Party Software Terms and Notices, the latter shall control. Any undertakings, representations, warranties, guarantees, conditions, indemnities or other commitments made by Holoway in this Agreement concerning the Api (if any), are made by Holoway and not by any authors, licensors, or suppliers of, or contributors to, such Third Party Software. Notwithstanding the foregoing sentence or anything in this Agreement to the contrary, Holoway does not make any representation, warranty, guarantee, or condition, and does not undertake any defense or indemnification, with respect to any Third Party Software.
6.THIRD PARTY CONTENT AND SOURCES
The Api may present, or otherwise allow you to view, access, link to, and/or interact with, Content from third parties and other sources that are not owned or controlled by Holoway (such Content, "Third Party Content"). The Api may also enable you to communicate with the related third parties. The display or communication to you of such Third Party Content does not (and shall not be construed to) in any way imply, suggest, or constitute any sponsorship, endorsement, or approval by Holoway of such Third Party Content or third party, nor any affiliation between Holoway and such third party.
7.1.Responsibility. You are solely responsible and liable for your Account Content. Needless to say, Holoway is not responsible or liable for your Account Content, or for the way in which it is used by others. For example, when you send someone Content using the Api, he or she will have a copy of that Content and will then be able to send it to, or share it with, others (whether via the Api, through other online services, or offline). You hereby represent and warrant that: (a) your Account Content does not, and will not, infringe, misappropriate, or violate any third party's Intellectual Property Rights or personal rights (such as Moral Rights, rights of privacy, and publicity rights), or any Law; (b) your Account Content is not, and will not be, disparaging, threatening, offensive, harassing, deceptive, abusive, promoting of violence, and does not, and will not, contain obscenity or pornography; (c) your Account Content does not, and will not, contain any robot, virus, malware, Trojan horse, spyware, or similar malicious item intended (or that has the potential) to damage or disrupt the Api; and (d) you have obtained, and will maintain during and after any termination of this Agreement, any and all licenses, permissions, consents, and authorizations required to grant each of the Account Content License, Promotion License, and Cross User Submission License (each as defined below).
7.2 Obligation by Holoway. Holoway has no obligation to accept, display, review or maintain any of your Account Content. Holoway may, without notice, edit, replace and/or delete your Account Content in our sole discretion, including, without limitation, if we: (a) determine that you are in breach of any provision of this Agreement (for example, if your Api Account profile picture contains nudity or impersonates another person, we may replace the picture with another picture we deem appropriate) or have violated (or are suspected by us of violating) any Law; and/or (b) deem it helpful or reasonably necessary to comply with any applicable Law, legal process, or governmental request, to enforce the Agreement (including investigations of potential violations thereof), to detect, prevent, or otherwise address fraud, security issues, and/or to protect against harm to the rights, property or safety of Holoway, our users, yourself or the public.
7.3.Messages. Without limiting the generality of the foregoing subsections, the Api may permit you to send messages (such as invitations) or similar Content to Holoway or third parties ("Messages"). You are solely responsible and liable for the Content of your Messages, for the manner in which you send them, for the timing of sending them, and generally for the consequences of sending them. You acknowledge that many jurisdictions have Laws that require a recipient of a Message to give his/her prior consent (and that in certain cases such consent must be express, written and/or signed) to receive the Message, and you agree to: (a) obtain such consent prior to sending the Message; (b) provide Holoway, upon request, with a record or other evidence of such consent; and (c) immediately notify Holoway if the recipient revokes his/her consent. In any event, you agree to hold us harmless, and expressly release us, from any and all liability arising from Messages you send or receive.
7.4.User Submissions. Without limiting the generality of the foregoing subsections, the Api may permit the posting and uploading of Content (such as mashups) by you and other users to online platforms, such as Instagram, Facebook, and Twitter ("User Submissions"). You understand that whether or not your User Submissions are published, we do not guarantee any confidentiality with respect to any User Submissions. You shall be solely responsible and liable for your User Submissions and the consequences of publishing them (including without limitation, for obtaining any consents from individuals appearing therein), and you agree to hold us harmless, and expressly release us, from any and all liability arising from your User Submissions. We have complete discretion whether to permit your User Submissions to be published, and we reserve the right without further notice to you, to monitor, censor, edit, delete, and/or remove any and all User Submissions at any time and for any reason.
You acknowledge that when accessing and using the Api: (a) you will be exposed to User Submissions from a variety of sources, and that we are not responsible for the accuracy, usefulness, safety, or Intellectual Property Rights of, or relating to, such User Submissions; and (b) you may be exposed to User Submissions that are inaccurate, offensive, indecent, or objectionable. You hereby irrevocably waive any legal or equitable rights or remedies you may have against us with respect to (a) and (b) herein. If you suspect that any crime or other unlawful activity has been, or is being committed, please do not rely on Holoway's ability to edit or delete; rather, contact your applicable emergency services or law enforcement authority.
8.1.General. All references herein to the "Api" shall include its Features as well. Holoway reserves the right to remove, modify, and/or add Features at any time, without any notice or obligation to you, and for any reason whatsoever. Some Features may in any event be limited, suspended or restricted by geography, volume, duration or any other criteria decided by Holoway in its sole discretion. Moreover, if Holoway determines that you are in breach of any provision of this Agreement, we reserve the right to block you from certain Features. We make Features available because we believe it enhances the user experience of the Api; but you acknowledge and agree that just because we make a Feature available, it does not mean we endorse, or can otherwise control, every manner in which such Feature is used. A new or modified Feature may be accompanied by separate or additional terms and conditions, in which case such terms will (as determined in such terms and conditions) apply instead of, or in addition to, this Agreement. Holoway may in its sole discretion charge for new Features and/or require additional personally identifiable information.
Without limiting the generality of the foregoing, you acknowledge that whereas Features currently make the Api compatible for use with your Device, these Features may be removed or modified in the future.
All references herein to the "Api" shall include the Updates we provide as well. Holoway may from time to time provide Updates, but shall not be under any obligation to do so. Such Updates will be supplied according to whatever then-current policies we may have in place, and some Updates may in any event be limited, suspended or restricted by geography, volume, duration or any other criteria decided by Holoway in its sole discretion. Some Updates may include automatic updating or upgrading without any notice or obligation to you, and you consent to any such automatic updating or upgrading of the Api. In some cases, you may be required to install the Update manually. An Update may be accompanied by separate or additional terms and conditions, in which case such terms will (as determined in such terms and conditions) apply instead of, or in addition to, this Agreement. Holoway may in its sole discretion charge for Updates and/or require additional personally identifiable information. Holoway is under no obligation to provide any technical support for the Api. Thereby, we cannot be held responsible for any accidental damage you may occur while running our Api on any of the devices you use Holoway on .
10.1 Api and Documentation. You hereby acknowledge that the Api and Documentation are or may be protected by Intellectual Property (and similar) Laws, treaties, and conventions. Any rights not expressly granted herein are hereby reserved by Holoway and its licensors and suppliers. As between you and Holoway (and except for the License), Holoway is the sole and exclusive owner of: (a) the copy of the Api and Documentation installed on your Device; and (b) all Intellectual Property Rights in and to the Api, the Documentation, and all Content generated or otherwise provided or appearing on or in the Api (except to the extent such Content constitutes your Account Content). For the avoidance of doubt, "Holoway" (and their respective logos) is a trademark of Holoway and/or Holoway Affiliates, and all other trademarks appearing within the Api are the trademarks of their respective owners.
10.2.Account Content Ownership and Licenses. As between you and Holoway, you are the sole and exclusive owner of your Account Content. Notwithstanding such ownership:
(A)You hereby grant Holoway and all Holoway Affiliates a worldwide, assignable, non-exclusive, royalty-free, fully-paid, sublicensable (through multiple tiers of sublicensees), irrevocable and perpetual license, in any media format and through any media channels, to access and use: (a) your Account Content to perform under this Agreement, including without limitation to provide you with the functionality of the Api and any technical support; and (b) your Account Content on an aggregated or otherwise anonymous basis for improving the Api, analytics, and generally research and development (collectively, the "Account Content License"). The Account Content License shall survive any termination of this Agreement.
(B)You hereby grant Holoway, all Holoway Affiliates, and all Holoway Partners a worldwide, assignable, non-exclusive, royalty-free, fully-paid, sublicensable (through multiple tiers of sublicensees), irrevocable and perpetual license, in any media format and through any media channels, to access and use the User Submissions portion of your Account Content to reproduce, distribute (and otherwise broadcast and make available to the public), create derivative works of, publicly display, and publically perform such User Submissions in connection with: (a) marketing and promoting the Api; (b) marketing and promoting Holoway, Holoway Partners, and/or any other third parties; and/or (c) monetizing the User Submissions (for example, through advertising) (collectively, the "Promotion License").
(C)You hereby grant each Api user a worldwide, non-assignable, non-exclusive, royalty-free, fully-paid, non-sublicensable, irrevocable and perpetual license to access and use the User Submissions portion of your Account Content to reproduce, distribute, create derivative works of, publicly display and publicly perform such User Submissions to the extent permitted by the functionality of the Api, and under this Agreement (the "Cross User Submission License"). The Cross User Submission License shall survive any termination of this Agreement.
10.3 Feedback. If you provide Holoway with any ideas, suggestions, or similar feedback about performance of the Api and/or for improving the Api ("Feedback"), you hereby grant Holoway and all Holoway Affiliates a worldwide, assignable, non-exclusive, royalty-free, fully-paid, sublicensable (through multiple tiers of sublicensees), irrevocable, and perpetual license, in any media format and through any media channels, to use, copy, distribute, transmit, modify, create derivative works of, publicly display, publicly perform, and otherwise commercially exploit such Feedback (the "Feedback License"). You hereby represent and warrant that: (A) your Feedback does not, and will not, infringe, misappropriate or violate any third party's Intellectual Property Rights or personal rights (such as Moral Rights, rights of privacy, and publicity rights), or any Law; and (B) you have obtained, and will maintain during and after any termination of this Agreement, all licenses, consents, permissions and approvals required to grant the Feedback License. The Feedback License shall survive any termination of this Agreement.
10.4.Moral Rights Waiver. You hereby irrevocably waive (and agree never to assert) against Holoway, a Holoway Affiliate, Holoway's licensors and suppliers, and/or any other Api user, any Moral Rights you may have in and to any of your Account Content and/or Feedback.
10.5.Copyright Infringement Takedowns (DMCA Policy). It is Holoway's policy to respect the legitimate rights of copyright owners, and we will respond to clear notices of alleged copyright infringement in accordance with our DMCA Policy set forth in Schedule 2 below.
10.6. Do not use information from Contacts, Photos, or other APIs that access user data to build a contact database for your own use or for sale/distribution to third parties, and don’t collect information about which other apps are installed on a user’s device for the purposes of analytics or advertising/marketing.
11.1.THE API, DOCUMENTATION, AND ANY CONTENT WHATSOEVER ARE PROVIDED AND MADE AVAILABLE TO YOU ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITH ALL FAULTS, AND WITHOUT ANY REPRESENTATION, WARRANTY, GUARANTEE OR CONDITION OF ANY KIND WHATSOEVER, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, QUIET POSSESSION, TITLE, QUALITY OF SERVICE, NON-INFRINGEMENT, OR THAT OTHERWISE ARISE FROM A COURSE OF PERFORMANCE OR DEALING, OR USAGE OF TRADE, ALL OF WHICH ARE HEREBY DISCLAIMED BY FUSIT AND ITS LICENSORS AND SUPPLIERS.
11.2ADDITION, NEITHER FUSIT NOR ITS LICENSORS OR SUPPLIERS MAKE ANY REPRESENTATION, WARRANTY, GUARANTEE OR CONDITION:
11.3.Some jurisdictions' Laws do not allow the disclaimer of certain implied warranties or conditions, and to the extent applicable to you, Holoway limits the duration of such warranties and conditions to the duration of ninety (90) days from the Effective Date.
11.4ACKNOWLEDGE AND AGREE THAT THIS SECTION (DISCLAIMER) IS AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN YOU AND Holoway
12.LIMITATION OF LIABILITY
12.1NO EVENT SHALL Holoway, ANY Holoway AFFILIATE, OR ANY OF OUR LICENSORS OR SUPPLIERS BE LIABLE UNDER, OR OTHERWISE IN CONNECTION WITH, THIS AGREEMENT, FOR:
(A)ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES;
(B)ANY LOSS OF PROFITS, LOSS OF BUSINESS, LOSS OF REVENUE, OR LOSS OF ANTICIPATED SAVINGS;
(C)ANY LOSS OF, OR DAMAGE TO, DATA, REPUTATION, OR GOODWILL; AND/OR
(D)THE COST OF PROCURING ANY SUBSTITUTE GOODS OR SERVICES.
13.2.THE COMBINED AGGREGATE LIABILITY OF HolowayAND ALL Holoway AFFILIATES UNDER, OR OTHERWISE IN CONNECTION WITH, THIS AGREEMENT SHALL NOT EXCEED THE LOWER OF: (A) FIVE EURO'S (US €5), AND (B) THE AMOUNTS ACTUALLY PAID BY YOU (IF ANY) TO Holoway OR A Holoway AFFILIATE DURING THE THREE (3) MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH YOU BRING YOUR CLAIM.
12.3.THE FOREGOING EXCLUSIONS AND LIMITATIONS SHALL APPLY: (A) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW; (B) EVEN IF Holoway OR A Holoway AFFILIATE HAS BEEN ADVISED, OR SHOULD HAVE BEEN A WARE, OF THE POSSIBILITY OF LOSSES, DAMAGES, OR COSTS; (C) EVEN IF ANY REMEDY IN THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE; AND (D) REGARDLESS OF THE THEORY OR BASIS OF LIABILITY, INCLUDING WITHOUT LIMITATION MATERIAL BREACH, NEGLIGENCE, MISREPRESENTATION, STRICT LIABILITY, OR OTHER CONTRACT OR TORT LIABILITY.
12.4.Some jurisdictions' Laws do not allow the exclusion or limitation of incidental or consequential damages, or of other damages, and to the extent applicable to you, such exclusions and limitations shall not apply. Furthermore, nothing in this Agreement shall be deemed to exclude or limit liability for death or personal injury resulting from negligence, or for fraud or fraudulent misrepresentation.
12.5 ACKNOWLEDGE AND AGREE THAT THIS SECTION (LIMITATION OF LIABILITY) IS AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN YOU AND Holoway.
If any third party (including, but not limited to, a regulatory or governmental authority) brings any kind of demand, claim, suit, action or proceeding against Holoway, a Holoway Affiliate, and/or any of our respective directors, officers, employees, or representatives (each, an "Indemnitee"), and it is based upon or arises from:
(a)your use of the Api; and/or
(b)your breach of any provision of this Agreement
(each of the foregoing, an "Indemnity Claim") then, upon written request by Holoway (to be decided in our sole discretion), you agree to assume full control of the defense and settlement of the Indemnity Claim; provided, however, that (c) Holoway reserves the right, at any time thereafter, to take over full or partial control of the defense and/or settlement of the Indemnity Claim, and in such cases you agree to reasonably cooperate with Holoway's defense activities at your own cost and expense; and (d) you shall not settle any Indemnity Claim, or admit to any liability thereunder, without the express prior written consent of the Indemnitee(s).
In addition, and regardless of whether (or the extent to which) you controlled or participated in the defense and/or settlement of an Indemnity Claim, you agree to indemnify and hold harmless the Indemnitee(s) for and against: (e) any costs and expenses (including reasonable attorneys' fees) incurred by the Indemnitee(s) in the defense of the Indemnity Claim; and (f) any amounts awarded against, or imposed upon, the Indemnitee(s) under such Indemnity Claim, or otherwise paid in settlement of the Indemnity Claim (including without limitation any fines or penalties).
14.TERM AND TERMINATION
14.1.Term. This Agreement commences on the Effective Date and shall continue in full force and effect until terminated in accordance herewith (the "Term").
14.2.Termination by Holoway. Holoway reserves the right to immediately terminate this Agreement, or otherwise modify, suspend or discontinue your access to and use of the Api (or any part thereof), for any reason whatsoever, at any time, and without notice or obligation to you, and you agree that Holoway shall have no liability to you for any such termination, modification, suspension, or discontinuance.
14.3.Termination by You. You may terminate this Agreement at any time and for any reason, but only by either: (a) uninstalling the Api and cancelling your Api Account; or (b) giving Holoway ten (10) days' prior written notice, at . If you object to any term or condition of this Agreement or any subsequent changes thereto, or become dissatisfied with the Api in any way, your sole remedy is to terminate this Agreement. To uninstall the Api, please use the application manager provided with your Device (or otherwise consult your Device manual).
15.CONSEQUENCES OF TERMINATION; SURVIVAL
Upon termination of this Agreement: (a) the License will automatically terminate and be deemed revoked, and you must immediately cease use of the Api and uninstall and permanently delete it from the Device (as well as any other copies); and (b) your access to your Api Account will be disabled, and Holoway may permanently delete your Activity Data. Sections 11 (Ownership) through 19 (Miscellaneous) shall survive termination of this Agreement, as shall any right, obligation or provision that is expressly stated to so survive. Termination shall not affect any rights and obligations accrued as of the effective date of termination.
This Agreement (including without limitation its validity and formation) shall be governed by, and construed in accordance with, the laws of the State of New York, USA without regard to any conflicts of laws rules or principles. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement and is hereby disclaimed.
17.1.Assignment. Holoway may assign this Agreement (or any of its rights and/or obligations hereunder) without your consent, and without notice or obligation to you. This Agreement is personal to you, and you shall not assign (or in any other way transfer) this Agreement (or any of your obligations or rights hereunder) without Holoway's express prior written consent. Any prohibited assignment shall be null and void.
17.2.Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, illegal, or unenforceable, then: (a) the remaining provisions of this Agreement shall remain in full force and effect; and (b) such affected provision shall be ineffective solely as to such jurisdiction (and only to the extent and for the duration of such invalidity, illegality, or unenforceability), and shall be substituted (in respect of such jurisdiction) with a valid, legal, and enforceable provision that most closely approximates the original legal intent and economic impact of such provision.
17.3.Remedies. Except as may be expressly stated otherwise in this Agreement, no right or remedy conferred upon or reserved by any party under this Agreement is intended to be, or shall be deemed, exclusive of any other right or remedy under this Agreement, at law or in equity, but shall be cumulative of such other rights and remedies.
17.4.Waiver. No failure or delay on the part of any party in exercising any right or remedy under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or remedy preclude any other or further exercise thereof or the exercise of any other right or remedy. Any waiver granted hereunder must be in writing (for waivers by you, emails will be acceptable; for waivers by Holoway, the writing must be duly signed by an authorized representative of Holoway), and shall be valid only in the specific instance in which given.
17.5.Relationship. The relationship of the parties is solely that of independent contractors. Nothing in this Agreement shall be deemed to create any employment, fiduciary, joint venture, agency or other relationship between the parties.
17.6.Notices. You agree that Holoway may send you notices by email, via your Api Account, by regular mail, and/or via postings on or through Api. Except as stated otherwise in this Agreement or required by Law applicable to you, you agree to send all notices to Holoway, to thomas@getHoloway.Api .
17.7 Third Party Beneficiaries. Except as otherwise expressly provided in this Agreement (such as Holoway Affiliates, Holoway's licensors and suppliers, other Api users, and Indemnitees), there shall be no third-party beneficiaries of or under this Agreement.
17.8.Force Majeure. Holoway shall not be responsible for any failure to perform any obligation or provide any service hereunder because of any (a) act of God, (b) war, riot or civil commotion, (c) governmental acts or directives, strikes, work stoppage, or equipment or facilities shortages, and/or (d) other similar cause beyond Holoway's reasonable control. For the avoidance of doubt, any problems relating to the hosting of the Api shall not be deemed within Holoway's reasonable control.
17.9.Use of the Api in a Vehicle. If you are using the Api in a vehicle, you agree: (a) to comply with all applicable traffic Laws; and (b) if you are the driver, not to use the Api unless your vehicle is stationary and legally parked.
17.10.Counterparts. This Agreement may be executed in any number of counterparts, all of which taken together shall constitute one and the same instrument.
You should print a copy of this Agreement for future reference.
API PLATFORM USAGE RULES
If you download the Api from the Apple, Inc. ("Apple") Api Store (or in any event if you download an Apple iOS Api) then, without derogating from the warranty disclaimers and limitation of liability as set forth in the Agreement:
By entering into the Agreement you, to the extent legally permitted, hereby waive any applicable law requiring that the Agreement be localized to meet your language and other local requirements. To the extent that the foregoing is not permitted, you agree to be bound by the standard Apple Licensed Api End User License Agreement which is part of the Apple Api Store Terms of Service, at www.apple.com/legal/itunes/us/terms.html#SERVICE (as amended from time to time).
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