(1) LICENSE GRANT. Subject to your continued compliance with this Agreement, Wabithra provides to you a single, revocable, limited, non-exclusive, non-transferable, and non-sublicensable license to access and use the Services during the term of this Agreement on your computer, mobile phone, or other computing device and only for personal or internal business purposes. The content layout, formatting, features of and online or remote access processes or privileges for the Services shall be as specified by Wabithra in its sole discretion. You also acknowledge and agree to the following: (i) Wabithra has the right to control and direct the means, manner, and method by which the Services are provided; (ii) Wabithra may, from time to time, engage independent contractors, consultants, or subcontractors to aid Wabithra in providing the Services or use thereof, and (iii) Wabithra has the right to provide the Services to others.
(2) RESTRICTIONS ON USE. All rights not expressly granted under this Agreement are hereby reserved to Wabithra. Accordingly, you are hereby prohibited from using the Services in any manner that is not expressly and unambiguously authorized by this Agreement. You therefore may not modify, reproduce, duplicate, copy, download, store, further transmit, disseminate, transfer, disassemble, reverse engineer, decompile, extract source code, broadcast, publish, remove or alter any proprietary notices or labels, license, sublicense, sell, mirror, frame, rent, lease, private label, grant a security interest in, create derivative works of, or otherwise exploit the Service, or any portion of the Service, without Wabithra’s prior written consent except as expressly and unambiguously authorized herein. Moreover, you may not (a) attempt to gain unauthorized access to any portion or feature of the Services or any other system(s) or network(s) connected to the Services or to any Wabithra server or to any of the services offered on or through the Services by hacking, password “mining,” or any other illegitimate or prohibited means; (b) probe, scan, or test the vulnerability of the Services or any network(s) connected to the Service, nor breach the security or authentication measures on the Services or any network(s) connected to the Service; (c) reverse look-up, trace, or seek to trace any information on any other user of or visitor to the Service; (d) use any device, software, or routine to interfere with the proper working of the Services or any transaction conducted on the Service, or with any other person’s use of the Service; (e) forge headers, impersonate a person, or otherwise manipulate identifiers in order to disguise your identity or the origin of any message or transmittal you send to Wabithra on or through the Service; (f) delete, obscure, or in any manner alter any warning or link that appears in the Service; or (g) use the Services in an unlawful manner, including, without limitation, to post, upload, transmit, or otherwise make available any material which violates, misappropriates, or infringes in any way upon the rights of others, is unlawful, threating, abusive, defamatory, invasive of privacy or publicity rights, vulgar, obscene, profane, or otherwise objectionable, or encourages conduct that would constitute unlawful conduct.
(3) GENERAL RIGHTS YOU GRANT US. You permit Wabithra the right (i) to allow the Services to use the processor, bandwidth, and storage hardware on your mobile device or other device used to access the Services in order to facilitate the operation of the Service, (ii) to provide advertising and other information to you, and (iii) to allow our business partners to do the same. With respect to the foregoing, you hereby allow the Services to access your contacts and all the related information therein for synchronization with your contacts.
To the extent it is necessary for Wabithra to provide the Services, and only to that extent, you further grant to Wabithra a non-exclusive, transferable, sub-licensable, royalty-free, perpetual, irrevocable, fully paid, worldwide right and license to use, reproduce, display, publish, translate, modify, create derivative works from, and distribute the data and information you submit or provide to the Services that is gathered by Wabithra in connection with your use of the Services through any medium, whether alone or in combination with other content or materials, in any manner and by any means, method or technology, whether now known or hereafter created; provided that such data is used in a form that does not personally identify you. You represent and warrant that you have all necessary permissions to share your data and information, and that you have no knowledge of any objection, on the behalf of any of your respected contacts, to share their names and contact information.
(4) ELIGIBILITY. You must be at least 13 years of age to create an account with Wabithra and use the Services. By creating an account and using the Service, you represent and warrant that you are not a person who is barred from using the Services under the laws of the United States or any other applicable jurisdiction, meaning that you do not appear on the U.S. Treasury Department’s list of Specially Designated Nationals or face any other similar prohibition and that you have never been required to register as a sex offender with any state, federal or local sex offender registry.
(5) USER OBLIGATIONS. By downloading, accessing, or using the Service, you covenant that you will abide by all applicable local, state, and national laws and regulations with respect to your use of the Services and that you are at least the legal age to assent to the Agreement without need for parental or guardian consent. You further covenant you will at all times provide true, accurate, current, and complete information (and updates thereto) when submitting information to Wabithra through the Service, and you agree to provide Wabithra reasonable cooperation in connection with operation of or support for the Services. You also acknowledge and agree that additional notices, terms, and conditions may apply to the use of other Wabithra services or solutions. Wabithra will provide notice of any application notices, terms, and conditions for its services or solutions.
(6) ACCOUNT. You will be required to register to use the Services. Each registration is for a single user only, unless otherwise expressly agreed upon by Wabithra. Registration for access to and use of the Services will also require access credentials, such as a user name and a password, or adherence to other particular access requirements as designated by Wabithra in its sole discretion from time to time. You hereby agree to consider your access credentials, such as a user name and password, as confidential information and not to disclose such information to any third party without the prior express written consent of Wabithra, which may be withheld in its sole discretion. In addition, you agree to assume all responsibility concerning your use of the Service, including being held responsible for any and all activity occurring through your user name and password (and the related account access). You shall immediately notify Wabithra if you suspect or become aware of any loss or theft of your password or any unauthorized use of your user name and password.
(7) FEE & SUBSCRIPTION. The Services are provided, per the terms of this Agreement, without an additional fee unless you have activated designated for-fee features by purchasing a subscription to that service. A subscription functions as an “in-app” purchase option, and subscriptions are yearly (or other periodic) and renew on an annual (or other periodic) basis unless you indicate and request non-renewal through the Services. Subscription payments will be processed by Wabithra or a participating mobile app provider, such as Google Play or Apple iTunes, from which you originally downloaded the application. You may access the applicable “in-app” purchase rules and policies directly from the applicable app store(s). Additional terms or conditions may apply to a subscription at the time of order or renewal.
(8) MOBILE SERVICES. The Services offer various tools or display functionalities that are available to you via your mobile phone or other mobile computing device (collectively, “Mobile Services”). Please note that your mobile carrier’s normal messaging, data, and other rates and fees will apply to your use of the Mobile Services. In addition, downloading, installing, or using certain Mobile Services may be prohibited or restricted by your mobile carrier, and not all Mobile Services may work with all carriers or devices or in all locations. Therefore, you are solely responsible for checking with your mobile carrier to determine if the Mobile Services are available for your mobile devices; what restrictions, if any, may be applicable to your use of the Mobile Services; and how much such use will cost you. Nevertheless, all use of the Services shall be strictly in accordance with this Agreement.
(9) BACKUPS. Backups are maintained for device settings, device characteristics, app data, data you enter, and location data collected through your use of the Services. Wabithra encrypts all personally identifiable data and does not have access to plain text data entered by you. The Services create automatic, encrypted backups of your contacts stored on your devices used to access the Services periodically. If a device has not backed up to Wabithra’s servers for a period of 30 days, Wabithra reserves the right to delete backups associated with that device. Wabithra will also delete all backups if you delete your account.
(10) DATA COLLECTION, COMMUNICATIONS & UPDATES. By installing, accessing, or using the Service, you agree to allow Wabithra to collect (on behalf of itself and its business partners) certain information regarding your use of the Services (including, without limitation, certain data regarding your mobile device (e.g., type of device, unique device ID, etc.), operating software, feature utilization, navigation, and personal information (e.g., name, email, etc.)). In particular, if you elect to use certain location-based features or services, Wabithra may collect your precise location. You authorize Wabithra to locate your device and to record, compile, and/or display your location. Wabithra shall use reasonable skill and due care in providing the Service, but neither Wabithra nor any of its Services and/or content providers guarantees the availability, accuracy, completeness, reliability, or timeliness of location data or any other data displayed by the Services.
Subject to the rights granted to Wabithra above, we maintain location information only so long as is reasonable to provide the Services and then delete location data tied to your personal information. Wabithra may maintain de-identified location data for a longer period of time in order to analyze aggregate trends and metrics or pursuant to Section 3. If you want to opt-out of the collection of your location data, please adjust your settings in your mobile device to limit the app’s access to your location data. Wabithra may use and/or share location information with third parties for purposes of targeting advertising to the device. You also agree to receive electronic communications from Wabithra. These electronic communications may include notices about applicable fees and charges, transactional information, and other information concerning or related to the Services or Wabithra’s other products, solutions, or services. These electronic communications are part of your relationship with Wabithra and you receive them as part of your use of the Services. You therefore hereby agree that any such notices, agreements, disclosures or other communications that we send you electronically will satisfy any legal communication requirements. Further, you understand and agree that installation of the Services permits the downloading of updates and upgrades, including for the purpose(s) of fixing product defects or providing enhancements. You will be given notice and an opportunity to accept or refuse any update or upgrade that we provide; provided, however, that refusal of an update or upgrade may impact performance of the Services.
(12) FEEDBACK. Wabithra welcomes your feedback and suggestions about Wabithra’s products or services or with respect to how to improve the Services. By transmitting any suggestions, information, material, or other content (collectively, “Feedback”) to Wabithra, you represent and warrant that such Feedback does not infringe or violate the intellectual property or proprietary rights of any third party (including, without limitation, patents, copyrights, or trademark rights) and that you have all rights necessary to convey to Wabithra and enable Wabithra to use such Feedback. In addition, any Feedback received by Wabithra will be deemed to include a royalty-free, perpetual, irrevocable, transferable, non-exclusive right and license from you for Wabithra to adopt, publish, reproduce, disseminate, transmit, distribute, copy, use, create derivative works of, and display (in whole or in part) worldwide, or act on such Feedback without additional approval or consideration, in any form, media, or technology now known or later developed for the full term of any rights that may exist therein, and you hereby waive any claim to the contrary.
(13) LINKS TO OTHER SITES. The Services may connect to certain third-party websites or online networks (collectively, “Third-Party Sites”). These Third-Party Sites have not necessarily been reviewed by Wabithra and are owned, controlled and/or maintained solely by third parties over whom Wabithra exercises no control. Your correspondence or any other dealings with third parties found through any Third-Party Sites on the Services is solely between you and such third party. Accordingly, Wabithra hereby expressly disclaims and shall not have any liability or responsibility for any Third-Party Sites.
(14) PROPRIETARY RIGHTS. This Agreement provides only a limited license to access and use the Services in accordance with the terms of this Agreement. Accordingly, you hereby agree that Wabithra transfers no ownership or intellectual property interest or title in and to the Services or any other Wabithra intellectual property to you or anyone else in connection with your use of the Services. All text, graphics, user interfaces, visual interfaces, photographs, sounds, artwork, computer code (including html code), programs, software, products, information, and documentation as well as the design, structure, selection, coordination, expression, “look and feel,” and arrangement of any content contained on or available through the Services are exclusively owned, controlled, and/or licensed by Wabithra LLC or its licensor(s) or affiliate(s). Wabithra, and all other marks identifying the products or services of Wabithra are proprietary trademarks of Wabithra LLC, and any use of such marks, including, without limitation, as domain names, account identifiers, or in connection with any search engine optimization practice(s), without the prior express written permission of Wabithra is hereby strictly prohibited.
(15) CONFIDENTIALITY. You acknowledge and agree that the Services contain proprietary trade secrets and confidential or nonpublic information of Wabithra and/or its licensors (the “Confidential Information”). You agree to secure and protect the confidentiality of the Confidential Information of Wabithra (and/or its licensors) in a manner consistent with the maintenance of Wabithra’s rights therein, using at least as great a degree of care as you use to maintain the confidentiality of your own confidential information of a similar nature, but in no event using less than reasonable efforts. You shall not, nor permit any third party to, sell, transfer, publish, disclose, or otherwise make available any portion of the Confidential Information to third parties, except as expressly authorized in this Agreement.
(16) DISCLAIMER. THE SERVICES ARE PROVIDED ON AN “AS-IS” BASIS AND MAY INCLUDE ERRORS, OMISSIONS, OR OTHER INACCURACIES. WABITHRA HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OR ANY OTHER IMPLIED WARRANTY UNDER THE UNIFORM COMPUTER INFORMATION TRANSACTIONS ACT AS ENACTED BY ANY STATE. TO THE EXTENT PERMISSIBLE BY APPLICABLE LAW, WABITHRA DOES NOT GUARANTEE OR WARRANT THAT ANY CONTENT YOU MAY STORE OR ACCESS THROUGH THE SERVICES WILL NOT BE SUBJECT TO INADVERTENT DAMAGE, CORRUPTION, LOSS, OR REMOVAL IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT. WABITHRA ALSO MAKES NO REPRESENTATIONS OR WARRANTIES THAT THE SERVICES WILL OPERATE ERROR-FREE, UNINTERRUPTED, OR IN A MANNER THAT WILL MEET YOUR PARTICULAR REQUIREMENTS AND/OR NEEDS. THEREFORE, YOU ASSUME THE ENTIRE RISK REGARDING THE QUALITY AND/OR PERFORMANCE OF THE SERVICES. YOU SPECIFICALLY ACKNOWLEDGE THAT WABITHRA IS NOT LIABLE FOR THE DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF OTHER USERS OR THIRD-PARTIES OVER WHICH IT HAS NO CONTROL.
(17) LIMITATION OF LIABILITY. YOU ALSO EXPRESSLY ABSOLVE AND RELEASE WABITHRA FROM ANY CLAIM OF HARM RESULTING FROM A CAUSE BEYOND WABITHRA’S CONTROL, INCLUDING, BUT NOT LIMITED TO, FAILURE OF ELECTRONIC OR MECHANICAL EQUIPMENT OR COMMUNICATION LINES, TELEPHONE OR OTHER CONNECTION PROBLEMS, COMPUTER VIRUSES, UNAUTHORIZED ACCESS, THEFT, OPERATOR ERRORS, SEVERE WEATHER, EARTHQUAKES OR NATURAL DISASTERS, STRIKES OR OTHER LABOR PROBLEMS, WARS, OR GOVERNMENTAL RESTRICTIONS. MOREOVER, AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL WABITHRA BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH ANY DEALINGS OR AGREEMENTS BETWEEN YOU AND ANOTHER USER OF THE SERVICES, YOU AND A THIRD PARTY, THE USE OF THE SERVICE, WITH THE DELAY OR INABILITY TO USE THE SERVICE, THE COST OF PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES, OR FOR ANY INFORMATION, SOFTWARE FUNCTIONALITY (INCLUDING, DATA STORAGE), AND MATERIALS AVAILABLE THROUGH THE SERVICE, WHETHER BASED IN CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE, AND EVEN IF WABITHRA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ADDITION, TOTAL LIABILITY OF WABITHRA FOR ANY REASON WHATSOEVER RELATED TO USE OF THE SERVICES SHALL NOT EXCEED $100 (US) OR THE AMOUNT PAID BY YOU TO WABITHRA (FOR USE OF THE SERVICE) DURING THE TWELVE (12) MONTHS PRECEDING ANY CLAIM, WHICHEVER IS GREATER.
(18) INDEMNIFICATION. You agree to indemnify, defend, and hold Wabithra (and its affiliated companies, contractors, employees, agents, and suppliers and partners) harmless from any and all claims, suits, actions, liabilities, losses, costs, damages, expenses, and any other liabilities, including without limitation attorneys’ fees, arising out of or related in any manner to your use or misuse of the Service, including without limitation your access to or use of the Service, any breach or alleged violation of the rights of any other person or entity by you, including without limitation any intellectual property right, publicity, confidentiality, property or privacy right and any breach or alleged violation by or of this Agreement.
(19) SECURITY & ENFORCEMENT. Wabithra reserves the right in its sole discretion to review, monitor, and/or record any information relating to your use of the Services (“User Information”) without any prior notice to or permission from you, provided that such data is used in a form that does not personally identify you, including, without limitation, by archiving content and/or communications submitted to and/or sent by you through the Services.
Wabithra may share any User Information Wabithra obtains from you with any law enforcement organization in connection with any investigation or prosecution of possible criminal or unlawful activity. Wabithra will also disclose User Information as required by any court order and/or subpoena. In addition, Wabithra hereby reserves the right in its sole discretion to, at any time and without notice, modify, suspend, terminate, and/or interrupt operation of or access to the Service, or any portion thereof, in order to protect the Service, Wabithra’s intellectual property, Wabithra, or the business interests of Wabithra and/or its members and affiliates.
(20) INJUNCTIVE RELIEF. You acknowledge that any breach, threatened or actual, of this Agreement, including, without limitation, violations or infringement of Wabithra’s intellectual property or proprietary rights, may cause irreparable injury to Wabithra, whereby such injury would not be quantifiable in monetary damages, and Wabithra would not have an adequate remedy at law. In the event of such injury or potential for such injury you therefore hereby agree that Wabithra shall be entitled, in addition to other available remedies, to seek and be awarded an injunction or other appropriate equitable relief from a court of competent jurisdiction restraining any breach, threatened or actual, of your obligations under any provision of this Agreement.
(21) GOVERNING LAW. This Agreement has been made in and will be construed and enforced in accordance with the laws of the State of Hawaii as applied to agreements entered into and completely performed in the State of Hawaii. You agree to the personal jurisdiction by and venue in any federal or state court in the State of Hawaii and waive any objection to such jurisdiction or venue and further to a jury trial in any action. You also acknowledge and agree that any applicable state law implementation of the Uniform Computer Information Transactions Act (including any available remedies or laws) shall not apply to this Agreement and is hereby disclaimed. Any claim you might have against Wabithra must be brought within one (1) year after the cause of action arises, or such claim or cause of action is barred. In any legal proceeding brought by Wabithra, Wabithra shall have the right to seek and be awarded all reasonable attorneys’ fees and costs in addition to any other relief, at law or in equity, to which Wabithra may be entitled. A printed version of this Agreement and of any related notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent as other documents and records originally generated and maintained in printed form. Please print a copy of this Agreement or contact Wabithra if you wish to receive a printed copy of this Agreement.
(22) TERM AND TERMINATION. This Agreement will take (re-take) effect at the time you click “I accept”, download the Services, or begin using the Service, whichever is earliest. You may uninstall or delete the Services at any time by utilizing the available uninstall or delete functionality offered by the applicable operating software or mobile device. However, by uninstalling or deleting the Service, you will no longer be able to access the Service’s functionality or related services and will not be entitled to any refund of any amount paid for a subscription. This Agreement will terminate automatically if (i) you fail to comply with any of its terms and conditions; or (ii) cease all use of the Services. Termination will be effective without notice. In addition, Wabithra may in its sole discretion terminate this Agreement or suspend Services upon notice to you for any or no reason. Upon termination of this Agreement, any and all right(s) to use the Services shall immediately cease and you must promptly delete or destroy all copies of the Services in your possession or control. Sections 3, 4, 6, 7, and 11-25 will survive the termination of this Agreement.
(23) WAIVER & SEVERABILITY. Wabithra’s failure to insist upon strict performance of any of the terms and conditions of this Agreement by you will not operate as a waiver of any subsequent default or failure of performance. If any part of this Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable pursuant to applicable law or court order including, but not limited to, the warranty disclaimers and the liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision(s) that most clearly matches the intent of the original provision and the remainder of this Agreement shall continue in effect.
(24) OTHER TERMS AND CONDITIONS. Additional notices, terms, and conditions may apply to subscription, fee, or related payment terms.