Software License Agreement

Mobile Software Application License Agreement

Please carefully read this Mobile Software Application License Agreement (“Agreement”).  This Agreement establishes the terms and conditions under which Treat, Inc., on behalf of itself and its affiliates (“Company”), will permit the download, installation, and operation of the Software you are attempting to download or install.  This Agreement forms a binding legal agreement between, on one hand, Company and, on the other hand, you and your employer and/or any other entity or organization that you are acting on behalf of or otherwise acting as an agent of (collectively, “You” or “Your”).  Company is willing to allow you to download, install, and operate the Software, provided that you accept and agree to be bound by this Agreement.

BY CLICKING “I AGREE”, OR BY DOWNLOADING, INSTALLING, OR OPERATING THE SOFTWARE, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF YOUR EMPLOYER OR ANOTHER ENTITY, BY CLICKING “I AGREE” YOU REPRESENT THAT YOU HAVE AUTHORITY TO BIND THAT ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY OR YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT CLICK “I AGREE” OR DOWNLOAD, INSTALL, OR OPERATE THE SOFTWARE.

SECTION 22 OF THIS AGREEMENT CONTAINS PROVISIONS, WITH LIMITED EXCEPTIONS, REQUIRE DISPUTES BETWEEN YOU AND Company TO BE SUBMITTED TO BINDING AND FINAL ARBITRATION. PLEASE SEE SECTION 22 FOR MORE INFORMATION REGARDING THIS ARBITRATION AGREEMENT.

      1. Additional Agreements. If You are a customer of Company or are accessing the Software on behalf of a Customer of Company, then this Agreement is in addition to the Treat Mobile App Terms of Use and Privacy Policy (collectively, the “Terms”) and any other agreement you enter into with Company (collectively, “Additional Agreements”). Your use of the Software is subject to compliance with both this Agreement and the Terms.  If for any reason you have not entered into the Terms at the time you enter into this Agreement, then by entering into this Agreement, you agree to enter into and be bound by the Terms.  In the event of a conflict between this Agreement and the Terms, the terms of this Agreement will control as to the Software and Your rights to download, install, operate, or otherwise access or use the Software and the Terms (and any other Additional Agreement) will control in all other respects.
      2. Software.  As used in this Agreement, the term “Software” means not only the mobile software application You are currently attempting to download or install, but also any updates, upgrades, bug fixes or enhancements thereto, as well as any accompanying manuals, packaging, documentation and other written files, electronic or on-line materials or documentation, and all copies of any of the foregoing.  For the avoidance of doubt, Company has no obligation to provide any updates, upgrades, bug fixes or enhancements to the Software.  You acknowledge that the Software and information that You receive through the Software constitute valuable trade secrets of Company and You agree to keep the Software confidential.  Company reserves the right to suspend, remove or disable access to the Software at any time without notice and Company will not be liable to You for the same. 
      3. Your Account. You may be permitted to use the Software to access Your account with Company (Your “Account”) using a user identification and password that Company has assigned You in connection with Your Account (“User ID”).  Your User ID is personal to You and may be used only by You with Your copy of the Software.  You will ensure that all information about You provided to Company in connection with establishing Your User ID is and remains accurate and complete.  You are solely responsible for all use of the Software and all access to Your Account through the Software.  You will ensure the security and confidentiality of Your User ID and prevent unauthorized access to or use of the Software using Your User ID.  You will notify Company promptly of any unauthorized access or use of the Software, Your User ID, or Your Account or if Your User ID or Account is lost, stolen, or otherwise compromised.  In no event will Company be liable for the foregoing obligations or Your failure to fulfill such obligations. 
      4. Application Stores. The Software may be obtained through a third-party distribution platform and is to be used on a mobile device owned or controlled by You that operates such third-party’s operating system (“Device”).  For the avoidance of doubt, no such third-party is a party to this Agreement.  The Software may also be subject to terms and conditions and privacy policies of such third-party and Company is not a party to nor responsible for the same.  
      5. Third-Party Software. The Software may include software owned or provided by third-parties.  If any such third party software is indicated to be subject to the terms of a third party software license separate from this Agreement, then the terms of that third party license will apply to such third party software independent of the terms of this Agreement.  All other third party software included in or with the Software will be subject to the terms of this Agreement and may be used by You only under the terms of this Agreement.  Nothing in this Agreement is intended to limit Your rights under, or to grant rights or impose restrictions that supersede, the terms of any open source software license applicable to any such third party software. 
      6. Ownership. The Software is licensed, not sold, to You for use under the terms of this Agreement.  All Software and all intellectual property and proprietary rights therein and related thereto are the sole and exclusive property of Company.  Except as expressly stated in this Agreement, Company grants no rights or licenses to You (whether by implication, estoppel, or otherwise) in or to the Software or any intellectual property or proprietary rights of Company or its licensors and Company and its licensors retain and reserve all rights in and to the Software and all such intellectual property and proprietary rights.  If the terms of this Agreement do not provide You with rights to this Software, then You are provided no licenses or rights with respect to the Software. 
      7. Term.  This Agreement will begin on the first to occur of, you clicking “I Agree” or first downloading, installing, or operating the Software, and will automatically terminate effective upon any breach of these terms by You, with or without notice from Company.  This Agreement will also terminate upon any termination of the Terms.  Moreover, Company may also terminate this Agreement at any time upon notice to You.  Upon termination of this Agreement, all rights and licenses to the Software granted to You in this Agreement will immediately cease to exist and You agree to promptly discontinue all use of the Software and destroy the Software and all copies thereof in Your possession or control.  The following provisions of this Agreement will survive termination: 6(Ownership), 11 (Representations), 12 (Indemnification), 13 (Limitation of Liability), 14 (Disclaimer of Warranties), 15 (Equitable Relief), 19 (Publicity), 20 (Notice), 22 (Agreement to Arbitrate) and 23 (Miscellaneous). 
      8. License Grant. If You are a customer of Company, then conditioned on Your compliance with the terms and conditions of this Agreement and the Terms, You are hereby provided a non-exclusive, limited, personal, non-transferrable, non-sublicenseable license to install and use Software on a single Device owned or controlled by You solely in connection with Your use of Company’ Offerings (as defined in and governed by the Terms) provided to You under the Terms during the term of this Agreement.
        If You are not a customer of Company, including if You are an employee or contractor of Company, then conditioned on Your compliance with the terms and conditions of this Agreement, You are hereby provided a non-exclusive, limited, personal, non-transferrable, non-sublicenseable license to install and use the Software on a single Device owned or controlled by You solely to
      9. Restrictions.  You may not and will not permit any third party to: (1) modify, adapt, alter, translate, or create derivative works of or from the Software; (2) use or merge the Software or any component or element thereof with other software not provided by Company; (3) sublicense, distribute, sell, or otherwise transfer the Software to any third party; (4) use the Software for service bureau use, or lease, rent or loan the Software or the use thereof to any third party; (5) reverse engineer, decompile, disassemble or otherwise attempt to modify or derive the source code for any portions of the Software not made available to You by Company in source code form; (6) impersonate any other person or entity in Your use of the Software; (7) access or attempt to access any information regarding any other person or entity or the Company Offerings provided to any other person or entity; (8) circumvent or overcome (or attempt to circumvent or overcome) any technological protection measures intended to restrict access to the Software, Your Account, or any systems of Company; (9) challenge the validity or enforceability of this Agreement; or (10) exploit the Software in any unauthorized way including, but not limited to, by trespass or burdening network capacity.  You may not remove, alter or obscure any trademark, logo, copyright notice or any other proprietary notice that appears on or in the Software or on any copies. 
      10. Errors.  You acknowledge that the Software may include pre-release versions of software, as well as bugs, viruses and other errors, may have limited functionality, may be subject to interruptions or delays in service, may not process data properly, may not operate in accordance with any specifications or documentation, and/or may not support or be supported by Your business requirements or Your Device on which You operate the Software (“Errors”).  Any documentation, user’s manuals, specifications, and other materials supplied by Company pertaining to the Software may contain inaccuracies or typographical errors.
      11. Representations.  You represent, warrant, and covenant that: (a) You are 18 years of age or older; (b) You have the right to and are able to enter into this Agreement; (c) any information submitted by You during the registration process or in connection with Your Account is accurate; and (d) all Your use of the Software is and will remain in compliance with all applicable laws, rules and regulations and will not cause You, Company or any third party to violate any laws, rules or regulations.  
      12. Indemnification.  You will, at Your own expense, indemnify, defend, and hold harmless Company and its licensors, and each of their respective officers, directors, employees, contractors, contributors, and agents from and against all claims, causes of action, costs, damages, losses, liabilities, and expenses (including reasonable attorney’s fees) arising out of, relating to, or resulting from Your download, installation, operation, or other access to or use of the Software or Your breach of this Agreement or the Terms.  Company will give You notice of any such claim for indemnification by Company. 
      13. Limitation of Liability. YOUR USE OF THE SOFTWARE IS AT YOUR OWN RISK, AND YOU AGREE THAT IN NO EVENT WILL COMPANY BE LIABLE FOR ANY DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION, DIRECT DAMAGES, INDIRECT DAMAGES, CONSEQUENTIAL DAMAGES, SPECIAL DAMAGES, INCIDENTAL DAMAGES, PUNITIVE DAMAGES OR ANY SIMILAR DAMAGES, OR FOR ANY LOST PROFITS OF ANY KIND OR NATURE WHATSOEVER ARISING OUT OF, RELATING TO, OR RESULTING FROM THIS AGREEMENT, THE SOFTWARE OR THE USE OR OPERATION THEREOF, EVEN IF YOU HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR LOSS AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY, HOWEVER CAUSED AND WHETHER UNDER THEORY OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE. IN STATES WHERE LIMITATIONS OF LIABILITY FOR ANY OF THE FOREGOING ARE NOT PERMITTED, THEN YOU AGREE THAT THE MAXIMUM TOTAL LIABILITY OF COMPANY RELATING TO THIS AGREEMENT, THE SOFTWARE, OR THE OPERATION OR USE THEREOF, WILL BE LIMITED TO (a) $100 OR (b) IN STATES WHERE A LIMITATION OF LIABILITY OF $100 WOULD BE DEEMED UNENFORCEABLE, THE MAXIMUM EXTENT PERMITTED BY LAW.
      14. Disclaimer of Warranties and Indemnities. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SOFTWARE AND ANY RESULTS OBTAINED FROM THE USE OR OPERATION THEREOF ARE PROVIDED “AS-IS” AND COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES WHATSOEVER REGARDING THE SOFTWARE OR THE USE OR OPERATION THEREOF. WITHOUT LIMITING THE FOREGOING, COMPANY MAKES NO WARRANTY THAT THE SOFTWARE OR THE USE OR OPERATION THEREOF WILL BE UNINTERRUPTED OR ERROR- OR VIRUS-FREE. COMPANY HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES WITH RESPECT TO THE SOFTWARE OR THE USE OR OPERATION THEREOF, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED REPRESENTATIONS OR WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN ANY ADDITIONAL AGREEMENT, COMPANY HEREBY DISCLAIMS, AND YOU HEREBY AGREE THAT COMPANY SHALL NOT BE LIABLE FOR, ANY DEFENSE, INDEMNITY OR HOLD HARMLESS OBLIGATIONS IN CONNECTION WITH THIS AGREEMENT, THE SOFTWARE OR THE USE OR OPERATION THEREOF.
      15. Improvements; Feedback. You shall, and hereby do, assign to Company Your entire right, title and interest (including, without limitation, all patent rights, design rights, copyrights and trade secrets) in any modifications or improvements to the Software which You may propose or make at any time (“Improvements”).  You shall, and hereby do, assign to Company Your entire right, title and interest in any suggestions, comments and feedback You provide to Company regarding the Software, including but not limited to its usability, bug reports, and testing results (collectively, “Feedback”).  Company may use and otherwise exploit the Feedback and Improvements as it wishes with no compensation to You.  In the event that any of Your rights with respect to any Improvement or Feedback are not fully assignable or otherwise transferable to Company for any reason whatsoever, You shall, and hereby do, grant to Company an exclusive (including with regard to You and Your affiliates), irrevocable, perpetual, royalty-free, worldwide license in and to all of Your rights with respect to such Improvement or Feedback and all intellectual property rights therein.  You shall notify Company of any Improvement within a reasonable time after its development and provide Company with access to all information concerning such Improvement as Company shall reasonably request. 
      16. Equitable Relief. You agree that any use of the Software in breach of this Agreement will cause Company irreparable harm for which monetary damages is not an adequate remedy; in such event, Company will be entitled to injunctive or other equitable relief in any court of competent jurisdiction without prejudice to any other right or remedy and without posting a bond or proving actual damages. 
      17. S. Government. The Software is a “commercial item” as that term is defined at FAR 2.101 (Oct 1995), consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212 (Sep 1995) and is provided to the U.S. Government only as a commercial end item.  Consistent with FAR. 12.212 and DFARS 227.7202 (Jun 1995), all U.S. Government End Users acquire the Software with only those rights set forth herein.
      18. Export. The Software and related technology are subject to U.S. export control laws and may be subject to export or import regulations in other countries.  You agree to strictly comply with all such laws and regulations and acknowledges that You have the responsibility to obtain such licenses to export, re-export, or import as may be required. 
      19. Publicity.  Neither party may make any public statement, press release, or other public announcement relating to the terms of this Agreement or any relationship between the parties without the prior written consent of the other party, except as required by law; provided, however, that Company may identify You as a customer on any Company customer list. 
      20. Notice. Any notice to be given or delivered by You to Company under this Agreement will be in writing and addressed and delivered Company at:

        XpresSpa Group, Inc.
                     254 W 31st Street

        New York, NY 10001
                     privacyoffice@xpresspa.com
                     877-SPA-3434

        All notices sent to Company will be sent by US mail (postage prepaid), using a reputable, expedited overnight or international courier, or hand delivered.  All notices will be deemed to have been received by Company on the day actually received by Company.  Any notice by Company to You under this Agreement may be provided to You either through the Software itself or at the email address or street address provided by You to Company or in connection with the download of the Software or otherwise on file with Company.  All notices will be deemed to have been received by You on the 3rd business day after which such Notice is sent by Company.  Either party may change its address for receipt of Notice purposes upon issuance of Notice thereof in accordance with this Section. 

      21. M Company may modify this Agreement at any time.  Company will notify You of any modifications as set forth in this Agreement.  You are responsible for regularly reviewing such modifications.  By using the Software after such modifications are made, You agree to comply with such modifications. 
      22. Agreement to Arbitrate. Except as otherwise provided in this Section, the parties will attempt to resolve all disputes, controversies, or claims arising under, out of, or relating to this Agreement, including the formation, validity, binding effect, interpretation, performance, breach or termination, of this Agreement and the arbitrability of the issues submitted to arbitration hereunder and non-contractual claims relating to this Agreement (each, a “Dispute”) through discussion between the parties. Except as otherwise provided below, if any Dispute cannot be resolved through negotiations between the parties within 10 days of notice from one party to the other of the Dispute, either party may submit such Dispute for final settlement through binding arbitration under the Rules of American Arbitration Association then in effect (the “Rules”).  Either party may commence the arbitration by delivering a request for arbitration as specified in the Rules.  The arbitration will be conducted before a sole neutral arbitrator, selected as provided in the Rules.  The arbitration will be conducted in the English language at a site specified by Company in Santa Ana, California, U.S.A.   The arbitrator will apply the law set forth in Section 23 to any such arbitration and shall have the power to award any remedy available at law or in equity; provided, however, that the arbitrator shall have no jurisdiction to amend this Agreement or grant any relief not permitted herein or beyond the relief permitted herein.  The award of the arbitrator will be the exclusive remedy of the parties for all claims, counterclaims, issues or accountings presented or plead to the arbitrator.  The award of the arbitrator will require the non-prevailing party to pay the prevailing party’s costs, fees and expenses (including attorneys’ fees). Judgment upon the award may be entered in any court or governmental body having jurisdiction thereof.  Any additional costs, fees or expenses incurred in enforcing the award may be charged against the party that resists its enforcement. You agree that if Company reasonably believes You have, in any manner, violated or threatened to infringe Company’ intellectual property rights or confidential information, then Company may seek emergency, preliminary or other appropriate interim relief in the federal courts located in New York County, New York, U.S.A. YOU MAY OPT-OUT OF THIS AGREEMENT TO ARBITRATE BY PROVIDING COMMON GROUNDS AN OPT-OUT NOTICE TO THE ADDRESS SET FORTH IN SECTION 20 (“OPT-OUT NOTICE”). THE OPT-OUT NOTICE MUST BE RECEIVED NO LATER THAN 30 DAYS AFTER THE DATE YOU ACCEPT THIS AGREEMENT FOR THE FIRST TIME. ADDITIONALLY, YOU HAVE UNTIL 30 DAYS AFTER THE POSTING OF ANY MODIFIED VERSION OF THIS AGREEMENT TO SUBMIT AN ARBITRATION OPT-OUT NOTICE. IF YOU OPT OUT OF THE AGREEMENT TO ARBITRATE, ALL OTHER PARTS OF THIS AGREEMENT WILL CONTINUE TO APPLY TO YOU. OPTING OUT OF THIS AGREEMENT TO ARBITRATE HAS NO EFFECT ON ANY PREVIOUS, OTHER, OR FUTURE ARBITRATION AGREEMENTS THAT YOU MAY HAVE WITH COMPANY.
      23. Miscellaneous.  English (U.S.A.) will be the language used in all notices and other communications under this Agreement and the English (U.S.A.) version of this Agreement and any notice or communication under this Agreement will prevail in the case of any ambiguity or inconsistency with any version in any other language.  The interpretation of the rights and obligations of the parties under this Agreement, including, to the extent applicable, any negotiations, arbitrations or other proceedings hereunder, will be governed in all respects exclusively by the laws of the State of California (U.S.A.) as such laws apply to contracts between California residents performed entirely within California, without regard to the conflict of laws provisions thereof. Subject to Section 22 each party will bring any action or proceeding arising from or relating to this Agreement exclusively in a federal or state court in Santa Ana, California (U.S.A.), and You irrevocably submit to the personal jurisdiction and venue of any such court in any such action or proceeding brought in such courts by Company. If any provision of this Agreement is held to be unenforceable, that provision will be removed and the remaining provisions will remain in full force.  The parties expressly exclude (as may be applicable) the application of the Uniform Computer Information Transactions Act (UCITA) and the United Nations Convention on the International Sale of Goods.  The failure of either party to require performance by the other party of any provision hereof shall not affect the full right to require such performance at any time thereafter; nor shall the waiver by either party of a breach of any provision hereof be taken or held to be a waiver of the provision itself.  Neither this Agreement nor any of Your rights or obligations hereunder may be assigned, transferred or delegated by You in whole or in part, and whether by operation of law or otherwise, without the prior written approval of Company.  Any assignment, transfer or delegation in derogation of the foregoing shall be null and void.  Company may assign or transfer this Agreement for any reason with or without notice to You.  This Agreement (including the Addendums included herewith) comprises the complete and exclusive statement of the agreement between Company and You with respect to the Software and supersedes any proposal or prior agreement, oral or written, and any other communications between the parties in relation to the subject matter of this Agreement.  Each party is acting solely as an independent contractor and no agency, employment, joint venture, partnership, or fiduciary relationship is created between the parties by this Agreement. 

 

Addendum I: Supplemental Terms for Apple

Notwithstanding anything set forth above, if You obtained a license to the Software through the App Store operated by Apple, Inc. and its affiliates (“Apple”), the following additional terms and conditions apply.

      1. Acknowledgement. Company and You agree that (1) the Agreement is concluded between Company and You only, and not with Apple; (2) Company, not Apple, is solely responsible for the Software and the content thereof; and (3) the Agreement does not provide for usage rules for the Software that are in conflict with the “Apple Media Services Terms and Conditions.”
      2. Scope of License. Company and You agree that the license granted to You for the Software, when downloaded from the Apple App Store, will be limited to a non-transferable license to use the Software on any Apple-branded Devices that You own or control and as permitted by the Usage Rules set forth in the “Apple Media Services Terms and Conditions,” except that such Software may be accessed and used by other accounts associated with You via Family Sharing or volume purchasing.
      3. Maintenance and Support. As between Company and Apple, Company is solely responsible for providing any maintenance and support services with respect to the Software, as specified in the Agreement (if any such services are to be provided thereunder), or as required under applicable law. Company and You agree that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Software.
      4. Warranty. As between Company and Apple, Company is solely responsible for any product warranties related to the Software, whether express or implied by law, to the extent not effectively disclaimed.  In the event of any failure of the Software to conform to any applicable warranty, You may notify Apple, and Apple will refund the purchase price for the Software to You.  To the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Software, and any other claims, losses, liabilities, damages, costs, or expenses attributable to any failure of the Software to conform to any warranty will be Company’s sole responsibility, as between Company and Apple.
      5. Product Claims. Except as provided in the preceding Section, as between Company and Apple, and solely to the extent required under the Agreement, Company is responsible for addressing any claims by You or any third party relating to the Software or Your possession and/or use of the Software, including, but not limited to: (1) product liability claims; (2) any claim that the Software fails to conform to any applicable legal or regulatory requirement; and (3) claims arising under consumer protection, privacy, or similar legislation, including in connection with the Software’s use of the HealthKit and HomeKit frameworks, if applicable.  Company and You agree that the Agreement does not limit Company’s liability to You beyond what is permitted by applicable law.
      6. Intellectual Property Rights. Company and You that, in the event of any third-party claim that the Software or Your possession and use of the Software infringes that third party’s intellectual property rights, as between Company and Apple, Company will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim, solely to the extent required under the Agreement, if at all.
      7. Legal Compliance. You represent and warrant that (1) You are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (2) You are not listed on any U.S. Government list of prohibited or restricted parties.
      8. Developer Name and Address. Company’s name and address, and the contact information (telephone number; E-mail address) to which any Your questions, complaints, or claims with respect to the Software should be directed are included in Section 20 of the Agreement.
      9. Third-Party Terms of Agreement. Pursuant to the Agreement, You will comply with all terms of any third-party license that apply to any third-party software included in the Software.
      10. Third-Party Beneficiary. Company and You agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of the Agreement, and that, upon Your acceptance of the terms and conditions of the Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce the Agreement against You as a third-party beneficiary thereof.
      11. Apple Minimum Terms Control. Company and You agree that if any of the terms and conditions of the Agreement are inconsistent or in conflict with Apple’s applicable instructions for Minimum Terms for Developer’s End User License Agreement, the terms and conditions of Apple’s instructions for Minimum Terms of Developer’s End User License Agreement shall apply.