By downloading, installing, activating, accessing, or otherwise using the Control application (the “Control App”) provided by Orienteers Oy (the “Company”), you as the licensee (the “Licensee”) confirm having carefully familiarized yourself with and agree to be bound by the terms and conditions set forth below in this End User License Agreement (the “EULA”).
The Company may amend the terms of this EULA from time to time at its sole discretion and the most current EULA is available at the Company’s website. Major amendments will be notified via Control App or by e-mail. The Licensee accepts the amended terms by continuing to use the Control App.
GRANT OF LICENSE
Control App is licensed, not sold. Subject to payment of applicable fees and compliance with this EULA, the Company’s privacy policy as available at the Company’s website and any possible regulations or requirements set forth by the Company, the Company grants to the Licensee a limited, non-exclusive, non-assignable and non-transferable license to use the Control App and services provided thereunder.
The Licensee undertakes not and will not permit any third party to (i) transfer, sell, sublicense, or assign the Licensee’s rights hereunder to any other person or entity; (ii) distribute or make the Control App available over a network where it could be used by multiple devices at the same time, (iii) modify, adapt, translate or create derivative works of the Control App; or (iv) reverse engineer, decompile, decrypt, disassemble or otherwise attempt to derive the source code, underlying ideas, algorithms, file formats or programming interfaces of the Control App, any updates, or any part thereof, by any means whatsoever, except to the extent that this restriction is expressly prohibited by applicable law and then only if expressly authorized in writing by the Company. The Licensee must promptly notify the Company if it becomes aware of any unauthorized use of the whole or any part of the Control App by any third party.
The Licensee undertakes to secure all its confidential account data, including but not limited to username or password or any other identity or security information, specifically not allowing any third-party to access to any such data.
OWNERSHIP
The Company retains ownership and all right, title and interest (including, without limitation, all patent, copyright, trademark, service mark, logo or trade name, trade secret and other intellectual property rights, or any tangible or intangible property rights throughout the world) in and to the Control App including copies, improvements, enhancements, derivative works and modifications thereof at all times, and regardless of the form or media in or on which the original or other copies may subsequently exist.
The Licensee’s rights to use the Control App are limited to those expressly granted by this EULA. No other rights with respect to the Control App or any related intellectual property rights are granted or implied.
REQUIREMENT TO USE CONTROL APP AND RELATED SERVICES
The Control App and services provided thereunder are intended solely for persons at least 13 years of age, or any other higher age as required by applicable law. The Licensee represents and warrants that it has the legal authority to accept and agree to this EULA itself, or that it has acquired the acceptance and agreement to this EULA from its parent or legal guardian.
The Licensee is solely responsible for its use of Control App or services provided thereunder, including but not limited to confirming the compliance with this EULA and all applicable laws related to the use of Control App or services provided thereunder, as well as to ensuring its ownership to the content the Licensee shares to others via the Control App.
The Licensee agrees to obtain its own compatible hardware and suitable device(s), internet connection and backup devices or services as required for the use of Control App and any services provided thereunder.
FEES AND PAYMENT
The basic use of Control App is free of charge. However, to access certain features and functionalities of the Control App or services provided thereunder, the Licensee may be required to pay a subscription fee (including possibly applicable taxes). The Licensee may be offered a free trial period before any subscription fee is required to be paid. The length and content of such trial period may vary and are presented in the Control App. The Company reserves the rights to modify the features of the subscription and increase the subscription fees as well as to introduce new fees at any time.
The Licensee must designate its preferred payment method and provide up-to-date payment information to the Company or possible third-party service provider, such as iTunes or Google Play. The Company is not liable for any payments made through third-party service providers and will not make any refunds to the Licensee.
The subscription fees are paid in advance and on a recurring basis as selected by the Licensee. Such fees will auto-renew until the Licensee downgrades or terminates its subscription under the terms of this EULA.
THIRD PARTY WEBSITES AND SERVICES
The Company may offer third-party services through the Control App or provide links or references to third-party websites or services. The Licensee is not obliged to use such third-party websites or services or otherwise transact with such any third parties, however, if the Licensee accesses any third-party website or purchases any third-party services, the payment thereof and all other applicable terms and conditions are solely between the Licensee and such third-party service provider, and not the Company. Any access to third-party websites or use of any third-party services are at the sole risk of the Licensee. The Company has no control of such websites or services and do not assume any liability for any damage or loss of any kind incurred to the Licensee for or due to their content, functionality, or practices.
WARRANTY DISCLAIMER
The Control App may be inaccessible or inoperable from time to time, including but not limited to reasons due to (i) equipment malfunctions; (ii) periodic maintenance or repairs by the Company; or (iii) causes beyond the Company’s control or that are not otherwise reasonably foreseeable.
THE USE OF CONTROL APP AND SERVICES PROVIDED THEREUNDER IS AT THE LICENSEE’S SOLE RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE CONTROL APP AND SERVICES PROVIDED THEREUNDER ARE PROVIDED “AS IS” AND WITH ALL FAULTS, WITHOUT ANY WARRANTY OF ANY KIND, INCLUDING WITHOUT LIMITATION ANY EXPRESS, IMPLIED OR STATUTORY WARRANTIES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO ANY WARRANTY OF FUNCTIONALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, LACK OF VIRUSES OR FREEDOM FROM INFRINGEMENTS, ACCURACY OR COMPLETENESS, RESULTS, AND LACK OF NEGLIGENCE OR LACK OF WORKMANLIKE EFFORT. FURTHERMORE, THERE IS NO WARRANTY OR CONDITION OF TITLE, QUIET ENJOYMENT, QUIET POSSESSION, CORRESPONDENCE TO DESCRIPTION, OR NON-INFRINGEMENT, WITH REGARD TO THE CONTROL APP. THE CONTROL APP IS NOT, AND WILL NOT BE, ERROR FREE OR RUN WITHOUT INTERRUPTION OR THAT ANY SECURITY MECHANISMS IMPLEMENTED BY THE CONTROL APP WILL NOT HAVE INHERENT LIMITATIONS. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY THE COMPANY, ITS PARTNERS OR SUPPLIERS SHALL CREATE A WARRANTY, DUTY, OR CONDITION OR IN ANY WAY INCREASE THE SCOPE OF THIS WARRANTY.
LIMITATION OF LIABILITY
TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, UNDER NO CIRCUMSTANCES WILL THE COMPANY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF OR INABILITY TO USE THE CONTROL APP OR SERVICES PROVIDED THEREUNDER, OR OTHERWISE UNDER OR IN CONNECTION WITH ANY PROVISION OF THIS EULA, INCLUDING POSSIBLE PHYSICAL DAMAGES OR PAIN AND SUFFERING OR DAMAGES ARISING FROM TORT, BREACH OF CONTRACT OR BREACH OF WARRANTY, INCLUDING DAMAGES FOR INTERRUPTED COMMUNICATIONS, LOST DATA, PRIVACY OR LOST PROFITS, REVENUE OR GOODWILL, COST OF REPLACEMENT SERVICES OCCASIONED BY ANY DEFECT IN THE CONTROL APP, THE INABILITY TO USE SERVICES PROVIDED HEREUNDER OR ANY OTHER CAUSE WHATSOEVER WITH RESPECT TO THE CONTROL APP OR THE EULA, EVEN IF THE LICENSEE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL THE COMPANY’S AGGREGATE LIABILITY FOR ANY CLAIM ARISING OUT OF THE CONTROL APP EXCEED 100 EUROS. IF THE LOCAL APPLICABLE LAW DOES NOT ALLOW ABOVE LIMITATIONS OF LIABILITY, IN SUCH CASE THE ABOVE LIMITATIONS WILL APPLY TO THE MAXIMUM EXTENT ALLOWED BY SUCH APPLICABLE LAW.
INDEMNITY
The Licensee agrees to defend, indemnify and hold the Company and its partners, suppliers, officers, directors, and employees harmless from and against any claims, actions or demands, including but not limited to reasonable legal fees, alleging or resulting from the Licensee’s violation of (i) this EULA; or (b) the Company’s intellectual property rights, any third party rights or any applicable law when using the Control App or services provided thereunder.
TERMINATION
This EULA remains in force until terminated by the Company or the Licensee.
The Licensee is entitled to downgrade to the basic use of the Control App or terminate its subscription as a whole and cease the use of Control App and any services provided thereunder at any time. The downgrading or termination enters into force at the end of the then-current billing period.
The Company may, under certain circumstances and without a prior notice, suspend or terminate the Licensee’s access to the Control App or any services provided thereunder, including but not limited to, in the event of (i) Licensee’s breach of any terms of this EULA or the Company’s privacy policy, (ii) Licensee’s nonpayment of possible subscription fees, or (iii) request by any judicial or governmental body. The Company may also discontinue the Control App or any services provided thereunder, in whole or in part, at its sole discretion at any time. The Company is not liable to the Licensee or any third party for any such suspension, termination, or discontinuance.
OTHER TERMS
Severability. If any provision, in whole or in part, of this EULA shall be held by a court of competent jurisdiction to be illegal, invalid, or unenforceable, then the provision in question shall be deemed removed and the remaining provisions shall remain in full force and effect.
Assignment. This EULA is not assignable, transferable, or sublicensable by the Licensee.
No waiver. A waiver by either party of any term or condition of the EULA or any breach thereof, in any instance, shall not be deemed or construed to be a waiver of such term or condition or any subsequent breach thereof.
Headings. Any heading, caption or section title contained in this EULA is inserted only as a matter of convenience and in no way defines or explains any section or provision hereof.
GOVERNING LAW AND DISPUTE RESOLUTION
The license herein and this EULA shall be governed by the substantive laws of Finland without regard to its principles and rules on conflict of laws. Any dispute, controversy or claim arising out of or relating to the license or this EULA, or the breach, termination, or validity thereof, shall be primarily settled by negotiation, and if the negotiations do not result in settlement within thirty (30) days from the commencement thereof, finally by arbitration in accordance with the Arbitration Rules of the Finland Chamber of Commerce. The Arbitral Tribunal shall be composed of one (1) arbitrator. The seat of arbitration shall be in Helsinki, Finland. The language to be used in the arbitral proceedings shall be English. The arbitral award shall be final, binding, and non-appealable.
If the Licensee resides in the U.S., the license herein and this EULA shall be governed by the substantive laws of State of California without regard to its principles and rules on conflict of laws. Any dispute, controversy or claim arising out of or relating to the license or this EULA, or the breach, termination, or validity thereof, shall be primarily settled by negotiation, and if the negotiations do not result in settlement within thirty (30) days from the commencement thereof, finally by arbitration in accordance with the International Arbitration Rules of the American Arbitration Association. The Arbitral Tribunal shall be composed of one (1) arbitrator. The seat of arbitration shall be in San Francisco, California. The arbitral award shall be final, binding, and non-appealable. The Licensee agrees to file any claim hereunder against the Company within one (1) year after the grounds for such claim arose. The Licensee further agrees to waive its right to participate any class action or other representative action, unless the applicable law does not allow such waiver, or it is found to be void or unenforceable by a competent court.
The local applicable mandatory consumer protection laws may supersede the terms of this provision, in which event the Licensee is entitled to invoke such applicable laws against the Company.
In all events, it is specifically agreed that the application of the United Nations Convention on Contracts for the International Sale of Goods (CISG) is excluded from this EULA.