Last Updated: 18 November 2022
This End-User License Agreement (Agreement) is between the business or individual accepting this Agreement (this business or individual being you) and Qwoach LLC (Developer). This Agreement is solely between you and Developer, and governs your use of Developer's software application and the corresponding services it provides (together, along with the associated documentation, proprietary, or intellectual property: the App). Review this Agreement completely. You agree to be bound by the terms of this Agreement when you click "Accept" or otherwise download, install, copy, or use the App, and must accept this Agreement before doing so. If you do not agree to the terms of this Agreement, you must click "Decline" and must not download, install, copy or use the App.
1.1 The App will provide you with the ability to: manage yor coaching clients and collect online payments using Clover platform.
1.2 Developer grants you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license during
the Term (defined below) of this Agreement to use the App solely for your internal business purposes. You will
not otherwise distribute, lease, rent, host, sublicense, transfer, sell, export, modify, reverse engineer,
decompile, copy, benchmark, create derivative works from, or attempt to derive the source code for the App. This
license does not grant you any rights to Developer's (or any other third party's) trademarks, service marks,
logos, trade dress, proprietary, or other intellectual property unless provided with the App. Developer reserves
to itself (or applicable third parties) all right, title, interest, and license (express or implied) to the App
that are not specifically granted to you under this Agreement. You will preserve and display any proprietary
notices, markings, or branding associated with use of the App.
1.3 The App may update automatically from time-to-time, and you may be required to accept these updates to
continue using the App. Developer may perform maintenance on the App, which may result in service interruptions
or delays from time-to-time. Developer may not support older versions of the App. You are solely responsible for
obtaining all equipment and services (for example, Internet connectivity) necessary to access and use the App.
You will pay the Developer a monthly fee for your use of the App, which will be automatically collected through the payment method you select during set-up for the App. You are responsible for payment of all sales, use, excise, or similar taxes (excluding taxes based on the Developer's income) imposed by federal, state, or local tax authority. You must notify the Developer of any billing errors within 120 days from when an error appears on your invoice, after which you release the Developer from all liability for Losses (defined below) resulting from these errors.
This Agreement commences when you accept or otherwise download, install, copy, or use the App; and will continue month-to-month until terminated (this period of time is the Agreement's Term).
4.1 Developer may promptly suspend or terminate your use of the App if (1) you violate this Agreement's terms;
(2) Developer believes your use of the App may damage its reputation or intellectual property rights; (3)
Developer suspends or terminates its agreement(s) with any third party involved in providing the App; (4) you
exceed normal and reasonable usage for the App; (5) you experience a bankruptcy or insolvency event; or (6) you
are using the App for any fraudulent, illegal, or unauthorized purpose, or engage in willful misconduct with
respect to use of the App.
4.2 You may terminate this Agreement at any time and for any reason (without cause) by providing notice to
Developer. Your termination will be effective at the end of the then current month or billing period in which
you give notice. You will not receive a refund for the billing period in which you terminate this Agreement.
5.1 Neither of us will disclose non-public information about the other's business; including, without limitation,
the terms of this Agreement, technical specifications (whether related to the App or otherwise), customer lists,
or information relating to a party's operational, strategic, or financial matters (together, Confidential
Information). Confidential Information does not include information that (1) is or subsequently
becomes publicly available (through no fault of the recipient); (2) the recipient lawfully possesses before its
disclosure; (3) is independently developed without reliance on the discloser's Confidential Information; or (4)
is received from a third party that is not obligated to keep it confidential. Each of us will implement and
maintain reasonable safeguards to protect the other's Confidential Information.
5.2 Neither of us may disclose the other's Confidential Information except (1) to our respective directors,
officers, employees, or representatives that need to know it in order to perform our obligations under this
Agreement; (2) in response to a subpoena or court order; or (3) as required by applicable law, rule, or
regulation.
5.3 Developer may use data or information obtained through the App to provide its services, for research and
development, or in aggregated and anonymized form to provide services generally; all subject to applicable Laws
(defined below). Information Developer collects about you or your consumers is subject to Developer's privacy
policy, which is accessible at https://qwoach.com/privacy.
5.4 You may provide, or Developer may invite you to provide, comments or ideas about the App (including, without
limitation, improvements to it) (together, Ideas). By submitting any Ideas, you agree that (1)
they are not Confidential Information; (2) they are not subject to any use or disclosure restrictions (express
or implied); (3) you claim no rights in them; and (4) Developer has no obligation to notify or compensate you in
connection with their disclosure or use. You release Developer from all liability or obligations that may arise
from the receipt, review, disclosure, or use of any Idea that you submit.
You will be required to register for an account with Developer to use the App. You will provide us with accurate information when setting-up your account, and will maintain your account with current information. You will be responsible for establishing safeguards designed to prevent unauthorized access to, disclosure, use, or alteration of your account (safeguards may include, without limitation, user names, passwords, security questions and answers, or other credentials). You must notify Developer if you discover a security breach involving your account or the App. You are responsible for any unauthorized access to, disclosure, use, or alteration of your account, the App, or other transaction information that arises through your systems or account. It is your responsibility to back-up and maintain the accuracy and completeness of any content created, derived from, stored, or accessed through your account or your use of the App (content may include, without limitation, transaction information, text, images, graphics, or photos).
7.1 The App is provided to you "as-is" and "as-available." You are solely responsible for determining if the App
meets your needs. Developer disclaims all warranties (express or implied) related to your account or
the App; including, without limitation, warranties of security, merchantability, fitness for a particular
purpose, non-infringement, accuracy, and uninterrupted or error-free operation. Developer is
not responsible for any disclosures, modifications, deletions, or other errors that arise in connection with
your use of the App due to its interaction with other applications or their content.
7.2 You will indemnify Developer, its directors, officers, employees, agents, subsidiaries, and affiliates
against any third party claims for losses, damages, costs, or expenses (including reasonable attorneys' fees)
(together, Losses) that result from your use or misuse of the App, or your breach of this
Agreement. Developer may assume the defense of any third party claims that you must indemnify it for (at your
expense), and you will cooperate with the defense of these claims. You will not settle any third party claims
involving more than the payment of money without Developer's written consent.
7.3 To the extent permitted by applicable law, Developer will not be liable to you for any lost
profits, revenues, or business opportunities, nor any exemplary, punitive, special, indirect, incidental, or
consequential damages; regardless of whether these damages were foreseeable or either of us was advised they
were possible.
7.4 Developer's total, aggregate liability to you for all Losses arising from any cause (regardless
of the form of action or legal theory) in connection with this Agreement will not exceed the amount of fees
you've paid to Developer during the 3 months prior to a Loss.
You authorized Developer to communicate with you electronically or otherwise using the contact information you provide to it (e.g., without limitation, via your account, the Internet, email, text, or live agent or automated calls to your mobile or other phone, even if these numbers appear on a Do Not Call or other non-solicitation registry). You are responsible for any fees charged by you communications provider for phone, text, or email communications that Developer sends to you.
The App Provider makes the following additional commitments, representations, and warranties to Customer:
9.1 The App Provider will only process Customer Data and Personal Information on behalf of, and as Service
Provider of, the Customer, and not collect, retain, use, or disclose that data for any purpose other than to
perform the App Provider’s obligations under this Agreement, as permitted under CCPA and other applicable
privacy and data protection laws (collectively, “Privacy Laws”). In no event will the App Provider “sell” (as
defined by Privacy Laws) any such personal information.
9.2 The App Provider will not collect, use, retain, disclose, sell, or otherwise make Customer Data or Personal
Information available for App Provider’s own commercial purposes or in a way that does not comply with the CCPA
or other Privacy Laws.
9.3 App Provider will limit personal information collection, use, retention, and disclosure to activities
reasonably necessary and proportionate to provide the Services set forth in the Agreement or another compatible
operational purpose.
10.1 App Provider will reasonably cooperate and assist Customer with meeting Customer's CCPA and Privacy Law
compliance obligations and respond to CCPA-related inquiries, including responding to verifiable consumer
requests, taking into account, the nature of App Provider's processing, and the information available to App
Provider. App Provider will make available to Customer, in a manner consistent with the functionality of the
Service and App Provider’s role as a Service Provider of Personal Information of data subjects, the ability to
fulfill data subject requests to exercise their rights under Privacy Laws.
10.2 If App Provider receives a request from Customer’s data subject to exercise one or more of its rights under
Privacy Laws in connection with the Services, App Provider will redirect the data subject to make its request
directly to Customer. Customer will be responsible for responding to any such request including, where possible,
by using the functionality of the Services. App Provider shall comply with reasonable requests by Customer to
assist with Customer’s response to such a data subject request.
10.3 App Provider must notify the Customer immediately if it receives any complaint, notice, or communication
that directly or indirectly relates either party's compliance with Privacy Laws relating to provisioning of the
Services.
11.1 You represent and warrant that you have authority to enter into this Agreement, creating performance
obligations that are legally enforceable against you.
11.2 Developer may modify this Agreement from time-to-time and will provide you with notice when these
modifications occur (notification may be through the App, email, a website, changes to the date shown at the top
of this Agreement, or other electronic means). Your continued use of the App indicates your acceptance of any
modifications to this Agreement. You must stop using and uninstall the App if you do not agree to any
modifications that are made to this Agreement.
11.3 Each of us will comply with the laws, rules, and regulations (together, Laws) that apply
to our respective performance under this Agreement; including, without limitation, laws related to the
collection and use of consumer information obtained via the App. You will follow the requirements of all user
documentation provided for the App. You will not use your App to access, store, or transmit materials that are
tortious, libelous, or offensive; contain malicious code, viruses, time bombs, Trojan horses, bots, scrips or
other programs; or infringe third parties' intellectual property rights.
11.4 This Agreement is governed by New York law, without regard to its conflicts or choice of law statutes. The
courts in or for Suffolk County, New York are proper venue for any proceedings in connection with this
Agreement. Both of us waive our rights to a trial by jury in connection with this Agreement.
11.5 This is the entire agreement between us, and supersedes any prior agreements related to its subject matter.
Any sections or terms of this Agreement that are, or become, invalid or unenforceable will be severed; and the
remaining terms will continue in effect. Developer is not waiving any of its rights under this Agreement if it
delays their exercise or fails to exercise them. We are independent contractors. This Agreement does not create
an agency, partnership, or joint venture of any kind.
11.6 You may not assign this Agreement without Developer's written consent, which assignment is voidable by the
Developer; however, Developer may assign this Agreement without notice to you or your consent.
11.7 You may contact Developer at: support@qwoach.com