Effective: August 1, 2024
This Tempyl Technologies Mobile Application Terms of Use Agreement (this "Agreement") governs the use of the Tempyl mobile software applications available for download via the Apple App Store (including all related documentation, the "Application"). The Application enables users to create and manage skincare routines (the “Service”). The Application and Service are owned, operated, and provided by Tempyl Technologies, Inc. ("Tempyl").
PLEASE READ THIS AGREEMENT CAREFULLY. This Agreement is a binding agreement between you (the "you" or "your") and Tempyl, governing your use of the Application and Service (collectively, the “Tempyl Services”). Please feel free to contact us at help@tempyl.com if you have any questions about this Agreement.
PLEASE BE ADVISED THAT TEMPYL DOES NOT PROVIDE ANY WARRANTIES TO YOU AND THIS AGREEMENT LIMITS OUR LIABILITY TO YOU AS SET FORTH IN SECTIONS 3.3AND 10.
BY ACKNOWLEDGING YOUR ACCEPTANCE TO THIS AGREEMENT, CREATING A USER ACCOUNT FOR THE SERVICE (AN “ACCOUNT”), OR OTHERWISE DOWNLOADING OR INSTALLING THE APPLICATION, OR OTHERWISE USING THE TEMPYL SERVICES, YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENT THAT YOU MEET THE ELIGIBILITY REQUIREMENTS SET FORTH IN SECTION 1 OF THIS AGREEMENT; AND (C) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS. IF YOU DO NOT AGREE TO THIS AGREEMENT OR ANY OF ITS TERMS, DO NOT USE THE TEMPYL SERVICES OR DOWNLOAD OR INSTALL THE APPLICATION, AND DELETE IT FROM YOUR MOBILE DEVICE.
1. ELIGIBILITY. In order, and as a condition, to using the Tempyl Services, you: (a) must be at least 18 years old or the applicable age of majority in your jurisdiction in order to use the Tempyl Services, and (b) must not a citizen or resident of a geographic area in which access to or use of the Tempyl Services (or any part thereof) is prohibited or otherwise barred by applicable law, rule, decree, regulation, treaty, or administrative act. You may not use the Tempyl Services if you have been previously removed or banned by Tempyl from use of the Tempyl Services (or any part thereof).
2. CHANGES TO THIS AGREEMENT. Tempyl reserves the right to update or modify this Agreement at any time. The revised Agreement will be posted in the Application and on our website at https://tempyl.com/terms. Except as stated below with respect to material changes, all updates and modifications to this Agreement will be effective from the day they are posted, as indicated by the “Last Updated” date set forth above. If Tempyl makes any material changes to this Agreement, Tempyl will provide reasonable prior notice to you of these changes by sending a notification to the email address Tempyl has on file for you, or, if Tempyl does not have an email address on file, by posting a prominent notice on Tempyl’s website and/or through the user interface of the Application. Material changes to this Agreement will become effective on the date set forth in the notice. It is your responsibility to regularly visit and review this Agreement for updates, changes and modification. If you do not agree to any updates or modifications to this Agreement, you must cease all use and access of the Tempyl Services and delete the Application from your device. Your continued access or use of the Tempyl Services (or any part thereof) after the applicable effective date of the revised Agreement will constitute your acceptance of the revised Agreement.
3. OVERVIEW OF THE SERVICE; DATA COLLECTION AND PRIVACY
3.1. Overview. The Service enables you to voluntarily submit certain information regarding your current skin care concerns, routines, and goals, and other related data and information that you submit to quizzes, forms, or other features while accessing the Service through the Application (collectively, your “Submissions”). If you take any quizzes or assessments through the Service, Tempyl will use your Submissions to provide you with information to help you with your assessment or analysis with respect to the applicable quiz and/or assessment (the “Assessment”).
3.2. Sharing Your Information. We do not currently enable sharing of information through the functionality of the Application; however, we may, in the future, enable you to affirmatively (at your option) share you Submissions and/or Assessments with others. You are solely responsible for, and in control of, any Submissions and/or Assessments that you share with others, whether you share your information with friends, family or your skincare or other health care providers. You should be careful about sharing your Submissions and/or Assessments with others. Submissions and/or the Assessments that you choose to share with your skin care or other health care provider may become part of your medical record and through that route be accessible to other health care providers and/or insurance companies in the future.
3.3. Tempyl Does Not Provide Medical Advice.
(a) Neither Tempyl nor the Tempyl Services provides medical advice and the Tempyl Services are provided and made available by Tempyl for informational use only. The Tempyl Services are not intended to be used by you for any diagnostic purpose and are not a substitute for professional medical advice, procedures, or protocol. You should always seek the advice of your licensed esthetician, skin care provider, physician or other health care provider (each, a “Provider”) with any questions you may have regarding diagnosis, cure, treatment, mitigation, or prevention of any disease or other medical condition or impairment or the status of your health. If the Tempyl Services provide you any recommendations, routines, and/or protocols that identify potentially actionable information for you, based on your Submissions and/or Assessments, this information is intended for informational purposes only and for discussion with your Providers.
(b) Tempyl does not endorse, warranty or guarantee any routines, resources, products, services, procedures, opinions, materials, or other information, and/or the effectiveness of any specific course of action, that are provided, offered and/or recommended by or through your Providers, or that may otherwise be mentioned or communicated on or through the Tempyl Services.
(c) RELIANCE ON ANY INFORMATION AND/CONTENT PROVIDED BY OR THROUGH THE TEMPYL SERVICES, OR BY TEMPYL OR ITS EMPLOYEES OR AGENTS, WHETHER DIRECTLY OR THROUGH THE TEMPYL SERVICES (OR ANY PART THEREOF), IS SOLELY AT YOUR OWN RISK. IN ADDITION, YOU ACKNOWLEDGE AND AGREE THAT YOUR ENGAGEMENT AND RELATIONSHIP WITH YOUR PROVIDERS, INCLUDING, BUT NOT LIMITED TO, ANY COURSE OF ACTION, ROUTINES, RESOURCES, PRODUCTS, SERVICES, PROCEDURES, OPINIONS, OR OTHER INFORMATION PROVIDED, OFFERED AND/OR RECOMMENDED BY OR THROUGH YOUR PROVIDERS, SHALL BE SOLELY BETWEEN YOU AND THE APPLICABLE PROVIDER, AND TEMPYL SHALL NOT BE A PARTY TO, OR HAVE ANY RESPONSIBILITY OR LIABILITY FOR, SUCH ENGAGEMENT AND/OR THE PERFORMANCE OF THE PROVIDER AND/OR ANY COURSE OF ACTION, ROUTINES, RESOURCES, PRODUCTS, SERVICES, PROCEDURES, OPINIONS, OR OTHER INFORMATION PROVIDED, OFFERED AND/OR RECOMMENDED BY OR THROUGH YOUR PROVIDERS.
3.4 Data Collection and Privacy. You understand and agree that Tempyl collects and processes data and information in connection with your use of the Tempyl Services, including, but not limited to, any Submissions you provide and/or related Assessments generated in connection with your use of the Tempyl Services (collectively, “User Data”). By using the Tempyl Services, you hereby authorize and grant Tempyl the right to process and use (including, through the use of third party subcontractors and subprocessors), any and all User Data reasonably necessary for Tempyl to provide you the Tempyl Services. You represent and warrant that you have all the rights necessary to grant Tempyl the rights granted herein in and to your User Data. Any personally identifiable information provided or collected through or in connection with the Tempyl Services shall only be used in accordance with this Agreement and our Privacy Policy available at https://tempyl.com/privacy (“Privacy Policy”). By downloading or installing the Application, or otherwise using the Tempyl Services and/or providing User Data to or through this Application and/or Service, you consent to Tempyl’s processing of your User Data and all actions taken by us with respect to your information as set forth in this Agreement and our Privacy Policy.
3.5. Additional Terms. When using particular services, features, and/or materials through or in connection with the Tempyl Services, additional terms and conditions or other operating rules, policies and procedures may be applicable to, and govern, the use of such services, features, and/or materials, in addition to those in this Agreement (collectively, the “Additional Terms”). You agree to comply with all such Additional Terms applicable to your use of the Tempyl Services. All such Additional Terms are hereby incorporated into and made a part of this Agreement by reference. In the event the provisions of any Additional Terms conflict with this Agreement, the Additional Terms shall control solely with respect to the subject matter covered by such Additional Terms.
4. ACCESS AND USE OF THE TEMPYL SERVICES
4.1. Accounts. To access and use the Tempyl Services (or certain features thereof) you may need to create and register an Account. In registering an Account, you agree to provide and maintain information that is true, accurate, current, up to date, and complete. You agree that you will not (a) create an Account using a false identity or information, or (b) create an Account or use the Tempyl Services if you have been previously removed, suspended or banned by us from use of the Tempyl Services, or any part thereof. Tempyl reserves the right to limit the number of Accounts that can be created from any one computer or mobile device and the number of computer or mobile devices that can access an individual Account.
4.2. Account Security. You understand and agree that you are solely responsible for maintaining the confidentiality and security of your passwords and/or login credentials, and protecting access, to your Account. You are solely responsible for any activity originating from your Account, regardless of whether such activity is authorized by you. You agree to notify us immediately of any unauthorized use of your Account.
4.3. Communications
(a) Electronic Communications via Email and the Application. By using the Tempyl Services, you consent to receiving electronic communications from Tempyl via email and/or through the user-interface of the Application (including, via push notifications). These electronic communications may include notices about applicable fees and charges, transactional and/or usage information and other information concerning or related to your use of the Tempyl Services. These electronic communications are part of your relationship with Tempyl and you receive them as part of your use of the Tempyl Services. You agree that any notices, agreements, disclosures or other communications that Tempyl sends you electronically will satisfy any legal communication requirements, including that such communications be in writing.
(b) Communications via our Text Service. If you opt-in to participate in our mobile messaging service that delivers certain service-related communications, as well as marketing and promotion communications, via OTT/SMS/MMS text messages sent by us (or others on our behalf) (the “Text Service”), you consent to receiving such communications from Tempyl via your mobile phone. Your use of, and participation in, the Text Service is governed by this Agreement as well as the Text Service Terms and Conditions (the terms of which shall be deemed incorporated into and made a part of this Agreement by this reference as if set forth in full). For the avoidance of doubt, the Text Service is included in the term “Tempyl Services” as used throughout this Agreement and any other applicable Additional Terms.
4.4. Mobile Devices. You acknowledge and agree that in order to use the Application you must have a compatible mobile and/or tablet device. You are solely responsible for determining whether or not your mobile and/or tablet device is or is not compatible with the Application. Tempyl makes no representations or warranties whatsoever regarding the Applications compatibility with any computer, mobile and/or tablet device. You further acknowledge and agree that you are solely responsible for any fees or charges incurred from your use of the Application through your mobile and/or tablet devices, including, without limitation, any mobile phone provider charges for SMS, text, or data usage or services.
4.5. Geographic Restrictions. Tempyl is based in the United States and the Tempyl Services are provided for access and use only by persons located in the United States. You acknowledge that you may not be able to access all or some of the Tempyl Services outside of the United States and that access thereto or use thereof may not be legal by certain persons or in certain countries. If you access or use the Tempyl Services from outside the United States, you are responsible for compliance with local laws.
4.6. Software Updates. Tempyl may from time to time in its sole discretion develop and provide Application updates, which may include upgrades, bug fixes, patches, other error corrections, and/or new features (collectively, including related documentation, "Updates"). Updates may also modify or delete in their entirety certain features and functionality. You agree that Tempyl has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality. Based on your Mobile Device settings, when your Mobile Device is connected to the internet either:
(a) the Application will automatically download and install all available Updates; or
(b) you may receive notice of or be prompted to download and install available Updates.
You agree to, and shall, promptly download and install all Updates and acknowledge and agree that the Application and/or Service or portions thereof may not properly operate should you fail to do so. You further agree that all Updates will be deemed part of the Application and be subject to all terms and conditions of this Agreement.
4.7. Changes. Tempyl reserves the right to either temporarily or permanently modify, suspend or discontinue the Tempyl Services in whole or in part with or without notice. You agree that Tempyl will not be liable to you or to any third party for any modification, suspension or discontinuance of the Tempyl Services (or any part thereof), except as otherwise expressly set forth in this Agreement.
5. LICENSE GRANTS; RESTRICTIONS; PROPRIETARY RIGHTS
5.1. License Grant. Subject to the terms of this Agreement, Tempyl grants you a limited, non-exclusive, and nontransferable license to download, install, and use the Application solely to access and use the Service, over the internet, through the Application, for your personal, non-commercial use on a single mobile or tablet device owned or otherwise controlled by you ("Mobile Device") strictly in accordance with this Agreement and the Application's documentation.
5.2. License Restrictions. You agree that you will not, and it will not permit any third party to:
(a) Modify, adapt, translate or create derivative works based on the Tempyl Services (or any part thereof), or any related documentation;
(b) Reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or the underlying ideas, algorithms, structure or organization) of the Application, except as expressly permitted by applicable law;
(c) Distribute, license, sublicense, assign, transfer or otherwise make available to any third party the Tempyl Services (or any part thereof), or any related documentation;
(d) Remove, alter, or obscure in any way any proprietary rights notices (including copyright notices) of Tempyl or its suppliers on or within the Tempyl Services or related documentation;
(e) Use the Tempyl Services to store or transmit malicious code or infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights;
(f) Interfere with or disrupt the integrity or performance of the Tempyl Services or any system, network or data;
(g) Attempt to gain unauthorized access to the Tempyl Services or its related systems or networks;
(h) Frame or utilize framing techniques to enclose the Tempyl Services or any portion thereof;
(i) Use any meta tags, "hidden text", robots, spiders, crawlers, or other tools, whether manual or automated, to collect, scrape, index, mine, republish, redistribute, transmit, sell, license or download the Tempyl Services, content (except caching or as necessary to view the Service), or the personal information of others without our prior written permission or authorization;
(j) Impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with any person or entity; or
(k) Violate any applicable local, state, national or international law in your use of the Tempyl Services, including, without limitation, any and all applicable export laws.
5.3. Open Source Components. The Application may contain third party software, including, without limitation, open source software components (collectively, “Open Source Components”). Open Source Components are not licensed under this Agreement, but are instead licensed under the terms of the applicable license agreement for such Open Source Components. Your use of Open Source Components is subject to the terms of each applicable license which are available to you on request from Tempyl.
5.4. Tempyl’s Proprietary Rights. Subject to your rights in and to your Submissions and excluding Third Party Materials, Tempyl and its licensors retain all right, title and interest in and to the Tempyl Services, including, but not limited to, the Application and related documentation, the Service, and any and all content, messages, data, text, graphics, images, photos, music, software, audio, video, works of authorship of any kind, and information or other materials that are posted, generated, provided or otherwise made available through, or otherwise in connection with, the Tempyl Services, and any and all modifications, enhancements and updates to any of the foregoing. All Tempyl trademarks are strictly owned by Tempyl, and nothing in this Agreement will be construed to transfer ownership rights or grant any permission, license or other rights to any Tempyl trademark without written authorization from Tempyl. The trademarks, service marks, logos, and/or names of individuals, companies and/or products mentioned through the Tempyl Services may be the trademarks of their respective owners. Tempyl reserves all rights and licenses not expressly granted to you in this Agreement and no implied license is granted by Tempyl. The Application is licensed, not sold, to you. The Application (and its underlying technology) and the Service are protected by copyright, trademark, patent, intellectual property, and other laws of the United States and foreign countries.
6. FEES. Tempyl does not currently charge any fees for the access and/or use of the Tempyl Services; provided, however, that, Tempyl reserves the right, upon prior notice to you, to charge a fee for the use of the Tempyl Services (including, without limitation, charging fees to download the Application).
7. THIRD-PARTY MATERIALS, PRODUCTS, AND SERVICES. The Tempyl Services may display or include links and/or third party advertising relating, to websites, data, information, materials, applications, and other products, services, and/or materials that are owned or controlled by third parties, any not Tempyl, including, but not limited to, websites, course of actions routines, resources, products, services, procedures, opinions, materials, and/or other information provided, offered and/or recommended by or through your Providers (collectively, “Third-Party Products and Services”). You acknowledge and agree that Tempyl is not responsible for Third-Party Products and Services, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect thereof. Tempyl does not assume and will not have any liability or responsibility to you or any other person or entity for any Third-Party Products and Services. Third-Party Products and Services and links thereto are provided solely as a convenience to you, and you access and use them entirely at your own risk and subject to such third parties' terms and conditions.
8. TERM AND TERMINATION
8.1. Term. The term of Agreement commences when you download the Application and will continue in effect until terminated by you or Tempyl as set forth in this Section 8.
8.2. Termination.
(a) You may cancel your account at any time through the user settings of the Application.
(b) Tempyl may terminate this Agreement at any time without notice if it ceases to support the Tempyl Services, which Tempyl may do in its sole discretion, without any liability to you. In addition, this Agreement will terminate immediately and automatically without any notice if you violate any of the terms and conditions of this Agreement.
8.3. Effect of Termination. Upon termination: all rights granted to you under this Agreement, and your access to the Tempyl Services, will immediately terminate; and you must cease all use of the Tempyl Services and delete all copies of the Application from your Mobile Device. Termination will not limit any of Tempyl’s rights or remedies at law or in equity. The rights and obligations of Tempyl and you under the following Sections shall survive any termination or expiration of this Agreement: 1, 3, 4.3, 4.5, 5.2, 5.3, 5.4, 7, 8.3, 9, 10 and 11.
9. INDEMNIFICATION. You agree to indemnify, defend and hold harmless Tempyl, its officers, employees, agents, directors, subsidiaries, affiliates, successors, assigns, suppliers, or licensors from any liability, loss, claim and expense (including attorneys’ reasonable fees) arising from or related to: (a) your violation of this Agreement, including but not limited to a claim arising out of a breach of your representations or warranties hereunder; (b) your use (or any use by a third party using your Mobile Devices) of the Tempyl Services or any part thereof, including, but not limited to, your use or reliance on any Assessments; or (c) your User Data, or any violation of any third party right, including without limitation, any copyright, property, moral or privacy right.
10. DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY
10.1. Disclaimers. THE TEMPYL SERVICES AND ALL DOCUMENTATION, INFORMATION, CONTENT, ASSESSMENTS, MATERIALS AND/OR SERVICES PROVIDED BY TEMPYL IN CONNECTION THEREWITH OR OTHERWISE PROVIDED HEREUNDER, ARE PROVIDED TO YOU "AS IS" AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, TEMPYL, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE TEMPYL SERVICES, AND ANY DOCUMENTATION, INFORMATION, CONTENT, ASSESSMENTS, MATERIALS AND/OR SERVICES PROVIDED BY TEMPYL IN CONNECTION THEREWITH OR OTHERWISE PROVIDED HEREUNDER, INCLUDING, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, TEMPYL PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE TEMPYL SERVICES, AND/OR ANY DOCUMENTATION, INFORMATION, CONTENT, ASSESSMENTS, MATERIALS AND/OR SERVICES PROVIDED BY TEMPYL IN CONNECTION THEREWITH OR OTHERWISE PROVIDED HEREUNDER, WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE, OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS, OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS, OR BE ERROR-FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY TEMPYL OR ITS AUTHORIZED REPRESENTATIVES SHALL CREATE A WARRANTY.
10.2. Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL TEMPYL OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, HAVE ANY LIABILITY ARISING FROM OR RELATED TO YOUR USE OF OR INABILITY TO USE THE TEMPYL SERVICES AND/OR ANY DOCUMENTATION, INFORMATION, CONTENT, ASSESSMENTS, MATERIALS AND/OR SERVICES PROVIDED BY TEMPYL IN CONNECTION THEREWITH OR OTHERWISE PROVIDED HEREUNDER, FOR:
(a) PERSONAL INJURY, PROPERTY DAMAGE, LOST PROFITS, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OF DATA, LOSS OF GOODWILL, BUSINESS INTERRUPTION, COMPUTER FAILURE OR MALFUNCTION, OR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES.
(b) ANY AMOUNTS OR LIABILITY THAT IN THE AGGREGATE EXCEED $50 USD.
THE FOREGOING LIMITATIONS WILL APPLY WHETHER SUCH DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR TEMPYL WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10.3. Basis of the Bargain. The warranty disclaimer and limitation of liability set forth above in this Section 10 are fundamental elements of the basis of the agreement between Tempyl and you. Tempyl would not be able to provide the Tempyl Services on an economic basis without such limitations. The warranty disclaimer and limitation of liability inure to the benefit of Tempyl’s licensors, affiliates, and suppliers.
10.4. Application of disclaimers and limitations to Consumers. Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages with respect to consumers (i.e., a person acquiring goods otherwise than in the course of a business), and the limitations or exclusions of warranties and liability contained in this Agreement do not affect or prejudice the statutory rights of a consumer. The limitations or exclusions of warranties and remedies contained in this Agreement shall apply to you as a consumer only to the extent such limitations or exclusions and remedies are permitted under the laws of the jurisdiction where you are located.
11. MISCELLANEOUS
11.1. Governing Law. This Agreement is governed by and construed in accordance with the internal laws of the State of California without giving effect to any choice or conflict of law provision or rule. Any legal suit, action, or proceeding arising out of or related to this Agreement or the Tempyl Services shall be instituted exclusively in the federal courts of the United States or the courts of the State of California in each case located in Alameda County. You waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts.
11.2. Export Regulation. The Application may be subject to US export control laws, including the Export Control Reform Act and its associated regulations. You shall not, directly or indirectly, export, re-export, or release the Application to, or make the Application accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. You shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Application available outside the US.
11.3. US Government Rights. The Application is a commercial product, consisting of commercial computer software and commercial computer software documentation, as such terms are defined in 48 C.F.R. § 2.101. Accordingly, if you are an agency of the US Government or any contractor therefor, you receive only those rights with respect to the Application as are granted to all other end users under license, in accordance with (a) 48 C.F.R. § 227.7201 through 48 C.F.R. § 227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. § 12.212, with respect to all other US Government licensees and their contractors.
11.4. App Store Distributor Rights. You acknowledge and agree that certain distributors such as Apple, Inc. (“Apple”) and Google, Inc. (“Google”) of the Application (“App Distributors”) through the app stores provided by such App Distributors (“App Stores”) are intended beneficiaries of this Agreement and have the right to enforce this Agreement directly against you with respect to your use of the Application downloaded by you through the App Store. You acknowledge that this Agreement is between you and Tempyl only, and not with any App Distributor. Your use of the Application must comply with the then-current terms and conditions of the App Store through which you download the Application. You acknowledge and agree that Tempyl, and not the App Distributor: (a) is solely responsible for the Application and related content available thereon, (b) is responsible for addressing any claims by you relating to the Application or your possession and/or use of the Application, including, but not limited to: (i) product liability claims; (ii) any claim that the Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation, and all such claims are governed solely by this Agreement and any law applicable to Tempyl as provider of the Application; and (c) shall be responsible, to the extent required by this Agreement, for the investigation, defense, settlement and discharge of any third-party intellectual property infringement claim related to the Application or your possession and use of the Application. You acknowledge that the App Distributor has no obligation to provide maintenance and support services with respect to the Application. To the maximum extent permitted by applicable law, the App Distributor will have no warranty obligation whatsoever with respect to the Application. You represent and warrant that you: (i) 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 (ii) are not listed on any U.S. Government list of prohibited or restricted parties. You agree to comply with all applicable third-party terms of agreement when using the Application (e.g., you must not be in violation of its wireless data service terms of agreement when using the Application). The parties agree that the App Distributor and its subsidiaries are third-party beneficiaries to this Agreement as it relates to the license granted herein to you to use the Application. Upon your acceptance of this Agreement, the App Distributor will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as they relate to the license granted herein to you to use the Application as a third-party beneficiary thereof.
11.5. Third Party Rights. Except with respect to the App Distributors as set forth in Section 11.4 above, this Agreement is not intended to grant rights to anyone except you and Tempyl, and in no event shall this Agreement create any third party beneficiary rights.
11.6. Severability. If any provision of this Agreement is illegal or unenforceable under applicable law, the remainder of the provision will be amended to achieve as closely as possible the effect of the original term and all other provisions of this Agreement will continue in full force and effect.
11.7. Limitation of Time to File Claims. ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TEMPYL SERVICES MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES OTHERWISE SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
11.8. Entire Agreement. This Agreement, our Privacy Policy, and any Additional Terms, including, but not limited to, the Text Service T&Cs, to the extent applicable to your use of the Tempyl Services, constitute the entire agreement between you and Tempyl with respect to the Tempyl Services and supersedes all prior or contemporaneous understandings and agreements, whether written or oral, with respect to the Tempyl Services.
11.9. Waiver. No failure to exercise, and no delay in exercising, on the part of either party, any right or any power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or power hereunder preclude further exercise of that or any other right hereunder. In the event of a conflict between this Agreement and any applicable purchase or other terms, the terms of this Agreement shall govern.
11.10. Notice to California Residents. If you are a California resident, under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (800) 952-5210 in order to resolve a complaint regarding the Tempyl Services.
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