This mobile application end user license agreement is a binding agreement between you and Centro Publisher Limited, a limited company formed under the laws of the Marshal Islands (the “Company”). This agreement governs your use of the ModelCentro Profile Management App on the iOS mobile platform (including all related documentation, the “Application”). The Application is licensed, not sold, to you.
By clicking the “Agree” button or downloading, installing, or using the Application, you (a) acknowledge that you have read and understand this agreement; (b) state that you are 18-years old or older; and (c) accept this agreement and agree that you are legally bound by its terms. If you do not agree to this agreement, do not download, install, or use the Application and delete it from your mobile device.
The parties agree as follows:
License Grant. The Company hereby grants you a limited, nonexclusive, and nontransferable license to:
download, install, and use the Application for your personal, noncommercial use on a single mobile device owned or otherwise controlled by you (the “Mobile Device”) strictly in accordance with the Application’s documentation; and
access, stream, download, and use on that Mobile Device the Content and Services (as defined in section 5) made available in or otherwise accessible through the Application, strictly in accordance with this agreement, the Terms-of-Use Agreement, and the ModelCentro Operator Agreement applicable to that Content and Services as set out in section 5.
License Restrictions. You will not:
copy the Application, except as expressly permitted by this agreement;
modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Application;
reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Application or any part of it;
remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Application, including any copy of it;
rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Application, or any features or functionality of the Application, to any third party for any reason, including by making the Application available on a network where it is capable of being accessed by more than one device at any time; or
remove, disable, circumvent, or otherwise create or implement any workaround to any copy protection, rights management, or security features in or protecting the Application.
Reservation of Rights. You acknowledge that the Application is provided under license, and not sold, to you. You do not acquire any ownership interest in the Application under this agreement, or any other rights to it other than to use the Application in accordance with the license granted, and subject to this agreement. The Company and its licensors and service providers will retain their entire interest in and to the Application, including all copyrights, trademarks, and other intellectual property rights in it or relating to it, except as expressly granted to you in this agreement.
Collection and Use of Your Information. You acknowledge that when you download, install, or use the Application, the Company may use automatic means (including, for example, cookies and web beacons) to collect information about your Mobile Device and about your use of the Application. You also may be required to provide certain information about yourself as a condition to downloading, installing, or using the Application or certain of its features or functionality, and the Application may provide you with opportunities to share information about yourself with others. All information the Company collects through or in connection with the Application is subject to the Company’s Mobile App Privacy Policy. By downloading, installing, using, and providing information to or through the Application, you consent to all actions taken by the Company with respect to your information in compliance with the Mobile App Privacy Policy.
Content and Services. The Application may provide you with access to the Company’s website located at www.modelcentro.com “Website”) and products and services accessible on it, and certain features, functionality, and content accessible on or through the Application may be hosted on the Website (collectively, the “Content and Services”). The Website’s Terms-of-Use Agreement, the ModelCentro Operator Agreement, and the Privacy Policy govern your access to and use of the Content and Services. Your access to and use of the Content and Services may require you to acknowledge your acceptance of the Website’s Terms-of-Use Agreement, the ModelCentro Operator Agreement, and the Privacy Policy or to register with the Website, and your failure to do so may restrict you from accessing or using certain of the Application’s features and functionality. Any violation of the Website’s Terms-of-Use Agreement or the ModelCentro Operator Agreement will also be considered a violation of this agreement.
Updates. The Company may from time to time in its sole discretion develop and provide Application updates, which may include upgrades, bug fixes, patches, other error corrections, or new features (collectively, including related documentation, the “Updates ”). The Updates may also modify or delete in their entirety certain features and functionality. You acknowledge that the Company is not required 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 will promptly download and install all Updates, and you acknowledge that the Application or parts of it might not properly operate if you fail to do so. You further acknowledge that all Updates will be considered part of the Application and be subject to this agreement.
Third-Party Materials. The Application may display, include, or make available third-party content (including data, information, applications, and other products, services, or materials) or provide links to third-party websites or services, including through third-party advertising (the “Third-Party Materials”). You acknowledge that the Company is not responsible for the Third-Party Materials, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect of the Third-Party Materials. The Company does not assume and will not have any liability or responsibility to you or any other individual or entity for any Third-Party Materials. The Third-Party Materials and links to the Third-Party Materials are provided solely as a convenience to you, and you access and use them entirely at your own risk and subject to those third parties’ terms and conditions.
Term and Termination
The term of this agreement begins when you download the Application and will continue in effect until terminated by you or the Company as stated in this section 8.
You may terminate this agreement by deleting the Application and all copies of it from your Mobile Device.
The Company may terminate this agreement at any time without notice if it stops supporting the Application, which the Company may do in its sole discretion. In addition, this agreement will terminate immediately and automatically without any notice if you violate any part of this agreement.
On termination of this agreement, (a) all rights granted to you under this agreement will also terminate; and (b) you must stop using the Application and delete all copies of the Application from your Mobile Device and account.
Termination will not limit any of the Company’s rights or remedies at law or in equity.
Disclaimer of Warranties. The Application is provided to you “as is” and with all faults and defects without warranty. To the greatest extent permitted under applicable law, the Company, 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 Application, including all implied warranties of merchantability, fitness for a particular purpose, title, and noninfringement, and warranties that may arise out of course of dealing, course of performance, usage, or trade practice. The Company is not making any warranty that the Application 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. Some jurisdictions do not allow the exclusion of or limitations on implied warranties or the limitations on the applicable statutory rights of a consumer, so some or all the above exclusions and limitations might not apply to you.
Limitation of Liability. To the greatest extent permitted by applicable law, neither the Company nor its affiliates, nor any of its or their respective licensors or service providers, will have any liability arising from or related to your use of or inability to use the Application or the Content and Services for:
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 other consequential, incidental, indirect, exemplary, special, statutory, or punitive damages.
Direct damages in amounts that in the aggregate exceed the amount actually paid by you for the Application.
The foregoing limitations will apply whether those damages arise out of breach of contract, tort (including negligence), or otherwise and regardless of whether those damages were foreseeable or the Company was advised of the possibility of those damages. Some jurisdictions do not allow certain limitations of liability so some or all the above limitations of liability might not apply to you.
Indemnification
In General. You will pay the Company and its officers, directors, employees, agents, affiliates, successors, and assigns for any loss of theirs that is caused by your (i) breach of this agreement; (ii) abuse, misuse, or unauthorized use of the Application; (iii) violation or infringement of third-party rights, including intellectual-property rights; (iv) violation of applicable law; or (v) tortious acts or omissions. But you are not required to pay if the loss was caused by the Company’s actual intentional misconduct.
Definitions
“Loss” means an amount that the Company is legally responsible for or pays in any form. Amounts include, for example, a judgment, a settlement, a fine, damages, injunctive relief, staff compensation, a decrease in property value, and expenses for defending against a claim for a loss (including fees for legal counsel, expert witnesses, and other advisers). A loss can be tangible or intangible; can arise from bodily injury, property damage, or other causes; can be based on tort, breach of contract, or any other theory of recovery; and includes incidental, direct, and consequential damages.
A loss is “caused by” an event if the loss would not have occurred without the event, even if the event is not a proximate cause of the loss.
Company’s Duty to Notify. The Company will notify you before the 15th business day after the Company knows or should reasonably have known of a claim for a loss that you might be obligated to pay. The Company’s failure to give you timely notice does not terminate your obligation, except to the extent that the failure prejudices your ability to defend the claim or mitigate losses.
Legal Defense of a Claim
Company’s Control. The Company has control over defending a claim for a loss (including settling it), unless the Company directs you to control the defense.
Direction to Control. If the Company directs you to control the defense, each of the following applies:
You may choose and retain legal counsel.
The Company may retain its own legal counsel at its expense.
You will not settle any litigation without the Company’s written consent if the settlement (1) imposes a penalty or limitation on the Company, (2) admits the Company’s fault, or (3) does not fully release the Company from liability.
Good Faith. You and the Company will cooperate with each other in good faith on a claim.
No Exclusivity. The Company’s rights under this section 11 do not affect other rights that the Company might have.
Export Regulation. The Application may be subject to US export control laws, including the US Export Administration Act and its associated regulations. You will not, directly or indirectly, export, reexport, or release the Application to, or make the Application accessible from, any jurisdiction or country to which export, reexport, or release is prohibited by law, rule, or regulation. You will comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other government approval), before exporting, reexporting, releasing, or otherwise making the Application available outside the US.
Dispute Resolution
Litigation Election. Either party may elect to litigate the following type of case or controversy: (a) an action seeking injunctive relief, or (b) a suit to compel compliance with this section 13.
Negotiation. Each party will give the other a reasonable opportunity to comply before it claims that the other has not met its obligations under this agreement. The parties will first meet and negotiate with each other in good faith to try to resolve all disputes between the parties arising out of, or relating to the subject matter of, this agreement. The party raising a dispute will submit to the other party a written notice and supporting material describing all issues and circumstances related to the dispute (a “Dispute Notice”).
Mediation. If the parties are unable to resolve the dispute no later than 30 days after receiving a Dispute Notice, either party may, by notice to the other party and the Marshal Islands International Arbitration Centre, demand mediation under the mediation rules of the Marshal Islands International Arbitration Centre. Mediation will take place in Marshal Islands. The mediation will be conducted in the English language. Each party will bear its own costs in mediation, and the parties will share equally between them all third-party mediation costs unless the parties agree differently in writing. Each party will participate actively and constructively in mediation proceedings once started and will attend at least one joint meeting between the mediator and the parties. Any party may terminate mediation at any time after an initial meeting between the mediator and the parties.
Arbitration
If the parties cannot settle a dispute through mediation, the parties will settle any unresolved dispute arising out of or relating to this agreement, or the breach of it, by arbitration administered by the Marshal Islands International Arbitration Centre in accordance with the Marshal Islands Arbitration Act of 2013 and any rules promulgated under it. The arbitrator, and not any court or agency, will have exclusive authority to resolve any dispute arising under or relating to the interpretation, applicability, enforceability, or formation of this agreement, including any claim that any part of this agreement is void or voidable.
A single arbitrator will preside over the arbitration. The arbitrator will be empowered to grant whatever relief would be available in a court under law or in equity, except that the arbitrator will not award punitive or exemplary damages, or damages otherwise limited or excluded in this agreement. The arbitrator will issue a final award on all issues submitted to the arbitrator. The arbitrator’s award will be binding on the parties and judgment on the award rendered in the arbitration may be entered in any court having jurisdiction.
Arbitration will take place in Marshal Islands. The arbitration proceedings will be conducted in English. Except as provided in section 13.7, the parties will bear equally the costs of arbitration, including the fees and expenses of the arbitrator, and each party will bear the costs associated with its case.
Unless required by law, neither a party nor the arbitrator will disclose the existence, content, or results of any arbitration under this agreement without the advance written consent of both parties.
Equitable Relief. You acknowledge that breach of threatened breach of any of your obligations in this agreement may result in irreparable harm to the Company that cannot be adequately relieved solely by money damages. The parties intend that after any breach or threatened breach, the Company may request from a court of competent jurisdiction any applicable equitable remedies, including injunctive relief, without proving actual damage or posting a bond or other security.
Jurisdiction and Venue
If a party brings any proceeding seeking an injunction, a restraining order, or any other equitable remedy to which that party is entitled under this agreement, that party will bring that proceeding only in the courts located in Marshal Islands, and each party hereby submits to the exclusive jurisdiction and venue of those courts for purposes of any proceeding.
Each party hereby waives any claim that any proceeding brought in accordance with section 13.6(a) has been brought in an inconvenient forum or that the venue of that proceeding is improper.
Recovery of Expenses. In any proceedings between the parties arising out of this agreement or relating to the subject matter of this agreement, the Prevailing Party will be entitled to recover from the other party, in addition to any other relief awarded, all expenses that the Prevailing Party incurs in those proceedings, including legal fees and expenses. For purposes of this section 13.7, “Prevailing Party” means, for any proceedings, the party in whose favor an award is rendered, except that if in those proceedings the award finds in favor of one party on one or more claims or counterclaims and in favor of the other party on one or more other claims or counterclaims, neither party will be the Prevailing Party. If any proceedings are voluntarily dismissed or are dismissed as part of settlement of that dispute, neither party will be the Prevailing Party in those proceedings.
Jury Trial Waiver. Each party hereby waives its right to a trial by jury in any proceedings arising out of, or relating to the subject matter of, this agreement. Either party may enforce this waiver up to and including the first day of trial.
Class Action Waiver. The parties will conduct any proceedings to resolve a dispute in any forum on an individual basis only. Neither party will try to have any dispute heard as a class action or in any other proceeding in which either party acts or proposes to act in a representative capacity. The parties will not combine any proceeding with another without the advanced written consent of all parties to all affected proceedings.
Limited Time to Bring Claims. A party will not bring a claim arising out of, or related to the subject matter of, this agreement more than one year after the cause of action arose. Any claim brought after one year is barred.
General
Entire Agreement. This agreement, the ModelCentro Operator Agreement, and the Mobile App Privacy Policy constitutes the entire agreement between you and the Company with respect to the Application and supersede all earlier written or oral discussions, negotiations, proposals, undertakings, understandings, and agreements between the parties concerning the Application.
Amendment. The Company may amend this agreement on one or more occasions by posting amendments to the Website. If you do not accept amendments to this agreement, then this license will immediately terminate.
Assignment and Delegation. You will not assign any rights or delegate any performances under this agreement without the Company’s advance written consent. The Company may assign its rights or delegate its performances under this agreement without your written consent. Any purported assignment of rights or delegation of performance in breach of this section 14.3 is void.
Waivers. The parties may waive any provision in this agreement only by a writing signed by the party or parties against whom the waiver is sought to be enforced. No failure or delay in exercising any right or remedy, or in requiring the satisfaction of any condition, under this agreement, and no act, omission, or course of dealing between the parties, operates as a waiver or estoppel of any right, remedy, or condition. A waiver made in writing on one occasion is effective only in that instance and only for the purpose stated. A waiver once given is not to be construed as a waiver on any future occasion or against any other person.
Severability. The parties intend as follows:
that if any provision of this agreement is held to be unenforceable, then that provision will be modified to the minimum extent necessary to make it enforceable, unless that modification is not permitted by law, in which case that provision will be disregarded;
that if modifying or disregarding the unenforceable provision would result in failure of an essential purpose of this agreement, the entire agreement will be held unenforceable;
that if an unenforceable provision is modified or disregarded in accordance with this section 14.5, then the rest of the agreement will remain in effect as written; and
that any unenforceable provision will remain as written in any circumstances other than those in which the provision is held to be unenforceable.
Notices
Sending Notice to the Company. You may send notice to the Company by email at unless a specific email address is set out for giving notice. The Company will consider an email notice received by it only when its server sends a return message to you acknowledging receipt. The Company may change its contact information on one or more occasions by posting the change on the Website. Please check the Website for the most current information for sending notice to the Company.
Sending Notice to You—Electronic Notice. You consent to receiving any notice from the Company in electronic form either (1) by email to the last known email address the Company has for you; or (2) via pop-up window, dialog box, or other on-screen device, even though you might not receive the notice until you next launch the Application. The Company will consider notices sent to you by email received when its email service shows transmission to your email address. The Company will consider notices sent to you via the Application received on the date it first makes it available through the Application.
Governing Law. Marshal Islands law, without giving effect to its conflicts of law principles, governs all matters arising out of or relating to this agreement, including its validity, interpretation, construction, performance, and enforcement.
Successors and Assigns. This agreement binds and inures to the benefit of the parties and their respective successors and assigns. This section 14.8 does not address, directly or indirectly, whether a party may assign its rights or delegate its obligations under this agreement. Section 14.3 addresses these matters.