End User License Agreement
The Untire App (hereinafter referred to as: “App”) is offered by the private company with limited liability, incorporated under the law of the Netherlands, Tired of Cancer B.V. (hereinafter referred to as “ToC”). You are only authorized to acquire the App via the Apple Appstore or Google Play store.
In order to enter into this agreement and use the App, you must be (1) 18 years of age or older, (2) authorized to enter into a binding agreement with us and not be prevented by any applicable laws to do that and (3) live in a country where the App is available.
Please read this End User License Agreement (hereinafter referred to as: “EULA”) carefully before using the App. Your access to and use of the App is conditioned on your acceptance of and compliance with this EULA. This EULA also applies to all users and others who access or use the App.
By accessing or using the App you agree to be bound by this EULA and you declare that you meet the above stated requirements. If you disagree with any part of this EULA, then do not accept it and uninstall the App. If you do not agree with any of the terms or conditions of this EULA, you are not authorized to use the App for any purpose whatsoever.
2. Grant of license right
2.1. ToC hereby grants to the legitimate acquirer of the App (hereinafter referred to as “You”) a non-exclusive, non-transferable and revocable license to use the App as permitted in this EULA. This license is solely for personal and non-commercial use. In practice this means the non-transferability does also have effect under the law of property as referred to in article 3:83, paragraph 2, of the Dutch Civil Code. The license right is restricted to the use by You, as a natural person not acting in the course of business, on the devices that are linked to your Google Play store or Apple Appstore account.
2.2. You are allowed make a backup copy of the App. You may however only use this backup to restore the App in case the (original) App was lost on your device(s). You are not authorized to use the backup copy for any other purpose.
2.3. In addition to this EULA, Apple and Google may set terms and conditions for the acquisition and use of the App, the making of in-app purchases and other related matters. See also sections 14 and 15 below. We have no control over and are not responsible for any additional terms and conditions that have been imposed by Apple and/or Google. It is your responsibility to check whether any such terms and conditions apply and to ensure that your use of the App complies with such terms and conditions.
2.4. The license right of the App is limited to the rights as outlined in provisions 2.1 and 2.2, the rights as provided by mandatory law and if applicable the rights as outlined in provisions 14 and 15. Therefore you are not allowed to, except to the extent as permitted by mandatory law and provions 2.1 and 2.2 and if applicable provisions 14 and 15, amongst other things:
• decompile or reverse engineer the (source code of) the App;
• supply copies of the App to third parties;
• make the App available to third parties, by rental, Software-as-a-Service constructions or otherwise;
• modify the App.
3.1. In order to use the App, after the demo periode and when you want to subscribe, you are required to create a personal account. When you create such an account, you must provide ToC information that is accurate, complete, and current at all times.
3.2. You are responsible for safeguarding the password that you use to access your account. You furthermore agree not to disclose your password to any third party. You must notify ToC immediately upon becoming aware of any breach of security or unauthorized use of your account.
4. Intellectual property
4.1. ToC retains all rights (including copyrights, domain names, trademark rights, patents and other intellectual property rights) with regard to the App and all information offered in or via the App (including all text, graphic material and logos, etc). It is not permitted to copy, download or in any way make public, distribute or reproduce the information in the App without prior permission in writing from ToC or the lawful consent of the copyright holder.
5. In-app purchases and subscriptions
5.1. You may use the App for an limited time as a free demo to evaluate if the App suits your needs. The App allows in-app subscription-based purchases, in order to upgrade to the full version of the App.
5.2. You hereby certify and acknowledge that you have no right of withdrawal for distance contracts as reffered to in Directive 2011/83/EU on consumer rights, since this agreement concerns the supply of digital content which is not supplied on a tangible medium and since the performance has begun with your prior express consent.
5.3. IF YOU PURCHASE THE FULL VERSION OF THE APP, THE INITIAL TERM OF THE SUBSCRIPTION IS A PERIOD OF ONE (1) MONTH / THREE (3) MONTHS / ONE (1) YEAR AND WILL, UNLESS AGREED OTHERWISE, AUTOMATICALLY RENEW FOR AN ADDITIONAL ONE (1) MONTH / THREE (3) MONTHS / ONE (1) YEAR UNTIL YOU CANCEL YOUR SUBSCRIPTION.
5.4. Canceling your subscription will stop recurring fees going forward, but will not retroactively refund current payments. You will retain access to the full version of the App until the end of the then-current subsciption term.
5.5. ToC has no influence on the payment system operated by i.e. Apple or Google, including the underlying payment systems from e.g. credit card processors.
6. Updates & Changes
6.1. ToC from time to time releases updates that may fix bugs or improve the functioning of the App.
6.2. ToC is always allowed to change all content that is offered in or via the App.
6.3. Available updates shall be notified to You through notifications provided by the appstores that make the App available. It is your own responsibility to monitor these notifications.
6.4. Installing updates requires your separate consent. A proper installation of an update requires the availability and correct functioning of the appstores (i.e. the Apple Appstore or Google Play store), over which ToC has no control. AMONGST OTHER THINGS, THAT IS WHY TOC IS NOT RESPONSIBLE OR LIABLE FOR AN INCORRECT EXECUTION OF UPDATES, EXCEPT IN CASES OF INTENTIONAL MISCONDUCT OR GROSS NEGLIGENCE OF TOC. FUTHERMORE NO LIABILITY EXISTS FOR ANY DAMAGE OCCURED BECAUSE OF AN UPDATE YOU DID NOT INSTALL.
6.5. We may amend these conditions from time to time. Such amendments shall become effective two weeks after a new version of the App has been published. You will be deemed to have agreed to them if you continue to use the ToC app after that date without having notified ToC of Your objection to the amendments. If You object to such amendments, ToC reserves the right to terminate the EULA. It is recommended to periodically check if the information that is offered in or via this App, including the text of this EULA, has been changed.
7. Personal data and security
7.1. The App might process personal data. For more information consult the privacy statement that can be found in the settings menu of the App.
7.3. The App has a functionality to share specific information on, for example, social media.
Please, take care, when you are sharing information with any third party. You are solely responsible and liable for any information you copy, upload, attach or otherwise share while using the App. You can always adjust the consent for sharing in the App settings menu.
8.1. You can give feedback about the app via Apple’s Appstore or Google Play store, after which ToC will judge whether support is necessary and will help you further.
8.2. Technical issues (exempt payment issues, those should be reported to Apple’s Appstore or Google’s Play store), can be reported to email@example.com , mentioning a brief description of the issue and the type and brand of your device.
9. Purpose of the App and Liability
9.1. THE PURPOSE OF THE APP IS TO PROVIDE A (LIFESTYLE) SERVICE FOR EDUCATIONAL AND INFORMATIONAL PURPORSES ONLY. THE APP AND ALL OF ITS CONTENT IS NOT A SUBSTITUTE FOR PROFESSIONAL MEDICAL ADVICE, DIAGNOSIS, OR TREATMENT. TOC RECOMMENDS STRONGLY THAT YOU SEEK THE ADVICE OF YOUR PHYSICIAN OR OTHER QUALIFIED HEALTH-CARE PROFESSIONAL WITH ANY QUESTIONS YOU MIGHT HAVE REGARDING YOUR CANCER OF CANCER-RELATED FATIGUE. MAKE SURE THAT ANY SOMATIC CAUSES (SUCH AS ANEMIA OR THYROID PROBLEMS) ARE RULED OUT OR ARE BEING TREATED.
9.2. TOC SHALL TRY ITS UTMOST TO OFFER CORRECT, COMPLETE AND UP-TO-DATE INFORMATION FROM SOURCES CONSIDERED TO BE RELIABLE, BUT CANNOT GUARANTEE THAT THE INFORMATION OFFERED IN OR VIA THE APP IS UNDER ALL CIRCUMSTANCES CORRECT, COMPLETE AND UP-TO-DATE. THE USE OF ANY TYPE OF INFORMATION IS SOLELY AT YOUR OWN RISK, ALSO WHEN SUCH INFORMATION IS PROVIDED BY TOC, BY ANY AFFILIATED COMPANIES OR PERSONS OR BY THE APP.
9.3. TO THE EXTENT AS PERMITTED BY APPLICABLE LAW, TOC MAKES NO WARRANTIES, CONDITIONS, UNDERTAKINGS OR REPRESENTATIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE IN RELATION TO THE APP AND THE SERVICE AND/OR ITS UNDERLYING SOFTWARE INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PURPOSE THAT IS NOT EXPLICITLY STATED IN THIS EULA, NON-INFRINGEMENT OR ARISING FROM COURSE OF DEALING, USAGE OR TRADE. WITHOUT LIMITATION TO THE FOREGOING, TOC DOES NOT WARRANT THAT THE APP WILL MEET ALL YOUR REQUIREMENTS OR THAT THE OPERATION OF THE APP WILL BE ERROR FREE OR UNINTERRUPTED OR THAT DEFECTS IN THE APP WILL BE CORRECTED.
9.4. YOU ACKNOWLEDGE AND AGREE THAT YOU SHALL BE SOLELY RESPONSIBLE FOR PROPER BACK-UP OF ALL YOUR DATA AND THAT YOU SHALL TAKE APPROPRIATE MEASURES TO PROTECT SUCH DATA. TOC ASSUMES NO LIABILITY OR RESPONSIBILITY WHATSOEVER IF DATA IS LOST, EXCEPT IN CASES OF INTENTIONAL MISCONDUCT OR GROSS NEGLIGENCE OF TOC AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
9.5. THE APP COMMUNICATES VIA THE INTERNET WITH A SERVER UNDER CONTROL OF TOC. TOC USES ITS BEST EFFORTS TO HAVE THIS SERVER AVAILABLE AT ALL TIMES, BUT MAKES NO GUARANTEES IN THIS REGARD. FROM TIME TO TIME TOC CAN MAKE UPDATES TO THE SERVER, WHICH MAY LEAD TO A TEMPORARY UNAVAILABILITY OF THE APP. TOC WILL DO ITS BEST TO INFORM YOU IN ADVANCE ABOUT UNAVAILABILITY. EVERYTHING IN THIS DOCUMENT REGARDING UPDATES, SUPPORT AND LIABILITY APPLIES EQUALLY TO THE SERVER.
9.6. TOC IS NOT LIABLE TOWARDS YOU, REGARDLESS OF GROUND, WITH REGARD TO DIRECT OR INDIRECT DAMAGES OR LOSS OR IMMATERIAL OR CONSEQUENTIAL DAMAGES THAT IN ANY WAY MAY , EXCEPT IN CASES OF INTENTIONAL MISCONDUCT OR GROSS NEGLIGENCE OF TOC AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
9.7. IF PROVISION 9.6 IS HELD TO BE INVALID BY A COMPETENT COURT, AND TOC BECOMES LIABLE THEREBY TOWARDS YOU, SUCH LIABLILY WILL NEVER EXCEED THE AMOUNT OF EUR 1000,– (ONE THOUSAND EUROS).
10. Links to other websites
10.1. The App may contain links to third-party websites or services that are not owned or controlled by ToC. ToC has no control over, and assumes no responsibility for, the content, privacy policies, or practices of any third party web sites or services. You further acknowledge and agree that ToC shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available on or through any such web sites or services.
10.2. ToC strongly advises you to read the terms and conditions and privacy policies of any third-party web sites or services that you visit.
11. Termination of the agreement
11.1. The agreement between ToC and You enters into force when this EULA is accepted or when you start to use the App.
11.2. Notwithstanding any other rights and/or remedies of ToC, ToC has the right, in its sole discretion, to terminate the agreement if You fail to pay the license and/or subscription fees in accordance with the agreed payment terms, if You violate the agreement and/or THIS EULA, or if you use use the App, the servers and/or the network of ToC in a way that invokes or infringes the rights of ToC or others or in a way that breaches any applicable laws.
11.3. After termination of the agreement (regardless of reason) you must cease all use of the App. In addition you must remove all copies (including backup copies) of the App from all your devices.
12. Miscellaneous terms
12.1. Any disputes relating to this EULA are governed by Dutch law. The applicability of the United Nations Convention on Contracts for the International Sale of Goods (CISG) (Vienna Sales Convention 1980) is excluded.
12.2. In the absence of mandatory rules of law to the contrary, the courts of Utrecht (the Netherlands), has exclusive jurisdistion over all disputed relating to this EULA and the App.
12.3. If you are a natural persion who is not acting in the course of business, you are never bound by any provision of this EULA that is subject to nullification according to section 3 of title 5 of Book 6 of the Dutch Civil Code (“Algemene Voorwaarden”). Such provisions are never part of any contract or agreement between ToC and you.
13. Contact information
You can contact ToC via e-mail (firstname.lastname@example.org), phone (+31611366123) or mail (Tired of Cancer B.V., Lucasbolwerk 6, 3512 EG, Utrecht, The Netherlands).
14. Additional terms Apple Appstore
14.1. When the App is made available and/or when You acquired the App through the Apple’s Appstore, the following terms and conditions also apply to you:
14.2. ToC and You acknowledge that the App is concluded between ToC and You only, and not with Apple, and ToC, not Apple, is solely responsible for the App and the content thereof.
14.3. In addition to provision 2.1 of this EULA and to the extent as permitted by the App Store Terms of Service, the license right granted to You also gives You the right to use the App on any Apple-branded products that You own or control. The App may also be accessed and used by other accounts associated with the purchaser via Family Sharing or volume purchasing.
14.4. ToC is solely responsible for providing any maintenance and support services with respect to the App, as specified in this EULA, or as required under applicable law. ToC and You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App.
14.5. ToC is solely responsible for any product warranties, whether express or implied by law, to the extent not effectively disclaimed. In the event of any failure of the App to conform to any applicable warranty, You may notify Apple, and Apple will refund the purchase price for the App to You. To the maximum extent permitted by applicable law, Apple has no other warranty obligation whatsoever with respect to the App. Any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of ToC, to the extent not effectively disclaimed.
14.6. ToC, not Apple, is responsible for addressing any of your claims or any third party claims relating to the App or your possession and/or use of the App, including, but not limited to: (i) product liability claims; (ii) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection, privacy, or similar legislation, including in connection with App’s use of the HealthKit and HomeKit frameworks.
14.7. ToC and You acknowledge that, in the event of any third party claim that the App or your possession and use of the App infringes that third party’s intellectual property rights, ToC, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
14.8. You must represent and warrant that (i) 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 (ii) You are not listed on any U.S. Government list of prohibited or restricted parties.
14.9. You must comply with applicable third party terms of agreement when using the App.
14.10. ToC and You acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of this EULA, and that, upon your acceptance of the terms and conditions of this EULA, Apple will have the right (and will be deemed to have accepted the right) to enforce this EULA against You as a third party beneficiary thereof.
14.11. Complaints or claims with respect to the App should be directed to ToC. Contact information is available in this EULA.
14.12. You are not bound by any provision of this EULA that is in conflict with the App Store Terms of Service. If there is a conflict between any provision of this EULA and a provision of the App Store Terms of Service, you are towards ToC, mutatis mutandis, bound by the provision from the provision of the App Store Terms of Service.
15. Additional terms Google Play store
15.1. When the App is made available and/or when You acquired the App through the Google Play store, the following terms and conditions also apply to you:
15.2. In addition to provision 2.1 of this EULA, the license right granted to You also gives you the right to include, a family group, with a family manager and family members whose accounts are joined together for the purpose of creating a family group. Family groups on Google Play will be subject to reasonable limits designed to prevent abuse of family-sharing features. Users in a family group may purchase a single copy of the App (except in-app productions and subscriptions, which cannot be shared) and share it with other family members in their family group.