EULA

Matrix End User License Agreement for the MATRIX POWERWATCH® or MATRIX POWERWATCH® 2 Mobile App

 

IMPORTANT - READ CAREFULLY BEFORE CREATING AN ACCOUNT THROUGH THE MATRIX POWERWATCH® or MATRIX POWERWATCH® 2 MOBILE APPLICATION (THE “APP”).  

 

This is a legal agreement between you and Matrix Industries, Inc. (“Matrix”, “we” and/or “us”) (this “EULA”). By checking the box adjacent to the phrase “I agree”, by registering an account with Matrix through the App, or by using the App, you acknowledge that you have read, understand, and agree to be bound to the terms and conditions of this EULA. 3

 

This EULA provides that all Disputes (as defined below) between you and Matrix will be resolved by BINDING ARBITRATION. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this contract, except for matters that may be taken to small claims court. Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury, and YOUR CLAIMS CANNOT BE BROUGHT AS A CLASS ACTION. YOU HAVE A RIGHT TO OPT OUT OF THE BINDING ARBITRATION AND CLASS ACTION WAIVER PROVISIONS AS DESCRIBED IN SECTION 13(b) (“RIGHT TO OPT OUT OF MANDATORY ARBITRATION AND CLASS ACTION WAIVER”) below.  Please review Section 13 below for the details regarding your agreement to arbitrate any disputes with Matrix.

 

1. Registration.Registration withMatrix is required in order to use the App. You agree to only provide accurate and complete registration information to Matrix and agree to update such registration information, as necessary, to keep it current. You may not: (a) select or use as a user name or ID a name of another person with an intent to impersonate that person; or (b) use as a user name or ID a name subject to any rights of any other person without appropriate authorization. You are responsible for maintaining the security of your account (including user names, IDs, and passwords), and a responsible for all use of the App and related services occurring under your account. You agree to notify Matrix immediately upon becoming aware of any unauthorized use of your account.

 

2. Ownership of the App.Matrix is the owner of the App and retains all right, title, and interest in and to the App. The App is licensed, not sold, to you. Any rights to the App not expressly granted under this Section 2 are reserved by Matrix.

 

3. Grant of License. Subject to the terms and conditions of this EULA, Matrix grants to you a personal, non-exclusive, limited, non-transferable, non-sublicensable, revocable license, during the term of this EULA, to execute the App on a smartphone or tablet PC, or other authorized device belonging to you or in your possession and to use the App while it is so being executed.

 

If the App is provided to you through the Apple Inc. (“Apple”) App Store, you further agree that the license granted in this Section 3 is further limited to use on Apple-branded products that you own or control and as permitted by the Usage Rules set forth in the Apple App Store Terms of Service.

 

4. Restrictions. The right to use the App is not without restriction. In particular, you may not: (a) distribute, transmit, transfer, assign, rent, lease, sell or otherwise dispose of the App or any information, data, or content generated by or otherwise made available to you using the App (the “App Content”) to any third party; (b) use the App or App Content in any time sharing arrangement or otherwise make the App or the App Content available via a network so that it can be used on several devices at the same time; (c) unless otherwise expressly permitted by the functionality of the App, alter, modify, repair, rent, lease, loan, sell, distribute, or create derivative works based on the App or App Content; (d) reverse engineer, decompile, disassemble, or attempt to derive the source code of the App except to the extent such activities cannot be prohibited by applicable law; (e) use the App or App Content in an illegal, harmful, offensive, or abusive manner as determined by Matrix, including, but not limited to, by: (i) trespassing or burdening network capacity, or by violating the security or integrity of any network, computer or communications system, software application, network or computing device, (ii) infringing or violating the rights of any other party, or (iii) using the App in a way to avoid incurring fees or exceeding usage limits or quotas as specified by Matrix; (f) use theApp or App Contentfor any purpose that is prohibited by any law or regulation, or to facilitate the violation of any law or regulation; (g) violate the security of the App or attempt to gain unauthorized access to the App, or App Content, or other information, data, or content of Matrix or other users of the App through hacking, password mining, or any other means; or (h) assist any third party to engage in any of the foregoing activities. Matrix is not in any way responsible for any such unauthorized use by you. You agree to notify Matrix immediately upon becoming aware of any activity in violation of this Section 4.
5. Connectivity; Technical Requirements.An Internet connection is required to use the App. To control connection costs, we recommend using WiFi or a flat-rate data plan for mobile use of the App. You bear the responsibility for correct and proper installation (by your installer, for example) and connection to the Internet. Further technical requirements for usingthe App, in particular with regard to which operating systems/versions and devices are supported, are set out in the App’s documentation.  You must comply with any applicable third party terms of agreement when using the App.
6. Updates; Support. Matrix reserves the right to provide updates, new versions, and revisions, and make changes, corrections, and/or improvements (collectively, “Updates”) to: (a) the App; and (b) this EULA, in both cases at any time without notice or liability, provided that we will endeavor to provide you with notice of any material changes to this EULA. You are bound by any such Updates to this EULA and should therefore periodically review the then current terms and conditions to which you are bound.Matrix also reserves the right to discontinue licensing the App at any time without notice and without liability.Updates may, at the option of Matrix, only be made available online, and the App may automatically attempt to download and/or install any Updates. Matrix shall have no liability whatsoever arising from your failure or inability to access, install, or use any Updates provided to you.

 

Matrix is under no obligation to provide any Updates, and is under no obligation to correct any bugs or errors in the App or to otherwise provide support for the App or App Content. Nevertheless, should Matrix elect to provide you with any support, such support will be for your convenience only.

 

7. Privacy. In connection with your use of the App and the services we offer, certain information may be collected. For complete information, please see our Privacy Policy at: https://store.powerwatch.com/pages/privacy-policy. The Privacy Policy is incorporated herein by reference and is binding on you.

 

8. Term; Termination. This EULA is effective the day you install the App on your device. Either party may terminate this EULA, with or without cause, at any time. This EULA will terminate automatically, with or without prior notice, if you fail to comply with any provision of this EULA. Matrix also reserves the right to remove, suspend or disable your access to, and/or modify the App and/or the App Content in the event you violate this EULA. Upon termination, you must destroy your copy of the App, including any full or partial copies thereof, all App Content in your possession, and all licenses granted to you herein shall immediately terminate. Sections 9, 10, 11, and 13-18, and this Section 8 will survive any termination or expiration of this EULA.

 

9. Warranty. The App and the App Content are intended for general information purposes only.THE APP AND APP CONTENT ARE PROVIDED “AS IS”, “AS AVAILABLE” AND “WITH ALL FAULTS BASIS.” MATRIX MAKES NO, AND HEREBY DISCLAIMS ALL, REPRESENTATIONS AND WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF TITLE, MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE, ACCURACY, COMPLETENESS, POSSIBILITY OF USE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS. Some jurisdictions do not allow the exclusion of implied warranties or limitations on applicable statutory rights of a consumer, so the above exclusion may not apply to you.

 

YOUR USE OF THE APP AND THE APP CONTENT IS AT YOUR SOLE RISK.  YOU ARE FULLY AND SOLELY RESPONSIBLE FOR YOUR INTERACTIONS WITH OTHER USERS AND YOU AGREE THAT IT IS SOLELY YOUR RESPONSIBILITY TO TAKE REASONABLE PRECAUTIONS IN ALL ACTIONS AND INTERACTIONS WITH OTHER PROFESSIONALS AND CLIENTS AND IN THE PROVISION OR RECEIPT OF BEAUTY AND WELLNESS SERVICES.  MATRIX IS NOT RESPONSIBLE FOR THE CONDUCT, WHETHER ONLINE OR OFFLINE, OF ANY USER OF THE APP OR THE APP CONTENT.  MATRIX IS UNDER NO OBLIGATION TO, AND DOES NOT ROUTINELY, SCREEN ITS USERS, INQUIRE INTO THE BACKGROUND OF ITS USERS OR ATTEMPT TO VERIFY INFORMATION PROVIDED BY ANY USER.  WE RESERVE THE RIGHT, BUT HAVE NO OBLIGATION, TO MONITOR DISPUTES BETWEEN YOU AND OTHER USERS.  PLEASE CAREFULLY SELECT THE TYPE OF INFORMATION THAT YOU POST ON OR THROUGH THE APP OR RELEASE TO OTHERS.  WE DISCLAIM ALL LIABILITY, REGARDLESS OF THE FORM OF ACTION, FOR THE ACTS OR OMISSIONS OF OTHER PARTICIPANTS OR USERS.

 

IT IS POSSIBLE FOR OTHERS TO OBTAIN PERSONAL INFORMATION ABOUT YOU DUE TO YOUR USE OF THE APP OR THE APP CONTENT, AND THAT THE RECIPIENT MAY USE SUCH INFORMATION TO HARASS OR INJURE YOU.  WE ARE NOT RESPONSIBLE FOR THE USE OF ANY PERSONAL INFORMATION THAT YOU DISCLOSE ON OR THROUGH THE APP OR THE APP CONTENT.  YOU UNDERSTAND THAT IN USING THE APP OR THE APP CONTENT, SENSITIVE INFORMATION MAY TRAVEL THROUGH THIRD-PARTY INFRASTRUCTURE THAT IS NOT UNDER MATRIX’S CONTROL (SUCH AS THIRD-PARTY SERVERS).  MATRIX MAKES NO WARRANTY WITH RESPECT TO THE SECURITY OF SUCH THIRD-PARTY INFRASTRUCTURE.

 

MATRIX MAKES NO WARRANTY THAT (i) THE APP OR THE APP CONTENT WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (ii) THAT YOUR ACCESS TO OR USE OF THE APP OR THE APP CONTENT WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR FREE, (iii) THAT ANY DEFECTS IN THE APP OR THE APP CONTENT WILL BE CORRECTED, OR (iv) THAT THE APP OR THE APP CONTENT OR ANY SERVER THROUGH WHICH YOU ACCESS THE APP OR THE APP CONTENT IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.

 

MATRIX MAKES NO REPRESENTATIONS OR WARRANTIES ABOUT THE QUALITY, SUITABILITY, RELIABILITY, TIMING, DURABILITY, LEGALITY, OR ANY OTHER ASPECT OF BEAUTY AND WELLNESS SERVICES OFFERED OR PROVIDED BY PROFESSIONALS OR REQUESTED BY CLIENTS THROUGH USE OF THE APP OR THE APP CONTENT WHETHER IN PUBLIC, PRIVATE, OR OFFLINE INTERACTIONS OR ABOUT THE ACCREDITATION, REGISTRATION OR LICENSE OF ANY PROFESSIONAL.

 

ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE APP OR THE APP CONTENT IS ACCESSED AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.

 

NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM MATRIX OR THROUGH OR FROM THE APP OR THE APP CONTENT SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS EULA.

 

If you obtained the App through the Apple App Store, then, in the event of any failure of the App to conform to any applicable warranty provided above, 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 will have no other warranty obligation whatsoever with respect to the App, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the Matrix’s sole responsibility.

 

10. Liability Limitation. TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL MATRIX OR ITS AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS BE LIABLE FOR ANY DAMAGES WHATSOEVER, WHETHER DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR BODILY INJURY OR EMOTIONAL DISTRESS AND DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF MATRIX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (I) THE USE OR THE INABILITY TO USE THE APP OR THE APP CONTENT; (II) BEAUTY AND WELLNESS SERVICES FACILITATED BY THE APP OR THE APP CONTENT OR ANY INTERACTIONS BETWEEN USERS, INCLUDING WITHOUT LIMITATION ANY LIABILITIES ARISING IN CONNECTION WITH THE CONDUCT, ACT OR OMISSION OF ANY USER (INCLUDING WITHOUT LIMITATION STALKING, HARASSMENT THAT IS SEXUAL OR OTHERWISE, ACTS OF PHYSICAL VIOLENCE, AND DESTRUCTION OF PERSONAL PROPERTY) OR ANY DISPUTE WITH ANY USER; (III) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE APP OR THE APP CONTENT; (IV) ANY UNAUTHORIZED ACCESS TO OR ALTERATION OF THE APP OR THE APP CONTENT OR YOUR DATA OR TRANSMISSIONS; OR (V) ANY OTHER MATTER RELATING TO THE APP OR THE APP CONTENT.IN THE EVENT THE FOREGOING LIMITATION IS NOT ENFORCEABLE, MATRIX’S TOTAL, CUMULATIVE LIABILITY TO YOU ARISING FROM OR RELATED TO THIS EULA, THE APP, AND THE APP CONTENT IS LIMITED TO FIFTY DOLLARS ($50). The foregoing limitations will apply even if the above stated remedy fails of its essential purpose. Certain jurisdictions do not permit the limitation or exclusion of incidental damages, so this limitation may not apply to you. Matrix also assumes no responsibility, and shall not be liable for, any damages to, or viruses that may infect your device or other property on account of your access to or use of the App or App Content.

 

11. Indemnification.You are responsible for all use of the App and the App Content and related services. You agree to defend, indemnify and hold harmless Matrix and its affiliates, officers, directors, employees, agents, partners and licensors from and against any and all claims, damages, obligations, losses, liabilities, costs, debt and expenses (including but not limited to attorney’s fees) arising from or relating to: (i) your use of and access to the App or the App Content; (ii) services facilitated by the App or the App Content or any interaction between you and another user; (iii) your violation of any term of this EULA; (iv) your violation of any rights of a third party, including without limitation any copyright, intellectual property, defamation, libel, unfair competition, or privacy right; (v) your negligence, willful misconduct, or fraud; or (vi) any third-party claims or damages relating to death, personal injury or emotional distress arising from or related to use of the App or the App Content. 

 

12. Legal Compliance.You agree that you will comply with all applicable laws and regulations when using the App and App Content, including but not limited to the export laws and regulations of the United States. You hereby represent and warrant that: (a) 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 (b) you are not listed on any U.S. Government list of prohibited or restricted parties.

 

13. DISPUTE RESOLUTION AND ARBITRATION.The term “Dispute” means any dispute, controversy or claim between you and Matrix arising from or relating to this EULA or the enforcement of any provision of this EULA. whether based in contract, statute, regulation, ordinance, tort (including fraud, misrepresentation, fraudulent inducement, or negligence), or any other legal or equitable theory, and includes the validity, enforceability or scope of this “DISPUTE RESOLUTION AND ARBITRATION” section (with the exception of the enforceability of the “CLASS ACTION WAIVER” clause below).  “Dispute is to be given the broadest possible meaning that will be enforced.  You agree that any Dispute between you and Matrix will be governed by the arbitration procedures outlined below.

 

1. ARBITRATION AGREEMENT; CLASS WAIVER; WAIVER OF TRIAL BY JURY. Please read this Arbitration Agreement carefully. It is part of your contract with Matrix and affects your rights. It contains procedures for MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.

 

1.                   MANDATORY BINDING ARBITRATION. In the interest of resolving Disputes between you and Matrix in the most expedient and cost effective manner, you and Matrix agree that every Dispute will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THIS EULA, YOU AND MATRIX ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.

 

1.                   Exceptions. Despite the provisions of Section 13(a)(vi), nothing in this EULA will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law; or (d) to file suit in a court of law to address an intellectual property infringement claim.

 

                              iii.                  Arbitrator. Any arbitration between you and Matrix will be settled under the Federal Arbitration Act, and governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by this EULA, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Matrix.

 

94025.                   Notice; Process. A party who intends to seek arbitration must first send a written notice of the Dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if such other party has not provided a current physical address, then by electronic mail (“Notice”). Matrix's address for Notice is: 1455 Adams Drive, Suite 1190, Menlo Park, CA 94025. The Notice must: (a) describe the nature and basis of the claim or Dispute; and (b) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice is received, you or Matrix may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or Matrix must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the Dispute is finally resolved through arbitration in your favor, Matrix will pay you the highest of the following: (i) the amount awarded by the arbitrator, if any; (ii) the last written settlement amount offered by Matrix in settlement of the Dispute prior to the arbitrator's award; or (iii) $1,000.

 

1.                   Fees. If you commence arbitration in accordance with this EULA, Matrix will reimburse you for your payment of the filing fee, unless your claim is for more than $10,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in San Mateo County, California, USA, but if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephone hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse Matrix for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve Disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator's ruling on the merits.

 

1.                   CLASS ACTION WAIVER. YOU AND MATRIX AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Matrix agree otherwise, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of a representative or class proceeding.

 

                             vii.                  Modifications to this Arbitration Provision. If Matrix makes any future change to this arbitration provision, other than a change to Matrix's address for Notice, you may reject the change by sending us written notice within 30 days of the change to Matrix's address for Notice, in which case your account with Matrix will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected, will survive.

 

                            viii.                  Confidentiality. All aspects of the arbitration proceeding, including, but not limited to, the award of the arbitrator and compliance therewith, shall be strictly confidential. You and Matrix agree to maintain confidentiality unless otherwise required by law. This section shall not prevent a party from submitting to a court of law any information necessary to enforce this agreement to arbitrate, to enforce an arbitration award, or to seek injunctive or equitable relief.

 

1.                   Survival of Agreement. This agreement to arbitrate will survive the termination of your relationship with Matrix.

 

1.                   Enforceability. If Section 13(a)(vi) is found to be unenforceable or if the entirety of this Section 13 is found to be unenforceable, then the entirety of this Section 13 will be null and void and, in that case, the parties agree that the exclusive jurisdiction and venue described in Section 14 will govern any action arising out of or related to this EULA.

 

1. RIGHT TO OPT OUT OF MANDATORY ARBITRATION AND CLASS ACTION WAIVER.  You may opt out of the foregoing arbitration and class action waiver provisions of this EULA by NOTIFYING MATRIX IN WRITING WITHIN 30 DAYS OF THE DATE THAT YOU ACCEPT THIS EULA UNLESS A LONGER PERIOD IS REQUIRED BY APPLICABLE LAW.  To opt out, you must send a written notification to Matrix at Attention: [Legal], Matrix Industries, Inc., 1455 Adams Dr., Suite 1190, Menlo Park, CA 94025, that includes (i) your name; (ii) your address; (iii) your telephone number; (iv) your email address; and (v) a clear statement indicating that you do not wish to resolve claims through arbitration and demonstrating compliance with the 30-day time limit to opt out of the above arbitration and class action waiver sections.

 

14. Applicable Law and Jurisdiction.  Except as expressly provided otherwise, this EULA is governed by, and will be construed under, the laws of the State of California, without regard to choice of law principles.  The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded.  In the event that the agreement to arbitrate set forth in Section 13 above is found not to apply to you or your claim, you and Matrix agree that any judicial proceeding will be brought in the federal or state courts in, or closest to, San Mateo County, California. Both you and Matrix consent to venue and personal jurisdiction there. You and Matrix both agree to waive their right to a jury trial.  In addition, either you or Matrix may assert claims, if they qualify, in small claims court in San Mateo County, California or any United States county where you live or work..

 

15. Third Party Beneficiaries.If you downloaded the App from the Apple App Store, then 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 the EULA against you as a third party beneficiary hereof.

 

16. Provisions Concerning Apple.If you downloaded the App from the Apple App Store, then Matrix and you each acknowledge and agree that: (a) this EULA is between the Matrix and you alone, and that Apple is not a party to this EULA and that, as between Apple and Matrix, Matrix is solely responsible for the App and the App Content; (b) Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App; (c) as between Apple and Matrix, Matrix, and not Apple, is responsible for addressing any claims by you or a third party relating the App or to your possession 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 the App’s use of the HealthKit and HomeKit frameworks (if applicable); and (d) in the event of any third party claim that the App or your possession and use of the App infringes a third party’s intellectual property rights, as between Apple and Matrix, Matrix will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.

 

17. Miscellaneous.

 

(a)   Entire Agreement.  Except as they may be supplemented by additional terms and conditions, policies, guidelines or standards, this EULA constitutes the entire agreement between Matrix and you pertaining to the subject matter hereof and supersedes all prior agreements and understanding between the parties.

(b)   Customer Relationship.  No joint venture, partnership, employment, or agency relationship exists between you and Matrix as a result of this EULA or your use of the App or the App Content.

(c)   Severability.  If any provision of this EULA is held to be invalid or unenforceable, such provision will be struck and will not affect the validity and enforceability of the remaining provisions.

(d)   Waiver.  Matrix’s failure to enforce any right or provision in this EULA will not constitute a waiver of such right or provision unless acknowledged and agreed to by us in writing.  Except as expressly set forth in this EULA, the exercise by either party of any of its remedies under this EULA will be without prejudice to its other remedies under this EULA or otherwise permitted under law.

(e)   Assignment.  You may not assign, transfer or delegate this EULA and your rights and obligations hereunder without Matrix’s prior written consent.  Matrix may without restriction assign, transfer or delegate this EULA and any rights and obligations hereunder, at its sole discretion, with 30 days prior notice.  Your right to terminate this EULA at any time remains unaffected.

(f)    Headings.  The headings contained in this EULA are intended for convenience or reference and shall not affect the meaning or interpretation of this EULA.

18. Contact Information; Feedback.Should you have questions about the terms and conditions of this EULA or if youdesire to contact Matrix for any reason (including, but not limited to legal correspondence; any questions or comments about the App or the App Content; your rights of access, rectification, erasure, and restriction; or to report any problems, bugs, or other errors), please contact Matrix at Attention: Legal, Matrix Industries, Inc., 1455 Adams Dr, Ste 1190, Menlo Park, CA 94025 or support@matrixindustries.com  To the extent you provide Matrix with any suggestions, enhancement requests, recommendations or other feedback relating to the App or Matrix’s business, products, services, or operations (collectively, “Feedback”), you hereby grant Matrix a non-exclusive, fully paid-up, royalty-free, transferable, sublicensable (through multiple tiers of sublicensees), worldwide, perpetual, irrevocable right and license to use, reproduce, publicly perform, publicly display, distribute, modify, create derivative works, sell, exploit, and otherwise commercialize and dispose of such Feedback without restriction.