Moongate Mobile App End User License Agreement

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This Moongate Mobile App End User License Agreement (“Agreement”) is between Sunship Media, LLC (“Sunship”) and you or the entity that you represent (collectively, “You”), and governs Your use of the Moongate mobile application (the “App”) on an iOS or Android device.

PLEASE READ THE TERMS OF THIS AGREEMENT CAREFULLY. BY INSTALLING OR USING THE APP ON YOUR MOBILE DEVICE, YOU AGREE THAT THIS AGREEMENT IS ENFORCEABLE LIKE ANY WRITTEN CONTRACT SIGNED BY YOU. IF YOU DO NOT AGREE TO THE FOREGOING, SUNSHIP DOES NOT AUTHORIZE YOU TO INSTALL OR USE THE APP.

Sunship reserves the right to revise any portion of this Agreement in its sole discretion at any time by updating this posting, and Sunship will use reasonable efforts to notify You of the modifications. You may be required to agree to the modified version of this Agreement.  If You disagree with any changes to this Agreement, Your sole remedy is to discontinue Your use of the App. Your continued use of the App after a change has been posted is deemed Your acceptance of the change.

1. Parties.

This Agreement is between You and Sunship only, and not Apple, Inc. or its affiliated companies (“Apple”) or Google, LLC or its affiliated companies (collectively, “Google”). Sunship, not Apple or Google, is solely responsible for the App and the content of the App. Neither Apple nor Google will be responsible for, or have any liability whatsoever under, this Agreement.  Notwithstanding the foregoing, Apple and Apple’s subsidiaries are third-party beneficiaries of this Agreement and, as such, have the right to enforce this Agreement against You.

2. Fulfillment Policy.

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Sunship’s policies regarding purchases of subscriptions to use the App, free trials, cancellations, refunds, chargebacks and disputes, payment failures and related issues are set forth in Sunship’s Fulfillment Policy.  The Fulfillment Policy is incorporated by reference into this Agreement, and You expressly agree to be bound by all of the policies set forth in the Fulfillment Policy.

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3. Limited License.

Subject to the terms and conditions of this Agreement, Sunship hereby grants You a limited, worldwide, non-exclusive, non-transferable, revocable, perpetual license to install, perform, display and use the App for lawful purposes, and only on:  (a) an Apple-branded product that runs iOS or iPadOS and that You own or control (or that can access the App via family sharing accounts associated with You) and in compliance with the Apple Media Service Terms and Conditions; or (b) a device that can access Google Play and that You own or control (or that can access the App via family sharing accounts associated with You). The App is designed to communicate over Wi-Fi and mobile networks, and You are authorized to use the App with those networks. You acknowledge and agree that transmitting data over a Wi-Fi or mobile network is not 100% secure or free from risk of compromise and that Sunship will have no responsibility for any security breach or compromise resulting from a transmission of data over Wi-Fi or a mobile network.

4. License Restrictions.

Except as expressly set forth in this Agreement, You must not, and must not authorize any third party to, in whole or in part, except as expressly authorized in this Agreement: (i) copy the App; (ii) reverse engineer, decompile, modify, translate or disassemble the App; (iii) sell, rent, sublicense, distribute, disclose, publish, assign or otherwise transfer any rights in the App without Sunship’s prior written consent; (iv) modify, or create derivative works based upon, the App, in whole or in part; (v) permit any third party to benefit from the use or functionality of the App via a timesharing, service bureau or similar arrangement; (vi) remove any proprietary notice or branding from the App; or (vii) exploit the App or do anything which adversely affects Sunship’s right, title or interest in or to the App. You acknowledge that the source code underlying the App is Sunship’s confidential and proprietary information.  You must comply with applicable third-party terms of agreement when using the App (e.g., You must not be in violation of Your wireless data service agreement when using the App).  Google may have the right to remove the App from Your device and/or Google Play in certain circumstances described in the Google Play Developer Distribution Agreement, and Sunship will have no liability to You in that event.

5. Term; Termination.

The term of this Agreement and the license granted in this Agreement continue until this Agreement is terminated by either party. You may terminate this Agreement at any time by permanently discontinuing use of, and deleting all copies of, the App. This Agreement terminates automatically if You fail to comply with any of the terms of this Agreement. Upon any termination of this Agreement, You must cease use of the App and destroy all copies of the App.

6. Ownership.

As between You and Sunship, except for any rights expressly granted to You in this Agreement, Sunship will retain all rights, title and interest in and to the App, including any associated copyright, patent, trade secret, trademark or other intellectual property rights.

7. Warranty Disclaimer.

THE APP IS PROVIDED “AS IS.” TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SUNSHIP MAKES NO WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, AND EXPRESSLY DISCLAIMS ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING DISCLAIMER, SUNSHIP MAKES NO WARRANTY THAT THE APP WILL BE ERROR-FREE OR FREE FROM INTERRUPTIONS OR OTHER FAILURES OR THAT THE APP WILL MEET YOUR REQUIREMENTS OR PRODUCE ANY SPECIFIC EFFECT ON YOUR HEALTH OR WELL BEING. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER APPLE NOR GOOGLE WILL HAVE ANY WARRANTY OBLIGATION WHATSOEVER, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO THE APP.  Some jurisdictions do not allow some of the foregoing exclusions or limitations, so some of these exclusions or limitations may not apply to You. In the event any warranty cannot be excluded under applicable law and the App obtained from the Apple App Store fails to conform to any applicable warranty, You may notify Apple, and Apple will refund the purchase price for the App, if any, to You; provided that, 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 Sunship’s sole responsibility.

8. Privacy.

Sunship will have the right to use certain information collected through the App as set forth in Sunship’s Privacy Policy.  Google and Apple may have the right and ability to collect and use certain data regarding Your use of the App in accordance with their respective privacy policies and terms governing their app stores, and Sunship has no control over, or responsibility for, any of that data collection and use.

9. Technical Support.

Sunship may, but is not obligated to, provide maintenance or other technical support for the App. Neither Apple nor Google has any obligation whatsoever to furnish any maintenance and support services with respect to the App, and You should not contact Apple or Google for maintenance or support services.  To the extent that any maintenance or technical support is required by applicable law, Sunship, not Apple or Google, will be obligated to furnish any of that support. Sunship may make changes to the App at any time without notice. Nothing in this Agreement obligates Sunship to support or provide You with updates or error corrections to the App.

10. Third-Party Claims.

Sunship is not obligated to indemnify, defend or hold You harmless with respect to any third-party claims arising out or relating to the App, including without limitation any claims that Your possession and use of the App infringes that third party’s  intellectual property rights. To the extent Sunship is required by applicable law to provide any indemnification, Sunship, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any claim of that kind. Sunship does not agree or admit that any claims exist or may arise, and nothing in this Agreement implies that any claims exist or may arise.

11. Product Claims.

Sunship, not Apple or Google, is responsible for addressing any claims You may have relating to the App or Your use or possession of the App, including but not limited to: (i) any product liability claim; (ii) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (iii) any claim arising under consumer protection, privacy or similar legislation. Sunship does not agree or admit that You have any claims of that kind, and nothing in this Agreement implies that You may have any claims.  YOU ACKNOWLEDGE AND AGREE THAT THE APP IS NOT A MEDICAL PRODUCT OR DEVICE, DOES NOT PROVIDE ANY MEDICAL ADVICE OR SERVICES, IS NOT INTENDED TO DIAGNOSE, TREAT, CURE, MITIGATE OR PREVENT ANY CONDITION OR DISEASE, AND IS INTENDED SOLELY TO SUPPORT GENERAL WELL BEING.  ANY INFORMATION PRESENTED IN THE APP, ON ANY WEBSITE PROVIDED BY SUNSHIP, IN ANY APP STORE  OR IN SUNSHIP’S SOCIAL MEDIA DOES NOT CONSTITUTE A MEDICAL CLAIM AND IS NOT MEANT AS A SUBSTITUTE FOR OR ALTERNATIVE TO INFORMATION FROM HEALTHCARE PROFESSIONALS. IF YOU HAVE ANY HEALTH CONCERNS ABOUT YOUR USE OF THE APP, YOU SHOULD CONSULT WITH YOUR HEALTHCARE PROFESSIONAL.  THE EFFECTIVENESS OF THE APP HAS NOT BEEN VERIFIED BY FDA-APPROVED STUDIES.  THE OUTCOMES FROM USING THE APP CAN DIFFER FROM PERSON TO PERSON.

12. Limitation of Liability.

IN NO EVENT WILL SUNSHIP OR ITS AFFILIATES OR LICENSORS BE LIABLE TO YOU FOR ANY LOST PROFITS, LOST DATA, LOSS OF BUSINESS, GOODWILL OR REPUTATION, OR FOR ANY OTHER CONSEQUENTIAL, EXEMPLARY, PUNITIVE, INDIRECT, INCIDENTAL OR SPECIAL DAMAGES OF ANY KIND, EVEN IF SUNSHIP HAS BEEN ADVISED OF THE POSSIBILITY OF THOSE DAMAGES. IN NO EVENT WILL THE TOTAL CUMULATIVE LIABILITY OF SUNSHIP AND ITS AFFILIATES AND LICENSORS UNDER THIS AGREEMENT FROM ALL CAUSES OF ACTION OF ANY KIND, INCLUDING TORT, CONTRACT, NEGLIGENCE AND STRICT LIABILITY, EXCEED $50. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING EXCLUSIONS AND LIMITATIONS OF LIABILITY, IN NO EVENT WILL SUNSHIP OR ITS AFFILIATES OR LICENSORS BE LIABLE TO YOU FOR ANY EFFECT, OR NON-EFFECT, OF USING THE APP, INCLUDING WITHOUT LIMITATION ANY FAILURE OF THE APP TO DIAGNOSE, TREAT, CURE, MITIGATE OR PREVENT ANY CONDITION OR DISEASE.  THESE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY. You acknowledge and agree that the foregoing limitations of liability are essential elements of the bargain and that in the absence of these limitations, the financial and other terms of this Agreement would be substantially different. Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so these limitations may not apply to You.  The exclusions and limitations of liability set forth in this Agreement will not apply in respect of any liability that cannot otherwise be excluded or limited under applicable law.

13. Notice to United States Government End Users.

If You are the U.S. Government or if You are a contractor or subcontractor (at any tier) of the U.S. Government and are licensing the App for use by the U.S. Government or in connection with any contract or other transaction with the U.S. Government, You acknowledge that by installing and using the App, the App qualifies as commercial computer software and that any associated documentation qualifies as commercial computer software documentation within the meaning of the applicable federal acquisition regulations. The terms and conditions of this Agreement are fully applicable to the Government’s use and disclosure of the App and associated documentation, and will supersede any conflicting terms or conditions imposed by any federal acquisition regulations.

14. Compliance with Law.

You represent and warrant that:  (a) You are not located in, domiciled in, a resident of, controlled by the government of, or organized under the laws of a country or region that is subject to a U.S. Government embargo (currently, Crimea, Cuba, Iran, North Korea, Syria and Venezuela) or that has been designated by the U.S. Government as a “terrorist supporting” region; and (b) You are not on or, directly or indirectly, owned, in whole or part, by any person or persons on the U.S. Treasury Department’s List of Specially Designated Nationals and Blocked Persons or any other U.S. government list of parties with respect to which transactions are forbidden or restricted.  You must not export, re-export, import, or transfer any good, service or item that You received from Sunship or Your right to access the App in violation of U.S. law or in any manner that is forbidden for U.S. citizens, including, without limitation, transfer to a country or region that is subject to a U.S. government embargo, and You must not assist or facilitate others in doing any of the foregoing.  You acknowledge that it is Your responsibility to comply with any and all applicable export and import and economic sanctions laws.

15. Governing Law; Disputes; Confidential Arbitration.

15.1 Governing Law.  This Agreement will be governed by the laws of the State of Colorado, USA without giving effect to the principles of conflict of laws.  This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods or the Uniform Computer Information Transactions Act, the application of which is expressly excluded.

15.2 Dispute Resolution.  If any dispute arises under this Agreement (“Dispute”), each party will submit the Dispute for resolution by an individual with decision-making authority for that party.  If the Dispute cannot be resolved in thirty (30) days, the Dispute will be resolved per the confidential arbitration terms below.  

15.3 Confidential Arbitration.  ANY DISPUTE (INCLUDING REGARDING THE SCOPE, APPLICABILITY, OR ENFORCEABILITY OF THIS ARBITRATION CLAUSE) WILL BE DETERMINED EXCLUSIVELY BY NEUTRAL, FINAL, BINDING AND CONFIDENTIAL ARBITRATION.  EACH PARTY IRREVOCABLY WAIVES THE RIGHT TO A TRIAL BY JURY FOR ANY DISPUTE.  The arbitration shall be administered by Judicial Arbitration & Mediation Services, Inc. (“JAMS”) before a single arbitrator in Denver, Colorado and shall be initiated and conducted according to the JAMS Rules (to the extent not inconsistent with the terms of this arbitration clause).  Each of the parties will maintain the confidential nature of any such arbitration and will not (without the prior written consent of the other party) disclose to any third party the fact, existence, content, award, or other result of the arbitration, except as may be necessary to enforce, enter, or challenge the award in a court of competent jurisdiction or as otherwise required by applicable law. Discovery will be limited to an exchange of relevant documents, unless the arbitrator determines that additional discovery is necessary, consistent with the expedited nature of arbitration. The arbitrator will issue a written statement setting forth the award, which will be final and binding, and the basis for the award. The arbitrator will have the power to award any type of relief that would be available in a court of competent jurisdiction.  EACH PARTY AGREES THAT IT MAY BRING CLAIMS AGAINST THE OTHER ONLY IN ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.  Notwithstanding anything to the contrary, Sunship may seek remedies outside of informal dispute resolution and arbitration for: (a) claims that qualify for small claims court; (b) provisional or preliminary injunctive or other equitable relief; or (c) trademark, copyright and other intellectual  property claims.  Any Dispute that is not subject to arbitration (e.g., if a party seeks remedies pursuant to the preceding sentence or if arbitration is deemed unenforceable or inapplicable) will be, and any judgement on any arbitration award may be, brought in a federal or state court located in Denver, Colorado, USA, and the parties hereby consent to the exclusive personal jurisdiction and venue of those courts.

16. Miscellaneous.

If any provision of this Agreement is unlawful, void, or for any reason unenforceable, then that provision will be deemed severable from this Agreement and will not affect the validity and enforceability of any remaining provisions. This Agreement and any policies and guidelines incorporated in this Agreement by reference constitute the entire agreement between the parties relating to the subject matter of this Agreement (unless You are a beta customer of Sunship, in which case any conflicting terms of Your beta customer agreement, if any, with Sunship will control as long as that agreement is in effect). You are not permitted to assign these Terms without the prior written consent of Sunship. Any attempt by You to assign other than in accordance with this provision will be null and void. Unless otherwise specified in this Agreement, all notices, invoices and other communications required or permitted to be given or made hereunder must be in writing and: (i) if to Sunship, delivered personally or sent by pre-paid, first class certified or registered mail, return receipt requested or by overnight courier, to Sunship Media, LLC, 1905 Sherman Street, Suite 200 #1205, Denver, CO 80203, Attn: Legal Notices; or (ii) if to You, by any email You provided that is linked to the App. No amendment of any provision of this Agreement will be effective unless made in accordance with the third paragraph of this Agreement or set forth in a writing signed by a representative of Sunship and You, and then only to the extent specifically set forth in the Amendment. No waiver by Sunship of any condition or the breach of any provision of this Agreement in any one or more instances will be deemed a further or continuing waiver of the same or any other condition or provision.  The parties acknowledge and agree that a material breach of this Agreement adversely affecting Sunship’s proprietary rights would cause irreparable harm to Sunship for which a remedy at law would be inadequate and that Sunship will be entitled to injunctive relief in addition to any remedies it may have hereunder or at law.

17. Contact.

If You have any questions regarding the App or this Agreement, please contact Sunship Media, LLC at support@moongateapp.com, at +1 (866) 330-4021 or at 1905 Sherman Street, Suite 200 #1205, Denver, CO 80203.

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