This User License Agreement (this “Agreement”) is a legal document that contains the terms and conditions under which limited use of certain Application APIVOX AUDITOR for smart phones, based on Android 4, 5 or higher OS ( "App" ) is licensed to you.
PLEASE READ THIS AGREEMENT CAREFULLY BEFORE INSTALLING OR USING THIS APPLICATION.
BY CHECKING THE BOX OR CLICKING THE BUTTON TO CONFIRM YOUR ACCEPTANCE WHEN YOU FIRST INSTALL THE APPLICATION, YOU ARE AGREEING TO ALL THE TERMS OF THIS AGREEMENT. ALSO, BY USING, COPYING OR INSTALLING THE APPLICATION, YOU ARE AGREEING TO ALL THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THESE TERMS, DO NOT CHECK THE BOX OR CLICK THE BUTTON AND/OR DO NOT USE, COPY OR INSTALL THE APPLICATION.
Beekeepers Acoustic Assistant APIVOX AUDITOR - is an Application licensed to you . (Application include Open Source Software.) By “you,” we mean the purchaser, recipient or other end user of the Application. “You” may also mean a person who has bought the Application from an authorized website, such as www.apivoxauditor.com .
1. PURPOSE OF THE PROGRAM AND THE NECESSARY ELEMENTS OF PERSONALIZATION AND PROTECTION
- The program (mobile application) Apivox Auditor is designed to obtain information on the state of bee families on the basis of monitoring the acoustic signals emitted by the bees in different moments of his life.
- The program (mobile application) Apivox Auditor issues a diagnostic text message and indicates the status of the family with the help of arrow indicators and graphics. All these data should be considered as tips and recommendations, but not strict instructions.
- The program (mobile application) Apivox Auditor is designed to work on mobile devices with the Android operating system version 4 and above.
- To personalize the program Apivox Auditor, to protect against unauthorized use of the program, the following information is required for the generation of the program:
- The language in which the application runs (one of the five available - English, French, German, Russian)
- The country in which the application will be used. (From the list of authorized countries, available on the website)
- The name of the Google user account, installed on the mobile device, which will be used to work with the program Apivox Auditor (gmail)
- IMEI and \ or the serial number of the mobile device, designed to work with the program Apivox auditor.
- We garanty that these data will be used by us only in the process of generation of the program (application) Apivox Auditor for their owner.
- The application is made with the usage of maximum possible levels of individualization and involves data which you submit to identify you uniquely as a user of the program. In addition the program includes special levels of protection and personalization. Thus in the case of unauthorized usage of the program or hacking, you will be liable as a person who has transferred his copy of the software for illegal activities.
2. PROCESS OF PAYMENT AND RECEPTION OF THE PROGRAM
- The program buyer read and study this User License Agreement, If agree,
- The program buyer fills out the form with the data, necessary to generate the program.
- The program buyer pays for the program, using the payment system Pay Pal.
- The program buyer receives the program to gmail address indicated in the form with data.
3. LICENSE GRANT.
We hereby grants you the right to use the Application for your personal, non-commercial purposes or commercial use. As part of this license, you may (A) operate the Application in the manner described in the user documentation for the Application; (B) where the Application is provided for download onto mobile device, make one copy of the Application for your own use; and (C) permanently transfer all of your rights to use the Product (including but not limited to the Application) to another person, so long as that person also agrees to be bound by this Agreement, and following such transfer you stop using the Product and the Application.
You can find the user documentation for the Application on the pages of the applicable Apivox Auditor website.
4. LICENSE RESTRICTIONS.
The Application is licensed, not sold, to you. You only have the non-exclusive right to use the Application in accordance with this Agreement. You may not (i) modify, adapt or otherwise create derivative works from the Application. (ii) lease, sublicense, resell, rent, loan, redistribute, or otherwise transfer (except as expressly permitted above), whether for commercial purposes or otherwise, the Application or user documentation; (iii) reverse engineer, disassemble, decrypt or decompile the Product or the Application or otherwise try to reduce the Application to a human-readable form. (iv) remove or alter any copyright, trademark or other proprietary notices contained in the Application or user documentation; (v) use Application or user documentation to develop a competing software and/or Application product, or otherwise in any manner not set forth in this Agreement or the user documentation; (vi) use it on a multi-user system. (vii) use the Application for any unlawful purpose, and/or in any manner that breaches this Agreement. All rights not expressly granted to you under this Agreement are hereby reserved. You will not acquire such rights, whether through estoppel, implication, or otherwise.
5. APPLICATION RESTRICTIONS.
If you have downloaded the Application from an App Store, you are also subject to any terms of use of that App Store. Such terms of use may prohibit you from doing some of the things you are permitted to do under this Agreement, or permit you to do some of the things you are prohibited from doing under this Agreement. In addition, application of the App Store’s terms of use may result in other terms of this Agreement not being applicable to the Application or applying in a different way than this Agreement states. If your use of the Application is subject to an App Store’s terms of use, then in the event of any conflict or ambiguity between the terms of this Agreement and such App Store’s terms of use, the App Store’s terms of use will govern, but only to the extent necessary to resolve such conflict or ambiguity, and the terms of this Agreement will otherwise remain in full force and effect. Notwithstanding anything to the contrary in this Agreement, by using the Application, you acknowledge and agree that it is solely your responsibility to understand the terms of this Agreement, as well as the terms of use of any App Store that may be relevant to the Application or the Product.
6. UPGRADES AND UPDATES.
While required to do so, we may provide you with upgrades or updates to this Application. By agreeing to this Agreement, you agree to automatic updates.
7. DATA AND PRIVACY.
We are committed to protecting your privacy. Our goal is to provide you with a positive experience when using our app, while at the same time keeping your Personal Information, as defined in the Privacy Policy, secure. Our privacy practices are described in the Privacy Policy, as well as in separate notices given when an app is purchased or downloaded. By using our Application or providing us with your Personal Information, you are accepting and consenting to the practices, terms and conditions described in the Privacy Policy. At all times your information will be treated in accordance with the Privacy Policy, which is incorporated by reference into this Agreement.
8. OPEN SOURCE SOFTWARE.
You hereby acknowledge that the Application contain Open Source Software (as defined below). This license does not apply to Open Source Software contained in the Application. Rather, the terms and conditions in the applicable Open Source Software license shall apply to the Open Source Software . Nothing in this Agreement limits your rights under, or grants you rights that supersede, any Open Source Software license. You acknowledge that the Open Source Software license is solely between you and the applicable licensor of the Open Source Software. You shall comply with the terms of all applicable Open Source Software licenses, if any. We are not obligated to provide any maintenance or support for the Open Source Software.
“Open Source Software” means any Software or Software component or technology that is subject to an open source license. Open source licenses are generally licenses that make source code available for free modification and distribution, but can also apply to technology received and distributed solely in object code form. Examples of open source licenses include: (a) GNU's General Public License (GPL) or Lesser/Library GPL (LGPL); (b) the OpenSSL License; (c) the Mozilla Public License; (d) the Berkeley Application Distribution (BSD) License; and (e) the Apache License.
9. INTELLECTUAL PROPERTY RIGHTS.
All title and intellectual property rights (including without limitation all copyrights, patents, trade secret rights and trademark rights) in and to the Application (including but not limited to any content incorporated into the Application), the accompanying printed materials, and any copies of the Application, are owned by us. Therefore, you must treat the Application like any other material protected by laws and treaties relating to international property rights and in accordance with this Agreement.
The application is made with the usage of maximum possible levels of individualization and involves data which you submit to identify you uniquely as a user of the program. In addition the program includes special levels of protection and personalization. Thus in the case of unauthorized usage of the program or hacking, you will be liable as a person who has transferred his copy of the software for illegal activities.
10. INDEMNITY.
If we will be the subject of a claim, becomes involved in a legal proceeding, or suffers any economic loss or damage as a result of your violation of this Agreement, to the extent permitted by law, you will be responsible for compensating us for the full amount of her loss, as well as any reasonable amounts we incurs in lawyers' fees, expenses and court costs, except to the extent that we contributed to the loss or damage.
11. TERM.
This Agreement is effective when you click on the “I Accept” button, or when you in any other way use, copy or install the Application, which will constitute your acceptance of, and agreement to, this Agreement. Once accepted, this Agreement remains in effect until terminated. The limited license in this Agreement will be automatically terminated if you fail to comply with any of the terms and conditions in this Agreement. You agree that upon such termination, you will immediately destroy all programs and documentation that relate to the Application, including all copies made or obtained by you, and otherwise cease use of the Application. If the Application has been installed on mobile device, you must uninstall the Application immediately. All provisions of this Agreement except for Section 1 and the limited warranty in Section 12 (the first paragraph) will survive termination.
12. IMPORTANT NOTICE REGARDING YOUR CONSUMER RIGHTS.
SOME COUNTRIES, STATES AND/OR PROVINCES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN CONDITIONS, WARRANTIES OR GUARANTEES, AND/OR DO NOT ALLOW PRODUCTS OR SERVICES TO BE SOLD WITH NO WARRANTIES OR GUARANTEES. ACCORDINGLY, IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE SECTIONS BELOW ENTITLED “LIMITED WARRANTY AND DISCLAIMER” AND “GENERAL EXCLUSIONS AND LIMITATION OF LIABILITY” MAY NOT APPLY TO YOU. ONLY THOSE EXCLUSIONS AND LIMITATIONS THAT ARE LAWFUL IN YOUR JURISDICTION WILL APPLY TO YOU AND, IN SUCH INSTANCES, OUR LIABILITY WILL BE LIMITED ONLY TO THE MAXIMUM EXTENT PERMITTED BY LAW. THE ENFORCEABILITY OF THESE LIMITED WARRANTIES MAY VARY BASED ON THE LOCAL LAWS APPLICABLE TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS DEPENDING ON WHERE YOU LIVE. FOR EXAMPLE, IN AUSTRALIA AND NEW ZEALAND, OUR APPLICATION COME WITH STATUTORY GUARANTEES, INCLUDING AS TO QUALITY AND FITNESS FOR PURPOSE, WHICH CANNOT BE EXCLUDED OR LIMITED UNDER THE AUSTRALIAN CONSUMER LAW OR THE CONSUMER GUARANTEES ACT 1993 (NEW ZEALAND) (AS FURTHER EXPLAINED BELOW).
THIS AGREEMENT IS NOT INTENDED TO AND DOES NOT: (I) CHANGE OR EXCLUDE ANY STATUTORY CONSUMER RIGHTS THAT CANNOT BE LAWFULLY CHANGED OR EXCLUDED; OR (II) LIMIT OR EXCLUDE ANY RIGHT YOU HAVE AGAINST THE PERSON WHO SOLD THE PRODUCT TO YOU IF THAT PERSON HAS BREACHED ANY SALES CONTRACT WITH YOU. YOU AGREE TO USE THE APPLICATION IN COMPLIANCE WITH ALL APPLICABLE LAWS, INCLUDING LOCAL LAWS OF THE COUNTRY OR REGION IN WHICH YOU LIVE OR IN WHICH YOU DOWNLOAD OR USE THE APPLICATION.
CERTAIN LEGISLATION, INCLUDING THE AUSTRALIAN CONSUMER LAW AND THE CONSUMER GUARANTEES ACT 1993 (NEW ZEALAND) (“CGA”) MAY IMPLY WARRANTIES OR CONDITIONS, OR IMPOSE GUARANTEES OR OBLIGATIONS WHICH OPERATE TO PROTECT CERTAIN AUSTRALIAN OR NEW ZEALAND PURCHASERS OF GOODS AND SERVICES IN VARIOUS CIRCUMSTANCES ("AU/NZ APPLICABLE LAWS"). NOTHING IN THIS AGREEMENT EXCLUDES, RESTRICTS OR MODIFIES ANY CONDITION, WARRANTY, GUARANTEE, RIGHT OR REMEDY IMPLIED OR IMPOSED BY ANY AU/NZ APPLICABLE LAWS WHICH CANNOT LAWFULLY BE EXCLUDED, RESTRICTED OR MODIFIED.
If any condition, warranty or guarantee is implied into this Agreement or imposed on us under AU/NZ Applicable Laws and cannot be excluded, but we has a choice of a remedy, then our’s liability for breach of the condition, warranty or guarantee is limited to one or more of the following, at our’s option: (a) in the case of goods, the replacement of the goods or the supply of equivalent goods, the repair of the goods or refunding the payment for the goods if it would be unreasonable to expect the products to be repaired.
13. LIMITED WARRANTY AND DISCLAIMER.
EXCEPT SUBJECT TO SECTION 10 AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE APPLICATION AND ANY RELATED PROGRAMS AND DOCUMENTATION IS PROVIDED TO YOU “AS IS,” WITH ALL FAULTS AND WITHOUT WARRANTIES OF ANY KIND. IN THOSE JURISDICTIONS WHERE IT CAN LAWFULLY DO SO, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WE, OUR RESELLERS HEREBY DISCLAIM AND EXCLUDE ALL OTHER WARRANTIES, EXPRESS, STATUTORY OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, ACCEPTABLE OR SATISFACTORY QUALITY, NON-INFRINGEMENT, TITLE, FITNESS FOR A PARTICULAR PURPOSE, LOSS OF OR DAMAGE TO DATA, LACK OF VIRUSES OR FREE FROM VIRUS OR MALWARE ATTACK, SECURITY, PERFORMANCE, LACK OF NEGLIGENCE, WORKMANLIKE EFFORT, QUIET ENJOYMENT, THAT THE FUNCTIONS CONTAINED IN THE APPLICATION WILL MEET YOUR REQUIREMENTS, OR THAT YOUR USE OF OR THE PERFORMANCE OF THE APPLICATION AND RELATED INFORMATION, PROGRAMS AND DOCUMENTATION WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE APPLICATION WILL BE CORRECTED, OR THAT YOUR USE OF THE APPLICATION AND RELATED INFORMATION, PROGRAMS AND DOCUMENTATION WILL GENERATE ACCURATE, RELIABLE, TIMELY RESULTS, INFORMATION, MATERIAL OR DATA. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY US, A DEALER, OR AGENT SHALL CREATE A WARRANTY. To the extent warranties cannot be disclaimed or excluded, they are limited to the duration of the relevant Warranty Period.
YOUR USE OF THE APPLICATION IS AT YOUR OWN RISK AND DISCRETION. YOU ARE SOLELY RESPONSIBLE FOR (AND WE DISCLAIMS) ANY AND ALL LOSS, LIABILITY, OR DAMAGES, INCLUDING TO YOUR HOME, MOBILE DEVICE, HEALTH AND ALL OTHER ITEMS AND PETS IN YOUR HOME, RESULTING FROM YOUR MISUSE OF THE APPLICATION. IF YOU ARE NOT COMFORTABLE WITH USING THE PRODUCT AFTER READING ALL INSTRUCTIONS YOU MUST NOT PURCHASE THE APPLICATION. WE ARE NOT RESPONSIBLE FOR (I) YOUR FAILURE TO FOLLOW WARNINGS, PRECAUTIONS OR ANY OTHER INSTRUCTIONS PROVIDED WITH THE APPLICATION, (II) YOUR NEGLIGENCE IN USE OF THE APPLICATION, OR (III) YOUR INTENTIONAL MISUSE OF THE APPLICATION.
It is your responsibility to back up your system, including without limitation, any material, information or data that you may use or possess in connection with Application, and we shall have no liability for your failure to back up your system or any material, information or data.
14. GENERAL EXCLUSIONS AND LIMITATION OF LIABILITY:
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF IMPLIED WARRANTIES OR OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE FOREGOING LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. THIS AGREEMENT GIVES YOU SPECIFIC LEGAL RIGHTS WHICH VARY FROM JURISDICTION TO JURISDICTION. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL WE, OUR DEALERS, AGENTS OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, LICENSORS AND ASSIGNS BE LIABLE FOR ANY INDIRECT, EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF PROFITS OR REVENUE, FOR BUSINESS INTERRUPTION, FOR PERSONAL INJURY, FOR LOSS OF PRIVACY, FOR LOSS OF ABILITY TO USE ANY THIRD PARTY PRODUCTS OR SERVICES, FOR FAILURE TO MEET ANY DUTY INCLUDING OF GOOD FAITH OR OF REASONABLE CARE, FOR NEGLIGENCE, AND FOR ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER), REGARDLESS OF THE THEORY OF LIABLITY (CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF OR INABILITY TO USE THE APPLICATION, EVEN IF WE OR SUCH OTHER ENTITIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL OUR, OUR DEALERS OR AGENTS TOTAL AGGREGATE LIABILITY TO YOU FOR ALL DAMAGES EXCEED THE LESSER OF TEN DOLLARS ($10.00) OR THE HALF OF PRICE YOU PAID FOR THE APPLICATION. THIS LIMITATION IS CUMULATIVE AND WILL NOT BE INCREASED BY THE EXISTENCE OF MORE THAN ONE INCIDENT OR CLAIM. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF ANY WARRANTY OR REMEDY PROVIDED FAILS OF ITS ESSENTIAL PURPOSE.
The warranties and remedies set out in this Agreement are exclusive, and, to the extent permitted by law, in lieu of all others oral or written, express or implied.
15. GENERAL TERMS.
If any portion of this Agreement or any of its terms is found to be void or unenforceable by law in a particular jurisdiction, such portion or terms shall be interpreted and enforced to the maximum extent allowed in such jurisdiction, and the remaining provisions or any part thereof will remain in full force and effect. This Agreement constitutes the entire agreement with respect to the Application and your use thereof and supersedes any conflicting or additional terms contained in any purchase order or elsewhere. No provision of this Agreement may be waived, modified or superseded except by a written instrument. However, the our Privacy Policy referenced herein is subject to change in the manner described in that document. We may provide translations of this Agreement as a convenience to users. However, in the event of a conflict or inconsistency between the English and any non-English versions, the English version of this Agreement shall govern, to the extent not prohibited by local law in your jurisdiction. Other than as set forth in the preceding sentence, a person or entity who is not a party to this Agreement shall not have any right to enforce any term of this Agreement. No failure or delay in exercising any right or remedy shall operate as a waiver of any such (or any other) right or remedy. The language of this Agreement shall not be construed strictly for or against either party, regardless of who drafted such language or was principally responsible for drafting it. The rights and obligations under this Agreement are not assignable by you, and any attempted assignment shall be void and without effect. This Agreement shall bind and inure to the benefit of the parties and their successors and permitted assigns. In the event of any legal proceeding between the parties arising out of or related to this Agreement, the prevailing party shall be entitled to recover, in addition to any other relief awarded or granted, its costs and expenses (including reasonable attorneys’ and expert witness’ fees) incurred in any such proceeding.
16. ARBITRATION, WAIVER OF CLASSWIDE ARBITRATION, GOVERNING LAW & VENUE.
(A) GENERALLY. SUBJECT TO CLAUSE. BELOW, YOU ACKNOWLEDGE AND AGREE THAT ANY CLAIM, DISPUTE OR CONTROVERSY ARISING OUT OF OR RELATING TO (1) THIS AGREEMENT, INCLUDING THE VALIDITY OF THIS SECTION, AND (2) YOUR USE OF APPLICATION UNDER THIS AGREEMENT (COLLECTIVELY, THE “DISPUTE”) SHALL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION ADMINISTERED BY JAMS, A NATIONALLY RECOGNIZED ARBITRATION AUTHORITY, PURSUANT TO ITS CODE OF PROCEDURES THEN IN EFFECT FOR CONSUMER-RELATED DISPUTES. YOU UNDERSTAND THAT WITHOUT THIS PROVISION YOU WOULD HAVE HAD A RIGHT TO LITIGATE A DISPUTE THROUGH A COURT BEFORE A JURY OR JUDGE, AND THAT YOU HAVE EXPRESSLY AND KNOWINGLY WAIVED THOSE RIGHTS AND AGREE INSTEAD TO RESOLVE ANY DISPUTES THROUGH BINDING ARBITRATION IN ACCORDANCE WITH THE PROVISIONS OF THIS SECTION.
(B) ARBITRATION PROCEDURES AND FEES. PRIOR TO SUBMITTING A CLAIM FOR ARBITRATION, EITHER PARTY SHALL FIRST NOTIFY THE OTHER PARTY TO TRY TO RESOLVE THE DISPUTE. IF THE DISPUTE IS NOT RESOLVED WITHIN 60 DAYS OF SUCH NOTIFICATION, THEN THE CLAIM WILL BE SUBMITTED FOR ARBITRATION.
(D) GOVERNING LAW; INJUNCTIVE RELIEF. THIS AGREEMENT IS TO BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE SPAIN AND CATALONIA WITHOUT GIVING EFFECT TO ANY CONFLICT OF LAW RULE THAT WOULD CAUSE THE APPLICATION OF THE LAWS OF ANY JURISDICTION TO THE RIGHTS AND DUTIES OF THE PARTIES. HOWEVER, WITH RESPECT TO APPLICATION PROVIDED, IF YOU ARE A CONSUMER AND YOU LIVE IN A COUNTRY WHERE MARKETS OR PROMOTES THE APPLICATION, LOCAL LAW MAY REQUIRE THAT CERTAIN CONSUMER PROTECTION LAWS OF YOUR COUNTRY OF RESIDENCE APPLY TO SOME SECTIONS OF THIS AGREEMENT. IN ADDITION, POSSIBLE SEEK INJUNCTIVE RELIEF IN ANY COURT HAVING JURISDICTION TO PROTECT INTELLECTUAL PROPERTY RIGHTS. EACH OF THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS AND THE UNITED NATIONS CONVENTION ON THE LIMITATION PERIOD IN THE INTERNATIONAL SALE OF GOODS IS HEREBY EXPRESSLY EXCLUDED AND WILL NOT APPLY TO THIS AGREEMENT.
(E) VENUE. ANY ARBITRATION, LEGAL SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY DISPUTE SHALL BE COMMENCED IN BARCELONA, SPAIN AND YOU MAY CHOOSE WHETHER THE ARBITRATION PROCEEDS IN PERSON, BY TELEPHONE, OR BASED ONLY ON SUBMISSIONS.
17. GOVERNING LAW.
This Agreement will be governed by Spanish law, without reference to its or any other jurisdiction’s conflict of laws principles. Any action arising out of or relating to this Agreement may be brought exclusively in the appropriate court in Barcelona, Spain, and you irrevocably consent to the jurisdiction of such courts and venue in Barcelona, Spain. However, if you are a consumer and you live in a country where we markets or distributes the Application, local law may require that certain consumer protection laws of your country of residence apply to some sections of this Agreement. In addition, we may seek injunctive relief in any court having jurisdiction to protect its intellectual property rights. Each of the United Nations Convention on Contracts for the International Sale of Goods and the United Nations Convention on the Limitation Period in the International Sale of Goods is hereby expressly excluded and will not apply to this Agreement.