Reyburn CyberTuner for iOS End-User License Agreement and Terms of Service
“RPS, Inc.” means Reyburn Piano Service, Inc., a company, whose principal place of business is located in the state of Michigan, United States.
“Licensed Application” means the Reyburn CyberTuner software running on Apple iOS.
"Services" means products, software, End-User License Agreement and Terms of Service (EULA), license and web sites, including the Licensed Application.
1.1 Your use of Services provided by RPS, Inc. is subject to the terms of a legal agreement between you and RPS, Inc. This document explains how the agreement is made up, and sets out the terms of that agreement.
1.2 The EULA is concluded between RPS, Inc. and you, not with Apple. RPS, Inc., not Apple, is solely responsible for the Licensed Application and the content thereof. See 14. EXCLUSION OF WARRANTIES. This EULA does not provide for usage rules for the Licensed Application that are less restrictive than the Usage Rules set forth for Licensed Applications in, or otherwise be in conflict with, the App Store Terms of Service as of the Effective Date (which you acknowledge you have had the opportunity to review).
2. Accepting the Terms
2.1 In order to use the Services, you must first agree to the Terms. You may not use the Services if you do not accept the Terms.
2.2 You can accept the Terms by:
(A) purchasing a license to use the Licensed Application and/or downloading the Licensed Application; or
(B) by actually using the Licensed Application. In this case, you understand and agree that RPS, Inc. will treat your use of the Licensed Application as acceptance of the Terms from that point onwards.
2.3 You may not use the Services and may not accept the Terms if (a) you are not of legal age to form a binding contract with RPS, Inc., or (b) you are a person barred from receiving the Services under the laws of the United States or other countries including the country in which you are resident or from which you use the Services.
3. Language of the Terms
3.1 Where RPS, Inc. has provided you with a translation of the English language version of the Terms, then you agree that the translation is provided for your convenience only and that the English language versions of the Terms will govern your relationship with RPS, Inc..
3.2 If there is any contradiction between what the English language version of the Terms says and what a translation says, then the English language version shall take precedence.
4. Provision of the Services by RPS, Inc.
4.1 RPS, Inc. has subsidiaries and affiliated legal entities around the world ("Subsidiaries and Affiliates"). Sometimes, these companies will be providing the Services to you on behalf of RPS, Inc. itself. You acknowledge and agree that Subsidiaries and Affiliates will be entitled to provide the Services to you.
4.2 RPS, Inc. is constantly improving in order to provide the best possible product for its users. You acknowledge and agree that the form and nature of the Services which RPS, Inc. provides may change from time to time without prior notice to you.
4.3 As part of this continuing improvements, you acknowledge and agree that RPS, Inc. may stop (permanently or temporarily) providing the Services (or any features within the Services) to you or to users generally at RPS, Inc.’s sole discretion, without prior notice to you. You may stop using the Services at any time. You do not need to specifically inform RPS, Inc. when you stop using the Services.
4.4 You acknowledge and agree that if RPS, Inc. disables access to your account, you may be prevented from accessing the Services, your account details or any files or other content which is contained in your account.
4.5 You acknowledge and agree that while RPS, Inc. may not currently have set a fixed upper limit on the number of transmissions you may send or receive through the Services or on the amount of storage space used for the provision of any Service, such fixed upper limits may be set by RPS, Inc. at any time, at RPS, Inc.’s discretion.
5. Use of the Services by you
5.1 You agree to use the Services only for purposes that are permitted by (a) the Terms and (b) any applicable law, regulation or generally accepted practices or guidelines in the relevant jurisdictions (including any laws regarding the export of data or software to and from the United States or other relevant countries).
5.2 You agree not to access (or attempt to access) any of the Services by any means other than through the interface that is provided by RPS, Inc., unless you have been specifically allowed to do so in a separate agreement with RPS, Inc.. You specifically agree not to access (or attempt to access) any of the Services through any automated means.
5.3 You agree that you will not engage in any activity that interferes with or disrupts the Services (or the servers and networks which are connected to the Services).
5.4 Unless you have been specifically permitted to do so in a separate agreement with RPS, Inc., you agree that you will not reproduce, duplicate, copy, sell, trade or resell the Services for any purpose.
5.5 You agree that you are solely responsible for (and that RPS, Inc. has no responsibility to you or to any third party for) any breach of your obligations under the Terms and for the consequences (including any loss or damage which RPS, Inc. may suffer) of any such breach.
5.6 Accordingly, you agree that you will be solely responsible to RPS, Inc. for all activities that occur under misuse of RPS, Inc..
9. Proprietary rights
9.1 You acknowledge and agree that RPS, Inc. owns all legal right, title and interest in and to the Services, including any intellectual property rights which subsist in the Services (whether those rights happen to be registered or not, and wherever in the world those rights may exist).
9.2 Unless you have agreed otherwise in writing with RPS, Inc., nothing in the Terms gives you a right to use any of RPS, Inc.’s trade names, trademarks, service marks, logos, domain names, and other distinctive brand features.
9.4 You agree that you shall not remove, obscure, or alter any proprietary rights notices (including copyright and trade mark notices) which may be affixed to or contained within the Services.
9.5 Unless you have been expressly authorized to do so in writing by RPS, Inc., you agree that in using the Services, you will not use any trade mark, service mark, trade name, logo of any company or organization in a way that is likely or intended to cause confusion about the owner or authorized user of such marks, names or logos.
10. License from RPS, Inc.
10.1 RPS, Inc. gives you a personal, worldwide, royalty-free, non-assignable and non-exclusive license to use the software provided to you by RPS, Inc. as part of the Services as provided to you by RPS, Inc. (referred to as the "Software" below). This license is for the sole purpose of enabling you to use and enjoy the benefit of the Services as provided by RPS, Inc., in the manner permitted by the Terms.
10.2 You may not (and you may not permit anyone else to) copy, modify, create a derivative work of, reverse engineer, decompile or otherwise attempt to extract the source code of the Software or any part thereof, unless this is expressly permitted or required by law, or unless you have been specifically told that you may do so by RPS, Inc., in writing.
10.3 Unless RPS, Inc. has given you specific written permission to do so, you may not assign (or grant a sub-license of) your rights to use the Software, grant a security interest in or over your rights to use the Software, or otherwise transfer any part of your rights to use the Software.
10.4 The license granted to you for the Licensed Application is limited to a non-transferable license to use the Licensed Application on any iOS device that you own or control and as permitted by the Usage Rules set forth in the App Store Terms of Service.
10.5 You acknowledge that the Licensed Application has the ability to operate either as a “Premium” or a :”Standard” mode (sometimes called “Light” mode). The Premium mode is able to assist in frequency adjustment (“tuning”) all 88 standard notes on an acoustic piano and display tuning record data. The “Standard” mode is limited to tuning the notes from A3 to A4 (notes 37 through 49 inclusive on an 88 note acoustic piano) and will not display calculated tuning record data other than note A3 to A4.
10.6 The license granted includes use of the Premium mode of the Licensed Application for one (1) year from the date of original license purchase. After one (1) year from date of original purchase transpires you may purchase, at your option, an additional “CyberCare Subscription” (“Subscription”). The Subscription may be available from RPS, Inc, or as an in-app purchase from within the Licensed Application, or both. The Subscription allows use of the Licensed Application in Premium mode for a time period of one (1) year. Lacking your purchase of a Subscription, the Licensed Application will be restricted to operate in Standard mode on a single iOS device from that time forward, or until such time as a Subscription is purchased.
10.7 IN ADDITION, THE LICENSE GRANTED TO YOU FOR THE LICENSED APPLICATION IS FURTHER LIMITED TO USE OF THE LICENSED APPLICATION FOR THE PURPOSE OF PITCH ADJUSTMENT (“TUNING”) OF ONE KEYBOARD MUSICAL INSTRUMENT CONCURRENTLY ON A SINGLE IOS DEVICE THAT YOU OWN OR CONTROL. THE APPLICATION MAY BE INSTALLED ON MULTIPLE IOS DEVICES WHICH YOU OWN OR CONTROL, HOWEVER ONLY A SINGLE IOS DEVICE USED MAY BE USED TO RUN THE LICENSED APPLICATION BY A SINGLE USER AT A TIME. TO AVOID ANY DOUBT, THIS IS MORE RESTRICTIVE THAN AND CONTROLS OVER THE USAGE RULES SET FORTH IN THE TERMS AND CONDITIONS DOCUMENT PROVIDED BY APPLE, INC, BEARING THE LAST UPDATED DATE OF OCTOBER 12, 2011 CURRENTLY FOUND AT http://www.apple.com/legal/itunes/appstore/us/terms.html.
10.8 You agree and understand that in the event that RPS, Inc. determines that the Licensed Application has been used concurrently to tune multiple keyboard instruments (“tuning”) on multiple iOS devices, RPS, Inc. may, at its option immediately a) revoke your license for the Licensed Application or b) limit the software to run on a single iOS device at a time, or c) limit the Licensed Application to Standard mode, or d) any combination of a), b) and c). RPS, Inc. shall be the sole judge and shall make final determination of concurrent use of the Licensed Application for tuning.
10.9 You acknowledge that the Licensed Application requires an internet connection regularly for short periods to continue to operate in Premium mode. If the Licensed Application is not able to connect to the internet for any reason, then after a time period not to exceed 30 days, the Licensed Application will revert to Standard mode as described above. The internet connection may be via mobile phone or wifi, and you agree to pay the internet service provider for any internet access or data charges that apply (if any).
10.10 You acknowledge that the Licensed Application will used by a single user only and will be installed concurrently on no more than five (5) compatible devices
12. Software updates
12.1 The Software which you use may automatically download and install updates from time to time from RPS, Inc.. These updates are designed to improve, enhance and further develop the Services and may take the form of bug fixes, enhanced functions, new software modules and/or completely new versions. You agree to receive such updates (and permit RPS, Inc. to deliver these to you) as part of your use of the Services.
13. Ending your relationship with RPS, Inc.
13.1 The Terms will continue to apply until terminated by either you or RPS, Inc. as set out below.
13.2 If you want to terminate your legal agreement with RPS, Inc., you may do so by removing the software from all the iOS device you own or control, and removing all copies of the Licensed Application from all other media, and discontinue use of the Licensed Appllication.
13.3 RPS, Inc. may at any time terminate its legal agreement with you without notice if:
(A) you have breached any provision of the Terms (or have acted in manner which clearly shows that you do not intend to, or are unable to comply with the provisions of the Terms); or
(B) RPS, Inc. is required to do so by law (for example, where the provision of the Services to you is, or becomes, unlawful); or
(C) RPS, Inc. is transitioning to no longer providing the Services to users in the country in which you are resident or from which you use the service; or
(D) the provision of the Services to you by RPS, Inc. is, in RPS, Inc.’s opinion, no longer commercially viable.
13.4 Nothing in this Section shall affect RPS, Inc.’s rights regarding provision of Services under Section 4 of the Terms.
13.5 When these Terms come to an end, all of the legal rights, obligations and liabilities that you and RPS, Inc. have benefited from, been subject to (or which have accrued over time while the Terms have been in force) or which are expressed to continue indefinitely, shall be unaffected by this cessation, and the provisions of paragraph 20.6 shall continue to apply to such rights, obligations and liabilities indefinitely.
14. EXCLUSION OF WARRANTIES
14.1 NOTHING IN THESE TERMS, INCLUDING SECTIONS 14 AND 15, SHALL EXCLUDE OR LIMIT RPS, INC.’S WARRANTY OR LIABILITY FOR LOSSES WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED BY APPLICABLE LAW. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR CONDITIONS OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR LOSS OR DAMAGE CAUSED BY NEGLIGENCE, BREACH OF CONTRACT OR BREACH OF IMPLIED TERMS, OR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, ONLY THE LIMITATIONS WHICH ARE LAWFUL IN YOUR JURISDICTION WILL APPLY TO YOU AND OUR LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
14.2 YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK AND THAT THE SERVICES ARE PROVIDED "AS IS" AND "AS AVAILABLE."
14.3 IN PARTICULAR, RPS, INC., ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS DO NOT REPRESENT OR WARRANT TO YOU THAT:
(A) YOUR USE OF THE SERVICES WILL MEET YOUR REQUIREMENTS,
(B) YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR,
(C) ANY INFORMATION OBTAINED BY YOU AS A RESULT OF YOUR USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE, AND
(D) THAT DEFECTS IN THE OPERATION OR FUNCTIONALITY OF ANY SOFTWARE PROVIDED TO YOU AS PART OF THE SERVICES WILL BE CORRECTED.
14.4 ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR OTHER DEVICE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
14.5 NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM RPS, INC. OR THROUGH OR FROM THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TERMS.
14.6 RPS, INC. FURTHER EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
15. LIMITATION OF LIABILITY
15.1 SUBJECT TO OVERALL PROVISION IN PARAGRAPH 14.1 ABOVE, YOU EXPRESSLY UNDERSTAND AND AGREE THAT RPS, INC., ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS SHALL NOT BE LIABLE TO YOU FOR:
(A) ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL CONSEQUENTIAL OR EXEMPLARY DAMAGES WHICH MAY BE INCURRED BY YOU, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY.. THIS SHALL INCLUDE, BUT NOT BE LIMITED TO, ANY LOSS OF PROFIT (WHETHER INCURRED DIRECTLY OR INDIRECTLY), ANY LOSS OF GOODWILL OR BUSINESS REPUTATION, ANY LOSS OF DATA SUFFERED, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR OTHER INTANGIBLE LOSS;
(B) ANY LOSS OR DAMAGE WHICH MAY BE INCURRED BY YOU, INCLUDING BUT NOT LIMITED TO LOSS OR DAMAGE AS A RESULT OF:
(I) ANY RELIANCE PLACED BY YOU ON THE COMPLETENESS, ACCURACY OR EXISTENCE OF ANY ADVERTISING, OR AS A RESULT OF ANY RELATIONSHIP OR TRANSACTION BETWEEN YOU AND ANY ADVERTISER OR SPONSOR WHOSE ADVERTISING APPEARS ON THE SERVICES;
(II) ANY CHANGES WHICH RPS, INC. MAY MAKE TO THE SERVICES, OR FOR ANY PERMANENT OR TEMPORARY CESSATION IN THE PROVISION OF THE SERVICES (OR ANY FEATURES WITHIN THE SERVICES);
(III) THE DELETION OF, CORRUPTION OF, OR FAILURE TO STORE, ANY CONTENT AND OTHER COMMUNICATIONS DATA MAINTAINED OR TRANSMITTED BY OR THROUGH YOUR USE OF THE SERVICES;
(III) YOUR FAILURE TO PROVIDE RPS, INC. WITH ACCURATE ACCOUNT INFORMATION;
15.2 THE LIMITATIONS ON RPS, INC.’S LIABILITY TO YOU IN PARAGRAPH 15.1 ABOVE SHALL APPLY WHETHER OR NOT RPS, Inc. HAS BEEN ADVISED OF OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES ARISING.
16. Copyright and trade mark policies
16.1 It is RPS, Inc.’s policy to respond to notices of alleged copyright infringement that comply with applicable international intellectual property law (including, in the United States, the Digital Millennium Copyright Act) and to terminating the accounts of repeat infringers.
20. General legal terms
20.1 Sometimes when you use the Services, you may (as a result of, or through your use of the Services) use a service or download a piece of software, or purchase goods, which are provided by another person or company. Your use of these other services, software or goods may be subject to separate terms between you and the company or person concerned. If so, the Terms do not affect your legal relationship with these other companies or individuals.
20.2 The Terms constitute the whole legal agreement between you and RPS, Inc. and govern your use of the Services (but excluding any services which RPS, Inc. may provide to you under a separate written agreement), and completely replace any prior agreements between you and RPS, Inc. in relation to the Services.
20.3 You agree that RPS, Inc. may provide you with notices, including those regarding changes to the Terms, by email, regular mail, or postings on the Services.
20.4 You agree that if RPS, Inc. does not exercise or enforce any legal right or remedy which is contained in the Terms (or which RPS, Inc. has the benefit of under any applicable law), this will not be taken to be a formal waiver of RPS, Inc.’s rights and that those rights or remedies will still be available to RPS, Inc..
20.5 If any court of law, having the jurisdiction to decide on this matter, rules that any provision of these Terms is invalid, then that provision will be removed from the Terms without affecting the rest of the Terms. The remaining provisions of the Terms will continue to be valid and enforceable.
20.6 The Terms, and your relationship with RPS, Inc. under the Terms, shall be governed by the laws of the State of Michigan without regard to its conflict of laws provisions. You and RPS, Inc. agree to submit to the exclusive jurisdiction of the courts located within the city of Kent County, Michigan to resolve any legal matter arising from the Terms. Notwithstanding this, you agree that RPS, Inc. shall still be allowed to apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction.
21. The EULA/Services and Apple
21.1 Maintenance and Support: RPS Inc. is solely responsible for providing any maintenance and support services with respect to the Licensed Application, as specified in the EULA, or as required under applicable law. RPS, Inc. and you acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Licensed Application.
21.2 Warranty: Any warranty that may be offered is solely the responsibility of RPS, Inc. and it is acknowledged by you and RPS, Inc. that Apple has no obligation whatsoever to furnish any warranty with respect to the Licensed Application. In the event of any failure of the Licensed Application to conform to any applicable warranty, the end-user may notify Apple, and Apple will refund the purchase price for the Licensed Application to the end-user; and that, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Licensed Application, and any other claims, losses, damages, costs or other expenses attributable to any failure to conform to any warranty will be the sole responsibility of RPS, Inc.
21.3 Product Claims: RPS, Inc. and you acknowledge that RPS, Inc, not Apple is responsible for addressing any claims of the end-user or any third party relating to the Licensed Application or the end-user’s possession and/or use of that Licensed Application, including, but not limited to: (i) product liability claims; (ii) any claim that the Licensed Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
21.4 Intellectual Property Rights: RPS, Inc. and you acknowledge that, in the event of any third party claim that the Licensed Application or the end-user’s possession and use of that Licensed Application infringes that third party’s intellectual property rights, RPS, Inc., not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
21.5 Legal Compliance: You, the end-user, represents 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.
21.6 Developer Name and Address: Complaints or claims with respect to the Licensed Application should be directed to:
Reyburn Piano Service, Inc.
2695 Indian Lakes Road
Cedar Springs, MI 49319 USA
Web site: www.cybertuner.com
21.7 Third Party Beneficiary: RPS, Inc. and you acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of the EULA, and that, upon the end-user’s acceptance of the terms and conditions of the EULA, Apple will have the right (and will be deemed to have accepted the right) to enforce the EULA against the end-user as a third party beneficiary thereof.