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DESTINATION MIDTOWNTM
END USER LICENSE AGREEMENT

Last Updated: September 23, 2016

This End User License Agreement (“EULA”) between ESRT Observatory TRS, L.L.C. and its affiliates (“ESRT,” “we,” “our” or “us”) and you (“you,” “your” or “user”) governs your use and enjoyment of the Destination MidtownTM application (“App”).

BY DOWNLOADING, INSTALLING, OR OTHERWISE ACCESSING OR USING THE APP, YOU AGREE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THIS EULA. IF YOU DO NOT AGREE, YOU MAY NOT USE THE APP.
THIS AGREEMENT CONTAINS MUTUAL ARBITRATION AND CLASS ACTION WAIVER PROVISIONS, WHICH YOU SHOULD REVIEW BELOW.

1. Scope of License

The App is licensed, not sold, to you for use only under the terms herein. ESRT is the owner of the App at all times. ESRT reserves all rights not expressly granted to you.
Subject to your compliance with the terms herein, this license granted to you for the App by ESRT is limited to a non-exclusive, non-transferable, non-sublicenseable license to use the App on any mobile device that you own or control and as permitted herein. This license does not allow you to use the App on any mobile device that you do not own or control, and you may not distribute or make the App available over a network where it could be used by multiple devices at the same time. You may not rent, lease, lend, sell, redistribute or sublicense the App. You may not copy (except as expressly permitted herein), decompile, reverse engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the App, any updates, or any part thereof (except as and only to the extent any foregoing restriction is prohibited by applicable law or to the extent as may be permitted by the licensing terms governing use of any open sourced components included with the App). Any attempt to do so is a violation of ESRT’s and its licensors’ rights. If you breach this restriction, you may be subject to prosecution and damages. The terms of the license will govern any upgrades provided by ESRT that replace and/or supplement the original App, unless such upgrade is accompanied by a separate license in which case the terms of that license will govern.

2. Termination

The license is effective until terminated by ESRT, which may be done with or without cause and with or without notice. Your rights under this license will terminate automatically without notice from ESRT if you fail to comply with any term(s) of this license. Upon termination of the license, you shall cease all use of the App, and destroy all copies, full or partial, of the App. Termination of your access or use will not waive or affect any other right or relief to which ESRT may be entitled at law or in equity.

3. Services And Third Party Materials

The App may enable access to ESRT and third party services, web sites and servers (collectively and individually, “Services”). Use of the Services may require Internet access and that you accept additional terms of service.
You understand that by using any of the Services, you may encounter content that may be deemed offensive, indecent, or objectionable, which content may or may not be identified as having explicit language, and that the results of any search or entering of a particular URL may automatically and unintentionally generate links or references to objectionable material. Nevertheless, you agree to use the Services at your sole risk and that ESRT shall not have any liability to you for content that may be found to be offensive, indecent, or objectionable.
Certain Services may display, include or make available content, data, information, applications or materials from third parties (“Third Party Materials”) or provide links to certain third party web sites. By using the Services, you acknowledge and agree that ESRT is not responsible for examining or evaluating the content, accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect of such Third Party Materials or web sites. ESRT does not warrant or endorse and does not assume and will not have any liability or responsibility to you or any other person for any third-party Services, Third Party Materials or web sites, or for any other materials, products, or services of third parties. Third Party Materials and links to other web sites are provided solely as a convenience to you. Financial and other information displayed by any Services is for general informational purposes only and is not intended to be relied upon for any purposes. Location data provided by any Services is for basic navigational purposes only and is not intended to be relied upon in situations where precise location information is needed or where erroneous, inaccurate or incomplete location data may lead to death, personal injury, property or environmental damage. Neither ESRT, nor any of its content providers, guarantees the availability, accuracy, completeness, reliability, or timeliness of stock information or location data displayed by any Services.
You agree that any Services contain proprietary content, information and material that is protected by applicable intellectual property and other laws, including but not limited to copyright, and that you will not use such proprietary content, information or materials in any way whatsoever except for permitted use of the Services. No portion of the Services may be reproduced in any form or by any means.
You agree not to modify, rent, lease, loan, sell, distribute, or create derivative works based on the Services, in any manner, and you shall not exploit the Services in any unauthorized way whatsoever, including but not limited to, by trespass or burdening network capacity. You further agree not to use the Services in any manner to harass, abuse, stalk, threaten, defame or otherwise infringe or violate the rights of any other party, and that ESRT is not in any way responsible for any such use by you, nor for any harassing, threatening, defamatory, offensive or illegal messages or transmissions that you may receive as a result of using any of the Services.
Services and Third Party Materials that may be accessed from, displayed on or linked to from the App are not available in all languages or in all countries. ESRT makes no representation that such Services and Third Party Materials are appropriate or available for use in any particular location. To the extent you choose to access such Services or Third Party Materials, you do so at your own initiative and are responsible for compliance with any applicable laws, including but not limited to applicable local laws. ESRT, and its licensors, reserve the right to change, suspend, remove, or disable access to any Services at any time without notice. In no event will ESRT be liable for the removal of or disabling of access to any such Services.

4. Use Restrictions

UNAUTHORIZED USE OF THE APP AND SERVICES IS STRICTLY PROHIBITED.

You can only use this App and Services if you are over 13 years old, it is legal for you to use the App and Services, and you are legally capable of entering into a binding contract. Minors under the age of 18 must obtain parental consent to use this App and Services.
You agree that your use of the App and Services will be in compliance with all applicable laws and regulations, and that you will not use, or knowingly allow any other person to use, the App or Services for or in connection with, any illegal purpose or activity.
You may not use any hardware or software intended to damage or interfere with the proper working of the App or Services or to surreptitiously intercept any system, data or personal information from the App or Services. You agree not to interrupt or attempt to interrupt the operation of the App or Services in any way, including in any manner that could: (i) damage, disable, overburden, or impair the App or Services, or (ii) interfere with any third party’s use and/or enjoyment of the App or Services.
You shall not take any actions that shall directly or indirectly impede or interfere with any other user’s use and enjoyment of the App and Services.

5. Open Source

Any Open Source Software that may be accompanying the App is provided to you under the terms of the open source license agreement or copyright notice accompanying such Open Source Software or in the open source licenses file accompanying the Software. As used herein “Open Source Software” mean open source software components provided with the App that are licensed to you under the terms of the applicable license agreements included with such open source software components or other materials for the App. This EULA does not apply to any Open Source Software accompanying the App and ESRT hereby disclaims any and all liability to you or any third party related thereto.

6. NO WARRANTY

YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE APP IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE APP AND ANY SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND APPLICATION PROVIDER HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE LICENSED APPLICATION AND ANY SERVICES, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. APPLICATION PROVIDER DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE LICENSED APPLICATION, THAT THE FUNCTIONS CONTAINED IN, OR SERVICES PERFORMED OR PROVIDED BY, THE APP WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE APP OR SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE APP OR SERVICES WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY ESRT OR ITS AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. SHOULD THE APP OR SERVICES PROVE DEFECTIVE, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO YOU.

7. LIMITATION OF LIABILITY

TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL ESRT BE LIABLE FOR PERSONAL INJURY, OR ANY INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE APP, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE) AND EVEN IF ESRT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU.
In no event shall ESRT’s total liability to you for all damages (other than as may be required by applicable law in cases involving personal injury) that exceed the amount of twenty-five dollars ($25.00 USD). The foregoing limitations will apply even if the above stated remedy fails of its essential purpose.

8. Commercial Items

The App and related documentation are “Commercial Items”, as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished-rights reserved under the copyright laws of the United States.

9. Copyrights, Trademarks And Other Intellectual Property.

All material contained in the App, and the App itself, are our property (or are used by license) and are protected by United States and international copyright, trade dress, trademark, patent and trade secret laws. All trademarks, service marks and trade names, including but not limited to DESTINATION MIDTOWN™ , DESTINATION MIDTOWN & Design™ and MIDTOWN & Design™, are trademarks of ESRT and are proprietary to us. No material from the App or Services may be copied, reproduced, republished, uploaded, posted, transmitted or distributed, in whole or part, in any way, except as may be expressly permitted by the App. Except as may be permitted by law, you must obtain our written permission before using any material from the App in whole or part for any purposes. You do not acquire any ownership rights by using the App or Services.

10. Collecting Personal Information

We may collect, store and use information about your mobile device and about your visits to and use of the App and Services including your IP address, geographical location, operating system, referral source, data concerning your location and photographs taken by or stored in your mobile device, length of visit, page views and navigation paths.

11. Using Personal Information

Personal information submitted to us through the App and Services and collected by us, including via cookies, may be used to: administer the App, the Services and our business; personalize the App and Services for you; enable your use of the App and Services; analyze how users use the App and Services, including through Google Analytics and similar applications; provide third parties with statistical information about our users (but those third parties will not be able to identify any individual user from that information); target advertisements which may be of particular interest to specific users; keep our App and Services secure and prevent fraud; verify compliance with this EULA; comply with disclosures required by law; and protect our rights and legal interests.
We will not, without your express consent, supply any personal information to any third party for the purpose of their or any other third party’s direct marketing.

12. Retaining Personal Information

Personal information that we process for any purpose or purposes shall not be kept for longer than is necessary for that purpose or those purposes.

13. Security Of Personal Information

We will take reasonable technical and organizational precautions to prevent the loss, misuse or alteration of your personal information.

14. Security Of Personal Information On Other Websites/Platforms/Apps

We may from time to time provide links to websites, platforms and apps operated by third parties that are not under our control or supervision. Neither we nor our employees, agents or representatives are responsible for the privacy practices of such websites, platforms and apps. Such websites, platforms and apps may have their own privacy policies and customer service policies, or no policies at all. We encourage you to read the privacy policies of such websites, platforms and apps sites to see how your personal information will be handled on the third party websites, platforms and apps before providing them with your personal information.

15. Location-Based Services

Some of the features of the App and Services may enable ESRT to access your location in order to tailor your experience based on your location (“Location-based Services”). In order to use certain Location-based Services, you must enable certain features of your mobile phone, such as GPS, Wi-Fi, and Bluetooth, which enable ESRT to identify your location through a variety of means, including GPS location, IP address, cell tower location, geo-fencing technology, or detection by physical on-location Wi-Fi or Bluetooth sensors, as available. To the extent your location is collected through Wi-Fi or Bluetooth sensors, such sensors, and the associated data services, may be provided by a third party, and you agree and acknowledge that such third party may access such information for the purpose of providing such data services to ESRT. You may be given the option to automatically enable the provision of some Location-based Services through the App, and to enable or disable such Location-based Services at any time through the App’s Settings menu. If you choose to disable any Location-based Services on your device and/or opt out of any Location-based Services through the App’s Settings menu, you will not be able to utilize certain features of the App and Services. By enabling Location-based Services on your device, you agree and acknowledge that (i) device data we collect from you is directly relevant to your use of the App and Services, (ii) ESRT may provide Location-based Services related to and based on your then-current location, and (iii) ESRT may use any such information collected in connection with the provision of Location-based Services in connection with its provision of the Services.
PLEASE NOTE THAT LOCATION DATA MAY NOT ALWAYS BE ACCURATE, AND ESRT DISCLAIMS ANY AND ALL WARRANTIES RELATED TO LOCATION-BASED SERVICES.

16. Camera Data

The App and Services may require access to or permissions for your mobile device camera, camera functionality and camera and photograph data, including location information associated with photographs stored in your camera (“Camera Data”). By enabling or granting access or permission to Camera Data, you agree and acknowledge that (i) Camera Data we use and collect from you is directly relevant to your use of the App and Services and (ii) ESRT may use and access Camera Data in connection with its provision of the Services.

17. License for User Content

If you upload, submit or transmit content (“User Content”) to or via our App or Services, you grant us and our select partners a worldwide, perpetual, royalty-free license to communicate, distribute, host, make modifications or derivative works, publicly display, publicly perform, publish, reproduce, store, and use such User Content, solely in connection with the App and Services. Such license for User Content shall cover without limitation all intellectual property rights, including without limitation those concerning patents, trademarks, trade dress, copyright, trade secret, morality, privacy and publicity. The license granted by you is for the only purpose of operating, marketing, promoting, and improving our App and Services.
You represent, warrant, and covenant that: (i) you either are the sole and exclusive owner of all of your User Content, or you have all rights, licenses, consents, and releases that are necessary to grant to ESRT the rights in your User Content as contemplated under the EULA; and (ii) neither the User Content nor your creation of, accessing, or use of your User Content or ESRT’s use of your User Content (or any portion thereof) as permitted in the EULA will (a) infringe, misappropriate or violate the rights of any party or entity, including a third party’s patent, copyright, trademark, trade secret, moral rights, rights of publicity, rights of privacy or other intellectual property or proprietary rights, (b) constitute or result in defamation, libel, slander, or the violation of any applicable law or regulation (including, without limitation, restrictions on obscenity, child pornography, wiretap laws or other similar restrictions on nonconsensual recording, or otherwise), or (c) require ESRT to obtain any licenses from or make any payments in any amounts to any third party throughout the world.
You agree not to transmit User Content that: (i) is or could be interpreted to be infringing, defamatory, libelous, inaccurate, unlawful, harmful, threatening, abusive, harassing, vulgar, offensive, obscene, pornographic, objectionable, hateful, or promotes discrimination, bigotry, racism, or hatred, as ESRT determines in its sole discretion; or (ii) introduces viruses, time-bombs, worms, cancel bots, Trojan Horses and/or other harmful or malicious code.

18. Indemnification

You agree to indemnify, defend and hold ESRT and its affiliates, officers, directors, suppliers, licensors, and other customers harmless from and against any and all liability and costs, including reasonable attorneys’ fees incurred by such parties, in connection with or arising out of your use or misuse of the App and the Services; your violation of this EULA, any applicable law or regulation, or the rights of any third parties related to the use of the App and Services; and your violation of any third party rights, including without limitation those concerning copyright, trademark, patent, trade secret and publicity.

19. Additional Fees

The use of the App and Services may be subject to separate third party terms of service and fees, including without limitation the terms of service and data, SMS, MMS, and other fees of your mobile network operator, which are your sole responsibility.

20. Modifications

We may modify this EULA at any time and at our sole discretion by posting the modified EULA on the App. The modifications will be effective upon posting (unless some other date is specified). You should review this EULA periodically so that you are aware of any modifications. Your use of the App and Services constitutes your acceptance of this EULA in its then-current form.

21. Severability/Full Agreement

This Agreement constitutes the entire agreement between you and ESRT and governs your use of the App and Services, superseding any prior agreements with respect to the same subject matter between you and ESRT. You also may be subject to additional terms and conditions that may apply when you use third party or additional services.
  If any of the provisions of this EULA are deemed unlawful or for any reason unenforceable, the same shall be inoperative only to the extent necessary to achieve compliance with applicable law and shall not affect the remaining provisions of this EULA, which shall be given full effect, without regard to the invalid portion(s).

22. Dispute Resolution

The laws of the United States of America, State of New York, shall govern this EULA, without giving effect to any choice of law of conflict of law rules or provisions that would cause the application of any other jurisdiction’s laws.
YOU AND ESRT AGREE THAT ALL CLAIMS OR DISPUTES CONCERNING THE APP AND SERVICES SHALL PROCEED SOLELY ON AN INDIVIDUAL, NOT CLASS ACTION OR REPRESENTATIVE, BASIS IN BINDING ARBITRATION BEFORE AND SUBJECT TO THE RULES OF THE AMERICAN ARBITRATION ASSOCIATION. ANY PARTY MAY APPLY TO A COURT OF COMPETENT JURISDICTION FOR TEMPORARY INJUNCTIVE OR OTHER EQUITABLE RELIEF IN AID OF ARBITRATION. BY AGREEING TO THIS PROVISION, YOU ACKNOWLEDGE THAT YOU ARE WAIVING ANY RIGHT TO A TRIAL AND JURY AND TO PARTICIPATE IN A CLASS ACTION OR MULTI-CLAIMANT LAWSUIT OR PROCEEDING.

23. Notice Regarding Apple

If you are using an iOS device, you acknowledge that this EULA is between you and ESRT only, not with Apple, and Apple is not responsible for the App and the content thereof. Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App. In the event of any failure of the App to conform to any applicable warranty, then you may notify Apple and Apple will refund any purchase price for the relevant App to you; and, to the maximum extent permitted by applicable law, Apple has no other warranty obligation whatsoever with respect to the App. Apple is not responsible for addressing any claims by you or any third party relating to the App or your possession and/or use of the App, including, but not limited to: (i) product liability claims; (ii) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement and discharge of any third party claim that your possession and use of the App infringes that third party’s intellectual property rights. You agree to comply with any applicable third party terms, when using the App. Apple, and Apple’s subsidiaries, are third party beneficiaries of this EULA, and upon your acceptance of this EULA, Apple will have the right (and will be deemed to have accepted the right) to enforce this EULA against you as a third party beneficiary of this EULA. You hereby represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.

24. Contact

If you have any questions, please contact us at ESRT Observatory TRS, L.L.C., 111 West 33rd Street, New York, NY 10120, (212) 953-0888.
You also may print out a copy of the EULA at www.destinationmidtown.com/EULA

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