END USER LICENSE AGREEMENT
This Agreement ("Agreement") is a legal contract between you ("You") and FancyFon Software Limited ("FancyFon "). As used in this Agreement, "You" refers to You as an individual and the company on behalf of which You are using (or facilitating use of) the Software as an employee or agent ("Company"). You represent and warrant that You have the full corporate right, power, and authority to enter into this Agreement on behalf of the Company, and that this Agreement will constitute the legal, valid, and binding obligation of the Company, enforceable against the Company in accordance with its terms.
BY CLICKING "ACCEPT" OR INSTALLING OR USING THE SOFTWARE, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND AGREE TO BE BOUND BY IT. IF YOU DO NOT AGREE, PLEASE CLICK "REFUSE" AND UNINSTALL THE SOFTWARE. FANCYFON MAY MODIFY THIS AGREEMENT UPON NOTICE TO YOU. BY AGREEING TO THE MODIFIED AGREEMENT OR USING THE SOFTWARE AFTER NOTICE, YOU AGREE TO ALL OF THE MODIFICATIONS.
1. DEFINITIONS. "Device" means Your mobile device. "Software" means (i) the machine-readable FancyFon software made available for use on the Device, and (ii) any Upgrades. "Online Services" means certain services, features and/or functionality made available to You through Your use of the Software.
2. LICENSE. FancyFon grants You a non-exclusive, non-transferable, non-sublicenseable license to (i) install and use the Software and (ii) use the Online Services, on and using, as applicable, the number of Devices for which a license was purchased, solely for internal business purposes, subject to, and in accordance with, this Agreement.
3. RESTRICTIONS. You will not: (i) reproduce, modify, create derivative works of, distribute, sublicense, or transfer the Software, (ii) use the Software for the benefit of any third party, (iii) circumvent mechanisms in the Software intended to limit Your use or (iv) reverse engineer, disassemble, decompile, or translate the Software, or attempt to derive the source code of the Software, except as permitted by law.
4. UPDATES/UPGRADES. Any Software updates or upgrades that are made available to You ("Upgrades") will be subject to this Agreement or other terms provided with the Upgrade.
5. OWNERSHIP. FancyFon and its licensors have and retain all right, title and interest in the Software and Online Services, and any modifications to or derivative works of the Software (including all intellectual property rights). Each copy of the Software, and use of the Online Services, is licensed, not sold, notwithstanding any use of "purchase," "sale," or similar terms.
6. PRODUCT CHANGES. Provided that the functionality of the Software or Online Services, as applicable, is not substantially decreased, FancyFon may at any time without notice discontinue or modify any characteristics of the Software or Online Services, as applicable.
7. TERMINATION. FancyFon may terminate this Agreement immediately (i) if You breach this Agreement or (ii) any aspect of this Agreement is limited by law or third party terms of service. The following will survive termination: Sections 3 (Restrictions), 5 (Ownership), 7 (Termination), 8 (Disclaimers), 9(Limitation of Remedies), 10 (Information Collected), 14(Governing Law), and 15 (General).
8. DISCLAIMERS. THE SOFTWARE AND ONLINE SERVICES ARE PROVIDED "AS IS" AND FANCYFON AND ITS LICENSORS EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND, INCLUDING ANY WARRANTY OF NON-INFRINGEMENT, TITLE, FITNESS FOR A PARTICULAR PURPOSE, FUNCTIONALITY, OR MERCHANTABILITY, WHETHER EXPRESS, IMPLIED, OR STATUTORY. THERE IS NO WARRANTY THAT THE SOFTWARE OR ONLINE SERVICES WILL BE ERROR FREE OR THAT ACCESS WILL BE CONTINUOUS OR UNINTERRUPTED.
9. LIMITATION OF REMEDIES. TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL FANCYFON, ITS DISTRIBUTORS, OR ITS LICENSORS BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR (I) ANY LOST PROFITS, LOST DATA, INTERRUPTION OF BUSINESS, OR OTHER SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES OR (II) AMOUNTS EXCEEDING ONE HUNDRED DOLLARS (US$100). SECTION 9 WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
10. INFORMATION COLLECTED. The Software may collect information about the following: (i) Device information, including but not limited to: device type, operating system, installed applications, files, folder structure, location information ("Device Information") and (ii) Your Device's carrier, and Your usage of the Software, e.g., features used and session length ("System Information") (iii) personal information which allows your administrator to protect the data you store on your mobile device - any personal information is encrypted prior to transfer to the server and is stored in an encrypted form on the server. FancyFon does not otherwise use System Information to identify and provide reporting data to the FAMOC system and the system's administrators, but may use it to provide the Software and related services, improve its products and services and develop aggregate statistics.
12. HIGH RISK ACTIVITY. You acknowledge and agree that the Software and Online Services are not intended for use with any high risk or strict liability activity, including, without limitation, air or space travel, technical building or structural design, power plant design or operation, or life support or emergency medical operations or uses, and FancyFon makes no warranty regarding, and will have no liability arising from, any use of the Software or Online Services in connection with any high risk or strict liability activity.
13. FORCE MAJEURE. Neither party will be liable to the other for any delay or failure to perform any obligation under this Agreement if the delay or failure is due to events which are beyond the reasonable control of such party, including but not limited to any strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or of telecommunications or data networks or services, or refusal of approval or a license by a government agency.
14. GOVERNING LAW. For any action relating to this Agreement, You agree to the following governing law (without regard to conflicts of laws principles) and exclusive jurisdiction and venue: Republic of Ireland governing law, jurisdiction and venue.
15. GENERAL. If any provision of this Agreement is held unenforceable, that provision will be enforced to the extent permissible by law and the remaining provisions will remain in full force. FancyFon may provide You with notice of matters relating to this Agreement by sending You an email. Neither party may assign this Agreement without the prior written consent of the other party, which shall not be unreasonably withheld; provided, however, that either party may freely assign or transfer its rights or obligations hereunder to any affiliate or any successor to its business or assets to which this Agreement relates, whether by merger, sale of assets, sale of stock, reorganization, or otherwise. No provision of this Agreement will be deemed waived unless the wavier is in writing and signed by FancyFon. This Agreement is the complete and exclusive statement of the mutual understanding between You and FancyFon and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement.