END USER LICENSE AGREEMENT
This End User License Agreement (this “Agreement”) is a legal agreement between you and so Mobisocial Incorporated (“Mobisocial,” “we,” “us” or “our”) regarding our iOS app (“Omlet”) which you have chosen to download from the Apple iPhone store website (the “Apple Site”) located at http://www.apple.com/iphone/appstore/. Both we and you acknowledge that this Agreement is between us and you, and that Apple, Inc. and its subsidiaries (collectively, “Apple”) is not a party to this Agreement.
This Agreement incorporates by reference the Apple App Store Terms of Service http://www.apple.com/legal/itunes/us/terms.html#SERVICE (the “Apple Terms of Service”). Upon valid acceptance of this Agreement, you agree and understand that you are bound by the Apple Terms of Service.
The procedures for modifying this Agreement in the future are discussed in Section 10.
1. Your Use of Omlet.
You may use Omlet to, among other things, create a social network with your friends and colleagues on your Apple device (“Mobile Device”) (collectively, the “Services”). Once you download Omlet onto your Mobile Device and accept this Agreement, you may use Omlet and the Services.
2. License Grant.
We grant you a limited, terminable non-sublicensable, non-transferable, non-exclusive license to install and use Omlet on any Mobile Device that you own or control solely: (a) for your personal use; and (b) as permitted by this Agreement and the Apple Terms of Service. This Agreement will also govern any software upgrades provided by us that replace or supplement the original version of Omlet you download, unless such upgrades are accompanied by a separate license, in which case the terms of that license will govern. Apple has no obligation to provide you with any updates, maintenance or support services for Omlet.
3. License Restrictions and Usage Rules.
3.1 License Restrictions. You may not use Omlet on any Mobile Device that you do not own or control, and you may not distribute or make Omlet 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 Omlet. You may not modify, copy (except as expressly permitted by this Agreement and the usage rules described in Section 3.2), publish, rent, lease, lend, sell, redistribute, transfer or sublicense Omlet or otherwise commercialize Omlet or any information or software associated with Omlet. You may not use Omlet on a service bureau basis. You shall not decompile, reverse engineer, disassemble, attempt to derive the source code of, modify or create derivative works of Omlet, any updates or any part thereof (except to the extent any foregoing restriction is permitted by applicable law or to the extent as may be permitted by the licensing terms governing use of any open sourced components included with Omlet).
3.2 Usage Rules. Omlet may contain security technology that limits your usage of Omlet to the following usage rules. Whether or not Omlet is limited by security technology, you agree to use Omlet in compliance with these usage rules:
(a) you must accept this Agreement before you may use Omlet;
(b) you will be able to store Omlet from up to five different Accounts (as defined in the Apple Terms of Service) on certain devices, including your Mobile Devices, at a time;
(c) you will be able to store Omlet on up to five iTunes-authorized devices at any time;
(d) you will not (i) attempt to, or (ii) encourage or assist any other person to circumvent or modify any security technology or software that is part of the Service (as defined in the Apple Terms of Service) or used to administer the Usage Rules (as defined in the Apple Terms of Service);
(e) the delivery of Omlet does not transfer to you any promotional use rights in Omlet; and
(f) you shall be able to manually sync Omlet from at least one iTunes-authorized device to devices that have manual sync mode, provided that Omlet is associated with an Account (as defined in the Apple Terms of Service) on the primary iTunes authorized device, where the primary iTunes-authorized device is the one that was first synced with the device, or the one that you subsequently designate as primary using iTunes.
4. Your Representations and Warranties.
By using Omlet, you represent and warrant:
(a) you are 13 years of age or older;
(b) your use of Omlet and the Services does not violate any applicable law or regulation;
(c) you have the right to and are able to enter into this Agreement;
(d) you will not impersonate any other person or entity or permit third parties to use your copy of Omlet;
(e) you will not use Omlet or the Services to violate our or any other person’s rights including without limitation privacy rights, publicity rights, intellectual property rights (including without limitation copyrights) or contract rights;
(f) you will not use Omlet or the Services to distribute content that: (i) is defamatory, damaging, disruptive, unlawful, inappropriate, offensive, inaccurate, pornographic, vulgar, indecent, profane, hateful, racially or ethnically offensive, obscene, lewd, lascivious, threatening, excessively violent, harassing, or otherwise objectionable; (ii) incites, encourages or threatens immediate physical harm against another, including but not limited to, content that promotes racism, bigotry, sexism, religious intolerance or harm against any group or individual; or (3) solicits personal information from anyone under 13 or exploits anyone in a sexual or violent manner.
(g) you shall comply with all applicable third party agreements when using Omlet, (including without limitation, your wireless service agreement and the Apple Terms of Service); and
(h) you shall not use Omlet in any manner that could impair any third party site, app or service in any way or interfere with any third party’s use or enjoyment of any site, app or service.
5. Open Source Software.
Omlet may contain open source software components, each of which has its own copyright notice requirements and own applicable license conditions. These components are subject to the terms of third party open source licenses, and not the terms of this Agreement. A list of these components and the licenses that cover them can be found at: http://omlet.me/legal/foss.txt. If any such license requires us to deliver the source code for such component to you, we will do so upon request at a nominal fee.
6. Your Assignment to Mobisocial.
If you submit any comments or suggestions to us by means of Omlet, you hereby assign to use all right, title and interest in and to such comments or suggestions.
7. Our Management of this App/User Misconduct.
7.1 Our App Management. We may, but are not required to: (a) monitor or review this App for violations of this Agreement and for compliance with our policies; (b) report to law enforcement authorities and/or take legal action against anyone who violates this Agreement; (c) refuse, restrict access to or the availability of, or remove or disable (to the extent technologically feasible) any content, submissions, materials or any portion thereof that may violate this Agreement, the law or any of our policies or are excessive in size or burdensome without prior notice to you; and/or (d) manage this App in a manner designed to protect our and third parties’ rights and property or to facilitate the proper functioning of this App
7.2 Our Right to Terminate Users. WITHOUT LIMITING ANY OTHER PROVISION OF THIS AGREEMENT, WE RESERVE THE RIGHT TO, IN OUR SOLE DISCRETION AND WITHOUT NOTICE OR LIABILITY DENY ACCESS TO AND USE OF THIS APP TO ANY PERSON FOR ANY REASON OR FOR NO REASON AT ALL, INCLUDING WITHOUT LIMITATION FOR BREACH OF ANY REPRESENTATION, WARRANTY OR COVENANT CONTAINED IN THIS AGREEMENT, OR OF ANY APPLICABLE LAW OR REGULATION.
7.3 Risk of Harm. Please note that there are risks, including but not limited to the risk of physical harm, of dealing with strangers, including persons who may be acting under false pretenses. Please choose carefully the information you post or submit to this App (including without limitation your geo location) and that you give to other App users. Other people’s information may be offensive, harmful or inaccurate, and in some cases will be mislabeled or deceptively labeled. You assume all risks associated with dealing with other users with whom you come in contact through this App. We expect that you will use caution and common sense when using this App.
8. Termination and Survival.
If you breach this Agreement or the Apple Terms of Service, we may immediately terminate this Agreement, but all provisions of this Agreement except Section 2 (“License Grant”) will survive termination and continue in effect. Upon termination, you must destroy all copies of Omlet.
9. Proprietary Rights.
As between us and Apple, we are solely responsible for Omlet’s content. We reserve all intellectual property rights in Omlet, except for the rights expressly granted to you in this Agreement. You may not remove or alter any trademark, logo, copyright or other proprietary notice in or on Omlet. This license does not grant you any right to use the trademarks, service marks or logos of Mobisocial or its licensors.
10. Modification of this Agreement.
Because of changes in technology and the growth and development of our business, or for other business reasons, we may need to modify this Agreement from time to time. If we modify the Agreement, we will post a notice on http://omlet.me/legal/eula-ios.html, and we will display the new agreement on your Mobile Device screen the next time you open Omlet. You must click to accept the revised agreement before you may continue to use Omlet. You should regularly review this Agreement to ensure that you are informed of any changes.
11.1 Indemnity. We will at our expense and option, defend or settle any claim brought against you alleging that Omlet or your possession and use of Omlet breaches any third-party intellectual property rights. We, and not Apple, will be solely responsible for the investigation, defense, settlement and discharge of this third-party intellectual property infringement claim.
11.2 Limitation. We will have no obligation with respect to any claim under Section 11.1 unless: (a) you promptly notify us about the claim; (b) you allow us to have sole control of the defense and settlement of such claim; and (c) you provide us with reasonable assistance in connection with our defense and settlement of such claim.
11.3 Our Options. If Omlet infringes or misappropriates, or in our reasonable determination is likely to infringe or misappropriate any third party’s intellectual property rights, then we may, at our sole option and expense: (a) obtain from the third party the right to continue to use Omlet consistent with the rights granted hereunder; or (b) modify Omlet to avoid and eliminate such infringement or misappropriation.
11.4 Exclusions. We will not be liable for any infringement based on: (a) modification of Omlet by anyone other than us; or (b) the combination of Omlet with other software, items or processes not furnished by us if such infringement would have been avoided by the use of the Software alone.
11.5 Exclusive Remedy.
THE FOREGOING PROVISIONS OF THIS SECTION 11 STATE THE ENTIRE LIABILITY AND OBLIGATIONS OF Mobisocial, AND YOUR EXCLUSIVE REMEDY, WITH RESPECT TO ANY ACTUAL OR ALLEGED INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHT.
12. Disclaimer of Warranty.
Omlet AND THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND. TO THE EXTENT PERMITTED BY LAW, Mobisocial AND Mobisocial’S DISTRIBUTORS AND LICENSORS HEREBY DISCLAIM ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION, WARRANTIES THAT Omlet AND THE SERVICES ARE FREE OF DEFECTS, MERCHANTABLE, FIT FOR A PARTICULAR PURPOSE, ACCURATE AND NON-INFRINGING. YOU BEAR THE ENTIRE RISK AS TO SELECTING Omlet AND THE SERVICES FOR YOUR PURPOSES. Mobisocial AND Mobisocial’S DISTRIBUTORS AND LICENSORS DO NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF Omlet OR THE SERVICES, THAT THE FUNCTIONS CONTAINED IN, OR SERVICES PERFORMED OR PROVIDED BY, Omlet WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF Omlet WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN Omlet OR THE SERVICES WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY Mobisocial SHALL CREATE A WARRANTY. IF Omlet IS DEFECTIVE, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION. THIS LIMITATION WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF IMPLIED WARRANTIES. IF YOU RESIDE IN ONE OF THESE JURISDICTIONS, THIS DISCLAIMER MAY NOT APPLY TO YOU.
13. Limitation of Liability.
EXCEPT AS REQUIRED BY LAW, Mobisocial AND ITS DISTRIBUTORS, DIRECTORS, LICENSORS, CONTRIBUTORS AND AGENTS WILL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES ARISING OUT OF OR IN ANY WAY RELATING TO THIS AGREEMENT OR THE USE OF OR INABILITY TO USE Omlet OR THE SERVICES, INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, LOST PROFITS, LOSS OF DATA, AND COMPUTER OR OTHER ELECTRONIC OR MOBILE DEVICE FAILURE OR MALFUNCTION, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF THE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH SUCH CLAIM IS BASED. EXCEPT AS SET FORTH IN SECTION 11, Mobisocial’S COLLECTIVE LIABILITY UNDER THIS AGREEMENT WILL NOT EXCEED $50.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES. IF YOU RESIDE IN ONE OF THESE JURISDICTIONS, THIS EXCLUSION AND LIMITATION MAY NOT APPLY TO YOU.
14. Export Controls.
You may not use or otherwise export or re-export Omlet except as authorized by United States law and the laws of the jurisdiction in which Omlet was obtained. In particular, but without limitation, you may not export or re-export Omlet: (a) into any United States embargoed countries; or (b) to anyone on the United States Treasury Department’s list of Specially Designated Nationals or the United States Department of Commerce Denied Person’s List or Entity List. By using Omlet, you represent and warrant that: (i) you will not use Omlet for any purpose prohibited by United States law; (ii) you are not located in a country that is subject to a United States government embargo or has been designated by the United States government as a “terrorist supporting” country; and (iii) you are not listed on any United States government list or prohibited or restricted parties.
15. U.S. Government End-Users.
Omlet and any 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 in this Agreement. Unpublished rights are reserved under the copyright laws of the United States.
16. Injunctive Relief.
We will have the right to seek injunctive relief to enforce this Agreement or to stop or prevent an infringement of proprietary or other third-party rights.
17. Choice of Law, Jurisdiction and Venue.
You and we agree that any disputes between us shall be resolved under the substantive laws of the State of California (exclusive of its choice of law provisions). The Convention for the International Sale of Goods shall not apply. You and we agree to submit all disputes between us to the exclusive jurisdiction of the state and federal courts located in Santa Clara County, CA.
You may not assign your rights under this Agreement to any third party; we may assign your rights under this Agreement without condition.
19. Third Party Beneficiary.
Apple is a third-party beneficiary to this Agreement. Upon your acceptance of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third-party beneficiary of this Agreement.
20. Product Questions, Comments, Claims and Contact Information.
We, and not Apple, are responsible for addressing any questions, comments or claims relating to Omlet and/or your use of Omlet, including but not limited to: (a) product liability claims; (b) any claim that Omlet fails to conform to any applicable legal or regulatory requirement; and (c) claims arising under consumer protection or similar legislation. If you have any comments or questions, please contact us at:
184 Seminary Drive
Menlo Park CA 94025
21. Requesting a Refund.
If you paid for Omlet, and if Omlet fails to conform to any applicable warranty (if any), please notify Apple, and Apple will refund to you the price you paid for Omlet. To the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to Omlet, and any other claims, losses, liabilities, damages, costs or expenses attributable to failure to conform with a warranty made under this Agreement (if any), will be our sole responsibility.
This Agreement constitutes the entire agreement between you and us regarding the use of Omlet and supersedes any prior or contemporaneous understandings and agreements between you and Mobisocial related to its subject matter. The section titles in this Agreement are for convenience only and have no legal or contractual effect. Our failure to exercise or enforce any right or provision of this Agreement shall not operate as a waiver of such right or provision. The parties agree that each provision of this Agreement is intended to be construed to be enforceable to the fullest extent possible. If any provision or part of a provision of this Agreement is held to be unlawful, void, or unenforceable, that provision or part of the provision shall be deemed severable from this Agreement and not affect the validity and enforceability of any remaining provisions.