This End-User License Agreement (this "EULA" or “Agreement”) is an agreement between the end-user of the Application (''You'') and Color deer Limited, having its registered address at 5 Room 8415,Jinbao business Building,No.15 Shunfeng Road, Baoan District,Shenzhen, “Color deer” or “Us”). The Agreement governs your use of the application distributed by Color deer that you installed and any and all related updates and upgrades that replace or supplement the Application in any respect (the “Application” or “App”), unless any such update or upgrade is accompanied by a separate license in which case the separate license shall govern.
This EULA governs the software that can operate on an/a a) iPhone, iPod Touch or iPad device or other computing device marketed or manufactured by Apple, Inc. (''iOS platform''); b) device powered by the Android operating system provided by Google, Inc. (''Android platform''); c) device powered by the Windows Phone operating system v. 8.0, v. 8.1 or any newer version if applicable, provided by Microsoft Corporation and software that can operate on your PC device powered by Windows 8.1 or Windows RT 8.1 or any newer version if applicable, provided by Microsoft Corporation (''Windows Platform'') (commonly referred to as the ''platform/s''). This EULA governs different platforms and includes general provisions applicable for all platforms and platform specific provisions, which are all clearly marked as such.
By installing or using the Application, You agree to and wish to be bound by the terms of this EULA, which consist of (commonly referred to as ''Terms''):
Color deer Video Policy(“Video Policy”).
For iOS platform: Licensed Application End User License Agreement (“Standard EULA”), published by Apple, Inc. (located online at http://www.apple.com/legal/itunes/appstore/dev/stdeula/), which is incorporated into this EULA by reference, whereas for the purposes of this EULA, the “Application” is considered the “Licensed Application” as defined in the Standard EULA and “Color deer” is considered the “Licensor” as defined in the Standard EULA. You acknowledge that You have reviewed the App Store Terms and Conditions (located online at http://www.apple.com/legal/itunes/us/terms.html#APPS).
Color deer and You acknowledge that the EULA is entered into by and between Color deer and You and not with Apple, Inc. Notwithstanding the previously stated, You acknowledge that Apple, Inc. and its subsidiaries are third-party beneficiaries of this EULA and that Apple, Inc. has the right (and is deemed to have accepted the right) to enforce this EULA. Color deer is solely responsible for the Application and any content contained therein. You acknowledge that Apple, Inc. has no obligation whatsoever to furnish any maintenance and support services with respect to the Application.
For Android platform: Android Market “Terms of Service” (located online at https://play.google.com/store) and the Android Market Business and Program Policies (located online at http://www.google.com/mobile/android/market-policies.html), if You are downloading the Application from the Google Play.
The EULA is entered into by and between Color deer and You and not with Microsoft Corporation. Notwithstanding the previously stated, You acknowledge that Microsoft Corporation and its subsidiaries are third-party beneficiaries of this EULA and that Microsoft Corporation has the right (and is deemed to have accepted the right) to enforce this EULA.
If You download the Application from any other online market for software applications that operate on devices powered by the operating system not expressly stated herein, or when Application can be played online, you acknowledge that You have reviewed and accepted the terms of service applicable to such market or platform or operating system.
If You do not agree to the Terms, or do not wish to be bound by them, do not install or use the Application. If any terms of this EULA conflict with the other Terms, the terms of this EULA shall prevail.
Any person who uses the Application represents to us that they are at least 18 years of age, or if under 18 years of age they are either an emancipated minor, or possess the legal consent of a parent or legal guardian, and are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in this Agreement, and to abide by and comply with this Agreement.
The main characteristics of each Application can be found in the app stores’ descriptions and also on the information button of the Application. If You click on the ''i'' button of the Application, You will reach the ''How to Play'' section.
As an iOS user, You additionally 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 “watch list” of prohibited or restricted parties, including the Specially Designated Nationals list published by the Office of Foreign Assets Control of the U.S. Treasury or the Denied Persons List published by the U.S. Department of Commerce.
As a Windows user, You additionally represent and warrant that: (i) The Windows Phone Store and Windows Store is a platform through which Applications and In-App Products are made available by Application providers to You. Microsoft’s role is to provide the technology and services to enable this forum, and to process the related purchases, returns and chargebacks for You. Color deer is solely responsible for the Application and any content contained therein. You acknowledge that Microsoft Corporation, Your phone manufacturer, Your PC manufacturer and network operator has no obligation whatsoever to furnish any maintenance and support services with respect to the Application.
A) COMMON PROVISIONS FOR ALL APPLICATIONS
Limited License Grant
Through the purchase or use of the App, You are acquiring and Color deer grants You a personal, revocable limited, non-exclusive, non-sub-licensable, non-transferable license to install and use the Application for Your own non-commercial use subject to the limitations defined in this EULA and the Terms. The Application is being licensed to You and You hereby acknowledge that no title or ownership in the Application is being transferred or assigned to You and this EULA is not to be constructed as a sale of any rights in the Application. Your rights granted herein are subject to Your compliance with this EULA and You agree not to use the Application for any other purpose. Any commercial use is prohibited.
Any use of the Application in violation of these License Limitations is strictly prohibited and can result in immediate revocation of Your Limited License and may trigger Your liability for violations of law.
Unless You have received prior written authorization from Color deer, You agree not to :
· use cheats, automation software, bots, hacks or any other unauthorized software, designed to modify or interfere with the Application and/or any files that are part of the Application;
· commercially exploit Color deer Application, its Gameplay, Characters, Design, 2D or 3D models, Artwork or any other part of Application;
· create Derivative Works of the Application;
· access or use the Application through any technology or means other than those provided in the Application, or through other explicitly authorized means Color deer may designate;
· make a copy of the Application available on a network where it could be used by multiple users;
· register domain names, social media accounts or related addresses, which include Color deer’s trademarks;
· use the Application or related assets and/or Color deer’s trademarks on or in connection with content that (i) promotes cheats, hacks, violence, discrimination, inappropriate themes, illegal activities or sexually explicit content; (ii) makes untrue, dishonest, disparaging or libelous statements about Color deer and/or its products, employees and agents; and/or (iii) contains other objectionable content;
· resell, copy, transfer, distribute, display, translate, modify the Application or make derivative works of the Application or any part thereof;
· re-use, copy or distribute text, pictures, music, barcodes, video, data, hyperlinks, displays or any other content provided by the Application;
· redistribute, sublicense, rent, publish, perform, sell, assign, lease, market, transfer, or otherwise make the Application available to third parties;
· seek to disable, reverse engineer, decompile or otherwise attempt to extract the source code of the Application or any part thereof, unless this is expressly permitted or required by applicable law or by the licensing terms governing use of any open sourced components included with the Application;
· delete, obscure, or in any manner alter any warning, notice (including but not limited to any copyright or other proprietary rights notice), or link that appears in the Application;
· use the Application when operating vehicles;
· remove or alter Color deer’s trademarks or logos or legal notices included in the Application or related assets;
· use the service to try to gain unauthorized access to any service, data, account or network by any means; or
· post any information that contains nudity, violence or offensive subject matter or that contains a link to such content;
· attempt to, or harass, abuse, threaten, defame or otherwise infringe or violate the rights of any other party;
· use the Application in way that is unlawful, fraudulent or deceptive;
· use technology or other means to access Color deer’s proprietary information that is not authorized by Color deer;
· use or launch any automated system to access Color deer’s website or computer systems;
· attempt to introduce viruses or any other malicious computer code that interrupts, destroys or limits the functionality of any computer software, hardware or telecommunications equipment;
· attempt to gain unauthorized access to Color deer’s computer network or user accounts;
· encourage conduct that would constitute a criminal offense, or would give rise to civil liability; or
· use the Application in any manner not expressly allowed in the Terms.
Color deer reserves the right to determine in its sole discretion what kind of conduct is considered to be in violation of the terms of this EULA. Furthermore, Color deer reserves the right to take appropriate action as a result of Your violation of the terms of this EULA, including but not limited to prohibiting you from using Color deer Application in whole or in part.
Notwithstanding anything to the contrary stated in this EULA, You are allowed to create and use “User Content” (as defined below) in a non-modified form (exactly as produced by the Application) subject to the License Limitations and Specific Rules for User Content defined herein.
Any modification of User Content created by the Application or incorporation of such User Content into other works requires explicit written approval from Color deer. You are expressly prohibited from sub-licensing, renting, leasing, transferring or otherwise distributing the Application or rights to use the Application. This EULA does not entitle You to receive, and does not obligate Color deer to provide, hard-copy documentation, support, telephone assistance, or enhancements or updates to the Application.
Submissions of user content
The Application may allow You to create content such as videos, data, photographs, messages, graphics, text, and other information (“User Content”) and to share such User Content with Color deer or with other sites, including social networking sites, as You may designate. You are solely responsible for Your User Content that you upload, publish, display, link to or otherwise make available (hereinafter, “share”) on or through the Application, and You agree that Color deer is only acting as a passive conduit for Your online distribution and publication of your User Content.
The Application may enable sharing of User Content in two ways: (i) one to one (e.g. through SMS, e-mail, KakaoTalk and Facebook message); and (ii) one to many (e.g. Facebook, YouTube, Twitter, Everyplay, e-mail). Unless explicitly stated otherwise herein no User Content is stored by Color deer and Color deer only acts as a passive conduit, offering You a platform to create the User Content and (solely to help You and for the sake of improving user experience) referring You to a third-party service (e.g. e-mail client, Facebook, Twitter or YouTube application) where You can decide what User Content to share, how, when and with whom.
You understand that unless explicitly stated otherwise herein Color deer has no control over the access to Your User Content, sharing of Your User Content, privacy or confidentiality of Your User Content and that You, together with the third-party service providers (e.g. Facebook, YouTube, Twitter), are subject to their terms of service and have the sole control over such User Content.
You agree not to share User Content that: (i) may create a risk of harm, loss, physical or mental injury, emotional distress, death, disability, disfigurement, or physical or mental illness to You, to any other person, or to any animal; (ii) may create a risk of any other loss or damage to any person or property; (iii) seeks to harm or exploit children by exposing them to inappropriate content, asking for personally identifiable details or otherwise; (iv) may constitute or contribute to a crime or tort; (v) contains any information or content that we deem to be unlawful, harmful, abusive, racially or ethnically offensive, defamatory, infringing, invasive of personal privacy or publicity rights, harassing, humiliating to other people (publicly or otherwise), libelous, threatening, profane, or otherwise objectionable; (vi) contains any information or content that is illegal (including, without limitation, the disclosure of insider information under securities law or of another party’s trade secrets); (vii) contains any information or content that you do not have a right to make available under any law or under contractual or fiduciary relationships; or (viii) contains any information or content that You know is not correct and current.
If You believe that certain User Content shared through the Application, but stored on third party services (e.g. Facebook, YouTube) is infringing your rights, please contact the respective third party service provider, where such User Content is stored.
You agree that any User Content that You share does not and will not violate third-party rights of any kind, including and without limitation any “Intellectual Property Rights” (as defined below), rights of publicity and privacy. To the extent that Your User Content contains music, You hereby represent that You are the owner of all the copyright rights, including and without limitation the performance and the mechanical and sound recordings rights, with respect to each and every musical composition (including lyrics) and sound recording contained in such User Content and have the power to grant the license granted below.
Notwithstanding anything to the contrary stated herein, Color deer reserves the right in its sole discretion to review, monitor, prohibit, edit, delete or otherwise make unavailable any User Content at any time without notice for any reason or no reason at all. By entering into this EULA You hereby provide Your irrevocable consent to such monitoring and You acknowledge and agree that You have no expectation of privacy concerning the sharing of Your User Content. If Color deer at any time decides, in its sole discretion to monitor User Content, nevertheless Color deer does not assume any responsibly for User Content and/or no obligation to remove or edit any inappropriate User Content.
License Grant for the User Content
By creating User Content through Color deer Applications, You expressly grant, and You represent and warrant that You have a right to grant, to Color deer a royalty-free, sub-licensable, transferable, perpetual, irrevocable, non-exclusive, worldwide license to use, reproduce, modify, publish, monetize, list information regarding, edit, translate, distribute, publicly perform, publicly display, and make derivative works of, and otherwise exploit, all such User Content, as well as Your name, voice, and/or likeness as contained in Your User Content, in whole or in part, and in any form, media or technology, whether now known or hereafter developed, for use in connection with the Application and Color deer’s (and its successors’ and affiliates’) business, including and without limitation for promoting and redistributing part or all of the Application (and derivative works thereof) or any Color deer Applications in any media formats and through any media collections and in connection with various advertisements, such as banner ads, mobile ads and video ads. You also hereby grant each user of the Application a non-exclusive license to access Your User Content through the Application, and to use, reproduce, distribute, display and perform such User Content as permitted through the functionality of the Application or the Internet and under this Agreement.
SPECIFIC RULES FOR USER CONTENT
By creating User Content through Color deer Applications you agree to these Specific Rules that outline Your use of any Color deer Intellectual Property Rights:
· User Content will be used for the sole purpose of non-commercial displaying, identifying and discussing only Color deer Applications in accordance with these Specific Rules. You are not allowed to create new applications, products and/or content based on Color deer Intellectual Property Rights, even if such content would be free.
· You are not permitted to charge any kind of fees from customers or visitors of Your User Content, unless You obtained express prior written approval by Color deer.
· Color deer reserves the right to monetize or use User Content or its parts created through Color deer Applications in its sole discretion. To the extent Color deer does not use its right to monetize the User Content, You may monetize Your User Content by using advertisement, whereas You are solely responsible for ensuring that such advertisement is compliant with any and all applicable laws, rules, regulations and developer policies.
· You must not create and use the User Content under the impression that Color deer is a creator or sponsor of Your User Content. Furthermore, You are also not allowed to create any materials from Color deer Intellectual Property Rights that are similar to Color deer’s logos, trademarks or any other elements of Color deer’s Intellectual Property Rights. You are not permitted to modify in any way Oufit7’s Intellectual Property Rights without an express prior written approval of Color deer.
· Unless You obtained prior written approval of Color deer, You are not allowed to manufacture or distribute (for free or otherwise) any physical items that bear any Color deer’s Intellectual Property Rights.
Color deer reserves the right to determine in its sole discretion, which User Content is in accordance with the above-mentioned Specific Rules and may revoke Limited License in this EULA at any time and for any reason.
Limitation of liability for the User Content
Color deer takes no responsibility and assumes no liability for any User Content that You or any other user or third party creates with the Application or shares through the Application. You shall be solely responsible for Your own User Content and the consequences of sharing or publishing it. You understand and agree that any loss or damage of any kind that occurs as a result of the use of any User Content that You send, upload, download, stream, post, transmit, display, share or otherwise make available or access through Your use of the Application, is solely Your responsibility. In connection with Your User Content, You affirm, represent and warrant the following:
1. You are at least 18 years of age, or if you are under 18 years of age You are either an emancipated minor, or possess legal consent from a parent or guardian, and are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in this Agreement, and to abide by and comply with this Agreement.
2. You have the written consent of each and every identifiable natural person in the User Content to use such person’s name or likeness in the manner contemplated by the Application and this EULA, and each such person has released You from any liability that may arise in relation to such use.
3. Your User Content and Color deer's use thereof as contemplated by this EULA and the Application will not infringe any rights of any third party, including but not limited to any Intellectual Property Rights, privacy rights and rights of publicity.
4. Color deer may exercise the rights to Your User Content granted under this Agreement without liability for payment of any guild fees, residuals, payments, fees, or royalties payable under any collective bargaining agreement or otherwise.
Color deer is not responsible for any public display or misuse of Your User Content. You understand and acknowledge that You may be exposed to User Content that is inaccurate, offensive, indecent, objectionable, or inappropriate for children, and You agree that Color deer shall not be liable for any damages you allege to incur as a result of such User Content.
Allowable Uses of the Application
USE OF THE APPLICATION AND ANY OF YOUR INFORMATION TRANSMITTED IN CONNECTION WITH THE APPLICATION IS LIMITED TO THE FUNCTIONALITY OF THE APPLICATION AND TO THE LICENSE GRANT ABOVE. YOU MAY NOT OTHERWISE USE THE APPLICATION OR ANY COMPONENT OF IT, EXCEPT AS EXPRESSLY AUTHORIZED BY COLOR DEER IN WRITING IN ADVANCE.
You must provide at Your own expense the equipment, Internet connections or mobile devices and/or service plans to access and use this Application. Color deer does not guarantee that this Application is available in all geographic locations. You acknowledge that when You use this Application, Your wireless carrier may charge you fees for data, messaging, and/or other wireless access. Check with Your carrier to see if there are any such fees that apply to You. You are solely responsible for any costs You incur to access this application from Your mobile device and/or PC device. Your right to use the Application is also predicated on Your compliance with any applicable terms of agreements You have with third parties when using Your Application.
Term of the License Grant/EULA
The terms of this EULA shall commence on the date You install or otherwise use the Application and shall end on the earlier of the date of Your disposal of the Application or Color deer’s termination of this EULA. You may terminate this EULA by uninstalling the Application.
Uninstalling the Application does not result in a refund of the amount paid for the Application. Color deer reserves the right, using its sole discretion, to terminate this EULA, request that You remove the Application from Your Device for any reason, including but not limited to Color deer’s reasonable conclusion that You have violated the Terms. Promptly upon termination, You must cease all use of the Application and destroy all copies of the Application in your possession or control.
Termination will not limit any of Color deer’s other rights or remedies at law or in equity. If any of the platforms disables the ability to use the applications on Your devices pursuant to Your agreement with such platform, any associated license rights with Color deer will terminate as well.
Reservation of Rights
You have obtained a license to the Application and Your rights are subject to this EULA. Except as expressly licensed to You herein, Color deer reserves all rights, titles and interests in the Application. This license is limited to the intellectual property rights of Color deer and does not include any rights to other patents or intellectual property.
Color deer retains all right, title and interest in and to the Color deer Intellectual Property, as defined below, whether registered or not and all applications thereof, except of the copyright of the third parties technology. The Color deer software is protected by applicable laws and treaties throughout the world.
For the purposes of this EULA, “Intellectual Property Rights” means all patent rights, trade names, proprietary rights, copyright rights, titles, computer codes, audiovisual effects, themes, characters, character names, stories, dialog, settings, artwork, sound effects, musical works, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction.
Some content and functions available via the Application may include materials from third parties. Color deer may integrate third-party content (e.g. user generated YouTube videos) and provide links to third-party websites as a convenience to You. You agree that Color deer is not responsible for examining or evaluating the content or accuracy and Color deer does not warrant and will not have any liability or responsibility for any third-party materials or websites, or for any other materials, products, or services of third parties. You agree that You will not use any third-party materials in a manner that would infringe or violate the rights of any other party and that Color deer is not in any way responsible for any such use by You.
Disclaimer of Warranties
TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, THE APPLICATION IS PROVIDED TO YOU “AS IS,” WITH ALL FAULTS, WITHOUT WARRANTY OF ANY KIND, WITHOUT PERFORMANCE ASSURANCES OR GUARANTEES OF ANY KIND, AND YOUR USE IS AT YOUR SOLE RISK. THE ENTIRE RISK OF SATISFACTORY QUALITY AND PERFORMANCE RESIDES WITH YOU. Color deer AND Color deer’S LICENSORS (COLLECTIVELY “Color deer” FOR PURPOSES OF THIS SECTION AND SECTION 10) DO NOT MAKE, AND HEREBY DISCLAIM, ANY AND ALL EXPRESS, IMPLIED OR STATUTORY WARRANTIES, INCLUDING IMPLIED WARRANTIES OF CONDITION, UNINTERRUPTED USE, MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT OF THIRD-PARTY RIGHTS, AND WARRANTIES (IF ANY) ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE.
COLOR DEER DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE APPLICATION; THAT THE APPLICATION WILL MEET YOUR REQUIREMENTS; THAT OPERATION OF THE APPLICATION WILL BE UNINTERRUPTED OR ERROR-FREE; THAT THE APPLICATION WILL INTEROPERATE OR BE COMPATIBLE WITH ANY OTHER APPLICATION; THAT ANY ERRORS IN THE APPLICATION WILL BE CORRECTED; OR THAT THE APPLICATION WILL BE AVAILABLE FOR REINSTALLS TO THE SAME OR MULTIPLE DEVICES.
NO ORAL OR WRITTEN ADVICE PROVIDED BY Color deer OR ANY AUTHORIZED REPRESENTATIVE OR THIRD PARTY SHALL CREATE A WARRANTY. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF, OR LIMITATIONS ON, IMPLIED WARRANTIES OR THE LIMITATIONS ON THE APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.
Limitation of Liability
TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, IN NO EVENT SHALL Color deer, ITS SUBSIDIARIES OR ITS AFFILIATES BE LIABLE TO YOU FOR ANY PERSONAL INJURY, PROPERTY DAMAGE, LOST PROFITS, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OF DATA, LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION OR ANY OTHER FORM OF DIRECT OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES FROM ANY CAUSES OF ACTION ARISING OUT OF OR RELATED TO THIS LICENSE OR THE APPLICATION, WHETHER ARISING IN TORT (INCLUDING NEGLIGENCE), CONTRACT, STRICT LIABILITY OR OTHERWISE, WHETHER OR NOT Color deer HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE AND WHETHER OR NOT REPAIR, REPLACEMENT OR A REFUND (IF AWARDED AT OUR SOLE DISCRECTION) FOR THE APPLICATION DOES NOT FULLY COMPENSATE YOU FOR ANY LOSSES.
SOME JURISDICTIONS DO NOT ALLOW A LIMITATION OF LIABILITY FOR DEATH, PERSONAL INJURY, FRAUDULENT MISREPRESENTATIONS OR CERTAIN INTENTIONAL OR NEGLIGENT ACTS, OR VIOLATION OF SPECIFIC STATUTES, OR THE LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO SOME OR ALL OF THE ABOVE LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU. In no event shall Color deer’s total liability to You for all damages (except as required by applicable law) exceed the amount actually paid by You for the Application. THIS LIMITATION APPLIES, BUT IS NOT LIMITED TO ANYTHING RELATED TO THE APPLICATION, SERVICES OR CONTENT MADE AVAILABLE THROUGH THE APPLICATION. You agree that the provisions in this EULA that limit liability are essential terms of this EULA.
You agree to defend, indemnify, and hold harmless Color deer and its employees, contractors, officers, and directors from any and all claims, suits, damages, costs, lawsuits, fines, penalties, liabilities, expenses (including attorney's fees) that arise from Your use or misuse of the Application, violation of the Terms or violation of any rights of a third party. Color deer reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by You, in which event you will cooperate in asserting any available defenses.
You agree that a breach of this EULA or the Terms will cause irreparable injury to Color deer for which monetary damages would not be an adequate remedy and Color deer shall be entitled to seek equitable relief in addition to any remedies it may have hereunder or at law without a bond, other security, or proof of damages.
Severability and Survival
If any provision of this EULA is illegal or unenforceable under applicable law, the remainder of the provision shall be amended to achieve as closely as possible the effect of the original term and all other provisions of this EULA shall continue in full force and effect.
The Terms constitute the entire agreement between You and Color deer with respect to the Application and supersedes all prior or contemporaneous understandings regarding such subject matter. No amendment to or modification of this EULA will be binding unless made in writing and signed by Color deer. No failure to exercise, and no delay in exercising, on the part of either party, any right or any power hereunder preclude further exercise of any other right hereunder. In the event of a conflict between this EULA, any applicable purchase, or other terms, the terms of this EULA shall govern.
You agree to abide by Cyprus, U.S., EU and other applicable export control laws and agree not to transfer the Application to a foreign national, or national destination, which is prohibited by such laws, without first obtaining, and then complying with, any requisite government authorization. You certify that you are not a person with whom Color deer is prohibited from transacting business under applicable law.
We will occasionally update this EULA as necessary to protect our users, furnish current information and respond to legal and technical changes. Please check this web page regularly for any changes. We reserve the right to change this EULA at any time and we will publish changes twice per year. Your usage of the Application after the changes are integrated will constitute your acceptance of the changes.
Should You wish to contact the Color deer with any questions, complaints or claims with respect to the Application, You should visit the Color deer website at contact email@example.com mail.
Transfer of title for sales of Application
To the extent that applicable legislation allows the parties to a transaction to agree on where title passes for sales of property, You agree that title for sales of Application (software sold by electronic download) passes where Color deer is domiciled.
Governing Language and Law
The original version of this EULA is written in English. Any translation of this EULA into any other language is done for local requirements and in the event of a dispute, inconsistency or discrepancy between English and any non-English versions, the English version of this EULA shall govern, to the extent not prohibited by local law in your jurisdiction.
This Agreement and all disputes or controversies arising out of or relating to this Agreement shall be governed by, and construed in accordance with, UK law, if You use the Application in the EU, excluding its conflict of laws rules, or in accordance with the laws of the State of California, excluding its conflict of laws rules, if You use the Application anywhere else in the world.
We will make every reasonable effort to resolve any disagreements that You have with Color deer. If those efforts fail, by using the Application You agree that any claim, dispute, or controversy You may have against Color deer arising out of, relating to, or connected in any way with this Agreement and/or the Application, shall be resolved exclusively by final and binding arbitration.
If You are a resident of the United States of America: (a) any such arbitration shall be administered by the American Arbitration Association (the “AAA”) and conducted before a single arbitrator pursuant to the applicable rules and procedures established by the AAA (the “AAA Rules and Procedures”); (b) the arbitration shall be held at a location determined by the AAA pursuant to the Rules and Procedures (provided that such location is reasonably convenient for You), or at such other location as may be mutually agreed upon by You and Color deer; (c) the arbitrator shall apply California law consistent with the Federal Arbitration Act and applicable statutes of limitations, and shall honor claims of privilege recognized at law; (d) there shall be no authority for any claims to be arbitrated on a class or representative basis, arbitration can decide only Your and/or Color deer’s individual claims, and the arbitrator may not consolidate or join the claims of other persons or parties who may be similarly situated; (e) in the event that You are able to demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation, Color deer will pay as much of Your filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive; (f) all arbitration submissions, communications and proceedings shall be made or conducted in English; and (g) with the exception of clause (d) above, if any part of this arbitration provision is deemed to be invalid, unenforceable or illegal, or otherwise conflicts with the AAA Rules and Procedures, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein.
If You are a resident of any country other than the United States of America: (a) any such arbitration shall be administered by the International Chamber of Commerce (the “ICC”) conducted before a single arbitrator pursuant to the “Rules of Arbitration” of the ICC (the “ICC Rules of Arbitration”); (b) the arbitration shall be held in London, England, or at such other location as may be mutually agreed upon by You and Outfit 7; (c) the arbitrator shall apply California law consistent with the ICC Rules of Arbitration and applicable statutes of limitations, and shall honor claims of privilege recognized at law; (d) all arbitration submissions, communications and proceedings shall be made or conducted in English; and (e) if any part of this arbitration provision is deemed to be invalid, unenforceable or illegal, or otherwise conflicts with the ICC Rules of Arbitration, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein.
Third-Party Ad Serving Technology
One or all Color deer Applications use the following third-party technologies stated below, whereas the following list includes only those third-party technology that require such disclosure in accordance with their license. You can find additional terms for use of third-party technologies in Section (C) of this EULA.
• FMOD Technology: the Application uses FMOD and/or FMOD Studio audio software licensed under Firelight Technologies.
• NGUI: The Application uses the NGUI library licensed under the NGUI Site License: http://www.tasharen.com/?page_id=140.
• FFTW: The Application uses the FFTW Library.
• Comland Face Gestures: The Application uses Comland Face Gestures .
• NeoSpeech's VoiceText™ Text-to-Speech (TTS) Software: This Application uses NeoSpeech's VoiceText™ Text-to-Speech (TTS) Software and by using the Application you agree to be bound by the End User License Agreement attached hereto in Section C.
• OpenCV: The Application uses OpenCV (Open Source Computer Vision) library (http://OpenCV.willowgarage.com/wiki/) licensed under the BSD license: http://en.wikipedia.org/wiki/BSD_licenses,http://opensource.org/licenses/bsd-license.php.
• Everyplay: The Application uses Everyplay for iOS and Android (http://www.everyplay.com/explore) licensed under Apache License, version 2.0 (http://www.apache.org/licenses/LICENSE-2.0.html). The Application uses Everyplay for Android (http://www.everyplay.com/explore).
• 18 x 15 Nose detector computed with 7000 positive samples: The Application uses 18 x 15 Nose detector computed with 7000 positive samples (http://openCV.willowgarage.com/wiki/) licensed under the Open CV Contributors License Agreement. Copyright (c) 2008, Modesto Castrillon-Santana (IUSIANI, University of Las Palmas de Gran Canaria, Spain). All rights reserved.
Redistribution and use in source and binary forms, with or without modification, are permitted provided that the following conditions are met: * Redistributions of source code must retain the above copyright notice, this list of conditions and the following disclaimer. * Redistributions in binary form must reproduce the above copyright notice, this list of conditions and the following disclaimer in the documentation and/or other materials provided with the distribution. * The name of Contributor may not used to endorse or promote products derived from this software without specific prior written permission.
THIS SOFTWARE IS PROVIDED BY THE COPYRIGHT HOLDERS AND CONTRIBUTORS "AS IS" AND ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE DISCLAIMED. IN NO EVENT SHALL THE CONTRIBUTORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; LOSS OF USE, DATA, OR PROFITS; OR BUSINESS INTERRUPTION) HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) ARISING IN ANY WAY OUT OF THE USE OF THIS SOFTWARE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
· Unity: The Application uses Unity Software and by using the Application you agree to be bound by Unity Software Terms attached hereto in Section C.
B) ADDITIONAL PROVISIONS FOR INDIVIDUAL APPLICATIONS
Notwithstanding the above, the Tom’s Messenger Application enables You to share User Content in the form of a video message (the “Video Message”) to others through certain channels where the Video Message cannot be sent to the recipient as a part of the communication due to size restrictions. Such channels are SMS and Facebook message. In such cases Color deer will store Video Message on its servers for a period of 14 days. However, Color deer will still only act as a passive conduit and will not check or in any way interfere with any of the Video Message stored on its servers.
You retain all your ownership rights to Your Video Message. By sharing a Video Message through Color deer’s channels, You expressly grant, and You represent and warrant that You have a right to grant, to Color deer a royalty-free, sub-licensable, transferable, perpetual, irrevocable, non-exclusive, worldwide license to use, reproduce, modify, publish, monetize, list information regarding, edit, translate, distribute, publicly perform, publicly display, and make derivative works of, and otherwise exploit, all such Video Messages and Your name, voice, and/or likeness as contained in Your Video Message, in whole or in part, and in any form, media or technology, whether now known or hereafter developed, for use in connection with the Application and Color deer’s (and its successors’ and affiliates’) business, including without limitation for promoting and redistributing part or all of the Application (and derivative works thereof) or any Color deer Applications in any media formats and through any media collections and in connection with various advertisements such as banner ads, mobile ads and video ads. You also hereby grant each User of the Application a non-exclusive license to access Your Video Message through the Application, and to use, reproduce, distribute, display and perform such Video Message as permitted through the functionality of the Application or the internet and under this Agreement. The above licenses granted by You in the Video Message for which the Application does not provide You a means to delete or remove are perpetual and irrevocable.
Color deer reserves the right, but is not obligated, to reject and/or remove any Video Message that Color deer believes, in its sole discretion, violates the provisions of this EULA. The Tom’s Messenger Application by design intends that any Video Message stored on Color deer servers is destined solely to an individual. Therefore Color deer will consider any complaint with regard to a particular Video Message to be justified and will act with reasonable efforts to remove such Video Message immediately.
If You believe that a certain Video Message that is stored on Color deer servers: (i) constitutes copyright infringement; (ii) constitutes infringement of Your privacy or personal rights; or (iii) is in any way infringing the terms of this EULA, please notify Color deer at http://color deer.com/contact/. For infringements by User Content that is not stored on Color deer servers please contact the respective third-party service provider, where such User Content is stored.
You understand that Color deer does not guarantee any confidentiality with respect to any Video Message stored on Color deer servers. Once the Video Message is stored on Color deer server, the access to such Video Message will be enabled to third parties solely through a hyperlink to a Color deer website where the Video Message will be streamed through a web browser. The hyperlink to the Video Message will not be shared with any person nor any public search engine, other than the person(s) to whom You will send such a hyperlink yourself. However You understand that the technical characteristics of the Internet do not enable Color deer to ensure full confidentiality and that a third person might gain access to the Video Message through unintended ways. Color deer is therefore not responsible for any public display or misuse of Your Video Message.
C) ADDITIONAL TERMS FOR USE OF THIRD-PARTY TECHNOLOGIES
UNITY SOFTWARE TERMS
Your use of the Unity Software is subject to these Additional Terms (the “Software Terms”), which supplement and incorporate the Unity Terms of Service. By downloading, installing or using the Unity Software in any manner, you represent and affirm that you have read, understand and agree to be legally bound by and comply with these Software Terms. If you do not agree with these Software Terms, you are not authorized to use the Unity Software in any manner.
UNITY PERSONAL AND UNITY PLUS
If you are accepting these Software Terms for use of Unity Personal, you represent and warrant that:
1. if you are accepting the terms on behalf of a Legal Entity which is a Commercial Entity, both (a) its annual gross revenues do not exceed US$100,000, or (b) raised funds (including but not limited to crowdfunding) do not exceed US$100,000, in each case during the most recently completed fiscal year and in any equivalent currency;
2. if you are accepting the terms on behalf of a Legal Entity which is a Non-Commercial Entity, the total annual budget does not exceed US$100,000 (for the entire Non-Commercial Entity (not just a department)) for the most recently completed fiscal year (including in any equivalent currency); and
3. if you are an individual (not acting within a role in a Legal Entity) or if you are accepting the term on behalf of a Legal Entity as a Sole Proprietor, the annual gross revenues from your or its use of the Unity Software do not exceed of US$100,000 during the most recently completed fiscal year (including in any equivalent currency), which does not include any income made which is not related to its use of the Unity Software.
If you are accepting these Software Terms for use of Unity Plus, you agree to pay the applicable subscription fees and you represent and warrant that:
1. if you are accepting the terms on behalf of a Legal Entity which is a Commercial Entity, both (a) its annual gross revenues do not exceed US$200,000, or (b) raised funds (including but not limited to crowdfunding) do not exceed US$200,000, in each case during the most recently completed fiscal year and in any equivalent currency;
2. if you are accepting the terms on behalf of a Legal Entity which is a Non-Commercial Entity, the total annual budget does not exceed US$200,000 (for the entire Non-Commercial Entity (not just a department)) for the most recently completed fiscal year (including in any equivalent currency); and
3. if you are an individual (not acting within a role in a Legal Entity) or if you are accepting the term on behalf of a Legal Entity as a Sole Proprietor, the annual gross revenues from your or its use of the Unity Software do not exceed of US$200,000 during the most recently completed fiscal year (including in any equivalent currency), which does not include any income made which is not related to its use of the Unity Software.
Unity Pro may be used by anyone who pays the applicable subscription fees.
During the term of this Agreement, you expressly acknowledge and agree that if you are a Unity Personal or Unity Plus user and the above thresholds are exceeded, then you may no longer use that tier of the Unity Software, and you must either: (a) purchase Unity Plus (if eligible) or Unity Pro; or (b) destroy all copies of the Unity Software in your possession or control, and cease updating Your Project Content. Unity will monitor your compliance with and enforce these restrictions and requirements including but not limited to monitoring the number of downloads of Your Project Content and any available revenue estimate data.
Unity Personal users may be required to complete a user survey in order to activate the Unity Software.
I. RIGHTS TO USE THE UNITY SOFTWARE.
1. Use Rights. Conditioned upon your compliance with the terms and conditions of this Agreement and payment of all applicable subscription fees, Unity grants you a non-exclusive, non-transferable, royalty-free license during the applicable term: (a) to install and execute the executable form of the Unity Software, solely for internal use by a single person to develop Your Project Content during the applicable term; and (b) if you are using a version of the Unity Software other than an educational version, to distribute the runtime portion of the Unity Software, on a royalty-free basis, solely as embedded or incorporated into Your Project Content and solely to third parties to whom you license or sell Your Project Content pursuant to an agreement that is no less protective of Unity and its licensors as this Agreement. You may not sublicense the rights granted under clause 1.1(a), but you may sublicense the rights granted under 1.1(b) solely to third parties to whom you license or sell Your Project Content to act as distributors thereof pursuant to an agreement no less protective of Unity and its licensors as this Agreement.
2. Copies of Unity Products. You may install the Unity Software on both a primary and a secondary computer or operating system, solely for your convenience, but only for use by a single person. You may make a single copy of the Unity Software solely for backup or archival purposes. For the sake of clarity, you may only use one installation at any given time. We may in our sole discretion authorize you to install the Unity Software on additional computers or operating systems upon deactivation of the Unity Software installed on existing computers.
3. Unity Console Add-on Developer Requirements. Use of the Unity Software with certain console platforms is subject to the Unity Console Add-on Developer Requirements as set forth on the Unity website. The license keys to enable certain Unity Console Add-ons may be distributed by the console manufacturer.
4. Third Party Software. The Unity Software incorporates or is bundled with Third Party Software governed by separate terms, including open source licenses. Such Third Party Software terms are identified in the LICENSE.TXT file bundled with the Unity Software and incorporated into this Agreement by reference. You agree that you have reviewed and accepted those terms and that your use of the Unity Software will be deemed acceptance thereof.
1. Unity Software Tier Restrictions. You acknowledge and agree that as an express condition to the rights granted under Section 1, you are not permitted to combine or integrate in any manner any of Your Project Content developed with one tier of the Unity Software (e.g., Unity Personal) with any of Your Project Content developed simultaneously with another tier (e.g., Unity Plus or Unity Pro). For the avoidance of doubt: (a) if you are a permitted user of Unity Personal, you may commence a project using only Unity Personal and subsequently upgrade all (but not less than all) of your seats to Unity Plus or Unity Pro, and (b) any user of the Unity Software may use content licensed from third parties regardless of the tier of Unity Software that was used to develop such third party content. You acknowledge and agree that Unity may tag Your Project Content created with Unity Personal and/or Unity Plus with an identifier to prevent such a prohibited combination of Your Project Content.
2. Educational Product Restrictions. If you are using an educational version of the Unity Software, your right to use the Unity Software and distribute the runtime portion of the Unity Software in Your Project Content is limited to educational, non-commercial purposes. Unity may include a watermark designating that Your Project Content was created using the education version of the Unity Software.
3. Embedded Software Restriction. You may not directly or indirectly distribute Your Project Content installed on more than 1,000 electronic devices or systems if Your Project Content provides the user interface or primary functionality of such electronic device or system without a separate license from Unity. This restriction does not prevent you from distributing Your Project Content pre-installed on personal computers and consumer electronic devices such as mobile phones, tablets, televisions or set top boxes as long as Your Project Content does not provide the user interface or primary functionality of such device.
4. Streaming and Cloud Gaming Restrictions. You may not directly or indirectly distribute Your interactive Project Content by means of streaming or broadcasting Your Project Content that is primarily executed on a server and transmitted over the Internet or other network to end user devices without a separate license from Unity. This restriction does not prevent end users from remotely accessing Your Project Content from an end user device that is running on another end user device.
5. Gambling Restriction. You may not distribute or publish any of Your Project Content in connection with any Gambling Activities without a separate license agreement from Unity.
6. General Restrictions. Except as expressly specified in this Agreement, you may not: (a) copy (except in the course of loading or installing) or modify or create derivative works of the Unity Software; (b) distribute, transfer, sublicense, lease, lend, rent or otherwise provide access to the Unity Software to any third party; (c) directly or indirectly make the functionality of the Unity Software available to multiple users or third parties through any means, including but not limited to by uploading the Unity Software to a network or file-sharing service or through any hosting, application services provider, service bureau, software-as-a-service (SaaS) or any other technology or service; (d) use the Unity Software for competitive analysis or to develop a competing product or service; or (e) do anything that could cause or result in the Unity Software (including the runtime portion thereof) being subject to any open source license (or similar license) that requires as a condition of use, modification or distribution that the Unity Software (including the runtime portion thereof) or other software combined or distributed with the Unity Software be: (i) disclosed or distributed in source code form; (ii) licensed for the purpose of making derivative works; or (iii) redistributable at no charge. You acknowledge and agree that portions of the Unity Software, including but not limited to the source code and the specific design and structure of individual modules or programs, are confidential and constitute or contain trade secrets of Unity and its licensors. Accordingly, you agree not to disassemble, decompile or reverse engineer the Unity Software, in whole or in part, or permit or authorize a third party to do so, except to the extent such activities are expressly permitted by this Agreement or by law notwithstanding this prohibition. Notwithstanding the restriction prohibiting decompiling in the immediately preceding sentence, you may decompile the Unity Common Language Infrastructure (CLI) assemblies solely to inspect their functionality for purposes of understanding or improving performance of Your Project Content or any editor extension to the Unity Software.
You may access the online forums and the Unity Answers knowledge base through the Site. You may also email firstname.lastname@example.org for assistance with your seats. Technical support may be offered by Unity at its sole discretion as described on the Unity website. You acknowledge and agree that Unity has no obligation under this Agreement to provide patches, updates, new releases or new versions of the Unity Software.
Subscription based seats for Unity Pro and Unity Plus will remain in effect for the initial subscription period, and thereafter such seat will automatically renew on a month to month basis at the then-current list price, unless you renew the subscription for a new subscription term or terminate and cancel it as described on the Site. Paid in full, perpetual seats will remain in effect unless earlier terminated in accordance with the Agreement. Upon termination, you must at Unity’s option either promptly delete and destroy or return to Unity all copies of the Unity Software in your possession or control.
VI. U.S. GOVERNMENT RIGHTS.
The Unity Software and computer software documentation (“Documentation”) are “commercial items” as that term is defined in the Federal Acquisition Regulation (“FAR”) 2.101, consisting of “commercial computer software” and “commercial computer software documentation,” respectively, as such terms are used in FAR 12.212 and DFARS 227.7202.If acquired by or on behalf of a civilian agency, the U.S. Government acquires or will acquire the Unity Software and/or Documentation and other technical data subject to the terms of this Agreement as required in 48 C.F.R. 12.212 (Computer Unity Software) and 12.211 (Technical Data) of the FAR and its successors. If acquired by or on behalf of any agency within the Department of Defense (“DOD”), the U.S. Government acquires or will acquire the Unity Software and/or Documentation subject to the terms of this Agreement as specified in 48 C.F.R. 227.7202-3 of the DOD FAR Supplement (“DFARS”) and its successors. This U.S. Government Rights clause is in lieu of, and supersedes, any other FAR, DFARS, or other clause or provision that addresses Government rights in computer software or technical data.
VII. EXPORT LAW.
You agree to comply fully with all export laws and regulations to ensure that neither the Unity Software nor any technical data related thereto nor any direct product thereof are exported or re-exported directly or indirectly in violation of, or used for any purposes prohibited by, such laws and regulations.
1. “Commercial Entity” means any company, corporation, limited liability company, general partnership, limited partnership, limited liability partnership, proprietorship, joint venture or other form of business organization, excluding any government, non-profit, educational or academic institution.
2. “Gambling Activities” means any gambling product or service offered in any market or application that is regulated by any local, state or national authority and requires a gambling license.
3. “Legal Entity” means any Commercial Entity, Non-Commercial Entity or Sole Proprietor.
4. “Non-Commercial Entity” means any government, non-profit, educational or academic institution, including but not limited to any primary or secondary school, vocational school, college or university.
5. “Sole Proprietor” means any Commercial Entity that is owned or controlled by a single individual, with no other partners or employees.
6. "Third Party Software" means software developed by third parties that is furnished with or as part of the Unity Software.
7. “Unity Console Add-on Developer Requirements” means the applicable registration process and terms a developer must follow and accept to become a registered developer with the applicable console platform as set forth or linked on the Unity website.
8. “Unity Personal” means Unity Personal Edition, the version of the Unity Software that is available for free to Sole Proprietors and Commercial Entities with annual gross revenues (based on prior fiscal year) of less than US$100,000, and Non-Commercial Entities with a total annual budget (based on prior fiscal year) for the legal entire entity (not department) of less than US$100,000.
9. “Unity Plus” means Unity Plus Edition, a premium version of the Unity Software available to Sole Proprietors and Commercial Entities with annual gross revenues (based on prior fiscal year) of less than US$200,000, and Non-Commercial Entities with a total annual budget (based on prior fiscal year) for the legal entire entity (not department) of less than $200,000.
10. “Unity Pro” means Unity Professional Edition, the premium version of the Unity Software available to commercial entities not eligible to use Unity Personal.
11. “Unity Software” means all 5.x versions and updates of all the Unity software products identified on Unity’s website.
12. “Your Project Content” means games, applications, software or other content that you develop with the Unity Software.
1. License Grant:NEOSPEECH grants to You, and You accept, a personal, non-transferable, nonexclusive license to use the Software (“Software”), in object code only, on any computer owned, leased, or otherwise controlled by You, and to use the Software only as authorized under this Agreement. You agree that You will not assign, sublicense, transfer, pledge, lease, rent, or share Your rights under this License Agreement. In no event may You distribute the software. You agree that You may not reverse assemble, reverse compile, or otherwise translate the Software. The Software is licensed to You bundled with other software. You may not use the Software on a stand-alone basis.
2. NEOSPEECH’s Rights: You acknowledge and agree that the Software are proprietary information of NEOSPEECH, and are protected under United States and international copyright law. You further acknowledge and agree that all rights, title, and interest in and to the Software, including all associated intellectual property rights, belong to, and shall remain with NEOSPEECH. This License Agreement does not convey to You an interest in or to the Software, but only a limited right of use, which is revocable, in accordance with the terms of this Agreement.
3. Term: This License Agreement is effective upon Your installation of the Software, and shall continue until this Agreement is terminated. You may terminate this License Agreement at any time by deleting the Software from Your computer and deleting all audio output generated by the software. NEOSPEECH may terminate this License Agreement upon Your breach of this Agreement. Upon such termination by NEOSPEECH, You agree to delete the Software and all its audio outputs, and to certify in writing to NEOSPEECH that You have destroyed all copies in Your possession.
4. NO WARRANTY: YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT YOUR USE OF THE SOFTWARE AND RELATED SERVICES ARE 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 SOFTWARE AND ANY RELATED SERVICES ARE PROVIDED "AS IS" AND “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND NEOSPEECH HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE SOFTWARE AND RELATED 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. NEOSPEECH DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE SOFTWARE AND RELATED SERVICE, THAT THE FUNCTIONS CONTAINED IN, OR SERVICES PERFORMED OR PROVIDED BY, THE SOFTWARE AND RELATED SERVICE WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE SOFTWARE AND RELATED SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE SOFTWARE AND RELATED SERVICES WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY NEOSPEECH OR ITS AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. 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.
5. LIMITATION OF LIABILITY: TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL NEOSPEECH 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 SOFTWARE AND RELATED SERVICES, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE) AND EVEN IF NEOSPEECH 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 NEOSPEECH’s total liability to You for all damages (other than as may be required by applicable law in cases involving personal injury) exceed USD25.00. The foregoing limitations will apply even if the above stated remedy fails of its essential purpose.
6. Indemnity: You shall indemnify and hold NEOSPEECH and its parents, subsidiaries, affiliates, officers, directors, employees, attorneys, and agents, harmless from and against any and all claims, costs, damages, losses, liabilities, and expenses (including attorneys' fees and costs) arising out of or in connection with Your use of the Software and related services or breach of this Agreement.
7. Export: The Software may be subject to United States export controls. By downloading the Software, You warrant that You are not located in any country, or exporting the Software to any person or place, to which the United States has embargoed goods.
8. Trademarks: All logos, Product names and designs are trademarks of NEOSPEECH. No right, license, or interest to any such trademark is granted under this Agreement, and You agree that no such right, license, or interest shall be asserted by You with respect to such trademark.
9. Governing Law: This License Agreement shall be construed and governed in accordance with the laws of the State of California, with venue expressly agreed by You to be in Santa Clara County, California.
10. Costs of Litigation: If any action is brought by either party to this License Agreement against the other party regarding this Agreement, the prevailing party shall be entitled to recover, in addition to any other relief granted, reasonable attorneys’ fees and expenses of litigation.
11. Severability: Should any term of this License Agreement be declared void or unenforceable by any court of competent jurisdiction, such declaration shall have no effect on the remaining terms hereof.
12. No Waiver: The failure of either party to enforce any rights granted hereunder or to take action against the other party in the event of any breach hereunder shall not be deemed a waiver by that party as to subsequent enforcement of rights or subsequent actions in the event of future breaches.