END USER LICENSE AGREEMENT
This end user license agreement (Agreement) is a legal agreement between you and Funamo, Inc. ( the Developer) stating the terms and conditions that govern your use of the Funamo and Funamo Applications for Android-based devices (the Application). Please read this agreement carefully. By purchasing, downloading, installing and/or using the Application, you are indicating that you agree to be bound by and comply with the terms and conditions set forth in this agreement. If you do not agree to these terms and conditions, do not purchase, download, install and/or use the Application.
Developer may enable access to content, information and services (including external and/or online) through the Application (collectively and individually, the Services), and as a condition of your use of the Services, you agree to be bound by and comply with Developer's Terms of Service and Privacy Policy as communicated by Developer at such time, each of which shall become incorporated herein by reference. You agree that the Privacy Policy and Terms of Service may be updated from time to time, without prior notice, and any such changes shall be effective as soon as posted. If applicable, you should also refer back to the Terms of Service and Privacy Policy on a regular basis so that you remain aware of the most current terms and conditions that apply to you.
1. LICENSE GRANT. Subject to the terms and conditions of this Agreement, Developer hereby grants to you a limited, non-transferable, non-sublicensable, non-assignable and revocable license to install and use the Application solely for your own personal, non-commercial use on your present Android-based device that you own or control. For the avoidance of doubt, the Application is licensed, not sold, to you by Developer pursuant to and subject to the terms and conditions of this Agreement and any other applicable terms and conditions promulgated by any third party (e.g., Application stores such as Android Market, network, and other operators, etc.), including, without limitation, Google. Developer reserves all rights not expressly granted to you herein. You acknowledge and agree that this Agreement is between you and Developer, and Google and its subsidiaries are not a party to this Agreement and are not responsible for the Application. In the event of a conflict, the terms and conditions of the present Agreement shall supersede and have priority over the terms and conditions of the Android Market (Google Play).
2. RESTRICTIONS. This Agreement only allows you to use the Application on the device that you use to purchase the Application license, and you may not use it on other devices that you own. You may not distribute or make the Application 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 Application. You may not copy, decompile, reverse engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the Application, any updates or upgrades, or any part thereof. Any attempt to do so is a violation of the rights of Developer, its affiliates and licensors, as applicable. If you breach this restriction, you may be subject to prosecution and damages. The terms and conditions of the Agreement shall govern any upgrades or updates provided by Developer that replace and/or supplement the original Application, unless such upgrade is accompanied by or references a separate license agreement in which case the terms of that license agreement shall govern.
3. CONSENT TO USE OF DATA. All data and information collected, used and/or disclosed by Developer and its affiliates in connection with your use of the Application and the Services, which shall include, without limitation, all technical information about your device, system, Application software, peripherals and the use thereof, shall be governed by and subject to the terms and conditions set forth in the Privacy Policy.
4. PROPRIETARY RIGHTS. Developer, its affiliates and/or their respective licensors own all right, title and interest in and to the Application, including, without limitation, all intellectual and proprietary rights appurtenant thereto, and, except for the limited license granted to you herein, nothing in this Agreement shall be construed to restrict, transfer, convey, encumber, alter, impair or otherwise adversely affect Developer's, its affiliates and/or their respective licensors' ownership or proprietary rights therein or any other of Developer's, its affiliates' and/or their licensors' information, processes, methodologies, products, goods, services, or materials, tangible or intangible, in any form and in any medium.
5. NO WARRANTY. You expressly acknowledge and agree that use of the Application is at your sole risk and that the entire risk as to satisfactory quality, performance, accuracy and effort of the Application is with you. To the maximum extent permitted by applicable law, the Application and any services performed or provided by or in connection with the Application are provided "as is" and "as available", with all bugs and faults and without warranty of any kind, and Developer, its affiliates and licensors hereby disclaim all warranties and conditions with respect to the Application and any services, either express, implied or statutory, including, without limitation, any implied warranties and/or conditions of merchantability, of satisfactory quality, of fitness for a particular purpose, of accuracy, of quiet enjoyment, of title, and of non-infringement of third party rights. Neither Developer, nor any of its affiliates or licensors warrant that the functions or services contained in, accessed from, performed by, displayed on, linked to/from, or provided by, the Application will meet your requirements, that the operation of the Application or services will be uninterrupted or error-free, or that defects in the Application or services will be corrected. No oral or written information or advice given by Developer, its affiliates or any of their respective authorized representatives shall create a warranty. Should the Application 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.
6. LIMITATION OF LIABILITY. To the extent not prohibited by law, in no event shall Developer or its affiliates be liable for any loss or damage of any kind, whether direct, indirect, incidental, special, exemplary or consequential, including, without limitation, damages for loss of profits, loss of data, data charges, business interruption or any other commercial damages or losses, arising out of or related to your use or inability to use the Application, however caused, regardless of the theory of liability (contract, tort or otherwise) and even if Developer or its affiliates have been advised of the possibility of such damages. In no event shall Developer's liability exceed the price paid for the Application by the user. Developer or its affiliates shall not be liable should (i) the Application or any Update be removed and/or unavailable from the Application Stores such as Android Market (Google Play) for any reason, (ii) the Application cease to function as a result of any modifications or updates to the Android software, changes to the firmware of your device or a change of device.
7. INDEMNIFICATION. You agree to indemnify, defend, and hold Developer, its affiliates and their respective successors and assigns, officers, directors, employees, agents, licensors, representatives, advertisers, service providers, and suppliers harmless against any and all claims, demands, actions, losses, damages, costs and expenses (including reasonable attorneys' fees), arising out of or relating to your (a) breach or violation of this Agreement, (b) infringement, misappropriation or any violation of the rights of any other party, (c) violation or non-compliance with any applicable law, rule or regulation, and (d) use, alteration or export of the Application (or any component thereof) in violation of this Agreement.
8. WIRELESS ACCESS CHARGES. Certain Application functions and Services require data access, and the provider of data access for your device may charge you data access fees in connection with your use of the Application. You are solely responsible for any data access or other charges you incur.
9. CONTINUED USE OR AVAILABILITY. Developer and its affiliates reserve the right to modify, update, supplement, limit, discontinue, remove or disable access to the Application and/or any Services without notice to you and neither Developer, its affiliates nor any of their respective licensors shall be liable to you or any third party should it exercise such rights.
10. UPDATES AND UPGRADES. You are only granted the right to the version of the Application as provided when purchased and solely incorporating the features and functionality provided with such version. You are not granted any rights to any updates, upgrades, future versions, modifications, supplements, and/or additional features and components (including any online or external functionality or Services) of the Application that may subsequently be made available by Developer with the Application or for use with the Application (collectively the Updates). From time to time, Developer may make available Updates to the Application via software download or other means. Such download may occur automatically without the need for any act on your part, or it may require you to manually download an update or upgrade through the same source from which the Application was originally downloaded. Certain functions of the Application may be modified or discontinued as a result of any such update or upgrade, or may not be available if you have not downloaded all Updates made available by Developer or otherwise. Developer may, in its sole and absolute discretion, provide you free of charge with Updates to the Application but reserves itself the right to charge additional sums for such Updates the amount of which shall be determined by Developer in its sole and absolute discretion. Developer does not warrant, represent nor undertake to provide Updates and in no event shall Developer incur any liability for a failure to do so. Developer may, in its sole and absolute discretion, by means of Updates or otherwise, offer Services as a complement to the Application and reserves itself the right to charge additional sums for same, including a monthly or yearly fee or a fee based on usage.
11. CHANGES TO THE AGREEMENT. Developer may make changes to this Agreement, at any time and from time to time, by notifying you of the change, including, without limitation, by including notice on the Services or by other electronic means, and a new copy of this Agreement shall be made available on the Services. By using the Application and/or any Services after such changes are made to the Agreement, you signify that you agree to be bound by and comply with such changes and Developer shall treat your use as acceptance of the changed provisions.
12. TERMINATION. This Agreement is effective until terminated by you or Developer. Your rights under the license granted herein shall terminate automatically without notice from Developer if you fail to comply with any terms or conditions of this Agreement. Upon termination of this Agreement, you shall cease all use of the Application, and destroy all copies, full or partial, thereof.
13. GOVERNING LAW AND INTERPRETATION. To the extent not prohibited by law, you agree (a) that this Agreement and all disputes, claims, actions, suits or other proceedings arising hereunder shall be governed by, and construed in accordance with, the substantive law of the state of California (b) to irrevocably submit to the sole and exclusive jurisdiction of the courts of state of California, and (c) to irrevocably consent to the exercise of personal jurisdiction by such courts and waive any right to plead, claim or allege that the judicial district of the state of California is an inconvenient forum. No failure or delay by Developer, its affiliates or licensors to exercise any right or enforce any obligation shall impair or be construed as a waiver or ongoing waiver of that or any or other right or power. If any provision of this Agreement is held to be illegal, invalid or unenforceable, the remaining provisions of this Agreement shall be unimpaired and remain in full force and effect. You may not assign your rights under this Agreement without Developer's prior written permission and any attempt by you to do so shall be void. Any provision of this Agreement which by its nature must survive the termination of this Agreement in order to give effect to its meaning shall survive such termination.