nandbox Mobile Device End User License Agreement
1. Your Acceptance of this Agreement
Thank you for choosing to download this application developed by nandbox Inc. This is an agreement between nandbox Inc. (the “Company”), an Ontario Corporation, the owner and operator of the nandbox Messenger and related websites, applications, and programs from the Company (together, the “Application”), and you (“you”). All users of the Application are subject to the following end user license agreement terms (this “EULA”).
Please read this EULA carefully before downloading and using the Application.By downloading or using the Application, you agree that you have read, understand and agree to be bound by this EULA, as amended from time to time. If you do not wish to agree to this EULA, do not download or use the Application. Please note that you may not use the Application and may not accept the terms of this EULA if you are a person barred from using the Application under the laws of Canada or of your jurisdiction.
The Company may revise and update this EULA at any time without notice by posting the amended EULA. Your continued use of the Application means that you accept and agree to the revised EULA If you disagree with the EULA (as amended from time to time) or are dissatisfied with the Application, your sole and exclusive remedy is to discontinue using the Application.
3. Updates to Mobile Devices
Please note that updates to your existing mobile device operating systems or firmware may render your version of the Application incompatible. The Company does not warrant that the Application will be backward or forward compatible with any updates to, or prior versions of, the mobile devices. The Company may, but is not obligated to, provide you with updates to the Application that improve compatibility with updated mobile devices.
4. Not Responsible for Third Party Content
The Application may link to third party or external web sites which are not maintained by or related to the Company. Hyperlinks to such sites are provided as a service to users and are not sponsored by or affiliated with the Company, and the Company has not reviewed any or all of such web sites and is not responsible for the content of those web sites. The Company is not responsible for and does not endorse the content, products, services or practices of any third party web sites, including, without limitation, web sites framed within the Application or third party advertisements, and does not make any representations regarding their quality, content or accuracy. The Company makes no representations or warranties as to the security of any third party web site and your use of third party web sites is at your own risk and subject to the terms and conditions of use for such web sites.
You acknowledge and agree that the Company has no responsibility or liability for the availability of such external services or web sites.
5. Permitted Users and Access – Jurisdiction
The Application is controlled and offered by the Company from its facilities in Canada. The Company makes no representations that the Application is appropriate or available for use in other jurisdictions. Those who access or use the Application from other jurisdictions do so at their own risk and are responsible for compliance with the local laws. The Application may not be used by persons in jurisdictions where access to or use of the Application or any part of it may be illegal or prohibited.
6. Disclaimer and Liability Exclusion
The Company does not accept any liability for your use of the Application. Your use of the Application is at your own risk. The Application is provided on an “as is” and “as available” basis, without any representations, warranties or conditions of any kind, whether express or implied, and including without limitation implied representations, warranties or conditions of title, non-infringement, merchantability, fitness for a particular purpose, performance, durability, availability, timeliness, accuracy, or completeness, all of which are hereby disclaimed by Company to the fullest extent permitted by law. The Company will not under any circumstances be liable to you or any other person for any loss or damage arising from, connected with, or relating to the use of the Application by you or any other person.
7. Licensed/Permitted Uses
Subject to the provisions of this Agreement, the Company hereby grants to you a non-exclusive, personal, business non-sub licensable, non-transferable, restricted and limited license during the term of this Agreement to download and install the Application and to use that installed copy of the Application for the sole purpose of your own personal use. [Consent to Collection and Use of Information].
In order to access and use the features of the Application, you acknowledge and agree that you will have to provide the Company with your mobile phone number, other personal information, and/or information related to accounts operated by third-parties. You expressly acknowledge and agree that in order to provide the Application, the Company may periodically access your contact list and/or mobile phone book on your mobile device to find and keep track of mobile phone numbers and other information related to the contacts in the contact list and/or phone book that may be publicly accessible. You agree that when you create an account associated with the Application, the information you provide must be accurate and complete information.
You hereby give your express consent to the Company to access and store your contact list and/or mobile phone book for contact information that is publicly accessible in order for the Company to provide and for you to use the Application. [The Company does not collect names emails, addresses or other contact information from its users’ mobile address book or contact lists other than mobile phone numbers—the Company mobile application will associate whatever name the user has assigned to the mobile telephone number in his/her mobile address book or contact list — and this occurs dynamically on the mobile device itself and not on Company servers and is not transmitted to the Company.
You further agree the Company may collect and use technical data and related information, including but not limited to technical information about your mobile device, system, application software, and peripherals, that is gathered periodically to facilitate the provision of software updates, product support and other services to you (if any) related to the Application. The Company may use this information as long as it is in any form that does not personally identify you.
8. Spam or Autobots
You agree not to use or launch any automated system, including without limitation, “robots”, “spiders”, “offline readers”, etc. or “load testers”, that accesses the Application in a manner that sends more requests to the Application servers in a given period of time than a human can reasonably produce and you are forbidden from ripping the content unless specifically allowed. Any efforts to reverse-engineer the Company’s system, protocols, or explore outside the boundaries of the normal requests made by users of the Application. You agree not to harvest or collect any personally identifiable information from the Application, nor to use the communication systems provided by the Application for any commercial solicitation or spam purposes. You agree not to spam, or solicit for commercial purposes, any users of the Application.
9. Data Charges
To the extent the Application requires, or permits utilization of, wireless or cellular data access, you shall be independently responsible for securing the necessary data access service. The provider of such access to your mobile device may charge you data access fees in connection with use of the Application. You are solely responsible for all such charges payable to third parties.
10. Intellectual Property
You agree not to engage in the use, copying, or distribution of the Application other than expressly permitted herein.
The entire contents of this Application (including all information, text, displays, images and audio and any software made available through or in connection with the Application) and the design, selection and arrangement thereof, are proprietary to the Company or its affiliates or licensors and are protected by Canadian and international laws regarding patents, copyrights, trademarks, trade secrets and other proprietary rights. Neither the title nor any intellectual property rights to any material in this Application are transferred to you, but remain with the Company or the applicable owner of such content. Except as expressly authorized by the Company in writing, you may not reproduce, sublicense, distribute, sell or exploit for any commercial purposes (a) any part of this Application, or (b) access to this Application. The Company name and logos, and all related names, logos, product and service names, designs and slogans contained in the Application are trademarks of the Company, its affiliates, licensors, suppliers, distributors and/or contractors unless otherwise clearly specified in writing. You may not use such marks without the prior written permission of the Company. All other names, brands and marks are used for identification purposes only and may be the trademarks of their respective owners.
11. User Account
When registering as a user of the Application, you will be required to create an account (“User Account”). You agree that any and all information provided by you in relation to the User Account is accurate, complete, current at all times, and does not infringe on any copyrights or other intellectual property rights. Failure to do so constitutes a breach of this EULA which may result in the immediate termination of your User Account.
The Application allows users to submit status information, profile photos, location information and other information, as well as the automatic submission of the user’s live status which forms the user’s User Account. The User Account may be hosted, shared, and/or published as part of the Application, and may be visible to other users of the Application who have your contact information in their mobile or computer device and whom you have not expressly blocked. You acknowledge and agree that your User Account may be globally viewed by other Application users that have your contact information, and submission or posting of status messages or profile photos that you do not want to be seen globally will be omitted by you at your own discretion. As clarified in the following section, you retain your ownership rights in the information in your User Account. You understand that whether or not such User Account information is published, the Company does not guarantee any confidentiality with respect to any submissions.
You shall be solely responsible for your own User Account information and the consequences of posting or publishing them. Because the Application is only acting as a repository of data, user submitted User Account information do not necessarily represent the views or opinions of the Application or Company, and the Application and Company makes no guarantees as to the validity, accuracy or legal status of any User Account information. In connection with User Account information, you affirm, represent, and/or warrant that: (i) you own or have the necessary licenses, rights, consents, and permissions to use and authorize the Company to use all patent, trademark, trade secret, copyright or other proprietary rights in and to any and all User Account information to enable inclusion and use of the User Account information in the manner contemplated by the Application and this EULA; and (ii) you have the written consent, release, and/or permission of each and every identifiable individual person in the User Account information to use the name or likeness of each and every such identifiable individual person to enable inclusion and use of the User Account information in the manner contemplated by the Application and this EULA. By submitting the Profile Information to the Company, you hereby grant the Company a worldwide, non-exclusive, royalty-free, sublicenseable and transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform the User Account information in connection with the Application and the Company’s (and its successor’s) business, including without limitation for promoting and redistributing part or all of the Application (and derivative works thereof) in any media formats and through any media channels. You also hereby grant each subscriber to your status on the Application a non-exclusive license to access your Profile Information through the Application. The foregoing license granted by you terminates once you remove or delete your User Account from the Application.
In connection with User Account information, you further agree that you will not: (i) submit material that is copyrighted, protected by trade secret or otherwise subject to third party proprietary rights, including privacy and publicity rights, unless you are the owner of such rights or have permission from their rightful owner to post the material and to grant the Company all of the license rights granted herein; (ii) publish falsehoods or misrepresentations that could damage the Company or any third party; (iii) submit material that is unlawful, obscene, defamatory, libelous, threatening, harassing, hateful, racially or ethnically offensive, or encourages conduct that would be considered a criminal offense, give rise to civil liability, violate any law, or is otherwise inappropriate; (iv) post advertisements or solicitations of business; (v) impersonate another person; (vi) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (vii) interfere with or disrupt the integrity or performance of the Application or the data contained therein; or (viii) attempt to gain unauthorized access to the Application or its related systems or networks or (ix) promote sexual or porn materials.
The Company is merely a passive conduit for the distribution of Profile Information and does not endorse information or any opinion, recommendation, or advice expressed therein, and the Company expressly disclaims any and all liability in connection with the Profile Information.
Adult content must be identified as such. The Company reserves all rights to block or remove communications or materials that the Company determines to be (a) abusive, defamatory, or obscene; (b) fraudulent deceptive, or misleading; (c) in violation of a copyright, trademark, or, other intellectual property right of another or; (d) offensive or otherwise unacceptable to the Company, without prior notice and at its sole discretion. Functionality of Application
The Company and its licensors do not warrant that (a) the Application will function uninterrupted, securely, or will be available at any particular time or location; (b) any errors or defects will be corrected; (c) the Application is free of viruses and other harmful components; and (d) the results of using the Application will be to the satisfaction of your requirements.
THE APPLICATION IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. NEITHER THE COMPANY, ITS LICENSORS OR CONTRACTORS, NOR ANY PERSON ASSOCIATED WITH THE COMPANY MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE QUALITY OR AVAILABILITY OF THE APPLICATION. SPECIFICALLY, BUT WITHOUT LIMITING THE FOREGOING, NEITHER THE COMPANY, ITS LICENSORS OR CONTRACTORS, NOR ANYONE ASSOCIATED WITH THE COMPANY WARRANTS OR REPRESENTS THAT THE APPLICATION WILL BE RELIABLE, ERROR-FREE OR UNINTERRUPTED; THAT DEFECTS WILL BE CORRECTED; THAT THE APPLICATION IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; OR THAT THE APPLICATION WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS. THE COMPANY AND ITS LICENSORS AND CONTRACTORS DISCLAIM ALL WARRANTIES OR CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT.
IN NO EVENT WILL THE COMPANY OR ITS LICENSORS OR CONTRACTORS OR THIRD PARTY VENDORS BE LIABLE FOR ANY DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF, OR INABILITY TO USE, THE SERVICE, THE CONTENT, ANY OTHER SERVICES PROVIDED, WHETHER BY THE COMPANY OR A THIRD PARTY, INCLUDING ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING, BUT NOT LIMITED TO, PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, DEATH, LOST PROFITS, ANY LOSS OF GOODWILL OR BUSINESS REPUTATION, ANY LOSS OF DATA SUFFERED, COST OF PROCUREMENT OF SUBSTITUTE OF GOODS OR SERVICES, OR OTHER INTANGIBLE LOSS; OR DAMAGES RESULTING FROM DELAY, INTERRUPTION IN SERVICE, VIRUSES, DELETION OF FILES OR ELECTRONIC COMMUNICATIONS, OR ERRORS, OMISSIONS OR OTHER INACCURACIES IN THE SERVICE OR THE CONTENT SUSTAINED BY ANY PERSON OR ENTITY, WHETHER OR NOT THERE IS NEGLIGENCE BY THE COMPANY AND WHETHER OR NOT THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH DAMAGES.
IN NO EVENT WILL THE COLLECTIVE LIABILITY OF THE COMPANY AND ITS SUBSIDIARIES, AFFILIATES, LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS, AND DIRECTORS TO ANY PARTY (REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE) EXCEED THE GREATER OF $100 OR THE AMOUNT YOU HAVE PAID TO THE COMPANY FOR THE SERVICE GIVING RISE TO THE CLAIM IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE OCCURRENCE OF THE CLAIM OR CAUSE OR ACTION.
THE COMPANY HOLDS THE PROVISIONS OF THIS SECTION AND SECTION 13 THAT ARE FOR THE BENEFIT OF THIRD PARTIES IN TRUST FOR EACH OF THOSE PARTIES AS THIRD PARTY BENEFICIARIES UNDER THIS AGREEMENT.
You agree to indemnify and hold harmless the Company and its partners, affiliates, directors, officers, subsidiaries, employees, agents, suppliers, distributors, third party information providers, licensors, licensees, distributors, contractors and others involved in the Application from and against any and all liabilities, expenses, damages and costs, including reasonable attorneys’ fees and other legal expenses, arising from any violation by you of this EULA or your use of the Application.
14. Required Age of User
You affirm that you have reached the age of majority and can form legally binding contracts under the applicable law. The Application is not intended for individuals under the age of majority.
15. Assignment of Rights
The EULA, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by the Company without any restriction or your consent.
16. Jurisdiction of dispute
This EULA, your use of the Application, and all related matters are governed solely by the laws of the Province of Ontario, Canada and applicable federal laws of Canada, excluding any rules of private international law or the conflict of laws which would lead to the application of any other laws. Any dispute between the Company and you or any other person arising from, connected with or relating to the Application, this EULA or any related matters must be resolved before the Courts of the Province of Ontario sitting in the City of Ottawa, and you hereby irrevocably submit and attorn to the original and exclusive jurisdiction of those Courts in respect of any such dispute or matter. Any claim or cause of action you may have arising from, connected with, or relating to your use of the Application, this EULA, or any related matters must be commenced in a court of competent jurisdiction in the Province of Ontario within six (6) months after the claim or cause of action arises, after which time the claim or cause of action is forever barred.
17. Entire Agreement Clause
Your license to use the Application pursuant to this EULA is effective until terminated. The Company reserves the right, in its sole discretion, to terminate your access to any or all of the Application or any portion thereof at any time, without notice. Upon termination, you shall cease to use the Application in its entirety and destroy the Application and related documentation and all copies thereof. The Company may terminate your right to access the Application without any refund obligation, notice, or other liability if you fail to comply with the terms of this EULA.