For the purposes of the EULA, the “AppsGeyser Product” shall mean the Internet website located at http://www.AppsGeyser.com/, software tools, software development kit (SDK), and other related materials, products, and services maintained by or on behalf of ToolbarStudio, Inc., a Virginia corporation (“AppsGeyser”) and which was made available to the licensor hereunder (the “Company”) and which served as the basis for the Company’s application (the “App”) and which is made available to the end user hereunder (“End User” or “You”).
1. End User Content. All Content added, uploaded, submitted, distributed, posted to, or created using the App by End Users (collectively “End User Content”), whether publicly posted or privately transmitted, is the sole responsibility of the person who originated such End User Content. You represent that all End User Content provided by you is accurate, complete, up-to-date, and in compliance with all applicable laws, rules and regulations. Without limiting the generality of the foregoing, you represent that any End User Content you create using tools accessible on the App does not infringe upon the intellectual property rights of any third party and is otherwise in compliance with all applicable laws, rules and regulations. You acknowledge that all content, including End User Content, accessed by you using the App is at your own risk and you will be solely responsible for any damage or loss to you or any other party resulting therefrom. We do not guarantee that any content you access on or through the App is or will continue to be accurate. You are solely responsible for your interaction with other users of the App. You agree that AppsGeyser is not responsible or liable for the conduct of any End User. AppsGeyser reserves the right, but has no obligation, to monitor or become involved in disputes between you and other End Users.
2. Proprietary Rights and Non-Disclosure.
2.1. Ownership Rights. You agree that the AppsGeyser Product and the authorship, systems, ideas, methods of operation, documentation and other information contained in the AppsGeyser Product, are proprietary intellectual properties and/or the valuable trade secrets of AppsGeyser or its suppliers and/or AppsGeyser’s and are protected by civil and criminal law, and by the law of copyright, trade secret, trademark and patent of the United States, other countries and international treaties. AppsGeyser and/or its suppliers own and retain all right, title, and interest in and to the AppsGeyser Product, including without limitations any error corrections, enhancements or other modifications to the Product, whether made by AppsGeyser or any third party, and all copyrights, patents, trade secret rights, trademarks, and other intellectual property rights therein. Your possession, installation or use of the AppsGeyser Product and the App does not transfer to you any title to the intellectual property in the AppsGeyser Product and the App, and you will not acquire any rights to the AppsGeyser Product and the App except as expressly set forth in this EULA. All copies of the AppsGeyser Product and the App made hereunder must contain the same proprietary notices that appear on and in the Product. Except as stated herein, this EULA does not grant you any intellectual property rights in the AppsGeyser Product and the App and you acknowledge that the license, as granted under this EULA only provides you with a right of limited use under the terms and conditions of this EULA.
2.2. Source Code. You acknowledge that the source code for the AppsGeyser Product is proprietary to AppsGeyser and constitutes trade secret of AppsGeyser. You agree not to modify, adapt, translate, reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the AppsGeyser Product in any way.
2.3. No Modification. Other than modifying End User Content as provided herein, you agree not to modify or alter the AppsGeyser Product in any way. You may not remove or alter any copyright notices or other proprietary notices on any copies of the AppsGeyser Product or hinder, limit, or block any of the services by AppsGeyser provided through the App.
2.4. Prohibited Uses. You agree that you will not:
a). Engage in any act that AppsGeyser deems in its reasonable discretion to be in conflict with the spirit or intended use of the products and related service;
b). Make improper Use of AppsGeyser’s Product;
c). Use the AppsGeyser Product and App, intentionally or unintentionally, in connection with any violation of any applicable law or regulation, or do anything that promotes the violation of any applicable law or regulation;
d). Institute, assist or become involved in any type of attack, including without limitation distribution of a virus, denial of service attacks upon the AppsGeyser Product and the App, or other attempts to disrupt the related service;
e). Make available through the App any material or information that infringes any copyright, trademark, patent, trade secret, right of privacy, right of publicity, or other right of any person or entity or impersonates any other person;
f). Use, facilitate, create, or maintain any unauthorized connection with the AppsGeyser Product, including without limitation (1) any connection to any unauthorized server that emulates, or attempts to emulate any part of the AppsGeyser Product; or (2) any connection using programs, tools, or software not expressly approved by AppsGeyser;
2.5. Information Relating to Children. The Children's Online Privacy Protection Act (“COPPA”) was passed by the U.S. Congress in November 1998. COPPA provides parents with specific rights regarding their children's privacy. For additional information and resources on COPPA, please visit the Federal Trade Commission Web site at http://www.ftc.gov/. The AppsGeyser Product is not directed at children under 13 years of age and, therefore, COPPA does not apply. However, we recognize that children under the age of 13 may access the AppsGeyser Product. The collection of information from such users is covered above. Parents and legal Guardians may request us to review, delete, or stop the collection of the personally identifiable information of their child. You may do so by contacting AppsGeyser and/or the Company.
2.6. OFAC. You or your representatives agree that You are not nor will be at any time in the future (i) located in a country embargoed by the United States, (ii) the target of any sanctions program that is established by Executive Order of the President or published by the Office of Foreign Assets Control, U.S. Department of the Treasury (“OFAC”); (iii) designated by the President or OFAC pursuant to the Trading with the Enemy Act, 50 U.S.C. App. § 5, the International Emergency Economic Powers Act, 50 U.S.C. §§ 1701-06, the Patriot Act, Public Law 107-56 or any Executive Order of the President issued pursuant to such statutes; or (iv) named on the following list that is published by OFAC: “List of Specially Designated Nationals and Blocked Persons”; (v) or if the undersigned is an individual or a company that is on the U.S. Treasury Department’s list of Specially Designated Nationals (SDN) or (vi) on the United States Commerce Department’s Table of Deny Orders.
3. Legal Purpose. You agree to use the AppsGeyser Product and the App or any services provided hereunder only for purposes permitted by this EULA and applicable terms of service as well as any applicable law, regulation or generally accepted practices or guidelines in the relevant jurisdictions. APPSGEYSER IS NOT RESPONSIBLE FOR ANY VIOLATION OF APPLICABLE LAWS, RULES, OR REGULATIONS COMMITTED BY YOU OR A THIRD PARTY AT YOUR BEHEST. IT IS YOUR RESPONSIBILITY TO ENSURE THAT YOUR USE OF APPSGEYSER PRODUCT AND ANY SERVICES PROVIDED HEREUNDER DOES NOT CONTRAVENE APPLICABLE LAWS, RULES, OR REGULATIONS. Specifically, you agree and warrant that in using the AppsGeyser Product and the App, your actions do not contravene the laws, rules, or regulations of (1) the country, state, or locality where you reside, or (2) the country, state, or locality where AppsGeyser is located or operates.
4. Statistics. You acknowledge and agree that AppsGeyser may collect, analyze and receive anonymous information about your computer, AppsGeyser Product and the App you used or searched for, websites you visited, and pages viewed to facilitate your use of the App and related services.
5. Restrictions; Indemnification.
5.1. Prohibitions. Except as otherwise specifically provided for in this EULA, you may not use, copy, emulate, clone, rent, lease, sell, modify, decompile, disassemble, otherwise reverse engineer, or otherwise reduce any party of the AppsGeyser Product to human readable form or transfer the licensed AppsGeyser Product, or any subset of the licensed AppsGeyser Product, nor permit any third party to do so, except to the extent the foregoing restriction is expressly prohibited by applicable law. You may not modify, or create derivative works based upon the AppsGeyser Product in whole or in part. Neither AppsGeyser Product’s binary code nor source may be used or reverse engineered to re-create the program algorithm, which is proprietary, without written permission of AppsGeyser. All rights not expressly granted here are reserved by AppsGeyser and/or its suppliers, as applicable.
5.2. Proprietary Notices and Copies. You may not remove any proprietary notices or labels on the App.
5.3. No Transfer of Rights. Except as otherwise specifically provided herein, you may not transfer or assign any of the rights granted to you under this EULA or any of your obligations pursuant hereto.
5.4. Compliance with Law. You agree that in operating the App and in using any report or information derived as a result of operating the App, you will comply with all applicable international, national, state, regional and local laws and regulations, including, without limitation, privacy, copyright, export control and obscenity law.
5.5. Indemnification. You agree to indemnify, defend and hold harmless AppsGeyser and its respective officers, directors, employees, agents, successors, and assigns from any and all losses, liabilities, damages and claims, and all related expenses (including reasonable legal fees and disbursements and costs of investigation, litigation, settlement, judgment, interest and penalties) and costs related to, arising from, or in connection with any third-party claim related to, arising from, or in connection with the actual or alleged: (i) infringement by End User of any third-party intellectual property and/or proprietary right, including, but not limited to, patent, trademark, copyright, trade secret, publicity and/or privacy, (ii) personal injury (including death) or property damage due to the gross negligence or intentional misconduct of End User, and/or (iii) breach by End User of any of its representations, warranties, obligations, and/or covenants set forth herein.
5.6. Additional Protection Measures. Solely for the purpose of preventing unlicensed use of the AppsGeyser Product, the AppsGeyser Product may install on your computer technological measures that are designed to prevent unlicensed use, and AppsGeyser may use this technology to confirm that you have a licensed copy of the AppsGeyser Product.
6. NO WARRANTY AND DISCLAIMER.
6.1. NO IMPLIED OR OTHER WARRANTIES. EXCEPT FOR ANY WARRANTY, CONDITION, REPRESENTATION OR TERM TO THE EXTENT TO WHICH THE SAME CANNOT OR MAY NOT BE EXCLUDED OR LIMITED BY LAW APPLICABLE TO YOU IN YOUR JURISDICTION, THE PRODUCT IS PROVIDED “AS-IS” WITHOUT ANY WARRANTY WHATSOEVER AND APPSGEYSER MAKES NO PROMISES, REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESSED OR IMPLIED, WHETHER BY STATUTE, COMMON LAW, CUSTOM, USAGE OR OTHERWISE, REGARDING OR RELATING TO THE APPSGEYSER PRODUCT OR CONTENT THEREIN OR TO ANY OTHER MATERIAL FURNISHED OR PROVIDED TO YOU PURSUANT TO THIS EULA OR OTHERWISE. YOU ASSUME ALL RISKS AND RESPONSIBILITIES FOR SELECTION OF THE APPSGEYSER PRODUCT TO ACHIEVE YOUR INTENDED RESULTS, AND FOR THE INSTALLATION OF, USE OF, AND RESULTS OBTAINED FROM THE APPSGEYSER PRODUCT. APPSGEYSER MAKES NO WARRANTY THAT THE APPSGEYSER PRODUCT WILL BE ERROR FREE OR FREE FROM INTERRUPTION OR FAILURE, OR THAT IT IS COMPATIBLE WITH ANY PARTICULAR HARDWARE OR SOFTWARE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, APPSGEYSER DISCLAIMS ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, INTEGRATION, SATISFACTORY QUALITY OR FITNESS FOR ANY PARTICULAR PURPOSE WITH RESPECT TO THE PRODUCT AND THE ACCOMPANYING WRITTEN MATERIALS OR THE USE THEREOF. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU. YOU HEREBY ACKNOWLEDGE THAT THE PRODUCT MAY NOT BE OR BECOME AVAILABLE DUE TO ANY NUMBER OF FACTORS INCLUDING WITHOUT LIMITATION PERIODIC SYSTEM MAINTENANCE, SCHEDULED OR UNSCHEDULED, ACTS OF GOD, TECHNICAL FAILURE OF THE SOFTWARE, TELECOMMUNICATIONS INFRASTRUCTURE, OR DELAY OR DISRUPTION ATTRIBUTABLE TO VIRUSES, DENIAL OF SERVICE ATTACKS, INCREASED OR FLUCTUATING DEMAND, AND ACTIONS AND OMISSIONS OF THIRD PARTIES. THEREFORE, APPSGEYSER EXPRESSLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY REGARDING SYSTEM AND/OR SOFTWARE AVAILABILITY, ACCESSIBILITY, OR PERFORMANCE. APPSGEYSER DISCLAIMS ANY AND ALL LIABILITY FOR THE LOSS OF DATA DURING ANY COMMUNICATIONS AND ANY LIABILITY ARISING FROM OR RELATED TO ANY FAILURE BY APPSGEYSER TO TRANSMIT ACCURATE OR COMPLETE INFORMATION TO YOU.
6.2. LIMITED LIABILITY; NO LIABILITY FOR CONSEQUENTIAL DAMAGES. YOU ASSUME THE ENTIRE COST OF ANY DAMAGE RESULTING FROM YOUR USE OF THE APPSGEYSER PRODUCT AND THE INFORMATION CONTAINED IN OR COMPILED BY THE APPSGEYSER PRODUCT, AND THE INTERACTION (OR FAILURE TO INTERACT PROPERLY) WITH ANY OTHER HARDWARE OR SOFTWARE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL APPSGEYSER OR ITS SUPPLIERS BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, LOSS OF GOODWILL, WORK STOPPAGE, HARDWARE OR SOFTWARE DISRUPTION IMPAIRMENT OR FAILURE, REPAIR COSTS, TIME VALUE OR OTHER PECUNIARY LOSS) ARISING OUT OF THE USE OR INABILITY TO USE THE APPSGEYSER PRODUCT, OR THE INCOMPATIBILITY OF THE APPSGEYSER PRODUCT WITH ANY HARDWARE, SOFTWARE OR USAGE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL APPSGEYSER’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES IN ANY ONE OR MORE CAUSE OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE EXCEED THE AMOUNT PAID BY YOU FOR THE APPSGEYSER PRODUCT. THIS LIMITATION OF LIABILITY SHALL NOT APPLY TO LIABILITY FOR DEATH OR PERSONAL INJURY TO THE EXTENT THAT APPLICABLE LAW PROHIBITS SUCH LIMITATION. FURTHERMORE, BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
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