ItsOn, Inc. (“ItsOn”) provides this client software application (along with any updates, the “Software”, and collectively with ItsOn’s related services, the “Service”) for your personal use only, subject to this EULA, as well as ItsOn Terms of Service (the “Terms”), which are incorporated by reference herein. This EULA and the Terms, as modified from time to time, governs your use of the Service.
By accessing or using the Software or the Service (or, in the event the Software did not come preinstalled on your device, by downloading or installing the Software or any updates), you agree that you have read, understood, and agree to be bound by this EULA and the Terms. If you do not agree, you may not use the Service.
You acknowledge and agree that, as provided in greater detail in the EULA:
1. The Software is licensed, not sold to you, and that you may use the Service only as set forth in this EULA.
2. The use and operation of your device, the Software and the Service may be subject to third party terms of service and fees, including without limitation terms of service and fees associated with any applicable mobile network operator on whose network you access the Service (the “Carrier”), and you are solely responsible for compliance with any and all applicable third party terms and payment of any and all third party fees.
3. The Service is provided “as is” without warranties of any kind and ItsOn’s liability to you is limited.
4. The Software requires access to the following services on your mobile device: UDID or other applicable device id, phone state and identity, internet, SD card contents, SMS/MMS messaging, contacts, native dialer, and location.
Subject to your complete and ongoing compliance with all the terms and conditions set forth in this EULA and the Terms (including without limitation payment of any applicable fees), ItsOn grants you (1) a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to use one copy of the Software (a) downloaded directly from ItsOn or from a legitimate marketplace or (b) pre-installed on a compatible device you own or control; in each case, solely in object code format and solely for your personal use for lawful purposes, on a single compatible mobile device that you own or control, and (2) permission to access and use the Service for your personal use for lawful purposes, solely through the use of a licensed copy of the Software. You may not reproduce, distribute, publicly display, or publicly perform the Software, or use the Software except as expressly set forth herein. Except and solely to the extent such a restriction is impermissible under applicable law, you may not (a) decompile, reverse engineer, or otherwise access or attempt to access the source code for the Software, or make or attempt to make any modification to the Software or any portion thereof; or (b) interfere with or circumvent any feature of the Software or the Service, including without limitation any security, or access control mechanism, or “game” or otherwise exploit the system for the purpose of eliminating, reducing, or otherwise circumventing fees that would otherwise be payable for your data and/or voice service, or attempt to do any of the foregoing. The term Software, as used herein, includes any update or modification to the Software made available to you by ItsOn (unless provided with separate terms). If you are prohibited under applicable law from using the Software or the Service, you may not use them. The Service uses public Internet lines and the public switched telephone network, there may be disruptions to the Service which will interfere with the quality of your experience.
USE OF THE SOFTWARE AND THE SERVICE – TERMS AND FEES
You are solely responsible for your use of the Software and the Service on your device, including without limitation compliance with these and any applicable third party terms, and payment of any applicable fees, including third party fees. Without limiting the foregoing, you are solely responsible to pay all applicable fees associated with any voice and/or data service plan you select and provision for your device using the Service. Accordingly, you should use care in selecting and provisioning service plans. If your device is lost or stolen, you must notify ItsOn immediately to suspend services.
ItsOn reserves the right, in its sole discretion, to change, modify, add, or remove portions of this EULA on a going forward basis at any time by making such modified EULA available to you on the ItsOn website or through the Software, or both. The EULA will be identified as of the most recent date of revision and will be effective immediately upon posting, except as follows: in the event any such modification materially alters your rights hereunder, we will attempt to notify you directly through a message sent to the email address you have provided to ItsOn, if any, or a pop-up window or other notification when you access or use the Service, b) such materially modified EULA will be effective upon the earlier of your use of the Service with actual knowledge of the changes or thirty days after the changes are made available to you, and c) any dispute between you and ItsOn will be resolved in accordance with the EULA and Terms in place at the time such dispute arose. Your use of the Service after modifications to the EULA become effective constitutes your binding acceptance of such changes. If you are dissatisfied with the terms of the EULA, then you agree that your sole and exclusive remedy is to discontinue any use of the Service.
THIRD PARTY SOFTWARE
The Software may be distributed alongside certain third party software (“Third Party Software”) provided under separate license terms (the “Third Party Terms”). In addition to the Third Party Software installed on your device by the original equipment manufacturer (see applicable documentation for more information), information regarding Third Party Software provided to you by ItsOn is forth in more detail on the ItsOn web site at http://www.itsoninc.com/thirdpartysoftware/ and through the Software’s help menu. Your use of the Third Party Software in conjunction with the Software in a manner consistent with the terms of this EULA is permitted, however, you may have broader rights under the applicable Third Party Terms and nothing in this Agreement is intended to impose further restrictions on your use of the Third Party Software.
Some of the features of the Service may enable ItsOn to access your location, including to tailor your experience with the Service based on your location (“Location-based Services”). In order to use Location-based Services, you must allow ItsOn access to your localized position through your mobile phone, which ItsOn may accomplish through a variety of means, including GPS location (if available), , Geo-IP, or other available means. If you choose to disable location-based services on your device, you may not be able to utilize certain features of the Service. By enabling location features on your device, you agree and acknowledge that (i) device data we collect from you is directly relevant to your use of the Service and (ii) ItsOn may provide Location-based Services related to your then-current location. PLEASE NOTE THAT LOCATION DATA MAY NOT BE ACCURATE, AND ITSON DISCLAIMS ANY AND ALL WARRANTIES RELATED TO LOCATION BASED SERVICES.
RESERVATION OF RIGHTS
The Service, including the Software, is owned and operated by ItsOn and / or its third party suppliers and licensors. The software, content, visual interfaces, interactive features, information, graphics, design, compilation, computer code, products, software, services, and all other elements of the Software and the Service (the “ItsOn Materials”), are protected by copyright, trade dress, patent, and trademark laws of the United States and other jurisdictions, international conventions, and all other relevant intellectual property and proprietary rights, and applicable laws. As between you and ItsOn, all ItsOn Materials, including intellectual property rights therein and thereto, are the sole and exclusive property of ItsOn or its subsidiaries or affiliated companies and/or third-party licensors. You may not to sell, license, distribute, copy, modify, publicly perform or display, transmit, publish, edit, adapt, create derivative works from, or make any use of the ItsOn Materials. ItsOn reserves all rights not expressly granted in this EULA. You shall not acquire any right, title or interest to the ItsOn Materials, whether by implication, estoppel, or otherwise, except for the limited rights set forth in this EULA.
TERM AND TERMINATION
This EULA will remain in effect until terminated. The EULA, and your rights and licenses hereunder, will terminate immediately upon your breach of the EULA, or any termination or suspension of your right to use the Service, as provided in the Terms. Upon any termination of this EULA, you must immediately cease use of the Software. ItsOn may terminate this EULA at any time for any reason, including without limitation any actual or suspected misuse or abuse by you of the Software or the Service to “game” or otherwise exploit the system for the purpose of eliminating, reducing, or otherwise circumventing fees that would otherwise be payable for your data and/or voice service. Sections entitled Reservation of Rights, Term and Termination, Warranty Disclaimer and Limitation of Liability, Dispute Resolution, and Miscellaneous shall survive any termination of this EULA.
WARRANTY DISCLAIMER AND LIMITATION OF LIABILITY
THE SOFTWARE AND THE SERVICE ARE PROVIDED ON AN “AS IS” BASIS, WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ITSON DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, TITLE, QUALITY, AND NONINFRINGEMENT. ITSON EXPRESSLY DISCLAIMS ANY WARRANTIES OF ANY KIND WITH RESPECT TO THE ACCURACY OR FUNCTIONALITY OF LOCATION BASED SERVICES, AND WITH RESPCT TO THE ACCURACY, VALIDITY, OR COMPLETENESS OF ANY INFORMATION OR FEATURES AVAILABLE THROUGH THE SERVICE, OR THE QUALITY OR CONSISTENCY OF THE SERVICE. ITSON FURTHER DISCLAIMS ANY WARRANTY OR LIABILITY RELATED TO CARRIER’S NETWORK OR SERVICE. UNDER NO CIRCUMSTANCES WILL ITSON BE LIABLE FOR ANY CONSEQUENTIAL, SPECIAL, INDIRECT, INCIDENTAL OR PUNITIVE DAMAGES WHATSOEVER ARISING OUT OF THE USE OR INABILITY TO USE THE SOFTWARE OR THE SERVICE, EVEN IF ITSON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. IN NO EVENT WILL ITSON’S AGGREGATE LIABILITY FOR DAMAGES ARISING OUT OF THIS EULA OR THE TERMS EXCEED THE GREATER OF AMOUNTS PAID BY YOU FOR THE SOFTWARE OR FIFTY DOLLARS ($50 USD). SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. IN SUCH AN EVENT THE ABOVE LIMITATIONS WILL BE ENFORCED TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW.
You agree to indemnify, defend and hold ItsOn and its affiliates, officers, directors, suppliers, and customers harmless from and against any and all liability and costs, including reasonable attorneys’ fees incurred by such parties, in connection with or arising out of your use or misuse of the Service, your violation of this EULA, any applicable law or regulation, or the rights of any third parties related to the use of the Service.
This EULA will be governed by the laws of California, without respect to choice of law provisions. Any claim or dispute arising out of or in connection with this EULA must be resolved in accordance with the Terms, which you agree and understand requires us to resolve most of our disputes by binding arbitration, and that by using the Software or the Service, you are waiving your right to bring or participate in a class action suit against ItsOn.
This EULA and the Terms constitute the entire agreement between you and ItsOn, and supersedes any and all prior agreements, negotiations, or other communications between you and ItsOn, whether oral or written, with respect to your use of the Software, and, except cannot be modified except as provided herein. In the event that any provision of this EULA is held to be invalid or unenforceable, then: (a) such provision shall be deemed reformed to the extent strictly necessary to render such provision valid and enforceable, or if not capable of such reformation shall be deemed severed from this EULA; and (b) the validity and enforceability of all of the other provisions hereof, shall in no way be affected or impaired thereby. You may not assign this EULA without the prior written consent of ItsOn, whether expressly, by operation of law, or otherwise, including in connection with a merger or change of control, and any such attempted assignment shall be void and of no effect. ItsOn may assign this EULA without restriction. Subject to the foregoing, this EULA shall be binding on the parties and their respective heirs, successors, and permitted assigns. You acknowledge and understand that if ItsOn is unable to provide the Service as a result of a force majeure event ItsOn will not be in breach of this EULA. A force majeure event means any event beyond the control of ItsOn. The failure to exercise, or delay in exercising, a right, power or remedy provided in this EULA or by law shall not constitute a waiver of that right, power or remedy. ItsOn’s waiver of any obligation or breach of this EULA shall not operate as a waiver of any other obligation or subsequent breach of the EULA. The English language version of this EULA shall be the official and controlling version, and any translation provided is solely for convenience.
The Software and the Service are offered by ItsOn, Inc.: 3 Lagoon Drive, Suite 230 Redwood City, CA 94065; email@example.com.