You agree to be bound by these Terms of Service (these “Terms”) of www.fonedog.com (the “Site”), owned and operated by FoneDog Ltd., a Delaware corporation (“we” or “us”) any time you use or access the Site, our software (“Software”) and any of our other products or services located on the Site or through the Software (together with the Site and the Software referred to herein as the “Services”). Your use of the Services is subject to your acceptance and compliance with these Terms."Use" or "using" means to access, install, download, copy or otherwise benefit from using the functionality of the Software in accordance with the documentation. If you do not agree to these Terms, do not use the Services. Each time you access or use the Services, the current version of these Terms will apply. These Terms will always be available on the Site.
SOFTWARE AND LICENSES
When used in this Terms, the following terms shall have the respective meanings indicated, such meanings to be applicable to both the singular and plural forms of the terms defined:
"Software" means all of the contents of the downloads, files, disk(s), CD-ROM(s) or other media containing FoneDog Software with which this Terms is applicable, including but not limited to (A) registration information, i.e. license key which is unique for Your registration name; (B) related explanatory written materials or files ("Documentation"); and (C) Software setup files and code samples (if any); and (D) any upgrades, modified versions, updates, additions, and copies of the Software, if any, provided to You by Us now or in the future (collectively, "Updates").
"Trial Version" means a version of the Software to be used only to review, demonstrate and evaluate the Software. For example, FoneDog iOS Toolkit Trial Version allows You to scan and preview some of your deleted files on your iPhone in 30 days. Any functional peculiarities, limitations or problems present in the Trial Version are and will not be a basis or reason for You to obtain a refund of a purchased license. That is, if a Trial Version is a recovering limited fully functional version, allowing You to see and test all its features, Your refund request will be declined if based on the absence of some certain feature or if some feature doesn't work as You expected it to work. All other refund cases are governed by and subject to the FoneDog Refund Policy.
FoneDog as the licensor, grants You as the licensee, a non-exclusive right to use the Software under these Terms. The Software is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. FoneDog reserves all rights not expressly granted to You. FoneDog retains the ownership of the copyright in and to the Software.
PERMITTED USES AND RESTRICTIONS
Subject to Your compliance with this Terms, FoneDog grants You a non-exclusive, limited, revocable, non-transferable license to use the Software solely as follows:
You may not assign, rent, lease, lend, sell, redistribute or sublicense this Software, except as provided herein or with our express consent and agreement. You may, however, make a one-time permanent transfer of all of Your license rights to the Software (in its original form as provided) to another party, provided We are notified of and approve the transfer and the assignee agrees to be bound by this Terms.
This Terms is effective until terminated. Your rights under this License will terminate by Us automatically without notice if You fail to comply with any provisions of this Terms and or otherwise fail to pay the fees and charges, if any, payable to Us and associated with Your use of the Software. Upon the termination of these Terms, You shall cease all use and destroy, remove or delete all copies, full or partial, of the Software on Your computer or device and otherwise in Your possession or control. Any term or condition of this Terms which by its plain meaning shall be and must be performed after termination, shall survive termination.
You agree to indemnify and hold harmless us, our affiliates and our and their officers, directors, licensors, partners, licensees, consultants, contractors, agents, attorneys, employees, and third party service providers (collectively, the “Indemnitees”) from any and all claims, liabilities, costs and expenses, including reasonable attorneys’ fees (collectively, “Claim(s)”), that actually or allegedly result from your information, use of the Services, or your breach of this Terms. You agree to be solely responsible for defending any Claim against or suffered by any Indemnitee, subject to the relevant Indemnitee’s right to participate with counsel of its own choosing, and for payment of damages or losses resulting from all claims against any Indemnitee provided that you will not agree to any settlement that imposes any obligation or liability on any Indemnitee without our prior express written consent.
YOU EXPRESSLY AGREE THAT THE SERVICES ARE AVAILABLE ON AN “AS IS” BASIS, WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, AND THAT YOUR USE THEREOF IS AT YOUR OWN RISK. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, WE DISCLAIM TO THE MAXIMUM EXTENT PERMITTED BY LAW ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY (I) WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, (II) WARRANTIES AGAINST INFRINGEMENT OF ANY THIRD PARTY INTELLECTUAL PROPERTY OR PROPRIETARY RIGHTS, (III) WARRANTIES RELATING TO DELAYS, INTERRUPTIONS, ERRORS, OR OMISSIONS IN THE SERVICES, OR ANY PART THEREOF, (IV) WARRANTIES RELATING TO THE TRANSMISSION OR DELIVERY OF THE SERVICES, (V) WARRANTIES RELATING TO THE ACCURACY OR CORRECTNESS OF DATA, AND ANY OTHER WARRANTIES OTHERWISE RELATING TO PERFORMANCE, NONPERFORMANCE, OR OTHER ACTS OR OMISSIONS BY US. FURTHER, AND WITHOUT LIMITING THE GENERALITY OF ANY OF THE FOREGOING, THERE IS NO WARRANTY THAT THE SERVICES WILL MEET YOUR NEEDS OR REQUIREMENTS OR THE NEEDS OR REQUIREMENTS OF ANY OTHER PERSON. IN ADDITION, YOU ACKNOWLEDGE AND AGREE THAT OUR WARRANTY DOES NOT COVER TELECOMMUNICATIONS OR INTERNET OUTAGES CAUSED BY THIRD PARTIES OR OTHERWISE OUTSIDE OF OUR CONTROL. THE SERVICES MAY BE LIMITED BY MANY FACTORS, INCLUDING INHERENT RISKS OF THE INTERNET.
LIMITATION OF LIABILITY
TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW, IN NO EVENT SHALL FONEDOG BE LIABLE TO YOU OR A THIRD PARTY FOR PERSONAL INJURY, OR ANY INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER. THIS INCLUDES, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA OR INFORMATION, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE SOFTWARE OR SERVICES OR ANY THIRD PARTY SOFTWARE OR APPLICATIONS IN CONJUNCTION WITH THE SOFTWARE HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE) AND EVEN IF FONEDOG 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. REGARDLESS, IN NO EVENT SHALL FONEDOG'S TOTAL LIABILITY TO YOU FOR ALL DAMAGES EXCEED THE AMOUNT OF FIFTY DOLLARS ($50.00). THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
The Services are protected by copyrights, trademarks, patents, trade secrets, and other intellectual property and proprietary rights (collectively, “Intellectual Property Rights”), and any unauthorized use of the same violates these Terms and may violate applicable law. Except as expressly provided herein, we do not grant you any express or implied right to use the Services. You agree not to copy, republish, frame, download, transmit, modify, adapt, create derivative works based on, rent, lease, loan, sell, assign, distribute, display, perform, license, sublicense or reverse engineer any of the Services. In addition, you agree not to take any action that may infringe on our Intellectual Property Rights.
These Terms will be governed by and construed in accordance with the laws of the State of California, excluding its conflict of law principles. These Terms shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. If for any reason a court of competent jurisdiction finds any provision, or portion thereof, to be unenforceable, the remainder of this License shall continue in full force and effect. The federal or state courts located in or within 75 miles of Santa Clara, USA shall be the exclusive jurisdiction and venue for all legal proceedings that are not arbitrated under these Terms. To the maximum extent permitted by law, You hereby consent to the jurisdiction and venue of such courts and waive any objections to such jurisdiction and venue.
Except for actions to protect copyrights and to enforce an arbitrator’s decision hereunder, all disputes, controversies, or claims arising out of or relating to this Agreement or a breach thereof shall be submitted to and finally resolved by arbitration under the rules of the American Arbitration Association ("AAA") then in effect. There shall be one arbitrator, and such arbitrator shall be chosen by mutual agreement of the parties in accordance with AAA rules. The arbitration shall take place in the location in California, USA or such other location in the USA determined by FoneDog in its sole discretion. The arbitrator shall apply the laws of the State of California, to all issues in dispute. The findings of the arbitrator shall be final and binding on the parties, and may be entered in any court of competent jurisdiction for enforcement. Notwithstanding the law of California legal fees shall be awarded to the prevailing party in the arbitration.
COMPLETE AGREEMENT AND SEVERABILITY
This Terms constitutes the entire agreement between You and FoneDog relating to the use of the Software and supersedes all prior or contemporaneous understandings regarding such subject matter. No amendment to or modification of this Terms will be binding unless in writing and signed by FoneDog. 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. Any translation of this License is done for local requirements and in the event of a dispute between the English and any non-English versions, the English version of this License shall govern, to the extent not prohibited by local law in Your jurisdiction. If any term or provision of this Terms is declared void or unenforceable in a particular situation, by any judicial or administrative authority, this declaration shall not affect the validity of enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other situation. To the extent possible the provision will be interpreted and enforced to the greatest extent legally permissible in order to effectuate the original intent, and if no such interpretation or enforcement is legally permissible, shall be deemed severed from the Terms.
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