END USER SOFTWARE AGREEMENT
1. AGREEMENT
This End User Software Agreement (the "Agreement") constitutes a legally binding agreement by and between Silverback Internet Services and you ("You" or "Your") concerning Your use of Silverback Internet Services' "SF28" application (the "Application"). BY DOWNLOADING OR USING THE APPLICATION, YOU REPRESENT AND WARRANT THAT YOU HAVE READ AND UNDERSTOOD, AND AGREE TO BE BOUND BY, THIS AGREEMENT AND THE TERMS AND CONDITIONS ESTABLISHED BY APPLE, INC. ("Apple") FOR IPHONE APPLICATIONS PUT FORTH IN THE "MAC APP STORE, APP STORE, AND IBOOKSTORE TERMS AND CONDITIONS" ("Apple Terms and Conditions") LOCATED AT HTTP://WWW.APPLE.COM/LEGAL/ITUNES/US/TERMS.HTML
IF YOU DO NOT UNDERSTAND THIS AGREEMENT, OR DO NOT AGREE TO BE BOUND BY IT OR THE APPLE TERMS AND CONDITIONS, DO NOT DOWNLOAD OR USE THE APPLICATION.
As used in this Agreement:
* "Application" shall further refer to and consist of the following: (i) the mobile software application accompanying this Agreement, including, without limitation, any software code, text, interfaces, graphics, scripts, displays, documentation and other components; and (ii) any updates, modifications or enhancements to the items listed in subsection (i).
2. INFORMATIONAL PURPOSES ONLY; RISK ASSUMPTION
Silverback Internet Services provides the Application for informational purposes only. THE APPLICATION DOES NOT CONTAIN OR CONSTITUTE, AND SHOULD NOT BE INTERPRETED AS, MEDICAL ADVICE OR OPINION. SF28 is not a medical professional, and does not supply medical services or offer medical advice. The Application is not a substitute for the advice of a medical professional, and the information made available on or through the Application should not be relied upon when making medical decisions, or to diagnose or treat a medical or health condition. If you require medical advice or services, You should consult a medical professional. YOUR USE OF THE APPLICATION DOES NOT CREATE A DOCTOR-PATIENT RELATIONSHIP BETWEEN YOU AND Silverback Internet Services.
YOU KNOWINGLY AND FREELY ASSUME ALL RISK WHEN USING THE APPLICATION. YOU, ON BEHALF OF YOURSELF, YOUR PERSONAL REPRESENTATIVES AND YOUR HEIRS, HEREBY VOLUNTARILY AGREE TO RELEASE, WAIVE, DISCHARGE, HOLD HARMLESS, DEFEND AND INDEMNIFY Silverback Internet Services AND ITS OFFICERS, EMPLOYEES, DIRECTORS, AGENTS, AFFILIATES, REPRESENTATIVES, SUBLICENSEES, SUCCESSORS, AND ASSIGNS FROM ANY AND ALL CLAIMS, ACTIONS OR LOSSES FOR BODILY INJURY, WRONGFUL DEATH, EMOTIONAL DISTRESS, PROPERTY DAMAGE, LOSS OF SERVICES OR OTHER DAMAGES OR HARM, WHETHER TO YOU OR TO THIRD PARTIES, WHICH MAY RESULT FROM YOUR USE OF THE APPLICATION.
3. LICENSE AND RESTRICTIONS ON USE
(a) LICENSE GRANT. Silverback Internet Services GRANTS YOU A REVOCABLE, NON-EXCLUSIVE, NON-TRANSFERABLE, LIMITED RIGHT TO INSTALL AND USE THE APPLICATION ON A SINGLE APPLE IPHONE ("iPhone") OWNED AND CONTROLLED BY YOU, AND TO ACCESS AND USE THE APPLICATION ON SUCH IPHONE STRICTLY IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT.
(b) Restrictions on Use. THE APPLICATION IS FOR YOUR PERSONAL AND NON-COMMERCIAL USE. You shall use the Application strictly in accordance with the terms of this Agreement and shall not: (a)reverse engineer, disassemble, decompile, attempt to derive the source code of, or decrypt the Application; (b) make any adaptation, improvement, enhancement, modification, translation or derivative work from the Application; (c) violate any applicable laws, rules or regulations in connection with Your access or use of the Application; (d) remove, alter or obscure any proprietary notice (including any notice of copyright or trademark) of Silverback Internet Services or its affiliates, partners, suppliers or the licensors of the Application; (e) use the Application for any revenue generating enterprise, commercial venture, or other purpose for which it is not designed or intended; (f) install, use or permit the Application to exist on more than one iPhone at a time or on any other mobile device or computer; (g) distribute the Application to multiple iPhones; (h) make the Application available over a network or other environment permitting access or use by multiple iPhones or users at the same time; (i) use the Application for creating a product, service or software that is, directly or indirectly, competitive with or in any way a substitute for any services, product or software offered by Silverback Internet Services; (j) use the Application to send automated queries to any website or to send any unsolicited commercial e-mail; (k) use any proprietary information or interfaces of Silverback Internet Services or other intellectual property of Silverback Internet Services in the design, manufacture, development, licensing or distribution of any applications, accessories or devices for use with the Application.; or (l) the application, or any portion of the application, may not be reproduced, duplicated, modified, copied, sold, resold, distributed, visited, or otherwise exploited for any commercial purpose without the clear written consent of Silverback Internet Services.
4. INTELLECTUAL PROPERTY RIGHTS
(a) Rights to Application. You acknowledge and agree that the Application and all copyrights, trademarks, patents, trade secrets and other intellectual property rights associated therewith are, and shall remain, the property of Silverback Internet Services. In addition, You acknowledge and agree that the source and object code of the Application and the format, directories, queries, algorithms, structure and organization of the Application are the intellectual property and proprietary and confidential information of Silverback Internet Services and its affiliates, licensors and suppliers. Except as expressly stated in this Agreement, You are not granted any intellectual property rights in or to the Application by implication, estoppel or other legal theory, and all rights in and to the Application not expressly granted in this Agreement are hereby reserved and retained by Silverback Internet Services.
(b) Third Party Software. The Application may include or utilize third party software that is subject to open source and third party license terms ("Third Party Software"). You acknowledge and agree that Your right to use such Third Party Software as part of the Application is subject to and governed by the terms and conditions of the open source or third party license applicable to such Third Party Software, including, without limitation, any applicable acknowledgements, license terms and disclaimers contained therein. In the event of a conflict between the terms of this Agreement and the terms of such open source or third party licenses, the terms of the open source or third party licenses shall control with regard to Your use of the relevant Third Party Software. Under no circumstances shall the Application or components thereof be deemed to be "open source" or "publically available" software.
(c) British Website Marks. SF28 and SmokeFree28 are trademarks of Silverback Internet Services. Other trademarks, service marks, logos, graphics, and domain names appearing on the Application may be the trademarks of third-parties. Neither Your use of the Application nor this Agreement grant You any right, title or interest in or to, or any license to reproduce or otherwise use, the Silverback Internet Services Marks or any third-party trademarks, service marks, logos, graphics or domain names. You agree that any goodwill in the Silverback Internet Services Marks generated as a result of Your use of the Application will inure to the benefit of Silverback Internet Services and You agree to assign, and hereby do assign, all such goodwill to Silverback Internet Services. You shall not at any time, nor shall You assist others to, challenge Silverback Internet Services' right, title, or interest in or to, or the validity of, the British Website Marks.
(d) Silverback Internet Services Copyrights; Copyright Notice. All content and other materials available through the Application, including without limitation any software code, interfaces, scripts, graphics, displays, text, documentation and other components, and the selection, arrangement and organization thereof, are either owned by Silverback Internet Services. Except as explicitly provided, neither Your use of the Application nor this Agreement grant You any right, title or interest in or to any such materials. Copyright © 2012 to the present, Silverback Internet Services. ALL RIGHTS RESERVED.
5. RESTRICTION ON TRANSFER
YOU MAY NOT RENT, LEASE, SUBLICENSE, LEND OR TRANSFER THE APPLICATION, THIS AGREEMENT OR ANY OF THE RIGHTS GRANTED HEREUNDER. ANY ATTEMPTED TRANSFER IN CONTRAVENTION OF THIS PROVISION SHALL BE NULL AND VOID AND OF NO FORCE OR EFFECT.
6. USE OF INFORMATION AND PRIVACY POLICY
Silverback Internet Services values Your privacy. Information will be gathered concerning your use of SF28 but it shall be anonymous and not traceable to you. The information will only be used for research purposes with a view to developing improved ways of helping smokers to stop.
BY USING THE APPLICATION, YOU REPRESENT AND WARRANT THAT YOU HAVE READ AND UNDERSTOOD, AND AGREE TO THE TERMS OF, THE PRIVACY POLICY. IF YOU DO NOT UNDERSTAND OR DO NOT AGREE TO BE BOUND BY THE PRIVACY POLICY, YOU MUST IMMEDIATELY CEASE AND DESIST USE OF THE APPLICATION.
7. THIRD PARTY CONTENT AND SERVICES.
(a) General. You acknowledge that the Application may permit, or require, access to or use of products, services (such as application usage and marketing analytics), advertisements, web-sites, promotions, recommendations, advice, information, and materials created and provided by advertisers, publishers, content partners, marketing agents, vendors and other third parties ("Third Party Content and Services").
(b) Disclaimer. You acknowledge that Silverback Internet Services does not investigate, monitor, represent or endorse the Third Party Content and Services (including any third party websites available through the Application). Additionally, Your access to and use of the Third Party Content and Services is at Your risk, and Silverback Internet Services and its affiliates, partners, suppliers and licensors shall have no liability to You arising out of or in connection with Your access to and use of the Third Party Content and Services. Silverback Internet Services hereby disclaims any representation, warranty or guaranty regarding the Third Party Content and Services, whether express, implied or statutory, including, without limitation, the implied warranties of merchantability or fitness for a particular purpose, and any representation, warranty or guaranty regarding the availability, reliability, quality, features, appropriates, accuracy, completeness, or legality of the Third Party Content and Services.
(c) Third Party Terms of Service. You acknowledge and agree that Your access to and use of the Third Party Content and Services and any correspondence or business dealings between You and any third party located using the Application may be governed by and require Your acceptance of the terms of service of such third party, including, without limitation, any terms, conditions, privacy policies, representations, warranties or disclaimers contained therein. Furthermore, You acknowledge and agree that the Third Party Content and Services and any related third party terms of service are subject to change by the applicable third party at its sole discretion and without any notice. You assume all risks arising out of or resulting from your transaction of business over the Internet and with any third party, and you agree that Silverback Internet Services and its affiliates, partners, suppliers and licensors are not responsible or liable for any loss or result of the presence of information about or links to such advertisers or service providers. In addition You acknowledge and agree that You are not being granted a license to: (i) the Third Party Content and Services; (ii) any products, services, processes or technology described in or offered by the Third Party Content and Services; or (iii) any copyright, trademark, patent or other intellectual property right in the Third Party Content or Services or any products, services, processes or technology described or offered therein.
(d) Endorsements. You acknowledge and agree that the provision of access to any Third Party Content and Service shall not constitute or imply any endorsement by Silverback Internet Services or its affiliates of such Third Party Content and Services. Silverback Internet Services reserves the right to limit or deny access to any Third Party Content and Services otherwise accessible through the Application, although Silverback Internet Services has no obligation to limit or deny access even if requested by You.
(e) Inappropriate Materials. You understand that by accessing and using the Third Party Content and Services, You may encounter information, materials and subject matter: (i) that You or others may find offensive, indecent, or objectionable; (ii) which may or may not be identified as having explicit language, and (iii) that automatically and unintentionally appears in search results, as a link or reference to objectionable material. Notwithstanding the previous points, You agree to use the Third Party Content and Services at Your sole risk and that Silverback Internet Services and its partners, affiliates, suppliers and licensors shall have no liability to You for information, material or subject matter that is found to be offensive, indecent, or objectionable.
8. TERM AND TERMINATION; SURVIVAL
(a) Term. This Agreement shall be effective until terminated.
(b) Termination. Silverback Internet Services may, in its sole and absolute discretion, at any time and for any or no reason, terminate or suspend this Agreement and the rights afforded to You hereunder with or without prior notice. Furthermore, if You fail to comply with any terms and conditions of this Agreement, then this Agreement and any rights afforded to You hereunder shall terminate automatically, without any notice or other action by Silverback Internet Services. Upon the termination of this Agreement, You shall end all use of the Application and uninstall the Application.
(c) Survival. The following sections of this Agreement and any other provisions of this Agreement which by their express language or by their context are intended to survive the termination of this Agreement shall survive such termination: 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, and 14.
9. DISCLAIMER OF WARRANTIES
YOU ACKNOWLEDGE AND AGREE THAT THE APPLICATION IS PROVIDED ON AN "AS IS' AND "AS AVAILABLE" BASIS, AND THAT YOUR USE OF OR DEPENDENCE UPON THE APPLICATION AND ANY THIRD PARTY CONTENT AND SERVICES ACCESSED THEREBY IS AT YOUR SOLE RISK. Silverback Internet Services AND ITS AFFILIATES, PARTNERS, SUPPLIERS AND LICENSORS HEREBY DISCLAIM ANY AND ALL REPRESENTATIONS, WARRANTIES AND GUARANTIES REGARDING THE APPLICATION AND THIRD PARTY CONTENT AND SERVICES, WHETHER EXPRESS, IMPLIED OR STATUTORY, AND INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. FURTHERMORE, Silverback Internet Services AND ITS AFFILIATES, PARTNERS, SUPPLIERS AND LICENSORS MAKE NO WARRANTY THAT: (I) THE APPLICATION OR THIRD PARTY CONTENT AND SERVICES WILL MEET YOUR REQUIREMENTS; (II) THE APPLICATION OR THIRD PARTY CONTENT AND SERVICES WILL BE UNINTERRUPTED, PRECISE, DEPENDABLE, TIMELY, SECURE OR ERROR-FREE; (III) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION OR OTHER MATERIAL ACCESSED OR OBTAINED BY YOU THROUGH THE APPLICATION WILL BE AS REPRESENTED OR MEET YOUR EXPECTATIONS; OR (IV) ANY ERRORS IN THE APPLICATION OR THIRD PARTY CONTENT AND SERVICES WILL BE CORRECTED. NO ADVICE OR INFORMATION, WHETHER WRITTEN OR ORAL, OBTAINED BY YOU FROM SF28 OR FROM THE APPLICATION SHALL CREATE ANY REPRESENTATION, WARRANTY OR GUARANTY. FURTHERMORE, YOU ACKNOWLEDGE THAT Silverback Internet Services AND APPLE HAVE NO OBLIGATION TO CORRECT ANY ERRORS OR OTHERWISE SUPPORT OR MAINTAIN THE APPLICATION.
10. LIMITATION OF LIABILITY
UNDER NO CIRCUMSTANCES SHALL Silverback Internet Services OR ITS AFFILIATES, PARTNERS, SUPPLIERS OR LICENSORS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES ARISING OUT OF OR IN CONNECTION WITH YOUR ACCESS OR USE OF OR INABILITY TO ACCESS OR USE THE APPLICATION AND ANY THIRD PARTY CONTENT AND SERVICES, WHETHER OR NOT THE DAMAGES WERE FORESEEABLE AND WHETHER OR NOT Silverback Internet Services WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, Silverback Internet Services' AGGREGATE LIABILITY TO YOU (WHETHER UNDER CONTRACT, STATUTE, TORT OR OTHERWISE) SHALL NOT EXCEED THE AMOUNT OF thirty pounds (£30.00). YOU AGREE THAT THIS LIMITATION OF LIABILITY REPRESENTS A REASONABLE ALLOCATION OF RISK AND IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE DEAL BETWEEN Silverback Internet Services AND YOU. THE APPLICATION WOULD NOT BE PROVIDED WITHOUT SUCH LIMITATIONS. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
11. INDEMNIFICATION
You shall indemnify, defend and hold harmless Silverback Internet Services and its partners, affiliates, suppliers and licensors, and each of their respective officers, directors, agents and employees (the "Indemnified Parties") from and against any claim, proceeding, loss, fine, damage, penalty, interest and expense (including, without limitation, fees for attorneys and other professional advisors) arising out of or in connection with the following: (i) Your access to or use of the Application or Third Party Content and Services; (ii) Your breach of this Agreement; (iii) Your violation of law; (iv) Your negligence or wilful misconduct; or (v) Your violation of the rights of a third party, including the infringement by You of any intellectual property or misappropriation of any proprietary right or trade secret of any person or entity. These obligations will survive any termination of the Agreement.
12. COMPATIBILITY
Silverback Internet Services does not warrant that the Application will be compatible or interoperable with Your iPhone or any other piece of hardware, software, equipment or device installed on or used in association with your iPhone. Furthermore, You acknowledge that compatibility and interoperability problems can cause the performance of your iPhone to diminish or fail completely, and may result in permanent damage to Your iPhone, loss of the data located on Your iPhone, and corruption of the software and files located on Your iPhone. You acknowledge and agree that Silverback Internet Services and its partners, affiliates, suppliers and licensors shall have no liability to You for any losses suffered resulting from or arising in connection with compatibility or interoperability problems.