NearConn Mobile Software (Beta) – End User License Agreement
This End-User License Agreement ("EULA") is a legal agreement between you, either an individual or a single entity ("you" or "User") and [NearConn Ltd.] (hereinafter, "NearConn") governing your use of the NearConn Mobile Software (Beta) and any associated documentation (hereinafter, the "Software").
BY DOWNLOADING AND INSTALLING THIS SOFTWARE, OR OTHERWISE USING IT, YOU ACCEPT AND AGREE TO BE BOUND BY ALL THE TERMS AND CONDITIONS OF THIS EULA. IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS EULA - YOU ARE NOT ALLOWED TO USE THE SOFTWARE AND ARE OBLIGED TO UNINSTALL OR ERASE THE SOFTWARE FROM YOUR COMPUTER.
1. Grant of License. Subject to the limitations and restrictions provided in this EULA, NearConn grants you a non-exclusive, non-sublicensable, non-transferable, worldwide, royalty-free license, to install and use the Software in accordance with the terms and conditions of this EULA for the purpose of enabling you through your mobile device to connect to certain services supplied by NearConn (the "Services") through NearConn's proprietary technological platform (the "Platform").
2. License Restrictions and Limitations. You may not, and
may not permit or aid others to: (i) copy, reproduce, distribute, or use
the Software except as expressly authorized under this EULA; (ii) rent, lease,
lend or loan any part of the Software, or allow access to the Software and/or
to the Platform in any manner to provide any services to third parties; (iii) decompile,
disassemble, reverse engineer, modify, translate, convert or apply any
procedure or process to the Software and/or the Platform in order to ascertain,
derive, and/or appropriate for any reason or purpose; (iv) modify and/or
create a derivative work of any part of the Software; (v) violate the right to
privacy of any third party without the express prior consent of such third
party; (vi) infringe any proprietary rights or intellectual property rights of
any third parties, including without limitation copyright, trademarks, designs,
patents and trade secrets (e.g. you violate the copyright of a third party when
you upload a photograph taken by such third party without his explicit
permission); (vii) violate or infringe any other rights of any third party,
including but not limited to the right to publicity; (viii) harass, stalk or
conduct any other unlawful activity through the use of the Software and/or the
Services; and (ix) use the Software and/or the Platform to transmit any unlawful
User Generated Material (as defined is section 4 below), including without
limitation unlawful pornographic images, unlawful images of violent acts or
images of other unlawful acts (i.e. acts that violate any law, statute,
ordinance or regulation).
Your failure to comply with the provisions
set forth herein may expose you to civil and/or criminal liability.
3. Intellectual Property Rights. You acknowledge and agree that the Software is a proprietary product of NearConn, protected under national and international intellectual property laws. You further acknowledge and agree that any and all right, title, and interest in and to the Software and the Platform, including associated intellectual property rights, including any patents, patent applications, copyrighted material and trade secrets, and all changes, copies, modifications or corrections thereto, including all derivative works thereof whether made by NearConn, you or on behalf of NearConn or you, are and shall remain the sole and exclusive property of NearConn. This EULA does not convey to you an interest in or to the Software or the Platform, but only a limited right of use in accordance with the terms of this EULA.
4. User Generated Content. The Software may allow you to upload copyrighted material such as photographs of yourself and your friends, stories you wish to share, messages and other copyrighted material (the "User Generated Material"). As long as your User Generated Material is subject to the applicable copyright law, such User Generated Material shall remain at all times, and to the extent permitted by law, your sole and exclusive property. You understand and agree that you are solely responsible for your User Generated Material and the consequences of posting or publishing such material. You represent and warrant that you have (and will continue to have during your use of the Services) all necessary licenses, rights, consents, and permissions which are required to use and to enable NearConn to use your User Generated Material for the purposes of the provision of the Services by NearConn, and otherwise to use your User Generated Materials in the manner contemplated by these Terms. You agree that you will not post or upload any User Generated Material which contain content which is unlawful for you to possess, post or upload in the country in which you are resident, or which it would be unlawful for NearConn to use or possess in connection with the provision of the Services.
When you upload or post a User Generated Material to NearConn, you grant to NearConn an irrevocable, perpetual, non-exclusive, royalty-free, transferable, sub-licensable and worldwide license, to use, reproduce, distribute, prepare derivative works of, display, make available to the public and perform that User Generated Material in connection with the provision of the Services, whether through a mobile device or the Platform or otherwise, in any media formats and through any media channels.
5. Trademarks and trade names. "NearConn", "there is more around you" and other commercial identifiers used by NearConn in connection with the Software and the Services are all trademarks and/or trade names of NearConn, whether registered or not. No right, license, or interest to such trademarks or trade names is granted hereunder, and you agree that no such right, license, or interest shall be asserted by you with respect to such trademarks and/or trade names.
6.
Consideration. No moneys shall be
paid in consideration for the rights granted to you under this EULA. However, each
time you access the Platform in order to use the Services, you agree to pay your mobile network operator (the "MNO")
a certain fee according to the current airtime fee agreement between you and
your MNO. The charges shall be invoiced on the bill from your MNO, and NearConn
shall not be liable for any inaccuracies or errors in such bill. In addition, NearConn
reserves the right to charge additional fees for providing certain services ("Additional
fees"). The Additional Fees shall be charged only after the receipt of
your approval.
7. Term and Termination. This EULA is effective upon the installation of the Software by you and shall remain in full force and effect for so long as you use the Software in accordance with this EULA. Without prejudice to any other rights, NearConn may terminate this EULA upon the breach of any term hereof by you or on your behalf. Upon such termination by NearConn, you agree to immediately uninstall or erase the Software from your computer.
8. DISCLAIMER OF WARRANTIES
YOU ACKNOWLEDGE AND UNDERSTAND THAT THE SOFTWARE LICENSED UNDER THIS EULA IS A BETA VERSION AND PROVIDED TO YOU “AS IS” WITHOUT ANY WARRANTIES WHATSOEVER CONCERNING THE INSTALLATION, USE OR PERFORMANCE OF THE SOFTWARE AND/OR THE PLATFORM. NEARCONN EXPRESSLY DISCLAIMS, AND YOU HEREBY EXPRESSLY WAIVE ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTIBILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, SYSTEM INTEGRATION, NON-INTERFERENCE, ACCURACY RELIABILITY AND QUALITY OF THE SOFTWARE AND/OR THE PLATFORM, INCLUDING AND WITHOUT DEROGATING FROM THE ABOVE, ANY WARRANTIES AND RIGHTS IMPLIED UNDER THE US UNIFORM COMMERCIAL CODE, UCITA (UNIFORM COMPUTER INFORMATION TRANSACTIONS ACT) AND COMMON LAW. NEARCONN DOES NOT WARRANT THAT THE SOFTWARE WILL MEET YOUR REQUIREMENTS OR THAT THE OPERATION OF THE SOFTWARE AND/OR THE PLATFORM WILL BE UNINTERRUPTED OR ERROR-FREE. FURTHER, NO WARRANTY IS MADE WITH REGARD TO THE SECURITY AND INTEGRITY OF THE USER GENERATED MATERIAL TRASMMITED THROUGH THE PLATFORM. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.
9. LIMITATION OF LIABILITY
YOU ACKNOWLEDGE THAT YOU WILL EXERCISE YOUR OWN INDEPENDENT ANALYSIS AND JUDGMENT IN YOUR USE OF THE SOFTWARE, INCLUDING WITHOUT LIMITATION AN INDEPENDENT JUDGMENT AS TO THE USER GENERATED MATERIAL YOU DELIVER THROUGH THE PLATFORM. NEARCONN ASSUMES NO LIABILITY FOR YOUR USE OF THE SOFTWARE, AND YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE SOFTWARE IS AT YOUR OWN RISK. NEARCONN WILL NOT BE LIABLE FOR ANY DAMAGES OR INJURIES TO ANY PERSONS OR RESULTING FROM ANY CAUSE WHATSOEVER.
YOU FURTHER ACKNOWLEDGE THAT IN NO EVENT WILL NEARCONN BE LIABLE FOR ANY LOSSES AND/OR DAMAGES AND/OR EXPENSES OF ANY KIND RESULTING FROM AN INVASION OF YOUR PRIVACY OR AN INVASION OF THE PRIVACY OF ANY THIRD PARTY WHICH MAY OCCUR THROUGH THE USE OF THE SOFTWARE AND/OR THE PLATFORM AND/OR THE SERVICES.
YOU FURTHER ACKNOWLEDGE THAT IN NO EVENT WILL NEARCONN BE LIABLE FOR ANY DAMAGES RESULTING FROM LOSS OF DATA, LOSS OF USE OR LOSS OF REVENUE OR PROFIT AND NEARCONN FURTHER DISCLAIMS ANY AND ALL LIABILITY FOR DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL (INCLUDING, WITHOUT LIMITATION, ATTORNEYS’ FEES), OR OTHER SIMILAR DAMAGES REGARDLESS OF THE FORM OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY, EVEN IF NEARCONN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES. NOTWITHSTANDING THE ABOVE, IF NEARCONN IS FOUND TO BE LIABLE BY A FINAL JUDICAL RULING, NEARCONN'S LIABILITY TO YOU OR TO ANY THIRD PARTY IS LIMITED TO THE SUMS ACTUALY PAID BY YOU TO NEARCONN IN CONNECTION WITH THE SERVICES.
10. Indemnification. You agree to defend, indemnify and hold harmless NearConn, its officers, directors, employees and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs, debts, and expenses (including but not limited to attorney's fees) arising from: (i) your use of the Software and/or the Services; (ii) your violation of any term of these EULA; (iii) your violation of any third party right, including without limitation any intellectual property right, property right, privacy right and/or publicity right; and (iv) any damage of any sort, whether direct, indirect, special or consequential, you may cause to any third party with relation to the Software and/or the Services. This indemnification obligation will survive this EULA.
11. Governing Law and Jurisdiction. This EULA shall be construed and governed in accordance with the laws of the State of Israel, regardless of its conflict of laws rules. The competent courts of Tel-Aviv-Jaffa, Israel, shall have sole and exclusive jurisdiction over any dispute under this EULA or otherwise related to the Software.
12. Miscellaneous. This EULA represents the complete agreement concerning the license granted herein and the subject matter hereof and may be amended only by a written agreement executed by both parties. If any provision of this EULA is held to be unenforceable, such provision shall be reformed only to the extent necessary to make it enforceable. The failure of either party to enforce at any time any of the provisions of this EULA will in no way be construed to be a present or future waiver of such provisions, nor in any way affect the right of either party to enforce each such provision thereafter. The express waiver by either party of any provision of this EULA will not constitute a waiver of any future obligation to comply with such provision. You may not transfer or assign this EULA and the rights hereunder without the prior written consent of NearConn.
13. Contact Information. All requests for further information should be directed to: support@NearConn.com