SOFTWARE LICENSE AGREEMENT PLEASE READ THIS AGREEMENT CAREFULLY. BY INSTALLING AND USING THIS SOFTWARE, YOU ARE ACCEPTING ALL THE TERMS AND CONDITIONS OF THIS LICENSE AGREEMENT. YOU FULLY ACKNOWLEDGE AND AGREE TO BE BOUND BY THE TERMS OF THIS LICENSE AGREEMENT AS A CONDITION TO YOUR USE OF THIS SOFTWARE. YOU MAY PRINT THE WEB PAGE CONTAINING THIS LICENSE OR SAVE IT AS A FILE ON YOUR COMPUTER OR MOBILE DEVICE.
This Software License Agreement constitutes a legally binding agreement (this “Agreement”) by and between Balluun, Inc., a Delaware corporation (“Balluun”), and the end user of this Software (“You”). This Agreement is effective as of the date you install the Software onto your mobile device (the “Effective Date”).
Balluun will provide you a license to use this software application (the “Software”) pursuant to the terms and conditions of this Agreement. You agree that when you access or use the Software, you will do so subject to this Agreement. DO NOT ACCESS OR USE THE SOFTWARE IF YOU ARE UNWILLING OR UNABLE TO BE BOUND BY THIS AGREEMENT.
1.1. License. Balluun hereby grants you a nonexclusive license to install and use the Software on your mobile device(s), provided that you comply with the restrictions set forth below in Section 1.2. The license in the preceding sentence does not include use by any third party, and you will not permit any such use.
1.2. Restrictions on Software Rights. Copies of the Software created or transferred pursuant to this Agreement are licensed, and not sold. You will not receive any title to or ownership of any copy or of the Software itself. Furthermore, you receive no rights to the Software other than those specifically granted in Section 1.1 above. Without limiting the generality of the foregoing, you will not: (a) modify, create derivative works from, distribute, lease, rent, or sublicense the Software; (b) use the Software in any way forbidden by Section 3.1 below; or (c) reverse engineer, decompile, disassemble, or otherwise attempt to derive any of the Software’s source code.
2.1. Permission from You. You hereby grant Balluun permission to access, process and otherwise use your Content (as defined below) in order for Balluun to support this Software, provide products and/or services to you, to track and analyze your use of the Software, and make your Content available to other users of the Software and other third parties. “Content” means text, images, photos, audio or video files, and other forms of data or communication; and “Your Content” means Content submitted or transmitted by you.
2.2. Rights in your Content. You hereby represent and warrant that you own your Content and that submitting or transmitting your Content to or through the Software will not violate the rights of any third party, including intellectual property, privacy or publicity rights. Balluun is under no obligation to review or screen your or other Software users’ Content.
2.3. Accuracy. Balluun has no responsibility or liability for the accuracy of any Content submitted to or transmitted through the Software by you or another user, including without limitation your Content.
3.1. Acceptable Use. You agree to comply with the following acceptable use policy (the “AUP”):
In addition, you will not: (a) provide Software passwords or other log-in information to any third party; (b) share non-public Software features with any third party; or (c) access the Software in order to build a competitive product or service, to build a product using similar ideas, features, functions or graphics of the Software, or to copy any ideas, features, functions or graphics of the Software. If Balluun suspects that you have violated the requirements of this Subsection 3.1, Balluun may suspend your access to the Software without advance notice nor refund of any of your Fees, in addition to other remedies Balluun may have. Balluun is not obligated to take any action against you or any other Software user or other third party for violating this Agreement, but Balluun is free to take any such action it sees fit.
3.2. Unauthorized Access. You agree to take reasonable steps to prevent unauthorized access to the Software, including by protecting your passwords and other log-in information. You will notify Balluun immediately if you know of or suspect unauthorized use of the Software or breach of its security.
3.3. Software Access. You are responsible and liable for: (a) your use of the Software, including unauthorized conduct and conduct that would violate the AUP or the requirements of this Agreement; and (b) any use of the Software through your account or passwords, whether authorized or not.
3.4. Communications from Balluun. You consent to receive communications via the Software, or email from Balluun in connection with your use of the Software. You agree to keep your contact information up to date.
4.1. IP Rights in the Software. Balluun retains all right, title, and interest in and to the Software, and all graphics, user interfaces, logos, trademarks reproduced through the Software. This Software and its components are protected by copyright and other laws.
4.2. Feedback. Balluun has not agreed to and does not agree to treat as confidential any Feedback (as defined below) that you provide to Balluun, and nothing in this Agreement or in the parties’ dealings arising out of or related to this Agreement will restrict Balluun’s right to use, profit from, disclose, publish, keep secret, or otherwise exploit Feedback, without compensating or crediting you. You hereby grant Balluun a perpetual, irrevocable right and license to exploit Feedback in any and every way. “Feedback” refers to any suggestion or idea for improving or otherwise modifying any of Balluun’s products or services.
5.1. Warranty Disclaimers. YOU AGREE THAT YOU ACCEPT THE SOFTWARE “AS IS” AND AS AVAILABLE, WITH NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, OR ANY IMPLIED WARRANTY ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING: (a) BALLUUN HAS NO OBLIGATION TO INDEMNIFY OR DEFEND YOU AGAINST CLAIMS RELATED TO INFRINGEMENT OF INTELLECTUAL PROPERTY; (b) BALLUUN DOES NOT REPRESENT OR WARRANT THAT THE SOFTWARE WILL PERFORM WITHOUT INTERRUPTION OR ERROR; (c) BALLUUN DOES NOT REPRESENT OR WARRANT THAT THE SOFTWARE IS SECURE FROM HACKING OR OTHER UNAUTHORIZED INTRUSION OR THAT YOUR CONTENT WILL REMAIN PRIVATE OR SECURE; AND (d) BALLUUN DISCLAIMS ANY REPRESENTATION OR WARRANTY CONCERNING PRODUCTS OR SERVICES PROVIDED BY OTHER USERS OF THE SOFTWARE.
5.2. Interactions with Other Users. You agree that you are solely responsible for your transactions or other interactions, either through the Software or through other means of communication, with other users of the Software. You acknowledge that Balluun has no liability for any such interactions. Balluun may monitor or become involved in disputes between you and other users of the Software but has no obligation to do so.
You agree to defend, indemnify, and hold harmless Balluun and the Balluun Associates (as defined below) against any “Indemnified Claim,” meaning any third party claim, suit, or proceeding arising out of, related to, or alleging: (a) infringement or violation of third party intellectual property, privacy or publicity rights by Content submitted to or transmitted through the Software from your account, including without limitation by your Content; (b) claims that use of the Software through your account harasses, defames, or defrauds a third party or violates the CAN-Spam Act of 2003 or any other law or restriction on electronic advertising; (c) any violation of the AUP or breach of this agreement; or (d) your use of the Software. Your obligations set forth in this Article 6 include retention and payment of attorneys and payment of court costs, as well as settlement at your expense and payment of judgments. Balluun will have the right, not to be exercised unreasonably, to reject any settlement or compromise that requires that it admit wrongdoing or liability or subjects it to any ongoing affirmative obligations. The “Balluun Associates” are Balluun’s officers, directors, shareholders, parents, subsidiaries, agents, successors, and assigns.
7.1. Dollar Cap. BALLUUN’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED THE SUBSCRIPTION FEES PAID BY YOU FOR THIS SOFTWARE (IN THE PREVIOUS 12 MONTHS) OR THREE HUNDRED DOLLARS ($300.00), WHICHEVER IS GREATER.
7.2. Exclusion of Consequential Damages. IN NO EVENT WILL BALLUUN BE LIABLE TO YOU FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT.
7.3. Clarifications & Disclaimers. THE LIABILITIES LIMITED BY THIS ARTICLE 7 APPLY: (a) TO LIABILITY FOR NEGLIGENCE; (b) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT PRODUCT LIABILITY, OR OTHERWISE; (c) EVEN IF BALLUUN IS ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; AND (d) EVEN IF YOUR REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. If applicable law limits the application of the provisions of this Article 7, Balluun’s liability will be limited to the maximum extent permissible. For the avoidance of doubt, Balluun’s liability limits and other rights set forth in this Article 7 apply likewise to Balluun’s affiliates, licensors, suppliers, advertisers, agents, sponsors, directors, officers, employees, consultants, and other representatives.
In order to obtain the full features of this Software, you are required to register with Balluun and pay the subscription fees (if applicable) for this Software, which may either be a one-time fee for a specific event or trade show, or for a monthly subscription, as will be described in the registration web page for this Software.
9.1. Notices. Balluun may send notices to you by email at the email address provided by you, and such notices will be deemed received 24 hours after they are sent. You may send notices pursuant to this Agreement to Balluun by email to firstname.lastname@example.org, and such notices will be deemed received 72 hours after they are sent.
9.2. Severability. To the extent permitted by applicable law, the parties hereby waive any provision of law that would render any clause of this Agreement invalid or otherwise unenforceable in any respect. In the event that a provision of this Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of this Agreement will continue in full force and effect.
9.3. No Waiver. Neither party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than by an authorized representative in an explicit written waiver. No waiver of a breach of this Agreement will constitute a waiver of any other breach of this Agreement.
9.4. Choice of Law & Jurisdiction: This Agreement will be governed solely by the internal laws of the State of California, including without limitation applicable federal law, without reference to: (a) any conflicts of law principle that would apply the substantive laws of another jurisdiction to the parties’ rights or duties; (b) the 1980 United Nations Convention on Contracts for the International Sale of Goods; or (c) other international laws. To the extent that arbitration is not required under Subsection 9.6 below, the parties consent to the personal and exclusive jurisdiction of the federal and state courts of San Mateo County, California. This Subsection 9.4 and Subsection 9.6 below govern all claims arising out of or related to this Agreement, including without limitation tort claims.
9.5. Entire Agreement. This Agreement sets forth the entire agreement of the parties and supersedes all prior or contemporaneous writings, negotiations, and discussions with respect to its subject matter. Neither party has relied upon any such prior or contemporaneous communications.
9.6. Dispute Resolution. Any legal disputes or claims arising out of or related to this Agreement (including without limitation claims related to the use of the Software, the interpretation, enforceability, revocability, or validity of the Agreement, or the arbitrability of any dispute), that cannot be resolved informally will be submitted to binding arbitration in San Mateo County, California. The arbitration shall be conducted by JAMS under its Comprehensive Arbitration Rules & Procedures, or as otherwise mutually agreed by you and Balluun. Any judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Claims shall be brought within the time required by applicable law. You agree that you will bring any claim, action or proceeding arising out of or related to the Agreement in your individual capacity, and not as a plaintiff or class member in any purported class, collective, or representative proceeding. The arbitrator may not consolidate the claims of more than one person and may not otherwise preside over any form of a representative, collective, or class proceeding. YOU ACKNOWLEDGE AND AGREE THAT YOU AND BALLUUN ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING IN ANY FORUM.