2. License Grant.
The Software is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. The Software includes trade secrets and information that is confidential and proprietary to Hookflash and you agree to take all necessary actions to protect the confidentiality of such information. All ownership rights in the Software and Services, including any related documentation and any new releases, modifications, and enhancements thereto belong solely to Hookflash and its licensors, if any, including all intellectual property rights therein. The Software is licensed, not sold. Title does not pass to you. There is no implied license, right or interest granted in any copyright, patent, trade secret, trademark, invention or other intellectual property right. Hookflash hereby expressly reserves all rights in the Software and all services which are not expressly granted to you hereunder.
You only obtain a license to use the object code version of the Software. You shall not (i) copy, modify, adapt, translate into any language, distribute, or create derivative works based on the Software or any of the Services; (ii) sublicense, sublease, lease, lend, assign, sell, license, distribute, rent, export, re-export or grant other rights in the Software or Service and any attempt by you to take such action shall be void; (iii) decompile, disassemble, reverse engineer, or attempt to reconstruct, identify, or discover any source code, underlying ideas, underlying user interface techniques, or algorithms of the Software or any of the Services by any means whatsoever; (iv) remove, obscure or alter any copyright and/or other proprietary notices contained on or in or otherwise connected to the Software or any of the Services; (v) use the Software or any of the Services to create or proliferate a virus or to circumvent any copy protection or other digital rights management mechanism.
5. Additional Restrictions.
You further represent that you shall not (i) use the Software or any of the Services for any illegal or unauthorized purpose, (ii) use the Software or any of the Services in any manner which could damage, disable, overburden or impair any of the Services, (iii) transmit worms, viruses or any code of a destructive nature, (iv) display, transmit or share any content consisting of text, sounds, audio, pictures, photos, video and/or any type of materials, information or communications (“Content”) deemed hateful, threatening, pornographic, obscene, abusive, racially or ethnically offensive, libelous or defamatory, or any Content that encourages conduct that would be considered a criminal offence or bring forth civil liability, (v) attempt to hack, destabilize or adapt Hookflash’s website, the Software (or its source code) or any of the Services, or alter another website so as to falsely imply that it is affiliated with Hookflash, or (vi) use or access any of the Services by any means other than through the interface provided by Hookflash.
6. Your Utilization of Your Device:
Content transmitted by the use of the Software and Services is entirely the responsibility of the person from whom such Content originated. You use the Software and Services at your own risk and understand that by using the Software or any of the Services, you may be exposed to Content that is offensive, harmful to minors, indecent or otherwise objectionable. Hookflash does not endorse any Content and expressly disclaims any and all liability in connection with any and all Content transmitted or displayed using the Software and/or Services. You hereby release and discharge the Hookflash Parties (as defined below) from any and all claims and demands arising out of or relating to any Content.
8. Your Content.
9. Third Parties.
The Software may be incorporated into, and may incorporate itself, software and other technology owned and controlled by third parties. Any such third party software or technology that is incorporated in the Software falls under the scope of this Agreement.
10. New Versions of the Software.
12. No Access to Emergency Services.
The Software and Services are not intended to support or carry emergency calls to any type of hospitals, law enforcement agencies, medical care unit or any other kind of services that connect a user to emergency services personnel or public safety answering points pursuant to applicable local and or national regulatory requirements (“Emergency Services”). There are important differences between traditional telepad services and the Software and Services. You acknowledge and agree that: (i) Hookflash is not required to offer access to Emergency Services under any applicable local and/or national rules, regulations or law; (ii) it is your responsibility to purchase, separately from the Software, traditional wireless (cellular) or fixed line telepad services that offer access to Emergency Services, and (iii) Hookflash is not a replacement for your primary telepad service.
13. Prevention of Unauthorized Use.
Hookflash reserves the right to exercise whatever lawful means it deems necessary to prevent unauthorized use of the Software or Services, including, but not limited to, technological barriers, IP mapping, and directly contacting your wireless (cellular) carrier regarding such unauthorized use.
14. License Grant to Hookflash.
You hereby authorize Hookflash to collect and use the address books and contact lists contained in the Devices to which you have downloaded the Software for purposes of your use of the Service.
15. Premium Services.
16. Payments for Premium Services.
The Premium Services may be offered on a subscription basis, per usage basis or as otherwise described at the time of your purchase, and may be payable in advance, in arrears, per usage, or as otherwise described at the time of your purchase. If you purchase any Premium Services, you hereby agree to pay all charges to your account, including applicable taxes, in accordance with billing terms in effect at the time the charges are payable and whether charged by Hookflash or the online application store from which you downloaded the Software (the “Application Store”). You agree to abide by any relevant terms of service or other legal agreement that governs your use of a given payment processing service and/or method. If you purchase Premium Services on a subscription basis, you acknowledge and agree that this is a recurring payment and payments shall be made by the payment method and payment intervals you have selected, until the subscription for the Premium Services is terminated. You agree that if you purchase Premium Services through an Application Store, all payment related questions, issues, disagreements and/or disputes shall be handled in accordance with the terms of service or other legal agreement that governs your use of a given payment processing service and/or method, and in no event will Hookflash have any responsibility in connection with any of the foregoing.
You may request a full refund for any Premium Service purchased from an Application Store if permitted by, and pursuant to the refund rules of, the Application Store.
18. Termination by You.
You may terminate your use of the Services at any time by uninstalling and deleting the Software from all of your Devices. If you have subscribed to any Premium Services, you agree that you are solely responsible for directly terminating all payment obligations you may have with any Application Store and/or payment processing service in connection with the Premium Services.
19. Termination by Hookflash.
20. Storage of Content.
21. Third-Party Sites, Products and Services; Links.
24. No Warranty.
The Software and Services are provided to you “AS IS” and “AS AVAILABLE” with no warranties. THE Hookflash PARTIES HEREBY disclaim all warranties, terms, or conditions, express or implied, either in fact or by operation of law, statutory or otherwise, including, without limitation, warranties, terms or conditions of merchantability, fitness for a particular purpose, satisfactory quality, correspondence with description, title, non-infringement, and accuracy of information generated. ACCORDINGLY, YOU ACKNOWLEDGE AND AGREE THAT THE Hookflash PARTIES (AND IF YOU DOWNLOADED THE SOFTWARE FROM THE APPLE APP STORE, APPLE) WILL HAVE NO LIABILITY IN CONNECTION WITH OR ARISING FROM YOUR USE OF THE SOFTWARE AND/OR ANY OF THE SERVICES. YOUR ONLY RIGHT OR REMEDY WITH RESPECT TO ANY PROBLEMS OR DISSATISFACTION WITH THE SOFTWARE AND/OR ANY OF THE SERVICES IS TO IMMEDIATELY UNINSTALL THE SOFTWARE AND CEASE USE OF THE SOFTWARE AND ALL SERVICES. You further acknowledge that the Hookflash Parties (and if you downloaded the Software from the Apple App Store, Apple) have no obligation whatsoever to furnish any maintenance or support services with respect to the Software and/or Services.
25. NO WARRANTIES.
THE Hookflash PARTIES DO NOT WARRANT THAT THE CONTENT DISPLAYED OR TRANSMITTED ON OR THROUGH ANY OF THE SERVICES WILL BE UNINTERRUPTED, OR FREE OF ERRORS, VIRUSES OR OTHER HARMFUL COMPONENTS, AND DO NOT WARRANT THAT ANY OF THE FOREGOING WILL BE CORRECTED. THE Hookflash PARTIES DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OF, OR THE RESULTS FROM THE USE OF, THE SOFTWARE OR SERVICES.
26. HARM TO YOUR DEVICE.
YOU UNDERSTAND AND AGREE THAT YOU TRANSMIT, DISPLAY OR RECEIVE CONTENT THROUGH THE SERVICE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR DEVICE AND COMPUTER SYSTEM) OR LOSS OF DATA THAT RESULTS FROM SUCH CONTENT.
27. LIMITATION OF LIABILITY.
YOU AND Hookflash AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO ANY OF THE SERVICES OR SOFTWARE MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED. If you downloaded the Software from the Apple App Store, you further acknowledge that Apple has no responsibility for addressing any claims relating to the Software or Services or your possession and/or use of the Software or Services, including, but not limited to: (i) product liability claims; (ii) any claim that the Software or Services fail to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
29. United States & Canadian Services.
Hookflash makes no representations that the Services are appropriate or available for use in any location outside the United States or Canada. Those who access or use the Software and/or Services from other jurisdictions are entirely responsible for compliance with all local laws.
30. BASIS OF THE BARGAIN.
YOU ACKNOWLEDGE AND AGREE THAT Hookflash HAS OFFERED ITS SOFTWARE AND SERVICES AND SET ITS PRICES IN RELIANCE UPON THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN, THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN YOU AND Hookflash, AND THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN YOU AND Hookflash. Hookflash WOULD NOT BE ABLE TO PROVIDE THE SOFTWARE OR SERVICES TO YOU ON AN ECONOMICALLY REASONABLE BASIS WITHOUT THESE LIMITATIONS.
Any comments, suggestions, or feedback relating to the Software or any of the Services (“Feedback”) submitted to Hookflash shall become the property of Hookflash. Hookflash will have exclusive ownership of all rights to the Feedback. Hookflash will be entitled to use the Feedback for any commercial or other purpose whatsoever, without any compensation to you or any other person. Hookflash will not be required to treat any Feedback as confidential. You agree that you do not acquire any right in or to the Software or any of the Services (or any changes, modifications or corrections thereto) by virtue of any Feedback. You acknowledge that you are responsible for whatever material is submitted by you, including its legality, reliability, appropriateness, originality, and copyright.
The Software and Services may only be operated, exported or re-exported in compliance with all applicable laws and export regulations of Canada and the country in which you obtained them. The Software and Services are specifically subject to the Canadian Export Regulations; diversion contrary to Canadian law is prohibited. You may not export, directly or indirectly, the Software, Services or technical data licensed hereunder or the direct product thereof to any country, individual or entity for which the Canadian Government or any agency thereof, at the time of export, requires an export license or other government approval, without first obtaining such license or approval.
33. Canadian Government Rights.
Hookflash may provide you with notices, including those regarding changes to terms and conditions, by email, or postings on the Hookflash website. Notice will be deemed given twenty-four (24) hours after email is sent, unless Hookflash is notified that the email address is invalid. Notice posted on the Hookflash website is deemed given ten (10) days following the initial posting. Hookflash reserves the right to determine the form and means of providing notifications to our users.
34.3 European Union.
By using the Software and/or any of the Services, if you are located in the European Union, then you understand and consent to the processing of personal information in Canada.
34.4 Ability to Contract.
34.5 Entire Agreement.
34.8 Governing Law and Venue.
34.9 Injunctive Relief.
You acknowledge that the obligations made hereunder to Hookflash are of a unique and irreplaceable nature, the loss of which shall irreparably harm Hookflash and which cannot be replaced by monetary damages alone so that Hookflash shall be entitled to injunctive or other equitable relief (without the obligations of posting any bond or surety) in the event of any breach or anticipatory breach by you. You irrevocably waive all rights to seek injunctive or other equitable relief.
34.10 Third Party Beneficiaries and Agreements.