EYECON END USER LICENSE AGREEMENT
Last Revised: March 31, 2019
This End User License Agreement (“EULA”) explains how you (the “User(s)” or “you”) can use the Eyecon application (the “App”), provided to you by Eyecon Global Ltd. (the “Company”, “we”, “our” or “us”) – so please read this EULA carefully before you get started, as you may use the App solely in accordance with the terms and conditions hereunder.
1. Acceptance of the Terms
IF YOU DO NOT AGREE TO THESE TERMS, PLEASE DO NOT DOWNLOAD AND/OR INSTALL THE APP NOR ACCESS OR USE THE APP IN ANY MANNER, PROMPTLY AND PERMANENTLY REMOVE THE APP AND ANY PART THEREOF FROM YOUR SYSTEMS AND DEVICES, AND DO NOT USE IT IN ANY MANNER WHATSOEVER.
2. The App
PLEASE NOTE: THE COMPANY IS NOT IN ANY WAY RESPONSIBLE FOR THE CONDUCT OR BEHAVIOR OF USERS WHO ARE USING THE APP, NOR FOR ANY THIRD PARTY SERVICES (AS DEFINED BELOW) WHICH MAY BE LINKED THROUGH THE APP AND/OR INITIATED THEREBY. THE COMPANY SHALL NOT BE RESPONSIBLE NOR LIABLE FOR ANY DAMAGE OR LOSS THAT MAY RESULT FROM YOUR OR ANY OTHER USERS’ USE OF THE APP, AND/OR FOR ANY SUBSEQUENT USE OF ANY THIRD PARTY SERVICES. THE COMPANY DOES NOT IN ANY WAY ENDORSE ANY APPLICATION, PRODUCT, SERVICE, INTERACTION OR ANY CONTENT THEREOF WHICH MAY BE USED OR OTHERWISE CONNECTED BY USERS ON, TO AND/OR THROUGH THE APP AND/OR ANY THIRD PARTY SERVICES.
5. User Representations and Undertakings
Your use of the App (or any part thereof) is dependent on the fact that you hereby represent, warrant and agree that:
(i) The execution of the Terms does not and will not violate any other agreement to which you are bound or any law, rule, regulation, order or judgment to which you are subject;
(ii) You will not infringe or violate any of the Terms;
(iii) You possess the legal authority to enter into these Terms and to form a binding agreement under any applicable law, to use the App in accordance with these Terms, and to fully perform your obligations hereunder;
(iv) You possess the knowledge and judgment necessary to decide whether to use the App or otherwise interact with other Users of the App;
(v) You are solely responsible for complying with applicable laws regarding use of the App, or any other interaction you make through or in connection with the App, including the determination of whether use of the App complies with the terms of the jurisdictions and laws applicable to you and all other parties of your interactions;
(vi) You shall uphold the highest ethical and commercial standards, and comply with all applicable laws and regulations applicable to your conduct and/or use of the App, including data protection, anti-SPAM and privacy laws and regulations, and any Platform Provider’s (as such term is defined below) policies applicable to you and/or your use of the App;
(vii) You will not rely on Company and fully understand that we do not provide any endorsement, support, representation or guarantee regarding the accuracy, reliability, truthfulness, legality or completeness of any information or content that may be available to you in connection with the App, including any Third Party Services; and
(viii) You acknowledge that there are risks in using the App and/or interacting with other Users and/or Third Party Services through or in connection with App, and that the Company cannot and does not guarantee any specific outcomes from such use and/or interactions, and you hereby assume all such risks, liabilities and/or harm of any kind arising in connection with and/or resulting from such interactions. Such risks may include, among others, misrepresentation of information about and/or by other Users and/or Third Party Services, charges applied by Third Party Services, breach of warranty and/or contract, violation of rights and any consequent claims.
(ix) You warrant and represent that before every time you use Eyecon’s call recording feature, you have made all necessary or advisable disclosures under the applicable law in your state and country to participants of such recorded calls, that all consents and approvals for the recording have been obtained, and use of the recording feature does not breach or infringe on the rights of any third party, including privacy rights. Please note that the aforementioned notification and consent requirements regarding call recording may vary by geo-location. You are solely responsible for complying with all applicable laws in your state and country in connection with the calls you have recorded. Eyecon expressly disclaims any and all liabilities related to, or arising from your use of Eyecon’s call recording feature and/or arising out of or related to your violation of any laws or regulations applicable to call recordings. Please note that recordings will only be stored on your device (or any third party backup service which you choose to use) and not on Eyecon’s servers.
6. Use Restrictions
The App is intended for your personal use, to make your mobile interactions smarter. However, there are certain conducts which are strictly prohibited when using the App. Please read the following restrictions carefully. Your failure to comply with the provisions set forth may result herein (at Company’s sole discretion) in the termination of this EULA and your right to access and use to the App, and may also expose you to civil and/or criminal liability.
You may not, whether by yourself or anyone on your behalf:
(i) copy, modify, publicly display, perform, distribute, make publicly available, sublicense, create derivative works of, adapt, emulate, translate, combine with other software, reverse engineer, compile, decompile or disassemble the App (or any part thereof) and/or any other material that is subject to Company’s proprietary rights, including Company’s Intellectual Property, and/or permit others to do so, unless as expressly permitted in the Terms;
(ii) interfere with or violate any other User’s and/or any of your mobile contact’s right to privacy or other rights, or harvest or collect personally identifiable information about other users of the App (or any of their mobile contacts) without their express and informed consent, including by using any robot, spider, site search or retrieval application, or other manual or automatic device or process to retrieve, index, or data-mine;
(iii) defame, abuse, harass, stalk, threaten and/or violate in any way the legal rights of others;
(iv) use, refer to and/or display the App (or any part thereof) on and/or with respect to any good or service, which in itself and/or which contains any information or content that may be considered as abusive, harassing, threatening, inciting hatred, encouraging or facilitating anti-social behavior, promoting illegal drugs, the tobacco industry or the armaments industry, obscene, defamatory, libelous, or racially, sexually, religiously, or otherwise objectionable, offensive and/or violating in any way the legal rights of others, and/or where presence of the App or any reference to Company and/or the App might be perceived as damaging to Company’s reputation and goodwill or actually bring Company into disrepute;
(v) use the App, whether directly or indirectly, in order to transmit, distribute, display or otherwise make available any content which may infringe third party rights, including Intellectual Property (as such term is defined below) rights and privacy rights, or which may contain any unlawful content;
(vi) impersonate any person or entity or provide false information on, through or in connection with the App, whether directly or indirectly, and/or falsely state or otherwise misrepresent your affiliation with any person or entity, or express or imply that Company or any third party endorses you, your business, or any statement or use you make;
(vii) transmit or otherwise make available in connection with the App, and/or directly or indirectly use the App to distribute and/or otherwise transmit any virus, worm, Trojan Horse, time bomb, web bug, spyware, or any other computer code, file, or program that may or is intended to damage or hijack the operation of any hardware, software, or telecommunications equipment, or any other actually or potentially harmful, disruptive, or invasive code or component;
(viii) interfere with or disrupt the operation of the App, or the servers or networks that host the App or make the App available, or disobey any requirements, procedures, policies, or regulations of such servers or networks;
(ix) sell, license, or exploit for any commercial purposes any part, feature or use of the App;
(x) use the App for and/or in connection with any form of spam, unsolicited mail, harassment, wire fraud or similar conduct;
(xi) create a database by systematically downloading, collecting and/or storing all or any of the contents and data generated and/or made available via the App or in connection thereto (collectively, “Data”), or forward any such Data without the prior written consent of the Company;
(xii) bypass any measures which may be used to prevent or restrict access to the App and/or certain functionalities therein and/or any Data;
(xiii) use the App or Data for any illegal, immoral or unauthorized purpose;
(xiv) use the App and/or Data for non-personal or commercial purposes without Company’s prior express written authorization; or
(xv) infringe or violate any of these Terms or any applicable law.
7. Intellectual Property Rights
The App, Company’s proprietary software, algorithms and any and all intellectual property rights pertaining thereto, including any inventions, patents and patent applications, trademarks, trade names, logos, copyrightable materials, graphics, text, images, designs (including the “look and feel” of the App and any part thereof), specifications, methods, procedures, information, know-how, data, technical data, interactive features, source and object code, files, interface, GUI and trade secrets, whether or not registered and/or capable of being registered (collectively, “Intellectual Property”), are owned by and/or licensed to Company, and are subject to copyright and other applicable intellectual property rights under Israeli laws, foreign laws and international conventions.
These Terms do not convey to you any interest in or to the App (or any part thereof), but only a limited license of use in accordance with the License granted hereunder. Nothing in these Terms constitutes a waiver of Company’s Intellectual Property rights under any law.
Company hereby grants you, and you accept, a personal, non-exclusive, non-transferable, non-sublicensable, fully revocable, limited license to use the App solely for your personal, non-commercial needs in accordance with the Terms (the “License”), commencing on the date you first download and/or use the App to your device, and until the earlier of the following occurs: (i) you permanently remove the App from your device and irrevocably cease all use thereof, or (ii) the Company terminates the License granted herein, at its sole discretion.
“Eyecon” and all logos and other proprietary identifiers used by Company in connection with the App and/or Company (“Company Marks”) are all trademarks and/or trade names of Company, whether or not registered. All other trademarks, service marks, trade names and logos which may appear on or with respect to the App, including those used as links to Third Party Services, belong to their respective owners (“Third Party Marks”). No right, license, or interest to Company Marks and/or to the Third Party Marks is granted hereunder, and you agree that no such right, license, or interest shall be asserted by you with respect to Company Marks or the Third Party Marks and therefore you will avoid using any of those marks, unless expressly permitted herein.
You are hereby prohibited from removing or deleting any and all copyright notices, restrictions and signs indicating proprietary rights of Company and/or its licensors, including copyright mark [©] or trademark [® or ™] contained in or accompanying the App, and you represent and warrant that you will abide by all applicable laws in this respect. You are further prohibited from using, diluting or staining any name, mark or logo that is identical, or confusingly similar to any Company Marks.
8. Third Party Services
The App may enable access and/or include links to certain Third Party Services, including various mobile applications installed on the User’s device. Such Third Party Services are not provided, endorsed, controlled or monitored by the Company, and the inclusion of any links or access to Third Party Services does not imply any endorsement by the Company of any such Third Party Services.
The Company shall not be responsible for the availability, usability or operability of any such Third Party Services, nor is responsible for the content, privacy maintenance, or any action taken by any third party or by any User through or in connection with any such Third Party Services.
The App may use or include third party software, files and components that are subject to open source and third party license terms (“Third Party Components”). Your right to use such Third Party Components as part of, or in connection with, the App is subject to any applicable acknowledgements and license terms accompanying such Third Party Components, contained therein or related thereto. If there is a conflict between the licensing terms of such Third Party Components and these Terms, the licensing terms of the Third Party Components shall prevail only in connection with the related Third Party Components. These Terms do not apply to any Third Party Components accompanying or contained in the App and Company disclaims all liability related thereto. You acknowledge that Company is not the author, owner or licensor of any Third Party Components, and that Company makes no warranties or representations, express or implied, as to the quality, capabilities, operations, performance or suitability of Third Party Components. Under no circumstances shall the App or any portion thereof (except for the Third Party Components contained therein) be deemed to be “open source” or “publicly available” software.
10. Usage Rules
Since you may download the App from a third party platform, service provider or distributor (“Platform Provider”) your download and use of the App may also be governed by usage rules which the Platform Provider may have established and which relate to your use of the App (“Usage Rules”). Please note that in such case, Usage Rules may apply, and it is your responsibility to determine which Usages Rules apply to your use of the App. You undertake to comply with all the applicable Platform Provider's Usage Rules. The terms of the Usage Rules may prevail any other Terms. You represent that you are not prohibited by any applicable laws or Usage Rules from downloading and/or using the App. Any download and/or use of the App by anyone prohibited by any applicable laws or Usage Rules from downloading and/or using the App is expressly prohibited.
You acknowledge and agree that Platform Provider has no responsibility for the App or content thereof, nor does it have any obligation whatsoever to furnish any maintenance and support services with respect to the App. In the event of any failure of an App downloaded from a Platform Provider to conform to any applicable warranty, you may notify the Platform Provider, and such Platform Provider may refund the purchase price for the App to you; to the maximum extent permitted by applicable law, Platform Provider will have no other warranty obligation whatsoever with respect to the App, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be solely governed by these Terms and any law applicable to Company as provider of the App. You acknowledge that the Platform Provider is not responsible for addressing any claims of you or any third party relating to the App or your possession and/or use of the App, including, but not limited to: (i) product liability claims; (ii) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation; and all such claims are governed solely by these Terms and any law applicable to Company as provider of the App.
11. Misconduct and Copyright Agent
We care for your safety. If you believe a User acted inappropriately, including through any offensive, harassing, violent or sexually inappropriate behavior, please immediately report such User and the details of such inappropriate conduct to the appropriate authorities and to us; provided your report will not incur any liability upon Company. Company’s address for reporting any misconduct is as follows:
Eyecon Global Ltd.
12. Changes to The App
The Company reserves the right to modify, correct, amend, enhance, improve, make any other changes to, or discontinue, temporarily or permanently, the App (or any part or functionality thereof) without notice, at any time. In addition, you hereby acknowledge that the functionalities included in the App may be changed, extended or reduced in terms of content and form or removed at any time without any notice to you. You agree that Company shall not be liable to you or to any third party for any modification, suspension, or discontinuance of the App (or any part or functionality thereof).
13. Disclaimer and Warranties
THE COMPANY DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE, THE INABILITY TO USE OR OPERATE, OR THE RESULTS OF THE USE OR OPERATION OF THE APP (OR ANY PART OR FUNCTIONALITY THEREOF).
THE APP (AND ANY PART THEREOF), INCLUDING WITHOUT LIMITATION ANY CONTENT, DATA, FEATURE, FUNCTIONALITY AND INFORMATION RELATED THERETO, ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF TITLE OR NON-INFRINGEMENT OR IMPLIED WARRANTIES OF USE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE.
THE COMPANY AND ITS AFFILIATES, INCLUDING ANY OF THEIR OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, SUB-CONTRACTORS, AGENTS, PARENT COMPANIES, SUBSIDIARIES AND OTHER AFFILIATES (COLLECTIVELY, “COMPANY AFFILIATES”), JOINTLY AND SEVERALLY, DISCLAIM AND MAKE NO REPRESENTATIONS OR WARRANTIES AS TO THE USABILITY, ACCURACY, QUALITY, AVAILABILITY, RELIABILITY, SUITABILITY, COMPLETENESS, TRUTHFULNESS, USEFULNESS, OR EFFECTIVENESS OF ANY CONTENT, DATA, FEATURE, FUNCTIONALITY, RESULTS, OR OTHER INFORMATION OBTAINED OR GENERATED IN CONNECTION WITH YOUR OR ANY USER’S USE OF THE APP.
COMPANY DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY THIRD PARTY SERVICES LINKED TO, LAUNCHED AND/OR OTHERWISE REFERENCED OR MADE AVIALABLE THROUGH THE APP, AND COMPANY WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY INTERACTION BETWEEN YOU AND ANY THIRD PARTY SERVICES.
THE COMPANY DOES NOT AND CANNOT WARRANT THAT THE OPERATION OF THE APP IS OR WILL BE SECURE, ACCURATE, COMPLETE, UNINTERRUPTED, WITHOUT ERROR, OR FREE OF VIRUSES, WORMS, OTHER HARMFUL COMPONENTS, OR OTHER PROGRAM LIMITATIONS. THE COMPANY MAY, AT ITS SOLE DISCRETION AND WITHOUT AN OBLIGATION TO DO SO, CORRECT, MODIFY, AMEND, ENHANCE, IMPROVE AND MAKE ANY OTHER CHANGES TO THE APP AT ANY TIME, OR DISCONTINUE DISPLAYING OR PROVIDING ANY CONTENT, FUNCTIONALITIES OR FEATURES WITHOUT ANY NOTICE TO YOU.
YOU AGREE AND ACKNOWLEDGE THAT THE USE OF THE APP, INCLUDING USE OF AND/OR RELIANCE ON ANY CONTENT AND/OR THIRD PARRTY SERVICES AVAILABLE THROUGH THE APP, IS ENTIRELY, OR OTHERWISE TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AT YOUR OWN RISK.
14. Limitation of Liability
IN NO EVENT SHALL THE COMPANY AND/OR ANY OF THE COMPANY AFFILIATES BE LIABLE FOR ANY DAMAGES WHATSOEVER, INCLUDING DIRECT, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, RESULTING FROM OR ARISING OUT OF THE APP, USE OR INABILITY TO USE THE APP, FAILURE OF THE APP TO PERFORM AS REPRESENTED OR EXPECTED, LOSS OF GOODWILL, DATA OR PROFITS, THE PERFORMANCE OR FAILURE OF COMPANY TO PERFORM UNDER THESE TERMS, AND ANY OTHER ACT OR OMISSION OF COMPANY OR BY ANY OTHER CAUSE WHATSOEVER, INCLUDING WITHOUT LIMITATION DAMAGES ARISING FROM THE CONDUCT OF ANY USERS AND/OR THIRD PARTY SERVICES.
NO ACTION MAY BE BROUGHT BY YOU FOR ANY BREACH OF THESE TERMS MORE THAN ONE (1) YEAR AFTER THE ACCRUAL OF SUCH CAUSE OF ACTION. AS SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, THEN SUCH LIMITATIONS ONLY MAY NOT APPLY TO A USER RESIDING IN SUCH STATES.
SUCH LIMITATIONS, EXCLUSIONS AND DISCLAIMERS SHALL APPLY TO ALL CLAIMS FOR DAMAGES, WHETHER BASED IN AN ACTION OF CONTRACT, WARRANTY, STRICT LIABILITY, NEGLIGENCE, TORT, OR OTHERWISE. YOU HEREBY ACKNOWLEDGE AND AGREE THAT THESE LIMITATIONS OF LIABILITY ARE AGREED ALLOCATIONS OF RISK CONSTITUTING IN PART THE CONSIDERATION FOR COMPANY’S SERVICES TO YOU, AND SUCH LIMITATIONS WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY, AND EVEN IF COMPANY AND/OR ANY COMPANY AFFILIATES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LIABILITES AND/OR DAMAGES.
YOU HEREBY ACKNOWLEDGE AND AGREE THAT THESE LIMITATIONS OF LIABILITY ARE AGREED ALLOCATIONS OF RISK CONSTITUTING IN PART THE CONSIDERATION FOR THE LICENSE GRANTED UNDER THESE TERMS, AND SUCH LIMITATIONS WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND EVEN IF COMPANY AND/OR ANY COMPANY AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LIABILITIES AND/OR DAMAGES.
You agree to defend, indemnify and hold harmless Company from and against any and all claims, damages, obligations, losses, liabilities, costs, debts, and expenses (including attorney's fees) arising from: (i) your use of the App; (ii) your violation of any of these Terms; and (iii) any damage of any sort, whether direct, indirect, special or consequential, you may cause to any third party which relates to your use of the App (including your violation of any law or the rights of third party, including any Intellectual Property rights or privacy rights of such third party).
16. Amendments to the Terms
The Company may at any time block your access to the App, temporarily or permanently limit, suspend or terminate your access privileges and License to use the App, or to require you to abstain from using the App, for any reason, at its sole discretion, in addition to any other remedies that may be available to Company under any applicable law. Such actions by Company may be taken, inter alia, if Company deems that you have breached any of these Terms in any manner.
Additionally, the Company may at any time, at its sole discretion, cease the operation of the App or any part thereof, temporarily or permanently, or delete any information from the App or any Data without giving any prior notice or assuming any responsibility or liability to you or any third party.
Upon the termination of the License, for any reason, you shall cease using the App and promptly remove any copies of the App and Data from your device, and destroy any such copies in your possession and/or control.
(i) These Terms do not, and shall not be construed to create any relationship, partnership, joint venture, employer-employee, agency, or franchisor-franchisee relationship between Company and you.
(ii) These Terms, and the rights and remedies provided hereunder, and any and all claims, disputes and controversies arising hereunder or related hereto and/or to the App, their interpretation, or the breach, termination or validity thereof, the relationships which result from these Terms, or any related purchase shall be governed by, construed under and enforced in all respects solely and exclusively in accordance with the laws of the State of Israel without reference to its conflict-of-laws principles, and shall be brought in, and you hereby consent to exclusive jurisdiction and venue in, the competent courts in Tel Aviv, Israel.
(iii) The Company may assign its rights and obligations hereunder and/or transfer ownership rights and title in the App to a third party without your consent or prior notice to you. You may not assign or transfer any of your rights and obligations hereunder without the prior written consent of Company. Any attempted or actual assignment thereof without Company’s prior explicit and written consent will be null and void.
(iv) If any provision of these Terms is found to be unlawful, void, or for any reason unenforceable, then that provision will be deemed severable from these Terms and will not affect the validity and enforceability of any remaining provisions.
(v) No waiver by either party of any breach or default hereunder will be deemed to be a waiver of any preceding or subsequent breach or default. Any heading, caption or section title contained herein is inserted only as a matter of convenience, and in no way defines or explains any section or provision hereof.
(vi) These Terms constitute the entire terms and conditions between you and Company relating to the subject matter herein and supersedes any and all prior or contemporaneous agreements, understandings, promises, conditions, negotiations, covenants or representations, whether written or oral, between Company and you, including, without limitation, those made by or between any of our respective representatives, with respect to the App. You agree that you will make no claim at any time or place that these Terms have been orally altered or modified or otherwise changed by oral communication of any kind or character. You further agree that you are not relying upon any promise, inducement, representation, statement, disclosure or duty of disclosure of Company in entering into these Terms.
If you have any questions (or comments) concerning the Terms or the App, you are welcome to send us an email to the following address, and we will make an effort to reply within a reasonable timeframe: firstname.lastname@example.org
By contacting us, you represent that you are free to do so and that you will not knowingly provide us with information that infringes upon third parties’ rights, including any intellectual property rights. You further acknowledge that notwithstanding anything herein to the contrary, any and all rights, including intellectual property rights in such information provided, shall belong exclusively to Company, and Company may use or refrain from using any such information at its sole discretion.