End User License Agreement
This End User License Agreement (“EULA”) is a legally binding agreement between you (the “Licensee”) and Baloota Applications, Ltd. (“Baloota”). This EULA governs your use of the Cover Software provided by Baloota and all related documentation, updates, upgrades, and any other software provided to you pursuant to the warranty, maintenance, and support of the Cover software (collectively, the “Software”.)
Carefully read the following terms and conditions before using the Software. By installing and using this Software, you agree to be legally bound by the terms and conditions found in this EULA.
The Software is licensed to you, and not sold. Your rights to use the Software are set forth in this agreement. As described below, using this software also operates as your consent to the transmission of certain information and data during activation, use, obtaining software updates, and for internet-based services.
The Software is for non-commercial purposes only and is intended for use by adult users. The Cover Software is utilized to screen and block adult or objectionable content from being displayed on your device. You understand that material that constitutes as “objectionable” is subject to interpretation and the Cover Software is not guaranteed to remove or restrict access to all material that you or any reasonable person would find objectionable. The Cover Software may either completely restrict access to such content or may only allow access to such content after correct entry of a password.
The Cover Software is stored on the Licensee’s supported device. The Cover Software is not guaranteed to work on every device. In the event that user content is stored and accessed within the software, it is restricted and protected by a password created and selected by the user. Baloota does not track or retain user content or passwords.
If you do not agree to be bound by this agreement, you are not permitted to install, copy, or use, the Software and shall not have any rights hereunder as a Licensee. You should immediately remove the software from your device if you do not agree to these terms.
1.1. “Derivative Work” means a work that is based upon or derived from the Software, such as a revision, modification, translation, abridgment, condensation or expansion, or any form in which Software may be recast, transformed or adapted, which, if prepared without the express written consent of Baloota, would constitute copyright infringement.
1.2 “Cover Site” means the Internet site(s) published by Baloota that are applicable to the Software.
1.3 “Cover Terms of Service” means the applicable terms and conditions governing the use of the Cover Site, as published.
1.4 “Individual Computer” means any general-purpose computing device (desktop, laptop, netbook, tablet, smart phone) that is operated by one human user at a time for that user’s benefit (e.g., not as a server or in any partition of a computer system). Licensee may access the Software operating on an Individual Computer through a remote device without any additional license.
1.5. “Object Code” means the form of computer program or portion thereof that can be executed by a computer without further modification.
1.6 “Software” means, collectively, (1) that version of the Cover software that is downloaded and installed by the Licensee, (2) all updates, upgrades, patches, bug fixes, and modifications to the Cover software that may be released by Baloota and made available to Licensee from time to time, if any, in Object Code form and (3) all written information and materials provided to Licensee with and regarding the Cover application software (which information may be referred to herein as “Documentation”).
1.7 “Source Code” means the human-readable form of the code and related system documentation for the Software, including all comments and any procedural code such as job control language.
1.8 “Supported Device” means the type of Individual Computer (e.g., iPad) or the Individual Computer running a certain operating system (e.g., Windows) for which the Software is designed and offered for use. Baloota identifies the Supported Device for the Software by name in connection with the link through which the Software is made available for download or on the written software application description in the materials provided by Baloota with the Software.
2. License Grant
Subject to the terms and conditions contained herein, Baloota hereby grants the Licensee a non-exclusive, non-transferable, non-sublicensable, limited right to use the Software for your personal, non-commercial use on a single computer or gaming unit.
The Software is being licensed to you, and not sold. You agree that no title or ownership in the Software is being transferred or assigned and this EULA is not to be construed as a sale of any rights in the software.
3. General License Restrictions
Licensee shall only use the Software for Licensee’s personal use on a Supported Device and, if applicable, in connection with the Cover Site, as permitted by the Cover Terms of Service.
Licensee shall not cause or permit the renting, leasing, sublicensing or selling, or any dissemination or other distribution of copies of, the Software by any means or in any form to any person, and shall not permit others to use the Software via a timesharing, outsourcing, service bureau, application service provider, managed service provider or similar arrangement. Licensee may not use the Software in any way that is intended to circumvent this EULA, the Cover Terms of Service, or to otherwise violate any law or regulation.
Licensee agrees not to, directly or indirectly, take any action to modify, translate, decompile, reverse engineer, reverse compile, convert to another programming language or otherwise attempt to derive Source Code from the Software or any internal data files utilized or generated by the Software, or perform any similar type of operation on any software or firmware acquired under this Agreement, in any fashion or for any purpose whatsoever, except to the extent the foregoing restriction is expressly prohibited by applicable law notwithstanding this limitation. Licensee also acknowledges and agrees any such works are Derivative Works and acknowledges that Baloota retains ownership of the copyright in any Derivative Works and is not granting any right to make, use, publish or distribute any Derivative Works of the Software.
Licensee shall not modify or delete any Baloota or third-party proprietary rights notices appearing in the Software, or any Third-Party Software, and will implement any changes to such notices, if feasible, that Baloota may reasonably request.
Licensee acknowledges and agrees that the technology manifested in the operation of the Software constitutes the valuable trade secrets and know-how of Baloota and its suppliers and, to the extent Licensee discovers any such trade secrets, Licensee will not disclose them to any third party.
Licensee acknowledges and agrees that this Agreement in no way shall be construed to provide to Licensee any express or implied license to use or otherwise exploit the Software or any portion thereof except as specifically set forth in this Agreement, and all rights not expressly granted to Licensee are reserved by Baloota.
Licensee has no right to transfer any interest in or to any Software, except as permitted by the express terms in this Agreement. The license granted herein is neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Baloota regarding future functionality or features.
4. Ownership of Software
Baloota retains all ownership interests in the software. Baloota’s ownership interests in the Software are protected by United States and other applicable copyright, patent, and any other applicable laws and international treaty provisions. Except for the limited license rights specifically granted to Licensee in this Agreement, all rights, title and interests, including without limitation intellectual property rights, in and to the Software, including all Derivative Works thereof, (and all copies thereof and related materials that are produced or shipped to Licensee under this Agreement), belong to and shall be retained by Baloota or its suppliers, as applicable.
Licensee acknowledges that the development of the Software is an ongoing process and that Licensee and other licensees of the Software benefit from the improvements resulting from such ongoing development. In order to facilitate such ongoing development, Licensee may provide certain suggestions, documentation, materials and other data to Baloota regarding the use, improvement or applications of the Software (the “Contributed Ideas”), and Licensee hereby acknowledges and agrees that all Contributed Ideas may be used by Baloota in the development of the Software and/or related products and services. Unless specifically provided in a writing signed by Baloota and Licensee and specifically relating to the disclosure of any Contributed Ideas, and notwithstanding any provision in this Agreement to the contrary, Licensee hereby grants to Baloota the irrevocable, perpetual, nonexclusive, worldwide, royalty-free right and license to disclose, use and incorporate the Contributed Ideas in connection with the development of the Software and/or related products and services, and the demonstration, display, license, reproduction, modification and distribution and sale of the Software and/or related products and services, without any obligation to provide any accounting or other reporting.
5. Third Party Services
The Software may include links to and/or integration with third-party services and/or the third-party services may be made available to you via the Software. These services may include, but are not limited to content sharing, social media connectivity, and advertisements. These services are subject to respective third-party terms and conditions. Please review these third-party terms and conditions, as they constitute an agreement between you and the relevant third-party services provider to which Baloota is not a party.
6. Software Support; Interaction with Baloota
6.1 Support of Licensee. During the term of this Agreement, Baloota shall use its commercially reasonable efforts to provide technical support of the Software to Licensee according to its then applicable support policies. Such technical support shall be available by email communication in the English language, during Baloota’s regular business hours, subject to further restrictions, which may be set forth at the Cover Site or otherwise published by Baloota and provided or made available to Licensee.
6.2 Information Sharing and Interactions. During installation of the Software and from time to time thereafter when Licensee uses the Software, the Software may send information about the Software and the Individual Computer on which the Software is installed to Baloota. This information includes the version of the Software, the language of the Software (e.g., English, Japanese, etc.), the Internet protocol address of the Individual Computer and the Individual Computer’s hardware configuration. Baloota does not use this information to identify personal information regarding Licensee. Baloota does use this information to ensure that Licensee is operating the most current version of the Software and, if there is a newer release of the Software, enable Licensee to download and install the current version appropriate for the Individual Computer. Depending upon the settings in the Software, updates to the Software may be installed automatically without prior authorization of Licensee. Baloota also utilizes anonymous analytical information about your use of the Software for the purpose of improving the operation of the Software.
6.4 Notifications. From time to time the Cover Software may provide direct notifications through your client device regarding the operation of the Cover Software. Occasionally Baloota may send direct messages to you through the Cover Software or any email address that you have provided to Baloota. Message sent to you may pertain to the operation of the Cover Software, Baloota’s operations, or advertisements for products or services of Baloota or third parties. By downloading and/or utilizing the Cover Software you consent to receiving these communications.
7. Term and Termination
This Agreement shall commence on the earlier date of delivery or download of the Software, shall be confirmed upon and by the installation of the Software on any computer device, and shall continue for so long as Licensee complies with the terms herein, subject to termination or expiration in accordance with the terms provided herein.
This Agreement shall automatically terminate, without notice, upon any failure by Licensee to comply with the terms of this Agreement. Upon the termination of this Agreement, all licenses and other rights granted to Licensee hereunder shall immediately terminate. Notwithstanding any termination of this Agreement, the provisions of Ownership of Software, Disclaimer of Warranties, Limitations on Liability, General Provisions and this Section shall survive and continue to be legally binding upon Licensee and Baloota.
8. Software warranty and disclaimer of warranties; Software warranty remedy; Consequential damages
8.1 Limited Warranty. Baloota hereby warrants to Licensee that the Software will perform substantially in accordance with the functional description applicable thereto at the download site if used in accordance with the terms of this Agreement and any applicable directions or requirements in the Documentation. The foregoing warranty is extended to the initial Licensee only, is not transferable, and shall be in effect for thirty (30) days immediately following Licensee’s receipt of the Software (the “Software Warranty Period”). Licensee’s sole and exclusive remedy and the entire liability of Baloota and its suppliers and licensors for any breach of this limited warranty will be, at Baloota’s option, repair or replacement of the Software, if such breach is reported prior to the expiration of the Warranty Period to Baloota or the Baloota authorized distributor that supplied the Software to Licensee (the “Software Warranty Remedy”). Baloota may require that Licensee return or certify the destruction of all copies of the Software to Baloota or to the authorized distributor in order to receive the designated remedy hereunder. Any replacement Software provided pursuant to this Section will be covered by the warranty in this Section for the remainder of the original Software Warranty Period or for 30 days from the date on which Licensee receives such repaired or replacement Software, whichever is longer.
8.2 Disclaimer of Warranties. Except as expressly provided in this EULA, the Software is provided “AS IS” without warranty of any kind, and Baloota hereby disclaims all other warranties, express or implied, oral or written, with respect to the Software, including, without limitation, any and all implied warranties as to the condition, noninfringement, merchantability, design, operation, or fitness for any purpose.
No oral or written information or advice given by Baloota, its resellers and/or its agents or employees, shall create a warranty or in any way increase or modify the scope of the warranties expressly set forth in this EULA.
If Licensee’s legal jurisdiction provides that a certain implied warranty may not be disclaimed, such implied warranty shall only apply to defects discovered during the period of the express Software Warranty Period provided herein. There is no implied warranty for defects discovered after the expiration of such Software Warranty Period. Some legal jurisdictions do not allow limitations on how long an implied warranty lasts, so these limitations may not apply to Licensee.
Except as expressly provided in this EULA, Baloota does not warrant that the Software will meet all requirements of the licensee, or that the operation of the Software will be uninterrupted or error free, or that any.
Baloota is not responsible for any defect or error resulting from: (1) the modification, misuse, or damage of the Software by parties other than Baloota or parties performing as a contractor to, and at the direction of, Baloota; (2) the Licensee’s failure to implement all bug fixes or other defect corrections which Baloota makes available; (3) use of the Software in a manner inconsistent with the directions provided in the documentation or as permitted by this agreement; (4) any computer virus; (5) any defect in or failure or any third party’s individual computer, equipment, network, or software, or for any user error.
Baloota does not warrant and shall have no liability with respect to non-Baloota products or services including third-party software or hardware, internet connections, or computer networks.
8.3 Consequential Damages. In no event shall Baloota be liable to Licensee for any loss of or damage to data or other personal or business information, lost profit, physical damage to Licensee’s personal Device, loss of use of the Software, or for any special, incidental, indirect or consequential damages arising out of or in connection with this agreement, including the installation, use or performance, or inability to use the Software, even if Baloota has been advised of the possibility of such damages.
9. Limitation of Liabilities
Baloota may provide the Software at no charge at no charge to Licensee. In consideration for, and as a fundamental and express condition of enabling use of the software, and notwithstanding any provision in this agreement to the contrary, Baloota shall not have any liability for any matter arising out of the subject matter of this agreement, whether in contract, tort, or otherwise except for the software warranty remedy. The limitations herein shall apply even if the software warranty remedy does not fully compensate Licensee for any or all losses, or even if Baloota knew or should have known about the possibility of consequential damages.
In any event, Baloota’s liability under this Agreement shall be limited to $100, or the amount of money which you paid to Baloota over the twelve month period under this Agreement immediately preceding any cause of action.
Some jurisdictions do not allow certain limitations of liability such as these stated above. In such case, these limitation on liability may not apply to you. Instead, in such jurisdictions, the foregoing limitations of liability shall apply only to the extent permitted by the laws of such jurisdictions.
You agree to indemnify, defend, and hold harmless Baloota and Baloota’s officers, directors, agents, subsidiaries, joint ventures and employees from any claim, demand, damages or other losses, including reasonable attorneys’ fees, asserted by any third-party resulting from or arising out of your use of the Services, or any breach by you of these EULA.
10. Compliance with export laws
Licensee acknowledges that the Software is subject to laws and regulations of the United States restricting the export thereof to foreign jurisdictions and agrees to comply with all applicable United States and foreign international laws, including, without limitation, the rules and regulations promulgated from time to time by the Bureau of Export Administration, United States Department of Commerce. Without limiting the foregoing, Licensee shall not download, and if downloaded shall not install or shall immediately uninstall and destroy, the Software if Licensee’s download, installation or use of the Software is prohibited under applicable laws. By installing or using the Software, Licensee agrees to the foregoing and certifies that it is not located in, under the control of, or a national or resident of any country or on any list of countries to which the United States has embargoed goods or on the United States Treasury Department’s list of Specially Designated Nations or the United States Commerce Department’s Table of Denial Orders. Licensee shall not export, re-export, transfer or divert directly or indirectly, the Software, Documentation or other information or materials provided hereunder, or the output thereof, to any restricted place or person for which the United States or any other relevant jurisdiction requires any export license or other governmental approval at the time of export without first obtaining such license or approval. Baloota has no responsibility for compliance with such laws and regulations by Licensee. Licensee hereby agrees to indemnify and hold harmless Baloota from and against all claims, losses, damages, liabilities, costs and expenses, including reasonable attorneys’ fees, to the extent such claims arise out of any breach of this Section
11. General Provisions
11.1 Entire Agreement. This Agreement constitutes the entire agreement with regard to the subject matter hereof. No waiver, consent, modification, or change of terms of this Agreement shall bind any party unless in writing signed by such party, and then such waiver, consent, modification or change shall be effective only in the specific instance and for the specific purpose given.
11.2 Governing Law. This Agreement is made subject to, and shall be construed in accordance with, the laws of Israel (without regard to its conflict of laws provisions). In the event of any dispute, the Parties agree that any action shall only be brought in the courts of Israel, except for any action by Baloota in enforcing its intellectual property rights. Licensee hereby agrees to accept service of process by Licensor. Licensee agrees that service may be effectuated through electronic means, including email. In the event that Licensor seeks injunctive relief under this Agreement, the Licensee agrees that there will be the existence of the imminent likelihood of irreparable harm if an injunction is not issued and that an adequate remedy at law is unavailable. Licensee agrees that Licensor shall be entitled to such an injunction without the posting of any bond. The parties agree that the questions of law and fact in any action brought under this Agreement are unique to Licensee, and do not arise out of the same transaction, occurrence, or series of transactions or occurrences as any other licensees, and that Licensee may not join in any action by any other licensee under this Agreement.
11.3 Waiver. The waiver by any party hereto of a breach or a default of any provision of this Agreement by another party shall not be construed as a waiver of any succeeding breach of the same or any other provision, nor shall any delay or omission on the part of either party to exercise or avail itself of any right, power or privilege that it has, or may have hereunder, operate as a waiver of any right, power or privilege by such party.
11.4 Severability. In the event that any part or provision of this Agreement is found to be invalid or unenforceable for any reason in any jurisdiction, only that individual part or provision, and not the entire Agreement, will be inoperative.
11.5 Headings. Captions and headings contained in this Agreement have been included for ease of reference and convenience and shall not be considered in interpreting or construing this Agreement.
11.6 Assignment; Successors. The terms and conditions of this Agreement shall inure to the benefit of and be enforceable by the parties hereto and their permitted successors and assigns; provided, that the only permitted successor or assignee shall be a party that acquires all or substantially all of the business and assets of Baloota, whether by merger, sale of assets or otherwise by operation of law. Licensee shall not assign this Agreement or any right, interest or obligation under this Agreement, or in or relating to the Software. Any attempted assignment or delegation in contravention of this provision shall be void and ineffective.