THE TERMS AND CONDITIONS OF THIS END-USER LICENSE AGREEMENT (THIS “EULA”) APPLY TO YOUR USE OF THE APPLICATION PROVIDED BY CROSSTUNER, INC. (“CROSSTUNER”).
PLEASE READ THE TERMS AND CONDITIONS OF THIS EULA CAREFULLY.
BY USING THE APPLICATION , YOU ACKNOWLEDGE AND AGREE THAT: (1) YOU HAVE READ ALL OF THE TERMS AND CONDITIONS OF THIS EULA; (2) YOU UNDERSTAND ALL OF THE TERMS AND CONDITIONS OF THIS EULA; AND (3) YOU AGREE TO BE LEGALLY BOUND BY ALL OF THE TERMS AND CONDITIONS SET FORTH IN THIS EULA.
IF YOU DO NOT AGREE WITH ANY OF THE TERMS OR CONDITIONS OF THIS EULA, YOU MAY NOT USE THE APPLICATION.
License. Subject to the terms, conditions and limitations set forth in this EULA, CrossTuner grants you a non-exclusive, non-transferable and revocable license to use the Application on any mobile device that you own or control. The terms of the license will also govern any upgrades provided by CrossTuner that replace and/or supplement the original Application, unless such upgrade is accompanied by a separate license in which case the terms of that license will govern.
Restrictions. You agree not to do, or authorize or permit any third party to do, any of the following: (1) distribute or make the Application available over a network where it could be used by multiple devices at the same time; (2) rent, lease, lend, sell, redistribute or sublicense the Application; (3) copy, decompile, reverse engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the Application, any updates, or any part thereof (except as and only to the extent any of the foregoing restrictions are prohibited by applicable law); or (4) remove, alter or obscure any copyright, trademark or other proprietary rights notice on or in the Application. If you violate any of the foregoing restrictions, your use of the Application will immediately cease and you will have infringed the copyright and other rights of CrossTuner, which may subject you to prosecution and damages. CrossTuner reserves all rights not expressly granted to you in this EULA.
Third Party Sites and Services; Third Party Materials. The Application may provide links to third party websites, applications, mobile services or other third party services (“Third Party Services”) and may also display, link to or otherwise make available third party content, data, information, events, applications or materials (“Third Party Materials”). CrossTuner does not endorse or control and makes no representations or warranties of any kind regarding any Third Party Services or Third Party Materials including, but not limited to, the content, accuracy, quality, nature, appropriateness, decency, functionality, performance, reliability, completeness, timeliness, validity, safety, legality, or any other aspect thereof. If you access or use any third party website, you should be aware that CrossTuner’s terms and policies no longer govern. You should review the applicable terms and policies including, but not limited to, privacy and data gathering practices, of any third party website to which you navigate from the Application.
Third Party Interactions. Your use of the Application and your contact, interaction, or dealings with any third parties arising out of your use of the Application is solely at your own risk. You acknowledge and agree that CrossTuner is not responsible or liable in any manner for any loss, damage or harm of any sort incurred as the result of the Application.
User Content and Conduct. You are solely responsible for all content you upload to or use with the Application, as well as your conduct and the conduct of anyone using your account. The content you upload to or use with the Application must comply with the user content and conduct rules below. Enforcement of these user content and conduct rules is solely at CrossTuner’s discretion, and these rules do not create any private right of action on the part of any third party.
You agree not to upload to or use with the Application any of the following:
- User content that is libelous, defamatory, profane, obscene, pornographic, sexually explicit, indecent, lewd, vulgar, suggestive, violent, harassing, hateful, threatening, offensive, discriminatory, bigoted, abusive, inflammatory, fraudulent, deceptive or otherwise objectionable;
- User content that is illegal or unlawful, that would constitute, encourage or provide instructions for a criminal offense, or otherwise create liability or violate any local, state, national or international law;
- User content that may infringe or violate any patent, trademark, trade secret, copyright, right of privacy, right of publicity or other intellectual or other right of any party;
Private information of any third party including, but not limited to, Social Security numbers and credit card numbers; or
- User content that exploits minors in any way or that exhibits cruelty to animals.
Ownership. The Application contains the valuable proprietary content of CrossTuner and its licensors and is protected by copyright and other intellectual property laws and treaties. You agree not to use the Application except in its intended manner in accordance with the terms and conditions of this EULA.
Termination or Modification of Application. CrossTuner reserves the right to change, suspend, remove, discontinue or disable access to the Application at any time without notice. In no event will CrossTuner be liable for the removal of or disabling of access to any portion or feature of the Application.
Termination of EULA. If you breach any of the terms or conditions of this EULA or CrossTuner discontinues the Application, this EULA will automatically terminate. In the event of the termination of this EULA for any reason: (1) the license granted to you in this EULA will immediately terminate; and (2) you must immediately cease all use of the Application and destroy or erase all copies of the Application in your possession or control. All of the sections of this EULA will survive any termination of this EULA except the License section and the Consent to Use of Data and Mobile Communications section. Any use of the Application after termination is unlicensed and is in violation of the copyright and other rights of CrossTuner.
Disclaimers. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE APPLICATION IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, SAFETY, ACCURACY AND EFFORT IS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE APPLICATION IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. CROSSTUNER DISCLAIMS ANY AND ALL WARRANTIES AND REPRESENTATIONS (EXPRESS OR IMPLIED, ORAL OR WRITTEN) WITH RESPECT TO THIS EULA AND THE APPLICATION WHETHER ALLEGED TO ARISE BY OPERATION OF LAW, BY REASON OF CUSTOM OR USAGE IN THE TRADE, BY COURSE OF DEALING OR OTHERWISE, INCLUDING ANY AND ALL: (1) WARRANTIES OF MERCHANTABILITY; (2) WARRANTIES OF FITNESS OR SUITABILITY FOR ANY PURPOSE (WHETHER OR NOT CROSSTUNER KNOWS, HAS REASON TO KNOW, HAS BEEN ADVISED OR IS OTHERWISE AWARE OF ANY SUCH PURPOSE); AND (3) WARRANTIES OF NON-INFRINGEMENT OR CONDITION OF TITLE. CROSSTUNER DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE APPLICATION WILL BE ACCURATE OR MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE APPLICATION WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE APPLICATION WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION, GUIDELINES OR ADVICE GIVEN BY CROSSTUNER OR ITS AUTHORIZED REPRESENTATIVE WILL CREATE A WARRANTY.
Indemnification. You agree, at your sole expense, to defend, indemnify and hold us, our independent contractors, service providers and consultants, and their respective directors, employees and agents, harmless from and against any and all actual or threatened suits, actions, proceedings (at law or in equity), claims, damages, payments, deficiencies, fines, judgments, settlements, liabilities, losses, costs and expenses (including, but not limited to, reasonable attorney fees, costs, penalties, interest and disbursements) caused by, arising out of, resulting from, attributable to or in any way incidental to: (1) your conduct; (2) your violation of this EULA or your violation of the rights of any third party; or (3) any user content.
Limitation of Liability. TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT WILL CROSSTUNER BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DIRECT, INCIDENTAL, SPECIAL, INDIRECT, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHATSOEVER INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OF OR INABILITY TO USE THE APPLICATION, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), PRODUCT LIABILITY, STRICT LIABILITY OR OTHER THEORY) AND EVEN IF CROSSTUNER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU. IN NO EVENT WILL CROSSTUNER’S TOTAL LIABILITY, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), PRODUCT LIABILITY, STRICT LIABILITY OR OTHER THEORY, ARISING OUT OF OR RELATING TO THE USE OF OR INABILITY TO USE THE APPLICATION EXCEED ONE DOLLAR.
Export Limitations. You may not use or otherwise export or re-export the Application except as authorized by United States law and the laws of the jurisdiction in which the Application was obtained. In particular, but without limitation, the Application may not be exported or re-exported: (1) into any U.S. embargoed countries; or (2) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. By using the Application, you represent and warrant that you are not located in any such country or on any such list. You also agree that you will not use the Application for any purposes prohibited by United States law including, but not limited to, the development, design, manufacture or production of nuclear, missiles, or chemical or biological weapons.
US Government Rights. The Application and related documentation are “Commercial Items”, as that term is defined in 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end-users: (1) only as Commercial Items; and (2) with only those rights as are granted to all other end-users pursuant to the terms and conditions herein. Unpublished rights are reserved under the copyright laws of the United States.
Governing Law; Venue. The laws of the State of California, excluding its conflicts of law rules, govern your use of the Application. Your use of the Application may also be subject to other local, state, national, or international laws. You agree that any action at law or in equity arising out of or relating to the Application or this EULA will be filed only in the state and federal courts located in San Francisco County, California, and you irrevocably and unconditionally consent and submit to the exclusive jurisdiction of such courts over any suit, action or proceeding arising out of the Application (including, but not limited to, your use of the Application).
Notwithstanding anything to the contrary in this EULA set forth above, the following additional terms will apply to the download of the Application for use on the iPhone, iPod Touch or iPad:
Acknowledgement. You and CrossTuner acknowledge that this EULA is solely between you and CrossTuner, and not with Apple, Inc. (“Apple”), and CrossTuner, not Apple, is solely responsible for the Application and the content contained within the Application. You further acknowledge that the usage rules for the Application are subject to any additional restrictions set forth in the Usage Rules for the Apple App Store Terms of Service as of the date you download the Application. In the event of any conflict between the terms and conditions of the Usage Rules for the Apple App Store Terms of Service and the terms and conditions of this EULA, the terms and conditions of the Usage Rules for the Apple App Store Terms of Service will govern if they are more restrictive.
Scope of License. The license granted to you is limited to a non-transferable license to use the Application on any iPhone, iPod touch or iPad that you own or control as permitted by the Usage Rules set forth in the Apple App Store Terms of Service.
Maintenance and Support. You acknowledge and agree that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Application.
Warranty. You acknowledge and agree that Apple is not responsible for any product warranties, whether express or implied by law, with respect to the Application. In the event of any failure of the Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price, if any, paid to Apple for the Application by you; and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Application. You also acknowledge and agree that to the extent that there are any applicable warranties, or any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any such applicable warranty, such will be the sole responsibility of CrossTuner. However, you understand and agree that in accordance with this EULA, CrossTuner has disclaimed all warranties of any kind with respect to the Application, and therefore, there are no warranties applicable to the Application.
Product Claims. You acknowledge and agree that as between Apple and CrossTuner, CrossTuner, not Apple, is responsible for addressing any of your claims or any third party claims relating to the Application or your possession and/or use of the Application, including, but not limited to: (1) product liability claims; (2) any claim that the Application fails to conform to any applicable legal or regulatory requirement; and (3) claims arising under consumer protection or similar legislation.
Intellectual Property Rights. You acknowledge and agree that, in the event of any third party claim that the Application or your possession and use of the Application infringes that third party’s intellectual property rights, CrossTuner, and not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required under this EULA.
Legal Compliance. You represent and warrant that: (1) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (2) you are not listed on any U.S. Government list of prohibited or restricted parties.
Developer Name and Address. Any end-user questions, complaints or claims with respect to the Application should be directed to:
Third Party Beneficiary. The parties acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of this EULA, and that, upon the end-user’s acceptance of the terms and conditions of this EULA, Apple will have the right (and will be deemed to have accepted the right) to enforce any of the terms and conditions of this EULA against the end-user as a third party beneficiary thereof.