Pixie Reef LLC
Fish Bowl Photo Gallery Software License Agreement
Single Use License Terms and Conditions
Effective October 16, 2012
By downloading, installing, or using this application, or any future versions, updates, or features purchased by you (collectively, the “Application”), you agree to be bound by these Terms and Conditions (the “Terms”). If you disagree with any of these Terms, you are not granted any rights to this Application including, without limitation, the right to install or use this Application, and you may not use the Application.
You can always find the most recent version of these Terms at www.pixiereef.com/legal/photogallery-eula. You understand and agree that your use of the Application after any change in these Terms is subject to such changes, and your use after such change constitutes acceptance of such changes.
1. USE OF THE APPLICATION
Pixie Reef LLC (“Pixie Reef”) grants you a non-exclusive, non-transferable, non-sublicenseable, limited right and license to install and use the Application, and any updates or upgrades to the Application delivered to you, or activated by you, exclusively for your internal use under these Terms. Your rights are further limited to the following:
a. You may download, install, and personally use one (1) copy of the Application on a single personal mobile or personal computing device that you own or control at any one time solely for your own personal, non-commercial benefit.
b. If you are a commercial enterprise or educational institute, you may download, and install one (1) copy of the Application for use by a single individual employed by you on each mobile or computing device that you own or control at any one time, and may only use the Application for your internal data.
c. Except as expressly set forth in this Agreement, you will not allow any other individual or entity to use the Application for any purpose. You shall not use the Application in the operation of a service bureau, either for a fee or gratuitously.
d. You understand that you use the Application (or servers or networks from which the Application is downloaded) at your own risk.
e. You agree to use the Application only for purposes that are permitted by (i) these Terms and (ii) any applicable law, regulation or generally accepted practices or guidelines in the relevant jurisdictions (including, without limitation, any laws regarding the export of data or software to and from the United States or other relevant countries).
f. You agree that you are solely responsible for (and that Pixie Reef has no responsibility to you or to any third party for) your use of the Application, any breach of your obligations under these Terms, and for the consequences (including any loss or damage which Pixie Reef may suffer) of any such breach.
g. You may not use the Application in any manner that could damage, disable, overburden, disrupt or impair the Application (or servers or networks which pertain to the Application), nor may you use the Application in any manner that could interfere with any other party’s use and enjoyment of the Application (or servers or networks which are connected to the Application).
h. You may not use the Application in any unlawful manner, for any unlawful purpose, or in any manner inconsistent with these Terms.
i. You may not use, or export the Application in violation of applicable U.S. laws or regulations.
Pixie Reef reserves all rights to this Application not specifically granted to you under these Terms. No rights regarding this Application or Pixie Reef shall arise by implication or estoppel.
2. PROPRIETARY RIGHTS
The Application is protected by copyrights, trademarks, service marks, international treaties, and/or other proprietary rights and laws of the U.S. and other countries. You agree to abide by all applicable laws, as well as any additional proprietary rights notices or restrictions contained in these Terms. As against you, the Application is owned by Pixie Reef, and the Application is licensed, not sold, to you. Except as specifically set forth in these Terms, you are granted no right, title, or interest in any intellectual property owned by Pixie Reef including, without limitation, the Application and Pixie Reef trademarks, and creates no relationship between you and Pixie Reef.
a. You acknowledge and agree that Pixie Reef owns all right, title and interest in and to the Application including, without limitation, any intellectual property rights pertaining to the Application (whether those rights happen to be registered or not, and wherever in the world those rights may exist).
b. You will not, and will not allow any third party to, (i) modify, decompile, reverse engineer, disassemble or otherwise attempt to derive source code from the Application or Content (as hereafter defined) that may be presented or accessed through the Application for any purpose except to the extent a contractual prohibition against reverse engineering is not permitted under applicable law, (ii) use the Application to create derivative works (as defined by the U.S. Copyright Act) or improvements (as defined by U.S. patent law) of the Application or any portion thereof; (iii) sell, rent, lease, loan, distribute, transfer, reproduce, copy, trade, resell or sublicense the Application or access thereto or derive income from the use or provision of the Application, whether for direct commercial or monetary gain or otherwise, without Pixie Reef's prior, express, written permission, (iv) use the Application to access, copy, modify, transfer, transcode or retransmit Content (as hereafter defined) in violation of any law or third party rights, or (v) remove, obscure, or alter Pixie Reef's or any proprietary rights notices affixed to or contained within or accessed in conjunction with or through the Application.
c. Unless you have agreed otherwise in a hard copy writing with the Chief Executive Officer of Pixie Reef, nothing in these Terms gives you a right to use any of Pixie Reef's trade names, trademarks, service marks, logos, domain names, and other distinctive brand features.
d. The Apache Http Components Client, copyright 1999-2012 The Apache Software Foundation, and the Application Crash Reporting for Android, copyright 2010 Emmanuel Astier & Kevin Gaudin, contained within the Application are each licensed to you under the Apache License, Version 2.0, January 2004, available at www.apache.org/licenses/LICENSE-2.0. Further information concerning the Apache code can be found at www.pixiereef.com/legal/opensource.
3. FEATURES AND SUPPORT
In the exercise of its sole discretion, Pixie Reef may elect to provide you with customer support and/or software updates, upgrades, enhancements, or modifications for the Application and may terminate such support at any time without prior notice to you. Pixie Reef may change, suspend, or stop (permanently or temporarily) any aspect of the Application at any time. The Application may also impose limits on certain features and services or restrict your access to parts or all of the Application without notice or liability.
You understand and agree that Pixie Reef may include in the Application software code executing features that may only be activated upon your payment to Pixie Reef of additional consideration.
You may stop using the Application at any time. You do not need to specifically inform Pixie Reef when you stop using the Application.
Your right and license to the Application under these Terms continue until they are terminated by either you or Pixie Reef as set forth below. In such events, you must immediately discontinue the use of and permanently delete the Application.
a. You may terminate these Terms at any time by discontinuing the use of, and permanently deleting, the Application in its entirety.
b. These Terms terminate automatically without notice from Pixie Reef if you violate any of these Terms.
c. Pixie Reef may at any time, terminate these Terms by posting a written notice of termination online, or Pixie Reef sends a written notice of termination to you.
d. No termination of this Agreement shall affect either party’s rights or duties existing prior to the termination.
5. YOUR PRIVACY
b. You agree to the use of your data in accordance with Pixie Reef's privacy policies as such policies may change from time to time.
6. FEES AND PAYMENTS
a. Pixie Reef reserves the right to charge fees for use of future versions or updates to the Application in Pixie Reef's sole discretion.
7. CONTENT IN APPLICATION
Pixie Reef will provide help files for end users on the Application. Any other text, music, audio files or other sounds, photographs, videos or other images (collectively, “Content”) which you may load, or have access to, as part of, or through your use of, the Application are your responsibility. You agree that you assume all liability, for (and that Pixie Reef has no responsibility to you or to any third party for) any Content that you create, transmit or display while using the Application and for the consequences of your actions (including any loss or damage which Pixie Reef may suffer) by doing so.
8. U.S. GOVERNMENT RESTRICTED RIGHTS
This Application, related materials and documentation have been developed entirely with private funds. If the user of the Application is an agency, department, employee, or other entity of the U.S. Government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Application, including technical data or manuals, is restricted by these Terms. In accordance with Federal Acquisition Regulation 12.212 for civilian agencies and Defense Federal Acquisition Regulation Supplement 227.7202 for military agencies, use of the Application is further restricted by these Terms.
To the maximum extent permitted by law, you shall defend, indemnify and hold harmless Pixie Reef, its affiliates and their respective owners, members, directors, officers, managers, employees and agents from and against any and all claims, demands, actions, suits or proceedings, as well as any and all losses, liabilities, damages, costs, and expenses (including reasonable attorneys' fees) arising out of or accruing from your use of the Application including, without limitation, any of your Content, your downloading or installation of the Application, your violation of any of these Terms, your Content, your violation of applicable laws, or your violation of any rights of another person or entity.
10. DISCLAIMER OF WARRANTIES
YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF THE APPLICATION, OR YOUR ACCESS OF ANY SERVERS OR NETWORKS RELATING TO THE APPLICATION, IS AT YOUR SOLE DISCRETION AND RISK. THE APPLICATION, AND ANY SERVICE OR NETWORKS PERTAINING TO THE APPLICATION ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND.
PIXIE REEF EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE APPLICATION AND ANY DATA OR CONTENT ACCESSED THROUGH THE APPLICATION, OR THE ACCURACY, TIMELINESS, COMPLETENESS, RELIABILITY, SECURITY, FUNCTIONALITY, OR ADEQUACY OF THE APPLICATION AND ANY DATA OR CONTENT ACCESSED THROUGH THE APPLICATION INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF FITNESS, MERCHANTABILITY, AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF CONDUCT OR TRADE PRACTICE.
YOU AGREE THAT THE ENTIRE RISK ARISING OUT OF THE USE OR PERFORMANCE OF THE SERVICE REMAINS WITH YOU INCLUDING, WITHOUT LIMITATION, ANY DAMAGE TO YOUR MOBILE DEVICE, COMPUTER SYSTEM, OR OTHER DEVICE, OR LOSS OF DATA THAT RESULTS FROM SUCH USE, EVEN IF PIXIE REEF HAS BEEN ADVISED OF OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF SUCH A DEFECT OR DAMAGES.
THE APPLICATION IS NOT DESIGNED, INTENDED OR LICENSED FOR USE IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE CONTROLS, INCLUDING WITHOUT LIMITATION, THE DESIGN, CONSTRUCTION, MAINTENANCE OR OPERATION OF NUCLEAR FACILITIES, EMERGENCY COMMUNICATIONS, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL SYSTEMS, LIFE SUPPORT OR WEAPONS SYSTEMS, OR ANY OTHER ACTIVITIES IN WHICH THE FAILURE OF THE APPLICATION COULD LEAD TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE.
SOME JURISDICTIONS DO NOT ALLOW RESTRICTIONS ON IMPLIED WARRANTIES SO SOME OF THESE LIMITATIONS MAY NOT APPLY TO YOU.
11. LIMITATION OF LIABILITY
YOU EXPRESSLY UNDERSTAND AND AGREE THAT PIXIE REEF, ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS ARE NOT LIABLE TO YOU UNDER ANY THEORY OF LIABILITY FOR ANY DIRECT, INCIDENTAL, SPECIAL, INDIRECT, CONSEQUENTIAL OR EXEMPLARY DAMAGES THAT MAY BE INCURRED BY YOU OR BY THIRD PARTIES, THROUGH THE USE OR INABILITY TO USE OR ACCESS THE APPLICATION, ANY DATA OR CONTENT ACCESSED THROUGH THE APPLICATION, AND SERVERS OR NETWORKS WHICH ARE CONNECTED TO THE APPLICATION INCLUDING, WITHOUT LIMITATION, ANY LOSS OF DATA OR DAMAGE TO YOUR MOBILE DEVICE, COMPUTER SYSTEM, OR OTHER DEVICE, ANY LOSS OF PROFIT (WHETHER INCURRED DIRECTLY OR INDIRECTLY), ANY LOSS OF USE, ANY LOSS OF GOODWILL AND REPUTATION, OR OTHER INTANGIBLE LOSS, WHETHER OR NOT PIXIE REEF HAS BEEN ADVISED OF OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES. PIXIE REEF HAS NO LIABILITY ARISING OUT OF YOUR CONENT, OR ITS LOSS AS A RESULT OF MALFUNCTIONS IN THE APPLICATION OR OTHERWISE. PIXIE REEF’S ACTUAL DAMAGES ARISING OUT OF OR RELATING TO THE APPLICATION OR ANY BREACH OF THESE TERMS SHALL NOT EXCEED THE AMOUNT OF $10.00.
The Application may be supported by advertising revenue and may display advertisements and promotions. In consideration for your use of the Application, advertising may be displayed to you, and you agree to such display and further agree that advertising may be targeted to you by using (i) the Content of information stored by the Application, (ii) data pertaining to your use of the Application, or (iii) other information. The manner, mode and extent of advertising by Pixie Reef are subject to change without notice.
13. GENERAL LEGAL TERMS
a. These Terms constitute the entire understanding and agreement between you and Pixie Reef and govern your use of the Application, superseding, and completely replacing all prior or contemporaneous agreements between you and Pixie Reef regarding the Application.
b. You agree that the failure of Pixie Reef to exercise or enforce any legal right or provision of these Terms shall not constitute a waiver of such right or provision and that those rights or provision will still be available to Pixie Reef. If any court of law of competent jurisdiction rules that any provision of these Terms is invalid, then that provision will be modified only to the extent necessary to make the Terms enforceable while maintaining the parties’ intent without affecting the rest of these Terms.
c. These Terms, and the relationship between you and Pixie Reef under these Terms, shall be governed by the laws of the State of California without regard to its conflict of law provisions or the United Nations Convention on the International Sale of Goods. You and Pixie Reef agree to submit to the personal and exclusive jurisdiction of the courts located within the County of Santa Clara, State of California, United States of America to resolve any legal matter arising from these Terms. Notwithstanding this, you agree that Pixie Reef shall be allowed to apply for injunctive relief (or an equivalent type of urgent legal relief) in any jurisdiction.
Pixie Reef may modify these Terms at any time upon ten (10) days prior notice by providing such revised Terms to you or by posting notification of that these Terms on www.pixiereef.com. Your continued use of this Application ten (10) days following such notice constitutes your acceptance of such revised Terms. No modification of these Terms, however, shall affect either party’s rights or duties existing prior to the modification. Pixie Reef may assign these Terms or delegate any of its duties under these Terms.
14. SURVIVING PROVISIONS
Sections 2, 4, 5 through 11, 13 through 14, and those that by their terms apply after termination of this agreement will survive any termination of these Terms.