App Store Home : Terms of Service

Terms of Service

Last updated: 11 March 2010

1. Acceptance of Terms

By using or accessing the iTest App Store website (the “Store”) offered by The Fanfare Group, Inc. (“Fanfare”) in any way, or by downloading software code, test assets, or other materials made available in the Store (“Apps”), you agree to be bound by these Terms of Service and by the privacy policy of Fanfare (the “Privacy Policy”) which are collectively referred to as the “Agreement.” If you do not accept the terms of this Agreement, do not use the Store or download Apps from the Store.

Fanfare may revise these Terms of Service or the Privacy Policy from time to time. Such revised versions of the Agreement will bind you upon Fanfare’s reasonable notice to you of the modified terms of the Agreement and your continued use of the Store.

As further set forth below, Fanfare may modify, suspend, or discontinue, temporarily or permanently, the Store and may remove, modify, or delete any Apps at any time, in its sole discretion.

2. Accounts; Passwords; Security

The Store is available for individuals aged 13 years or older. If you are 13 or older but under the age of 18, you should review this Agreement with your parent or guardian to make sure that you and your parent or guardian understand the terms and conditions of this Agreement.

You may need to set up an account in order to use some of the features of the Store. You may not use someone else’s account without permission. When you are setting up your account, you must give us accurate, current, and complete information. This means that you cannot set up an account using someone else’s name or contact information, or a phony name or phony contact information. You have complete responsibility for your account and everything that happens on your account. You need to be careful with your password. If you find out that someone is using your account without your permission, you must notify us immediately (using the contact information provided below). You agree to maintain and update your account information as required to keep it accurate, current, and complete. You may not transfer your account to someone else. We are not liable for any damages or losses caused by someone using your account without your permission. However, if we (or anyone else) suffer any damage due to the unauthorized use of your account, you may be liable.

3. License to Apps

The Apps made available through the Store are licensed, not sold, to you. There are two categories of Apps offered through the Store: (i) those Apps that have been developed, created, or licensed, and are licensed to you, by Fanfare (the “Fanfare Apps”); and (ii) those Apps that have been developed, created, or licensed, and are licensed to you, by a third-party contributor (the “Third-Party Apps”). Whether an App is a Fanfare App or a Third-Party App will be indicated in the Store.

Each App that you obtain through the Store is subject to the End User License Agreement set forth below, and you agree that the terms of the End User License Agreement will apply to each Fanfare App and to each Third-Party App that you license through the Store, unless the App is covered by a valid end user license agreement entered into between you and the licensor of the App (the “Author”), in which case the Author’s end user license agreement will apply to that App. In some cases that license may accompany the App as a “clickwrap” agreement, or it may be a separate agreement between you and the Author.

You acknowledge that the license you receive to each Fanfare App that you obtain through the Store is a binding agreement between you and Fanfare, and that the license you receive to each Third-Party App is a binding agreement between you and the third-party Author of that Third-Party App only. The Author for each Third-Party App is solely responsible for that Third-Party App, the content therein, any warranties to the extent that such warranties have not been disclaimed, and any claims that you or any other party may have relating to that Third-Party App or your use of that Third-Party App. You acknowledge that you are receiving the license to each Third-Party App from the Author of that Third-Party App; Fanfare is merely distributing the Third-Party App on behalf of the Author; Fanfare is not a party to the license between you and the Author with respect to that Third-Party App; and Fanfare is not responsible for that Third-Party App, the content therein, or any warranties or claims that you or any other party may have relating to that Third-Party App or your use of that Third-Party App.

You acknowledge and agree that Fanfare, and any Fanfare’s subsidiaries, are third-party beneficiaries of the End User License Agreement, or the Author’s end user license agreement, as the case may be, for each Third-Party App, and that, upon your acceptance of the terms and conditions of the license to any such Third-Party App, Fanfare will have the right (and will be deemed to have accepted the right) to enforce such license against you as a third-party beneficiary thereof.

All Apps made available through the Store are licensed to end-user customers only.

4. Use of Apps and App Availability

You acknowledge that use of Apps may require the use of other hardware and software products, and that such hardware and software is your responsibility. Fanfare reserves the right not to make Apps or all or part of the Store available and to remove Apps from the Store at any time, in its sole discretion. In addition, Fanfare has the right (but not the obligation) to monitor all information or materials in the Store to identify apparent violations of this Agreement and to take any action that Fanfare in its sole discretion deems appropriate. Consequently, there is no guarantee that any or all Apps or the Store will be available at any given time. Fanfare will have no liability to you in the event a previously downloaded App becomes unavailable for download. Once you download an App, it is your responsibility not to lose, destroy, or damage the App, and Fanfare will not be liable to you in the event of any loss, destruction, or damage resulting from any such loss, destruction, or damage.

5. Maintenance and Support

Authors may offer support and maintenance for Third-Party Apps; refer to the applicable end user license agreement such Third-Party Apps to find out whether support and maintenance is provided for that Third-Party App. Authors are solely responsible for providing support and maintenance services with respect to Apps, as specified in the applicable end user license agreement, or as required by applicable law. You acknowledge and agree that Fanfare will have no obligation whatsoever to provide any maintenance or support services with respect to any Third-Party App.

6. Proprietary Rights

Fanfare and its suppliers retain all right, title and interest (including all copyright, trademark, trade secret, patent and other rights) in and to the Store, including but not limited to all text, images, photographs, videos, audio clips, and software used to offer the Store, and all Fanfare Apps which are available in the Store (not including Third-Party Apps). If you give feedback regarding the Store (for example, recommendations for improvements or features) implementation of that feedback is owned by us and may become part of the Store without compensation to you. You hereby assign and agree to assign to Fanfare all rights, title, and interest in and to such feedback, including without limitation all intellectual property rights therein. We reserve all rights in and to the Store unless we expressly state otherwise. The Store contains proprietary and confidential information that is protected by applicable intellectual property and other laws. All Fanfare Apps are licensed pursuant to the End User License Agreement set forth below, except where a particular Fanfare App expressly states that a different license agreement applies.

You will not (a) decompile, reverse engineer, disassemble, or otherwise reduce the Store to a human-perceivable form, except and only to the extent that such activity is expressly permitted by applicable law, and in that case, only if you notify us in writing in advance; (b) copy, frameset, enclose or distribute any part of the Store; (c) modify, create derivative works of, rent, lease, loan, or sell the Store; or (d) otherwise exploit the Store in any unauthorized way, including without limitation by trespass, overloading, or flooding.

All brand, product and service names used in the Store which identify Fanfare or our suppliers and our or their proprietary products and services are the trademarks or service marks of Fanfare or our suppliers. Nothing in the Store shall be deemed to confer on any person any license or right on the part of Fanfare or such supplier with respect to any such image, logo, or name.

You agree not to disable, interfere with, or try to circumvent any of the features of the Store related to security, preventing or restricting use or copying of any materials or content in the Store, or enforcing the limits on the use of the Store or any materials or content in the Store.

7. Notify Us of Infringers

We may terminate a Author account if we (among other reasons) decide that a Author is or may be an infringer of any intellectual property rights.

If you believe that something in the Store infringes your copyrights, notify our copyright agent in writing. The contact information for our copyright agent is at the bottom of this section.

In order for us to take action, you must do the following in your notice:

1. provide your physical or electronic signature;
2. identify the copyrighted work that you believe is being infringed;
3. identify the item in the Store that you think is infringing your work and include sufficient information about where the material is located in the Store so that we can find it;
4. provide us with a way to contact you, such as your address, telephone number, or e-mail;
5. provide a statement that you believe in good faith that the item you have identified as infringing is not authorized by the copyright owner, its agent, or the law to be used on the Store; and
6. provide a statement that the information you provide in your notice is accurate, and that (under penalty of perjury), you are authorized to act on behalf of the copyright owner whose work is being infringed.

Here is the contact information for our copyright agent:

Copyright Enforcement
The Fanfare Group, Inc.
1091 N. Shoreline Blvd.
Suite 100
Mountain View, CA 94043
E-Mail: itestappstoreadmin@fanfaresoftware

Again, we cannot take action unless you give us all the required information.

8. Assistance with Orders

Only notices about copyright infringement should go to our copyright enforcement department. If you have anything else to communicate with us, you should contact us at appstore@fanfaresoftware.com.

9. Term and Termination

Fanfare reserves the right to modify, suspend, or discontinue the Store (or any part or content thereof) at any time with or without notice to you, and Fanfare will not be liable to you or to any third party should it exercise such rights. We may terminate or suspend your permission to use the Store immediately and without notice upon any violation of this Agreement, your failure to pay any fees when due, upon the request of law enforcement or government agencies, for extended periods of inactivity, for unexpected technical issues or problems, or for engagement by you in fraudulent or illegal activities. Upon any termination we may permanently delete your account.

10. Third-Party Materials, Links to Other Sites

The Store may contain third-party materials and links to other websites that we don’t own or control. We do not warrant or endorse such third-party materials and websites and are not responsible for any of these other materials and websites. You will not hold us responsible for any aspect of these other materials and websites, including their content, privacy policies, or anything else. You agree that you will not use any third-party materials in a manner that would infringe or violate the rights of any other party. You may be exposed to things on other websites that you don’t like or that you find offensive. We are not responsible for this, either. You must use your own discretion when you go to other websites. You should read the terms and conditions and privacy policies of these other websites.

11. Prohibition on Export

You may not use, export or re-export any Apps or any copy or adaptation of such Apps, or any other product or service offered through the Store, in violation of any applicable laws or regulations, including, without limitation, United States export laws and regulations.

12. Warranty Disclaimer

USE OF THE STORE IS AT YOUR OWN RISK. THE STORE AND, UNLESS OTHERWISE PROVIDED IN THE APPLICATION END USER LICENSE AGREEMENT, THE APPS ARE PROVIDED ON A “AS IS” AND “AS AVAILABLE” BASIS. FANFARE AND ITS AFFILIATES, SUPPLIERS, AND PARTNERS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.

FANFARE AND ITS AFFILIATES, SUPPLIERS, AND PARTNERS MAKE NO WARRANTY THAT (A) THE STORE OR ANY APPS OBTAINED THROUGH THE STORE WILL MEET YOUR REQUIREMENTS; (B) THE STORE OR ANY APPS WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE; OR (C) THAT THERE WILL BE NO ERRORS IN THE STORE OR ANY APPS, OR THAT FANFARE WILL FIX ANY ERRORS. UNLESS OTHERWISE PROVIDED IN THE APPLICABLE END USER LICENSE AGREEMENT FOR AN APP, ANY APPS AND OTHER MATERIALS OBTAINED THROUGH USE OF THE STORE ARE OBTAINED AT YOUR OWN DISCRETION AND RISK AND FANFARE SHALL NOT BE RESPONSIBLE FOR ANY DAMAGE CAUSED TO YOUR COMPUTER OR DATA OR FOR ANY BUGS, VIRUSES, TROJAN HORSES, OR OTHER DESTRUCTIVE CODE RESULTING FROM USE OF THE STORE OR ANY APPS OR OTHER MATERIALS OBTAINED FROM THE STORE.

SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. YOU MAY ALSO HAVE OTHER LEGAL RIGHTS, WHICH VARY FROM STATE TO STATE.

13. Limitation of Liability

TO THE FULLEST EXTENT PERMITTED UNDER LAW, FANFARE AND ITS AFFILIATES, SUPPLIERS, AND PARTNERS HAVE NO OBLIGATION OR LIABILITY (WHETHER ARISING IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR OTHERWISE) FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OR LIABILITIES (INCLUDING, BUT NOT LIMITED TO, ANY LOSS OF DATA, REVENUE, OR PROFIT) ARISING FROM OR RELATED TO YOUR USE OF THE STORE OR ANY CONTENT PROVIDED BY OR THROUGH THE STORE, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. THE FOREGOING LIMITATION APPLIES TO DAMAGES ARISING FROM (I) YOUR USE OR INABILITY TO USE THE STORE; (II) COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS OR SERVICES PURCHASED THROUGH OR FROM OUR STORE; (III) UNAUTHORIZED ACCESS TO OR ALTERATION OF APPS; (IV) THIRD-PARTY CONTENT MADE AVAILABLE TO YOU THROUGH THE STORE; OR (V) ANY OTHER MATTER RELATING TO THE STORE. SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF INCIDENTAL, CONSEQUENTIAL, OR OTHER TYPES OF DAMAGES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.

NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, FANFARE'S LIABILITY AND THE LIABILITY OF EACH OF ITS OFFICERS, DIRECTORS, INVESTORS, EMPLOYEES, AGENTS, ADVERTISERS, LICENSORS, SUPPLIERS, STORE PROVIDERS, AND OTHER CONTRACTORS TO YOU OR ANY THIRD PARTIES UNDER ANY CIRCUMSTANCE IS LIMITED TO A MAXIMUM AMOUNT OF $100 USD.

14. Indemnity

You agree to indemnify, defend (if we so request) and hold harmless Fanfare and its affiliates, suppliers, partners, officers, agents, and employees from and against any claim, demand, losses, damages, or expenses (including reasonable attorneys’ fees) arising from your use of the Store, your connection to the Store, your violation of this Agreement, or your violation of any rights of any third party. Your indemnification obligation will survive the termination of this Agreement and your use of the Store.

15. General Terms

This Agreement is governed by laws of the state of California, without respect to its conflict of laws principles. The sole jurisdiction and venue for any claim arising from the Store and this Agreement shall be the state and federal courts located in Santa Clara County, California and each party hereby consents to the exclusive jurisdiction and venue of such courts. This Agreement, together with any other legal notices we have published on the Store, constitute the entire agreement between you and us regarding the Store. If a court having proper authority decides that any portion of this Agreement is invalid, only the part that is invalid will not apply. The rest of this Agreement will still be in effect. If we waive any of our rights under this Agreement in any particular instance, it does not mean that we are waiving our rights generally or in the future. Furthermore, just because we may not enforce all our rights all of the time, it does not mean that we are waiving our rights. We may decide to enforce them at a later date. This Agreement, and any rights and licenses granted under this Agreement, may not be transferred or assigned by you, but may be assigned by us without restriction. We will not be liable to you for any delay or failure to perform any obligation we have under this Agreement if the delay or failure is due to events which are beyond our reasonable control, including but not limited to any strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or of telecommunications or data networks or services, or refusal of approval or a license by a government agency.

YOU AGREE THAT IF YOU WANT TO SUE US, YOU MUST FILE YOUR LAWSUIT WITHIN ONE YEAR AFTER THE EVENT THAT GAVE RISE TO YOUR LAWSUIT. OTHERWISE, YOUR LAWSUIT WILL BE PERMANENTLY BARRED.

 

Licensed Application End User License Agreement (“EULA”)

READ THIS AGREEMENT CAREFULLY.

BY CLICKING ON AN “I AGREE” BUTTON OR INSTALLING OR USING ALL OR ANY PORTION OF THE SOFTWARE, YOU ARE ACCEPTING ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT. YOU AGREE THAT THIS AGREEMENT IS ENFORCEABLE LIKE ANY WRITTEN AGREEMENT SIGNED BY YOU.

IF YOU DO NOT AGREE TO ALL OF THESE TERMS AND CONDITIONS, YOU MAY NOT USE THE SOFTWARE. IF YOU HAVE PAID A LICENSE FEE FOR USE OF THE SOFTWARE AND DO NOT AGREE TO THESE TERMS, YOU MAY RETURN THE SOFTWARE FOR A FULL REFUND PROVIDED YOU (A) DO NOT USE THE SOFTWARE AND (B) RETURN THE SOFTWARE WITHIN THIRTY (30) DAYS AFTER YOUR INITIAL PURCHASE.

IF YOU WISH TO USE THE SOFTWARE AS AN EMPLOYEE, CONTRACTOR, OR AGENT OF A CORPORATION, PARTNERSHIP OR SIMILAR ENTITY, THEN YOU MUST BE AUTHORIZED TO SIGN FOR AND BIND THE ENTITY IN ORDER TO ACCEPT THE TERMS OF THIS AGREEMENT. THE LICENSES GRANTED UNDER THIS AGREEMENT ARE EXPRESSLY CONDITIONED UPON ACCEPTANCE BY SUCH AUTHORIZED PERSONNEL.

NOTWITHSTANDING THE FOREOING, IF YOU HAVE ENTERED INTO A SEPARATE LICENSE AGREEMENT WITH LICENSOR FOR USE OF THE SOFTWARE, THE TERMS AND CONDITIONS OF SUCH OTHER AGREEMENT WILL GOVERN, SUBJECT TO YOUR PRIOR ACCEPTANCE OF THAT SEPARATE LICENSE AGREEMENT.

This End User License Agreement (“EULA”) is between the licensor (“Licensor”) of the applications, modules, test scripts, and other software provided in connection with this EULA (together with any supporting documentation, the “Software”) and the user (individual or entity) that has downloaded or otherwise procured the Software for use as an end user (“you”).

The terms of this EULA will govern any upgrades to the Software provided by Licensor that replace and/or supplement the original Software, unless such upgrade is accompanied by a separate license agreement, in which case the terms of that agreement will govern.

1. License. If the Software is designated as “evaluation software” then Licensor licenses it to you under Section 2; otherwise the Software is licensed by Licensor pursuant to Section 1.1.

1.1. Grant of License. Subject to all of the terms and conditions of this EULA, Licensor grants you a non-transferable, non-sublicensable, non-exclusive license to use the Software subject to any license term, subscription term or other user, computer, field of use or other restrictions specified by Licensor upon download from the Store (defined below).

2. Evaluation License. Notwithstanding the foregoing, if you select to download the Software on an evaluation basis, you will be authorized to access and use the Software only for a limited evaluation period of thirty (30) days, beginning on the day that you first receive the Software (the “Evaluation Period”), and subject to all the terms and conditions of this EULA. Unless Licensor issues you a different license, the Software may become inoperable and, in any event, your right to use the Software automatically expires at the end of the Evaluation Period. If you receive a full license to the Software from Licensor, your right to use the Software will continue, subject to the terms and conditions of this EULA. Your license to use the Software during the Evaluation Period is limited to using the Software internally at your designated evaluation site, solely to test the Software in an evaluation environment. Any other use of the Software during the Evaluation Period is expressly prohibited.

2.1. Installation and Copies. Licensor delivers the Software by making the Software available through Fanfare iTest App Store (the “Store”) and you receive the Software by downloading it from the Store in electronic form. Licensor may also provide you with electronic passwords or other enabling mechanisms as necessary to permit licensed use of the Software. If you are an individual, you may copy and install the Software on a single computer. If you are a corporation, partnership, or other entity, you may copy and install on your computers for use only by your employees the number of copies of the Software for which you have paid the applicable license fee (if any). You may also make a reasonable number of copies of the Software for backup and archival purposes.

2.2. License Restrictions. No license or right is granted, by implication or otherwise, to you under any intellectual property or other proprietary rights now or hereafter owned or controlled by Licensor except for licenses and rights expressly granted in this Agreement. Except as otherwise explicitly provided in the Software documentation, you shall not (and shall not allow any third party to): (a) decompile, disassemble, or otherwise reverse engineer the Software or attempt to reconstruct or discover any source code, underlying ideas, algorithms, file formats, or programming interfaces of the Software by any means whatsoever (except and only to the extent that applicable law prohibits or restricts reverse engineering restrictions); (b) distribute, sell, sublicense, rent, lease, or use the Software (or any portion thereof) for time sharing, hosting, service provider, or like purposes; (c) remove any product identification, proprietary, copyright, or other notices contained in the Software; (d) modify any part of the Software, create a derivative work of any part of the Software, or incorporate the Software into or with other software, except to the extent expressly authorized in writing by Licensor; or (e) publicly disseminate performance information or analysis (including, without limitation, benchmarks) from any source relating to the Software.

3. Ownership. Notwithstanding anything to the contrary contained herein, except for the limited license rights expressly provided herein, Licensor and its suppliers have and will retain all rights, title, and interest (including, without limitation, all patent, copyright, trademark, trade secret, and other intellectual property rights) in and to the Software and all copies, modifications, and derivative works thereof (including any changes which incorporate any of your ideas, feedback, or suggestions). You acknowledge that you are obtaining only a limited license right to the Software and that irrespective of any use of the words “purchase,” “sale,” or like terms hereunder no ownership rights are being conveyed to you under this EULA or otherwise.

4. Payment. You shall pay all fees associated with the Software. Except as expressly set forth herein, all fees are non-refundable once paid. You shall be responsible for all taxes, withholdings, duties and levies arising from such payment (excluding taxes based on the net income of Licensor).

5. Term.

5.1. Term. Unless a different term is specified at the time you obtained the Software from Fanfare, this EULA becomes effective on the Effective Date and remains in force for an initial term of two (2) years, unless earlier terminated in accordance with this Section 5. This EULA renews automatically for additional successive one (1) year renewal terms, unless notice of non-renewal is given to the other party at least thirty (30) days prior to the expiration of the then-current initial term or renewal term. Either party may terminate this EULA if the other party: (a) fails to cure any material breach of this EULA within thirty (30) days after written notice of such breach; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition, or comparable proceeding, or if any such proceeding is instituted against such party (and not dismissed within sixty (60) days). Termination is not an exclusive remedy and the exercise by either party of any remedy under this EULA will be without prejudice to any other remedies it may have under this EULA, by law, or otherwise.

5.2. Effect of Termination. Upon any expiration or termination of this EULA, you shall cease any and all use of any Software and destroy all copies thereof.

5.3. Survival. Sections 2.2 (License Restrictions), 3 (Ownership), 4 (Payment), 5 (Term of EULA), 6 (Disclaimer of Warranties), 7 (Limitation of Remedies and Damages), 7 (Confidential Information), 9 (Export Compliance), and 10 (General) shall survive any termination or expiration of this EULA.

6. Disclaimer of Warranties. THE SOFTWARE IS PROVIDED “AS IS.” NEITHER LICENSOR NOR ITS SUPPLIERS MAKES ANY OTHER WARRANTIES, CONDITIONS OR UNDERTAKINGS, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT. YOU MAY HAVE OTHER STATUTORY RIGHTS.

7. Limitation of Remedies and Damages.

7.1. NEITHER YOU NOR LICENSOR (INCLUDING LICENSOR’S SUPPLIERS) SHALL BE LIABLE FOR ANY LOSS OF USE, LOST DATA, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. THIS SECTION 7.1 SHALL NOT APPLY TO YOU WITH RESPECT TO ANY CLAIM ARISING UNDER THE SECTIONS TITLED “GRANT OF LICENSE,” “LICENSE RESTRICTIONS,” OR “CONFIDENTIAL INFORMATION.”

7.2. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, LICENSOR AND ITS SUPPLIERS’ ENTIRE LIABILITY TO YOU UNDER THIS AGREEMENT SHALL NOT EXCEED THE GREATER OF (A) THE AMOUNT ACTUALLY PAID BY YOU TO LICENSOR UNDER THIS AGREEMENT AND (B) $100 USD.

7.3. The parties agree that the limitations specified in this Section 7 will survive and apply even if any limited remedy specified in this EULA is found to have failed of its essential purpose.

8. Confidential Information. Any software, documentation or technical information provided by Licensor (or its agents) shall be deemed “Licensor Confidential Information” without any marking or further designation. Except as expressly authorized herein, you will hold in confidence and not use or disclose any Licensor Confidential Information. You acknowledge that disclosure of Licensor Confidential Information would cause substantial harm to Licensor that could not be remedied by the payment of damages alone and therefore that upon any such disclosure by you, Licensor shall be entitled to appropriate equitable relief in addition to whatever remedies it might have at law.

9. Export Compliance. You may not use or otherwise export or re-export the Software except as authorized by United States law and the laws of the jurisdiction in which the Software was obtained. In particular, but without limitation, the Software may not be exported or re-exported (a) into any U.S. embargoed countries or (b) 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 Software, 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 Software for any purposes prohibited by United States law, including, without limitation, the development, design, manufacture, or production of nuclear, missile, or chemical or biological weapons.

10. General.

10.1. Assignment. This EULA will bind and inure to the benefit of each party’s permitted successors and assigns. Licensor may assign this EULA to any affiliate or in connection with a merger, reorganization, acquisition, or other transfer of all or substantially all of Licensor’s assets or voting securities. You may not assign or transfer this EULA, in whole or in part, without Licensor’s written consent. Any attempt to transfer or assign this EULA without such written consent will be null and void.

10.2. Severability. If any provision of this EULA is adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited to the minimum extent necessary so that this EULA shall otherwise remain in effect.

10.3. Governing Law; Jurisdiction and Venue. This EULA shall be governed by the laws of The State of California and the United States without regard to conflicts of laws provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods. The jurisdiction and venue for actions related to the subject matter hereof shall be the State of California and United States federal courts located in Santa Clara County, California, and both parties hereby submit to the personal jurisdiction of such courts.

10.4. Third-Party Beneficiaries. If The Fanfare Group, Inc. is not a party to this EULA, it is an intended third-party beneficiary under this EULA and thereby has certain rights and remedies hereunder, including without limitation the right to enforce this EULA against either party.

10.5. Attorneys’ Fees and Costs. The prevailing party in any action to enforce this EULA will be entitled to recover its attorneys’ fees and costs in connection with such action.

10.6. Notices and Reports. Any notice or report hereunder shall be in writing. If to Licensor, such notice or report shall be sent to Licensor at the address above to the attention of “Legal Department.” If to you, such notice or report shall be sent to the address you provided upon creating your account or placing your order. Notices and reports shall be deemed given: (i) upon receipt if by personal delivery; (ii) upon receipt if sent by certified or registered U.S. mail (return receipt requested); or (iii) one day after it is sent if by next day delivery by a major commercial delivery service.

10.7. Amendments; Waivers. No supplement, modification, or amendment to this EULA shall be binding, unless executed in writing by a duly authorized representative of each party to this EULA. No waiver will be implied from conduct or failure to enforce or exercise rights under this EULA, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived.

10.8. Entire Agreement. This EULA, together with any additional rights granted in the Software documentation as provided in Section 2.2, is the complete and exclusive statement of the mutual understanding of the parties regarding the Software and, except for any terms of service agreement governing the Store, supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this EULA. No provision of any purchase order or in any other business form employed by you will supersede the terms and conditions of this EULA, and any such document issued by a party hereto relating to this EULA shall be for administrative purposes only and shall have no legal effect. Notwithstanding the foregoing, if you have entered into a separate written license agreement signed by Licensor for use of the Software, the terms and conditions of such other agreement shall govern your use of the Software.

10.9. Independent Contractors. The parties to this EULA are independent contractors. There is no relationship of partnership, joint venture, employment, franchise, or agency created hereby between the parties. Neither party will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.

10.10. Force Majeure. Neither party shall be liable to the other for any delay or failure to perform any obligation under this EULA (except for a failure to pay fees) if the delay or failure is due to unforeseen events, which occur after the signing of this EULA and which are beyond the reasonable control of the parties, such as strikes, blockade, war, terrorism, riots, natural disasters, or refusal of license by the government or other governmental agencies, in so far as such an event prevents or delays the affected party from fulfilling its obligations and such party is not able to prevent or remove the force majeure at reasonable cost.

10.11. Government End-Users. The Software is commercial computer software. If the user or licensee of the Software is an agency, department, or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Software, or any related documentation of any kind, including technical data and manuals, is restricted by a license agreement or by the terms of this EULA in accordance with Federal Acquisition Regulation 12.212 for civilian purposes and Defense Federal Acquisition Regulation Supplement 227.7202 for military purposes. The Software was developed or otherwise created fully at private expense. All other use is prohibited.

10.12. Third-Party Code. If designated in the documentation, the Software may contain or be provided with certain third-party code (including code which may be made available to you in source code form). Ownership, use, warranty, and modification rights with respect to any such designated code shall be as expressly set forth in the documentation.

Copyright 2010 by The Fanfare Group, Inc. All rights reserved.

Support | Contact | Terms of Service