You may download this Software only for your own internal use . You must read this Agreement and press the "I agree" button above to continue your purchase. By doing so, You agree to be bound by all of the terms of this Agreement.
IMPORTANT - READ CAREFULLY: THIS END USER LICENSE AGREEMENT ("AGREEMENT" OR "EULA") IS A LEGAL AGREEMENT BETWEEN YOU (IN YOUR CAPACITY AS AN INDIVIDUAL AND AS AN AGENT FOR YOUR COMPANY, INSTITUTION, OR OTHER ENTITY) ("YOU") AND ROCK YOUR PHONE, INC. ("ROCK YOUR PHONE"). ACCESSING, DOWNLOADING, INSTALLING, USING OR COPYING OF THE SOFTWARE (AS HEREAFTER DEFINED) BY YOU OR A THIRD PARTY ON YOUR BEHALF INDICATES YOUR AGREEMENT TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, DO NOT ACCESS, DOWNLOAD, INSTALL, USE OR COPY THE SOFTWARE. IN THE ABSENCE OF THIS AGREEMENT, YOU HAVE NO RIGHTS IN THE SOFTWARE.
1. Definitions. For purposes of this Agreement, the following definitions shall apply:
1.1 "Software" means software products that are licensed to you under this EULA, including, but not limited to, any related components purchased or provided with the Software, application programming interfaces, associated media including ringtones, sounds, images, printed materials, online or electronic documentation, and any updates and maintenance releases thereto as well as beta, trial or upgraded versions of the foregoing; the Software is offered by Rock Your Phone and/or the Providers (as defined herein) and is to be used in accordance with the Providers' and/or Rock Your Phone's software license and use agreements.
1.2 "Providers" means the third-parties who own and/or are authorized to distribute the Software through Rock Your Phone.
1.3 "Website" means www.rockyourphone.com, any Rock Your Phone proprietary website or any Provider website.
2. Grant and Scope of License.
A. Subject to Section 2(B) below and without warranty of any nature, Rock Your Phone hereby grants to You, and You hereby accept, a non-transferable, non-exclusive license ("License") to download, install and use the Software in binary executable form on one computer/mobile device for use. Except as specifically and subsequently permitted in writing by Rock Your Phone, you shall not:
(i) Copy, modify, sell or transfer any part of the Software;
(ii) Sublicense or permit simultaneous use of the Software by more than one user;
(iii) Distribute, transfer or otherwise provide the Software to a third party;
(iiii) Reverse engineer, modify, disassemble, decompile, or translate the Software, attempt to do so, or otherwise attempt to derive the source code of the Software, except as expressly allowed, and only to the extent of such express permission, under applicable law or, where applicable, as provided pursuant to the use of open-sourced components.
All information revealed or discovered through reverse engineering, modification, or other examination of the Software must be promptly disclosed to Rock Your Phone and all inventions, modifications, expansions, translations, and the product of any reverse engineering, disassembly, decompiling or other attempted alteration or replication of the Software shall be the confidential proprietary information of Rock Your Phone.
B. Beta and Evaluation Licenses. Any License not purchased from Rock Your Phone on a permanent basis (e.g., evaluation licenses) and any beta version, whether or not purchased for an unlimited period, are provided for a limited duration and the limited purpose expressly set forth by Rock Your Phone in connection with the provision of the Software. At the end of the evaluation period, if a beta product is removed from the market, or upon request of Rock Your Phone, You will cease use of the Software, remove the Software from Your computers and destroy all copies of the Software. You agree that the Software may automatically disable itself at the end of the evaluation period, license period, or beta period.
C. Permitted Copying. You may install copies of the Software on an unlimited number of computers provided that You are the only individual using the Software and only one copy of the Software is in use at any one time. Notwithstanding anything to the contrary elsewhere in this Agreement, You may not distribute any portion of the Software. A separate license is required for each additional use and/or individual user in all other cases.
D. All rights not expressly granted in the EULA are reserved by Rock Your Phone and/or the Providers, as applicable.
E. You understand, acknowledge, and agree that Rock Your Phone may not be owner of the Software and, as such, is not responsible for its content and/or functionality. You acknowledge and agree that Rock Your Phone is not responsible for examining or evaluating the content or the accuracy,
F. You agree / permit Rock Your Phone to audit your compliance with this Agreement, as Rock Your Phone deems reasonably necessary. You acknowledge that money damages may not be an adequate remedy for any breach or violation of any requirement set forth in this Agreement and that any such breach or violation may leave Rock Your Phone without an adequate remedy at law. You therefore agree that, in addition to any other remedies available at law, in equity or under this Agreement, Rock Your Phone shall be entitled to obtain temporary, preliminary and permanent injunctive relief, without bond, from a court of competent jurisdiction to restrain any such breach or violation solely upon demonstration of breach or threatened breach of the EULA.
3. Rights Reserved; Ownership.
A. Title to the Software, any modifications, and all copies thereof remain with Rock Your Phone and/or Providers. The Software is protected by the copyright laws of the United States and other nations and applicable international treaty provisions. The Software includes trade secrets and information that is confidential and proprietary to Rock Your Phone and You agree to take all necessary actions to protect the confidentiality of such information. You will not remove the copyright notice or any proprietary trade or service marks of Rock Your Phone and/or Providers from the Software. You agree to prevent any unauthorized copying of the Software. Except as expressly provided herein, Rock Your Phone does not grant any express or implied right to You under any patents, copyrights, trademarks or trade secret information. “Rock Your Phone” is a trademark of Rock Your Phone, Inc.
4. No Support. The Software License does not grant you any right to enhancements or updates to, or support or maintenance for, the Software or any modifications made by Rock Your Phone and/or Providers. Rock Your Phone and/or Providers may make feature/maintenance updates available for a fee, or at no cost, and reserves the right at any time not to release or to discontinue release of any Software and to alter prices, features, specifications, capabilities, functions, licensing terms, release dates, general availability or other characteristics of the Software without notice. Any and all upgrades and enhancements made available to you shall become part of the Software and become subject to this Agreement. Rock Your Phone is not in control of external servers and thus can not guarantee future functionality of the application.
5. Consent to Use of Data. To facilitate the provision of software updates and any dynamically served content and other services to you, and to verify compliance with the terms of this License, you agree that Rock Your Phone and may collect, use, store and transmit technical and related information that identifies your computer (including an Internet Protocol Address and hardware identification), operating system and application software and peripheral hardware. Rock Your Phone and its affiliates may also use this information in the aggregate, in a form which does not personally identify you, to improve our products and services and we may share anonymous aggregate data with our third party service providers and for other uses.
6. NO WARRANTY; NO RETURNS. THE SOFTWARE IS LICENSED TO YOU "AS IS" WITHOUT WARRANTY OF ANY TYPE OR NATURE. ROCK YOUR PHONE HEREBY EXPRESSLY DISCLAIMS ANY WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT OR ANY WARRANTIES ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE. IN ADDITION, ROCK YOU PHONE EXPRESSLY DISCLAIMS ANY LIABILITY FOR THE ACCURACY, COMPLETENESS OR USEFULNESS OF THE SOFTWARE AND DOES NOT WARRANT THAT THE SOFTWARE IS FREE OF DEFECTS, VIRUSES, TROJAN HORSES, WORMS, TIME BOMBS, LOGIC BOMBS, TRAP DOORS, CANCELBOTS, EASTER EGGS, OR OTHER COMPUTER PROGRAMMING ROUTINES THAT MAY DAMAGE, DETRIMENTALLY INTERFERE WITH, INTERCEPT, OR USE ANY SYSTEM, DATA, OR PERSONAL INFORMATION IN AN UNAUTHORIZED WAY. YOU ACKNOWLEDGE, UNDERSTAND, AND AGREE THAT THE SOFTWARE MAY CONTAIN DEFECTS AND/OR ERRORS OR MAY MALFUNCTION. YOU ASSUME TOTAL RESPONSIBILITY AND RISK FOR YOUR USE OF THE SOFTWARE, INCLUDING, BUT NOT LIMITED TO ANY DEFECTS OR INACCURACIES THEREIN.
ROCK YOUR PHONE DOES NOT WARRANT THAT THE SOFTWARE WILL COMPLY WITH REQUIREMENTS OF, OR OPERATE CONSISTENTLY WITH, YOUR HARDWARE OR OTHER SOFTWARE. YOU EXPRESSLY ASSUME THE RISK THAT THE SOFTWARE MAY DAMAGE YOUR HARDWARE OR SOFTWARE OR CAUSE YOU TO BE IN BREACH OF THE TERMS OF SERVICE PURSUANT TO WHICH YOU ACQUIRED THE OTHER HARDWARE OR SOFTWARE.
EXCEPT AS PERMITTED BY ROCK YOUR PHONE'S THEN-CURRENT RETURN POLICY (AS POSTED ON THE WEBSITE WWW.ROCKYOURPHONE.COM), THE SOFTWARE IS NOT RETURNABLE. YOU AGREE THAT THE SOFTWARE, YOUR PURCHASE OF THE SAME AND ANY SERVICES PROVIDED IN CONJUNCTION WITH THE SOFTWARE ARE SUBJECT TO ROCK YOUR PHONE'S RETURN POLICY, WHICH IS SUBJECT TO CHANGE WITHOUT NOTICE TO YOU.
7. Limitation of Liability. IN NO EVENT SHALL ROCK YOUR PHONE BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES OF ANY KIND OR NATURE, INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS OR LOSS OF DATA, FOR ANY REASON WHATSOEVER, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE, EVEN IF ROCK YOUR PHONE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES. IN NO EVENT SHALL ROCK YOUR PHONE'S LIABILITY FOR DAMAGES ARISING FROM OR IN CONNECTION WITH THIS AGREEMENT EXCEED THE AGGREGATE AMOUNT PAID BY YOU IN RESPECT OF THE SOFTWARE DURING THE TWELVE MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO LIABILITY. BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. IN THE EVENT THAT APPLICABLE LAW DOES NOT ALLOW THE COMPLETE EXCLUSION OR LIMITATION OF LIABILITY OF CLAIMS AND DAMAGES AS SET FORTH IN THIS AGREEMENT, ROCK YOUR PHONE'S LIABILITY IS LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW. In no event shall Rock Your Phone's total liability to you for all damages exceed the amount of fifty dollars ($50.00). The foregoing limitations will apply even if the above stated remedy fails of its essential purpose.
8. Indemnification. You indemnify and hold harmless Rock Your Phone and its licensors and their respective directors, officers, agents, employees and volunteers from and against any and all claims, suits, losses, damages, costs, fees and expenses, including the costs of defense through counsel selected by Rock Your Phone, arising out of or in connection with this Agreement. You shall pay all costs incurred by Rock Your Phone in enforcing this provision, including reasonable attorneys' fees and court costs. You agree that under no circumstances will Rock Your Phone indemnify You or any other person.
YOU REPRESENT THAT YOU ARE A UNITED STATES PERSON (AS PROVIDED FOR APPLICABLE LAW), THAT YOU WILL USE THE SOFTWARE ONLY FOR LAWFUL PURPOSES AND NOT USE IT TO INFRINGE COPYRIGHTS OR VIOLATE BINDING LEGAL AGREEMENTS.
9. Confidentiality. You are entirely responsible for any and all activities that occur under the account you open with Rock Your Phone. You agree to notify Rock Your Phone immediately of any unauthorized use of your account or any other breach of security. Rock Your Phone will not be liable for any loss that you may incur as a result of unauthorized account use, either with or without your knowledge.
10. User Submissions. You agree that any material, information or other communication relating to the Software, including all data, images, sounds, text, and other things embodied therein, You transmit to Rock Your Phone, post to a Rock Your Phone Website, or otherwise provide to Rock Your Phone ("Communications") will be non-confidential and Rock Your Phone will have no confidentiality obligations with respect to the Communications. To the extent you provide suggestions for improvements or ideas for new products to Rock Your Phone, such suggestions and ideas shall become property of Rock Your Phone on submission. You agree that Rock Your Phone and its designees will be free to copy, modify, create derivative works, publicly display, disclose, distribute, license and sublicense through multiple tiers of distribution and incorporate and otherwise use the Communications, including derivative works thereto and new works, for any and all commercial or non-commercial purposes without compensation or other obligation and that Rock Your Phone is the sole and exclusive owner of any and all such modifications and new or derivative works.
11. Term.
A. This EULA will commence on the date which you receive the Software or on the date which You pay the applicable license fee for the Software (the "Effective Date"), which ever comes first, and will continue in full force and effect, unless terminated earlier as provided herein. You may terminate this License provided under this EULA upon ten (10) days' written notice to Rock Your Phone, provided that such termination will not entitle You to a refund of any fees.
B. Rock Your Phone may terminate your License(s) immediately should You materially breach any of the provisions of this EULA or take any action in derogation of Rock Your Phone's rights to the Software, including, but not limited to disclosing, modifying, decompiling, translating, disassembling or reverse engineering the Software. Your right to use the Software will automatically terminate if You fail to comply with the material terms of this EULA or fail to make payment for the Software. Either party may terminate the Software Licenses at any time for cause if the other party files a petition or seeks relief under the bankruptcy or insolvency laws of any state or the United States.
C. Upon any termination of any Software License, You agree to immediately remove such Software from Your computers, destroy all copies of such Software, and, upon request from Rock Your Phone, certify in writing Your compliance herewith.
12. General Provisions. If any of the terms, or portions thereof, of this EULA are invalid or unenforceable under any applicable statute or rule of law, the court will reform the contract to include an enforceable term as close to the intent of the original term as possible; all other terms will remain unchanged. The waiver or failure of either party to exercise in any respect any right provided for in this EULA will not be deemed a waiver of any further or future right under this EULA. This EULA will inure to the benefit of, and is freely assignable to, Rock Your Phone' successors and assignees of rights in the Software. This EULA is governed by and construed in accordance with the laws of State of Colorado, without regard to its conflict of law provisions, and the United States, including trademark, patent and copyright laws.
13. Export Control. You may not export, ship, transmit, or re-export the Software in violation of any applicable law or regulation, including, without limitations, the Export Administration Regulations issued by the United States Department of Commerce.
14. United States Government Rights.
A. Department of Defense End Users: If the Software is acquired by or on behalf of agencies or units of the Department of Defense ("DOD"), then, pursuant to DOD FAR Supplement Section 227.7202 and its successors (48 C.F.R. 227.7202) the Government's right to use, reproduce or disclose the Software and any accompanying documentation acquired under this License Agreement is subject to the restrictions of this Agreement.
B. Civilian Agency End Users: If the Software is acquired by or on behalf of civilian agencies of the U.S. Government, then, pursuant to FAR Section 12.212 and its successors (48 C.F.R. 12.212), the Government's right to use, reproduce or disclose the Software and any accompanying documentation acquired under this License Agreement is subject to the restrictions of this License Agreement.
15. Entire Agreement. This EULA constitutes the entire agreement between You and Rock Your Phone relating to the Software, and any additions to, or modifications of, this EULA will be binding upon the parties only if the same will be in writing and duly executed by You and by a duly authorized officer of Rock Your Phone. If You purchased the Software through a reseller, You acknowledge that the reseller is not a Rock Your Phone agent and is not authorized to alter, amend or modify the terms of this EULA or to otherwise grant any license or other rights relating in any way to the Software.
16. Governing Law and Venue.
Notwithstanding the Territory, this Agreement will be governed by both the substantive and procedural laws of Colorado, U.S.A., excluding its conflict of law rules. Any dispute regarding this Agreement will be heard in the state or federal courts having jurisdiction in El Paso County, Colorado, U.S.A. and You agree that You shall be subject to the personal jurisdiction of such courts and waive any assertion that such forum is inconvenient.
