This end user software license agreement (“License”) governs your use of the mobile application DealCheck (“Application”), created and maintained by Fortnoff Financial LLC (“We” or “Us”). By downloading and using the Application, you agree to be bound by the terms and conditions contained herein.
If you do not agree to the terms of this License, please uninstall the Application from your mobile device.
1. License Grant
2. Restrictions on Use
You shall use the Application strictly in accordance with the terms of this License and shall not (i) decompile, reverse engineer, disassemble, attempt to derive the source code of, or decrypt the Application; (ii) make any modifications, adaptations, improvements, enhancements, translations or derivative work from this Application; (iii) violate any applicable laws, rules or regulations in connection with your access or use of the Application; (iv) remove, alter or obscure any proprietary notice (including any notice of copyright or trademark) of Us or our affiliates, partners, suppliers or the licensors of the Application; (v) use the Application for any revenue generating endeavor, commercial enterprise, or other purpose for which it is not designed or intended; (vi) use the Application for creating a product, service or software that is, directly or indirectly, competitive with or in any way a substitute for any services, products or software offered by Us; (vii) use the Application to send automated queries to any website or to send any unsolicited commercial e-mail; or (viii) use any proprietary information, interfaces or intellectual property obtained from Us in the design, development, manufacture, licensing or distribution of any applications, accessories or devices for use with the Application.
3. Intellectual Property Rights
3.1 Rights to the Application
You acknowledge and agree that the Application and all copyrights, patents, trademarks, trade secrets and other intellectual property rights associated therewith are, and shall remain, our property. Furthermore, you acknowledge and agree that the source and object code of the Application and the format, directories, queries, algorithms, structure and organization of the Application are the intellectual property and proprietary and confidential information owned by Us and our affiliates, licensors and suppliers. Except as expressly stated in this License, you are not granted any intellectual property rights in or to the Application by implication, estoppel or other legal theory, and all rights in and to the Application not expressly granted in this License are hereby reserved and retained by Us.
3.2 Third Party Software
The Application may utilize or include third party software that is subject to open source or third party license terms (“Third Party Software”). You acknowledge and agree that your right to use such Third Party Software as part of the Application is subject to and governed by the terms and conditions of the open source or third party license applicable to such Third Party Software, including, without limitation, any applicable acknowledgements, license terms and disclaimers contained therein. In the event of a conflict between the terms of this License and the terms of such open source or third party licenses, the terms of the open source or third party license shall control with regard to your use of the relevant Third Party Software. In no event shall the Application or components thereof be deemed to be “open source” or “publicly available” software.
3.3 Our Marks
You are not authorized to use our trademarks in any advertising, publicity or in any other commercial manner without our prior written consent, which may be withheld for any or no reason.
3.4 Infringement Acknowledgement
You and We acknowledge and agree that, in the event of a third party claim that the Application or your possession or use of the Application infringes any third party’s intellectual property rights, you, and not Us, will be responsible for the investigation, defense, settlements and discharge of any such claim of intellectual property infringement. You will, however, promptly notify Us in writing of any such claims.
4. Restriction on Transfer
You may not rent, lease, lend, sublicense or transfer the Application, this License or any of the rights granted hereunder. Any attempted transfer in contravention of this provision shall be null and void and of no force or effect.
5. Use of Information
5.1 Consent to Use Information
You hereby authorize and consent to the collection, storage and use, by Us and our affiliates, partners and agents, of any information and data related to or derived from your use of the Application, and any information or data that you provide to Us and our affiliates, partners and licensors (“Information”).
6. Third Party Content and Services
You acknowledge that the Application permits access to products, services, web-sites, advertisements, promotions, recommendations, advice, information and materials created and provided by advertisers, publishers, content partners, marketing agents, vendors and other third parties (“Third Party Content and Services”).
You acknowledge that We do no investigate, monitor, represent or endorse the Third Party Content and Services (including any third party websites available through the Application). Furthermore, your access to and use of the Third Party Content and Services is at your sole discretion and risk and We and our affiliates, partners, suppliers and licensors shall have no liability to you arising out of or in connection with your access to and use of the Third Party Content and Services. We hereby disclaim any representation, warranty or guaranty regarding the Third Party Content and Services, whether express, implied or statutory, including, without limitation, the implied warranties of merchantability or fitness for a particular purpose, and any representation, warranty or guaranty regarding the availability, quality, reliability, features, appropriates, accuracy, completeness, or legality of the Third Party Content and Services.
6.3 Third Party Terms of Service
You acknowledge and agree that your access to and use of the Third Party Content and Services and any correspondence of business dealings between you and any third party located using the Application are governed by and require your acceptance of the terms of service of such third party, including, without limitation, any terms, privacy policies, conditions, representations, warranties or disclaimers contained therein. Furthermore, you acknowledge and agree that the Third Party Content and Services and any related third party terms of service are subject to change by the applicable third party at its sole discretion and without any notice. You assume all risks arising out of or resulting from your transaction of business over the Internet and with any third party, and you agree that We and our affiliates, partners, suppliers and licensors are not responsible or liable for any loss or result of the presence of information about or links to such advertisers or service providers. Furthermore, you acknowledge and agree that you are not being granted a license to (i) the Third Party Content and Services; (ii) any copyright, trademark, patent or other intellectual property right in the Third Party Content or Services or any products, services, processes or technology described or offered therein.
You acknowledge and agree that the provision of access to any Third Party Content and Services shall not constitute or imply any endorsement by Us or our affiliates of such Third Party Content and Services. We reserve the right to restrict or deny access to any Third Party Content and Services otherwise accessible through the Application, although We have no obligation to restrict or deny access even if requested by you.
6.5 Inappropriate Materials
You understand that by accessing and using the Third Party Content and Services, you may encounter information, materials and subject matter (i) that you or others may deem offensive, indecent, or objectionable; (ii) which may or may not be identified as having explicit language, and (iii) that automatically and unintentionally appears in search results, as a link or reference to objectionable material. Notwithstanding the foregoing, you agree to use Third Party Content and Services at your sole risk and that We and our affiliates, partners, suppliers and licensors shall have no liability to you for information, material or subject matter that is found to be offensive, indecent, or objectionable.
7. Term and Termination
This License shall be effective until terminated. We may, in our sole and absolute discretion, at any time and for any or no reason, suspend or terminate this License and the rights afforded to you hereunder with or without prior notice. Furthermore, if you fail to comply with any terms and conditions of this License, then this License and any rights afforded to you hereunder shall terminate automatically, without any notice or other action by Us. Upon the termination of this License, you shall cease all use of the Application and uninstall it from your mobile device.
8. Disclaimer of Warranties
You acknowledge and agree that the Application is provided on an “as is” and “as available” basis, and that your use of or reliance upon the Application and any Third Party Content and Services accessed thereby is at your sole risk and discretion. We and our affiliates, partners, suppliers and licensors hereby disclaim any and all representations, warranties and guaranties regarding the Application and Third Party Content and Services, whether express, implied or statutory, and including, without limitation, the implied warranties of merchantability, fitness for a particular purpose, and non-infringement. Furthermore, We and our affiliate, partners, suppliers and licensors make no warranty that (i) the Application or Third Party Content and Services will meet your requirements; (ii) the Application or Third Party Content and Services will be uninterrupted, accurate, reliable, timely, secure or error-free, including any calculations performed by the Application; (iii) the quality of any products, services, information or other material accessed or obtained by you through the Application will be as represented or meet your expectations; or (iv) any errors in the Application or Third Party Content and Services will be corrected. No advice or information, whether oral or written, obtained by you from Us or from the Application shall create any representation, warranty or guaranty. Furthermore, you acknowledge that We have no obligation to correct any errors or otherwise support or maintain the Application.
9. Limitation of Liability
Under no circumstances shall We or our affiliates, partners, suppliers or licensors be liable for any indirect, incidental, consequential, special or exemplary damages arising out of or in connection with your access or use or inability to access or use the Application and any Third Party Content and Services, whether or not the damages were foreseeable and whether or not We were advised of the possibility of such damages. Without limiting the generality of the foregoing, our aggregate liability to you (whether under contract, tort, statute or otherwise) shall not exceed the amount of fifty dollars ($50.00). The foregoing limitations will apply even if the above stated remedy fails to its essential purpose.
You shall indemnify, defend and hold harmless Us and our affiliates, partners, suppliers and licensors, and each of our and their respective officers, directors, agents and employees from and against any claim, proceeding, loss, damage, fine, penalty, interest and expense (including, without limitation, fees for attorneys and other professional advisors) arising out of or in connection with the following: (i) your access to or use of the Application or Third Party Content and Services; (ii) your breach of this License; (iii) your violation of law; (iv) your negligence or willful misconduct; or (v) your violation of the rights of a third party, including the infringement by you of any intellectual property or misappropriation of any proprietary right or trade secret of any person or entity. These obligations will survive any termination of the License.
We do not warrant that the Application will be compatible or interoperable with your mobile device or any other piece of hardware, software, equipment or device installed on or used in connection with your mobile device. Furthermore, you acknowledge that compatibility and interoperability problems can cause the performance of your mobile device to diminish or fail completely, and may result in permanent damage to your mobile device, loss of the data located on your mobile device, and corruption of the software and files located on your mobile device. You acknowledge and agree that We and our affiliates, partners, suppliers and licensors shall have no liability to you for any losses suffered resulting from or arising in connection with compatibility or interoperability problems.
12. Product Claims
You acknowledge that you (not Us) are responsible for addressing any third party claims relating to your use or possession of the Application, and agree to notify Us of any third party claims relating to the Application of which you become aware. Furthermore, you hereby release Us from any liability resulting from your use or possession of the Application, including, without limitation, the following: (i) any product liability claims; (ii) any claim that the Application fails to conform to any applicable legal or regulatory requirement; and (iii) any claim arising under consumer protection or similar legislation.
13.1 Governing Law
This License shall be deemed to take place in the State of California and shall be governed by and construed in accordance with the laws of the State of California, excluding its conflicts of law principles. Any disputes arising from this License shall be adjudicated in the courts of the City of San Diego. This License shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.
If any provision of this License is held to be invalid or unenforceable with respect to a party, the remainder of this License, or the application of such provision to persons other than those to whom it is held invalid or unenforceable shall not be affected and each remaining provision of this License shall be valid and enforceable to the fullest extent permitted by law.
Except as provided herein, the failure to exercise a right or require performance of an obligation under this License shall not effect a party’s ability to exercise such right or require such performance at any time thereafter nor shall the waiver or a breach constitute waiver of any subsequent breach.
13.4 Modification or Amendment
We may modify or amend the terms of this License by posting a copy of the modified or amended License on this page. You will be deemed to have agreed to any such modification or amendment by your decision to continue using the Application following the date in which the modified or amended License is posted on this page.
The following sections of this License and any other provisions of this License which by their express language or by their context are intended to survive the termination of this License shall survive such termination: 1, 2, 3, 4, 5, 7, 8, 10, 12 and 13.
13.6 Entire Agreement
This License including the documents incorporated herein by reference constitute the entire agreement with respect to the use of the Application licensed hereunder and supersedes all prior or contemporaneous understandings regarding such subject matter.