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User License Agreement:
PLEASE READ CAREFULLY
Before reading the articles below, please note the following preliminary terms, which use some of the ...
Show Full License
PLEASE READ CAREFULLY
Before reading the articles below, please note the following preliminary terms, which use some of the definitions specified in Article 1 below:
No Emergency Calls: by entering into this Agreement You acknowledge and agree that the Nimbuzz Software does not and does not intend to support or carry emergency calls. Please also see article 7 below.
Entering into this Agreement: this End User License Agreement constitutes a valid and binding agreement between Nimbuzz and You, as a user, for the use of the Nimbuzz Software. You must enter into this Agreement by clicking on the ACCEPT button in order to install and use the Nimbuzz Software. You hereby agree and acknowledge that this Agreement covers all Your use of Nimbuzz Software, whether it be from this installation or from any other terminals where Nimbuzz Software has been installed, by You or by third parties. Furthermore, by installing and continuing to use the Nimbuzz Software You agree to be bound by the terms of this Agreement and any new versions hereof.
Electronic Signatures and Agreement(s): You acknowledge and agree that by clicking on the ACCEPT button or similar buttons or links as may be designated by Nimbuzz to show Your approval of any foregoing texts and/or to download and install the Nimbuzz Software, You are entering into a legally binding contract. You hereby agree to the use of electronic communication in order to enter into contracts, place orders and other records and to the electronic delivery of notices, policies and records of transactions initiated or completed through the Nimbuzz Software. Furthermore, You hereby waive any rights or requirements under any laws or regulations in any jurisdiction which require an original (non-electronic) signature or delivery or retention of non-electronic records, to the extent permitted under applicable mandatory law.
Jurisdiction’s Restrictions: if You are residing in a jurisdiction which restricts the use of internet-based applications according to age, or which restricts the ability to enter into agreements such as this agreement according to age and You are under such a jurisdiction and under such age limit, You may not enter into this Agreement and download, install or use the Nimbuzz Software. Furthermore, if You are residing in a jurisdiction where it is forbidden by law to offer or use software for Internet telephony, You may not enter into this Agreement and You may not download, install or use the Nimbuzz Software. By entering into this Agreement You explicitly state that You have verified in Your own jurisdiction if Your use of the Nimbuzz Software is allowed.
Article 1 Definitions
In this Agreement the following capitalized definitions are being used, singular as well as plural.
1.1 Affiliate: any corporation, company or other entity that directly or indirectly controls, is controlled by, or is under common control with, Nimbuzz. For the purpose of this definition, the word "control" shall mean the direct or indirect ownership of more than fifty percent (50%) of the outstanding voting stock of the corporation, company, or other entity.
1.2 Agreement: this End User License Agreement, as may be renewed, modified and/or amended from time to time.
1.3 Emergency Services: means services that connect a user to emergency services personnel or public safety answering points pursuant to applicable local and or national regulatory requirements.
1.4 Documentation: any online or otherwise enclosed documentation provided by Nimbuzz.
1.5 Effective Date: the date on which this Agreement is entered into by clicking on the ACCEPT button as stated above.
1.6 IP Rights: any and all intellectual property rights, including but not limited to copyrights, trademarks and patents, as well as know how and trade secrets contained in or relating to the Nimbuzz Software, the Documentation, the Nimbuzz Website or the Nimbuzz Promotional Materials.
1.7 Password: refers to a code You select, which, in combination with the User ID, gives You access to Your User Account.
1.8 Nimbuzz: refers to the company established under the laws of the Netherlands, Buzzaa Media Group BV, with its address at Patrijsweg 102, 2289 EZ Rijswijk ZH, The Netherlands, reg.no (24360074), VAT no. (NL8138.35.732.B.01).
1.9 Nimbuzz Online Material: the Nimbuzz banner available for download on the Nimbuzz Website, consisting of a Nimbuzz logo and a link to the Nimbuzz Website.
1.10 Nimbuzz Promotional Materials: any and all trademarks, names, signs, logos, banners, Nimbuzz Online Material and any other materials, in whatever form, owned and/or used by Nimbuzz for the promotion of its company, its products and activities.
1.11 Nimbuzz Software: the software distributed by Nimbuzz, including without limitation the UI and Documentation, as well as any future programming fixes, updates and upgrades thereof.
1.12 Nimbuzz Staff: the officers, directors, employees and agents of Nimbuzz or its Affiliates, or any other persons hired by Nimbuzz or its Affiliates.
1.13 Nimbuzz Website: any and all elements, contents and the ‘look and feel’ of the website available - among other URL’s - under the URL www.nimbuzz.com, from which website the Nimbuzz Software can be downloaded.
1.14 Terms of Service: means the agreement between Nimbuzz and You for the use of the Nimbuzz Services.
1.15 UI: the user interface of the Nimbuzz Software.
1.16 User Account: refers to the account with User ID and Password that You create for Your use of the Nimbuzz Software;
1.17 User ID: refers to an identification code You selected, which in combination with the Password, gives access to Your User Account;
1.18 You: you, the end user of the Nimbuzz Software, also used in the form “Your” where applicable.
Article 2 License and Restrictions
2.1 License. Subject to the terms of this Agreement, Nimbuzz hereby grants You a limited, personal, non-commercial, non-exclusive, non-sublicensable, non-assignable, free of charge license to download, install and use the Nimbuzz Software on Your computer(s) and/or phone and/or PDA for the sole purpose of personally using the services and applications provided by Nimbuzz and any other applications that may be explicitly provided by Nimbuzz. For the avoidance of doubt, You are allowed to use Nimbuzz Software at work, in accordance with the terms of this Agreement.
2.2 No Granting of Rights to Third Parties. You will not sell, assign, rent, lease, distribute, export, import, act as an intermediary or provider, or otherwise grant rights to third parties with regard to the Nimbuzz Software or any part thereof.
2.3 No Modifications. You will not undertake, cause, permit or authorize the modification, creation of derivative works, translation, reverse engineering, decompiling, disassembling or hacking of the Nimbuzz Software or any part thereof.
2.4 Third Parties. You acknowledge and agree that the Nimbuzz Software may be incorporated into, and may incorporate itself, software and other technology owned and controlled by third parties. Any such third party software or technology that is incorporated in the Nimbuzz Software falls under the scope of this Agreement. Any and all other third party software or technology that may be distributed together with the Nimbuzz Software will be subject to you explicitly accepting a license agreement with that third party. You acknowledge and agree that you will not enter into a contractual relationship with Nimbuzz or its Affiliates regarding such third party software or technology and you will look solely to the applicable third party and not to Nimbuzz or its Affiliates to enforce any of your rights.
2.5 New Versions of the Nimbuzz Software. Nimbuzz, in its sole discretion, reserves the right to add additional features or functions, or to provide programming fixes, updates and upgrades, to the Nimbuzz Software. You acknowledge and agree that Nimbuzz has no obligation to make available to You any subsequent versions of the Nimbuzz Software. You also agree that you may have to enter into a renewed version of this Agreement, in the event you want to download, install or use a new version of the Nimbuzz Software. Furthermore, You acknowledge and agree that Nimbuzz, in its sole discretion, may modify or discontinue or suspend Your ability to use any version of the Nimbuzz Software, and/or disable any Nimbuzz Software You may already have accessed or installed without any notice to You, for the repair, improvement, and/or upgrade of the underlying technology or for any other justifiable reason, including but not limited to, cirucmstances where You, at Nimbuzz’s discretion, are in breach of this Agrement, creating problems, possible legal liabilities, acting inconsistently with the letter or spirit of our policies, which can be found at http://www.nimbuzz.com/en/legal/etiquette, or engaging in fraudulent, immoral or illegal activities, or for other similar reasons. Nimbuzz will not accept any liability in relation to the direct or indirect damages caused by (1) the release and/or the absence of release of new versions of the Nimbuzz Software and (2) by the suspension or termination of the license or this Agreement by Nimbuzz and/or by You.
2.6 Premium (Paid) Services. This Agreement applies to downloading,
installing and using the Nimbuzz Software, free of charge. The use of any premium (paid) services which may be offered by Nimbuzz or its Affiliates is subject to the additional Terms of Service that are published on the Nimbuzz Website.
Article 3 Definitions to License Restrictions and Additional Terms
3.1 Distribution of Nimbuzz Software. You are not allowed to distribute the Nimbuzz Software under this Agreement. For the right to distribute You will have to agree to and meet with the Distribution Terms as published on the Nimbuzz Website.
3.2 Nimbuzz Promotional Materials. Nothing in this Agreement will give You any right to use the Nimbuzz Promotional Materials.
Article 4 Utilization of Your computer
4.1 Utilization of Your computer. You hereby acknowledge that the Nimbuzz Software may utilize the processor and bandwidth of the computer (or other applicable device) You are utilizing, for the limited purpose of facilitating the communication between Nimbuzz Software users.
4.2 Protection of Your computer (resources). You understand that the Nimbuzz Software will use its commercially reasonable efforts to protect the privacy and integrity of the computer resources (or other applicable device) You are utilizing and of Your communication, however, You acknowledge and agree that Nimbuzz cannot give any warranties in this respect.
Article 5 Confidentiality and Privacy
5.1 Nimbuzz’s Confidential Information. You agree to take all reasonable steps at all times to protect and maintain any confidential information regarding Nimbuzz, its Affiliates, the Nimbuzz Staff, the Nimbuzz Software and the IP Rights, strictly confidential.
Article 6 IP Rights and Translations
6.1 Exclusive Ownership. You acknowledge and agree that any and all IP Rights to or arising from the Nimbuzz Software are and shall remain the exclusive property of Nimbuzz and/or its licensors. Nothing in this Agreement intends to transfer any such IP Rights to, or to vest any such IP Rights in, You. You are only entitled to the limited use of the IP Rights granted to You in this Agreement. You will not take any action to jeopardize, limit or interfere with the IP Rights. You acknowledge and agree that any unauthorized use of the IP Rights is a violation of this Agreement as well as a violation of intellectual property laws, including without limitation copyright laws and trademark laws. You acknowledge and understand that all title and IP Rights in and to any third party content that is not contained in the Nimbuzz Software, but may be accessed through use of the Nimbuzz Software, is the property of the respective content owners and may be protected by applicable copyright or other intellectual property laws and treaties.
6.2 No Removal of Notices. You agree that You will not remove, obscure, make illegible or alter any notices or indications of the IP Rights and/or Nimbuzz’s rights and ownership thereof, whether such notice or indications are affixed on, contained in or otherwise connected to such materials.
6.3 Translations. You acknowledge and agree that the intellectual property rights regarding any translations made by You of any information on or accessible through the Nimbuzz Website or as otherwise requested of You by Nimbuzz at any time prior
to or subsequent of the Effective Date will be and remain the sole and exclusive property of Nimbuzz without any compensation to You.
Article 7 Communication and Your Use of the Nimbuzz Software
7.1 Communication. Installing Nimbuzz Software enables You to communicate with other Nimbuzz Software users.
7.2 No Warranties. Nimbuzz cannot guarantee that You will always be able to communicate with other Nimbuzz Software users, nor can Nimbuzz guarantee that You can communicate without disruptions, delays or communication-related flaws or that all Your
communication shall always be delivered to other Nimbuzz Software users. Nimbuzz will not be liable for any such disruptions, delays or other omissions in any communication experienced when using Nimbuzz Software.
7.3 No Responsibility of Content. You acknowledge and understand that the content of the communication spread by the use of the Nimbuzz Software is entirely the responsibility of the person from whom such content originated. You, therefore, may be exposed to content that is offensive, harmful to minors, indecent or otherwise objectionable. Nimbuzz will not be liable for any type of communication spread by means of the Nimbuzz Software.
7.4 No Emergency Services. You expressly agree and understand that the Nimbuzz Software is not intended to support or carry emergency calls to any type of hospital, law enforcement agency, medical care unit or any other kind of Emergency Service. Nimbuzz, its Affiliates or Nimbuzz Staff are in no way liable for such emergency calls.
7.4.1 Alternative Arrangements. By agreeing to this Agreement You understand that additional arrangements must be made to access Emergency Services. To access Emergency Services, You acknowledge and accept Your responsibility to purchase, separately from Nimbuzz Software, traditional wireless or wireline telephone service that offers access to Emergency Services.
7.4.2 No Compulsion to Offer Emergency Services. You recognize and agree that Nimbuzz is not required to offer Emergency Services pursuant to any applicable local and or national rules, regulation or law. You further recognize that Nimbuzz is not a replacement for Your primary telephone service.
7.5 Lawful purposes. You acknowledge and agree to use the Nimbuzz Software solely for lawful purposes. In this respect You may not, without limitation (a) intercept or monitor, damage or modify any communication which is not intended for You, (b)
use any type of spider, virus, worm, trojan-horse, time bomb or any other codes or instructions that are designed to distort, delete, damage or disassemble the Nimbuzz Software or the communication, (c) send any unsolicited commercial communication not permitted by applicable law, or (d) expose any other user to material which is offensive, harmful to minors, indecent or otherwise objectionable.
Article 8 Term and (Consequences of) Termination
8.1 Term. This Agreement will be effective as of the Effective Date and will remain effective until terminated by either Nimbuzz or You as set forth below.
8.2 Termination by Nimbuzz. Without limiting other remedies, Nimbuzz may limit, suspend, or terminate this license and Your use of Nimbuzz Software, prohibit
access to Nimbuzz Website and delete Your User Account and/or User ID, with immediate effect, if we think that You are in breach of this Agreement, creating problems, possible legal liabilities, acting inconsistently with the letter or spirit of our policies, which can be found at http://www.nimbuzz.com/en/legal/etiquette, infringing someone else’s intellectual property rights, engaging in fraudulent, immoral or illegal activities, or for other similar reasons. Nimbuzz shall effect such termination by providing notice to You to the email address You have provided, and/or by preventing Your access to the respective User Account. We reserve the right to cancel User Accounts that have been inactive for more than one (1) year.
8.3 Termination by You. You may terminate this Agreement with immediate effect at any time, with or without cause and without recourse to the courts, provided that You will meet with the conditions as set forth in Article 8.4 below.
8.4 Consequences of Termination. Upon termination of this Agreement, You (a) acknowledge and agree that all licenses and rights to use the Nimbuzz Software shall terminate, and (b) will cease any and all use of the Nimbuzz Software, and (c) will remove the Nimbuzz Software from all hard drives, networks and other storage media and destroy all copies of the Nimbuzz Software in Your possession or under Your control.
8.5 No liability. Nimbuzz will not be liable in relation to any damage caused by the termination of this Agreement.
Article 9 Your Representations and Warranties; Indemnification of Nimbuzz.
9.1 Representations. You represent and warrant that You are authorized to enter into this Agreement and comply with its terms. Furthermore, You represent and warrant that You will at any and all times meet with Your obligations hereunder, as well as any and all laws, regulations and policies that may apply to the use of the Nimbuzz Software.
9.2 Indemnification. You agree to indemnify, defend and hold Nimbuzz, Affiliates and the Nimbuzz Staff harmless from and against any and all liability and costs, including reasonable attorneys’ fees incurred by said parties, in connection with or arising out of Your (a) violation or breach of any term of this Agreement or any applicable law or regulation, whether or not referenced herein, or (b) violation of any rights of any third party, or (c) use or misuse of the Nimbuzz Software, or (d) communication spread by means of the Nimbuzz Software.
9.3 U.S. Withholding Tax. United States-based end users and/or customers only: Nimbuzz and all affiliated non-U.S. Nimbuzz entities (including, but not limited to, Buzzaa Media Group BV) intend to fully comply with all applicable U.S. federal tax rules and regulations as provided by the Internal Revenue Code of 1986 (the “Code”) and the Treasury Regulations promulgated thereunder. Buzzaa Media Group BV will assist all U.S.-based end users and/or customers in complying with any and all U.S. tax obligations arising as a result of Your use of the Nimbuzz Software. You hereby agree to appoint Buzzaa Media Group BV as Your withholding agent for purposes of the withholding provisions of Chapter 3 of the Code, section 3406 and other withholding provisions of the Code, and the reporting provisions of Chapter 6 of the Code. Your agreement does not modify in any way Your defenses provided under U.S. tax law to avoid tax for any payments made to Buzzaa’s non-US entities. If You would like any information with respect to Your rights and obligations concerning any and all potential U.S. federal income tax liability and/or reporting responsibilities or if You wish to receive additional information (including applicable Forms W-8BEN (”Certificate of Foreign Status of Beneficial Owner for United States Withholding”), You may contact Nimbuzz at firstname.lastname@example.org.
9.4 Export Restrictions. You acknowledge that the Nimbuzz Software may be subject to international rules that govern the export of software. You agree to comply with all applicable international and national laws that apply to the Nimbuzz Software as well as end-user, end-use and destination restrictions issued by national governments.
Article 10 Disclaimer of Warranties
10.1 No warranties. THE NIMBUZZ SOFTWARE IS PROVIDED “AS IS”, WITH NO WARRANTIES WHATSOEVER; NIMBUZZ DOES NOT, EITHER EXPRESSED, IMPLIED OR STATUTORY, MAKE ANY WARRANTIES, CLAIMS OR REPRESENTATIONS WITH RESPECT TO THE NIMBUZZ SOFTWARE, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF QUALITY, PERFORMANCE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR USE OR A PARTICULAR PURPOSE. NIMBUZZ FURTHER DOES NOT REPRESENT OR WARRANT THAT THE NIMBUZZ SOFTWARE WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, ACCURATE, COMPLETE AND ERROR-FREE OR WILL OPERATE WITHOUT PACKET LOSS, NOR DOES NIMBUZZ WARRANT ANY CONNECTION TO OR TRANSMISSION FROM THE INTERNET, OR ANY QUALITY OF CALLS MADE THROUGH THE NIMBUZZ SOFTWARE.
10.2 Specific Disclaimer of Liability for Emergency Services. Nimbuzz does not provide Emergency Services in conjunction with the Nimbuzz Software. Neither Nimbuzz nor its officers or employees may be held liable for any claim, damage, or loss, and You hereby waive any and all such claims or causes of action, arising from or relating to the use of Nimbuzz Software to contact Emergency Services personnel. You shall defend, indemnify, and hold harmless Nimbuzz, Nimbuzz Staff and Affiliates and agents and any other service provider who furnishes services to You in connection with the Nimbuzz Software, from any and all claims, losses, damages, fines, penalties, costs and expenses (including, without limitation, attorneys fees) by, or on behalf of, You relating to the absence, failure or outage of Nimbuzz Software provided hereunder, including specifically any claims arising out of the failure of Nimbuzz to offer Emergency Services.
10.3 Your own Risk. You acknowledge and agree that the entire risk arising out of the use or performance of the Nimbuzz Software remains with You, to the maximum extent permitted by law.
10.4 Jurisdiction’s Limitations.
As some jurisdictions do not allow some of the exclusions or limitations as set forth above, some of these exclusions or limitations may not apply to You. In such event the liability will be limited as far as legally possible under the applicable legislation.
Article 11 Limitation of Liability
11.1 No Liability. The Nimbuzz Software is being provided to You free of charge. ACCORDINGLY, YOU ACKNOWLEDGE AND AGREE THAT NIMBUZZ, ITS AFFILIATES AND THE NIMBUZZ STAFF WILL HAVE NO LIABILITY IN CONNECTION WITH OR ARISING FROM YOUR USE OF THE NIMBUZZ SOFTWARE, AS SET FORTH BELOW.
11.2 Limitation of Liability.
IN NO EVENT SHALL NIMBUZZ, ITS AFFILIATES OR THE NIMBUZZ STAFF BE LIABLE, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER FORM OF LIABILITY, FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION ANY LOSS OF DATA, INTERRUPTION, COMPUTER FAILURE OR PECUNIARY LOSS) ARISING OUT OF THE USE OR INABILITY TO USE THE NIMBUZZ SOFTWARE, EVEN IF NIMBUZZ, ITS AFFILIATES OR THE NIMBUZZ STAFF HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
11.3 Remedy. YOUR ONLY RIGHT OR REMEDY WITH RESPECT TO ANY PROBLEMS OR DISSATISFACTION WITH THE NIMBUZZ SOFTWARE IS TO DEINSTALL AND CEASE USE OF SUCH NIMBUZZ SOFTWARE.
11.4 Jurisdiction’s Limitations. As some jurisdictions do not allow some of the exclusions or limitations as set forth above, some of these exclusions or limitations may not apply to You. In such event the liability will be limited as far as legally possible under the applicable legislation.
Article 12 General Provisions
12.1 New versions of the Agreement. Nimbuzz reserves the right to modify this Agreement at any time by providing such revised Agreement to You or by publishing the revised Agreement on the Nimbuzz Website. The revised Agreement shall become effective within thirty (30) days of such publishing or provision to You, unless You expressly accept the revised Agreement earlier by clicking on the accept button. The express acceptance by You, or Your continued use of the Nimbuzz Software after expiry of the notice period of thirty (30) days, shall constitute Your acceptance to be bound by the terms and conditions of the revised Agreement. You can find the latest version of this Agreement at http://www.nimbuzz.com/en/legal/eula/. Nimbuzz reserves
the right to make changes to this Agreement from time to time.
12.2 Entire Agreement. The terms and conditions of this Agreement constitute the entire agreement between You and Nimbuzz with respect to the subject matter hereof and will supersede and replace all prior understandings and agreements, in whatever form, regarding the subject matter.
12.3 Partial Invalidity. Should any term or provision hereof be deemed invalid, void or enforceable either in its entirety or in a particular application, the remainder of this Agreement shall nonetheless remain in full force and effect.
12.4 No waiver. The failure of Nimbuzz at any time or times to require performance of any provisions hereof shall in no manner affect its right at a later time to enforce the same unless the same is explicitly waived in writing and signed by Nimbuzz.
12.5 No Assignment by You. You are not allowed to assign this Agreement or any rights hereunder.
12.6 Assignment by Nimbuzz. Nimbuzz is allowed to at its sole discretion assign this Agreement or any rights hereunder to any Affiliate, without giving prior notice.
12.7 Applicable Law. This Agreement shall be governed by and construed in accordance with the laws of the Netherlands without giving effect to the conflict of laws or provisions of the Netherlands or Your actual state or country of residence.
12.8 Competent Court. Any legal proceedings arising out of or relating to this Agreement will be subject to the jurisdiction of the courts of the the Netherlands.
12.9 Language. The original English version of this Agreement may have been translated into other languages. In the event of inconsistency or discrepancy between the English version and any other language version of this Agreement, the English language
version shall prevail.
YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND UNDERSTAND THE RIGHTS, OBLIGATIONS, TERMS AND CONDITIONS SET FORTH HEREIN. BY CLICKING ON THE ACCEPT BUTTON AND/OR CONTINUING TO INSTALL THE NIMBUZZ SOFTWARE, YOU EXPRESSLY CONSENT TO BE BOUND BY ITS TERMS AND CONDITIONS AND GRANT TO NIMBUZZ THE RIGHTS
SET FORTH HEREIN.
© Nimbuzz - Last revised: January 15, 2007.
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