IMPORTANT: PLEASE CAREFULLY READ THIS END USER LICENSE AGREEMENT (THE “AGREEMENT”) BETWEEN “YOU” AND WHOSHERE, INC. (“WhosHere,” “WE,” “US,” OR “OUR”) REGARDING YOUR USE OF THE WHOSHERE SOFTWARE APPLICATION AND NETWORKING SERVICES (COLLECTIVELY, “WHOSHERE”). BY USING WHOSHERE, YOU AGREE THAT YOU HAVE READ THIS ENTIRE AGREEMENT AND AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT YOU MAY NOT USE WHOSHERE.
WE MAY MODIFY THIS AGREEMENT AT ANY TIME, AND SUCH MODIFICATIONS SHALL BE EFFECTIVE IMMEDIATELY UPON EITHER POSTING OF THE MODIFIED AGREEMENT OR NOTIFYING YOU. YOU AGREE TO REVIEW THIS AGREEMENT PERIODICALLY TO BE AWARE OF SUCH MODIFICATIONS AND YOUR CONTINUED USE OF WHOSHERE SHALL INDICATE YOUR ACCEPTANCE OF THE MODIFIED AGREEMENT.
1. Use of WhosHere. In addition to WhosHere’s terms and conditions set forth below, You agree and acknowledge that Your use of WhosHere may be subject to additional terms and conditions of the device manufacturer, provider or carrier for the Mobile Device (as defined below) on which You download, access or use WhosHere, which are not governed by this Agreement. In addition, when using particular functionalities and features that are part of WhosHere, You may be subject to additional guidelines, terms, or rules applicable to such functionalities and features (“Additional Terms”), which may be posted from time to time and are hereby incorporated by reference into this Agreement. To the extent additional functionalities and features are provided to us by any of our partners, the additional terms that govern your use of such functionalities and features are not incorporated into this Agreement, but shall govern your use of such functionalities and features and You hereby agree to comply with and be bound by such terms as a condition to your access and use of such functionalities and features. This Agreement shall govern any corrections, bug fixes, enhancements, updates or other modifications to WhosHere (collectively, “Upgrades”) provided by WhosHere, except to the extent such Upgrades are accompanied by a separate license in which case the terms of such license will govern.
2. License Grant. Subject to the terms and conditions of this Agreement, WhosHere hereby grants to You a terminable, nonexclusive, nontransferable, nonsublicenseable license to use, perform, and display WhosHere on one (1) iPhoneÔøΩ or iPod TouchÔøΩ that You own or control (your “Mobile Device”), solely for your personal, non-commercial use in accordance this Agreement. This license does not allow You to use, perform, or display WhosHere on any iPhone or iPod Touch that You do not own or control, and You may not distribute or make WhosHere available over a network where it could be used by more than one device at the same time.
3. License Restrictions. You may not (a) reproduce, distribute, sublicense, use for service-bureau purposes, sell, lease, or otherwise transfer WhosHere to any third parties; (b) modify, alter, improve, “hack,” or create derivative works of WhosHere; or (c) reverse-engineer, decompile, disassemble, reverse-assemble, or otherwise attempt to derive the source code of WhosHere.
4. Prohibited Activities. You agree not to use WhosHere in any manner that violates this Agreement, including WhosHere’s then-current acceptable use policy (“Acceptable Use Policy“), the latest version of which is available at WhosHere.com/legal, which is incorporated in this Agreement by reference. WhosHere may modify the Acceptable Use Policy from time to time in its discretion. Although WhosHere cannot monitor the conduct of its users outside of WhosHere, it is also a violation of these rules to use any information obtained from or through WhosHere in order to harass, abuse, or harm another person, or in order to contact, advertise to, solicit, or sell to any person without their prior explicit consent. In order to protect our users from such activities, WhosHere reserves the right to restrict the number of communications (including sharing of Content) which You may send to other users in any twenty-four (24) hour period to a number which WhosHere deems appropriate in its sole discretion. Violations of any of the above may be investigated by WhosHere and, where appropriate, WhosHere may either institute legal action, or cooperate with law enforcement authorities in bringing legal proceedings, against users who violate this Agreement. You understand and acknowledge that we have a reputation to protect, and that we want to provide a good and positive service to users of WhosHere, so any violation of this agreement by You may cause us substantial harm. Accordingly, You agree that we may enforce this Agreement to the fullest extent permitted by law.
5. Regarding Your Mobile Device. By accessing and using WhosHere with your Mobile Device You acknowledge and agree that You may receive certain communications from WhosHere (such as text messages and pictures, mobile emails, or other electronic communications means, collectively “Mobile Communications”). Please note that by accessing and using WhosHere via your Mobile Device, or by using certain mobile features, such as receiving or sending Mobile Communications via your Mobile Device, You may incur fees from the provider or carrier of the mobile services that You use and You are solely responsible for the payment of such fees. If You choose to update your profile with information about your actual location (including location-related information provided by your carrier, provider or applications), You acknowledge and agree that (a) such information may be made available to every viewer of your user profile and (b) WhosHere does merely make this information available upon your request and is not responsible for the correctness of such information and any use of such information by third parties, including other users.
6. Ownership. The WhosHere application is licensed to You, not sold. WhosHere and its licensors own and retain all proprietary rights in WhosHere (including all Upgrades thereto). WhosHere contains the copyrighted material, trademarks, and other proprietary information (“Intellectual Property”) of WhosHere, and its licensors, including other WhosHere users. Except for Intellectual Property which is in the public domain or for which You have been given written permission, You may not copy, modify, publish, transmit, distribute, perform, display, or sell any such Intellectual Property and the provision of such Intellectual Property to You through WhosHere does not transfer to You or any third party any rights, title or interest in or to such Intellectual Property, including, without limitation, any intellectual property rights in any Content (as defined below) and material included therein. There are no implied licenses under this Agreement, and all rights not expressly granted are hereby reserved. You agree that any questions, comments, suggestions or the like other than personally identifiable information (collectively, the “Feedback”) sent to WhosHere, shall become the sole property of WhosHere. You further agree that WhosHere shall be free to use and exploit in any manner any ideas, concepts, know-how or techniques contained in such Feedback for any purpose without your or a third party’s consent, and without payment of any consideration to you or a third party, you hereby assign all rights, title and interest in such Feedback to WhosHere.
7. Content. You understand and agree that WhosHere may (but is not obligated to) review any content, communication, information, Intellectual Property, material, messages, photos, videos, URLs, profiles and the like (collectively, “Content”) that is uploaded, published or displayed (hereinafter, “posted”) on or through WhosHere and delete or refuse to take online any such Content, including, without limitation, any Content that in the sole judgment of WhosHere violates this Agreement or the Acceptable User Policy or which might be offensive, inappropriate, illegal, or that might violate the rights, harm, or threaten the safety of other users or third parties. You are solely responsible for the Content that You post on or through WhosHere, or transmit to other users or third parties. By posting Content to any area of WhosHere, You automatically grant, and You represent and warrant that You have the right to grant, to WhosHere an irrevocable, perpetual, non-exclusive, royalty-free and fully paid, worldwide license to reproduce, distribute, publicly display and perform (including by means of a digital audio transmission), and otherwise use Content and to prepare derivative works of, or incorporate into other works, such Content, and to grant and authorize sublicenses of the foregoing. In addition, You represent and warrant that You have the right to post the Content and You will not post any illegal or prohibited Content and will not infringe, misappropriate, violate or contravene any third party rights (including, without limitation, any intellectual property rights). WhosHere reserves the right (but is not obligated) to investigate and to take appropriate legal action in its sole discretion against anyone who violates this Agreement, including without limitation, removing the offending Content from WhosHere and terminating the license for WhosHere of such violators. WhosHere reserves the right to disclose all content that You upload, post, transmit or otherwise make available via WhosHere (whether or not directed to WhosHere) if required to do so by law or in the good faith belief that such disclosure is necessary or appropriate to conform to the law or comply with legal process served on WhosHere, to protect and defend the rights or property of WhosHere, WhosHere or our customers, whether or not required to do so by law, or to protect the personal safety of our customers or the public.
8. Third Party Content. Content from other users, advertisers, and other third parties may be made available to You through WhosHere. Because we do not control such Content, (a) You agree that we are not responsible for any such Content and (b) we make no guarantees about the accuracy, currency, suitability, or quality of the information in such Content, and we assume no responsibility for unintended, objectionable, inaccurate, misleading, or unlawful Content made available by other users, advertisers, and other third parties.
9. Copyright Policy. You may not post, distribute, or reproduce in any way any copyrighted material, trademarks, or other proprietary information without obtaining the prior written consent of the owner of such proprietary rights. Without limiting the foregoing, if You believe that your work has been copied and posted on WhosHere in a way that constitutes copyright infringement, please provide our Copyright Agent with the following information: an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; a description of the copyrighted work that You claim has been infringed; a description of where the material that You claim is infringing is located on WhosHere; your address, telephone number, and email address; a written statement by You that You have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; a statement by You, made under penalty of perjury, that the above information in your notice is accurate and that You are the copyright owner or authorized to act on the copyright owner’s behalf. WhosHere’s Copyright Agent for notice of claims of copyright infringement can be reached by writing the following:
Attn: Copyright Agent
500 Montgomery Street, Ste. 424
Alexandria, VA 22314
12. User Disputes. Your interactions with other users in connection with WhosHere or with advertisers, including, without limitation, payment and delivery of goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between You and the other users or the advertiser. You agree that WhosHere will not be responsible for any loss or damage incurred as the result of any such dealings or with respect to any other user’s use or disclosure of your personally identifiable information. If there is a dispute between You and any third party (including, without limitation, any user), WhosHere is under no obligation to become involved; however, we reserve the right, but have no obligation, to monitor disputes between You and other users.
13. Release. Without limiting Sections 14 or 15 below, and to the extent permitted under applicable laws, You hereby release WhosHere from any liability related to: (a) any incorrect or inaccurate Content posted on or through WhosHere, whether caused by any user of WhosHere, or by any of the equipment or programming associated with or utilized in WhosHere ; (b) the conduct, whether online or offline, of any user of WhosHere; (c) any problems or technical malfunction of any telephone network or lines, computer online systems, servers or providers, computer equipment, software, failure of email or Content players on account of technical problems or traffic congestion on the Internet or at any sites, or combination thereof, including injury or damage to user’s or to any other person’s computer or other mobile device related to or resulting from participating or downloading materials in connection with WhosHere; (d) any loss or damage caused by Content posted on or through WhosHere or transmitted by and to users, or any interactions between users of WhosHere, whether online or offline; and (e) any error, omission, interruption, deletion, defect, delay in operation or transmission, communications line failure, theft or destruction or unauthorized access to, or alteration of, WhosHere user communications. If You are a California resident, You hereby waive California Civil Code Section 1542, which states: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor.”
14. NO WARRANTIES. WHOSHERE IS PROVIDED BY WhosHere ON AN “AS IS” BASIS. WhosHere HEREBY DISCLAIMS ALL REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, RELATING TO WHOSHERE (INCLUDING ANY INFORMATION, CONTENT, MATERIALS OR PRODUCTS THAT YOU MAY ACCESS THROUGH WHOSHERE), INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ACCURACY OF INFORMATIONAL CONTENT, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE. WITHOUT LIMITING THE FOREGOING, YOU ACKNOWLEDGE THAT WhosHere DOES NOT WARRANT OR REPRESENT THAT WHOSHERE WILL MEET YOUR REQUIREMENTS, THAT WHOSHERE WILL BE TIMELY, SECURE, UNINTERRUPTED, OR ERROR-FREE, THAT DEFECTS IN WHOSHERE WILL BE CORRECTED, THAT ANY CONTENT OR INFORMATION CONTAINED IN WHOSHERE OR ACCESSED THROUGH YOUR USE OF WHOSHERE WILL BE ACCURATE, COMPLETE, RELIABLE, OR ERROR-FREE, THAT WHOSHERE OR ANY MATERIALS AVAILABLE FOR DOWNLOAD FROM WHOSHERE WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT WHOSHERE WILL BE FREE FROM UNAUTHORIZED ACCESS (INCLUDING THIRD PARTY HACKERS OR DENIAL OF SERVICE ATTACKS). PLEASE NOTE THAT SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
15. LIMITATION OF LIABILITY. IN NO EVENT SHALL WhosHere BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE, OR OTHER DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF INFORMATION OR DATA, OR OTHER PECUNIARY LOSS) RESULTING FROM YOUR ACCESS TO, OR USE OR INABILITY TO USE WHOSHERE (INCLUDING AS A RESULT OF AN OUTAGE OF ANY THIRD-PARTY SERVICE OR THE WIRELESS NETWORK PROVIDED BY YOUR WIRELESS NETWORK OPERATOR), OR WITH RESPECT TO THE INFORMATION, SERVICES, CONTENT OR ADVERTISEMENTS CONTAINED ON OR OTHERWISE ACCESSED THROUGH WHOSHERE. IN NO EVENT WILL WhosHere BE LIABLE TO YOU IN CONNECTION WITH WHOSHERE FOR ANY DAMAGES IN EXCESS OF FIVE U.S. DOLLARS (U.S. $5.00).
16. Indemnity. You agree to indemnify and hold WhosHere, its subsidiaries, affiliates, officers, agents, and other partners and employees, harmless from any loss, liability, claim, or demand, including reasonable attorney’s fees, made by any third party due to or arising out of your use of WhosHere in violation of this Agreement and/or arising from a breach of this Agreement and/or any breach of your representations and warranties set forth above.
17. Termination. You may terminate the license for WhosHere at any time by removing WhosHere in its entirety from your Mobile Device. You agree that WhosHere, in its sole discretion, may immediately terminate Your use of and access to WhosHere to You) at any time, for any reason, in its sole discretion. You agree that any termination of Your use of and access to WhosHere may be effected without prior notice, and acknowledge and agree that, upon termination, WhosHere may immediately deactivate or disable Your use of or access to WhosHere and delete all related information, Content, emails, files and other data related to such use or access and may bar any further access to such files or WhosHere. Further, You agree that WhosHere shall not be liable to You for any termination of Your use of or access to WhosHere or any deletion of Content or information hereunder. Upon termination, You agree to remove WhosHere in its entirety from your Mobile Device. Even after this Agreement is terminated, the following provisions of this Agreement will remain in effect: Sections 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, and 21.
18. Export Controls. You agree and acknowledge that the software associated with WhosHere may contain cryptographic functionality the export of which is restricted under U.S. export control law. You will comply with all applicable laws and regulations in Your activities under this Agreement, including without limitation all export laws and regulations of the U.S. Department of Commerce and all other U.S. agencies and authorities, including the Export Administration Regulations promulgated by the Bureau of Industry and Security (as codified in 15 C.F.R. Parts ÔøΩÔøΩ 730-774). You expressly agree not to export or re-export WhosHere in violation of such laws or regulations, or without all required licenses and authorizations.
19. Government End Users. WhosHere is a “commercial item” as that term is defined at 48 C.F.R. 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end users acquire WhosHere with only those rights set forth herein.
20. Applicable Law and Jurisdiction. You agree that this Agreement and all matters relating to WhosHere will be governed by the laws of the State of California, without giving effect to any principles of conflicts of laws that would require the application of the laws of a different state. You also consent to the exclusive jurisdiction and venue of the Superior Court of Santa Clara County for state claims and the Northern District of California for federal claims in all disputes arising out of or relating to WhosHere. The parties agree that the Uniform Computer Information Transaction Act (or any statutory implementation of it) and the United Nations Convention on the International Sale of Goods will not apply with respect to this Agreement or the parties’ relationship.
21. General Provisions. You are responsible for compliance with applicable local laws. This Agreement is personal to You, and You may not transfer, assign or delegate this Agreement to anyone without the express written permission of WhosHere. Any attempt by You to assign, transfer or delegate this Agreement without the express written permission of WhosHere shall be null and void. You acknowledge that WhosHere will have the right hereunder to so seek an injunction, if necessary to stop or prevent a breach of Your obligations hereunder. The paragraph headings in this Agreement, shown in boldface type, are included only to help make the agreement easier to read and have no binding effect. Any delay or failure by us to exercise or enforce any right or provision of this Agreement will not constitute a waiver of such right or provision. No waiver by us shall have effect unless such waiver is set forth in writing, signed by us; nor shall any such waiver of any breach or default constitute a waiver of any subsequent breach or default. This Agreement constitutes the complete and exclusive agreement between You and WhosHere with respect to the subject matter hereof, and supersedes all prior oral or written understandings, communications or agreements. If for any reason a court of competent jurisdiction finds any provision of this Agreement, or portion thereof, to be unenforceable, that provision of the Agreement will be enforced to the maximum extent permissible so as to effect the intent of the parties, and the remainder of this Agreement will continue in full force and effect.