Terms and Conditions of Use
BY INSTALLING, ACCESSING, BROWSING, AND USING THE SOFTWARE, YOU AGREE TO THE TERMS WHICH WILL BIND YOU. IF YOU DO NOT AGREE TO THESE TERMS, WE ARE UNWILLING TO LICENSE THE SOFTWARE TO YOU AND YOU MUST IMMEDIATELY DISCONTINUE INSTALLATION, ACCESS, BROWSING AND USE OF THE SOFTWARE. THESE TERMS MAY BE UPDATED FROM TIME TO TIME WITHOUT NOTICE TO YOU.
1. Grant and scope of licence
1.2 You may install and use the Software for your private, non-commercial use only on one phone.
1.3 You may use our Software and associated services only for lawful purposes. You may not use our Software or any associated service:
(a) In any way that breaches any applicable local, national or international law or regulation;
(b) In any way that is unlawful or fraudulent, or has any unlawful or fraudulent purpose or effect;
(c) For the purpose of harming or attempting to harm minors in any way;
(d) To transmit, or procure the sending of, any unsolicited or unauthorised advertising or promotional material or any other form of similar solicitation (spam);
(e) To knowingly transmit any data, send or upload any material that contains viruses, Trojan horses, worms, time-bombs, keystroke loggers, spyware, adware or any other harmful programs or similar computer code designed to adversely affect the operation of any computer software or hardware; or
(f) To gain unauthorised access to the server from which any our associated services are provided or any server, computer or database used by our Software. You must not attack our servers via a denial-of-service attack or a distributed denial-of service attack. By breaching this provision, you would commit a criminal offence under the Computer Misuse Act 1990. We will report any such breach to the relevant law enforcement authorities and we will co-operate with those authorities by disclosing your identity to them. In the event of such a breach, your right to use the Software and associated services will cease immediately.
2. Your undertakings
2.1 Except as expressly set out in these Terms or as permitted by any local law, you undertake:
(a) not to copy the Software except where such copying is incidental to normal use of the Software;
(b) not to make alterations to, or modifications of, the whole or any part of the Software nor permit the Software or any part of it to be combined with, or become incorporated in, any other programs;
(c) not to disassemble, de-compile, reverse engineer or create derivative works based on the whole or any part of the Software nor attempt to do any such things except to the extent that (by virtue of section 296A of the Copyright, Designs and Patents Act 1988) such actions cannot be prohibited because they are essential for the purpose of achieving inter-operability of the Software with another software program, and provided that the information obtained by you during such activities:
(i) is used only for the purpose of achieving inter-operability of the Software with another software program;
(ii) is not disclosed or communicated without Ombiel's prior written consent to any third party to whom it is not necessary to disclose or communicate it; and
(iii) is not used to create any software which is substantially similar to the Software;
(d) to provide true, accurate, current and complete information about yourself as prompted by the Software (the ‘Personal Data’) and to maintain and promptly update the Personal Data to keep it true, accurate, current and complete. If you provide any information that is untrue, inaccurate, not current or incomplete, or we have reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, we have the right to suspend or terminate your account and refuse any and all current or future use of all or any part of the Software; and
(e) that any and all material which you contribute through use of the Software or any associated service will be accurate (where you state facts), be genuinely held (where you state opinions), will comply with applicable law in the UK and in any country from which they are posted, will not contain any material which is defamatory of any person, is obscene, offensive, hateful or inflammatory, which promotes sexually explicit material, violence, discrimination based on race, sex, religion, nationality, disability, sexual orientation or age, or which is likely to deceive any person, promote any illegal activity or which is threatening, abusive or invades another’s privacy, or causes annoyance, inconvenience or needless anxiety.
3. Intellectual property rights
3.1 You acknowledge that all intellectual property rights in the Software and the Documentation throughout the world belong to Ombiel, that rights in the Software are licensed (not sold) to you, and that you have no rights in, or to, the Software or the Documentation other than the right to use them in accordance with these Terms.
4. Warranty exclusion
4.1 Ombiel excludes and you agree to waive all representations, conditions, terms and warranties, express, implied or collateral, (other than relating to title of goods) arising by operation of law or otherwise, including but not limited to implied warranties, terms or conditions of satisfactory, quality or fitness for a particular purpose, except to the extent such representations, conditions, terms or warranties may not be excluded by law. Due to the nature of the Software and that it operates over the Internet and the price charged for the Software (if any), the Software is provided on an 'as is' and 'as available' basis without warranties or conditions of any kind, express or implied. If you are dissatisfied with the Software or these Terms, your sole remedy is to terminate this agreement subject to the termination liability.
4.2 You acknowledge that the Software has not been developed to meet your individual requirements and that it is therefore your responsibility to ensure that the facilities and functions of the Software as described in the Documentation meet your requirements.
4.3 You acknowledge that the Software may not be free of bugs or errors and you agree that the existence of any errors shall not constitute a breach of these Terms.
5. Ombiel’s liability
5.1 Nothing in these Terms shall exclude or in any way limit Ombiel's liability for fraud, or for death and personal injury caused by its negligence, or any other liability to the extent that it cannot be excluded or limited as a matter of law.
5.2 Subject to condition 5.1, Ombiel shall not be liable under or in connection with these Terms or any collateral contract for:
(a) loss of income;
(b) loss of business profits or contracts;
(c) business interruption;
(d) loss of the use of money or anticipated savings;
(e) loss of information;
(f) loss of opportunity, goodwill or reputation;
(g) loss of, damage to or corruption of data; or
(h) any indirect or consequential loss or damage of any kind howsoever arising and whether caused by tort (including negligence), breach of contract or otherwise.
5.3 Subject to condition 5.1 and condition 5.2, Ombiel's maximum aggregate liability under or in connection with these Terms, or any collateral contract, whether in contract, tort (including negligence) or otherwise, shall be limited to a sum equal to the price paid for the Software.
5.4 Subject to condition 5.1, condition 5.2 and condition 5.3, Ombiel's liability for infringement of third party intellectual property rights shall be limited to breaches of rights subsisting in the UK.
5.5 You acknowledge that Ombiel is not responsible for any content accessed through use of the Software, and agree to indemnify and hold Ombiel, and its affiliates, officers, agents, partners, and employees, against any claim or demand made by any third party due to or arising out of such content.
6.1 Ombiel may terminate these Terms immediately by written notice to you if you commit a material or persistent breach of these Terms which you fail to remedy (if remediable) within 14 days after the service on you of written notice requiring you to do so.
6.2 Ombiel reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, with or without notice, all or any part of the Software. You agree that Ombiel will not be liable to you or to any third party for any modification, suspension, or discontinuance of the Software.
6.3 You may discontinue your use of the Software at any time. These Terms will continue to apply to all past use of the Software by you.
6.4 Upon termination for any reason:
(a) all rights granted to you under these Terms shall cease;
(b) you must cease all activities authorised by these Terms; and
(c) you must immediately delete or remove the Software from all devices and computer equipment in your possession.
7. Transfer of rights and obligations
7.1 These Terms is binding on you and us and on our respective successors and assigns.
7.2 You may not transfer, assign, charge or otherwise dispose of these Terms, or any of your rights or obligations arising under it, without our prior written consent.
7.3 Ombiel may transfer, assign, charge, sub-contract or otherwise dispose of these Terms, or any of his rights or obligations arising under it, at any time during the term of the Licence.
All notices given by you to Ombiel must be given to Ombiel Limited at Granville House, 2 Tettenhall Road, Wolverhampton WV1 4SB. Ombiel may give notice to you at either the e-mail or postal address you provided to it when purchasing the Software. Notice will be deemed received and properly served 24 hours after an e-mail is sent, or three days after the date of posting of any letter. In proving the service of any notice, it will be sufficient to prove, in the case of a letter, that such letter was properly addressed, stamped and placed in the post and, in the case of an e-mail, that such e-mail was sent to the specified e-mail address of the addressee.
9. Events outside Ombiel's control
9.1 Ombiel will not be liable or responsible for any failure to perform, or delay in performance of, any of his obligations under these Terms that is caused by an event outside his reasonable control.
10.1 If Ombiel fails, at any time during the term of these Terms, to insist on strict performance of any of your obligations under these Terms, or if Ombiel fails to exercise any of the rights or remedies to which he is entitled under these Terms, this shall not constitute a waiver of such rights or remedies and shall not relieve you from compliance with such obligations.
If any of the terms of these Terms are determined by any competent authority to be invalid, unlawful or unenforceable to any extent, such term, condition or provision will to that extent be severed from the remaining terms, conditions and provisions which will continue to be valid to the fullest extent permitted by law.
12. Entire agreement
13. Law and jurisdiction
These Terms, its subject matter or its formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with English law and submitted to the exclusive jurisdiction of the English courts.
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