End User License Agreement
IMPORTANT. READ CAREFULLY: This End User License Agreement (“License Agreement”) for a certain Nextbit Systems Inc., ("Nextbit") product is a legal agreement between you (either an individual or an entity) and Nextbit for software, owned by Nextbit and its third party suppliers and licensors, that accompanies this License Agreement, which includes computer software and may include associated media, printed materials, "online" or electronic documentation in connection with your use of this device ("Software"). This device requires the use of preloaded software in its normal operation. BY ACTIVATING, USING, DOWNLOADING OR INSTALLING THIS PHONE AND/OR THE SOFTWARE, YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS LICENSE AGREEMENT. IF YOU DO NOT ACCEPT THESE TERMS, DO NOT USE THE DEVICE OR THE SOFTWARE.
If, prior to indicating your acceptance by activating, using, downloading or installing this phone and/or the Software, you determine that you are unwilling to agree to the terms of this License Agreement, you have no right to use the Software and you should: (i) promptly return the Software to Nextbit or delete it; or (ii) if you have purchased the Nextbit Product on which the Software is pre-installed by or on behalf of Nextbit, promptly return the Nextbit Product and the accompanying Software and items (including documentation and packaging) to Nextbit or the Nextbit authorized distributor from whom you purchased the Nextbit Product.
- GRANT OF LICENSE. Nextbit hereby grants to you a non-exclusive, non-transferable and restricted license to use the Software and any related documentation (“Documentation”) subject to the following terms: You shall use the Software solely in conjunction with the handheld device in which the Software is originally embedded.
LICENSE RESTRICTIONS. a) Except to the extent otherwise expressly and unambiguously authorized by Nextbit or to the extent such restrictions are explicitly prohibited by applicable law, you shall NOT: (i) license other individuals to use the Software; (ii) modify, translate, reverse engineer, decompile, disassemble (except to the extent that this restriction is expressly prohibited by law) or create derivative works based upon the Software or Documentation; (iii) copy the Software or Documentation (except for a back-up upon a repair/replacement, provided that such back-up is not installed or used on any computer, and shall be deleted/destroyed immediately after repair/replacement. Any other copies you make of the Software are in violation of this Agreement); (iv) rent, lease, transfer, sublicense or otherwise transfer rights to the Software or Documentation; (v) remove any proprietary notices or labels on the Software or Documentation; or (vi) add, integrate or combine any other software with the Software. Any such forbidden use shall immediately terminate your license to the Software. b) You agree that you shall only use the Software and Documentation in a manner that complies with all applicable laws in the jurisdictions in which you use the Software and Documentation, including, but not limited to, applicable restrictions concern relevant copyright and other intellectual property rights and/or the export controlling regulations. c) You shall only use the Software for your private, non-commercial use. You shall not use the Software in any way to provide, or as part of, any commercial service or application. You shall not use the Software in an attempt to, or in conjunction with, any device, program or service designed to circumvent technological measures employed to control access to, or the rights in, a content file or other work protected by the copyright laws of any jurisdiction.
- TITLE. Title, ownership, rights, and intellectual property rights in and to the Software and Documentation shall remain in Nextbit (including all its relevant suppliers/licensors). The Software is protected by the copyright laws of the United States and international copyright treaties. Title, ownership rights and intellectual property rights in and to the content accessed through the Software including the content contained in the Software media demonstration files, shall be retained by the applicable Content owner and may be protected by applicable copyright or other law. This license gives you NO rights to such Content.
- SOFTWARE UPDATES. Nextbit, at its discretion, may make available future Software updates for your Nextbit Device. The updated Software version may add new functions and, in some limited cases, may delete existing functions. The terms of this License will govern any Software updates provided by Nextbit that replace and/ or supplement the original Software product, unless such Software update is accompanied by a separate license in which case the terms of that license will govern.
- NETWORK ACCESS. Some features of the Software may require your device to have access to the internet and may be subject to restrictions imposed by your network or internet provider. Unless your device is connected to the internet through Wi-Fi connection, the Software will access through your mobile network, which may result in additional charges depending on your payment plan. In addition, your enjoyment of some features of the Software may be affected by the suitability and performance of your device hardware or data access.
- EXPORT RESTRICTIONS. You acknowledge that the Software is subject to export restrictions of various countries. You agree to comply with all applicable international and national laws that apply to the Software, including all the applicable export restriction laws and regulations.
- OPEN SOURCE SOFTWARE. Portions of the Software include software files subject to certain open source license agreements. Such open source software files are subject solely to the terms of the relevant open source license and not to this License Agreement. Such open source software files are provided on an “AS IS” basis to the maximum extent permitted by applicable law. For the open source file(s) contained herein, please access “Open source license” section located at Settings\About phone\Legal information on the device for the relevant copyright and licensing terms. You may obtain a copy of Apache License, Version 2.0 at http://www.apache.org/licenses/LICENSE-2.0. You may also obtain a copy of GNU General Public License, Version 2 at Free Software Foundation, Inc., 51 Franklin Street, Fifth Floor, Boston, MA 02110-1301, USA.
- DISCLAIMER OF WARRANTY & LIMIT OF LIABILITY. THE SOFTWARE, DOCUMENTATION, AND CONTENT ARE PROVIDED AS IS WITHOUT WARRANTY OF ANY KIND. NEXTBIT FURTHER DISCLAIMS ALL WARRANTIES, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. THE ENTIRE RISK ARISING OUT OF THE USE OR PERFORMANCE OF THE SOFTWARE, DOCUMENTATION, AND CONTENT REMAINS WITH YOU. IN NO EVENT SHALL NEXTBIT AND ITS EMPLOYEES OR LICENSORS OR AFFILIATES BE HELD LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, OR OTHER DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR OTHER PECUNIARY LOSS) ARISING OUT OF THIS AGREEMENT OR THE USE OF OR INABILITY TO USE THE SOFTWARE OR THE CONTENT, EVEN IF NEXTBIT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NEXTBIT’s TOTAL LIABLITY FOR ANY DAMAGES UNDER THIS AGREEMENT SHALL NEVER EXCEED THE PURCHASE PRICE YOU PAID FOR THE NEXTBIT PRODUCT YOU BOUGHT.
- Any software is not fault tolerant whether provided by a third party or Nextbit. Where you installed the software on the device, Nextbit is not responsible for how it operates on the device. The software was designed for systems that do not require fail-safe performance. You may not use the software in any device or system in which a malfunction of the software would result in foreseeable risk of loss, injury or death to any person. This includes operation of nuclear facilities, medical equipment, aircraft navigation or communication systems, air traffic control or use in risky and dangerous situations or environments.
- THIRD-PARTY APPLICATIONS. ANY THIRD PARTY SOFTWARE THAT MAY BE PROVIDED WITH THE SOFTWARE IS INCLUDED FOR USE AT YOUR OPTION. IF YOU CHOOSE TO USE SUCH THIRD PARTY SOFTWARE, THEN SUCH USE SHALL BE GOVERNED BY SUCH THIRD PARTY’S LICENSE AGREEMENT. NEXTBIT IS NOT RESPONSIBLE FOR ANY THIRD PARTY’S SOFTWARE AND SHALL HAVE NO LIABILITY FOR YOUR USE OF THIRD PARTY SOFTWARE.
- NEXTBIT APPLICATIONS. Certain Nextbit applications and services may be included with, or downloaded to, this mobile device. Many of them require Nextbit Services membership registration (“Nextbit Account”), and your rights and obligations will be set forth in separate Nextbit Account terms and conditions and privacy policies. There are non-Nextbit Account applications and services that require your consent to their separate terms and conditions and privacy policies. You expressly acknowledge and agree that your use of such applications and services will be subject to the applicable terms and conditions and privacy policies.
- INDEMNIFICATION. You agree to hold harmless, indemnify and defend Nextbit, its officers, directors and employees, from and against any losses, damages, fines and expenses (including attorneys’ fees and costs) arising out of or relating to any claims that you have (i) viewed, downloaded, encoded, compressed, copied or transmitted any materials (other than materials provided by Nextbit) in connection with the Software in violation of another party’s rights or in violation of any law, or (ii) violated any terms of this License Agreement. If you are importing the Software from the United States or European Union, you shall indemnify and hold Nextbit harmless from and against any import and export duties or other claims arising from such importation. You agree that the laws of the State of California, the United States (excluding its conflict of laws) shall govern any and all matters resulted from this Agreement. This Agreement shall not be governed by the UN Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.
- U.S. GOVERNMENT END USERS RESTRICTED RIGHTS. The Software is licensed only with "restricted rights" and as "commercial items" consisting of "commercial software" and "commercial software documentation" with only those rights as are granted to all other end users pursuant to the terms and conditions herein. All Products are provided only with "restricted rights" with only those rights as are granted to all other end users pursuant to the terms and conditions herein. All Software and Products are provided subject to Federal Acquisition Regulation (FAR) 52.227.19.
- TERMINATION. This License Agreement will automatically terminate if you fail to comply with any term hereof. No notice shall be required from Nextbit to effect such termination.
- ENTIRE AGREEMENT; SEVERABILITY. This Agreement is the entire agreement between you and Nextbit relating to the Software and supersedes all prior or contemporaneous oral or written communications, proposals and representations with respect to the Software or any other subject matter covered by this Agreement. If any provision of this Agreement is held to be void, invalid, unenforceable or illegal, the other provisions shall continue in full force and effect.