End User License Agreement
IMPORTANT NOTICE: PLEASE READ CAREFULLY BEFORE USING THIS PRODUCT
This license agreement (“Licence”) is a legal agreement between you (“Licensee” or “you”) and MindoLife Innovation Ltd; a company duly incorporated under the laws of Israel under registration number (515379832), located at Haifa, Israel (“MindoLife” or “we”) for preinstalled software, graphics, look and feel, interfaces, content or data on the MindoLife Device (the “MindoLife Device”) including any downloadable updates subsequently installed on the Mindolife Device (“Software Materials”), and any the associated media, printed materials and online documentation (“Documentation”) supplied with the MindoLife Device and all intellectual property rights owned by MindoLife in or relating to MindoLife Device (including the Software Materials or Documentation) (together the “MindoLife IP”).
BY [OPENING THE PACKAGING][USING THIS PRODUCT], YOU AGREE TO BE BOUND BY THE TERMS OF THIS LICENCE. IF YOU DO NOT AGREE TO THE TERMS OF THIS LICENCE, WE ARE UNWILLING TO LICENSE THE MINDOLIFE IP TO YOU AND YOU MUST PROMPTLY RETURN THE MINDOLIFE DEVICE TOGETHER WITH ALL ACCOMPANYING DOCUMENTATION, WITH THE PACKAGING UNDAMAGED, TO THE RETAILER WHERE YOU OBTAINED OR MINDOLIFE CORPORATION AT THE ADDRESS BELOW FOR A REFUND.
Your use of (a) the website located at www.MindoLife.com and MindoLife.com sub-domains (each, a “Site”), (b) services through the Site (and any updates thereto) (“Site Services”), and (c) certain software that may be downloaded to your mobile device (and any updates thereto) (“Mobile Software”) is governed by the Terms of Service. Your purchase of the Product (excluding the MindoLife IP) is governed by the MindoLife limited warranty, the terms of which are provided with the MindoLife Device. This EULA does not govern your use of the Site, Site Services, or Mobile Software, or your purchase of the Product (excluding the MindoLife IP).
1) GRANT AND SCOPE OF LICENCE
a) In consideration of your agreeing to abide by the terms in this agreement, MindoLife hereby grants to you a non-exclusive, limited licence to use the MindoLife IP on the terms of this Licence.
b) The Licence is a single-device licence and you are only permitted to use the MindoLife IP in connection with one MindoLife Device.
c) You may:
i) only use the MindoLife IP solely in connection with the non-commercial use of your MindoLife Device and may not use it independently from your MindoLife Device or for any other purpose;
ii) receive and use any free supplementary software code or update of the MindoLife IP as may be provided by MindoLife from time to time;
iii) use any Documentation in support of the use permitted under the Licence and make as many copies of the Documentation as are necessary for the lawful use of the MindoLife Device or the Documentation.
2) LICENSEE`S UNDERTAKINGS
a) Except as expressly set out in this Licence, or as permitted by any local law, you undertake:
i) not to copy the MindoLife IP except where such copying is incidental to normal use of the MindoLife Device or where it is necessary for the purpose of back-up or operational security;
ii) not to rent, distribute, lease, sub-license, loan, translate, merge, adapt, vary or modify the MindoLife IP;
iii) not to make alterations to, or modifications of, the whole or any part of the MindoLife IP nor permit the MindoLife IP or any part of it to be combined with, or become incorporated in, any other programs or devices save as otherwise incidental to the normal use of the MindoLife Device;
iv) not to disassemble, decompile, reverse engineer or create derivative works based on the whole, or any part, of the MindoLife IP nor attempt to do any such things except to the extent that (by virtue of any applicable law or regulation) such actions cannot be prohibited because they are essential for the purpose of achieving inter-operability of the MindoLife IP with another software program;
v) to use the MindoLife IP and the MindoLife Device in a lawful manner and consistent with all applicable local, national or international laws and regulations and, in particular, your use must not:
(1) infringe any copyright, database right or trade mark or any other intellectual property right of any person;
(2) be likely to deceive any person or be made in breach of any legal duty owed to a third party, such as a contractual duty or a duty of confidence or promote any illegal activity;
(3) be threatening, defamatory, abusive or invade another’s privacy, or cause annoyance, inconvenience or needless anxiety or be likely to harass, upset, embarrass, alarm or annoy any other person;
(4) be used to impersonate any person, or to misrepresent your identity or affiliation with any person or give the impression that they emanate from us, if this is not the case; and
(5) unlawfully interfere or disrupt any network or telecommunications system.
b) Despite the above, you may make a one-time permanent transfer of all of your rights to use the MindoLife IP pursuant to this Licence to another party in connection with the transfer of ownership of your MindoLife Device, provided that: (i) the transfer must include your MindoLife Device and transfer of all of your rights under this Licence; (ii) you do not retain any copies of the MindoLife IP including copies stored on a computer or other storage device; and (iii) you bring to attention of the party receiving the MindoLife Device the terms and conditions of this Licence and make clear that such party’s use of MindoLife IP is subject to the these terms and conditions.
3) AUTOMATIC SOFTWARE UPDATES
MindoLife may from time to time develop patches, bug fixes, updates, upgrades and other modifications to improve or otherwise modify the performance of the MindoLife IP (“Updates”). These may be automatically installed without providing any additional notice or receiving any additional consent. You consent to this automatic update. If you do not want Updates, stop using the MindoLife Device. You acknowledge that you may be required to install Updates to use the MindoLife Device and the MindoLife IP and you agree to promptly install any Updates MindoLife provides. Continuing to use the MindoLife device after an Update constitutes your continued agreement to this Licence.
4) THIRD PARTY MATERIALS
Certain elements of the MindoLife Device may contain or include third party software and other proprietary material (“Third Party Materials”). The Third Party Materials are licensed by MindoLife and all intellectual property rights in any of the Third Party Materials remain the property of their respective owners and licensees. Unless we tell you otherwise, the Third Party Materials are licensed to you on the same terms as contained in this Licence.
5) THIRD PARTY SERVICES
a) The MindoLife Device and MindoLife IP enables access to certain third party services and web sites (“Third Party Services”). Use of the Third Party Services requires Internet access and may require you to accept additional terms.
b) Please note that we do not operate or control Third Party Services or any content or data you may access using such Third Party Services. Your dealings with third parties via Third Party Services are solely between you and the third party. As such, when you engage with such third party, you do so under their terms and policies, not ours. Complaints, questions and claims related to any issues or transactions with any third party should be directed to that third party.
c) We make no warranties regarding and shall not be liable or responsible to you (whether in contract, tort or otherwise) for your use of any Third Party Services.
6) OPEN SOURCE
Certain items of software included with the Product Software are subject to “open source” or “free software” licenses (“Open Source Software”). Some of the Open Source Software is owned by third parties. The Open Source Software is not subject to the terms and conditions of this EULA. Instead, each item of Open Source Software is licensed under the terms of the end user license that accompanies such Open Source Software. Nothing in this EULA limits your rights under, or grants you rights that supersede, the terms and conditions of any applicable end user license for the Open Source Software. If required by any license for particular Open Source Software, MindoLife makes such Open Source Software, and MindoLife’s modifications to that Open Source Software, available by written request to MindoLife at the email or mailing address listed below.
7) INTELLECTUAL PROPERTY RIGHTS
a) You acknowledge that all intellectual property rights in the MindoLife IP throughout the world belong to MindoLife, that rights in the MindoLife IP are licensed (not sold) to you, and that you have no rights in, or to, MindoLife IP other than the right to use them in accordance with the terms of this Licence.
b) The integrity of the MindoLife IP is protected by technical protection measures (TPM) so that the intellectual property rights, including copyright, in the MindoLife IP are not misappropriated. You must not attempt in any way to remove or circumvent such TPM, nor to apply, manufacture, import, distribute, sell, let for hire, offer, expose or advertise for sale for hire or have in your possession for private or commercial purposes, any means whose sole reasonable purpose is to facilitate the unauthorised removal or circumvention of such TPM.
8) WARRANTY AND LIABILITY
a) You acknowledge that:
i) the MindoLife IP 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 MindoLife IP meet your requirements;
ii) you have sole responsibility for use of the MindoLife Device and decisions taken from such use and your use of the MindoLife Device is at your own risk;
iii) the MindoLife IP may not be free of errors or bugs and that your use may be interrupted or affected as a result of such errors or bugs;
b) As such, the MindoLife IP and any Third Party Materials are provided to you on an “AS IS“ basis and we give no warranty, representation, condition or commitment of any kind in relation to the performance, quality or suitability of the MindoLife IP or Third Party Materials.
c) Save as set out in this Licence, all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded.
9) LICENSOR`S LIABILITY
a) Nothing in this Licence shall limit or exclude the liability of either party for:
i) death or personal injury resulting from negligence; or
ii) fraud or fraudulent misrepresentation; or
iii) breach of the terms implied by the Sale of Goods Act 1979; or
iv) breach of the Consumer Protection Act 1987.
b) MindoLife’s maximum aggregate liability under or in connection with this Licence, or any collateral contract, whether in contract, tort (including negligence) or otherwise, shall in all circumstances be limited to a sum equal to the price you paid for the MindoLife Device.
10) TERMINATION
a) MindoLife may terminate this Licence immediately on written notice to you if you commit a material or persistent breach of this Licence which you fail to remedy (if remediable) within 14 days after the service on you of written notice requiring you to do so.
b) Upon termination for any reason:
i) all rights granted to you under this Licence shall cease; and
ii) you must cease all activities authorised by this Licence.
11) EXPORT COMPLIANCE
The MindoLife IP and related technology may be subject to export or import regulations in some countries. You agree to comply with all laws and regulations applicable to you.
12) TRANSFER OF RIGHTS AND OBLIGATIONS
a) This Licence is binding on you and us and on our respective successors and assigns.
b) We may transfer, assign, charge, sub-contract or otherwise dispose of this Licence, or any of our rights or obligations arising under it, at any time during the term of the Licence.
13) NOTICES
All notices given by you to MindoLife must be given to [MindoLife Innovation Ltd] at [2 Khory St; Haifa Israel]. MindoLife may give notice to you at the e-mail [or postal] address you registered with MindoLife. 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.
14) EVENTS OUTSIDE THE LICENSOR`S CONTROL
a) MindoLife will not be liable or responsible for any failure to perform, or delay in performance of, any of its obligations under this Licence that is caused by an event outside its reasonable control (Force Majeure Event).
b) A Force Majeure Event includes any act, event, non-happening, omission or accident beyond our reasonable control and includes in particular (without limitation) the following:
i) strikes, lock-outs or other industrial action;
ii) civil commotion, riot, invasion, terrorist attack or threat of terrorist attack, war (whether declared or not) or threat or preparation for war;
iii) fire, explosion, storm, flood, earthquake, subsidence, epidemic or other natural disaster;
iv) impossibility of the use of railways, shipping, aircraft, motor transport or other means of public or private transport;
v) impossibility of the use of public or private telecommunications networks;
vi) any acts, decrees, legislation, regulations or restrictions of any government.
c) MindoLife’s performance under this Licence is deemed to be suspended for the period that the Force Majeure Event continues, and we will have an extension of time for performance for the duration of that period. We will use our reasonable endeavours to bring the Force Majeure Event to a close or to find a solution by which our obligations under this Licence may be performed despite the Force Majeure Event.
15) WAIVER
a) If we fail, at any time during the term of this Licence, to insist upon strict performance of any of your obligations under this Licence, or if we fail to exercise any of the rights or remedies to which we are entitled under this Licence, this shall not constitute a waiver of such rights or remedies and shall not relieve you from compliance with such obligations.
b) A waiver by us of any default shall not constitute a waiver of any subsequent default.
c) No waiver by us of any of these terms and conditions shall be effective unless it is expressly stated to be a waiver and is communicated to you in writing.
16) SEVERABILITY
If any of the terms of this Licence 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.
17) ENTIRE AGREEMENT
a) This Licence and any document expressly referred to in it constitute the whole agreement between us and supersedes any previous arrangement, understanding or agreement between us, relating to the licensing of the MindoLife IP.
b) We each acknowledge that, in entering into this Licence (and the documents referred to in it), neither of us relies on any statement, representation, assurance or warranty (Representation) of any person (whether a party to this Licence or not) other than as expressly set out in this Licence or those documents.
c) Each of us agrees that the only rights and remedies available to us arising out of or in connection with a Representation shall be for breach of contract as provided in this Licence.
18) LAW AND JURISDICTION
a) This Licence, its subject matter or its formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with Israeli law and each party submits to the non-exclusive jurisdiction of the Israeli courts, without limiting your rights as a consumer to bring an action in your country of residence.
b) You acknowledge that the Product Software contains valuable trade secrets and proprietary information of MindoLife, that any actual or threatened breach of Section 2 (Restrictions) of this EULA will constitute immediate, irreparable harm to MindoLife for which monetary damages would be an inadequate remedy, and that injunctive relief is an appropriate remedy for such breach.
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