KEYBOARDAPPLICATIONFOR iOS DEVICES
END USER LICENSE AGREEMENT
Swyft Media Inc., a Delaware corporation with offices at 260 Fifth Avenue, New York, NY 10001 (“Swyft”) offers this Keyboard Application (the “Keyboard Application”) for entertainment purposes only. This Keyboard Application End User License Agreement (the “Agreement”) becomes a binding contract between you and Swyft when you click on the area marked “AGREE,” “ACCEPT” or similar language, or by downloading, installing or using the Keyboard Application on your iOS device.
1. Binding Agreement. You are bound by the Agreement and you acknowledge that all use of the Keyboard Application and any images made available to you through your use of the Keyboard Application are governed by this Agreement.
4. License Grant, Limitations and Reservation of Rights.
A. License Grant. The Keyboard Application is licensed, not sold, to you for use only under the terms of this Agreement. You are hereby granted a non-exclusive, non-assignable, non-commercial, revocable, non-transferable license to (i) install and access the Keyboard Application on any iOS device that you own or control and as permitted by the applicable usage rules set forth in Apple App Store Terms and Conditions, and on no other device, and (ii) use the images made available to you through your use of the Keyboard Application solely within a messaging application, and in no other manner or application of any kind.
B. Limitations. You agree not to (i) use the Keyboard Application in any manner that infringes the rights of Swyft, its parent and or affiliate companies, or any third party, with such rights including but not limited to worldwide copyright, trademark, trade secret, patent or publicity rights, (ii) adapt, modify, alter, translate, convert, or otherwise change the Keyboard Application or any images available to you through your use of the Keyboard Application, (iii) create derivative works from the Keyboard Application, any image contained in the Keyboard Application, or any portion thereof, (iv) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code or instructions of the Keyboard Application provided, however, that if you are located in a European Community member country or any other country which provides rights materially similar to the rights set forth in this provision, you may reverse engineer or decompile the Keyboard Application only to the extent that sufficient information is not available for the purpose of creating an interoperable software program (but only for such purpose and only to the extent that sufficient information is not provided in a timely manner free of charge by Swyft upon written request), (v) transmit, sell, rent, lease, display, perform, distribute, broadcast, sublicense, assign or otherwise make available any rights to the Keyboard Application to any third party, (vi) ship, transfer, export or re-export the Keyboard Application into any country or used in any manner prohibited by the United States Export Administration or any applicable export laws, restrictions or regulations which may be applicable to you, or (vii) alter, destroy or remove any labels or proprietary notices, including but not limited to any copyright notices, contained in the Keyboard Application or the images made available to you through your use of the Keyboard Application.
C. Reservation of Rights. Swyft, as the licensor, reserves all rights not expressly granted to you. You agree and understand that any third party brand owner whose intellectual property may be contained in or as part of this Keyboard Application or any image available to you through your use of the Keyboard Application is a third party beneficiary of this Agreement. The terms of this Agreement will govern any updates to the Keyboard Application provided by Swyft that replace and/or supplement this Keyboard Application, unless such update is accompanied by a separate agreement, in which case the terms of that agreement will govern. Swyft may update this Agreement at any time and will provide you with notice of such update. Your continued use of the Keyboard Application after receipt of notice of an Agreement update will be deemed to be your acceptance of such update.
5. Network Charges and Fees. You acknowledge that data charges may be incurred through your use of the Keyboard Application and you agree that you are responsible for any and all such charges that may be charged to you and that Swyft shall have no liability to you whatsoever in respect of such charges.
6. Intellectual and Industrial Property Rights. You agree that the Keyboard Application and the images made available to you for use within the Keyboard Application are protected by the copyright law and other intellectual and industrial property rights of the United States and its various States, by the copyright law and other intellectual and industrial property rights of other nations, and by international treaties. You agree to treat the Keyboard Application and any images made available to you for use within the Keyboard Application as you would any other copyrighted material and will not use either the Keyboard Application or such images in any infringing manner. You agree and acknowledge that you may not copy the Keyboard Application or images made available to you through your use of the Keyboard Application except as set forth herein. You agree that Swyft owns all right, title and interest in and to the Keyboard Application, its structure, organization, code, and related files, including all intellectual and industrial property rights therein such as copyright, design and trademarks rights. You agree that the Keyboard Application, its structure, organization, code, and related files are valuable property of Swyft and that any intentional or negligent use of the Keyboard Application not expressly permitted by the Agreement constitutes an infringement of intellectual and industrial property rights.
7. No Warranty. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE KEYBOARD APPLICATION AND THE IMAGES CONTAINED WITHIN THE KEYBOARD APPLICATION ARE AT YOUR SOLE RISK. TO THE MAXIMUM EXTENT PERMITTED OR REQUIRED BY LAW, THE KEYBOARD APPLICATION AND THE IMAGES CONTAINED WITHIN THE KEYBOARD APPLICATION ARE PROVIDED “AS IS” WITHOUT ANY REPRESENTATION OR WARRANTY OF ANY KIND, INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE AND SWYFT MEDIA HEREBY DISCLAIMS ALL WARRANTIES WITH RESPECT TO THE KEYBOARD APPLICATION AND THE IMAGES CONTAINED WITHIN THE KEYBOARD APPLICATION, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE. SWYFT MEDIA DOES NOT WARRANT THAT THE KEYBOARD APPLICATION OR IMAGES CONTAINED WITHIN THE KEYBOARD APPLICATION WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE KEYBOARD APPPLICATION WILL BE UNINTERRUPTED, ERROR FREE OR THAT ANY ERRORS OR OTHER DEFECTS IN THE KEYBOARD APPLICATION WILL BE CORRECTED. Some states or jurisdictions do not allow the exclusions of implied warranties or limitations on how long an implied warranty may last, so the above limitations may not apply to you. To the greatest extent permitted by law, any implied warranties not effectively excluded by the Agreement are limited to thirty (30) days. Some jurisdictions do not permit a limitation of implied warranties where the product results in physical injury or death so such limitations may not apply to you. In those jurisdictions, you agree that Swyft’s liability for such physical injury or death shall not exceed One Thousand United States dollars (U.S. $1,000), provided that such jurisdictions permit a limitation of such liability.
8. Indemnification. You agree to indemnify, defend and hold Swyft, its partners, licensors, parent company, affiliates, contractors, officers, directors, employees, agents and any third party beneficiaries of this Agreement harmless from all damages, losses and expenses arising directly or indirectly from (i) any negligent acts, omissions or willful misconduct by you, (ii) your use of the Keyboard Application, (iii) any breach of this Agreement by you, and/or (iv) your violation or alleged violation of any law or of any rights of any third party including any and all intellectual property rights.
9. Limitation of Liability. IN NO EVENT WILL SWYFT MEDIA BE LIABLE TO YOU OR ANYONE ELSE (I) FOR ANY CONSEQUENTIAL, INCIDENTAL OR SPECIAL DAMAGES, INCLUDING WITHOUT LIMITATION ANY LOST PROFITS, LOST DATA, LOST BUSINESS OPPORTUNITIES, OR LOST SAVINGS, EVEN IF SWYFT MEDIA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, (II) FOR ANY CLAIM AGAINST YOU BY ANY THIRD PARTY SEEKING SUCH DAMAGES EVEN IF SWYFT MEDIA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, (iii) the failure of any third party serving advertisements in conjunction with your use of the keyboard application to comply with applicable laws or regulations, or (iv) any claims arising out of or in connection with any content contained within third party advertisements displayed in conjunction with your use of the keyboard Application. Some states or jurisdictions do not allow the exclusions of limitations of incidental, consequential or special damages, so the above exclusion may not apply to you.
10. Termination. This Agreement will continue until terminated by you or Swyft. Upon failure by you to comply with the terms of this Agreement, Swyft shall be entitled to terminate this Agreement without notice to you. The termination of the Agreement shall not preclude Swyft from suing you for damages of any breach of the Agreement. Upon termination of the Agreement, you shall cease all use of the Keyboard Application, and destroy all copies, full or partial, of the Keyboard Application.
11. Survival. Sections 2, 3, 5, 6, 7, 8, 9 and 11 shall survive the termination of this Agreement.
12. General. In the event that any provision of this Agreement is unenforceable or invalid, such unenforceability or invalidity shall not render this Agreement unenforceable or invalid as a whole, and, in such event, such provision shall be changed and interpreted so as to best accomplish the objectives of such unenforceable or invalid provision within the limits of applicable law or court decisions. This Agreement constitutes the entire agreement between you and Swyft with respect to the subject matter hereof. This Agreement supersedes, and the terms of this Agreement govern, any prior agreements with respect to the subject matter hereof. This Agreement is governed by the laws of the Commonwealth of Massachusetts applicable to contracts wholly entered and performable within such Commonwealth (without regard to applicable conflict of laws provisions). The United States District Court for the District of Massachusetts or, if federal subject matter jurisdiction is lacking, the Superior Court of the Commonwealth of Massachusetts in Middlesex County, shall be the exclusive forum for any disputes arising out of or related to such agreement. Both you and Swyft agree to the personal jurisdiction and venue of these courts in any action related to this Agreement. You agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement. All questions concerning this Agreement should be directed to Swyft at the address set forth above.
THIS AGREEMENT WAS LAST UPDATED ON FEBRUARY 3, 2017