IMPORTANT – PLEASE READ CAREFULLY:
This End-User License Agreement (this "Agreement") is a legal agreement between Elkamy Ltd., (“Elkamy”, “we”, “us”, or “our”) and you, a user (“you” or “your”) of one of our mobile application products, as further described below and/or on the website page on which such product is available for download (each, an “Application” or “App”, and collectively, “Applications” or “Apps”).
YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT BY CLICKING THE “ACCEPT” BUTTON ASSOCIATED WITH THIS AGREEMENT OR BY DOWNLOADING, INSTALLING, COPYING, OR OTHERWISE USING THE APPLICATIONS TO WHICH THIS AGREEMENT RELATES. IF YOU DO NOT AGREE TO BE BOUND BY THE PROVISIONS OF THIS AGREEMENT, YOU MAY NOT INSTALL, COPY, OR USE, AND YOU MUST IMMEDIATELY DELETE ALL COPIES OF, THE APPLICATION FROM YOUR DEVICE.
1. DESCRIPTION OF APPLICATION.
Elkamy offers for download, both for payment and free of charge, certain of its Apps which enable you to utilize certain functionality and perform certain tasks offered by each of such Apps. The specific App to which this Agreement is being accessed by you is referred to hereunder as “the Application” or “the App”.
2. GRANT OF LICENSE.
Provided that you have complied with, and that you continue to comply with, all of the provisions of this Agreement, Elkamy hereby grants to you a limited and non-exclusive right to install, run, access and use the Application in object code form only for the purposes described in this Agreement or otherwise as may be instructed or described by Elkamy in writing.
3. RESERVATION OF RIGHTS AND OWNERSHIP; THIRD PARTY CONTENT.
Elkamy reserves all rights related to the App which are not expressly granted to you in this Agreement. The Application is protected by copyright and other intellectual property laws and treaties. As between Elkamy and you, Elkamy owns all title in and to the Application, including without limitation all copyright and other intellectual property rights in the Application. You agree not to remove, conceal or otherwise modify any copyright, trademark or other proprietary notice or source identifier contained in or associated with the Application. We cannot and do not guarantee access to information or other content belonging to any third party which is accessible by you through the Application, the website from which the App is being downloaded, or otherwise.
4. USAGE RESTRICTIONS.
You agree that you shall not, and that you shall not permit any other person, directly or indirectly, to: (a) sell, resell, transfer, assign, distribute, copy, publish, transmit, distribute, create derivative works of or otherwise disseminate, exploit or make available any portion or all of the Application, (b) reverse engineer, decompile, modify, translate or disassemble any portion or all of the Application including without limitation any of its underlying ideas, algorithms or structure, or use any portion of or all of the Application to create new applications, programs, products or services, (c) remove or otherwise modify any trademarks, service names, graphics, designs, logos, page headers, button icons, scripts, commercial markings, and trade dress appearing through the Application (including without limitation the trademark “Elkamy”) or any other Trademark (as hereinafter defined) which indicates that a source of goods or services are the property of their respective owners, or (d) display the name, logo, trademark or other identifier of any individual or entity (except for Elkamy) in such a manner as to give the viewer the impression that such other individual or entity is a publisher or distributor of the Application.
5. NO OTHER USE.
The Application is intended solely for your personal use as described in this Agreement or otherwise as may be instructed or described by Elkamy in writing. You may not sell, lease, charge fees for access to or any use of, the Application.
If you fail to comply with any of the provisions of this Agreement, you may no longer use the Application and you shall permanently delete all copies of the Application from your device or which otherwise are then in your possession.
7. DISCLAIMER OF WARRANTIES.
YOUR USE OF THE APPLICATION IS AT YOUR OWN RISK. THE APPLICATION IS PROVIDED “AS IS”, “AS AVAILABLE” AND WITH ALL FAULTS, AND ELKAMY HEREBY DISCLAIMS ALL WARRANTIES, REPRESENTATIONS AND CONDITIONS, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO ANY IMPLIED WARRANTIES, DUTIES OR CONDITIONS OF MERCHANTABILITY, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, RELIABILITY OR AVAILABILITY, ACCURACY OR COMPLETENESS, QUALITY, SAFETY, SUITABILITY, WORKMANLIKE EFFORT, LACK OF VIRUSES, LACK OF NEGLIGENCE, OR THAT THE APPLICATION WILL PERFORM IN ANY PARTICULAR FASHION OR PRODUCE ANY PARTICULAR RESULT, OR OTHERWISE ARISING OUT OF OR RELATED TO THE USE OF THE APPLICATION BY YOU OR ANY OTHER PERSON. ELKAMY ALSO IS NOT RESPONSIBLE FOR THE PROVISION OF ANY SUPPORT OR ANY OTHER SERVICES, OR THE FAILURE TO PROVIDE SUPPORT OR ANY OTHER SERVICES, IN CONNECTION WITH OR RELATED TO THE APPLICATION. THERE ARE INHERENT RISKS IN THE DOWNLOADING AND USING OF ANY SOFTWARE, AND ELKAMY CAUTIONS YOU TO MAKE SURE THAT YOU COMPLETELY UNDERSTAND THE POTENTIAL RISKS BEFORE DOWNLOADING, INSTALLING OR OTHERWISE USING THE APPLICATION. NEITHER ELKAMY NOR ANY PARENT, SUBSIDIARY OR AFFILIATED ENTITY OF ELKAMY, NOR ANY OF THEIR PRINCIPALS, SHAREHOLDERS, DIRECTORS, OFFICERS, MEMBERS, MANAGERS, LICENSORS, SUPPLIERS, EMPLOYEES, CONTRACTORS, AGENTS OR REPRESENTATIVES (COLLECTIVELY, THE “ELKAMY PARTIES”) SHALL BE LIABLE FOR ANY DAMAGES THAT YOU OR ANY THIRD PARTY MAY SUFFER IN CONNECTION WITH OR RELATED TO YOUR DOWNLOADING, INSTALLING, UNINSTALLING, MODIFYING OR OTHERWISE USING THE APPLICATION.
8. LIMITATION OF LIABILITY.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL ELKAMY OR ANY OF THE OTHER ELKAMY PARTIES BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES WHATSOEVER, (INCLUDING WITHOUT LIMITATION FOR LOST PROFITS, BUSINESS OR GOODWILL, OR FOR ANY ANTICIPATED LOST PROFITS, BUSINESS OR GOODWILL, FOR LOSS OF CONFIDENTIAL OR OTHER INFORMATION, FOR BUSINESS INTERRUPTION, FOR PERSONAL INJURY, FOR LOSS OF PRIVACY, FOR FAILURE TO MEET ANY DUTY INCLUDING THAT OF GOOD FAITH OR OF REASONABLE CARE, FOR NEGLIGENCE, AND FOR ANY OTHER MONETARY OR OTHER LOSS WHATSOEVER) ARISING OUT OF OR RELATED TO YOUR USE OF THE APPLICATION (OR YOUR INABILITY TO USE THE APPLICATION) OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT. THE FOREGOING SHALL APPLY WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE), PRODUCT LIABILITY, STRICT LIABILITY, FAULT, BREACH OF WARRANTY, BREACH OF CONTRACT OR OTHERWISE, EVEN IF ELKAMY OR ANY OF THE OTHER ELKAMY PARTIES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANY DAMAGES THAT YOU MIGHT INCUR FOR ANY REASON WHATSOEVER INVOLVING THE APPLICATION (INCLUDING, WITHOUT LIMITATION, ANY OF THE DAMAGES REFERENCED HEREIN), THE ENTIRE LIABILITY OF THE ELKAMY PARTIES COLLECTIVELY, AND YOUR EXCLUSIVE REMEDY HEREUNDER, SHALL BE LIMITED TO ONE THOUSAND POUNDS (£1,000) IF YOU ARE PAYING ELKAMY FOR USE OF THE APP, OR ONE HUNDRED POUNDS (£100) IF YOU ARE USING THE APP FREE OF CHARGE. THIS LIMITATION OF LIABILITY PROVISION IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE PROVEN INEFFECTIVE.
You shall indemnify, defend and hold Elkamy and each of the other Elkamy Parties harmless from and against any and all threatened or actual claims, actions, suits and demands and any and all resulting losses, liabilities, damages, expenses and costs, including without limitation reasonable attorneys’ fees and disbursements, which arise in connection with or which are related to (a) your breach of this Agreement, including without limitation your use of the Application in any manner not expressly permitted hereunder, or (b) your negligence or misconduct, or (c) your violation of any law or regulation.
11. GOVERNING LAW; ARBITRATION; NO CLASS CLAIMS; TIMELY FILING OF CLAIMS.
This Agreement shall be governed and construed in accordance with the laws of England and Wales, and all claims arising out of or relating to this Agreement, or the breach thereof, whether sounding in contract, tort or otherwise, shall likewise be governed by the laws of England and Wales. Any dispute arising out of or relating to your use of the Application or otherwise related to this Agreement, including without limitation regarding any breach hereunder, shall be finally resolved by binding arbitration, and judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction. The arbitration will be conducted by an arbitrator with applicable industry expertise in the mobile app industry, who shall be named in accordance with such rules. The award of the arbitrator shall be final and binding on you and us, and shall be accompanied by a statement of the reasons upon which the award is based, and such statement as well as all information concerning such an arbitration proceeding including without limitation all evidence and materials submitted by you or us shall be kept strictly confidential by you. You shall pay for your own legal costs and expenses involved in any such arbitration, including without limitation reasonable attorneys’ fees, and we shall pay for all of our such costs and expenses unless the matter being arbitrated involves your breach of any of the provisions of this Agreement, in which case you shall pay both for your as well as for our legal costs and expenses including without limitation reasonable attorneys’ fees incurred by us in pursuing such a claim. NO ARBITRATION OR CLAIM UNDER THIS AGREEMENT SHALL BE JOINED TO ANY OTHER ARBITRATION OR CLAIM, AND NO CLASS ARBITRATION PROCEEDINGS SHALL BE PERMITTED. Notwithstanding the foregoing, either party may apply to any federal or state court sitting in England and Wales for injunctive relief or enforcement of this arbitration provision or for a breach of any party’s ownership rights in and to the Application, without breach of this arbitration provision. YOU AGREE THAT REGARDLESS OF ANY STATUTE OR LAW TO THE CONTRARY, ANY CLAIM, SUIT OR ACTION THAT YOU MAY HAVE AGAINST ANY OF THE Elkamy PARTIES ARISING UNDER OR RELATED TO THIS AGREEMENT MUST BE BROUGHT BY YOU PURSUANT TO THIS SECTION 11 AND WITHIN ONE (1) YEAR AFTER THE DATE ON WHICH THE EVENT UNDERLYING SUCH CLAIM OCCURRED OR IS ALLEGED TO HAVE OCCURRED.
This Agreement and any written instructions related to the App which are provided by Elkamy constitute the entire agreement between you and Elkamy relating to the Application, and they supersede all prior or contemporaneous oral or written communications, proposals and representations with respect to the Application or any other subject matter covered by this Agreement. To the extent the terms of any Elkamy policies or programs conflict with the terms of this Agreement, the terms of this Agreement shall control. If any provision of this Agreement is held to be void, invalid, unenforceable or illegal, such provision shall be modified by the arbitrator to most closely resemble the intent of Elkamy and all other provisions of this Agreement shall continue in full force and effect. The failure of Elkamy at any time to require performance by you of any provision of this Agreement shall in no way affect Elkamy’s right to enforce such provisions, nor shall the waiver by Elkamy of any breach of any provision of this Agreement be taken or held to be a waiver of any further breach of the same provision.