This End-User License Agreement (this "EULA" or “Agreement”) is an agreement between the end-user of the Application (''You'') and DataSmart Limited, having its registered address at Russia, Saint Petersburg, Bolshoy avenue V.O. 80 (together with its subsidiaries and affiliates, “DataSmart” or “Us”). The Agreement governs your use of the application distributed by DataSmart that you installed and any and all related updates and upgrades that replace or supplement the Application in any respect (the “Application” or “App”), unless any such update or upgrade is accompanied by a separate license in which case the separate license shall govern..
This EULA governs the software that can operate on an/a device powered by the Android operating system provided by Google, Inc. (''Android platform''. This EULA governs different platforms and includes general provisions applicable for all platforms and platform specific provisions, which are all clearly marked as such. By installing or using the Application, You agree to and wish to be bound by the terms of this EULA, which consist of (commonly referred to as ''Terms''): - This license; - DataSmart Policy, located online at http://www.datasmartproject.com/policy/ (“Policy”); - For Android platform: Android Market “Terms of Service” (located online at https://play.google.com/store) and the Android Market Business and Program Policies (located online at http://www.google.com/mobile/android/market-policies.html), if You are downloading the Application from the Google Play.
If You download the Application from any other online market for software applications that operate on devices powered by the operating system not expressly stated herein, or when Application can be played online, you acknowledge that You have reviewed and accepted the terms of service applicable to such market or platform or operating system.
If You do not agree to the Terms, or do not wish to be bound by them, do not install or use the Application. If any terms of this EULA conflict with the other Terms, the terms of this EULA shall prevail.
Through the purchase or use of the App, You are acquiring and DataSmart grants You a personal, revocable limited, non-exclusive, non-sub-licensable, non-transferable license to install and use the Application for Your own non-commercial use subject to the limitations defined in this EULA and the Terms.
The Application is being licensed to You and You hereby acknowledge that no title or ownership in the Application is being transferred or assigned to You and this EULA is not to be constructed as a sale of any rights in the Application. Your rights granted herein are subject to Your compliance with this EULA and You agree not to use the Application for any other purpose.
Any commercial use is prohibited.
Any use of the Application in violation of these License Limitations is strictly prohibited and can result in immediate revocation of Your Limited License and may trigger Your liability for violations of law.
Unless You have received prior written authorization from DataSmart, You agree not to :
DataSmart reserves the right to determine in its sole discretion what kind of conduct is considered to be in violation of the terms of this EULA. Furthermore, DataSmart reserves the right to take appropriate action as a result of Your violation of the terms of this EULA, including but not limited to prohibiting you from using DataSmart Application in whole or in part.
Notwithstanding anything to the contrary stated in this EULA, You are allowed to create and use “User Content” (as defined below) in a non-modified form (exactly as produced by the Application) subject to the License Limitations and Specific Rules for User Content defined herein.
Any modification of User Content created by the Application or incorporation of such User Content into other works requires explicit written approval from DataSmart. You are expressly prohibited from sub-licensing, renting, leasing, transferring or otherwise distributing the Application or rights to use the Application. This EULA does not entitle You to receive, and does not obligate DataSmart to provide, hard-copy documentation, support, telephone assistance, or enhancements or updates to the Application.
The Application may allow You to create content such as videos, data, photographs, messages, graphics, text, and other information (“User Content”) and to share such User Content with DataSmart or with other sites, including social networking sites, as You may designate. You are solely responsible for Your User Content that you upload, publish, display, link to or otherwise make available (hereinafter, “share”) on or through the Application, and You agree that DataSmart is only acting as a passive conduit for Your online distribution and publication of your User Content. The Application may enable sharing of User Content in two ways: (i) one to one (e.g. through SMS, e-mail, KakaoTalk and Facebook message); and (ii) one to many (e.g. Facebook, YouTube, Twitter, Everyplay, e-mail). Unless explicitly stated otherwise herein no User Content is stored by DataSmart and DataSmart only acts as a passive conduit, offering You a platform to create the User Content and (solely to help You and for the sake of improving user experience) referring You to a third-party service (e.g. e-mail client, Facebook, Twitter or YouTube application) where You can decide what User Content to share, how, when and with whom.
You understand that unless explicitly stated otherwise herein DataSmart has no control over the access to Your User Content, sharing of Your User Content, privacy or confidentiality of Your User Content and that You, together with the third-party service providers (e.g. Facebook, YouTube, Twitter), are subject to their terms of service and have the sole control over such User Content.
You agree not to share User Content that: (i) may create a risk of harm, loss, physical or mental injury, emotional distress, death, disability, disfigurement, or physical or mental illness to You, to any other person, or to any animal; (ii) may create a risk of any other loss or damage to any person or property; (iii) seeks to harm or exploit children by exposing them to inappropriate content, asking for personally identifiable details or otherwise; (iv) may constitute or contribute to a crime or tort; (v) contains any information or content that we deem to be unlawful, harmful, abusive, racially or ethnically offensive, defamatory, infringing, invasive of personal privacy or publicity rights, harassing, humiliating to other people (publicly or otherwise), libelous, threatening, profane, or otherwise objectionable; (vi) contains any information or content that is illegal (including, without limitation, the disclosure of insider information under securities law or of another party’s trade secrets); (vii) contains any information or content that you do not have a right to make available under any law or under contractual or fiduciary relationships; or (viii) contains any information or content that You know is not correct and current.
If You believe that certain User Content shared through the Application, but stored on third party services (e.g. Facebook, YouTube) is infringing your rights, please contact the respective third party service provider, where such User Content is stored.
You agree that any User Content that You share does not and will not violate third-party rights of any kind, including and without limitation any “Intellectual Property Rights” (as defined below), rights of publicity and privacy. To the extent that Your User Content contains music, You hereby represent that You are the owner of all the copyright rights, including and without limitation the performance and the mechanical and sound recordings rights, with respect to each and every musical composition (including lyrics) and sound recording contained in such User Content and have the power to grant the license granted below.
Notwithstanding anything to the contrary stated herein, DataSmart reserves the right in its sole discretion to review, monitor, prohibit, edit, delete or otherwise make unavailable any User Content at any time without notice for any reason or no reason at all. By entering into this EULA You hereby provide Your irrevocable consent to such monitoring and You acknowledge and agree that You have no expectation of privacy concerning the sharing of Your User Content. If DataSmart at any time decides, in its sole discretion to monitor User Content, nevertheless DataSmart does not assume any responsibly for User Content and/or no obligation to remove or edit any inappropriate User Content.
By creating User Content through DataSmart Applications, You expressly grant, and You represent and warrant that You have a right to grant, to DataSmart a royalty-free, sub-licensable, transferable, perpetual, irrevocable, non-exclusive, worldwide license to use, reproduce, modify, publish, monetize, list information regarding, edit, translate, distribute, publicly perform, publicly display, and make derivative works of, and otherwise exploit, all such User Content, as well as Your name, voice, and/or likeness as contained in Your User Content, in whole or in part, and in any form, media or technology, whether now known or hereafter developed, for use in connection with the Application and DataSmart’s (and its successors’ and affiliates’) business, including and without limitation for promoting and redistributing part or all of the Application (and derivative works thereof) or any DataSmart Applications in any media formats and through any media collections and in connection with various advertisements, such as banner ads, mobile ads and video ads. You also hereby grant each user of the Application a non-exclusive license to access Your User Content through the Application, and to use, reproduce, distribute, display and perform such User Content as permitted through the functionality of the Application or the Internet and under this Agreement.
By creating User Content through DataSmart Applications you agree to these Specific Rules that outline Your use of any DataSmart Intellectual Property Rights:
DataSmart reserves the right to determine in its sole discretion, which User Content is in accordance with the above-mentioned Specific Rules and may revoke Limited License in this EULA at any time and for any reason.
DataSmart takes no responsibility and assumes no liability for any User Content that You or any other user or third party creates with the Application or shares through the Application. You shall be solely responsible for Your own User Content and the consequences of sharing or publishing it. You understand and agree that any loss or damage of any kind that occurs as a result of the use of any User Content that You send, upload, download, stream, post, transmit, display, share or otherwise make available or access through Your use of the Application, is solely Your responsibility.
In connection with Your User Content, You affirm, represent and warrant the following:
You understand and acknowledge that You may be exposed to User Content that is inaccurate, offensive, indecent, objectionable, or inappropriate for children, and You agree that DataSmart shall not be liable for any damages you allege to incur as a result of such User Content.
USE OF THE APPLICATION AND ANY OF YOUR INFORMATION TRANSMITTED IN CONNECTION WITH THE APPLICATION IS LIMITED TO THE FUNCTIONALITY OF THE APPLICATION AND TO THE LICENSE GRANT ABOVE. YOU MAY NOT OTHERWISE USE THE APPLICATION OR ANY COMPONENT OF IT, EXCEPT AS EXPRESSLY AUTHORIZED BY DATASMART IN WRITING IN ADVANCE.
You must provide at Your own expense the equipment, Internet connections or mobile devices and/or service plans to access and use this Application. DataSmart does not guarantee that this Application is available in all geographic locations. You acknowledge that when You use this Application, Your wireless carrier may charge you fees for data, messaging, and/or other wireless access. Check with Your carrier to see if there are any such fees that apply to You. You are solely responsible for any costs You incur to access this application from Your mobile device and/or PC device. Your right to use the Application is also predicated on Your compliance with any applicable terms of agreements You have with third parties when using Your Application.
The terms of this EULA shall commence on the date You install or otherwise use the Application and shall end on the earlier of the date of Your disposal of the Application or DataSmart’s termination of this EULA. You may terminate this EULA by uninstalling the Application. Uninstalling the Application does not result in a refund of the amount paid for the Application.
DataSmart reserves the right, using its sole discretion, to terminate this EULA, request that You remove the Application from Your Device for any reason, including but not limited to DataSmart’s reasonable conclusion that You have violated the Terms. Promptly upon termination, You must cease all use of the Application and destroy all copies of the Application in your possession or control.
Termination will not limit any of DataSmart’s other rights or remedies at law or in equity.
If any of the platforms disables the ability to use the applications on Your devices pursuant to Your agreement with such platform, any associated license rights with DataSmart will terminate as well.
You have obtained a license to the Application and Your rights are subject to this EULA. Except as expressly licensed to You herein, DataSmart reserves all rights, titles and interests in the Application. This license is limited to the intellectual property rights of DataSmart and does not include any rights to other patents or intellectual property.
DataSmart retains all right, title and interest in and to the DataSmart Intellectual Property, as defined below, whether registered or not and all applications thereof, except of the copyright of the third parties technology.
The DataSmart software is protected by applicable laws and treaties throughout the world.
For the purposes of this EULA, “Intellectual Property Rights” means all patent rights, trade names, proprietary rights, copyright rights, titles, computer codes, audiovisual effects, themes, characters, character names, stories, dialog, settings, artwork, sound effects, musical works, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction.
Some content and functions available via the Application may include materials from third parties. DataSmart may integrate third-party content (e.g. user generated YouTube videos) and provide links to third-party websites as a convenience to You. You agree that DataSmart is not responsible for examining or evaluating the content or accuracy and DataSmart does not warrant and will not have any liability or responsibility for any third-party materials or websites, or for any other materials, products, or services of third parties. You agree that You will not use any third-party materials in a manner that would infringe or violate the rights of any other party and that DataSmart is not in any way responsible for any such use by You. One or all DataSmart Applications use the following third-party content, whereas the following list includes only those third-party content that require such disclosure in accordance with their license.
TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, THE APPLICATION IS PROVIDED TO YOU “AS IS,” WITH ALL FAULTS, WITHOUT WARRANTY OF ANY KIND, WITHOUT PERFORMANCE ASSURANCES OR GUARANTEES OF ANY KIND, AND YOUR USE IS AT YOUR SOLE RISK. THE ENTIRE RISK OF SATISFACTORY QUALITY AND PERFORMANCE RESIDES WITH YOU. DataSmart AND DataSmart’S LICENSORS (COLLECTIVELY “DataSmart” FOR PURPOSES OF THIS SECTION AND SECTION 10) DO NOT MAKE, AND HEREBY DISCLAIM, ANY AND ALL EXPRESS, IMPLIED OR STATUTORY WARRANTIES, INCLUDING IMPLIED WARRANTIES OF CONDITION, UNINTERRUPTED USE, MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT OF THIRD-PARTY RIGHTS, AND WARRANTIES (IF ANY) ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. DATASMART DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE APPLICATION; THAT THE APPLICATION WILL MEET YOUR REQUIREMENTS; THAT OPERATION OF THE APPLICATION WILL BE UNINTERRUPTED OR ERROR-FREE; THAT THE APPLICATION WILL INTEROPERATE OR BE COMPATIBLE WITH ANY OTHER APPLICATION; THAT ANY ERRORS IN THE APPLICATION WILL BE CORRECTED; OR THAT THE APPLICATION WILL BE AVAILABLE FOR REINSTALLS TO THE SAME OR MULTIPLE DEVICES. NO ORAL OR WRITTEN ADVICE PROVIDED BY DataSmart OR ANY AUTHORIZED REPRESENTATIVE OR THIRD PARTY SHALL CREATE A WARRANTY. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF, OR LIMITATIONS ON, IMPLIED WARRANTIES OR THE LIMITATIONS ON THE APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.
TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, IN NO EVENT SHALL DataSmart, ITS SUBSIDIARIES OR ITS AFFILIATES BE LIABLE TO YOU FOR ANY PERSONAL INJURY, PROPERTY DAMAGE, LOST PROFITS, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OF DATA, LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION OR ANY OTHER FORM OF DIRECT OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES FROM ANY CAUSES OF ACTION ARISING OUT OF OR RELATED TO THIS LICENSE OR THE APPLICATION, WHETHER ARISING IN TORT (INCLUDING NEGLIGENCE), CONTRACT, STRICT LIABILITY OR OTHERWISE, WHETHER OR NOT DataSmart HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE AND WHETHER OR NOT REPAIR, REPLACEMENT OR A REFUND (IF AWARDED AT OUR SOLE DISCRECTION) FOR THE APPLICATION DOES NOT FULLY COMPENSATE YOU FOR ANY LOSSES.
SOME JURISDICTIONS DO NOT ALLOW A LIMITATION OF LIABILITY FOR DEATH, PERSONAL INJURY, FRAUDULENT MISREPRESENTATIONS OR CERTAIN INTENTIONAL OR NEGLIGENT ACTS, OR VIOLATION OF SPECIFIC STATUTES, OR THE LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO SOME OR ALL OF THE ABOVE LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU. In no event shall DataSmart’s total liability to You for all damages (except as required by applicable law) exceed the amount actually paid by You for the Application.
THIS LIMITATION APPLIES, BUT IS NOT LIMITED TO ANYTHING RELATED TO THE APPLICATION, SERVICES OR CONTENT MADE AVAILABLE THROUGH THE APPLICATION.
You agree that the provisions in this EULA that limit liability are essential terms of this EULA.
You agree to defend, indemnify, and hold harmless DataSmart and its employees, contractors, officers, and directors from any and all claims, suits, damages, costs, lawsuits, fines, penalties, liabilities, expenses (including attorney's fees) that arise from Your use or misuse of the Application, violation of the Terms or violation of any rights of a third party. DataSmart reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by You, in which event you will cooperate in asserting any available defenses.
You agree that a breach of this EULA or the Terms will cause irreparable injury to DataSmart for which monetary damages would not be an adequate remedy and DataSmart shall be entitled to seek equitable relief in addition to any remedies it may have hereunder or at law without a bond, other security, or proof of damages.
If any provision of this EULA is illegal or unenforceable under applicable law, the remainder of the provision shall be amended to achieve as closely as possible the effect of the original term and all other provisions of this EULA shall continue in full force and effect.
The Terms constitute the entire agreement between You and DataSmart with respect to the Application and supersedes all prior or contemporaneous understandings regarding such subject matter. No amendment to or modification of this EULA will be binding unless made in writing and signed by DataSmart. No failure to exercise, and no delay in exercising, on the part of either party, any right or any power hereunder preclude further exercise of any other right hereunder. In the event of a conflict between this EULA, any applicable purchase, or other terms, the terms of this EULA shall govern.
You agree to abide by U.S., EU and other applicable export control laws and agree not to transfer the Application to a foreign national, or national destination, which is prohibited by such laws, without first obtaining, and then complying with, any requisite government authorization. You certify that you are not a person with whom DataSmart is prohibited from transacting business under applicable law.
We will occasionally update this EULA as necessary to protect our users, furnish current information and respond to legal and technical changes. The most current version of the EULA will govern Your use of our Application and will be available at http://www.datasmartproject.com/EULA. Please check this web page regularly for any changes. We reserve the right to change this EULA at any time and we will publish changes twice per year. Your usage of the Application after the changes are integrated will constitute your acceptance of the changes.
Should You wish to contact the DataSmart with any questions, complaints or claims with respect to the Application, You should visit the DataSmart website at http://www.datasmartproject.com/index_en.html or contact firstname.lastname@example.org mail.
To the extent that applicable legislation allows the parties to a transaction to agree on where title passes for sales of property, You agree that title for sales of Application (software sold by electronic download) passes where DataSmart is domiciled.
The original version of this EULA is written in English. Any translation of this EULA into any other language is done for local requirements and in the event of a dispute, inconsistency or discrepancy between English and any non-English versions, the English version of this EULA shall govern, to the extent not prohibited by local law in your jurisdiction. This Agreement and all disputes or controversies arising out of or relating to this Agreement shall be governed by, and construed in accordance with, UK law, if You use the Application in the EU, excluding its conflict of laws rules, or in accordance with the laws of the State of California, excluding its conflict of laws rules, if You use the Application anywhere else in the world.
We will make every reasonable effort to resolve any disagreements that You have with DataSmart.
If those efforts fail, by using the Application You agree that any claim, dispute, or controversy You may have against DataSmart arising out of, relating to, or connected in any way with this Agreement and/or the Application, shall be resolved exclusively by final and binding arbitration.
If You are a resident of the United States of America:
If You are a resident of any country other than the United States of America: