This agreement governs and is applicable for all versions of Qwikly developed and distributed by InstaJams, LLC (the "Software") installed and used on computers and other devices utilizing Apple Operating Systems.
PLEASE READ THIS EULA CAREFULLY BEFORE DOWNLOADING, INSTALLING OR USING QWIKLY SOFTWARE. BY DOWNLOADING, INSTALLING AND USING THE SOFTWARE, YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS EULA. IF YOU DO NOT AGREE TO THE TERMS OF THIS EULA, DO NOT DOWNLOAD, INSTALL AND/OR USE THE SOFTWARE.
This EULA is an agreement between you ("You", "Your") (either an individual or a single entity) and InstaJams, LLC ("Qwikly" or "Us", "We") for the Qwikly Software.
When used in this EULA, the following terms shall have the respective meanings indicated, such meanings to be applicable to both the singular and plural forms of the terms defined:
"Software" means all of the contents of the downloads, files, disk(s), or other media containing Qwikly with which this EULA is applicable, including but not limited to (A) registration information, i.e. license key which is unique for Your registration name; (B) related explanatory written materials or files ("Documentation"); (C) Software setup files and code samples (if any); and (D) any upgrades, modified versions, updates, additions, and copies of the Software, if any, provided to You by Us now or in the future (collectively, "Updates").
"Use" or "using" means to access, install, download, copy or otherwise benefit from using the functionality of the Software in accordance with the documentation.
“Full Version” means a version of the Software purchased for individual use according to this EULA. A Full Version may include periodic, downloadable updates to the Software. Such Software updates will be restricted to versions of the Software released within one calendar year of the original software license purchase. That is, if a Full Version license is purchased on January 1, 2017, the licensee will be entitled to any versions of the Software released until January 1, 2018 and will not be entitled to any subsequent versions of the Software without purchasing an upgraded Full Version license.
"Trial Version" means a version of the Software to be used only to review, demonstrate and evaluate the Software, including but not limited to “alpha” and “beta” releases. Any functional peculiarities, limitations or problems present in the Trial Version are and will not be a basis or reason for You to obtain a refund of a purchased license.
Qwikly App as the licensor, grants You as the licensee, a non-exclusive right to use the Software under the terms of this EULA. The Software is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. Qwikly reserves all rights not expressly granted to You. Qwikly retains the ownership of the copyright in and to the Software.
Subject to Your compliance with this EULA, Qwikly grants You a non-exclusive, limited, revocable, non-transferable license to use the Software solely as follows:
You may not assign, rent, lease, lend, sell, redistribute or sublicense this Software, except as provided herein or with our express consent and agreement. You may, however, make a one-time permanent transfer of all of Your license rights to the Software (in its original form as provided) to another party, provided We are notified of and approve the transfer and the assignee agrees to be bound by the terms of this EULA.
This EULA is effective until terminated. Your rights under this License will terminate by Us automatically without notice if You fail to comply with any term(s) of this EULA and or otherwise fail to pay the fees and charges, if any, payable to Us and associated with Your use of the Software. Upon the termination of this License, You shall cease all use and destroy, remove or delete all copies, full or partial, of the Software on Your computer or device and otherwise in Your possession or control. Any term or condition of this EULA which by its plain meaning shall be and must be performed after termination, shall survive termination.
In general, we do not offer refunds for purchases of Software licenses. We do this because we offer free, limited-time Trial Versions for our Software to download and try before You buy. These Trial Versions allow You to test the software risk-free before you decide to make a purchase. If You would like to request a refund, please email Us at firstname.lastname@example.org. We will asses refund requests on their merits. There is no obligation to provide a refund in situations like the following:
YOU ASSUME THE ENTIRE RISK AS TO THE USE, QUALITY AND PERFORMANCE OF THE SOFTWARE.
THE SOFTWARE AND ACCOMPANYING WRITTEN MATERIALS ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED OF ANY KIND AND QWIKLY SPECIFICALLY DISCLAIMS WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY AND NON-INFRINGMENT OF ANY THIRD PARTY RIGHTS. NO ORAL OR WRITTEN ADVICE GIVEN BY QWIKLY, ITS DEALERS, DISTRIBUTORS, AGENTS OR EMPLOYEES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THIS WARRANTY AND YOU MAY NOT RELY UPON SUCH INFORMATION OR ADVICE.
TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW, IN NO EVENT SHALL QWIKLY BE LIABLE TO YOU OR A THIRD PARTY FOR PERSONAL INJURY, OR ANY INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER. THIS INCLUDES, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA OR INFORMATION, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE SOFTWARE OR SERVICES OR ANY THIRD PARTY SOFTWARE OR APPLICATIONS IN CONJUNCTION WITH THE SOFTWARE HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE) AND EVEN IF QWIKLY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU. REGARDLESS, IN NO EVENT SHALL QWIKLY'S TOTAL LIABILITY TO YOU FOR ALL DAMAGES EXCEED THE PURCHASE PRICE OF THE SOFTWARE (MAXIMUM BEING THE LESSER OF THE AMOUNT PAID BY YOU AND THE SUGGESTED RETAIL PRICE AS LISTED BY INSTAJAMS LLC). THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
This EULA will be governed by and construed in accordance with the laws of the State of Ohio, excluding its conflict of law principles. This EULA shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. If for any reason a court of competent jurisdiction finds any provision, or portion thereof, to be unenforceable, the remainder of this License shall continue in full force and effect. The federal or state courts located in or within 75 miles of Columbus, OH, USA shall be the exclusive jurisdiction and venue for all legal proceedings that are not arbitrated under this Agreement. To the maximum extent permitted by law, You hereby consent to the jurisdiction and venue of such courts and waive any objections to such jurisdiction and venue.
Except for actions to protect copyrights and to enforce an arbitrator’s decision hereunder, all disputes, controversies, or claims arising out of or relating to this Agreement or a breach thereof shall be submitted to and finally resolved by arbitration under the rules of the American Arbitration Association ("AAA") then in effect. There shall be one arbitrator, and such arbitrator shall be chosen by mutual agreement of the parties in accordance with AAA rules. The arbitration shall take place in the location in Ohio, USA or such other location in the USA determined by Qwikly in its sole discretion. The arbitrator shall apply the laws of the State of Ohio, to all issues in dispute. The findings of the arbitrator shall be final and binding on the parties, and may be entered in any court of competent jurisdiction for enforcement. Notwithstanding the law of Ohio legal fees shall be awarded to the prevailing party in the arbitration.
This EULA constitutes the entire agreement between You and Qwikly relating to the use of the Software and supersedes all prior or contemporaneous understandings regarding such subject matter. No amendment to or modification of this EULA will be binding unless in writing and signed by Qwikly. The failure of either party to enforce any rights granted hereunder or to take action against the other party in the event of any breach hereunder shall not be deemed a waiver by that party as to subsequent enforcement of rights or subsequent actions in the event of future breaches. Any translation of this License is done for local requirements and in the event of a dispute between the English and any non-English versions, the English version of this License shall govern, to the extent not prohibited by local law in Your jurisdiction.
If any term or provision of this EULA is declared void or unenforceable in a particular situation, by any judicial or administrative authority, this declaration shall not affect the validity of enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other situation. To the extent possible the provision will be interpreted and enforced to the greatest extent legally permissible in order to effectuate the original intent, and if no such interpretation or enforcement is legally permissible, shall be deemed severed from the EULA.