Send Anywhere Terms of Service
Effective as of March 21, 2016. For a prior version of our Terms of Service, click here.
Thanks for using Send Anywhere!
The following terms and conditions (the “Agreement”) govern all use of the “Send Anywhere” application (“Application”). The Application is owned and operated by Estmob, Inc. (“Estmob”). The Application is subject to your (the “User”) acceptance without modification of all of the terms and conditions contained herein.
BY USING OR ACCESSING ANY PART OF THE APPLICATION, YOU AGREE TO ALL OF THE TERMS AND CONDITIONS CONTAINED HEREIN.
Estmob reserves the right, at its sole discretion, to modify or replace any of the terms or conditions of this Agreement at any time. It is User’s responsibility to check this Agreement periodically for changes. User’s continued use of the Application following email notification of any changes to this Agreement constitutes acceptance of those changes. This Agreement is void where prohibited by law, and the right to access and use the Application is revoked in such jurisdictions.
1. AGE RESTRICTION. User hereby certifies to Estmob that if User is an individual (i.e., not a corporation), User is at least 14 years of age. User also certifies that it is legally permitted to use the Application.
2. LICENSE. Subject to the terms and conditions of this Agreement, User is hereby granted a non-exclusive, non-transferable, non-sublicensable, terminable license to access downloads and use the Application solely for the purposes for which the Application is provided. This is provided that Estmob reserves the right to charge User fees for the license with advanced notices of not less than seven (7) days. This license is personal to User and User will not use the Application for any commercial purpose.
3. RESTRICTIONS. User shall not, nor permit anyone else to, directly or indirectly: (i) reverse engineer, disassemble, decompile, or otherwise attempt to discover the source code or underlying algorithms of all or any part of the Application (except that this restriction shall not apply to the limited extent restrictions on reverse engineering prohibited by applicable local law); (ii) modify or create derivatives of any part of the Application; (iii) rent, lease, or use the Application for timesharing or service bureau purposes; or (iv) remove or obscure any proprietary notices on the Application. As between the parties, Estmob shall own all titles, ownership rights, and intellectual property rights in and to the Application, and any copies or portions thereof.
User shall not (i) submit false information to the Application, or (ii) use the Application for any purpose that is unlawful or prohibited by this Agreement.
4. FILE SHARING AND USER CONTENT. The Application allows Users to store, sync, and share documents, files, materials, content, data, and any other information User submits to, or through, the Application (User’s “Content”).
USER ACKNOWLEDGES AND AGREES THAT BY UTILIZING ANY OF THE AFOREMENTIONED FEATURES, USER CONSENTS TO Estmob AND ITS AGENTS AND PROVIDERS (I) ACCESSING USER’S DEVICE FOR SUCH PURPOSES, AND (II) STORING, SYNCING, AND SHARING USER’S CONTENT AS INDICATED/REQUESTED BY USER THROUGH USER’S USE OF THE APPLICATION. USER HEREBY GRANTS TO Estmob ALL NECESSARY RIGHTS AND LICENSES (SUCH AS THE RIGHT AND LICENSE TO USE, COPY, MODIFY, TRANSMIT, DISTRIBUTE, STORE, AND CACHE SUCH CONTENT) AS REASONABLY NECESSARY FOR Estmob TO ACHIEVE SUCH ACTIVITIES.
User is solely responsible for maintaining and protecting all Content that is stored, retrieved, or otherwise processed by or in connection with the Application. Without limiting the foregoing, User will be responsible for all costs and expenses that User or others may incur with respect to backing up, and restoring and/or recreating any Content that is lost or corrupted. User accesses/uses/relies on the Content of other Application users at User’s own and sole risk.
With respect to all Content, User represents and warrants that (i) User has the full right and authority to access and distribute, (ii) no such Content will infringe or misappropriate or otherwise violate the rights of any third party, (iii) no such Content will violate any law or regulation, (iv) no such Content will be disparaging or defamatory toward others, sexually explicit, or abusive, (v) no such Content will be contrary to, or inconsistent with, the social mores, ethics, or public policies, (vi) no such Content will contain any direct or indirect messages or nuances that may be seen as advocating or promoting any illegal, illicit, immoral, violent, or unethical activities or ideas, (vi) no such Content will damage or otherwise adversely affect the Application or any of the systems used by or on behalf of Estmob to host or otherwise provide the Application.
5. REGISTRATION; SECURITY. As a condition to using certain products and services of the Application, User will be required to register with Estmob and enter their name, email address, and password (“Send Anywhere User ID”). User shall provide Estmob with accurate, complete, and updated registration information. Failure to do so shall constitute a breach of this Agreement, which may result in immediate termination of User’s account. User may not (i) select or use as a Send Anywhere User ID a name or email address of another person; or (ii) use as a Send Anywhere User ID a name or email address subject to any rights of a person other than User without appropriate authorization. Estmob reserves the right to refuse registration of, or cancel a Send Anywhere User ID in its discretion. User shall be responsible for maintaining the confidentiality of User’s Send Anywhere password and other account information.
6. API. Terms governing User’s use of Send Anywhere API must be separately entered and are accessible to download from here. Under the separate terms, if applicable, Estmob may also grant you a separate non-exclusive, non-transferable, non-sublicensable, non-assignable license to access and use the Send Anywhere Services for personal or business purposes. Such terms governing User’s use of Send Anywhere API may contain pricing policies.
7. INDEMNIFICATION. User is responsible for all of its activity in connection with the Application, including any Content. User shall defend, indemnify, and hold harmless Estmob, its affiliates and each of its affiliates’ employees, contractors, directors, suppliers, and representatives from all liabilities, claims, and expenses, including reasonable attorneys' fees, that arise from or in connection with User’s (i) access to or use of the Application, (ii) Content, or (iii) violation of this Agreement.
8. WARRANTY DISCLAIMER. THE APPLICATION IS PROVIDED ON AN "AS IS" BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. Estmob MAKES NO WARRANTY THAT (I) THE APPLICATION IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, (II) THE APPLICATION WILL NOT DAMAGE OR ALTER CONTENT, OR (III) THE RESULTS OF USING THE APPLICATION WILL MEET USER’S REQUIREMENTS OR EXPECTATIONS. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
9. LIMITATION OF LIABILITY. IN NO EVENT SHALL Estmob, ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, VENDORS, OR SUPPLIERS BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE, OR ANY OTHER LEGAL THEORY WITH RESPECT TO THE APPLICATION: (I) FOR ANY LOST PROFITS OR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, EVEN IF FORESEEABLE, (II) FOR ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE (REGARDLESS OF THE SOURCE OF ORIGINATION), (III) FOR ANY DAMAGE CAUSED TO ANY CONTENT BY THE APPLICATION OR OTHERWISE, OR (IV) FOR MATTERS BEYOND Estmob’s REASONABLE CONTROL. USER UNDERSTANDS THAT THE APPLICATION MAY CONTAIN BUGS OR THE LIKE, OR MAY FOR OTHER TECHNICAL REASONS SUCH AS FORMAT COMPATIBILITY, CAUSE ALTERATION OR DAMAGE TO CONTENT – AND USER ACCEPTS SUCH RISK. THE FOREGOING LIMITATIONS SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
10. TERMINATION. Estmob may terminate, and subsequently further refuse to grant, User’s access to the Application at any time, with or without cause. Upon termination, User will no longer access (or attempt to access) the Application. User may terminate User’s account at any time through User’s account page. All provisions of this Agreement, which by their nature should survive termination, shall survive termination, including, without limitation, warranty disclaimers and limitations of liability. User acknowledges and agrees that upon termination, User’s contents will no longer be available if not sooner deleted per Estmob’s policies, which may be amended from time to time without notice to Users.
12. REQUEST FROM LAW ENFORCEMENT AGENCIES. User agrees that Estmob may from time to time receive requests from law enforcement agencies to search and deliver any data concerning Contents, User’s identification, User’s usages, Contents itself, and other similar information and may comply with such requests with or without advance notices to User.
13. MISCELLANEOUS. The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder. Estmob shall not be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond Estmob’s reasonable control, including, without limitation, mechanical, electronic or communications failure or degradation (including "line-noise" interference). Parties may seek equitable reliefs such as injunctions and specific enforcements in addition to damages. In any proceedings or actions arising out of this Agreement, the prevailing party is entitled to reasonable attorney’s fees and all costs incurred in connection with such proceedings and actions. If any provision of this Agreement is found to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary and all other provisions of this Agreement shall otherwise remain in full force, in effect and enforceable. This Agreement is not assignable, transferable, or sublicensable by User except with Estmob’s prior written consent. Estmob may transfer, assign, or delegate this Agreement and its rights and obligations without consent. This Agreement shall be governed by and construed in accordance with the laws of the country where Estmob’s headquarter is located. User waives any defense based on lack of personal jurisdiction, inconvenient venue, lack of notice, defect in services of court documents, forum, and any other similar doctrines. User agrees that a notice by an email specified by User constitutes a valid notice for delivery of summons and other court documents. User agrees that Estmob may enforce any orders or judgments (which it may obtain from a court located in the country where Estmob’s headquarter is then located) in a country where User resides. Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications, and other understandings relating to the subject matter of this Agreement, and that all modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and User does not have any authority of any kind to bind Estmob in any respect whatsoever.
14. ACKNOWLEDGMENT OF COMPLETE UNDERSTANDING. By downloading, accessing, and/or using Application in any way, User explicitly acknowledges that User has read, understood, and agreed to all of the provisions of this Agreement regardless of whether User’s primary language is English or not.
Thanks for using Send Anywhere!
PRIVACY PRINCIPLES - You have control over what information you share and whom you share it with. - We do not share your personal information with people or services you don't want. - We will work hard to be a responsible steward of the information we hold. - We store your non-personal information to improve your user experience.
By using any Application, the Send Anywhere Services, or the Site, you consent to the privacy practices described in this Policy.
This Policy covers our collection, use, and disclosure of your information through the Applications, the Send Anywhere Services, and the Site. It does not cover any collection, use, or disclosure by third parties through any applications, Web sites, products, or services that we do not control or own, such as Facebook, or any third party features or services made available via an Application, the Send Anywhere Services, or the Site. All trademarks, trade names, and logos of third parties featured on the Applications or the Site belong to their respective owners.
1. WHAT KIND OF INFORMATION WE COLLECT
We collect the following types of information below through your use of the Applications, the Send Anywhere Services, and/or the Site.
Personal Information. “Personal Information” is information that identifies you or another person. Personal Information may be transmitted or received when you use an Application, the Send Anywhere Services, and/or the Site. Personal Information includes your geographic location information; the names, email addresses, telephone, device numbers pertaining to you or another person; contact entries stored within your Device; and information, messages, images, photos, files, and other content (including any location information and other metadata pertaining to such items) that you transmit or receive using an Application. Personal Information also includes information about you or others that may be accessed by our system directly from your Device, including from your address book, photos, or contacts folder, in order to enable certain features of an Application or the Send Anywhere Services, such as the feature that finds and suggests mutual friends and other individuals you may know. Unless you have elected to opt-out of providing your geographic location information, such information may be accessed by one or more Applications, whether or not in active use, from the servers of third party app providers or markets through which you obtain applications for your Device. We collect Personal Information if you provide it directly to us via email or through the Applications, the Send Anywhere Services, or the Site. We may also collect Personal Information when you send us messages, comments, questions, or suggestions, or if you participate in blogs, forums, message boards, chat rooms, profile pages, and other services within which you are able to post information, if any, through the Send Anywhere Services and/or on the Site (collectively, “Forums”). We may also collect Personal Information through certain features of one or more Applications or the Send Anywhere Services (and in some instances will allow you to opt-out of such collection or retention of certain Personal Information). In some instances, certain Applications do not have to be in active use in order for your Personal Information to be collected through them.
Non-Personal Information. “Non-Personal Information” is information that does not identify you or any other individual, and includes Session and Usage Data, Log Data and Aggregate Information, each as described below.
Session and Usage Data. “Session and Usage Data” is information about your use of an Application, the Send Anywhere Services, and/or the Site, and includes, without limitation, connection and service-related data submitted to us through your use of an Application, the Send Anywhere Services, or the Site. Session and Usage Data includes information relating to the connection request, server communication and data sharing, including network measurements, quality of service, and date, time and location of the Send Anywhere. We also may aggregate Session and Usage data as described in Aggregate Information below. Please note that Session and Usage Data does not include any Personal Information, nor does it include Content you may transmit or share through the use of an Application (such as photos, contacts, calendar appointments, etc.), the Send Anywhere Services, or the Site.
Log Data. When you interact with us or use an Application, the Send Anywhere Services, or our Site, our systems may automatically collect your unique User Device number, the IP address, type of browser or operating system you use, and the dates and times of your use (“Log Data”).
Aggregate Information. “Aggregate Information” is data we collect about a group or category of services or Users from which individual User identities have been removed. In other words, information on how you use the Applications, the Send Anywhere Services, and the Site may be collected and combined with information about how others use the Applications, the Send Anywhere Services, and the Site, but no personally identifiable information will be included in the resulting Aggregate Information. Aggregate Information helps us understand trends in our Users' needs so that we can better consider new features or otherwise tailor the Applications, the Send Anywhere Services, and the Site.
2. HOW WE USE YOUR INFORMATION
Personal Information. We may use your Personal Information:
• to respond to your inquiries, fulfill your requests, provide services, or complete transactions you have requested.
• to send you information regarding an Application, the Send Anywhere Services, and the Site, changes to our terms, conditions, and Policies, and/or other administrative information.
• to resolve problems with an Application, the Send Anywhere Services, or the Site.
• to create an individual profile and provide personalized services, and to create and inform you of new products and services from us that better meet your needs.
• to suggest that you use or take advantage of certain features within Applications or the Send Anywhere Services.
• to better determine your location.
• as we believe to be necessary or appropriate: (a) in any manner permitted under applicable law, including laws outside your country of residence; (b) to comply with legal process; (c) to respond to requests from public and government authorities, including public and government authorities outside your country of residence; (d) to enforce our terms and conditions; (e) to protect our operations; (f) to protect our rights, privacy, safety, or property, and/or that of our affiliates, you, or others; and (g) to allow us to pursue available remedies or limit the damages that we may sustain.
Non-Personal Information. We may use Non-Personal Information for any purpose, including for our own internal purposes; to measure traffic patterns; to understand demographics, customer interest, and other trends among our Users; to provide, improve, and modify the Applications, Send Anywhere Services, and the Site; and for promotion and marketing purposes. In some instances, we may combine Non-Personal Information with Personal Information (such as combining your name with your unique User Device number). If we combine any Non-Personal Information with Personal Information, the combined information will be treated by us as Personal Information as long as it is combined with any Personal Information.
We may display targeted advertisements based on Personal Information. Advertisers (including ad serving companies) may assume that people who interact with, view, or click targeted ads meet certain targeting criteria, such as females between 18-24 years of age from a particular geographic area. We do not provide any Personal Information to the advertiser when you interact with or view a targeted ad. However, by interacting with or viewing an ad you are consenting to the possibility that the advertiser will assume that you meet the targeting criteria used to display the ad.
3. HOW YOUR INFORMATION MAY BE DISCLOSED
Personal Information. In general, we use Session and Usage Data internally to serve our Users and enable them to take maximum advantage of the Applications, the Send Anywhere Services, and the Site. We also store Personal Information to improve the functionality of the Applications, the Send Anywhere Services, and the Site. All information collected is stored in our database and may be archived elsewhere. We may disclose your Personal Information:
• to our third party service providers who provide services such as Web site hosting, maintenance, data analysis, payment processing, order fulfillment, infrastructure provision, IT services, customer service, email delivery services, credit card processing, auditing services, and other similar services, but only to the extent necessary or useful to provide such services, and only pursuant to contractual obligations requiring such third parties to maintain the privacy and security of your Personal Information.
• to identify you to anyone to whom you send messages through an Application, the Send Anywhere Services, or the Site.
• to identify you to other users of an Application to suggest you or they take advantage of certain features within Applications or the Send Anywhere Services.
• provided by you on Forums freely and without limitation. Please note that any Personal Information you post or disclose on Forums will become public information, and may be available to visitors of the Site. We urge you to be very careful when deciding to disclose your Personal Information, or any other information, on the Site.
• to a third party in the event of any reorganization, merger, sale, joint venture, assignment, transfer, or other disposition of all or any portion of our business, assets, or stock (including in connection with any bankruptcy or similar proceedings).
• as we believe to be necessary or appropriate: (a) under applicable law, including laws outside your country of residence; (b) to comply with legal process, whether originating in the United States or other territory; (c) to respond to requests from public and government authorities, including public and government authorities outside your country of residence; (d) to enforce our terms and conditions; (e) to protect our operations or those of any of our affiliates; (f) to protect our rights, privacy, safety, or property, and/or that of our affiliates, you, or others; (g) to allow us to pursue available remedies or limit the damages that we may sustain; and (h) if we reasonably believe that an emergency involving immediate danger of death or serious physical injury to any person requires immediate disclosure of communications or your Personal Information.
No Disclosure to Third Parties for Marketing Purposes without Your Consent. We do not disclose your Personal Information to third parties for the third parties' direct marketing purposes, unless you first affirmatively agree to such disclosure.
Non-Personal Information. We may disclose Non-Personal Information for any purpose. In some instances, we may combine Non-Personal Information with Personal Information (such as combining your name with your unique User Device number). If we combine any Non-Personal Information with Personal Information, the combined information will be treated by us as Personal Information as long as it is combined with Personal Information.
4. THIRD-PARTY SITES
In general, the Applications, the Send Anywhere Services, and the Site access third party information (such as your Google or Facebook account information) through application interfaces. We may provide links to third party Web sites, such as Facebook, as a service to our Users. The Site may also carry advertisements from other companies. When you click on links of third parties in an Application, the Send Anywhere Services, or the Site, you may leave the Application, the Send Anywhere Services, or the Site. Some of these third party sites may be co-branded with our name/logo or our affiliated entity's name/logo, even though they are not operated or maintained by us. This Policy does not address, and we are not responsible for, the privacy practices of Web sites operated by third parties, whether they are linked to or otherwise accessible from an Application, the Send Anywhere Services, or the Site. The inclusion of a link or accessibility of third party Web sites does not imply endorsement of such third party Web sites by us.
5. USERS WITH WHOM YOU SHARE YOUR INFORMATION
We cannot control the actions of other Users with whom you share your information. We cannot, and do not, control the information you share with other Users using an Application, the Send Anywhere Services, or the Site (including via Forums) or how such other Users will use or share such information. We are not responsible for third party circumvention of our security measures.
6. CHOICES ABOUT YOUR PERSONAL INFORMATION
Opting Out of Marketing-Related Communications. You may opt out from receiving marketing-related emails, texts, phone messages, or other communications from us on a going-forward basis by contacting us at email@example.com.
We will try to comply with your opt-out request as soon as reasonably practicable. Please note that if you opt out as described above, this will apply to marketing messages from us only. We will not be able to remove your Personal Information from the database of any other Users you have shared such information or from third parties to whom you have previously authorized us to share such information (i.e., to which we have already provided your Personal Information as of the date that we implement your opt-out request). Please also note that if you do opt-out of receiving marketing-related messages from us, we may still send you important administrative messages, and you cannot opt-out from receiving administrative messages.
Accessing, Changing or Suppressing Your Personal Information. If you would like to review, correct, update, suppress, delete, or otherwise limit our use of your Personal Information that has been previously provided to us, you may contact us at firstname.lastname@example.org. In your request, please make clear what information you would like to have changed, whether you would like to have your Personal Information suppressed from our database, or otherwise let us know what limitations you would like to put on our use of your Personal Information. We will try to comply with your request as soon as and to the extent to which it is reasonably practicable. Again, we cannot remove your Personal Information from the database of any other Users you have shared such information or from third parties to whom you have previously authorized us to share such information.
If you have questions about your Personal Information, please contact us at email@example.com.
Send Anywhere is very concerned about safeguarding the confidentiality of your Personal Information. We employ administrative, physical, and electronic measures designed to protect your information from unauthorized access and use. Please be aware that no security measures that we take to protect your information is absolutely guaranteed to avoid unauthorized access or use of your Personal Information or is impenetrable.
8. RETENTION PERIOD
9. OUR POLICY TOWARD CHILDREN UNDER 13 YEARS OF AGE
The Send Anywhere Services are not directed to children under 13 years of age. If you become aware that your child under 13 has provided us with personal information without your consent, please contact us at firstname.lastname@example.org. We do not knowingly collect personal information from children under 13. If we become aware that a child under 13 has provided us with personal information, we take steps to remove such information and terminate the child's account. By using any Application, the Send Anywhere Services, or the Site, you are representing to us that you are not under the age of 13. If you are under 13 years of age, you are not authorized to use any of the Applications and must immediately delete it from your User Devices. We recommend that minors, who are 13 years old but under 18 years old, ask their parents or legal guardians for permission before sending any information about themselves to us or anyone else, whether by using an Application, the Send Anywhere Services, or the Site.
10. INTERNATIONAL USERS
Your Personal Information may be stored and processed in any country where we have facilities, and by using an Application, the Send Anywhere Services, or the Site, you consent to the transfer of your Personal Information to countries, including the Republic of Korea, which may be outside of your country of residence and may provide for different and less stringent data protection rules than in your country. If you object to your Personal Information being transferred or used as described in this Policy, please do not use any Application, the Send Anywhere Services, or the Site and immediately delete all Applications from your User Devices.
11. SENSITIVE INFORMATION
We ask that you not send us, and you not disclose, any sensitive Personal Information (e.g., information related to racial or ethnic origin, political opinions, religion or other beliefs, health, sexual orientation, criminal background or membership in past organizations, including trade union memberships) on or through an Application, the Send Anywhere Services, or the Site or otherwise to us.
[Personal Information Protection Manager]
• Name: Oh,Yoonsik
• Title: CEO
• Division: Security Part
• Contact: email@example.com
13. CONTACTING US / REPORTING VIOLATIONS
If you have any questions or comments about this Policy or our privacy practices, or to report any violations of the TOS or abuse of an Application, the Send Anywhere Services, or the Site, please contact us at firstname.lastname@example.org.
APPLICATION DEVELOPER AND API LICENSE AGREEMENT
This Application Developer and API License Agreement (the “Agreement”), effective as of the Effective Date, is entered and made by and between Estmob, Inc. (“Estmob”) and you, or the company, organization or other legal entity (“Entity”) that you represent (“Licensee” or “YOU”). If you are entering into this Agreement on behalf of an Entity, you are agreeing to this Agreement for that Entity and representing to Estmob that you have the authority to bind such Entity and its affiliates to this Agreement.
BY CLICKING THE “SUBMIT” BUTTON, LICENSEE ACCEPTS THE TERMS OF THIS AGREEMENT AND YOU CONFIRM THAT YOU HAVE READ AND UNDERSTAND THE TERMS AND CONDITION OF THIS AGREEMENT AND ALSO AGREE TO BE BOUND BY THIS AGREEMENT.
For purposes of this Agreement, capitalized terms shall have the meanings set forth below. Capitalized terms utilized in this Agreement and not defined have the meaning set forth in the Estmob Terms of Service (the “Terms”).
App: means any downloadable application software.
App Market: means any marketplace of downloadable applications commonly known as apps such as Google Play or App Store.
Confidential Information: means all information disclosed by or on behalf of Estmob to Licensee which is a reasonable person would understand to be confidential given the nature of the information and circumstances of disclosure whether or not such information is “confidential” or otherwise. Confidential Information may include, without limitation, proprietary information, technical data, trade secrets or know-how, including, but not limited to, source code, research, product plans, products, services, customers, customer lists, markets, software, developments, inventions, processes, formulas, technology, designs, drawings, engineering, hardware configuration information, marketing, finances, pricing or other business information. For all purposes of this Agreement, Account Data shall be deemed Confidential Information. Notwithstanding the foregoing, Confidential Information shall not include information (other than Account Data) that (i) was already known to Licensee at the time of disclosure by or on behalf of Estmob without an obligation of confidentiality; (ii) was or is obtained by Licensee from a third party not known by Licensee to be under an obligation of confidentiality with respect to such information; (iii) is or becomes generally available to the public other than by violation of this Agreement; or (iv) was or is independently developed by Licensee without use of Estmob’s Confidential Information.
Effective Date: means the date on which YOU submit this Agreement electronically or otherwise to Estmob.
General API Guidelines: mean guidelines and rules and policies that Estmob may from time to time adopt and notify by posting on its website concerning the manner and methods of using Estmob API. Each and every Licensee agrees to be bound by the terms of General API Guidelines whenever adopted and modified by Estmob.
Intellectual Property Rights: means patents, inventions, copyrights, trademarks, domain 1names, trade secrets, know-how and any other intellectual property and/or proprietary rights.
Internal Use: means the use of the Estmob API in connection with Licensee’s subscription to the Service for Licensee’s internal business purposes in accordance with the Terms.
Malicious Software: means any software or executable programs used to disrupt the operation of the host device acting against the intent, requirement, or interest of the device user, including malware, computer viruses, worms, trojan horses, ransomware, spyware, adware, scareware, and the likes.
Paid Licensee Applications: mean any Licensee Application published by Licensee in which users pays Licensee for a license to use, access and/or deploy such Licensee Application.
Payment Processor: means the third party payment processor that processes fees related to a Paid Licensee Application.
Publishing: means the making of any Application available to any user other than Licensee or for any purpose other than for use by Licensee.
Estmob API: means the API and any accompanying or related tools, guides, source code, executable applications and other materials made available by Estmob such as Send Anywhere API, including, without limitation, through its website.
Licensee Applications: mean web or other software services or applications developed by Licensee that utilize or interact with the Estmob API and are authorized to be Published pursuant to this Agreement.
Estmob Applications: mean web or other software services or application developed by Estmob.
Estmob Marks: mean Estmob, and Estmob’s other product and service names, trademarks, service marks, branding and logos made available for use in connection with the Estmob API pursuant to this Agreement.
Estmob Trademark Guidelines: mean guidelines and rules and policies that Estmob may from time to time adopt and notify by posting on its website concerning Estmob Trademarks. Each and every Licensee agrees to be bound by the terms of Estmob Trademark Guidelines whenever adopted and modified by Estmob.
Send Anywhere API: means a Estmob API, that interacts, incorporates, references or otherwise utilizes Send Anywhere App, a unique App developed by Estmob.
2. PURPOSE AND LICENSE
2.1 Licensee may use Estmob API to develop software to be incorporated into a separate App(s) as part thereof or a program to function independently on a stand-alone basis pursuant to the terms of this Agreement. This Agreement governs Licensee’s rights to use and access the Estmob API for the foregoing purposes, including any and all restrictions and policies implemented by Estmob from time to time with respect to the Estmob API as set forth on the Estmob’s website, this Agreement or otherwise communicated to Licensee (General API Policies).
2.2 Subject to the terms and conditions of this Agreement, including the restrictions set forth in Section 3, Estmob grants, for fee specified Section 8, to Licensee a non-exclusive, non- transferable, non-sublicensable, worldwide, revocable right and license during the Term to use the Estmob API to develop, implement and distribute Applications for all lawful policities.
2.3 Licensee grants to Estmob a non-exclusive, worldwide, fully paid-up, royalty-free license, for as long as its Licensee Applications are Published to an App Market to exercise its rights and perform its obligations under this Agreement.
2.4 Estmob shall have a royalty-free, fully paid-up, worldwide, transferable, sub-licensable, irrevocable and perpetual license to implement, use, modify, commercially exploit and/or incorporate into the services offered by Estmob and/or the Estmob API any suggestions, enhancement requests, recommendations or other feedback Estmob receives from Licensee.
3. RESTRICTIONS AND RESPONSIBILITIES
The licenses granted in Section 2 of this Agreement are explicitly conditioned on Licensee’s adherence to the following restrictions and compliance with its responsibilities as set forth herein.
3.2 In order to use and access the Estmob API, Licensee must obtain API credentials (a Certificate). Licensee may not share its Certificate with any third party, shall keep such Certificate and all Login information secure and shall use the Certificate as Licensee’s sole means of accessing the Estmob API.
3.3 Licensee’s Applications shall not substantially replicate products or services offered by Estmob, including, without limitation, functions or clients on platforms (such as iOS or Android) where Estmob offers its own client or function. Subject to the preceding sentence and the parties other rights and obligations under this Agreement, each party agrees that the other party may develop and publish applications that are similar to or otherwise compete with such party’s applications. Licensee may not use or access the Estmob API or the services offered by Estmob in order to monitor the availability, performance, or functionality of any of the Estmob API or the services offered by Estmob or for any similar benchmarking purposes.
3.4 Licensee is not permitted to Publish any Licensee’s Applications on any App Market that Estmob publishes its Applications to the extent that Licensee’s Application has similar functions and uses as that of Estmob’s Applications.
3.5 Licensee shall not, under any circumstances, through Licensee Applications or otherwise, repackage or resell Estmob API or any part or modification thereof. Licensee is not permitted to use the Estmob API in any manner that does or could potentially undermine the security of the Estmob Application, the Estmob API or any other data or information stored or transmitted using the Estmob Application. In addition, Licensee shall not, and shall not attempt to, interfere with, modify or disable any features, functionality or security controls of the Estmob Application or the Estmob API, defeat, avoid, bypass, remove, deactivate or otherwise circumvent any protection mechanisms for the Estmob Application or the Estmob API, or reverse engineer, decompile, disassemble or derive source code, underlying ideas, algorithms, structure or organizational form from the Estmob Application or the Estmob API.
3.6 Licensee acknowledges that Licensee is solely responsible, and that Estmob has no responsibility or liability of any kind, for the content, development, operation, support or maintenance of Licensee Applications. Without limiting the foregoing, Licensee will be solely responsible for (i) the technical installation and operation of its Licensee Applications; (ii) creating and displaying information and content on, through or within its Licensee Applications; (iii) ensuring that its Licensee Applications do not violate or infringe the Intellectual Property Rights of any third party; (iv) ensuring that Licensee Applications are not offensive, profane, obscene, libelous or otherwise illegal; (v) ensuring that its Licensee Applications do not contain or introduce Malicious Software into its services, the Estmob API and Estmob Application; and (vi) ensuring that its Licensee Applications are not designed to or utilized for the purpose of spamming any its users.
3.7 Licensee will respect and comply with the technical and policy-implemented limitations of the Estmob API and the restrictions of this Agreement in designing and implementing Licensee Applications. Without limiting the foregoing, Licensee shall not violate any explicit rate limitations on calling or otherwise utilizing the Estmob API.
3.8 Licensee shall not make any modifications to any Estmob API, other than as reasonably necessary to modify the formatting of such Estmob API in order to display, incorporate, reference, or otherwise utilize it in a manner appropriate for the pertinent Licensee Applications.
4. REPRESENTATIONS, WARRANTIES AND COVENANTS
4.1 Licensee represents, warrants and covenants that: (i) its Licensee Applications and Licensee Marks, the use of such Licensee Applications by its users, and the activities with respect to such Licsensee Applications and Licensee Marks undertaken by Estmob in accordance with the terms of this Agreement, do not and will not violate, misappropriate or infringe upon the Intellectual Property Rights of any third party; (ii) Licensee will comply with all applicable local, state, national and international laws and regulations, including, without limitation, all applicable export control laws, and maintain all licenses, permits and other permissions necessary to develop, implement and Publish its Licensee Applications; and (iii) its Licensee Applications do not and will not contain or introduce into the Estmob Application, Estmob Service, or the Estmob API, any Malicious Software; (vi) its Licensee Applications are not designed to or utilized for the purpose of spamming any users; (vi) it has all right, power and authority to grant the licenses granted to Estmob herein; and (vii) it acknowledges Estmob’s right to charge transaction and/or listing fees as provided in Section 8 herein.
4.2 System Requirement. Licensee represents and warrants that Licensee Application will meet the following system requirements:
• Android: Android 4.0 or later.
• iOS: iOS 7.0 or later, compatible with iPhone, iPad and iPod touch.
• Windows Phone: 8.1 or later.
• Amazon Kindle: Android 4.0 or later.
• Windows (PC): Windows Vista, Windows 7, Windows 8 - Designed for Desktop and Laptop.
• Windows 8 (Tablet): Windows 8.1- Designed for Surface PRO.
• Mac OSX: OSX 10.7 or later.
• Linux: debian 8.0 (Jessie) or later / ubuntu 12.04 (precise) or later
• Chrome App: Chrome 35 or later
• Web: Chrome, Safari, Firefox, IE 10 or later.
4.3 Licensee represents, warrants and covenants that it will include the mandatory terms of service provisions listed below (“Mandatory Service Terms”) in the terms of service (“App Terms of Service”) that govern use of its Apps by users of its Licensee Applications. Such Mandatory Service Terms are a minimum set of provisions and Licensee may have more exhaustive App Terms of Service. Licensee may change the term references to match the terms used in its App Terms of Service.
Mandatory Service Terms:
(i) The Licensee is the licensor of the Licensee Application and Estmob is not a party to the App Terms of Service.
(ii) Except as otherwise limited by any App Terms of Service imposed or required by the Licensee, Licensee grants You a perpetual, worldwide, non-exclusive, non-transferable and non-sublicensable license to access, deploy, use and integrate the Licensee Application in connection with Your use of Licensee Application.
(iv) You may not modify, reverse engineer, decompile or disassemble the Licensee Application in whole or in part, or create any derivative works from or sublicense any rights in the Licensee Application, unless otherwise expressly authorized in writing by Licensor.
(v) Each of You and the Licensor shall maintain all rights, title and interest in and to all its respective patents, inventions, copyrights, trademarks, domain names, trade secrets, know- how and any other intellectual property and/or proprietary rights (collectively, “IP Rights”). The rights granted to You to use the Licensee Application under these App Terms of Service do not convey any additional rights in the Licensee Application or Licensor Service, or in any IP Rights associated therewith. Subject only to limited rights to access and use the Licensee Application as expressly stated herein, all rights, title and interest in and to the Licensee Application and all hardware, software and other components of or used to provide the Licensee Application, including all related IP Rights, will remain with and belong exclusively to the Licensor. Licensor shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable and perpetual license to incorporate into the Licensee Application or otherwise use any suggestions, enhancement requests, recommendations or other feedback it receives from You.
-End of Mandatory Service Terms-
Subject to the limited licenses expressly provided in this Agreement, nothing in this Agreement transfers or assigns to Estmob any of Licensee’s Intellectual Property Rights in its Estmob Applications or Licensee’s Marks or other technology, and nothing in this Agreement transfers or assigns to Licensee any of Estmob’s Intellectual Property Rights in the Service, the Estmob API, the Estmob Marks, or Estmob’s other technology or the respective Intellectual Property Rights in any data of Estmob or its users.
This Agreement does not entitle Licensee to any support for the Estmob API, unless Licensee makes separate arrangements with Estmob for such support. Licensee is solely responsible for providing all support and technical assistance to End-Users of its Licensee Applications who access, deploy and/or purchase its Licensee Applications. Licensee acknowledges and agrees that Estmob has no obligation to provide support or technical assistance to the users of Licensee Applications and Licensee shall not represent to any such users that Estmob is available to provide such support. Licensee agrees to use commercially reasonable efforts to provide reasonable support to users of its Licensee Applications.
The fee for the license granted by Estmob to Licensee is free until further notified otherwise subject to Estmob’s right to modify the terms of fees and pricing from time to time within its sole discretion pursuant to the terms of Paragraph 5, “Modification”. Without limiting the generality of the foregoing, Estmob will notify in advance Licensees of the timing and the pricing method and structure by email notifications and website posting.
Licensee may from time to time, gain access to Confidential Information. Licensee may use Confidential Information only to the extent necessary to exercise its rights under this Agreement. Subject to the express permissions set forth herein. Licensee may not disclose Confidential Information to a third party without the prior express consent of Estmob, provided in writing or by email. Without limiting any other obligation of Licensee under this Agreement, Licensee agrees that it will protect Confidential Information from unauthorized use, access, or disclosure in the same manner that Licensee would use to protect its own confidential and proprietary information of a similar nature and in any event with no less than a reasonable degree of care.
10. DISCLAIMER OF WARRANTIES
ALL ASPECTS OF THE SERVICE AND THE ESTMOB API, INCLUDING ALL SERVER AND NETWORK COMPONENTS ARE PROVIDED ON AN AS IS AND AS AVAILABLE BASIS, WITHOUT ANY WARRANTIES OF ANY KIND TO THE FULLEST EXTENT PERMITTED BY LAW, AND ESTMOB EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. YOU ACKNOWLEDGE THAT ESTMOB DOES NOT WARRANT THAT THE SERVICE OR ESTMOB API WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR FREE FROM VIRUSES OR OTHER MALICIOUS SOFTWARE, AND NO INFORMATION OR ADVICE OBTAINED BY YOU FROM ESTMOB OR THROUGH THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS.
11. LIMITATION OF LIABILITY
11.1 UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, NEGLIGENCE OR OTHERWISE) WILL ESTMOB, OR ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, OR SUPPLIERS BE LIABLE TO LICENSEE OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL, PUNITIVE OR OTHER SIMILAR DAMAGES, INCLUDING LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA, BUSINESS INTERRUPTION OR ANY OTHER LOSS INCURRED BY LICENSEE OR ANY THIRD PARTY IN CONNECTION WITH THIS AGREEMENT, REGARDLESS OF WHETHER ESTMOB HAS BEEN ADVISED OF THE POSSIBILITY OF OR COULD HAVE FORESEEN SUCH DAMAGES.
11.2 NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, ESTMOB’S AGGREGATE LIABILITY TO LICENSEE OR ANY THIRD PARTY ARISING OUT THIS AGREEMENT, SHALL IN NO EVENT EXCEED ONE HUNDRED U.S. DOLLARS ($100.00). ANY CLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT MUST BE BROUGHT WITHIN ONE (1) YEAR OF THE FIRST EVENT OR OCCURRENCE GIVING RISE TO THE CLAIM.
11.3 Some jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, which means that some of the above limitations may not apply to Licensee. IN THESE JURISDICTIONS, ESTMOB’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW. The limitations set forth in this Section 11 will survive and apply even if any limited remedy specified in this agreement is found to have failed of its essential purpose.
Licensee will indemnify and hold Estmob harmless against any claim brought by a third party against Estmob arising from or related to any breach of an obligation, representation, warranty, covenant or other provision of this Agreement by Licensee or any matter which Licensee has expressly agreed to be responsible pursuant to this Agreement.
13. TERM AND TERMINATION
This Agreement shall commence on the Effective Date and will remain in effect until terminated pursuant to this Section 13. Either party may terminate this Agreement at any time, for any reason, or for no reason including, but not limited to, if Licensee violates any provision of this Agreement. Any termination of this Agreement shall also terminate the licenses granted to Licensee hereunder. Upon termination of this Agreement for any reason, Licensee shall cease using, and either return to Estmob, or destroy and remove from all computers, hard drives, networks, and other storage media, all copies of any materials licensed pursuant to this Agreement and any Confidential Information in Licensee’s possession, and shall certify to Estmob that such actions have occurred. Sections 3, 4, 6, and 8-16 shall survive termination of this Agreement.
14. ASSIGNMENT; ENTIRE AGREEMENT; REVISIONS
14.1 Licensee may not, directly or indirectly, by operation of law or otherwise, assign all or any part of this Agreement or Licensee’s rights under this Agreement or delegate performance of Licensee’s duties under this Agreement without Estmob’s prior consent, which consent will not be unreasonably withheld. Estmob may, without Licensee’s consent, assign this Agreement to any affiliate or in connection with any merger or change of control of Estmob or the sale of all or substantially all of its assets provided that any such successor agrees to fulfill its obligations pursuant to this Agreement. Subject to the foregoing restrictions, this Agreement will be fully binding upon, inure to the benefit of and be enforceable by the parties and their respective successors and assigns.
If any provision in this Agreement is held by a court of competent jurisdiction to be unenforceable, such provision shall be modified by the court and interpreted so as to best accomplish the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
16. RELATIONSHIP OF THE PARTIES
The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship among the parties.
All notices to be provided by Estmob to Licensee under this Agreement may be delivered in writing (i) by nationally recognized overnight delivery service (Courier) or email to the contact mailing address provided by Licensee to Estmob; or (ii) electronic mail to the electronic mail address provided for the Account owner related to your subscription to the Service. Licensee must give notice to Estmob in writing by Courier or Email to the following address:Estmob, Inc., 5F, 28, Hyoryeong-ro 77-gil, Seocho-gu, Seoul, Republic of Korea | email@example.com. All notices shall be deemed to have been given immediately upon delivery by electronic mail, or if otherwise delivered upon receipt or, if earlier, two (2) business days after being deposited in the mail or with a Courier as permitted above.
18. SERVICE OF SUMMONS; GOVERNING LAW
Licensee agrees that Estmob may serve legal documents including summons or notice of legal proceedings by way of email and courier delivery (“Expedited Service”), in the event that Licensee resides outside of HQ Country. Licensee acknowledges that Licensee prefers Expedited Service to alternative service and delivery of legal documents and that by agreeing to Expedited Service it is likely to be better noticed of such proceedings. This Agreement shall further be governed by the laws of HQ Country without regard to conflict of laws principles. Licensee hereby expressly agrees to submit to the exclusive personal jurisdiction of HQ Country for the purpose of resolving any dispute relating to this Agreement. Any and all disputes arising out of this Agreement shall be brought before a court within the district where Estmob is located. Licensee further agrees to waive any defense based on lack of personal jurisdiction, inconvenient forum, venue, or other similar principles. Licensee further agrees that a judgment entered by a court of HQ Country is enforceable in the country of Licensee’s residence. “HQ Country” is the state where Estmob designates as the place of its headquarter at any time during a controversy exists between Estmob and Licensee; provided that Estmob may re-designate it from time to time within its sole discretion by noticing Licensee of such change(s) and appropriate government agency, if required.
19. REMEDIES; ATTORNEY’S FEES.
A party may seek injunctive reliefs in addition to any legal remedies, including temporary protective orders and affirmative injunctive orders. The prevailing party in any dispute, proceeding, and/or action is entitled to reasonable attorney’s fees as well as related expenses and costs.