1st March 2012 (updated 16th January 2014)
1. License, Access and Use of the Service
1.1. Description of the Service: The FatFractal Platform including, but not restricted to, the NoServer™ Module (the “Services”).
1.3. Software Development Kit (SDK) and Distributable Code: You may install a complete copy of the SDK;s to develop and test your applications, but you may not distribute or sell the SDK or publish it to others. FatFractal reserves all rights to the SDK other than giving you specific rights allowing you to distribute (and permit further redistribution of) such parts of code (in object code form as well as in source code form if made available by FatFractal) from the SDK which is included in and required by your applications (Distributable Code). You may not use the SDK nor include Distributable Code in any unlawful or malicious applications and you must comply with any relevant export laws and other regulations. The SDK is provided As Is and FatFractal gives no warranties or guarantees of its operation, is not obligated to provide any support for the SDK or Distributable Code, may change how the SDK, Distributable Code and Services operate from time to time, and has the right to terminate offering the SDK, Distributable Code or Services at its sole discretion.
1.4. Modifications: We reserve the right to modify or discontinue any of the Services, including discontinuing and changing APIs, with or without notice and you agree that FatFractal will not be liable to you or any third party for any such modifications or suspension of the Services.
1.5. Registration and Account Security: In order to access the Services, you will need to fulfil the registration process via the Site. You agree to provide us with current and accurate information as required by the registration process. You are not authorized to register for the Services if you are under the age of 13 or without parental, guardian approval if under 18. You will be responsible for maintaining the security of your password and account after registration and you are responsible for any or all activities that occur under your account and password. You agree to notify us immediately if there is any unauthorized use of the password or account or any security breaches. FatFractal will not be liable for any loss or damage as a result of such an occurrence.
1.6. Third Party Content: Third Party Content (for example hosting, services and applications provided by third parties) may be available to you and accessed by you via FatFractal Service on separate fees, charges and conditions or for free, as may be determined by a third party. You use any Third Party Content at your sole risk.
1.7. Fees: We bill fees and charges as per the information on our Site, which we may update from time to time. We may increase or add fees by providing you at least 30 days’ notice. All fees and charges are exclusive of sales tax, VAT or other duties, and may be added where applicable.
1.9. General Use Policies: FatFractal may establish policies and guidelines regarding the use of the Services. These policies will be notified on our Site.
2. Conditions of Use and Restrictions
2.1. You are solely responsible for your Content (such as application code or data) and its use, including development, operation and maintenance. You are solely responsible for any claims relating to your Content and handling any notices sent to you (e.g., notices relating to Digital Millennium Copyright Act). In addition, you are responsible for your End Users use of the service. We will not provide any support to your end users. You will indemnify us from any claim related to your End Users use of the service or breach of agreement between you and Your Users.
2.2. Responsibility of Users: You represent and warrant to us that you have the right to your Content. You are entirely responsible for any executable files, video, images, information, data, messages or other material (“Content”) that you upload, post, publish or use via the Site and our Services and any harm resulting from that Content. You hereby represent and warrant that the downloading and use of all such Content will not (i) infringe any copyright, patent, trademark, trade secret, or other proprietary right of any party (ii) be, harmful, threatening, abusive, harassing, excessively violent, defamatory, vulgar, obscene, pornographic, invasive of another’s privacy, hateful racially, ethnically or otherwise (iii) contain or install any software viruses, worms, malware, Trojan horses or other harmful or destructive content (iv) constitute unsolicited or unauthorized advertising in the form of “spam”, “junk mail”, “pyramid schemes” or any other form of solicitation, or to further unlawful acts (such as phishing) or mislead recipients as to the source of the material (such as spoofing) (v) restrict or inhibit any other user from using the Site.
2.3. Restriction of Use: You also agree not to use the Services to (i) violate any applicable local, state, national or international law or regulation whether intentionally or not (ii) instigate or assist in any type of attack that will interfere with or disrupt the Services or servers or networks associated to the Services (iii) attempt to gain unauthorized access to the Services, other accounts or servers through hacking, password mining, or any other such means (iv) attempt to access or obtain any material through any means such as reverse engineering, not intentionally provided for by the Services and (v) take any other action in using the Services that, in FatFractal’s sole determination, is inconsistent with the intended usage of the FatFractal Platform or the Services.
2.4. Right to Remedy: In the event that one or more of the conditions in this section are violated, FatFractal has the right (though not the obligation) to (i) refuse or remove any content that, in FatFractal’s reasonable opinion, violates this Agreement or is in any way harmful or objectionable, or (ii) terminate or deny access and use of the Services to any individual or entity for any reason.
2.5. Backup and Security: You are responsible for taking steps that you deem necessary to maintain security and backup of your Content, including use of passwords, encryption and archival.
3. Intellectual Property
3.1. Ownership: All copyright, trademarks and all other intellectual property rights in the Services, Site and its content (including without limitation the design, text, graphics and all software and source codes connected with the Site) are owned by or licensed to FatFractal or otherwise used by FatFractal as permitted by law. This Agreement does not transfer from FatFractal to you any FatFractal or third party intellectual property rights.
3.2. Feedback: You agree that FatFractal will have the right to unrestricted use and distribution for any purpose of any comments, ideas, suggestions and similar information provided by you to us (“Feedback”) via the Site without compensation or acknowledgement and you hereby assign to us all rights and interest in such Feedback created or provided whilst this Agreement is in force.
3.3. Your Content: except as provided above, we have no rights to your Content or the content of your End Users. However, you consent to our use of your content to provide Service to you and your End Users. We may disclose your and your End Users’ content to comply with any official request (such as court orders).
3.4. Force Majeure. We will not be liable for any delay or failure to perform any obligation under this Agreement where the delay or failure results from any cause beyond our reasonable control.
4. Third Party Websites and Services
The Site may include links to third party websites that are controlled and maintained by others. Any link to other websites is not an endorsement of such websites and you acknowledge and agree that we are not responsible for the content or availability of any third party sites or liable for any loss or claim that you may have against any such third party.
5. Disclaimer of Warranties
THE SITE AND THE SERVICES ARE PROVIDED ON AN AS IS AND AS AVAILABLE BASIS WITHOUT ANY REPRESENTATION OR ENDORSEMENT MADE AND WITHOUT WARRANTY OF ANY KIND WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, COMPATIBILITY, SECURITY, ACCURACY OR THAT ACCESS WILL BE UNINTERRUPTED OR RELIABLE. YOUR USE OF THE SERVICES IS AT YOUR OWN DISCRETION AND SOLE RISK.
6. Limitation of Liability and Indemnification
6.1. TO THE EXTENT PERMITTED BY LAW, FATFRACTAL WILL NOT BE LIABLE FOR ANY INDIRECT, PUNITIVE OR CONSEQUENTIAL LOSS OR DAMAGE WHATEVER (INCLUDING WITHOUT LIMITATION LOSS OF BUSINESS, OPPORTUNITY, DATA, PROFITS) ARISING OUT OF OR IN CONNECTION WITH THE USE OF THE SITE.
6.2. YOU AGREE TO INDEMNIFY AND HOLD HARMLESS FATFRACTAL, ITS CONTRACTORS AND ITS LICENSORS AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS FROM ANY LIABILITIES, COSTS, CLAIMS, DAMAGES INCLUDING ATTORNEYS’ FEES ARISING OUT OF YOUR USE OF THE SITE AND SERVICES, INCLUDING BUT NOT LIMITED TO ANY BREACH BY YOU OF THIS AGREEMENT.
7. General Representation and Warranty
8.1. This Agreement shall be construed in accordance with the laws of Delaware, United States of America, without regard to its conflict of laws principles, and you hereby submit to the exclusive jurisdiction of the federal and state courts, in such state as determined by FatFractal, in connection with any dispute arising out of this Agreement.
8.2. This Agreement constitutes the entire agreement between you and FatFractal in regard to the Services provided and supersedes all prior agreements whether electronic, oral or written in respect of any or all of the Services.