EULA

Mobile Apps EULA

Instar Systems End-User License Agreement

Welcome

PLEASE READ CAREFULLY THE TERMS AND CONDITIONS OF THIS END USER LICENSE AGREEMENT (THE “EULA” or “AGREEMENT”) BEFORE DOWNLOADING, INSTALLING OR USING ANY SOFTWARE PROVIDED BY INSTAR SYSTEMS LTD. (“INSTAR SYSTEMS” OR “WE”) OR ENABLING ANY SUCH SOFTWARE (COLLECTIVELY, THE “INSTAR SYSTEMS SOFTWARE”). THE INSTAR SYSTEMS SOFTWARE DOES NOT INCLUDE THIRD-PARTY SOFTWARE (AS DEFINED IN SECTION 2 BELOW) OR OPEN SOURCE SOFTWARE (AS DEFINED IN SECTION 4 BELOW). THIS IS A LEGAL AGREEMENT BETWEEN INSTAR SYSTEMS AND YOU. THIS EULA ANDTHE INSTAR SYSTEMS MOBILE PRIVACY POLICY (AVAILABLE AT HTTP://WWW.INSTAR SYSTEMS.CO.ZA.), ALL OF WHICH ARE INCORPORATED HEREIN BY REFERENCE (AND COLLECTIVELY REFERRED TO HEREUNDER AS THE “EULA”), GOVERN YOUR ACCESS TO AND USE OF THE INSTAR SYSTEMS SOFTWARE. In the event there is a contradiction between this EULA and the Instar Systems Mobile Privacy Policy, the Instar Systems Mobile Privacy Policy will control.

Instar Systems is willing to license the Instar Systems Software to you only on the condition that you accept all the terms contained in this EULA. By selecting the “Next” button (or similar language provided by us) or by downloading, installing or using the Instar Systems Software, you acknowledge and agree that you have read and understand this EULA and accept all of its terms.

We recommend that you print out or save a local copy of this EULA for your records. If you agree to this EULA on behalf of another person or legal entity including, without limitation, another business, you represent and warrant that you have the authority to bind that entity to this EULA and your agreement to this EULA will be treated as the agreement of the entity. In that event, “you” and “your” will refer and apply to that entity. If you do not accept this EULA in its entirety, then Instar Systems is unwilling to license the Instar Systems Software to you and you may not access or use the Instar Systems Software. Any use of the Instar Systems Software by you under these circumstances will be considered a violation of Intellectual property laws and may subject you to civil and/or criminal penalties.

  1. Modification of These Terms.

Instar Systems reserves the right to modify and/or change any of the terms and conditions of this EULA at any time and without prior notice. If Instar Systems materially modifies this EULA it will post the updated EULA in the “Settings Menu” of the Instar Systems Software via a hyperlink or by other reasonable means now known or hereafter developed. Instar Systems will also update the “Last Updated Date” at the end of this Agreement. By continuing to use the Instar Systems Software after Instar Systems has posted a modification of this EULA, you agree to be bound by the modified EULA. If the modified EULA is not acceptable to you, your only recourse is to uninstall the Instar Systems Software. This Agreement will also govern any software upgrades and/or updates provided by Instar Systems that upgrade and/or supplement the Instar Systems Software, unless such upgrades and/or updates are accompanied by a separate license, in which case the terms of that separate license will apply.

  1. The Instar Systems Software and Third Party Software.
    1. Instar Systems provides a platform that allows third parties to customize the Instar Systems Software and distribute it to you (“Publishers”). Following your agreement to this EULA, the Instar Systems Software is installed on your mobile device. The Instar Systems Software may include web search box(es) and other features. Such installed search features are further detailed in section 3 below. In addition, the installation of the Instar Systems Software may enable Instar Systems to access, use and collect a variety of information, both personal and non-personal, regarding your usage of the Instar Systems Software, and information about your mobile device (additional information is further detailed in section 3 below).
    2. The Publishers customization of the Instar Systems Software may take the form of adding data, information, links, web pages, images, software and code, text, photos, audio or video sounds, and/or visual works and components to the Instar Systems Software (collectively “Third Party Software”), and then distributing it to you (the “Customized Software”). Instar Systems does not have control of and does not take any responsibility for anything a Publisher adds to the Instar Systems Software, which may include without limitation, naming the Instar Systems Software. Some Publishers may distribute the Customized Software as stand-alone software and some may distribute it as part of a package containing the Customized Software bundled with Third Party Software. Third Party Software is the responsibility of the Publishers and not Instar Systems. Some Third Party Software and/or Customized Software may contain Cookies or other tracking mechanisms. As used herein“Cookie” means a small piece of information that is placed on your device’s Browser while you are viewing a website or using the Instar Systems Software, the Customized Software and/or the Third Party Software. Some of the Third Party Software may pop-up on the screen of your mobile device. Because Customized Software is installed on your mobile device, the Customized Software takes up storage space on your mobile device hard-drive. The amount of storage space will vary based on the size of the Customized Software and any Third Party Software available to you from it. Some of the data stored in this storage space may include your personal information. Please review the policies of the Third Party’s and/or Publishers for information about their practices.
    3. Third Party Software will have their own terms and conditions and privacy policies and we urge you to review them prior to using them as your use of such Third Party Software is subject to these terms and conditions and privacy policies. Third Party Software is not owned by Instar Systems. Instar Systems is not responsible for any Third Party Software and you acknowledge that Third Party Software may be modified or removed by its respective content owners at any time. You assume all responsibility and risk of use of any Third Party Software and Instar Systems hereby disclaims any and all liability to you or any third party related thereto. Instar Systems does not have any obligation to examine or scan Third Party Software, for any purpose, and is not responsible for the accuracy, completeness, appropriateness or legality of any Third Party Software. The fact that a Third Party Software is available via the Instar Systems Platform or otherwise is not an endorsement, authorization or representation of Instar Systems’s affiliation with any third party, nor is it an endorsement of such Third Party Software and you hereby waive any legal or equitable rights or remedies you have or may have against Instar Systems with respect thereto.
    4. In addition, Instar Systems, as a platform provider, provides Publishers and other third parties with a large number of tools to enable them to create interesting and unique apps, buttons and gadgets that they may distribute to you. Some of these tools may give these third parties the ability to access, collect, store and/or share your information. As Instar Systems is merely the provider of the technology and these third parties are electing to integrate it in their Customized Software and make it available to you, such apps, buttons and gadgets are also considered Third Party Software.
  2. License to Software and Use.
    1. Conditioned upon your compliance with the terms and conditions of this EULA, Instar Systems hereby grants to you a limited, reversible, non-exclusive, personal, non-sublicensable, non-transferable, non-assignable license to install and use the executable form of the Instar Systems Software on a single device (whether mobile device or other), solely for your personal use, provided that you use the Instar Systems Software on a device (whether mobile device or other) owned or controlled by you. You may make a single copy of the Instar Systems Software for backup purposes. Instar Systems reserves all rights in the Instar Systems Software not expressly granted to you in this EULA.
    2. With respect to any Third Party Software that may be incorporated with or into any Instar Systems Software, you acknowledge and agree that your use of such Third Party Software shall also be subject to its respective usage and privacy terms.
    3. As part of the installation process of the Customized Software, you may be changing your mobile device settings and/or your social network account settings. By installing the Customized Software, you agree you have approved such changes and you understand you can reconfigure such settings at any time from the “Settings Menu” available in the Customized Software, in the configuration options available in your mobile device, from within your social network account or from your mobile device Setting Menu. Such changes may include, without limitation, the following:
      1. Allowing software updates of the Instar Systems Software once a new version is released and the ability to send notifications.
      2. Allowing the Publishers to send push notifications.
      3. Allowing Instar Systems access to location-based information.
      4. Allowing Instar Systems access to information contained on your Social Network account (which you must explicitly and separately opt in to).

To uninstall the Customized Software, you may use the standard uninstall procedures offered by your device’s Operating System.

For example: To uninstall the Customized Software from your mobile device: please refer to your mobile device instructions manual or terms of service. For example, on the Apple iPhone operating system, if you hold down the icon of the Customized Software you wish to delete until it shakes, you will get an “x” in the corner of the Customized Software icon and you can touch the “x” to delete the Software.

  1. You may not use the Customized Software in any manner that could: (i) damage, disable, overburden, or impair the Customized Software (or any server or networks connected to any the Customized Software), or (ii) interfere with any third party’s use and/or enjoyment of the Customized Software (or any server or networks connected to the Customized Software).
  2. License Restrictions.
    1. Except as expressly specified in this EULA, you may not: (a) copy or modify the Instar Systems Software; (b) transfer, sublicense, lease, lend, rent or otherwise distribute the Instar Systems Software to any third party; or (c) use the Instar Systems Software in any unlawful manner, for any unlawful purpose, or in any manner inconsistent with this EULA. You acknowledge and agree that portions of the Instar Systems Software, including, without limitation, the source code and the specific design and structure of individual modules or programs, constitute or contain trade secrets of Instar Systems and its licensors. Accordingly, you agree not to disassemble, decompile or otherwise reverse engineer any components of the Instar Systems Software provided in object code or any other Instar Systems products or services, in whole or in part, or permit or authorize a third party to do so, except to the extent such activities are expressly permitted by law notwithstanding this prohibition.
    2. Any Open Source Software that may be accompanying the Instar Systems Software is provided to you under the terms of the open source license agreement or copyright notice accompanying such Open Source Software or in the open source licenses file accompanying the Software. As used herein “Open Source Software” mean open source software components provided with the Instar Systems Software that are licensed to you under the terms of the applicable license agreements included with such open source software components or other materials for the Instar Systems Software. This EULA does not apply to any Open Source Software accompanying the Instar Systems Software and Instar Systems hereby disclaims any and all liability to you or any third party related thereto.
  3. Updates; Additional Services; Tests.
    1. The Instar Systems Software may automatically download and install updates from Instar Systems, from time to time. These updates are designed to improve, enhance and further develop the Instar Systems Software and may take the form of bug fixes, enhanced functions, new software modules and completely new versions. You agree to receive such updates (and permit Instar Systems to deliver these to you) as part of your use of the Instar Systems Software.
    2. Further, you agree that by using the Instar Systems Software you may periodically send technical data and related information to Instar Systems to facilitate the provision of updates, product support and other services to you, if any, related to the Instar Systems Software. Such information may include, but is not limited to, technical information or personal preferences about your computer or device (whether mobile device or other), and/or internet Browser and/or system. Additionally, you agree Instar Systems may conduct A/B testing and change the look and feel of the Instar Systems Software or add additional features in order to improve your experience with the Instar Systems Software.
    3. Your only recourse if you are unhappy with any of the modifications to the Instar Systems Software is to uninstall the Customized Software.
  4. Proprietary Rights.
    1. The Instar Systems Software is licensed, not sold to you. You acknowledge and understand that Instar Systems owns all right, title and interest in and to the Software, including without limitation all intellectual property rights therein. The Instar Systems Software is protected by United States (and other countries) copyright, trademark, other statutory and common law and international treaties. You will not delete or in any manner alter the copyright, trademark, and other proprietary rights notices or markings appearing on the Instar Systems Software as delivered to you.
    2. All rights in the Third Party Software, including all ownership rights are reserved and remain with such third parties. You agree that such third parties may enforce their rights against you directly in their own name. Instar Systems is not liable for your failure to comply with any applicable local, state, national and foreign laws, treaties and regulations or any contracts, rules, policies or procedures applicable to your use of any Third Party Software.
  5. Privacy and Legal Rights
    1. The Instar Systems Privacy Policies (available at http://www.InstarSystems.co.za/privacy) contain information about Instar System’s data protection policies and explains how Instar Systems accesses, collects, uses and/or shares information that is generated by your use of the Customized Software. You consent to Instar System’s use of your data in accordance with Instar System’s Privacy Policies.
    2. If search is available in your Instar Systems Software, please note that Instar Systems collects search query information. Such search query information could be used to serve relevant ads to you and/or to monitor the performance of the search services.
    3. Instar Systems prohibits the violation of a user’s privacy rights and the distribution of materials that are illegal, infringing or may be deemed offensive by Instar Systems, in its sole discretion, as part of its terms of service and user agreements. If you believe that your legal or privacy right has been violated while using the Customized Software or Third Party Software, Instar Systems encourages you to report such matters to Instar Systems at your earliest convenience (to report, please visit the “Legal” section at the Instar Systems website, at http://www.instarsystems.co.za.  Instar Systems will, at its discretion, examine your complaint and take commercially reasonable efforts to attempt to resolve the issue as part of Instar System’s commitment to providing a positive user experience.
  6. Your Obligations.
    1. You hereby acknowledge and agree to only use the Instar Systems Software as permitted in this EULA.
    2. You agree to comply with all applicable laws, rules and regulations when using the Customized Software. You will not use the Customized Software to infringe anyone’s rights, including, without limitation, any intellectual property rights of any person or entity.
    3. You agree that you are solely responsible for (and that Instar Systems has no responsibility to you or to any third party) your use of the Customized Software, any breach of your obligations under the EULA, and for the consequences (including any loss or damage which Instar Systems may suffer) of any such breach.
  7. No Obligation.

Instar Systems is not obligated to maintain or support the Instar Systems Software, or to provide you with updates, fixes, or services related thereto. You understand that during and/or by using the Customized Software, you may encounter Third Party Software that may be deemed offensive, indecent or objectionable. Nevertheless, you agree to use the Customized Software at your own risk and that Instar Systems shall not have any liability to you with respect to such content.

  1. Government Users.

Any use, duplication, or disclosure of the Customized Software by the U.S. government is subject to the restrictions as set forth in this Agreement and as provided in DFARS 227.7202-1(a) and 227.7202-3(a) (1995), DFARS 252.227-7013(c)(1)(ii) (OCT 1988), FAR 12.212(a) (1995), FAR 52.227-19, or FAR 52.227-14 (ALT III), as applicable. Manufacturer is Instar Systems Ltd.

  1. Export Laws.
    1. You agree to comply fully with all U.S. export laws and regulations to ensure that neither the Customized Software nor any technical data related thereto nor any direct product thereof are exported or re-exported directly or indirectly in violation of, or used for any purposes prohibited by, such laws and regulations. Furthermore, you agree you will not export nor re-export neither the Customized Software nor any technical data related thereto nor any direct product thereof to any US embargoed country.
    2. By downloading and using the Customized Software, you further represent and warrant that: (a) you are not located in a country that is subject to a U.S. Government embargo or that has been designated by the U.S. Government as a “terrorist supporting” country; and (b) you are not listed on any U.S. Government list of prohibited or restricted parties.
  2. Disclaimer of Warranties.

In addition to the limitations of Instar System’s liability expressly contained in this Agreement, Instar Systems further disclaims any warranty related to acknowledge and agree that you assume all the responsibility and risk for your use of the Software and the results and performance thereof and your use of any Third Party Software. THE INSTAR SYSTEMS SOFTWARE IS PROVIDED TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT WARRANTY OF ANY KIND. INSTAR SYSTEMS DISCLAIMS ALL WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT, AND ANY WARRANTIES AND CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM INSTAR SYSTEMS OR ELSEWHERE WILL CREATE ANY WARRANTY OR CONDITION NOT EXPRESSLY STATED IN THIS AGREEMENT. INSTAR SYSTEMS DOES NOT REPRESENT OR WARRANT THAT: (I) THE INSTAR SYSTEMS SOFTWARE OR ANY THIRD PARTY SOFTWARE WILL MEET YOUR REQUIREMENTS OR WILL BE ERROR FREE OR THAT ANY ERRORS WILL BE CORRECTED; (II) THE OPERATION OF THE INSTAR SYSTEMS SOFTWARE OR ANY THIRD PARTY SOFTWARE WILL BE UNINTERRUPTED; OR (III) THE ACCURACY, TIMELINESS, COMPLETENESS, OR ADEQUACY OF THE INSTAR SYSTEMS SOFTWARE, ANY THIRD PARTY SOFTWARE AND ANY DATA ACCESSED THEREFROM. INFORMATION PROVIDED THROUGH THE INSTAR SYSTEMS SOFTWARE OR ANY THIRD PARTY SOFTWARE, INCLUDING WITHOUT LIMITATION, WEATHER REPORTS, FINANCIAL DATA, ANALYSIS, MARKET INFORMATION AND NEWS, MAY BE DELAYED, INACCURATE, OR CONTAIN ERRORS OR OMISSIONS, AND THE INSTAR SYSTEMS GROUP (DEFINED BELOW) AND INSTAR SYSTEMS’S THIRD PARTY LICENSORS WILL HAVE NO LIABILITY WITH RESPECT THERETO. INSTAR SYSTEMS MAY CHANGE OR DISCONTINUE ANY ASPECT OR FEATURE OF THE INSTAR SYSTEMS SOFTWARE OR THE USE OF ALL OR ANY FEATURES OR TECHNOLOGY IN THE INSTAR SYSTEMS SOFTWARE OR THE THIRD PARTY SOFTWARE AT ANY TIME WITHOUT PRIOR NOTICE TO YOU. YOUR ONLY RIGHT OR REMEDY WITH RESPECT TO ANY PROBLEMS OR DISSATISFACTION WITH THE INSTAR SYSTEMS SOFTWARE IS TO UNINSTALL AND CEASE USE OF THE CUSTOMIZED SOFTWARE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN WARRANTIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.

  1. Limitation of Liability.

IN NO EVENT WILL INSTAR SYSTEMS, ITS AFFILIATED ENTITIES OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES OR AUTHORIZED AGENTS (COLLECTIVELY, THE “INSTAR SYSTEMS GROUP”) AND INSTAR SYSTEMS’S THIRD PARTY LICENSORS BE LIABLE TO YOU FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOST DATA, LOST PROFITS, LOSS OF GOODWILL, LOST REVENUE, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, ARISING OUT OF OR IN CONNECTION WITH THIS EULA OR THE INSTALLATION OR USE OF OR INABILITY TO USE THE INSTAR SYSTEMS SOFTWARE OR ANY THIRD PARTY APPLICATION UNDER ANY THEORY OF LIABILITY, INCLUDING BUT NOT LIMITED TO CONTRACT OR TORT (INCLUDING PRODUCTS LIABILITY, STRICT LIABILITY AND NEGLIGENCE), AND WHETHER OR NOT THE INSTAR SYSTEMS GROUP OR ITS THIRD PARTY LICENSORS WERE OR SHOULD HAVE BEEN AWARE OR ADVISED OF THE POSSIBILITY OF SUCH DAMAGE AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY STATED HEREIN. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, IN NO EVENT SHALL INSTAR SYSTEMS’S AGGREGATE LIABILITY FOR ANY CLAIM ARISING OUT OF OR RELATED TO THIS EULA, TO THE FULLEST EXTENT POSSIBLE UNDER APPLICABLE LAW, EXCEED THE AMOUNT PAID, IF ANY, BY YOU FOR THE INSTAR SYSTEMS SOFTWARE. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY, SUCH AS FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.

  1. Indemnification.

To the maximum extent permitted by law, You agree to defend, indemnify and hold the Instar Systems Group harmless from and against any and all claims, suites, losses, liability, costs or expenses (including but not limited to reasonable attorneys fees) arising from or incurred as a result of your use of the Customized Software, including your downloading, installation, or use of the Customized Software, or your violation of this EULA.

  1. Term and Termination.

Your license to use the Instar Systems Software under this EULA shall continue until either party terminates it. You may terminate this EULA at any time, by discontinuing the use of all or any of the Customized Software and by destroying all copies of the Customized Software in your possession and control. This EULA and the license granted to you under this EULA will terminate automatically if you breach any term of this EULA. Upon termination, you must at Instar System’s option either promptly destroy or return to Instar Systems all copies of the Customized Software in your possession or control. Sections 2, 3, 4, 6 through 12, 14 and 16 shall survive the termination of this EULA.

  1. Miscellaneous.

(a) This EULA and all the policies referenced herein constitute the entire agreement between Instar Systems and you concerning the subject matter hereof, and it may only be modified by a written amendment signed by an authorized executive of Instar Systems. (b) The section titles in this EULA are provided solely for convenience and have no legal or contractual significance. (c) This EULA shall be governed by and interpreted under the laws of the State of New York, without regard to its conflicts of laws provisions. All actions relating to this EULA and the Customized Software shall be brought in the competent court in the State of New York. The United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. Notwithstanding this, you agree that Instar Systems will still be allowed to apply for injunctive remedies (or an equivalent type of unilateral, non-monetary urgent legal relief) in any jurisdiction. (d) 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. (e) If for any reason a court of competent jurisdiction finds any provision of his EULA or portion thereof, to be unenforceable, that provision of this EULA shall be enforced to the maximum extent permissible so as to affect the intent of the parties, and the remainder of this EULA shall continue in full force and effect. Instar Systems reserves the right, at our discretion, to update or revise this EULA. (f) Except as required by law, the controlling language of this EULA is English. In the event of inconsistency or discrepancy between the English version and any other language version, the English language version shall prevail. (g) You may not assign your rights under this EULA to any party without Instar System’s consent. (h) If any provision of this EULA shall be deemed unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from this EULA and shall not affect the validity and enforceability of any remaining provisions. (i) Nothing in this EULA will be construed as creating a joint venture, partnership, employment or agency relationship between you and Instar Systems, and you do not have any authority to create any obligation or make any representation on Instar System’s behalf. (j) If you have any questions about the Software, please visit our website at www.Instar Systems.co.za

 

  1. Third Party Beneficiaries.

Please note that when accessing the Customized Software you may also be subject to the terms of use of other third parties. You acknowledge that third party application marketplaces (including but not limited to the Apple App Store, the Google Android Marketplace, the Microsoft Windows Phone 7 Marketplace) may be third party beneficiaries of this EULA and upon your acceptance of this EULA such stores or marketplaces may have the right to enforce this EULA against you as a third party beneficiary . You further acknowledge and agree that such parties are not parties to this EULA other than as third party beneficiaries and are not responsible for providing maintenance and support services with respect to the Software.

  1. Software Questions, Comments, and Contact Information.

If you have any questions, complaints and/or claims, you may contact Instar Systems at:

Instar Systems

 

E-mail: support@instarsystems.co.za