Mobile Instant Messenger
Mobile Instant Messenger
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ARTICLE I This End User License Agreement (the “Agreement”) is a valid and binding agreement between D3Systems, Inc. (“D3Systems”), a corporation duly organized and existing under Philippine laws, and you, the end user of the YehBA* Instant Messenger mobile application, including the software, services, content, data and documentation relating thereto (the “Product”). Installing and/or using the Product indicates that you have read and understood the terms and conditions contained within this Agreement and that you agree to be bound by the same. This Agreement shall remain effective while you use and continue to make use of the Product. If you do not fully accept the terms and conditions of this Agreement, you must promptly delete or remove the Product from your mobile device and/or computer.
ARTICLE II If you are residing in a jurisdiction that restricts the use of internet-based applications according to age, or that restricts the ability to enter into agreements such as this Agreement according to age, and you are in such a jurisdiction and under such age limit, you may not enter into this Agreement and download, install or use the Product. By entering into this Agreement, you explicitly state that you have verified in your own jurisdiction that your use of the Product is allowed.
ARTICLE III Subject to the terms and conditions of this Agreement, D3Systems hereby grants you a limited, non-exclusive, non-transferable and revocable license to use the executable code version of the Product on a single mobile device primarily used by you. As a licensee, you may (a) install the Product on one mobile phone or device and use the Product for personal, non-commercial purposes only; (b) access the associated services offered through the Product via mobile device; (c) view the content and/or data in connection with the Product or associated services on the screen of such mobile device; (d) save the content and data on such mobile device, provided that you do not remove any copyright notices that appear in connection therewith and do not modify such content or data in any way; and (e) make one copy of the Product for back-up or archival purposes, provided that such copy contains all of the original proprietary notices provided with or otherwise relating to the Product and the associated services. Notwithstanding the foregoing provisions, you may transfer the Product from one mobile device to another mobile device in connection with your use of the Product, provided that (1) the second device utilizes the same operating system as the first or is compatible with the Product version installed in the first device; (2) you delete all copies of the Product in the first device; and (3) you may use the Product on only one device at a time. You acknowledge and agree that the license is being granted to you without consideration other than your faithful compliance with the terms and conditions hereunder.
ARTICLE IV You represent and warrant that you have the adequate legal capacity to enter into this Agreement. You further represent and warrant that you will use the Product only for lawful purposes and in accordance with this Agreement, and that you will not use the Product to violate any law, regulation, ordinance or any right of D3Systems or any third party, including, but not limited to, any intellectual property right.
ARTICLE V You may not, in any case, whether intended or unintended, (a) modify, revise, reverse engineer, decompile, disassemble, alter, duplicate or otherwise derive the source code for the Product; (b) redistribute, sell, rent, lease, sublicense, or otherwise transfer rights to the Product; (c) remove or alter any proprietary notices, legends, symbols or labels in the Product, including, but not limited to, any trademark, logo, or copyright; or (d) connect, use, attempt to connect or use, in any way, the Product, for any commercial purpose and any other purpose that is not for your private personal use in good faith. Since the license granted herein for the use of the Product is limited to purely private personal use only, any instance of use that includes business, commercial or institutional activities or pursuits is absolutely prohibited, unless you procure a specific license thereon from D3Sytems. In addition to D3Systems’ other rights and remedies, as well as the termination of your license and this Agreement, your business, commercial or institutional use of the Product shall make you liable to D3Systems for subsequent assessment of service charges for such use.
ARTICLE VI As a condition of your use of the Product, you agree that you will not use the Product: (a) to infringe the intellectual rights or proprietary rights, or rights of publicity or privacy, of any third party; (b) to violate any applicable law, statute, ordinance or regulation; (c) to disseminate any content in any form or format that is harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, profane, indecent, libelous or otherwise objectionable under applicable laws or community standards; (d) to disseminate any software viruses or any other computer code, files or programs that may interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; or (e) to send unsolicited bulk e-mail, junk e-mail or unsolicited bulk instant messages. You are solely responsible for all the content the you upload, post, e-mail, transmit or otherwise disseminate using, or in connection with, the Product, and You will be solely responsible for any damage to any party resulting therefrom. You agree to indemnify D3Systems, its officers, agents, employees and directors for any damages incurred as a result of a violation of this Article. The posting or submitting of materials through the Product is further governed by the relevant Product Terms of Use document available at www.yehba.com.
ARTICLE VII The Product may be incorporated into, and may include, software and other technology owned and controlled by third parties. Any such third party software or technology that is incorporated into the Product falls under the scope of this Agreement. Any other third party software or technology that may be distributed together with the Product will be subject to your acceptance of a license agreement with that third party.
ARTICLE VIII The Product contains functionalities and services that are intended to facilitate mobile to mobile, internet to mobile and mobile to internet personal short messaging or instant messaging communications and exchange of information. The use of any internet-based facility, like the Product, is subject to various risks, including, among others:
If you do not wish to be subjected to such risks, you are advised not to use and are warned from using the Product. If you continue to use the Product, you acknowledge that you expressly and exclusively assume the risks involved to the exclusion of D3Systems and that you are aware (a) of the Product’s security and privacy limitations including the limitation of security, privacy and authentication measures and features; (b) that data and information available in or through the Product may be subject to spoofing, eavesdropping, sniffing, spamming, breaking passwords, harassment, fraud, forgery, “imposturing,” electronic trespassing, tampering, hacking, nuking, system contamination including, without limitation, use of viruses, worms, and Trojan horses causing unauthorized, damaging or harmful access to and/or retrieval of information and data on your mobile device and/or computer; (c) that information, data or messages may not reach their destination or may reach an erroneous address or recipient; and (d) that the security and privacy features of the Product are provided to you for your convenience only and may not operate according to their description or may not operate at all. D3Systems does not warrant or guarantee that the Product or any information or data available through it will be free of any infection by viruses, worms, Trojan horses or anything else manifesting contaminating or destructive properties, or that the associated functions and services available through the Product will be uninterrupted or error-free. You acknowledge that D3Systems is not in a position to scrutinize, verify or detect whether any information transmitted using the Product may be contaminated or infected nor is D3Systems in a position to rectify such contaminated or infected information or to prevent the further transmission or dissemination of the same. You therefore accept that D3Systems shall not be responsible if any such information contaminates, infects or damages your mobile device, computer system, or the operating systems, application software and/or information database contained therein. The Product allows the sending, delivering or receiving information between Product users and non-Product users, which may be relayed or carried through public, partners’ third parties’ or other networks, systems, servers, websites or applications, e.g., telephone and cellular networks, e-mail servers (“Networks”). D3Systems does not control the Networks in any way and D3Systems shall not be responsible for the performance, availability, functionality, quality, or reliability of any of the Networks or the information sent, delivered, relayed, carried or received through the Networks. You acknowledge and accept the possibility of the usual risks, delay or interference with the Networks’ services and that neither D3Systems nor any network service provider would be in a position to prevent or eliminate any such risks.
ARTICLE IX Unless produced by D3Systems, the information you access or receive by using the Product and the information sent to you by other users, is provided by the users, entered or posted by them, and is not controlled, verified or endorsed by D3Systems in any way. D3Systems has the right, but not the obligation, to monitor such content available on or through the Product and the associated services, to determine compliance with the Product Terms of Use and any other operating rules that may be established by D3Systems from time to time. D3Systems has the right, in its sole discretion, to edit, refuse to post or remove any content or other material sent via, submitted to, uploaded to, or posted on or through the Product. Without limiting the foregoing, D3Systems has the right, but not the obligation, to edit or remove any content or other material that it, in its sole discretion, finds to be in violation of the provisions of this Agreement or the Product Terms of Service, any law, or as is necessary for the protection of user privacy, the avoidance of spam, or as otherwise determined by D3Systems in its sole discretion. Users shall remain solely responsible for the content of their messages. You acknowledge and agree that D3Systems shall not assume or have any liability for any action or inaction by D3Systems with respect to any conduct of any user of the Product.
ARTICLE X D3Systems reserves the right to limit, deny, create varying priorities or access to different users or different levels of service, update, modify, add, remove or terminate, temporarily or permanently, some or all of the functionalities of the Product, at D3Systems’ sole discretion, at any time, without prior notice and without liability to any user or third party. You acknowledge and agree that D3Systems, in its sole discretion, may modify, discontinue or suspend your ability to use any version of the Product or any of the associated services offered therewith, and/or disable any version of the Product that you may already have accessed or installed, without any notice to you, for the repair, improvement and/or upgrade of the underlying technology or for any other reason. You hereby willingly assume all risks relating to or arising out of such acts to the exclusion of D3Systems.
ARTICLE XI You understand that your use of the Product is at your own risk and that D3Systems provides no assistance other than the information posted on the website www.yehba.com. D3Systems is under no obligation to provide you with any error corrections, updates, upgrades, bug fixes, subsequent versions and/or enhancements of the Product or any of the associated services offered therewith.
ARTICLE XII D3Systems owns all intellectual property rights in the Product, any and all of its aspects, parts or components, or any combination or permutation of such aspects, parts and components. The Product is protected by intellectual property laws and treaties. You may not exercise any ownership rights over the Product, any and all of its aspects, parts or components, or any combination or permutation of such aspects, parts and components and may not exercise any rights over the same other than as specifically granted by this Agreement. You will maintain and not remove or obscure any proprietary notices on the Product, and will reproduce such notices exactly on all permitted copies of the Product as provided in this Agreement. The Product and the associated services offered therewith may contain or link to content provided by third parties. All title and intellectual property rights in and to any content that may be accessed or made available through the Product, and is not otherwise owned by D3Systems, is the property of the respective content owner and may be protected by applicable copyright or other intellectual property laws and treaties. This Agreement grants you no rights to use such content.
ARTICLE XIII D3Systems has adopted a privacy policy that governs user privacy in communicating through the use of the Product. The Privacy Policy explains how D3Systems collects, uses and discloses personal information in connection with your use of the Product, as well as the choices D3Systems gives you about such uses and disclosures. The Privacy Policy is available at www.yehba.com and is incorporated into this Agreement. You acknowledge and agree that the said Privacy Policy may be updated by D3Systems from time to time. By your use of the Product or any of the associated services offered therewith, you authorize the collection, use and disclosure of personal information by D3Systems as provided under D3Systems’ then current Privacy Policy.
ARTICLE XIV To the maximum extent permitted by applicable law, D3Systems provides you the Product on an “AS IS, AS AVAILABLE” basis. D3SYSTEMS MAKES NO, AND HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, PERFORMANCE, ACCURACY, COMPLETENESS, STABILITY, RELIABILITY, QUIET ENJOYMENT, QUIET POSSESSION AND NON-INFRINGEMENT, UNLESS SUCH WARRANTIES ARE LEGALLY INCAPABLE OF EXCLUSION. D3SYSTEMS MAKES NO WARRANTY THAT THE PRODUCT IS FREE OF DEFECTS, VIRUS-FREE, ERROR-FREE, SECURE, AVAILABLE, ACCESSIBLE, ABLE TO OPERATE ON AN UNINTERRUPTED BASIS, OR OTHERWISE MEETS YOUR EXPECTATIONS. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE PRODUCT IS ASSUMED BY YOU. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT. NO USE OF THE PRODUCT IS AUTHORIZED HEREUNDER EXCEPT UNDER THIS DISCLAIMER.
ARTICLE XV IN NO EVENT SHALL D3SYSTEMS, ITS AFFILIATES, SUPPLIERS OR DISTRIBUTORS (OR ANY OF THE FOREGOING ENTITIES’ OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS) BE LIABLE: (1) FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING, BY WAY OF ILLUSTRATION AND NOT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOST BUSINESS OR LOST OPPORTUNITY, LOSS OF CONFIDENTIAL OR OTHER INFORMATION, LOSS OF PRIVACY, MOBILE DEVICE OR COMPUTER MALFUNCTION, OR ANY OTHER DAMAGES ARISING IN ANY WAY OUT OF THE AVAILABILITY, USE, RELIANCE ON, OR INABILITY TO USE THE PRODUCT, EVEN IF D3SYSTEMS SHALL HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE; (2) FOR ANY CLAIM ATTRIBUTABLE TO DELAYS, ERRORS, OMISSIONS, OR OTHER INACCURACIES IN, OR DESTRUCTIVE PROPERTIES OF, ANY INFORMATION AVAILABLE IN AND/OR THROUGH THE PRODUCT; (3) FOR THE TRANSMISSION OR DELIVERY OF ALL OR ANY PART OF ANY INFORMATION, FOR ANY DAMAGE ARISING THEREFROM OR OCCASIONED THEREBY, OR FOR THE RESULTS OBTAINED FROM THE USE OF THE INFORMATION; OR (4) IF ANY INFORMATION INFECTS OR CONTAMINATES A USER’S SYSTEM OR INFORMATION. YOUR ONLY RIGHT OR REMEDY WITH RESPECT TO ANY PROBLEMS OR DISSATISFACTION WITH THE PRODUCT IS TO DE-INSTALL AND CEASE USE OF THE PRODUCT. YOU HAVE RECEIVED THE PRODUCT FOR FREE AND SOLELY FOR NON-COMMERCIAL PURPOSES. YOU THUS ACKNOWLEDGE THAT THE EXCLUSION OF LIABILITY AS SET FORTH IN THIS ARTICLE IS REASONABLE.
ARTICLE XVI You agree that D3Systems shall have no liability whatsoever for any use you make of the Product. You agree to indemnify, defend and hold D3Systems, its affiliates, suppliers and distributors (including their respective directors, employees, shareholders, agents and representatives) free and harmless from and against any and all claims, damages, liabilities, costs and fees of any character, including, but not limited to, attorney’s fees, in connection with or arising out of your (a) violation or breach of any of the terms and conditions of this Agreement or any applicable law or regulation; or (b) your use, misuse, or possession of the Product.
ARTICLE XVII You may terminate this Agreement at any time by deleting the Product from your mobile device and/or computer. Any use of the Product in violation of, or not in strict compliance with, the terms and conditions of this Agreement shall result to the automatic termination of this Agreement and the license granted herein, and shall equally constitute a bar to your access and use of the Product. No notice or warning shall be required from D3Systems to effectuate such termination. Upon termination of this Agreement, you must cease any and all use of the Product and remove the Product from your mobile device, all hard drives, networks and other storage media, and destroy all copies of the Product in your possession and under your control. You acknowledge and agree that D3Systems will not be liable for any damages caused by the termination of this Agreement.
ARTICLE XVIII D3Systems may, from time to time, at its sole and exclusive discretion, amend, modify, vary or altogether change the terms and conditions of this Agreement, the Privacy Policy and the Product Terms of Use, with or without a release of a new version of the Product. By continuing to use the Product for a period of thirty (30) days after a notice of such change has been posted on the www.yehba.com website for the first time, you signify your consent to the new, amended, modified or revised version of this Agreement, the Privacy Policy and/or the Product Terms of Use.
ARTICLE XIX You are solely responsible for fees associated with the operation of your mobile device and personal computer, such as GPRS, messaging charges, airtime and the cost of internet access, which may be imposed by your respective telecommunications network and/or internet service provider.
ARTICLE XX This Agreement constitutes the entire understanding and agreement between you and D3Systems with respect to the subject matter hereof. This Agreement will be governed by and construed in accordance with the laws of the Philippines, without reference to conflict of law principles. If any provision of this Agreement is determined by a court of law to be invalid, illegal or unenforceable, such provision will be enforced to the maximum extent possible and other provisions will remain effective and enforceable. The exclusive venue for any and all actions arising out of this Agreement shall be the courts of Makati City, Philippines, and you hereby agree to service of process in accordance with the rules of such courts. D3Systems’ failure to act with respect to a breach of this Agreement by you or others does not constitute a waiver and shall not limit D3Systems’ rights with respect to such breach or any subsequent breaches of any tem or condition of this Agreement. This Agreement is personal to you and may not be assigned or transferred by you for any reason whatsoever. |