Terms of Service

END USER LICENSE AGREEMENT

PLEASE READ THIS END USER LICENSE AGREEMENT ("EULA") CAREFULLY BEFORE USING ANY LICENSOR SERVICES. BY CLICKING THE “AGREE/ACCEPT” LINK OR BY USING THE LICENSOR SERVICES (WHICH SHALL BE THE “EFFECTIVE DATE”), YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS EULA. IF YOU DO NOT AGREE TO THE TERMS OF THIS EULA, DO NOT USE THE LICENSOR SERVICES AND CLICK "DISAGREE/DECLINE.”

1 Definitions

1.1 “INTELLECTUAL PROPERTY RIGHT” and “INTELLECTUAL PROPERTY RIGHTS” means all worldwide right, title and interest in, to and under any and all: (a) United States or foreign patents and pending patent applications therefore, including the right to file new and additional patent applications based thereon, including provisionals, divisionals, continuations, continuations-in-part, reissues and reexaminations; (b) copyrights; and (c) trade secrets, know-how, processes, methods, engineering data and technical information.

1.2 “LICENSOR SERVICES” means that certain web-based Licensor proprietary technology, software and related data services, including without limitation, . . . . .

1.3 “LICENSOR PROPRIETARY SOFTWARE” means all computer software programs, applications, code and databases owned by or developed by or on behalf of Licensor as of the Effective Date and during the Term hereof comprising and/or related to the Licensor Services, including all related software and technology and available upgrades and documentation related thereto, and any part or portion thereof. Licensor Proprietary Software expressly excludes any third party software, data or public domain materials.

2 License Grant and Restrictions

2.1 LICENSE GRANT. Subject to the terms and conditions of this EULA, Licensor hereby grants to you, and you hereby accept a non-exclusive, limited right to access and use the Licensor Services as authorized herein. Your right to use the Licensor Services is strictly limited to personal use. You may not make any Licensor Proprietary Software or Licensor Service available over a network where it could be used by multiple computers at the same time.

2.2 THE LICENSOR SERVICES.

2.2.1 The Realius Client SDK and other Realius Proprietary Software enables access to the Realius Services. Use of the Realius Services requires Internet access and use of certain Realius Services may require you to accept additional terms of service that will be presented to you before use of such Realius Services. You understand that by using any of the Realius Services, you may encounter content that may be deemed offensive, indecent, or objectionable, which content may or may not be identified as having explicit language. Nevertheless, you agree to use the Realius Services at your sole risk and that Realius shall have no liability to you for content that may be found to be offensive, indecent, or objectionable. Certain content types (including titles, genres, sub-genres and categories and subcategories and the like) and descriptions are provided for convenience, and you acknowledge and agree that Realius does not guarantee their accuracy.

2.2.2 Certain Licensor Services may include materials from third parties. You acknowledge and agree that Licensor is not responsible for examining or evaluating the content or accuracy of any such third-party material. Licensor does not warrant or endorse and does not assume and will not have any liability or responsibility for any third-party materials, or for any other materials, products, or services of third parties.

2.2.3 You agree that the Licensor Services involve certain proprietary information and material that is owned by Licensor and/or its licensors, and is protected by applicable intellectual property and other laws, including but not limited to copyright, and that you will not use such proprietary information or materials in any way whatsoever except for permitted use of the Licensor Services. No portion of the Licensor Services may be reproduced in any form or by any means.

2.2.4 The Licensor Services consist of interactive Internet applications that perform a variety of communications over the Internet as part of their normal operation. A number of communications features are automatic and are enabled by default. By installing and/or using the Proprietary Licensee Software and the Licensor Services, you consent to the Licensor Services’ communications features. Once you are connected to the Licensor Services, there will be communications with Licensor’s servers. You are responsible for any telecommunications or other connectivity charges incurred through use of the Licensor Services.

2.3 RESERVATION OF RIGHTS. Licensor reserves all rights not specifically granted to you hereunder. Licensor reserves the right in its sole discretion to delete, remove or change any data, information or metadata supplied to Licensor by you. Licensor and its licensors reserve the right to change, suspend, remove, or disable your access to any Licensor Services at any time without notice. In no event will Licensor be liable for the removal of or disabling of access to any such Licensor Services. Licensor may also impose limits on the use of or access to certain Licensor Services, in any case and without notice or liability.

2.4 RESTRICTIONS.

2.4.1 NO MODIFICATIONS, REVERSE ENGINEERING OR SPIDERING. You shall not alter, modify, enhance, work around any technical limitation in, or make any derivative works of the Licensor Proprietary Software or the Licensor Services. You shall not, and shall not cause or permit any third party to, disassemble, decompile, reverse engineer or otherwise attempt to derive source code, or spider, crawl or robotically or automatically collect or extract information from the Licensor Proprietary Software. You shall not use the Licensor Proprietary Software in an attempt to, or in conjunction with, any device, program or service designed to circumvent technological measures employed to control access to, or the rights in, a content file or other work protected by the copyright laws of any jurisdiction. You shall not exploit the Licensor Services in any unauthorized way whatsoever, including but not limited to, by trespass or burdening network capacity.

2.4.2 NO RESALE/PERSONAL USE ONLY. You shall not copy, re-sell, rent, lease, lend, provide access to third parties or otherwise transfer the Licensor Proprietary Software or the Licensor Services except as expressly authorized in this EULA. Your right to use the Licensor Proprietary Software and the Licensor Services is strictly limited to personal use. You may not make the Licensor Proprietary Software available over a network or the internet where it could be used by multiple computers at the same time. You may not use any Licensor Proprietary Software or the Licensor Services in any way to provide, or as part of, any commercial, networked or public service or application.

2.4.3 EXPORT. Notwithstanding anything to the contrary in this Agreement, you acknowledge and agree that you shall not import, export, or re-export the Licensor Proprietary Software to any country in violation of the laws and regulations of any applicable jurisdiction. In particular, but without limitation, the Licensor Proprietary Software and the Licensor Services may not be exported or re-exported (a) into any U.S. embargoed countries or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Persons List or Entity List. By using the Licensor Proprietary Software and/or the Licensor Services, you represent and warrant that you are not located in any such country or on any such list. You also agree to not use the Licensor Proprietary Software or the Licensor Services for any purposes prohibited by United States law. You further agree to defend, indemnify, and hold Licensor harmless for any losses, costs, claims, or other liabilities arising out of your breach of this Section.

3 Intellectual Property

3.1 OWNERSHIP. Licensor is the owner of all right, title and interest in all Intellectual Property Rights, including all copyrights, patents, and trademarks associated with the Licensor Proprietary Software and the Licensor Services, including all associated software, logos, text, and graphics, but excluding third party or public domain material. You shall not display or use any Licensor intellectual property without the prior written permission of Licensor.

4 No Payment. Under no circumstances will Licensor or its licensees become liable to you for any payment to you for any information or Data you supply.

5 Representations, Warranties and Indemnity

5.1 DISCLAIMER OF WARRANTY. LICENSOR DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. EXCEPT AS PROVIDED IN THIS SECTION 5, THE LICENSOR PROPRIETARY SOFTWARE IS PROVIDED HEREUNDER ON AN “AS-IS” BASIS, AND LICENSOR DISCLAIMS ALL WARRANTIES THAT THE LICENSOR PROPRIETARY SOFTWARE OR THE LICENSOR SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, VIRUS-FREE, OR SECURE OR OPERATE OTHER THAN AS SET FORTH HEREIN.

5.2 YOUR REPRESENTATIONS AND WARRANTIES. You represent and warrant to Licensor that: (i) your performance under this Agreement shall at all times comply with all applicable laws, rules and regulations; and (ii) you shall not use the Licensor Proprietary Software to upload, post, email, transmit, or otherwise make available any material that (i) violates or infringes the rights of any third party; or (ii) contains software viruses or any other computer code, files or programs designed to interrupt, destroy, or limit the functionality of any computer software or hardware or any telecommunications equipment.

5.3 INDEMNIFICATION.

5.3.1 YOUR INDEMNIFICATION. You hereby agree, at your expense, to defend, indemnify and hold harmless Licensor and its officers, directors, employees and agents from and against any and all claims brought against any of them by a third party arising out of a breach of your representations, warranties or covenants in this Agreement.

5.3.2 PROCEDURE. Each indemnified party hereunder shall give prompt written notice of any claim to the indemnifying party. The indemnifying party shall have exclusive control over the defense and settlement of the claim, provided that the indemnified party, at its expense, may elect counsel to participate on its behalf in the action and shall have the right to approve in advance any settlements that could adversely affect the rights of the indemnified party. The indemnified party shall provide reasonable information and assistance to the indemnifying party, at the indemnifying party’s expense, in the defense of such claim.

6 Limitation of Liability

6.1 LIMITATION OF DAMAGES. EXCEPT FOR A BREACH OF THE OBLIGATIONS SET FORTH IN SECTION 2 AND YOUR INDEMNIFICATION OBLIGATIONS IN SECTION 5, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOSS OF PROFITS, REVENUE, DATA OR USE, INCURRED BY EITHER PARTY ARISING OUT OF OR RELATED TO ITS PERFORMANCE UNDER THIS AGREEMENT, WHETHER IN AN ACTION IN CONTRACT OR TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

6.2 LIMITATION OF LIABILITY. NOTWITHSTANDING ANY DAMAGES THAT YOU MIGHT INCUR FOR ANY REASON WHATSOEVER (INCLUDING, WITHOUT LIMITATION, ALL DAMAGES REFERENCED ABOVE IN SECTION 6.1 AND ALL DIRECT OR GENERAL DAMAGES), THE ENTIRE LIABILITY OF LICENSOR AND ANY OF ITS SUPPLIERS UNDER ANY PROVISION OF THIS AGREEMENT YOUR EXCLUSIVE REMEDY FOR ALL OF THE FOREGOING SHALL BE LIMITED TO THE GREATER OF THE AMOUNT ACTUALLY PAID BY YOU FOR THE LICENSOR SERVICES OR U.S.$50.00. THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE.

7 Dispute Resolution

7.1 VENUE AND JURISDICTION. Each party expressly agrees that exclusive jurisdiction for any claim or dispute relating to or arising out of this Agreement resides in the state and federal courts located in Berkeley, California and each party further agrees and expressly consents to the exercise of personal jurisdiction in the state and federal courts in Berkeley, California in connection with any such dispute. You hereby consent to service of process for any such action by means of registered or certified mail, return receipt requested, in care of your home or business address.

8 Term and Termination

8.1 TERM. This EULA shall commence on the Effective Date and shall continue in full force and effect until terminated by either party.

8.2 TERMINATION.

8.2.1 Either Party may terminate this EULA at any time. You may terminate this EULA and cancel the services by erasing and uninstalling the Licensor Proprietary Software, contacting us at opt-out@realius.com and ceasing to access the Licensor Services. You understand and agree that cancellation this EULA is your sole right and remedy with respect to any dispute with Licensor, except as expressly set forth herein. This includes, but is not limited to, any dispute related to, or arising out of: (1) any term of this EULA or Licensor’s enforcement or application of this EULA; (2) any policy or practice of Licensor, including any Licensor Privacy Policy, or Licensor’s enforcement or application of these policies; (3) your ability to access and/or use the Licensor Services; or (4) any Licensor Proprietary Software.

8.2.2 Although we do not anticipate doing so, Licensor must reserve the right, at its sole discretion, to update, amend and/or change this EULA in connection with a new release or re-release of the Licensor Proprietary Software or the Licensor Services. If so, we would give you the opportunity to review the new EULA and to agree or not agree with the new terms. Your continued use of the Licensor Proprietary Software and the Licensor Services following your opportunity to review such changes shall automatically be deemed your acceptance of all changes.

8.2.3 Upon any termination of this EULA (whether by you or Licensor), you shall immediately discontinue use of the Licensor Services and erase or destroy all copies, (full or partial) of the any software application containing the Licensor Proprietary Software.

9 General Provisions

10.1 SURVIVAL. All portions of this EULA that are reasonably intended to survive any termination of this EULA, including but not limited to the defined terms contained herein and Sections 5, 6, 7, 8, 9 and 10, shall continue in full force and effect following any termination of this EULA.

10.2 ALLOCATION OF RISK. The Sections on limitation of liability, limitation of warranties and indemnities allocate the risks of this EULA between the parties. This allocation is an essential element of the basis of the bargain between the parties.

10.3 ASSIGNMENT. Licensor may assign this EULA to any person or entity to whom it transfers all or substantially all of its rights in the Licensor Proprietary Software. You may not assign, voluntarily, by operation of law, or otherwise, this EULA or assign any rights or delegate any duties under this EULA without Licensor’s prior written consent, which shall not be unreasonably withheld. Any attempt to do so without that consent will be void. Subject to the foregoing, this EULA shall be binding upon and inure to the benefit of each party’s permitted successors and assigns.

10.4 CHOICE OF LAW. This EULA will be governed by and construed in accordance with the laws of the United States and the State of California as applied to agreements entered into and to be performed entirely within California between California residents. The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods (1980) is specifically excluded from application to this EULA.

10.5 ENTIRE AGREEMENT. This EULA constitutes the entire agreement between the parties relating to this subject matter and supersedes all prior or simultaneous representations, discussions, negotiations and agreements, whether written or oral. No party has been induced to enter into this EULA by, nor is any party relying on, any representation or warranty outside those expressly set forth in this EULA. The headings and captions are inserted for convenience of reference only and do not constitute a part of or modify any of the terms of this EULA.

10.6 SEVERABILITY. If any part of this EULA is found invalid or unenforceable, that part will be amended to achieve as nearly as possible the same economic effect as the original provision and the remainder of this EULA will remain in full force and effect and the unenforceable provision will be replaced with an enforceable provision that most nearly achieves the intent and economic effect of the unenforceable provision.

10.7 WAIVER. No term or provision hereof will be considered waived by either party, and no breach excused by either party, unless such waiver or consent is in writing signed by both parties. No consent by either party to, or waiver of, a breach by either party, whether express or implied, will constitute consent to, a waiver of, or excuse of any other, different, or subsequent breach by either party.