FIRST CENTURY THINKING SOFTWARE END USER LICENSE AGREEMENT
NOTICE TO USER: PLEASE READ THIS CONTRACT CAREFULLY. BY USING ALL OR ANY PORTION OF THE SOFTWARE YOU ACCEPT ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT. YOU AGREE THAT THIS AGREEMENT IS ENFORCEABLE LIKE ANY WRITTEN NEGOTIATED AGREEMENT SIGNED BY YOU. IF YOU DO NOT AGREE, DO NOT USE THIS SOFTWARE.
1. Your Agreement with FIRST CENTURY THINKING, LLC.
1.1 Choice of Law. Your relationship with FIRST CENTURY THINKING, LLC a Oregon Limited Liability Company located and doing business solely within the United States, shall be governed by the laws of the State of Oregon.
1.3 Some Services may also be subject to additional or different terms (the “Additional Terms”). Without limitation, the Additional Terms for the following Services are hereby incorporated into the General Terms.
1.4 If there is any conflict between the General Terms and the Additional Terms, then these Additional Terms take precedence in relation to this Service and Software. The General Terms and any applicable Additional Terms and all other documents incorporated by reference in these General Terms are referred to as the “Terms”.
1.5 FIRST CENTURY THINKING may change the Terms at its sole discretion. If we change the Terms, then we will make a new copy available at http://www.appmarketanalyzer.com/terms-conditions/ or in conjunction with updated versions of the Software. Your use of the Services and Software is subject to the most current version of the Terms at the time of such use.
1.6 The terms Services and Software are here after collectively referred to as “Software” for convenience and brevity only.
2. LICENSE GRANT AND RESTRICTIONS
2.1 The Software is protected by copyright, trade secret, and other intellectual property laws. You are only granted certain limited rights to install and use the Software, and First Century Thinking reserves all other rights in the Software not granted to you in writing herein. As long as you meet any applicable payment obligations and comply with this Agreement, First Century Thinking grants you a personal, limited, nonexclusive, nontransferable, revocable license to use the Software only for the period of use provided in the ordering and activation terms, as set forth in this Agreement, or in accordance with First Century Thinking’s then-current product discontinuation policies, as updated from time to time, and only for the purposes described by First Century Thinking for the Software.
2.2 You acknowledge and agree that the Software is licensed, not sold. You agree not to use, nor permit any third party to use, the Software in a manner that violates any applicable law, regulation or this Agreement. You agree you will not:
If you violate any of these terms, this Agreement and your license to use the Software may be terminated by First Century Thinking in its sole discretion.
For Software licensed on a payment or subscription basis, the following terms apply, unless First Century Thinking notifies you otherwise in writing. This Agreement also incorporates by reference and includes program ordering and payment terms provided to you for the Software:
4. TRIAL VERSIONS AND BETA FEATURES.
If you registered for a trial use of the Software (“Trial Period”), you must decide to purchase a Software license within the Trial Period in order to retain any Content (defined in Section 6) that you have entered into the Software, created within the Software data file, posted or uploaded during the Trial Period. If you do not purchase a Software license by the end of the Trial Period, your Content may no longer be accessible to you.
5. YOUR PRIVACY AND PERSONAL INFORMATION.
You can view Software Privacy Statement on the AppMarketAnalyzer.com website, or via a link on the website for the Software you have selected. You agree to be bound by the applicable First Century Thinking Privacy Statement, subject to change in accordance with its terms. Most importantly, you agree:
6.1 You are responsible for your content. You are legally responsible for all information, data, text, software, music, sound, photographs, graphics, video, messages or other materials (“Content”) uploaded, posted or stored through your use of the Software. You grant First Century Thinking a worldwide, royalty-free, non-exclusive license to host and use any Content provided through your use of the Software. You agree not to use the Software for any illegal purpose or in violation of any applicable local, state, federal or international law. You are encouraged to archive your Content regularly and frequently. You are responsible for any Content that may be lost or unrecoverable through your use of the Software. You agree that you will not use the Software to share, store, or in any way distribute financial data that is not in accordance with the law. Any users suspected of having information which involves fraud, embezzlement, money laundering, insider trading, support for terrorism, or any other activity proscribed by law may have their accounts terminated, their financial data erased, and they also may be reported to law enforcement officials in the appropriate jurisdictions. First Century Thinking is not responsible for the Content or data you provide through your use of the Software.
You agree not to use the Software to upload, post, distribute, link to, publish, reproduce, engage in or transmit any of the following, including but not limited to:
6.2 Community Forums. The Software may include access to a community forum to exchange information with other users of the Software and the public. Please use respect when you interact with other users. First Century Thinking does not support and is not responsible for the accuracy of others’ content in these community forums. Do not reveal information in the community forum that you do not want to make public. Users may post hypertext links to content hosted and maintained by third parties for which First Century Thinking is not responsible.
First Century Thinking may, but has no obligation to, monitor Content provided on the community forum. We may disclose any information necessary or appropriate to satisfy our legal obligations, protect First Century Thinking or its customers, or operate the Software properly. First Century Thinking, in its sole discretion, may refuse to post, remove, or refuse to remove, any Content, in whole or in part, alleged to be unacceptable, undesirable, inappropriate, or in violation of this Agreement.
6.3 First Century Thinking may freely use feedback you provide. You agree that First Century Thinking may use your feedback, suggestions, or ideas in any way, including in future modifications of the Software, other products or services, advertising or marketing materials. You grant First Century Thinking a perpetual, worldwide, fully transferable, sub licensable, non-revocable, fully paid-up, royalty free license to use the feedback you provide to First Century Thinking in any way.
7. ADDITIONAL TERMS
7.1 First Century Thinking does not give professional advice. First Century Thinking is not in the business of providing legal, financial, accounting, health care, real estate or other professional services or advice. Consult the services of a competent professional when you need this type of assistance.
7.2 We may tell you about other First Century Thinking services. You may be offered other services, features, products, applications, online communities, or promotions provided by First Century Thinking (“First Century Thinking Services”). If you decide to use any of these First Century Thinking Product or Services, additional terms and conditions and separate fees may apply. You acknowledge that in accessing some First Century Thinking Services you may upload or enter data such as names, addresses and phone numbers, purchases, and other data to the Internet. You grant First Century Thinking permission to use information you provide and about your experience so that we can provide the First Century Thinking Services to you, monitor and analyze your use of the services, maintain and update your data, and address errors or service interruptions. We may use this data to improve services, enhance future services, identify potentially relevant offers, and produce anonymous research data. You grant First Century Thinking permission to combine the data you have entered or uploaded with that of others in a way that does not identify you or any individual personally. You also grant First Century Thinking permission to share or publish summary results relating to such research data and to distribute or license such data to third parties.
7.3 We may tell you about third party products or services. Subject to the First Century Thinking Privacy Statement, First Century Thinking may offer products and services on behalf of third parties who are not affiliated with First Century Thinking (“Third Party Products”) or the Software may contain links to third party websites(“Third Party Sites”). You agree that First Century Thinking can use your contact information, including name and email address, for the purpose of offering these products to you in accordance with your stated First Century Thinking preferences. If you decide to use any Third Party Products or access any Third Party Sites, you are responsible for reviewing the third party’s separate product terms, website terms and privacy policies. You agree that the third parties, and not First Century Thinking, are responsible for their product’s performance and the content on their websites. First Century Thinking is not affiliated with these Third Party Products or Third Party Sites and has no liability for them.
7.4 Communications choices. First Century Thinking may be required by law to send you communications about the Software or Third Party Products. You agree that First Century Thinking may send these communications to you via email or by posting them on one of our sponsored websites. We may also send business communications such as confirmations or notices, which will be delivered to you via email or posted on our websites. You are required to receive these communications. You can choose not to receive some types of communication, such as marketing messages.
7.5 You will track your passwords and accept updates. You are responsible for securely managing your password(s) for access to the Software. If you become aware of any unauthorized access to your Software account, theft or loss of your password, you agree to contact First Century Thinking as soon as possible. The Software may periodically be updated with tools, utilities, improvements, third party applications, or general updates to improve and enhance the features and performance of the Software.
7.6 The Software uses the internet protocol address of your network connection (“IP Address”) to provide the functionality including, without limitation, interaction with third party websites, performing website searches, requesting data from search engines, and providing you with data about keyword rankings and other rankings. You acknowledge that the Software uses your IP Address for the purposes listed above and permit the Software to do so. You are solely responsible for any website searches and interaction with third party websites that the Software installed on your Primary Computer, home computer, or File Server undertakes. In addition to the limitations of liability provided in section 9, First Century Thinking disclaims any and all responsibility for any loss, damages, claims or legal actions brought against you in relation to your Use of the Software. If you do not agree to the Software using your IP Address in the manner described in this clause then you should not Use the Software.
7.7 Transfer of Data. The Software may from time to time transmit the data collected and generated through your use of the Software (such as search results and keyword and other rankings, but not information that can identify you) to AppMarketAnalyzer.com for the purposes of optimizing the Software and providing related services. You grant First Century Thinking a perpetual, irrevocable, fully paid-up, non-exclusive license to store and use such data for these purposes.
8. DISCLAIMER OF WARRANTIES
8.1 YOUR USE OF THE SOFTWARE AND CONTENT ACCESSIBLE THROUGH THE SOFTWARE ISENTIRELY AT YOUR OWN RISK. EXCEPT AS DESCRIBED IN THIS AGREEMENT, THE SOFTWAREIS PROVIDED “AS IS.” TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, FIRST CENTURY THINKING, ITS AFFILIATES, AND ITS THIRD PARTY SERVICE OR DATAPROVIDERS, LICENSORS, DISTRIBUTORS OR SUPPLIERS (COLLECTIVELY REFERRED TO AS, “SUPPLIERS”) DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDINGANY WARRANTY THAT THE SOFTWARE IS FIT FOR A PARTICULAR PURPOSE, TITLE,MERCHANTABILITY, DATA LOSS, NON-INTERFERENCE WITH OR NON-INFRINGEMENT OF ANYINTELLECTUAL PROPERTY RIGHTS, OR THE ACCURACY, RELIABILITY, QUALITY OR CONTENTIN OR LINKED TO THE SOFTWARE. FIRST CENTURY THINKING AND ITS AFFILIATES AND SUPPLIERSDO NOT WARRANT THAT THE SOFTWARE IS SECURE, FREE FROM BUGS, VIRUSES, INTERRUPTION, ERRORS, THEFT OR DESTRUCTION. FURTHER, FIRST CENTURY THINKING DOES NOTWARRANT ACCESS TO THE INTERNET OR TO ANY OTHER SERVICE, CONTENT OR DATATRANSMITTED THROUGH THE SOFTWARE. IF THE EXCLUSIONS FOR IMPLIED WARRANTIES DONOT APPLY TO YOU, ANY IMPLIED WARRANTIES ARE LIMITED TO 60 DAYS FROM THE DATEOF PURCHASE OR DELIVERY OF THE SERVICES, WHICHEVER IS SOONER.
8.2 FIRST CENTURY THINKING AND ITS AFFILIATES AND SUPPLIERS DISCLAIM ANY REPRESENTATIONS OR WARRANTIES THAT YOUR USE OF THE SOFTWARE WILL SATISFY ORENSURE COMPLIANCE WITH ANY LEGAL OBLIGATIONS OR LAWS OR REGULATIONS. THIS DISCLAIMER APPLIES TO BUT IS NOT LIMITED TO THE HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT OF 1996 (“HIPAA”), THE GRAMM-LEACH-BLILEY ACT OF 1999, THE SARBANES-OXLEY ACT OF 2002, OR OTHER FEDERAL OR STATE STATUTES ORREGULATIONS. YOU ARE SOLELY RESPONSIBLE FOR ENSURING THAT YOUR USE OF THESOFTWARE IS IN ACCORDANCE WITH APPLICABLE LAW.
9. LIMITATION OF LIABILITY AND INDEMNITY.
TO THE MAXIMUM EXTENTPERMITTED BY APPLICABLE LAW, THE ENTIRE LIABILITY OF FIRST CENTURY THINKING, AND ITS AFFILIATES AND SUPPLIERS FOR ALL MATTERS OR CLAIMS RELATING TO THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT YOU PAID FOR THE SOFTWARE DURING THE TWELVE (12) MONTHS PRIOR TO SUCH CLAIM. SUBJECT TO APPLICABLE LAW, FIRST CENTURY THINKING AND ITS AFFILIATES AND SUPPLIERS ARE NOT LIABLE FOR ANY OF THE FOLLOWING: (A) INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES; (B) DAMAGES RELATING TOFAILURES OF TELECOMMUNICATIONS, THE INTERNET, ELECTRONIC COMMUNICATIONS, CORRUPTION, SECURITY, LOSS OR THEFT OF DATA, VIRUSES, SPYWARE, LOSS OFBUSINESS, REVENUE, PROFITS OR INVESTMENT, OR USE OF SOFTWARE OR HARDWARE THATDOES NOT MEET FIRST CENTURY THINKING SYSTEMS REQUIREMENTS. THE ABOVE LIMITATIONS APPLYEVEN IF FIRST CENTURY THINKING AND ITS AFFILIATES AND SUPPLIERS HAVE BEEN ADVISED OFTHE POSSIBILITY OF SUCH DAMAGES. THIS AGREEMENT SETS FORTH THE ENTIRE LIABILITYOF FIRST CENTURY THINKING, ITS AFFILIATES AND YOUR EXCLUSIVE REMEDY WITH RESPECT TOTHE SOFTWARE AND ITS USE.
You agree to indemnify and hold First Century Thinking and its Affiliates and Suppliers harmless from any and all claims, liability and expenses, including reasonable attorneys’ fees and costs, arising out of your use of the Software or breach of this Agreement (collectively referred to as “Claims”). First Century Thinking reserves the right, in its sole discretion and at its own expense, to assume the exclusive defense and control of any Claims. You agree to reasonably cooperate as requested by First Century Thinking in the defense of any Claims.
10. CHANGES TO THIS AGREEMENT OR THE SOFTWARE
We may change this Agreement from time to time, and the changes will be effective when posted on our website for the Software or when we notify you by other means. Please review the Agreement periodically on the website for changes. We have the right to change any of the terms of this Agreement upon reasonable notice to you. We may also change or discontinue the Software, in whole or in part, including but not limited to, any feature or aspect of the Software, Internet based services, pricing, technical support options, and other product-related policies. Your continued use of the Software indicates your agreement to the changes.
First Century Thinking may immediately and without notice terminate this Agreement or suspend or terminate the license to the Software if you fail to comply with these terms or if you no longer agree to receive electronic communications (see Section 7.4). Upon any termination you must immediately stop using and delete or destroy all copies of the Software and any outstanding payments will become due. Any termination of this Agreement shall not affect First Century Thinking’s rights to any payments due to it. First Century Thinking may terminate a free account at any time. Other requirements regarding termination or cancellation of your license to the Software may apply based on the specific ordering or activation terms for the Software. Sections 1.2, 5, and 8 through 14 will survive and remain in effect even if the Agreement is terminated, cancelled or rescinded.
12. EXPORT RESTRICTIONS.
You acknowledge that this website, the Software, and the underlying software may include U.S. technical data subject to restrictions under export control laws and regulations administered by the United States government. You agree that you will comply with these laws and regulations, and will not export or re-export the Software, or any part of the Software, in violation of these laws and regulations, directly or indirectly. You also agree not to provide access to any part of the Software to anyone who you have reason to know may use the Software in the development of nuclear, chemical, or biological weapons.
13. GOVERNING LAW.
Oregon state law governs this Agreement without regard to its conflicts of laws provisions.
ANY DISPUTE OR CLAIM RELATING IN ANY WAY TO THE FIRST CENTURY THINKING SOFTWARE OR THIS AGREEMENT WILL BE RESOLVED BY BINDING ARBITRATION, RATHER THAN INCOURT, except that if this provision is determined to be unenforceable at law by a court of competent jurisdiction, then you agree that all claims will be brought and decided within the exclusive jurisdiction of the Marion County Superior Court State of Oregon. Not with standing anything to the contrary, any party to the arbitration may at any time seek injunctions or other forms of equitable relief from any court of competent jurisdiction. WE EACH AGREE THAT ANY AND ALL DISPUTES MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. BY ENTERING INTO THIS AGREEMENT AND AGREEING TO ARBITRATION, YOU AGREE THAT YOU AND FIRST CENTURY THINKING ARE EACH WAIVING THE RIGHT TO FILE A LAWSUIT AND THE RIGHT TO A TRIAL BY JURY. IN ADDITION, YOU AGREE TO WAIVE THE RIGHT TOPARTICIPATE IN A CLASS ACTION OR LITIGATE ON A CLASS-WIDE BASIS. YOU AGREE THAT YOU HAVE EXPRESSLY ANDKNOWINGLY WAIVED THESE RIGHTS.