1.License. Upon Your acceptance of and subject to the terms of this Agreement, Torch hereby grants to You a limited, royalty-free, non-exclusive, personal, non-transferable, revocable and non-assignable license to access via the Internet and download from Torch’s web site at http://torchmobile.com and execute and use the Software and Third Party Software for the Permitted Purpose, subject to any limitations, restrictions or requirements specified herein, “Permitted Purpose” means: (a) if You are an individual, for Your private and personal use on a mobile device; or (b) if You are or are acting on behalf of a person other than a natural individual, including a mobile device manufacturer or other person interested in the commercial use or re-distribution of the Software, solely for Your internal business purposes for the limited purpose of the trial and evaluation of the Software and for certainty, any other use or re-distribution whatsoever shall require that You enter into a separate license agreement with Torch. You acknowledge and agree that the Torch has no obligations to provide support for Your use of the Software.
2.Restrictions on Use. Your licensed use of the Software is subject to the following restrictions and limitations: (a) You shall have no right to copy the Software, provided that one copy may be made for purposes of backup. You shall reproduce all original copyright notices and claims of confidentiality, proprietary rights or trade secret rights on all copies or partial copies of any of the Software; (b) You shall: (i) not provide, disclose, sublicense, re-distribute or otherwise permit any person to access, use, read, disseminate, transmit, “download” or reproduce the Software or Software Documentation; (ii) not adapt, translate, change, customize, enhance, augment, partially delete or alter, or otherwise modify the Software in any manner or to any extent whatsoever, whether in whole or in part; (iii) not disassemble, decompile, reverse engineer, or otherwise in any manner deconstruct all or any part of the Software; (iv) not copy the Software onto any public or distributed network; (v) not alter any proprietary notices appearing in the Software; (vi) use any Third Party Software included in or distributed with the Software only as part of, and/or in conjunction with (and not independently of), Your use of the Software.
3.Third Party Software. You acknowledge that the Software is distributed together with certain third party software (“Third Party Software”). Some Third Party Software may be or contain open source software components. You agree that Your use of any Third Party Software is subject to the applicable Third Party Software license terms and conditions set out in about:credits and You accept such terms and agree, as a condition of this Agreement, to abide by such terms and conditions. ANY THIRD PARTY SOFTWARE PRODUCTS DISTRIBUTED TOGETHER WITH OR FORMING A PART OF THE SOFTWARE ARE PROVIDED BY TORCH ON AN “AS IS” BASIS WITHOUT ANY REPRESENTATIONS, WARRANTIES, COVENANTS OR CONDITIONS OR ANY KIND OR NATURE WHATSOEVER, INCLUDING, IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABLE QUALITY OR FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, THAT THE OPERATION OF THE THIRD PARTY SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE (OR THAT ALL ERRORS CAN OR WILL BE CORRECTED) OR WILL MEET YOUR REQUIREMENTS AND THOSE ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OF TRADE, ALL OF WHICH ARE EXPRESSLY DENIED AND DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY LAW. Torch reserves the right to remove and/or replace any Third Party Software included in the Software at any time and in its discretion for any reason and You agree to permit Torch to do so, including by requiring You to promptly return same to Torch upon a request to do so.
4.Confidential Information. “Confidential Information” means all documents, information, technology and data disclosed or furnished in any connection with this Agreement by Torch to You, directly or indirectly, whether in oral, written, graphic, video, machine-readable or other form, and for certainty shall include, without limitation, the Software, the Software Documentation and all other technical and product information and documentation, trade secrets, and the whole of the ideas, concepts, processes, procedures and know-how contained therein. You shall be permitted to use the Confidential Information solely, and to the extent necessary, for Your personal or internal business purposes in connection with the evaluation of the Software. You shall hold in confidence and shall protect with the same degree of care that You use to protect Your own confidential information, but in no case with less than reasonable care, the Confidential Information from harm, loss, theft, reproduction and unauthorized access and shall ensure that such Confidential Information is not disclosed, published, released, transferred or otherwise made available in any form to, for the use or benefit of, any other person except as provided in this Agreement, without Torch’s prior written approval. You acknowledge and agree that the Confidential Information You may receive from Torch is the sole and exclusive property of Torch and is highly valuable, confidential and material to the interests, business and affairs of Torch, and that disclosure thereof would be detrimental to Torch’s interests, business and affairs. You shall be permitted to disclose relevant aspects of the Confidential Information to your officers, directors and employees to the extent that such disclosure is necessary in the performance of this Agreement; provided, however, that prior to such disclosure You shall inform such persons of the confidential nature of the Confidential Information and You shall be fully responsible for ensuring that any such persons to whom You disclose Confidential Information comply with the confidentiality obligations contained in this Agreement and shall be liable for any breach of this Agreement by such persons. You shall notify Torch immediately upon discovery of any unauthorized use or disclosure of any Confidential Information, and shall cooperate with Torch in every reasonable way to help regain possession of such Confidential Information and to prevent its further unauthorized use or disclosure. You shall have no obligations under this Agreement with respect to any Confidential Information that is: (a) already in Your rightful possession prior to its receipt from Torch provided that such was not in contravention of this Agreement or not made to You by a person in contravention of an obligation of confidentiality to Torch or other person that is, or reasonably ought to be, known by You, (b) publicly known at the time of disclosure or becomes publicly known through no wrongful act or failure by You, or (c) subsequently disclosed to You by a third party without restriction on disclosure and without breach of a non-disclosure obligation. The Confidential Information shall be returned to Torch or destroyed by You immediately upon the request of Torch for any reason and at any time. If You are requested or required (by oral question, interrogatories, requests for information or documents, subpoena, civil investigative demand or similar process) to disclose any Confidential Information, You will promptly notify Torch of such request or requirement so that Torch may seek an appropriate protective order or waive compliance with the provisions of this Agreement without delay. If, subject to the obligations stated in the preceding sentence, You are compelled to disclose the Confidential Information, You may disclose only such of the Confidential Information to the party compelling disclosure as is required by law.
5.Ownership of Software. You acknowledge and agree that all right, title and interest in and to the Software and Software Documentation (including all intellectual property rights therein) are, and shall be, owned solely and exclusively by Torch and/or its third party licensors and that, other than the limited license granted in this Agreement, You acquire no rights in or to the Software or Software Documentation.
6.Relief. You acknowledge and agree that damages may be an inadequate remedy for a breach of the provisions of this Agreement relating to Your access to and use of the Software and agree that such breach shall constitute irreparable harm to Torch. You covenant and agree not to contest or object to an application for equitable relief by Torch in such circumstances and waive any and all immunities from injunctive relief to which You may be entitled. Any such relief or remedy shall not be exclusive, but shall be in addition to all other available legal or equitable remedies. You agree that the provisions of this section are fair and reasonable in the commercial circumstances of this Agreement, and that Torch would not have entered into this Agreement but for the provisions of this section.
7.No Warranties. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT THE SOFTWARE, THIRD PARTY SOFTWARE, SOFTWARE DOCUMENTATION AND ALL RELATED INFORMATION, PRODUCTS AND/OR MATERIALS PROVIDED BY TORCH TO YOU, IS PROVIDED ON AN “AS AVAILABLE” AND “AS IS” BASIS WITHOUT ANY EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY OR CONDITION OF ANY KIND OR NATURE WHATSOEVER, INCLUDING WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OR THAT THE SOFTWARE WILL BE ERROR FREE, OR CONCERNING THE SOFTWARE’S FUNCTIONALITY, PERFORMANCE, DEVICE COMPATIBILITY, OPERATION OR USE BY YOU AND THOSE ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OF TRADE, ALL OF WHICH ARE EXPRESSLY DENIED AND DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY LAW. YOU CONFIRM THAT YOU HAVE NOT RELIED ON ANY REPRESENTATION, WARRANTY, CONDITION, COVENANT OR PROMISE MADE BY TORCH WHICH HAS NOT BEEN EXPRESSLY STATED IN THIS AGREEMENT. YOU ACKNOWLEDGE THAT THE ENTIRE RISK ARISING OUT OF YOUR ACCESS, DOWNLOAD, INSTALLATION OR USE OF THE SOFTWARE, THIRD PARTY SOFTWARE AND SOFTWARE DOCUMENTATION REMAINS WITH YOU.
8.Term. Your limited license to use the Software commences upon Your acceptance of the terms of this Agreement and will continue unless terminated earlier in accordance with Section 10 below.
9.No Damages. YOU AGREE THAT TORCH (OR ITS LICENSORS) SHALL NOT BE LIABLE TO YOU UNDER THIS AGREEMENT FOR ANY DAMAGES OF ANY KIND OR NATURE WHATSOEVER, INCLUDING WITHOUT LIMITATION, ANY DIRECT, INDIRECT, INCIDENTAL, EXEMPLARY, SPECIAL OR CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING WITH RESPECT TO LOSS OF OR DAMAGE TO DATA, LOSS OF REVENUE OR PROFITS OR BUSINESS INTERRUPTION) SUFFERED BY YOU OR ANY THIRD PARTY HOWSOEVER CAUSED (WHETHER RESULTING FROM IMPAIRED OR LOST DATA, SOFTWARE OR COMPUTER / DEVICE FAILURE OR INCOMPATIBILITY OR ANY OTHER CAUSE) AND REGARDLESS OF THE FORM OR CAUSE OF ACTION OR BASIS OF LIABILITY (INCLUDING FOR BREACH OF CONTRACT, TORT, NEGLIGENCE, BY STATUTE OR OTHERWISE), EVEN IF SUCH DAMAGES ARE FORESEEABLE OR TORCH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS SECTION SHALL SURVIVE A FUNDAMENTAL BREACH OR BREACHES AND/OR FAILURE OF THE ESSENTIAL PURPOSE OF THE AGREEMENT.
10.Termination. torch may terminate this Agreement immediately at any time in its discretion for any reason whatsoever with or without notice to You.
11.Effects of Termination. Upon any termination of this Agreement the licenses granted herein shall immediately terminate and You shall cease all use of the Software and Software Documentation and immediately destroy all such material and You shall immediately destroy all Confidential Information. Oral Confidential Information shall continue to be bound by the terms and conditions of this Agreement.
12.Entire Agreement, Law, etc.. (a) This Agreement constitutes the entire agreement between You and Torch pertaining to all the matters herein and may only be amended or modified by written agreement executed by You and Torch. (b) This Agreement shall be exclusively governed by, construed and interpreted in accordance with the laws of the Province of Ontario, Canada excluding any rules of private international law or the conflict of laws which would lead to the application of any other laws. For the purpose of all legal proceedings this Agreement shall be deemed to have been performed in the Province of Ontario, Canada and You and Torch expressly confirm that the law of the Province of Ontario is the proper law. If You are located in a jurisdiction other than Canada, You agree that neither the United Nations Convention of the International Sale of Goods nor the (U.S.) Uniform Computer Information Transactions Act shall apply to this Agreement. You irrevocably attorn to the non-exclusive jurisdiction of the Courts of the Province of Ontario in respect of all matters and disputes arising hereunder. (c) It is the express wish of You and Torch that this Agreement be drawn up in English. You hereby waive any right to use and rely upon any other language. This Agreement shall be binding upon and shall enure to the benefit of and be enforceable by each of You and Torch, Your respective heirs, successors and permitted assigns. You may not assign all or any part of this Agreement, without the prior consent of Torch. Torch may assign this Agreement without Your consent at any time. (d) No delay or omission by Torch to exercise any right or power it has under this Agreement or to object to the failure of any covenant to be performed by You in a timely and complete manner, shall impair any such right or power or be construed as a waiver of any succeeding breach or any other covenant. All waivers must be in writing and signed by Torch. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable in any respect, then the remaining provisions of this Agreement, or the application of such provisions to persons or circumstances other than those as to which it is invalid or unenforceable shall not be affected thereby, and each such provision of this Agreement shall be valid and enforceable to the extent granted by law. (e) The provisions of Sections 4, 5, 6, 7, 9, 11 and 12 and any other terms herein which expressly state that such terms will survive and any provisions of which, by their nature, are intended to survive termination, including, but not limited to, all limitations, disclaimers and exclusions, shall survive the termination or expiration of this Agreement for any reason. You acknowledge that the Software may be subject to export and import control laws, and agree to comply fully with those laws in connection with the Software. You agree that the Software is not being, and will not be, acquired for, shipped, transferred, or re-exported, directly or indirectly, to proscribed or embargoed countries or their nationals, nor will it be used for: nuclear activities, chemical or biological weapons, or missile projects unless authorized by the applicable governmental authority.