MacFly Pro End User License Agreement
This End User License Agreement (“EULA Agreement” or “EULA”) is a legal agreement between you individually, or if you are authorized to acquire MacFly Pro Software (as defined hereunder) and any and all related updates and upgrades of the Software or access and/or use our services on behalf of your company or another organization, between the entity for whose benefit you act (in both instances, “you” or “yours”) and MacFly Pro (“we,” “us,” “our,” or “Company”).
PLEASE READ THIS EULA CAREFULLY BEFORE DOWNLOADING, INSTALLING OR USING MACFLY PRO SOFTWARE. BY DOWNLOADING, INSTALLING AND USING THE SOFTWARE, CLICKING THE “I AGREE”, “ACCEPT” OR “YES” BUTTON, OTHERWISE INDICATING ASSENT, 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 DOWNLOAD, INSTALL AND/OR USE THE SOFTWARE AND, IF PRESENTED WITH THE OPTION TO "AGREE" OR "DISAGREE" TO THE TERMS, CLICK "DISAGREE".
The Terms and Conditions of the Company is available on https://macflypro.com (“Terms and Conditions” or “Terms”), which shall apply to our Software and apply in addition to, and supplement the provisions of, this EULA. In the case of a conflict between the EULA and the Terms and Conditions, the terms of Terms and Conditions shall govern.
When used in this EULA, the following terms shall have the respective meanings indicated, such meanings to be applicable to both the singular and plural forms of the terms defined:
"Software" (or “MacFly Pro Software”) means the software program in object code format, provided by and licensed from the Company, all of the contents of the downloads, files, disk(s), CD-ROM(s) and/or other media containing Software with which this EULA is applicable, including but not limited to (A) registration information, i.e. a unique license key which is assigned to your Apple Computer (as this term defined in Terms); (B) related explanatory written materials or files (including but not limited to Help page) ("Documentation"); and (C) Software setup files and code samples (if any); and (ii) any upgrades, modified versions, updates, additions, and copies of the Software, if any, provided to you by the Company now or in the future (collectively, "Updates").
"Use" or "using" means to access, install, download, copy or otherwise benefit from using the functionality of the Software in accordance with the Documentation.
"Free Trial" means a version of the Software to be used only to review, demonstrate and evaluate the Software. For example, the Free Trial of MacFly Pro allows a limited set of features. Any functional peculiarities, limitations or problems present in the Free Trial are and will not be a basis or reason for you to obtain a refund of a purchased license. That is, if a Free Trial offers limited fully functional version, allowing you to see and test those features, your refund request will be declined if based on the absence of some certain feature or if some feature doesn't work as you expected it to work. All other refund cases are governed by and subject to the Company’s Refund Policy.
Grant of License
Subject to the terms of this EULA, we grant you a limited, non-exclusive, non-transferable, non-sublicensable and revocable right (license) to use the Software during the term of this EULA, for your personal and noncommercial use. The rights granted herein are subject to your fully compliance with this EULA.
Software, Website and all Services are protected by applicable laws and treaties throughout the world. MacFly Pro Software, Website and Services may not be copied, distributed or reproduced in whole or in part, without prior written consent of the Company. Company retains all right, title and interest in and to the MacFly Pro Software, Website and Services including, but not limited to, all copyrights, trademarks, trade secrets, trade names, proprietary rights, patents, titles, computer codes, audiovisual effects, themes, characters, character names, stories, dialog, settings, artwork, sound effects, musical works, and moral rights whether registered or not and all applications thereof. All rights not expressly granted to you herein are reserved by Company.
You hereby acknowledge that no title or ownership in the Software is being transferred or assigned and this EULA is not to be construed as a sale of any rights in the Software.
You may install one (1) copy of the installable Software on one (1) hard disk or other storage device of your Apple Computer and you may access and use that Software so long as only one copy of such Software is in operation. One person/entity is entitled to use not more than 10 (ten) licenses for the Software, except otherwise is agreed between such person and Company in written.
If you are an organization rather than an individual, you may authorize personnel associated with your business to use the Software, but only one person at a time on one Apple Computer at a time. You agree not to duplicate or copy the Software, except that you may make one back-up copy for archive purposes.
The term of your license (“License Term”) under this EULA shall commence on the date that you accept this EULA and install or otherwise use the Software. This EULA and License Term will terminate automatically if you fail to comply with its terms and conditions. In such event, you must destroy all copies of the Software and all of its component parts and cease and desist from accessing any our Services. Termination will not limit any of Company’s other rights or remedies at law or in equity.
The License Term continues for the Subscription Period (as this term defined in Terms and Conditions) and any extension and/or renewal of this Subscription Period.
Use of Software
Unless you have received prior written authorization from the Company, you must not (i) commercially exploit the Software; (ii) resell, copy, transfer, distribute, display, translate, modify Software or make derivative works of the Software or any part thereof; (iii) make a copy of the Software or any part thereof; (iv) redistribute, sublicense, rent, publish, perform, sell, assign, lease, market, transfer, or otherwise make Software available to third parties; (v) seek to disable, reverse engineer, decompile or otherwise attempt to extract the source code of the Software or any part thereof, unless this is expressly permitted or required by applicable law or by the licensing terms governing use of any open sourced components included with the Software (if any); (vi) delete, obscure, or in any manner alter any warning, notice (including but not limited to any copyright or other proprietary rights notice), or link that appears in the Software; (vii) remove or alter Company’s trademarks or logos or legal notices included in the Software or related assets, falsify or delete any author attributions, legal notices or other labels of the origin or source of the material; (viii) copy or distribute text, pictures, music, barcodes, video, data, hyperlinks, displays or any other content provided by the Software; (ix) use Software in any manner not expressly allowed in the Terms.
You may not copy, modify, reproduce, republish, distribute, display, or transmit for commercial, non-profit or public purposes all or any portion of the Software, except to the extent explicitly permitted above.
Disclaimer of Warranty
Our actual service coverage, quality, location, and speeds may vary from time to time. We will do our best to provide you with the Service at all times and with the best quality, except for times of repair and maintenance. Please consider, that our Services and/or the Website may be subject to unavailability, delays or omissions due to different Reasons beyond our control, including failures of third-party services, emergencies, network or equipment limitations and/or problems, transmissions, signal strength, interference, and may be limited, curtailed, or interrupted. We shall not be responsible for information lost, delayed, not delivered, or misdirected due to operational issues or possible interruptions in our Services and/or Website. Please that we may impose certain limits on our Services and/or usage, suspend our Services, or even block certain kinds of use in our sole discretion with the purpose of protecting the Website, Services, and our users.
YOUR USE OF THE WEBSITE AND SERVICES IS AT YOUR SOLE RISK. THE WEBSITE, ALL WEBSITE CONTENT, AND THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT WARRANTIES OF ANY KIND, EXPRESS, STATUTORY OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, NONINFRINGEMENT, AVAILABILITY OR ACCURACY OF INFORMATION. COMPANY DOES NOT WARRANT THAT THE WEBSITE AND/OR SERVICES WILL BE AVAILABLE, WILL MEET YOUR REQUIREMENTS OR WILL OPERATE IN AN UNINTERRUPTED, ERROR-FREE OR COMPLETELY SECURE MANNER OR THAT ERRORS OR DEFECTS WILL BE CORRECTED. COMPANY DOES NOT MAKE ANY REPRESENTATIONS, WARRANTIES, OR CONDITIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE WEBSITE AND/OR SERVICE, IN TERMS OF THEIR ACCURACY, RELIABILITY, TIMELINESS, COMPLETENESS, OR OTHERWISE.
SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OR LIMITATION OF IMPLIED WARRANTIES OR CONDITIONS, OR ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. IN SUCH EVENT, COMPANY’S WARRANTIES AND CONDITIONS WITH RESPECT TO THE WEBSITE AND SERVICES WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW IN SUCH JURISDICTION.
Limitation of Liability
UNDER NO CIRCUMSTANCES WILL COMPANY, ITS AFFILIATES, EMPLOYEES, AGENTS, REPRESENTATIVES, LICENSORS OR OTHER THIRD PARTY PARTNERS (“COMPANY PARTIES”) BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE, INABILITY TO USE, OR THE RESULTS OF USE OF OUR SERVICES OR WEBSITE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY; INCLUDING WITHOUT LIMITATION DAMAGES RESULTING FROM LOST PROFITS, LOST DATA, LOSS OF BUSINESS OR BUSINESS INTERRUPTION, WHETHER DIRECT OR INDIRECT, ARISING OUT OF THE USE, INABILITY TO USE, OR THE RESULTS OF USE OF OUR SERVICES OR OUR WEBSITE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY. YOUR SOLE AND EXCLUSIVE REMEDY UNDER THIS AGREEMENT SHALL BE FOR YOU TO DISCONTINUE YOUR USE OF THE WEBSITE AND SERVICES.
COMPANY’S TOTAL CUMULATIVE LIABILITY SHALL IN NO EVENT EXCEED THE GREATER OF: (A) THE AMOUNT YOU PAID US FOR YOUR USE OF THE SERVICES IN THE PRIOR THREE (3) MONTHS; AND (B) THE SUM OF ONE HUNDRED (100) US DOLLARS.
SOME STATES OR JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY. IN SUCH STATES OR JURISDICTIONS, THE COMPANY’S LIABILITY TO YOU SHALL BE LIMITED TO THE FULL EXTENT PERMITTED BY LAW.
You agree to defend, indemnify and hold harmless the Company, its affiliates, licensors and service providers, and its and their respective officers, directors, employees, contractors, agents, licensors, suppliers, successors and assigns from any claim or demand, liabilities, damages, judgments, awards, losses, costs, expenses or fees (including reasonable attorneys’ fees), arising out of or relating to (i) any violation of these Terms by you; (ii) your violation of any rights of another; or (iii) your use of the Website and/or Services. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to defense by you.
Governing Law. Jurisdiction
These Terms shall be governed by, and construed in accordance with, the laws of the state of Delaware, without reference to its choice of law rules. Notwithstanding the foregoing, you agree that Company shall be entitled to apply for injunctive remedies or other equitable relief in any jurisdiction.
You and Company agree that any dispute, claim or controversy arising out of or relating in any way to the MacFly Pro Software, Services or these Terms, shall be determined by binding arbitration, instead of in courts of general jurisdiction. You agree that, by agreeing to this Agreement, the U.S. Federal Arbitration Act governs the interpretation and enforcement of this arbitration provision, and that you and Company are each waiving the right to a trial by jury or to participate in a class action. This arbitration provision shall survive termination of these Terms and/or the termination of licenses granted by the Company pursuant to the Terms.
If you elect to seek arbitration, you must first send to Company, by email, a written Notice of your claim ("Notice of Claim"). The Notice of Claim to Company should be sent to firstname.lastname@example.org and should be prominently captioned "NOTICE OF CLAIM". The Notice of Claim should include both the mailing address and email address you would like Company to use to contact you. If Company elects to seek arbitration, it will send a written Notice of Claim to your email on file. A Notice of Claim, whether sent by you or by Company, must (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific amount of damages or other relief sought ("Demand").
If you and Company do not reach an agreement to resolve the claim within thirty (30) days after the Notice of Claim is received, you or Company may commence an arbitration proceeding. You may download or copy a form of notice and a form to initiate arbitration at www.adr.org. The arbitration will be governed by the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (collectively, "AAA Rules") of the American Arbitration Association ("AAA"), as modified by these Terms, and will be administered by the AAA. The arbitrator is bound by the terms of these Terms. All issues are for the arbitrator to decide, including issues relating to the scope and enforceability of this arbitration provision.
Severability and Waiver
If any provision of these terms is held to be invalid or unenforceable, the remaining provisions will remain in full force and effect. If we do not enforce any right or provision of these terms or if we in any instance grant any concession or indulgence, that will not be deemed a waiver of such right or provision or obligate us to grant any concession or indulgence to anyone else.
We will not be liable by reason of any failure or delay in the performance of our obligations because of events beyond our reasonable control, which may include, without limitation, denial-of-service attacks, strikes, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, terrorism, governmental action, labor conditions, earthquakes, material shortages, extraordinary internet congestion or extraordinary connectivity issues or failure of a third party host, (each a "Force Majeure Event"). Upon the occurrence of a Force Majeure Event, we will be excused from any further performance of the obligations, which are affected by that Force Majeure Event for so long as the event continues.