TERMS OF SERVICE AND END USER LICENSE AGREEMENT ('EULA')
The following EULA constitutes a legal agreement between Jaina India Private Limited ("Jaina") and you ("User/You/Your") for use of the Device, Software, Firmware (all terms defined below) whether pre-installed or downloaded by you, as the case may be.
THIS DOCUMENT IS AN ELECTRONIC RECORD IN TERMS OF INFORMATION TECHNOLOGY ACT, 2000, AND THE RULES ARE AS APPLICABLE. THE AMENDED PROVISIONS PERTAINING TO ELECTRONIC RECORDS IN VARIOUS STATUTES ARE AS AMENDED BY THE INFORMATION TECHNOLOGY ACT, 2000. THIS ELECTRONIC RECORD IS GENERATED BY A COMPUTER SYSTEM AND DOES NOT REQUIRE ANY PHYSICAL OR DIGITAL SIGNATURES.
If you do not agree to be bound or cannot comply with any term of this EULA, please do not continue with availing the services or using the Device. Your act of clicking on/checking the “I agree” tab/box below shall be deemed as agreement to this EULA. In the event that you are below the age of eighteen (18), then this EULA must be accepted by a parent or natural guardian prior to commencing any access to or use of our services and/or the Device.
For the purposes of this EULA, ‘Device’ shall mean the electronic equipment of Jaina owned by you ‘Software’ shall mean the pre-installed software in the Device, wherein the software is either owned by Jaina or third party suppliers and includes upgrades, updates, enhancements and push notifications provided from time to time. ‘Firmware’ means the software packaged and programmed into the Mobile Devices and includes any updates, push notifications, upgrades provided by Jaina through the Firmware over the air technology (OTA) or any other modes, from time to time.
Subject to the EULA and its terms and conditions, Jaina hereby grants you a limited, non-exclusive, non-transferable, non-sub licensable license to install, use, access, display and run one copy of the Software and the Firmware, which are owned or controlled by Jaina, on your Device in perpetuity for the territory of India. The rights granted herein are subject to your compliance with this EULA. The Software/Firmware is being licensed to you and you hereby acknowledge that no title or ownership in the Software and/or the Firmware is being transferred or assigned and this EULA is not to be construed as a sale of any rights in the Software and/or the Firmware. For any part of the Software/Firmware owned by third party suppliers, the use of such Software/Firmware, as applicable, including the grant of the license in such third party Software/Firmware updates shall be governed by their individual end user license agreements.
2. TERMS AND RESERVATIONS
The term of your license under this EULA shall commence on the date that you accept this EULA and install the Software/Firmware on the Device. You shall neither on your own nor enable/authorize/permit others to copy, reverse engineer, decompile, disassemble or otherwise attempt to discover the source code or algorithms of the Device, Software, Firmware or modify or disable any features of the Device, Software, Firmware or create derivative works based on the aforesaid. The license shall immediately terminate if you attempt to circumvent any technical protection measures used in connection with the Software, Firmware, Device, in breach of the terms of this EULA. You may not transfer this EULA or the rights to the Software, Firmware granted herein to any third party unless it is in connection with the sale of the Device. In the event the Device is sold, such sale must include all of the Software (including all component parts, the media and printed materials, any upgrades, this EULA), Firmware and you shall not retain any copies of the Software or the Firmware, and the transferee shall automatically be deemed to be bound by all the terms contained herein. Notwithstanding anything to the contrary, Jaina is not responsible for any Firmware/Software that fails to download/install on your Device, or is downloaded/installed incorrectly and/or any Firmware/Software that you are unable to use or access at any time for any reason whatsoever.
3. SOFTWARE UPDATES
Jaina or such other third party may make available to you updates, upgrades, supplements and add-on components of the Software, Firmware including bug fixes, service upgrades and feature improvements after the date you obtain your initial copy of the Software/Firmware. This EULA shall apply to all and any component of the update, upgrades, supplements, add-on components, unless other terms are made available with such updates, supplements, add-on components. Jaina shall provide the updates, upgrades, or other enhancements entirely at its discretion and nothing in this EULA shall be deemed to impose an obligation on Jaina to provide the aforesaid. You may need to install updates to the existing Software, Firmware that Jaina provides from time to time, for the continued or enhanced use of such Software or Firmware. Your use of the Software, Firmware and/or Device may also receive automatic updates. If you do not agree to such automatically requested and/or received updates then please do not use the Device, Software and/or Firmware. Your Device or any computer that your Device may be synced to, may periodically check with any third party platform for updates to the Software, Firmware on your Device and, if available, the update may automatically download and install. You agree that the Device, through the Software/Firmware and/or any third party platform, may automatically download and install updates onto your Device. For such downloads, additional network/service provider charges may apply.
Any and all rights not expressly granted to you by this EULA are retained by Jaina or third parties, as the case may be. Jaina and its suppliers own the title, copyright and other intellectual property rights in the Firmware and Software. For the sake of clarity, the Firmware and Software are only licensed as per terms of clause 1 herein and not sold.
6. CONSENT TO USE OF DATA
7. INTERNET ACCESS
Some features of the Firmware, Software and/or Device may require your Device to have access to the internet and may be subject to restrictions imposed by your network or internet provider. Unless your Device is connected to the internet through Wi-fi connection, the Firmware and Software will access the internet through your mobile network, which may result in additional charges as per your network service provider.
8. THIRD-PARTY APPLICATIONS
Certain third-party applications or services may be included with, or downloaded on your Device. Such third-party applications or services may display, include or make available content, data, information, applications or materials from third parties (‘Third Party Materials’) or provide links to certain third-party websites. By using the Software, you acknowledge and agree that Jaina is not responsible for the availability of such applications and is not responsible or liable for any content, advertising, products, services, or other materials on or available from such applications, in any manner whatsoever. You expressly acknowledge and agree that use of third-party applications including any Third-Party Materials is at your sole risk and that the entire risk of unsatisfactory quality, performance, accuracy and effort is with you. You agree to abide by all terms, conditions, restrictions applicable to you in connection with the Third-Party Materials, as may be prescribed by such third parties, from time to time, without any recourse to Jaina. You understand that by using the Device, Software and/or Firmware, you may encounter material that you may deem to be offensive, indecent, or objectionable, and that such content may or may not be identified as having explicit material. You agree to use the Device, Software and/or Firmware at your sole risk and Jaina shall have no liability towards you for any material that may be found to be offensive, indecent, or objectionable. Product/service types and descriptions are provided for convenience, and you agree that Jaina does not guarantee their accuracy, fitness for any purpose, and/or suitability.
Jaina disclaims any responsibility for any disclosure of information by/to a third-party application provider or any other practices of any third-party application provider. Jaina expressly disclaims any warranty regarding whether your personal information is captured by any third-party application provider or the use to which such personal information may be put by such third-party application provider.
You hereby represent, warrant and undertake to Jaina that:
(i) You shall use the Software, Firmware and/or Device strictly in compliance with applicable laws
(ii) You shall not infringe any copyright, trademark, or patent or misappropriate any trade secret
(iii) You shall not use the Firmware, Software or Device for any deceptive, defamatory, obscene, pornographic or unlawful purposes
(iv) You shall not introduce any viruses, worms or other malicious computer programming codes into the Firmware, Software and/or Third Party Materials, and
(v) You shall not otherwise violate the rights of any third parties
The Device, Software, Firmware, may offer interactive features that allow you to submit materials (including links to third-party content) which may be accessible and viewable by other users and the public. You agree that any use by you of such features, including any materials submitted by you, shall be your sole responsibility, shall not infringe or violate the rights of any other party or violate any laws, contribute to or encourage infringing or otherwise unlawful conduct, or otherwise be obscene, objectionable, or in poor taste. You also agree that you have obtained all necessary rights and licenses. You agree to provide accurate and complete information in connection with your submission of any materials. You hereby grant Jaina a worldwide, royalty-free, non-exclusive, perpetual license to use such materials as part of the Device, Software, Firmware, or in relation to the Device, Software, Firmware, without any compensation or obligation to you. Jaina reserves the right to not post or publish any materials, and to remove or edit any material, at any time in its sole discretion without notice or liability. Jaina has the right, but not the obligation, to monitor any materials submitted by you or otherwise available on the Software, Device, Firmware, to investigate any reported or apparent violation of this EULA, and to take any action that Jaina in its sole discretion deems appropriate, including, without limitation, termination hereunder.
10. USE OF APPLICATION
You agree and acknowledge that for you to use the application for downloading any Software, you will have to create an account with a user name and password (“Account”). You must keep your user details secure and not share them with anyone. You further agree that your Account may be suspended, without any notice, in the event you breach this EULA or any end-user license agreement of any third party or any part thereof. You are solely responsible for maintaining the confidentiality and security of your Account, and for all activities that occur on or through your Account, and you agree to immediately notify Jaina in writing of any security breach of your Account. Jaina shall not be responsible for any losses arising out of the unauthorized use of your Account. Purchase and/or download of any Software from the APPLICATION and/or download of the Firmware on the Device may be subject to further authentication and you agree to comply with any such procedure that may be applicable, from time to time. Each Software and Firmware may have a separate download and delivery timeline and you shall not hold Jaina responsible for any delay or failure in download, delivery, access and/or use of any Software and/or Firmware by you. You agree and acknowledge that Jaina may use details from your Account for providing services, enhancements and upgrades, from time to time.
This EULA is effective until terminated. Your rights under this license will terminate automatically without notice from Jaina if you fail to comply with any of the terms and conditions of this EULA. Upon termination of this EULA, you must cease all use of the Software and/or Firmware and destroy all copies, full or partial of the Software.
12. DISCLAIMER OF WARRANTIES
Unless separately stated in a written express limited warranty accompanying your device, all software/firmware provided by Jaina with this device/software/firmware (whether included with the device, downloaded, or otherwise obtained) and the device is provided “as is” and on an “as available” basis, without warranties of any kind from Jaina or any of its affiliates, either express or implied. To the fullest extent possible pursuant to applicable law, Jaina disclaims all warranties express, implied, or statutory, including, but not limited to, implied warranties of merchantability, satisfactory quality or workmanlike effort, fitness for a particular purpose, compatibility with the device, reliability or availability, accuracy, lack of viruses, quiet enjoyment, non-infringement of third party rights or other violation of rights. Some jurisdictions do not allow exclusions or limitations of implied warranties, so the above exclusions or limitations may not apply to you. No advice or information, whether oral or written, obtained by you from Jaina or its affiliates shall be deemed to alter this disclaimer by Jaina of warranty regarding software, firmware and/or the device, or to create any warranty of any sort from Jaina. You expressly acknowledge and agree that, to the extent permitted by applicable law, use of the software and any services performed by or accessed through the software is at your sole risk and that the entire risk as to the satisfactory quality, performance, accuracy, and effort is with you.
13. LIMITATION OF LIABILITY
In no case shall Jaina, its directors, officers, employees, affiliates, agents, contractors, principals, or licensors be liable for any direct, indirect, incidental, punitive, special, or consequential damages arising from your use of the software and/or the services, the firmware and/or the device or for any other claim related in any way to your use of the software or the device or the firmware, including, but not limited to, damages to property, loss of goodwill, computer failure or malfunction, errors, omissions, interruptions, defects, delay in operation or transmission, computer virus, failure to connect, network charges, in-app purchases, and all other direct, indirect, special, incidental, exemplary, or consequential damages and, to the extent permitted by law, damages for personal injuries, property damage, lost profits or punitive damages from any causes of action arising out of or related to this EULA or the software, the firmware, and/or the device, whether arising in tort (including negligence), contract, strict liability or otherwise, even if advised of the possibility. Where the laws do not allow the exclusion or the limitation of liability for consequential or incidental damages, in such jurisdictions, Jaina's liability shall be limited to the extent permitted by law. Notwithstanding the foregoing, Jaina's total liability to you for all losses, damages, causes of action, including but not limited to those based on contract, tort, or otherwise, arising out of your use of the software or third-party applications on this device, the firmware, the device, or any other provision of this EULA, shall not exceed the amount you paid specifically for the device or any such third-party application that was included with this device.
You hereby irrevocably and unconditionally waive your right to sue, or recover any damages from Jaina, its directors, officers, employees, affiliates, agents, contractors, principals, and licensors as a result of its decision to remove or refuse to process any information or content, to warn you, to suspend or terminate your access to any services, software, firmware or to take any other action during the investigation of a suspected violation or as a result of Jaina's conclusion that a violation of this EULA has occurred. This waiver and indemnity provision above applies to all violations described in or contemplated by this EULA.
14. GOVERNING LAW
You shall comply with the laws of India and/or any laws that may apply to You. Notwithstanding the conflict of laws principle, the EULA shall be governed and construed in accordance with the laws of India and any dispute or other matter arising in reference to the use of the Device/Software/Firmware shall be referred to a sole arbitrator appointed by Jaina and shall be governed by the Arbitration and Conciliation Act, 1996, amended from time to time. The venue for arbitration shall be New Delhi, and shall be conducted in English language. All the costs, charges and expenses in connection to the arbitration shall be solely borne by You. Subject to the above, the Courts having jurisdiction under the provisions of the Arbitration and Conciliation Act, 1996, to determine all matters which the Court is entitled to determine under the aforesaid Act, including, without limitation, provision of interim reliefs under the provisions of Section 9 of the Arbitration and Conciliation Act, 1996, shall exclusively be the courts at New Delhi, India. Notwithstanding the foregoing, You agree that Jaina has the right to bring any proceedings before any court/forum of competent jurisdiction and You irrevocably submit to the jurisdiction of such courts or forum.
a. You agree to bear the full, complete, and sole responsibility for using the Device, Firmware and/or Software for any purpose. You also agree to indemnify and hold Jaina harmless from and against any claims, proceedings, actions, damages, costs (including reasonable attorneys’ fees), and expenses resulting from your use of the Software and/or the Device and/or the Firmware for any illegal purpose and/or in breach of the provisions contained herein.
b. If any provision of this EULA is held invalid, void, or unenforceable, then that provision shall be considered severable from the remaining provisions, and the remaining provisions given full force and effect.
c. You acknowledge that your representations and warranties, obligations and the clauses relating to indemnities, limitation of liability, governing law, and confidentiality, shall survive the efflux of time and the termination of this EULA.
e. You hereby acknowledge and agree that the relationship between you and Jaina and its/their affiliated companies is not a confidential, fiduciary, or other special relationship.
f. You agree and acknowledge that owing to the evolving nature of the services, the terms of this EULA may be amended from time to time. You shall be solely responsible to keep yourself apprised of the changes which will be reflected in this document from time to time. Jaina may not send any private communication to you of any change. It is agreed that you will be bound by the amended EULA at all times.
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