TOU – Xemobi Inc.

LICENSED APPLICATION END USER LICENSE AGREEMENT

By installing or using the application, software and services known as “SpotPlus” including any accompanying documentation, read-me files or other files (collectively, the Application), you individually or the entity on whose behalf you are acting (You or Your) agree that Your use of this Application is subject to these Terms of Use and License Agreement (Agreement). READ ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT PRIOR TO INSTALLING OR USING THE APPLICATION. IF YOU DO NOT ACCEPT THESE TERMS, YOU MAY NOT DOWNLOAD THE APPLICATION OR YOU MUST DELETE THE APPLICATION FROM YOUR COMPUTER OR OTHER HARDWARE.

PLEASE NOTE THAT YOU MAY NOT USE, COPY, MODIFY OR TRANSFER THE APPLICATION OR ANY COPY, EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT.

1. The Application

The Application known as SpotPlus is owned by and is being provided to You by Xemobi Inc. and its affiliates (the Company). The Company may elect, in its sole discretion, to change, edit, or discontinue the Application at any time, without notice.

1. Ownership

By entering into this Agreement with Company, You agree that this is a license and not a sale of the Application. You agree that the Application, including but not limited to graphics and editorial content, contains proprietary information and materials owned or sub-licensed by the Company and protected by applicable intellectual property and other laws, including but not limited to trade secrets, copyright and patents, and that You will not use such proprietary information or materials in any way whatsoever except for use of the Application in compliance with the terms of this Agreement. Your rights to use the Application are limited to the terms specified in this Agreement, and nothing herein shall reduce or modify the Companys ownership of the Application. The Company retains and reserves all rights not expressly granted to You herein.

1. Application License

The Company grants you a non-transferable, non-exclusive, non-sub-licensable, royalty-free and fully paid, worldwide right and license to reproduce (solely to install and execute) the Application on one of your computers, including a mobile computer such as Apple iPhone, Apple iPod Touch, Samsung Galaxy, etc in executable object code format only, for your personal, non-commercial use only, subject to the terms and conditions of this Application License. You are permitted to download the Application multiple times in order to install the Application on multiple computers, provided that you agree to the terms and conditions of this Application License each time you download the Application. Nothing in this Agreement grants You any rights to any related documentation, support, upgrades, maintenance or other enhancements to the Application, and neither Company nor Apple have any obligation to furnish any such services regarding this Application.

1. Restrictions

You may not make copies of the Application, modify or create derivative works of the Application, de-compile or reverse engineer the Application or otherwise attempt to create the source code from the Application, or in any way attempt to, or encourage or assist any other person to, circumvent or modify any security technology or software that is part of the Application. You agree to comply with all local, state, federal, and national laws, statutes, ordinances, and regulations that apply to Your use of the Application. No portion of the Application may be reproduced in any form or by any means. You agree not to modify, rent, lease, loan, sell, or distribute Application, in any manner, and You shall not exploit the Application in any unauthorized way whatsoever, including but not limited to, by trespass or burdening network capacity. Your right to use the Application will terminate immediately if you violate any provision of this Application License. Upon termination, you may no longer use the Application.

1. Consent to Use of Data

You agree that the Company may collect and use technical data and related information, including but not limited to technical information about Your device, system and application software, and peripherals, that is gathered periodically to facilitate the provision of software updates, product support and other services to You (if any) related to the Licensed Application. Application Provider may use this information to improve its products or to provide services or technologies to You.

1. Privacy

The Companys collection, use, sharing and transfer of any data generated, or any Individual Content You may provide, in connection with Your use of the Application is subject to the Companys Privacy Policy located at http://www.xemobi.com/

1. Changes

The Company reserves the right, at any time and from time to time, to update, revise, supplement, and otherwise modify the Application or this Agreement, and to impose new or additional rules, policies, terms, or conditions on Your use of the Application. Unless expressly stated to the contrary, such updates, revisions, supplements, modifications, and additional rules, policies, terms, and conditions (collectively referred to in this Agreement as Additional Terms) will be effective immediately and incorporated into this Agreement. Your continued use of the Application following the Companys adoption and posting of any Additional Terms will be deemed to constitute Your acceptance of any and all such Additional Terms. All Additional Terms are hereby incorporated into this Agreement by this reference. The most recent terms of the Application license and Companys Privacy Policy are always available for viewing at http://www.xemobi.com/ and such posted terms will show the last date such terms were updated.

1. Termination

This license is effective until terminated. You may terminate this license at any time by permanently deleting the Application from Your computing device. This license automatically terminates if You fail to comply with its terms and conditions. You agree that, upon such termination, You will delete and permanently erase all copies of the Application.

1. Content

The Application may offer features that allow You to, among other things, submit, store, manipulate and distribute content selected or produced by You (Individual Content). You represent and agree that such Individual Content and any use by You of features that allow for the transmission, posting or sharing of Individual Content shall be Your sole responsibility, shall not infringe or violate the intellectual property or other rights of any other party or violate any laws, contribute to or encourage infringing or otherwise unlawful conduct, or otherwise be obscene, defamatory, objectionable or in poor taste, and that You have obtained all necessary rights, licenses or clearances necessary to engage in such activities.

You also agree that: A) the Company may copy, transmit and distribute your Individual Content to third party Services you select, or via Email to the recipients you select; B) the Company may store this content on third party sites for the purpose of providing the services; C) the Company is not responsible for any connection or access to the Service by you, or the quality of the transmission of any images or information that you submit via the Application.

YOU SPECIFICALLY ACKNOWLEDGE THAT THE COMPANY SHALL NOT BE LIABLE FOR ANY INDIVIDUAL CONTENT OR ANY DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT ARISING OUT OR RELATED TO YOUR USE OF THE APPLICATION, AND THAT THE RISK OF HARM OR DAMAGE FROM THE FOREGOING RESTS ENTIRELY WITH YOU.

YOU ACKNOWLEDGE AND AGREE THAT THE COMPANY IS NOT RESPONSIBLE FOR ANY CONTACT OR INTERACTION BETWEEN YOU AND ANY OTHER USER OF THE APPLICATION AND THAT YOU BEAR THE SOLE RISK OF TRANSMITTING THROUGH THE APPLICATION ANY CONTENT, INCLUDING INFORMATION WHICH IDENTIFIES YOU OR YOUR LOCATION.

1. Disclaimer of Warranties; Liability Limitations
  1. THE COMPANY DOES NOT GUARANTEE, REPRESENT, OR WARRANT THAT YOUR USE OF THE APPLICATION WILL BE UNINTERRUPTED OR ERROR-FREE, AND YOU AGREE THAT FROM TIME TO TIME THE COMPANY MAY REMOVE OR SUSPEND THE APPLICATION AT ANY TIME. FURTHER YOU ACKNOWLEDGE THAT THE CONTINUED PROVISION OF THE APPLICATION RELIES UPON THE GENERAL OPERATION OF THE INTERNET AND WORLD WIDE WEB AND CERTAIN FACTORS NECESSARY FOR THE CONTINUOUS OPERATION OF THE INTERNET AND WORLD WIDE WEB ARE BEYOND COMPANYS CONTROL.
  2. YOU EXPRESSLY AGREE THAT YOUR USE OF, OR INABILITY TO USE, THE APPLICATION IS AT YOUR SOLE RISK. THE APPLICATION IS PROVIDED AS IS AND AS AVAILABLE FOR YOUR USE, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.
  3. COMPANY WILL NOT BE LIABLE FOR ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF YOUR USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED OR OTHERWISE MADE AVAILABLE VIA FACEBOOK WEBSITE OR TWITTER SERVICE.
  4. TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL THE COMPANY, ITS DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, CONTRACTORS, OR LICENSORS BE LIABLE FOR PERSONAL INJURY, OR ANY INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE LICENSED APPLICATION, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE) AND EVEN IF APPLICATION PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU. In no event shall Application Provider’s total liability to you for all damages (other than as may be required by applicable law in cases involving personal injury) exceed the purchase price paid by you for the Application. The foregoing limitations will apply even if the above stated remedy fails of its essential purpose.
  5. COMPANY DOES NOT REPRESENT OR GUARANTEE THAT THE APPLICATION WILL BE FREE FROM LOSS, CORRUPTION, ATTACK, VIRUSES, INTERFERENCE, HACKING, OR OTHER SECURITY INTRUSION, AND THE COMPANY DISCLAIMS ANY LIABILITY RELATING THERETO.
2. BASIS OF BARGAIN.

The warranty disclaimer and limitation of liability set forth above are fundamental elements of the basis of the agreement between the Company and You. We would not be able to provide the Application on an economic basis without such limitations. The warranty disclaimer and limitation of liability inure to the benefit of our suppliers.

1. INDEMNIFICATION

You agree to indemnify and hold harmless the Company, their licensors and their subsidiaries, affiliates, joint ventures, suppliers, officers, directors, shareholders, employees and agents, from any liability, cost, expense, or claim or demand made by any third party, due to or arising directly or indirectly out of your conduct or in connection with your use of the Application or its features, any alleged violation of this Application License, or any alleged violation of any applicable law or regulation. Elimination Systems and the Elimination Systems licensors reserve the right, at their own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, but doing so shall not excuse your indemnity obligations.

1. Access

You must provide at Your own expense the hardware, computer, equipment, internet access, or wireless connection to access and use this Application.

1. Governing Law and Venue

This Agreement is governed by the laws of the State of California, without reference to its principles of conflicts of laws. You expressly agree that exclusive jurisdiction and venue for any claim or dispute with the Company relating in any way to Your use of the Software resides in the state or federal courts of Santa Clara County, California. You hereby irrevocably consent to the personal and exclusive jurisdiction and venue of these courts.

1. Miscellaneous

If any provision of this Agreement shall be unlawful, void, or unenforceable, then that provision shall be deemed severed from this Agreement and shall not affect the validity or enforceability of the remaining provisions of this Agreement. This Agreement is the complete, final and exclusive statement of the agreement between the parties with respect to the subject matter hereof, and supersedes any proposal or prior contemporaneous agreement or communications between the parties (whether oral or written) relating to the subject matter hereof. No failure or delay (in whole or in part) on the part of either party to exercise any right or remedy hereunder shall operate as a waiver thereof or affect any other right or remedy. Waiver of a breach shall not waive the right to enforce any subsequent breach under this Agreement. If You have any questions regarding this Agreement, You may contact us at the address located at legal@xemobi.com

1. Electronic Signatures and Contracts; Sufficient Legal Age

Your use of the Application includes the ability to enter into agreements electronically. YOU ACKNOWLEDGE THAT YOUR ELECTRONIC SUBMISSIONS CONSTITUTE YOUR AGREEMENT AND INTENT TO BE BOUND BY THIS LICENSE. YOU REPRESENT THAT YOU ARE OF A SUFFICIENT LEGAL AGE NECESSARY TO LEGALLY ENTER INTO AND BE BOUND BY LEGAL AGREEMENTS FORMED THROUGH THE APPLICATION. IF YOU ARE UNDER THE AGE OF 18, USE OF THE APPLICATION SHOULD ONLY OCCUR WITH THE INVOLVEMENT OF YOUR PARENT OR GUARDIAN

This agreement was last modified on 10/20/2013