LICENSED APPLICATION END USER LICENSE AGREEMENT
Phoober Inc. ("Phoober" or "we" or "us" or "our" or other similar pronouns) offers you ("you" or "your") calling services through Phoober’s licensed software application ("Licensed Application") for mobile devices available on Phoober’s website at www.phoober.net ("Site") or other third party websites and app stores. The Site, the Licensed Application and the various Phoober services offered to you may be collectively referred to in these terms as the "Service". Our Licensed Application is licensed, not sold, to you for use only under the terms of this license. We reserve all rights not expressly granted to you. This license is a binding legal document between Phoober and you and explains your rights and obligations as a user of the Service ("License"). If you choose to not agree with any of these terms, you may not use the Service.
NO ACCESS TO EMERGENCY SERVICES: Phoober is not a replacement for your ordinary mobile or fixed line telephone and does not allow you to make emergency calls to emergency services. You must make alternative communication arrangements to ensure that you can make emergency calls if needed.
CHECK RESTRICTIONS ON USE: In some countries there are restrictions on the use of the Licensed Application. It is your responsibility to ensure that you are legally allowed to use Phoober where you are located.
1. Scope of License
This License is a limited, non-exclusive, non-transferable, non-sub licensable license to use the Licensed Application on any mobile device or personal computer that you own or control. You may not distribute or make the Licensed Application available over a network where it could be used by multiple mobile devices at the same time. You may not rent, lease, lend, sell, redistribute or sublicense the Licensed Application. You may not copy (except as expressly permitted by this License), decompile, reverse engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the Licensed Application, any updates, or any part thereof (unless the foregoing restriction is prohibited by applicable law, or permitted by the licensing terms governing the use of any open sourced components of the Licensed Application, if any). In addition, any commercial copying or distribution, publication or exploitation of the Site, or any content, software, code, data or materials on or from the Site, are strictly prohibited unless you have received express prior written permission from us or the applicable rights holder. Any attempt to do so is a violation of our rights. If you breach these restrictions, you may be subject to prosecution and damages. The terms of the License will govern any upgrades provided by us that replace and/or supplement our Service, unless such upgrade is accompanied by a separate license in which case the terms of that license will govern.
2. Consent to Use of Data
By using the Licensed Application, you understand and agree that we may collect and use technical data and related information, including but not limited to technical information about your mobile 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. We may use this information to improve our Service.
3. Changes to this License
Phoober may make changes to the terms of this License from time to time. Phoober will publish the changes at http://www.phoober.net/eula. The changes will be effective when published. Please review this License on a regular basis. You understand and agree that your acceptance of the terms of this License or your use of the Service after the date of publication of varied terms shall constitute your agreement to the updated terms. If you do not agree with the amended terms, you may terminate your relationship with Phoober in accordance with paragraph 4 below.
4.1 The License is effective until terminated by you or us. You may terminate your relationship with Phoober at any time. If you are using our Service, you may simply cease to use the Service or delete our Licensed Application. Phoober has the right to terminate your rights under this License without notice if you fail to comply with any terms of this License. Upon termination of the License, you shall cease all use of the Licensed Application, and destroy all copies, full or partial, of the Licensed Application.
4.2 In addition, Phoober has the right to terminate its relationship with you, or may terminate or suspend your use of the Service at any time:
4.2.1 if you are in breach of the terms of this License;
4.2.2 if Phoober reasonably suspects that you are using the Service to break the law or infringe third party rights;
4.2.3 if Phoober reasonably suspects that you are trying to unfairly exploit or misuse any of our policies;
4.2.4 if Phoober reasonably suspects that you are using any of our products fraudulently or that your "User Account" is being used by a third party fraudulently;
4.2.5 immediately, if required due to a change in laws/regulation by a regulator or authority with a lawful mandate in any particular territory, or by any of Phoober's partners;
4.3 Phoober shall effect such termination by preventing your access to the Service, where applicable. We reserve the right to cancel User Accounts that have been inactive for more than one (1) year.
5. The Service
5.1 Phoober Inc. provides its customers with telephone call services exclusively for the private and non-commercial use of consumers.
5.2 The Service includes only charged calls. Where the calls are chargeable, the Service is only available if the customer has a certain credit level that is enough or more than enough for the charge to be paid.
5.3 It is pointed out that, because of the nature of the Service, breakdowns and interruptions can occur.
5.4 In order to protect the interests of the customer against improper use and to ensure consumer protection, Phoober reserves the right to block personal calls to individual numbers, groups of numbers or certain countries either permanently or temporarily. The customer is solely responsible for taking the necessary precautions against improper use within his own area of responsibility and has no legal right to require Phoober Inc. to take any such precautions against any improper use for which it is not responsible.
5.5 We make no representation that our Service is available for use in any particular location. To the extent you choose to access our Service, you do so at your own initiative and are responsible for compliance with any applicable laws, including but not limited to applicable local laws. We reserve the right to change, suspend, remove, or disable access to our Service at any time without notice. In no event will we be liable for the removal of or disabling of access to our Service. We may also impose limits on the use of or access to our Service without notice or liability.
5.6 Phoober may automatically check your version of the Licensed Application. Phoober has no obligation to make available any updates. However, Phoober may (a) require you to download and install updates; or (b) automatically download and install updates to your device.
5.7 Phoober does not consider proposals or ideas, including without limitation ideas for new products, technologies, promotions, product names, product feedback and product improvements ("Feedback") to be confidential information. If you send any Feedback to Phoober through the Site, social networks or otherwise, you acknowledge and agree that Phoober shall not be under any obligation of confidentiality with respect to the Feedback and nothing in this License limits or restricts Phoober's right to independently use, develop, evaluate, or market products, whether incorporating the Feedback or otherwise.
5.8 You may link to the Site from another website owned by you, provided you do so in a way that is fair and legal and does not damage our reputation or take advantage of it. You must not establish a link in such a way as to suggest any form of association, approval or endorsement by Phoober where none exists. You may not frame the Site on any other website. Phoober may revoke the permission to link to the Site at any time at its sole discretion.
6. Your Obligations
6.1 You are responsible for all activities that occur under your User Account. You agree to notify Phoober immediately of any unauthorized use of your User Account or any breach of security with respect to your User Account. Phoober will not be liable for any loss that you may incur as a result of someone else using your User Account, either with or without your knowledge. In addition, you may be held liable for any losses incurred by us or another party due to someone else using your User Account. Therefore, we recommend that you choose a password that is hard to guess and consists of letters, numbers and symbols. Phoober takes no responsibility for your failure to comply with the obligations in this paragraph.
6.2 You may not:
6.2.1 intercept or monitor, damage or modify any communication which is not intended for you;
6.2.2 use any type of spider, virus, worm, trojan-horse or any other codes or instructions that are designed to distort, delete, damage, emulate or disassemble the Service;
6.2.3 send unsolicited communications (also referred to as "SPAM", "SPIM" or "SPIT") or any communication not permitted by applicable law or use the Service for the purposes of phishing or pharming or impersonating or misrepresenting affiliation with another person or entity;
6.2.4 expose any third party to material which is offensive, harmful to minors, indecent or otherwise objectionable in any way;
6.2.5 use the Service to cause or intend to cause embarrassment or distress to, or to threaten, harass or invade the privacy of, any third party;
6.2.6 use (including as part of your name and/or profile picture) any material or content that is subject to any third party proprietary rights, unless you have a license or permission from the owner of such rights;
6.2.7 collect or harvest any personally identifiable information, including account names, from the Service; or
6.2.8 impact or attempt to impact the availability of the Service, with a denial of service (DOS) or distributed denial of service (DDoS) attack.
7. Disclaimer of Warranties. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE SERVICE, INCLUDING THE SITE AND LICENSED APPLICATION ARE AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, OUR SERVICE IS PROVIDED "AS IS" AND "AS AVAILABLE", WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND WE HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE SERVICE, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. WE DO NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE SERVICE OR THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE SERVICE WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY US SHALL CREATE A WARRANTY. SHOULD THE SERVICE CAUSE ANY DEFECTS, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION.
8. Limitation of Liability. TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL WE 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 SERVICE, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE) AND EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9. End Users and Export Control. You will not use or export the Licensed Application or any product or service offered on the Site or through the Service, in violation of any applicable laws or regulations, including without limitation Canadian export laws and regulations.
10. Charges for Phoober
10.1 Calling with Phoober Credit:
10.1.1 The charges payable for calling landlines and mobile phones consist of a per-minute rate as displayed in the route list. All calls will be disconnected and require a re-dial after a 4-hour duration.
10.1.2 Phoober may change the rates for calling phones at any time. The new rate will apply to your next phone call via the route list after the new rates have been published. Please check the latest rates before you make your call. If you do not accept the new rates, do not make your call.
10.1.3 The duration of a call shall be based on per second increments unless specified – i.e. Mexico which has 60 second billing increments. Phoober maintains 4-digit accuracy on your credit and on call charges. During the call, charges incurred will be deducted automatically from the Phoober Credit balance in your User Account.
10.2 The charges for other Phoober features or products will be confirmed to you before you complete a purchase from Phoober. Phoober may change the prices of such products at any time without any notice to you. You can choose whether or not to accept the new charges prior to completing your next purchase of the applicable product. The new prices will apply to your next purchase after the new prices have been published.
10.3 From time to time, Phoober may offer products or features available at no charge for a trial period. However, Phoober reserves the right to charge you for such products (at the normal rate) in the event that Phoober determines (in its reasonable discretion) that you are abusing the terms of the offer, including if you are using any service, proxy or other devices or anonymous IP address that prevents us from locating you.
10.4 Phoober may collect taxes at the appropriate rate for the particular territory (as per applicable tax rules) at the time of purchase of Phoober Credit.
10.5 Using the Licensed Application on mobile applications will use some of the data allowance available on the data package to which you have subscribed with your mobile network operator. Out-of-country usage may lead to significantly higher costs than regular usage, and you are solely responsible for keeping yourself informed and paying for possible roaming and other applicable charges levied by your mobile network operator.
11. Payment - Phoober Credit.
11.2 If you do not use your Phoober Credit for a period of 365 days, (including Phoober Credit that has been allocated to you by a Phoober administrator) Phoober will expire your Phoober Credit and must be re-purchased if you log-in again.
11.3 Phoober does not guarantee that you will be able to use your Phoober Credit balance to purchase all features and products. Where Phoober Credit cannot be used to pay for a feature or product, Phoober will make another payment method available to you. Phoober reserves the right to remove or amend the available payment methods at its sole discretion.
12.1 If you believe that Phoober has charged you in error, you must contact Phoober within 30 days of such charge. No refunds will be given for any charges more than 30 days old.
12.2 Phoober reserves the right to refuse a refund request if it reasonably believes (i) that you are trying to unfairly exploit this refund policy, for example, by making repetitive refund requests in respect of the same product or feature; (ii) if you are in breach of the terms of this License; (iii) if Phoober reasonably suspects that you are using any of our products fraudulently or that your User Account is being used by a third party fraudulently. This refund policy does not affect any of your statutory rights to pursue a claim.
13. Phoober's Ownership Rights. The Service, including the Site and Licensed Application (including any content or information contained therein) and all copies thereof are protected by copyright and other intellectual property laws and treaties. Phoober or its licensors own the title, copyright, and other intellectual property rights in the Site, Licensed Application and Service and all copies, modifications and derivative works thereof, and the underlying software (including any user Feedback) ("Phoober Technology"), and your use of our Service does not grant to you, nor do you acquire any ownership rights in the Phoober Technology.
14. Notice and Take Down Procedures; Copyright Agent. We respect the intellectual property rights of others, and require that the people who use the Site, Service and Licensed Application do the same. If you believe that any materials accessible on or from the Service infringes your copyrights, you may request the removal of those materials (or access thereto) by contacting us.
16. Jurisdiction. The laws of the Ontario, Canada, excluding its conflicts of law rules, govern this License and your use of the Licensed Application. You expressly agree that the courts in the Ontario, Canada have exclusive jurisdiction over any claim or dispute with Phoober or relating in any way to your use of the Licensed Application or Service. Your use of the Licensed Application and Service may also be subject to other local, state, national, or international laws.
17. Indemnity. You will indemnify, defend and hold harmless Phoober from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys' fees and costs) arising out of or in connection with any claim arising from or relating to any breach by you of this license.
18. Links to Third Party Websites. The Site may contain links to other third party websites ("Third Party Sites"). These Third Party Sites are provided solely as a convenience to you. Such Third Party Sites are not under Phoober’s control, and Phoober is not responsible for and does not endorse the content of such Third Party Sites, including any information or materials contained on such Third Party Sites. You will need to make your own independent judgment regarding your interaction with these Third Party Sites.
19. Acceptance of License. You affirm that you have the ability to enter into this License. If you are under the age of consent in your jurisdiction to form a binding agreement (and you are more than 13 years of age), you affirm that you are either an emancipated minor, or possess legal parental or guardian consent, and are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in this License, and to abide by and comply with this License. The Service is not intended for children under the age of 13.
20. General. This License is the entire agreement between you and Phoober relating to the Service and supersedes all prior or contemporaneous oral or written communications, proposals and representations with respect to the Service or any other subject matter covered by this License. If any provision of this License is held to be void, invalid, unenforceable or illegal, the other provisions shall continue in full force and effect. This License may not be modified or amended except as described herein by Phoober or otherwise with the written agreement of Phoober.